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The federal First Step Act and why reform is so hard

August 03, 2020 by G.W. Schulz

One of the most surprisingly positive and bipartisan moments of the Donald Trump Presidency came in 2018 when he signed the federal First Step Act. Passage of the Act was praised by activists, advocates, and lawmakers across the political spectrum in Washington.

The First Step Act reformed and reduced sentencing laws for certain offenses, eliminated mandatory sentencing for so-called “three-strikes” drug offenders down from life to 25 years, and gave federal judges greater discretion to decide sentences on a case-by-case basis.

Conservatives saw it as an opportunity to begin reversing the sky-high costs to taxpayers of long-term incarceration. These lengthy sentences resulted from years of tough-on-crime laws dating back to the 1980s when an epidemic of drug addiction and violent crime raged in the United States. Liberals saw an opportunity to reverse decades of overtly unjust sentencing laws – particularly for nonviolent drug offenses – that has ravaged families and communities alike.

The achievements of the First Step Act are nothing to sniff at. Some 3,000 prisoners had been released under the act by the summer of 2019, and 1,700 prison sentences had been reduced.

But while the First Step act has led to significant progress, a new study from legal scholars at the University of St. Thomas in Minnesota concludes that unwinding the effects of the Drug War and tough-on-crime policies will take far more work.

“The harsh treatment for crack-cocaine offenses, which ramped up quickly in the mid-1980s and has been very slowly undone for 30-some years, is the model for this tragic pattern,” the authors write. “ … There needs to be a higher and more consistent profile for criminal justice reform, so that the rewards of supporting reform at least equal the political benefits of being ‘tough on crime.’”

The report points out that between 2007 and 2017, the number of people locked up dropped by only 10 percent in the United States, most of which is attributable to the cautious reform efforts of states like Oklahoma, rather than the federal government.

Draconian drug laws passed during the 1980s were so deeply disruptive to American public life, that the fallout continues today. Beginning in 1984, Congress stiffened mandatory sentencing guidelines, amended bail laws for drug offenses to be more restrictive, did the same for parole opportunities, and reinstated the federal death penalty. In each subsequent year, harsh sentencing measures continued to be dramatically expanded.

Decades later, the administration of Barack Obama began taking steps to unwind some of these laws. The report points out, however, that these hesitant reforms still left in place laws that treated crack and cocaine separately and were not made retroactive to those already behind bars.

Not until the First Step Act were the crack sentencing disparities finally made retroactive, and while the disparities have been reduced, sentencing treatment of crack and powder cocaine are still unequal.

The author of the report, Mark William Osler, also points to the fact that the federal government continues to classify marijuana as among the most dangerous drugs in existence, despite the fact that 30 states have now passed some form of medical marijuana, decriminalization, or outright legalization.

“The Controlled Substances Act and its nonsensical categorization of marijuana remained in place eight presidents after it was enacted,” Osler writes. Partly to blame are sensitive political considerations that make reforms possible only through small increments. “A problem with incrementalism, of course, is that inevitably some injustices remain on the table for years or decades even as things get nominally better.”

Federal judges have also been inconsistent so far in how they applied the First Step Act. A district court in New Hampshire granted only a handful of sentence reductions, while districts in Rhode Island and Connecticut have granted four and five times more respectively. Critics also add that relief under the law has still not found its way to many of the federal offenders worst affected by harsh sentences at the height of the war on drugs hysteria.

Reformers have for years pushed for broader changes in Washington without success like allowing expungements at the federal level. The so-called REDEEM Act would permit the automatic sealing of certain juvenile records and adult non-violent offenses. However, several attempts to pass the bill have failed.

Many states have taken up the slack. Oklahoma has instituted a series of reforms in recent years aimed at reducing Oklahoma’s extraordinarily high number of incarcerated persons.

For now, we can only hope that First Step is what it promises to be: a first step in a series of reforms that address the immense inequities that remain in our justice system.

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