Updated: Feb 26, 2019
Post by T. Connor
The First Step Act was first introduced last Spring 2018 (here is the original version of the bill that passed the House). After passing in the House of Representatives it ran into major opposition by Democrats and organizations like ACLU and others. The signatures you see above were at the bottom of a strong letter of opposition towards the bill (that letter can be found here).
Their main arguments:
1. “Recidivism Reduction Plan is Based on Flawed and Exclusionary Risk Assessment System”
2. “The Time Credit is Not Real Time off of a Sentence”
3. “Inadequate Funding and Staffing Will Prevent Effective Implementation”
4. “Too Much Discretion to Attorney General Sessions”
5. “Facilitating Privatization”
6. “Impact of Positive Provisions Overstated”
7. “Prison Reform Will Fail Without Sentencing Reform”
I’m not going to spend all of your time addressing all of these points. However, I will discuss how issues 1, 6, and 7 have led to the distrust I have with both candidates.
As you can see, the very first critique the authors of this letter highlighted is the fact that the overall plan to reduce recidivism within the First Step Act is “exclusionary.” In order for people to qualify for this program they will develop a “new risk assessment system” that will use a unique set of algorithms. They express that this is problematic because “research shows that risk assessments often do not accurately predict risk and can produce results that are biased against people of color- particularly African Americans.” (Here is a link that describes this) (Also see the work of Joy Buolamwini). The very FIRST issue they address describes how this system will continue to perpetuate racial inequalities. Personally, I was ecstatic to see that politicians were critiquing a bill to ensure that racial inequality would not happen on their watch. Awesome, right? We’ll see.
Next, the authors of this letter describe that the overall impact of this bill is being overstated. They realize that the amount of people who may be released early for “good time credit” is overestimated and the impact will be minimal at best.
Finally, they argue that this bill is incomplete and not a true measure of reform without addressing sentencing reform. They claim they are “unwilling to support flawed prison reform legislation that does not include sentencing reform.” They understand that addressing sentencing reform will give judges more discretion and reduce the impact of mandatory minimums, which have been the cause of many criminal injustices we see today.
Now, after reading this letter and the response to their letter by Hakeem Jefferies (which can be found here), I was proud and hopeful that these issues of concern have been raised by the likes of Senator Harris and Senator Booker. So when I heard the bill was going to be signed into law and had the support of Senators Harris and Booker, I was eager and excited to see the changes that were made. In my thoughts, I said “Yes, we finally got one right.” I assumed the racial inequality concerns would be met, the overstatements concerning the overall impact would be accurately adjusted, and sentencing reform would be included. So as I opened the bill and read it over, I was disappointed (the final version of the bill can be found here).
The biggest change to the bill was that it now included about four new provisions on sentencing reform. The bill now includes a provision that allows the Fair Sentencing Act of 2010 to be retroactively applied. This is the act that reduced the sentencing disparity between crack and cocaine. It also gives judges more discretion when applying mandatory minimums, relieves the pressure of the three-strikes law, and doesn’t allow the stacking of gun charges on drug offenses.
Don’t get me wrong, I think this is great. Sentencing reform is a ‘must-have’ for any attempt of criminal justice reform and I was pleased they added it. Although that was a major victory, I wanted to see if all the other concerns from their opposition letter was addressed - especially their issue with the algorithmic bias creating racial inequality. When I looked at the final version of the bill, I quickly realized that all of their original grievances remained in the bill.
My next question was, how on Earth could Senators Harris and Booker support a bill that may be inherently racist? Well I quickly found the answer.
In 2015, Democrats presented the Sentencing Reform and Corrections Act. This Act was rejected and was denied a call for a vote by senate majority leader Senator Mitch McConnell. Many supporters of the bill, like Senator Booker, were very frustrated and continued to fight and gain support over the next couple of years. The act never really gained enough traction and could not be made into law. Even when the First Step Act was first introduced, Jeff Sessions stated he would not even consider the bill if it included anything to do with sentencing reform, which annoyed many criminal justice reform advocates. This is why the first version of the bill has no mention of sentence reform.
This bill could not pass without the support of both major political parties, so many Democrats, like Senator Harris and Booker, saw it as an opportunity to finally include sentencing reform within this legislation. This was their primary goal. Eventually, folks like McConnell and other opposition to sentencing reform surrendered and supported these changes. Therefore, the new sentencing provisions in the First Step Act were also a part of the Sentencing Reform and Corrections Act of 2015. Finally, the Democrats got what they wanted- but at what cost?
Well, the cost was turning a blind eye toward racial inequality. Currently, Trump, Harris, Booker, and many others are praising the signing of this Act as a major win for criminal justice reform. I agree it is a win, but not major. It also comes with a loss- the trust of The People.
First, most of the people and organizations that support this Act have failed to acknowledge that this legislation is not as impactful as they claim. The First Step Act only applies to those in federal prisons. The federal prison system holds around roughly 14% of all prisoners (here you'll find some data on this). Yes, this means that about 86% of the prison population reside within state prisons and won’t be touched by this policy. Therefore, even if the First Step Act was widely successfully, it would only impact 14% of the prison population - at most (and that's wishful thinking).
Secondly, this policy promotes a narrative that claims if inmates complete education or employment programs that they will successfully reintegrate back into society and this is not accurate- especially for black men and women (see the work of the late Devah Pager’s Marked for more about this).
