Is First Step a step forward?

February 25, 2019

Joan Parkin analyzes the Republican-backed legislation to reform the justice system — and what it will and won’t mean for the millions trapped in the U.S. prison system.

ON DECEMBER 21, Donald Trump signed the First Step Act into law, describing it as “groundbreaking criminal justice reform.” But First Step is more a refinement of existing legislation than a reform of America’s deeply flawed prison system — and it will do little to alleviate the suffering of the tens of thousands trapped in it.

In light of its limitations, we should consider how the law reflects changes in public opinion coming on the heels of the Black Lives Matter movement and exposes the hypocrisy of the racist criminal justice system. These movements have helped tear the façade off the law-and-order campaign targeting African Americans and Latinx people reaching back decades.

Today, more than 2.3 million people are in prison in the U.S. — making America the world’s leading jailer. The federal prison system is part of a larger carceral state that includes state prisons and county jails, probation, parole, the courts and police surveillance.

Outside a Los Angeles prison

For those of us interested in a world where human beings aren’t housed in cages, the First Step Act should be seen as a wake-up call to push for wider reforms and prison abolition.

AT THE height of the Black Lives Matter movement, there were protests everywhere. We saw urban rebellions in Baltimore, Maryland and Ferguson, Missouri. The police murder of Stephon Clark, a Sacramento teen using his cell phone in his grandmother’s backyard in 2018, drew thousands into the streets.

In 2017, prisoners carried out the largest sustained strike in U.S. history. In 2013, the largest prison hunger strike in California history began in Pelican Bay’s notorious Security Housing Unit (SHU) and spread to prisons throughout California.

As Socialist Worker’s Elizabeth Schulte wrote: “[P]rotests [such as] the railroading of Marissa Alexander and horrors of Rikers Island have led more people to believe that the system is racist, unfair and even broken.”

Within this context, we see how a racist president and his corrupt son-in-law could suddenly be “moved” to pass prison improvements. Jared Kushner told CNN that prison reform is “very close to his heart.

Trump has seemingly changed his tune. In his acceptance speech at the Republican National Convention, he promised to “liberate our citizens” from “the crime and violence that today afflicts our nation,” and he criticized Chicago especially for not being tough enough on crime.

In this year’s State of the Union speech, however, Trump spoke of the need for sentencing reform, saying that he was “deeply moved” by one case: “In 1997, Alice was sentenced to life in prison as a first-time nonviolent drug offender...Alice’s story underscores the disparities and unfairness that can exist in criminal sentencing — and the need to remedy this injustice.”

In spite of its many weaknesses, including leaving out medium and high-risk offenders, we shouldn’t ignore the fact that the First Step Act is the result of pressure from activist organizations; that it does target significant prison abuses; that it could be expanded to include more prisoners and/or provide a model for state prisons; and that it will improve the lives of many prisoners.

The act is divided into six parts, including “Recidivism Reduction,” “Bureau of Prisons Secure Firearms Storage,” “Restraints of Pregnant Prisoners Prohibited,” “Sentencing Reform,” “Reauthorization of Second Chance Act of 2007,” “Miscellaneous Criminal Justice.”

Among other things, the act includes prohibitions on anything but temporary juvenile solitary confinement; important data collection on solitary confinement, pregnant women and medical care; treatment for opioid and heroine addiction; notification to families and partners of the terminally ill and/or those with a mental incapacity that would allow them to apply for sentence reduction; compassionate release; home confinement for low risk prisoners; and transfers closer to families.

Although the act does not offer sentencing reform, it does reduce life without parole sentences to 25 years to life.

NEVERTHELESS, MANY argue that the legislation falls far short of what’s needed to reduce federal sentencing laws, lower recidivism or really put a dent in mass incarceration.

Although the bill had wide bipartisan support in both the House and Senate, its detractors, including Sens. Kamala Harris, Dick Durbin and Corey Booker, and Reps. Sheila Jackson and John Lewis, emphasized in a letter that the First Step Act would be a “step backward.”

That letter came in response to pressure from labor and social justice organizations: A May 18 statement to the House Judiciary Committee, signed by the Leadership Council on Civil and Human Rights, AFL-CIO, ACLU, National Bar Association, Bureau of Prisons and NAACP, noted that “any effort to pass prison reform (or ‘back-end’ reform) legislation without including sentencing reform (or ‘front-end’ reform) will not meaningfully improve the federal system.”

These organizations criticize the law for focusing on “good time” credit and special programs for nonviolent offenders when all recidivism studies show that prison reforms aimed at violent offenders serving longer sentences have a greater impact on lowering the rates at which released prisoners return to prison.

According to a prisoner at Pelican Bay State Prison:

Statistics show that paroled inmates who have served...25 years or longer have met their benchmarks and made it home, never to return. The recidivism rate is less than 3 percent. The difference between these individuals and repeat offenders is their growth and maturity...The First Step Act does nothing for them.

Only minimum- and low-risk category prisoners can “cash in” the time-credit incentives they earn, and these prisoners are able to earn more time credits. This approach isn’t based on evidence.

In fact, the bill comes with so many exemptions that it’s a wonder anyone will benefit from it. Convictions for everything from destruction of an aircraft to damaging a pipeline facility could prevent a prisoner from being considered. There is also a litany of exceptions that would prevent immigrants from benefiting.

TRUMP’S SUGGESTION that “this legislation reformed sentencing laws that have wrongly and disproportionately harmed the African American community” is a lie.

The exclusions in the law will disproportionately impact racial minorities, since the majority of those held in federal prison for immigration and drug offenses are people of color — and because of the system of segregation and racism within the prisons.

