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Analysis

Historic Criminal Justice Reforms Begin to Take Effect

More than 3,100 people were released from federal prison as parts of the First Step Act go into effect.

July 25, 2019

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.

(Image: Getty)