By Marianne Aguilar

President Donald Trump has endorsed a bipartisan criminal justice reform bill called the First Step Act.[1] According to the New York Times, the Act, among other goals, “would eliminate the so-called stacking regulation that makes it a federal crime to possess a firearm while committing another crime, like a drug offense; expand the ‘drug safety valve’ allowing judges to sidestep mandatory minimums for nonviolent drug offenders; and shorten mandatory minimum sentences for nonviolent drug offenders.”[2] This bill would address several criminal justice policies that disproportionality affect minority offenders.[3] Although the bill fails to retroactively apply all new policies or address all issues in the United States’ criminal justice system, it would be a step in the right direction for criminal justice reform.[4]

In May 2018, the First Step Act passed the House with a vote of 360 to 59.[5] The bill has since stalled in the Senate.[6] The original House bill included policies requiring prisons to improve conditions, but it failed to include sentencing reform.[7]  The proposed bill in the Senate revised the House bill by adding sentencing reform components, among other revisions.[8] Senate Democrats did have to concede by agreeing not to apply several reforms retroactively, including the reduction of mandatory minima, to get them included in the Senate bill.[9] This concession may draw some opposition from Senate Democrats who believe the bill is not comprehensive enough, but it may also prevent the bill from passing again in the House, which may find the concessions to be too liberal.[10]

In expressing his support for the bill, Donald Trump stated that “the bill would reverse some federal policies that ‘disproportionately affected the African-American community.’”[11] For example, the bill would apply the 2010 Fair Sentencing Act’s reduction of disparities in sentencing for crack cocaine versus powder cocaine retroactively.[12] The retroactive application could shorten the sentences of nearly 3,000 federal inmates.[13] This change would have a huge impact on black Americans; in 2017, seventy-nine percent of offenders incarcerated for crimes involving crack cocaine were black Americans.[14]

One type of mandatory minimum the bill addresses is the one associated with the “three-strike rule.”[15] The three-strike rule has faced criticism for imposing a punishment that does not fit the crime: it imposes a life sentence upon conviction of a serious violent felony following two offenses, one of which must be a “serious violent felony,” no matter what the felony is, particularly if it involves an element of force and is punishable by ten years or more.[16] Instead of the “three-strike rule” resulting in a mandatory life sentence upon conviction of a serious violent felony, the bill would reduce the mandatory minimum to a twenty-five-year sentence.[17] This change would have a huge effect on black Americans who, due to the racial bias in arrest and incarceration rates, have been disproportionately harmed by the three-strike rule.[18] The bill would also reduce other mandatory minima, as well as give judges more discretion to reject mandatory minima for those convicted of drug offenses.[19] While black Americans statistically do not use illicit drugs at a higher rate than Caucasians, black Americans are incarcerated about six times as much for drug offenses.[20] However, a major point of contention for the bill has been that the reduction of any of the mandatory minima would not apply retroactively.[21] Therefore, while the bill is certainly a step in the right direction, it fails to help millions of already incarcerated non-violent drug offenders.

The bill includes several other reforms, such as requiring that prisons provide tampons and sanitary napkins for female prisoners free of cost.[22] It also bans the shackling of pregnant women, as well as women up to three months after their pregnancy.[23] These are internal Bureau of Prisons policies that have already been in place but that it has ignored for years, which the Marshall Project states is evidenced in federal audits and investigations.[24] This reform ensures that prisons are complying with these policies and moving toward a more human incarceration environment. The bill also expands eligibility for compassionate release, or the release of elderly and terminally ill inmates, and authorizes the increased use of halfway houses.[25]

While the First Step Act is a starting point for much needed criminal justice reform, there is still a lot of work left to be done, such as addressing sentences imposed on those who are already incarcerated.[26] Additionally, the bill would only be applicable to federal prisons and have no effect on state prisons, in which the majority of inmates are held.[27] Until more expansive reform can occur, passing such a bill would be a huge feat for criminal justice reform advocates. The bill still faces several hurdles, such as having the Senate revisions pass the House again in the final weeks of the session.[28] Further, it is still unclear whether conservative Republicans in the Senate would join in the vote to pass the bill. However, Republican Senators who support the bill are desperate to pass The First Step Act before Democrats gain control of the House in January; a Democratic controlled House could push for more comprehensive reforms.[29] Therefore, it would be in the best interest of congressional Republicans to pass The First Step Act swiftly.

[1] Nicholas Fandos & Maggie Haberman, Bipartisan Sentencing Overhaul Moves Forward, but Rests on Trump, N.Y. Times(Nov. 12, 2018), https://www.nytimes.com/2018/11/12/us/politics/prison-sentencing-criminal-justice-reform.html.

[2] FIRST STEP Act, S. 2795, 115th Cong. (2018); Fandos, supranote 1.

[3] Id.

[4] Id.

[5] Adam Brandon, Time to Pass the First Step Act, The Hill (Nov. 14, 2018), https://thehill.com/opinion/criminal-justice/416609-time-to-pass-the-first-step-act.

[6] Id.

[7] Id.

[8] Id.

[9] Tim Lau, Congress is Poised for a Major Step on Sentencing Reform, Brennan Ctr. for Justice (Nov. 14, 2018), https://www.brennancenter.org/blog/congress-poised-major-step-sentencing-reform.

[10] Fandos & Haberman, supra note 1.

[11] Carmin Chappell, A Bipartisan Criminal Justice Reform Bill Faces an Uphill Battle in Congress, Even as Trump Promises to Sign It, CNBC (Nov. 19, 2018, 2:15 PM), https://www.cnbc.com/2018/11/19/trump-backed-criminal-justice-reform-bill-faces-uphill-battle-in-congress.html.

[12] Chappell, supra note 11; Justin George, What’s Really in the First Step Act?, The Marshall Project (Nov. 16 2018, 12:45 PM), https://www.themarshallproject.org/2018/11/16/what-s-really-in-the-first-step-act.

[13] Chappell, supra note 11.

[14] U.S. Sentencing Comm’n, Race of Drug Offenders in Each Drug Type, Fiscal Year 2017 (2017), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2017/Table34.pdf.

[15] George, supra note 11.

[16] Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994) (listing murder, manslaughter other than involuntary manslaughter, assault with intent to commit rape, aggravated sexual abuse and sexual abuse, and other offenses under the definition of “serious violent felony”); 10 Reasons to Oppose “3 strikes, You’re Out,”ACLU, https://www.aclu.org/other/10-reasons-oppose-3-strikes-youre-out (last visited Nov. 22, 2018).

[17] George, supra note 11.

[18] Id.

[19] FIRST STEP Act, S. 2795, 115th Cong. (2018).

[20] Criminal Justice Fact Sheet, NAACP, https://www.naacp.org/criminal-justice-fact-sheet/ (last visited Nov. 22, 2018); Valerie Strauss, Mass Incarceration of African Americans Affects the Racial Achievement Gap — Report, Wash. Post (Mar. 15, 2018), https://www.washingtonpost.com/news/answer-sheet/wp/2017/03/15/mass-incarceration-of-african-americans-affects-the-racial-achievement-gap-report/?utm_term=.cd3baab6b3be.

[21] Lau, supra note 9.

[22] FIRST STEP Act, S. 2795, 115th Cong. (2018).

[23] Id.

[24] George, supra note 12.

[25] Id.

[26] President Donald J. Trump Calls on Congress to Pass the FIRST STEP Act, White House (Nov. 14, 2018), https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-calls-congress-pass-first-step-act/.

[27] Chappell, supra note 11.

[28] Id.

[29] Id.