Third, even with the Fair Sentencing Act being applied retroactively, estimates indicate it may only impact anywhere from 2,600-3,000 inmates (a small number when you compare it to the nearly 1.5 million prisoners in our country). Additionally, a couple of provisions that are being praised in this bill had been passed years ago. For example, the anti-shackling policy of pregnant women was passed back in 2008 by the Federal Bureau of Prisons (so it’s kind of weird that’s it has resurfaced in this bill as something new for federal prisons). Even the Mercy Act, developed by Senator Booker, which addresses and bans solitary confinement for juvenile offenders is included in the First Step Act and was already banned in federal prisons by President Obama in 2016 .
How can Booker and Harris (and ALL Democratic senators- because not a single one voted against this bill-but 12 Republicans did) ignore the potential racial inequalities that may develop from this Act? Is it because they wanted to have a major stripe on their record before they each hit the 2020 Presidential campaign run? I don’t know for sure, but possibly.
What I do know is that we must hold them accountable. The provisions and algorithms that they criticized remain in the final version of the new legislation. Both Presidential candidates have not addressed this at all when discussing the First Step Act. Kamala has at least alluded to the fact that more needs to be done, but I’ve heard less of that from Booker.
I personally have a tough time overlooking the fact that both of these candidates know that this Act can perpetuate racial and class inequality and now they ignore this issue completely (they never address this concern in any of their remarks concerning this bill). They will continue on their campaign trails and praise this bill and gain support in the process. They will garnish their role in actualizing this reform legislation. They will shed light on the benefits of this Act while keeping its detriments in the dark. But what happens ten years from now when research illustrates that access to these new prison programs are racially biased and Whites have been benefiting far more than their black counterparts?
I’m sure if, excuse me, I mean when that happens both Harris and Booker will champion the cause to combat these racist wrongdoings and try to propose new ways to fix the problem. But will they admit that they knew this would happen and supported it anyway? Probably not. If either of them win the Presidency, will they continue to de-prioritize racial equality when something more politically lucrative crosses their path? Will we continue to only pay attention to what they say and ignore what they are not saying?
See, I am tired of politicians, black and white, who intentionally propagate and express their concerns with racism, but practically ignore them. I am tired of being sold a dream when living in a racist reality. I want politicians who truly champion causes of racial equality to be relentless until it is accomplished (or at least explicitly addressed in policies and agendas they support). I pray for politicians who not only demonstrate their keen ability to recognize racism, but more importantly, follow through on their promises to combat it. Simply put: “Don’t just talk the talk, walk the walk.”
This isn’t the first time black politicians backed racist policies. We experienced this in the 70s and 80s with black politicians across the country when the government introduced policies during the War on Drugs Era. However, these politicians did not know that the policies they supported would be racially biased before they signed them. Black politicians supported those bills largely because their constituents were the most victimized by drug addiction and violence. Once they began to see how these policies perpetuated racism, many of them realized they had made a mistake. They can somewhat be forgiven, because there isn't a declarative letter of them openly acknowledging and critiquing the potential damage beforehand. But what would we think of those same black politicians if we knew that they were aware the policies they signed were going to adversely impact their own communities? Some may call them traitors. Some may call them liars. Some may even call them monsters. No one would call them heroes (well, maybe some white supremacists).
Unlike our black political leaders of the past, the same can’t be said for Senators Harris and Booker. They know. It is in the letter. They signed it. As I continue to contemplate about this, I’m not sure yet if I believe this is a forgivable offense. I do know this is not forgettable. Knowing that these federal inmates of color may not get their fair shake in this new prison programming is alarming and disappointing, to say the least.
Friends, let me end this by stating that my intent here is not to demonize or villainize Senators Harris and Booker. The truth is, deep inside, I’m supportive of them. In the words of the talented Issa Rae, “I’m rooting for everybody black.” However, it is that same admiration that has also led to my disappointment. Both Harris and Booker are from our community and identify as such, therefore, they know better.
It is ok to critique them and hold them accountable for matters that affect the black community. Why? Because that is not only what we need from them, but we must also demand it. As a community, we most pay more attention. We must ask these critical questions. Think about it. Why is it ok and acceptable for a Presidential candidate like Julian Castro to explicitly address immigration policy because it affects the Latino population (his community)? Why is it ok for Elizabeth Warren to explicitly address issues of poverty and class related policy? On the other hand, why is it considered political suicide when politicians explicitly discuss race, yet all policy endeavors related to other marginalized groups are not?
I say all this to say that, yes, I will be holding candidates like Kamala Harris and Cory Booker accountable, but I will also be just as rigorous and critical (probably even more) of ALL the candidates. It is time we begin to demand that policies related to racial justice and equality be taken seriously. We must be relentless and uncompromising in this pursuit, no matter who leads the campaign. No more beating around the bush with rhetoric like, “This policy will help ALL Americans” or "A Rising Tide Raises All Ships." I’m on those Rosa Parks vibes- ‘Nah.’
All other marginalized groups make sure politicians explicitly and directly address their concerns whether it’s the LGBTQ community, Women’s Rights, Poverty, Immigration, etc. Why didn’t we have a provision addressing police brutality in the First Step Act? Where are federal investigations when cases like Sandra Bland happen? Why don’t we have federal provisions addressing racist civilian vigilantes like George Zimmerman? There is developing research that police officers are clearly and undeniably more disrespectful and unprofessional towards black people, so why don’t we have legislation that addresses this?
At the end of the day, we just can’t demand more from people like Harris and Booker and all other politicians- we also must look within- and demand more from ourselves. So cheers to our relentless pursuit of racial justice, because if we don't - we'll always get played.