January 21, 2019

First Step or Last Step?

The White House is seen with the Washington Monument (L) behind it and the Jefferson Memorial (R) in Washington. REUTERS/Gary Hershorn

It seems as if all of political D.C. has broken out in song over the First Step Act of 2018. Finally, a bipartisan piece of legislation that not only passed both houses of Congress but also was signed by President Donald Trump. This law-and-order president signed criminal justice reform legislation that was put forward by conservative Republicans and also embraced by liberals such as Sen. Cory Booker (D-N.J.). 

It’s not hard to understand why there is a desire to celebrate. In a month that included two children dying while in the custody of U.S. Customs and Border Protection; Trump glorifying the government shutdown because $5 billion wasn’t earmarked for his border wall; Border Patrol officers shooting tear gas into a crowd that included pregnant women and children; U.S. culpability in the ongoing Saudi massacre in Yemen being revealed to the American public; and an early spring cleaning of Trump administration officials, we all need something to celebrate. 

We have to ask, however, should we celebrate this bill? 

The Trump administration’s record on criminal justice reform is less than stellar. Vox reported that under the leadership of Attorney General Jeff Sessions, the Justice Department pulled back investigations into local police departments that exposed abuses in places such as Ferguson, Mo. Sessions rescinded a Barack Obama-era memo that told federal prosecutors to avoid charges for low-level drug offenders that could trigger lengthy mandatory minimums. In addition, according to a statement by Sen. Dick Durbin (D-Ill.), Sessions has “reversed key prison reforms,” such as reducing the use of restricted housing and private prisons and improving education opportunities and re-entry services. 

On the other hand, the reformers say, Sessions is now gone and the First Step Act reduces the sentencing disparity between crack and powder cocaine; it reauthorizes the reforms of the Second Chance Act of 2007, thus providing funding for some re­entry programs; it goes a little way toward easing mandatory minimums; and increases access to education programs that can result in reduced sentence time, conditional upon an assessment and review by the attorney general. 

The bill impacts only a small minority of prisoners in the federal system, which holds a minority of the prisoners in the country.

This is the rub. There’s overwhelming evidence that assessment tools used to determine if a prisoner likely will reoffend are biased against communities of color (especially African­-American communities). They also have a high proportion of false negatives, that is, research shows that in many cases where the algorithm would have determined that an incarcerated person should not be released because they were at high risk of re­offending, in truth they didn’t re­offend. (The algorithm was tested on released prisoners.) This has to do with the fact that many algorithms take into account how many times a person has been arrested.

African-Americans are arrested at disproportionately higher rates, which skews the outcomes of the assessment tool. This and other serious issues have brought some leading civil rights organizations to oppose the First Step Act. 

There is a more significant problem with this act. Although it’s called the First Step Act, there is a serious danger that it would become the “Last Step Act.” First, the bill impacts only a small minority of prisoners in the federal system, which holds a minority of the prisoners in the country (California, for example, holds about as many prisoners as the federal system). More importantly, the bill doesn’t focus on the root causes of mass incarceration. 

Incarceration rates are not evenly divided across the country. A minority of counties account for the majority of incarcerations. In fact, the majority of the population of American prisons is derived form only a minority of neighborhoods. There is a correlation between those high incarceration neighborhoods with segregated housing and lack of funds for education and development. We’re not dealing with a problem that we can solve with a flawed Band-Aid. How many schools, hospitals, affordable housing units, teachers and restorative or reparative justice programs could we be supported with the $5 billion that Trump demands for his delusional wall obsession? 

Hopefully, when the next Congress takes office, it will have the vision and courage to address the problem of mass incarceration in a systemic and effective fashion.


Rabbi Aryeh Cohen is a professor of rabbinic literature at American Jewish University. His latest book is “Justice in the City: An Argument from the Sources of Rabbinic Judaism.”