Black men have a one-in-three chance of being incarcerated, and Latinx males have a one-in-six chance, compared to white males at one in 17. Black women have a startling one-in-18 chance of incarceration, compared to one in 111 for white women. The targeting of Black youth by the police has been met with a drastic increase in incarceration rates.

The human toll on Black and Latinx lives, from the incarceration of 1.2 million people of color, the decimation of Black and Brown communities, and the murderous assaults by police of Black and Latinx men and women is incalculable.

In this context, African Americans and Latinx people will draw the short straw when it comes to “risk assessment” — particularly, when it is the job of America’s top cop to oversee it. The act mandates that: “The Attorney General shall conduct a review of the existing prisoner risk and needs assessment systems; determine the recidivism risk of each prisoner...and classify each prisoner as having minimum, low, medium, or high risk for recidivism; assess and determine, to the extent practicable, the risk of violent or serious misconduct of each prisoner.”

Although Trump’s new Attorney General Matt Whitaker criticized Trump for not fully condemning neo-Nazi James Alex Fields Jr., who murdered Heather Heyer when he rammed his car into a group of anti-racist counterprotesters in Charlottesville, Virginia, it’s unlikely that the man who said his role at the Justice Department was “to jump on a grenade” for the president will push for genuine reforms.

One positive effect of First Step is the prohibition on any restraints during the period of pregnancy, labor and postpartum recovery.

But as Rachel D. Cohen of NPR’s Science Desk explained, that only pertains to pregnant people in federal prisons, and not to people incarcerated in state prisons and county jails, where the majority of those people are incarcerated. Cohen noted that it’s an important “step to take,” but is only “the tip of the iceberg when it comes to the care of pregnant and postpartum women in custody.”

There are also a number of exceptions that will keep prisoners shackled while in labor. The prohibition will not apply if: “an appropriate corrections official or a United States marshal... determines that the prisoner is a credible flight risk or poses a serious threat of harm to herself or others, or a health care professional responsible for the health and safety of the prisoner determines that the use of restraints is appropriate for the medical safety of the prisoner.”

THE LITANY of exceptions, in combination with First Step’s lack of any significant sentencing reform, demonstrates that it is more of a “tip toe” than a “first step.” But it’s still important for social justice activists to not entirely dismiss it.

No matter how ineffective, First Step is a sign of changing times. It wasn’t too long ago that any politician who favored prison reform would be labeled as “soft on crime.” First Step reflects a lessening of the “tough on crime” rhetoric used by politicians to divert attention away from the economic realities of the working class.

The gains for prison reform won in the late 1960s and early 1970s were rolled back in the following decades, especially during the 1990s, when then-President Bill Clinton introduced his notorious crime bills that brought in stricter sentencing, an increase in death-punishable crimes, and the elimination of Pell grants as part of a much broader attack on workers and an attempt to destroy the social safety net by scapegoating African Americans.

Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, defines mass incarceration as a system of racial apartheid similar in scale and impact as the old Jim Crow.

She writes: “Jim Crow and mass incarceration have similar political origins...both caste systems were born, in part, due to a desire among white elites to exploit the resentments, vulnerabilities and racial biases of poor and working-class whites for political or economic gain. The birth of mass incarceration can be traced to a similar political dynamic.”

In her conclusion to #From Black Lives Matter to Black Liberation, Keeanga-Yahmatta Taylor writes:

Racism in the United States has never been about abusing Black and Brown people just for the sake of doing so. It has always been a means by which the most powerful white men in the country have justified their rule, made their money, and kept the rest of us at bay. To that end, racism, capitalism and class rule have always been tangled together in such a way that it is impossible to imagine one without the other.

Danny Katch came to a similar conclusion in his 2012 article “Confronting the Incarceration Nation”:

[I]t’s also important to recognize that just as slavery and segregation were systems that held down Blacks and poor whites alike — by “divid[ing] both to conquer each,” as the abolitionist Frederick Douglass famously put it — so mass incarceration is a new racist institution that has enabled the U.S. state to massively expand its powers over all working people.

For decades, politicians successfully convinced the middle class that its problem wasn’t rich people getting richer while their pockets got emptier, but the “Black super-predator,” among other scapegoats.

But the 2008 housing crisis followed by the Great Recession blew holes in this scapegoating mechanism. If locking up Black and Brown people was a solution, then why did so many end up upside down on their mortgages, without health care, and living paycheck to paycheck? The reality that mass incarceration didn’t make people’s lives better began to sink in.

IT’S DOUBTFUL that dissenting senators will work toward reform of First Step. Presidential hopeful Kamala Harris, for example, voted in favor of the First Step Act in September 2018, in spite of her criticisms.

As California’s attorney general, she cast herself as a reformer, but defended California’s death penalty and declined to take public positions on ballot measures to shorten criminal sentences or to legalize recreational marijuana — efforts that reformers said would help disadvantaged communities.”

Harris isn’t unique. Trump’s own flip-flopping shows that even a racist law-and-order demagogue will shift if he or she thinks it will garner more votes.

The First Step Act is a result of pressure from below by organizations such as Black Lives Matter, which has exposed the hypocrisy of America’s racist criminal injustice system. But in the absence of a much wider movement, prison reform will remain stalled in limited measures that leave thousands upon thousands ensnared.

Prisons have always been a microcosm of the world beyond the prison. As the Russian Revolutionary Lenin wrote in State and Revolution, the state is not neutral. It exists because of “the irreconcilable nature of class differences.” Mass incarceration reflects societal inequities, and with pressure, more prisoners could again become radical and unite with anti-racists struggles.

Abolitionist Frederick Douglass once said, “Power concedes nothing without a demand.” It’s up to us to fight for change beyond the tinkering with laws like the First Step Act, and to create a world where the warehousing of poor and working-class people in cages is thrown into the dustbin of history.

Further Reading

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