Some justice reform advocates pan federal First Step Act

The First Step Act, a federal justice reform proposal that was approved today by the U.S. House of Representatives, has made for some strange bedfellows and was passed with bipartisan support, but not everyone in the criminal justice reform movement is on board.

The American Friends Service Committee, a Quaker social justice organization that advocates for justice reform, believes the First Step Act has some serious fundamental flaws. The group isn’t actively opposing the bill, but doesn’t support it either, said Caroline Isaacs, the program director for AFSC in Arizona.

Among the provisions of the First Step Act are proposals that would give federal judges more leeway to ignore mandatory minimum sentencing requirements in certain cases; reduce some mandatory minimum sentences, including for people who violate the federal “three strikes” rule for convictions of serious violent felonies or drug trafficking charges; reduce sentences for crack cocaine, which are substantially more severe than sentences for powdered to cocaine; strengthen enforcement of federal rules against shackling pregnant prisoners; require prisoners to incarcerated within 500 miles of their families; and provide opportunities for inmates to earn time off their sentences, which would be spent in halfway houses or rehabilitative programs instead.

Though the First Step Act makes some significant changes, Isaacs said AFSC has identified two major problems with the bill.

First is its reliance on risk assessment tools to determine what kind of incentives, programs and sentence reductions inmates can receive. Isaacs said such assessment tools generally reflect the inherent racial bias found in the rest of the criminal justice system. For example, people who are from communities where many people have criminal records, which for many would include family members, will often be categorized as high-risk inmates, she said.

“What that actually denotes is that you’re from a disadvantaged community that is disproportionately surveilled and policed,” Isaacs said.

Isaacs said the First Step Act doesn’t specify the type of assessments that would be used. She was skeptical, and noted that it will be up to President Donald Trump and his Department of Justice to make that determination.

Second, Isaacs said the federal justice system doesn’t have the capacity to implement the electronic monitoring, halfway houses, home confinement or other “prison light” provisions that the First Step Act mandates. That means the federal government will have to rely on private prison companies for those provisions, which Isaacs said would add to the “mass privatization” of the justice system.

“Instead of creating alternatives to incarceration, they’re creating alternative forms of incarceration, which they then can get contracts to administer and make tons of money. But that’s not freeing people. That’s just putting them under a slightly different form of state control,” she said.

Isaacs noted that some critics also oppose the First Step Act because its provisions would not apply to immigrants. A coalition of organizations that advocate for immigrant rights, including the National Immigrant Justice Center, Immigrant Defense Project and American Civil Liberties Union, warned that the bill excludes many legal immigrants and most immigrants who are in the country illegally.

Nonetheless, the bill has broad-based support from across the political spectrum and many pro-justice-reform organizations. Both the House of Representatives and the U.S. Senate have passed it, and Trump has thrown his support behind the legislation.

The ACLU, as well as its Arizona chapter, is among the supporters. Jared Keenan, a criminal justice staff attorney with the ACLU of Arizona, said the organization shares some of AFSC’s concerns, but is more focused on what it views as the positive aspects of the First Step Act. The bill isn’t perfect, Keenan said, but is a moderate step in the right direction.

“There’s so much work that needs to be done. Given the current political climate, I don’t think we could hope for much more than what was in this bill. But it does have some good aspects,” Keenan said.

The First Step Act even has support from at least one local official who is traditionally wary of justice reform proposals. Maricopa County Attorney Bill Montgomery said he likes the bill’s emphasis on reducing recidivism, though he’s wary of the provisions on reducing sentences. If federal sentencing requirements are reduced too much, he said local prosecutors will simply take up more of those cases.

“I’m generally supportive. I think it’s 80-percent good. Twenty percent arguably could have been worked out a bit better. But the main idea about providing recidivism reduction programming and incentives to participate? That’s perfectly fine. That’s the direction we are going in Arizona,” Montgomery said.

Marilyn Rodriguez, a lobbyist who represents criminal justice reform advocates in Arizona, said she’s personally supportive of the First Step Act. She emphasized that the bill is, as its name states, a first step. The bill is imperfect and there are a thousand steps or more needed, she said.

Nonetheless, Rodriguez said she respects the opposition of groups like AFSC, and said critics who don’t believe the First Step Act goes far enough provide an important perspective.

“If everybody’s (singing) kumbaya and we say, ‘Yes, this solved the problem,’ then that fear of us not taking the second, third, fourth step is suddenly realized,” Rodriguez said. “I appreciate having that voice in the room.”