The First Step Act, which Congress passed last December, represents the most substantial criminal justice reform legislation in a generation. The law aims to shorten mandatory minimum sentences for some drug offenses and to improve conditions for people currently in prison. But since the First Step Act was signed into law, advocates have voiced concerns about oversight and funding for its implementation.
However, the law got an unexpected boost last week when the Justice Department confirmed that it would redirect $75 million from existing programs to fund the First Step Act through the end of September, the conclusion of the 2019 fiscal year.
Additionally, officials unveiled a new tool that helps individuals earn credits toward an earlier release date. Known as the FSA Risk and Needs Assessment System (RNAS). While some concerns remain about the tool’s development, it should provide guidance for in-prison programming — including education, vocational training, and drug treatment — aimed at reducing recidivism. These programs will allow participants to work toward eventually transferring to prerelease custody, such as a halfway house or home confinement.
This introduction had major consequences for families around the country, as its rollout was tied to an increase in the number of days people in prison can earn toward early release based on good behavior. This so-called “good time fix” seems small, but had an immediate effect. Justice Department officials announced that more than 3,100 people would be released from federal prisons across the country, due to the “fix’s” retroactive application.
Explaining Friday’s prison release
People serving time in federal prisons are eligible to earn “good time credit,” or small reductions to their sentences, based on good behavior. The First Step Act increased the cap on good time credits from around 47 days to 54 days per year of sentence imposed — a change that will benefit up to 85 percent of people in federal prison.
This change was a long time in the making. Many believe that Congress always intended people to be able to earn 54 days of good conduct time per year, and that federal prison administrators were creatively interpreting the law to detain people longer. But in 2010, the Supreme Court disagreed. If Congress meant for people to be able to earn a full 54 days, it would have to say so in new legislation.
The First Step Act did just that. The change is retroactive, meaning it helps people who have been waiting for this change for years. But it was originally intended to go into effect immediately after the First Step Act was signed into law. Thanks to a drafting oversight and agency intransigence, it kicked in only after the RNAS tool’s release. Once that was published, last week, the saga came to a close, leading to immediate release for 3,100 people.
Risk assessments and prison reform
The new risk assessment tool has the potential to improve the lives of many people, but the design process has received criticism from advocates, who argued that an organization consulted to assist with its implementation was hostile to criminal justice reform and lacked the appropriate expertise. Others feared the final product would exacerbate racial disparities and hold back rehabilitation. Whether these concerns remain warranted is an open question. “We’re continuing to evaluate the risk assessment tool and any outstanding concerns connected to its implementation,” said Ames Grawert, senior counsel in the Brennan Center’s Justice Program. “In the meantime, people should participate in the upcoming public comment period and share their thoughts about the tool.”
The impact of the First Step Act’s sentencing reforms
Other parts of the First Step Act have been in action for months now — specifically, its sentencing reforms.
The U.S. federal prison population has increased by more than 700 percent since 1980, disproportionately impacting African American, Native American, and Latino communities. Federal mandatory minimum sentences helped catalyze this growth. Accordingly, reform advocates including the Brennan Center insisted that the First Step Act include sentencing reform provisions to address overly harsh prison sentences — especially for drug offenses. Around 2,000 people annually will benefit from the reforms included in the law.
Many already have. The First Step Act allows for retroactive application of the Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack cocaine and powder cocaine offenses that disproportionately penalized African American defendants. This reform in the law has led to more than 1,600 sentence reductions.
“These changes are long overdue,” said Grawert. “They’re a good start, but they’re not enough. While it’s smaller now, there’s still a serious disparity between the punishments imposed for crack and powder cocaine offenses. And too many federal prison sentences are still too long. The First Step Act’s title implied Congress would follow up with a ‘next step’ — the time to start working on that is now."
The road ahead for First Step Act implementation
The passage of the First Step Act was a rare bipartisan accomplishment and a major win in the fight to end mass incarceration. And while parts of its implementation process have been challenging, the recent confirmation of funding and the publication of a risk assessment tool are both positive signs of compliance with the law.
Critically, though, the work to ensure the law’s success isn’t over. Despite the latest round of funding, its implementation is set to be unfunded again after September. Congress should act immediately to close that funding gap — and advocates should scrutinize the new RNAS tool to make sure it reflects best practices.