This afternoon, the House of Representatives passed the FIRST STEP Act in a sweeping bipartisan vote. This criminal justice reform bill passed the Senate on Tuesday and is now headed to the White House for President Donald Trump’s signature. The bill is noteworthy for the fact that it managed to survive a treacherous political landscape as Congress attempts to wrap up last minute business before the end of the year — and before Democrats take majority power in the House in January.
The FIRST STEP Act expands job training, educational opportunities, and reentry transition programs for federal prisoners. Decades of data show that such programs have proven benefits by serving as effective incentives to encourage good behavior from prisoners while incarcerated, and reducing recidivism after they are released.
The other major reforms in the bill relate to federal sentencing laws, including reducing some mandatory minimum sentences, allowing judges more discretion under the so-called “safety valve” during sentencing, and to retroactively apply the reductions to crack cocaine sentences under 2010’s Fair Sentencing Act.
Also among the provisions of the bill are humanitarian issues related to the treatment of prisoners, including banning the shackling of pregnant women while they are giving birth, requiring inmates to be housed within 500 miles of family wherever possible, and mandating the provision of feminine hygiene products for female inmates.
The FIRST STEP Act’s reforms are based on successful efforts like those passed in Texas under Gov. Rick Perry (R) starting in 2005. That year, the Texas Legislature was facing a tight budget and a growing prison population. Projected construction and operation costs to expand new prisons was beyond the state’s funds. By increasing funding and support for drug treatment programs, probation monitoring, job training, and other rehabilitative efforts, Texas was able to cancel plans to build new prisons, close several adult and juvenile facilities, save over a billion dollars, all the while significantly reducing recidivism. Importantly, Texas also enjoyed a falling crime rate across the board — including for violent crimes, even though many of the reforms were targeted towards non-violent, low-level, and first-time offenders.
The success in Texas has inspired similar reform efforts in dozens of other states, but progress at the federal level has been slower. The crack-powder cocaine sentencing disparity was addressed, but the original bill was not retroactive, and efforts to address many other areas of sentencing reform stagnated.
This bill that passed today has been working its way through Congress in various forms since the Obama administration, originally as the Prison Reform and Redemption Act, then as the FIRST STEP Act. A different version without the sentencing reforms passed the House earlier this year, and the bill’s fate in the Senate was far from certain, especially when it drew vocal opposition from several Senators, including Sen. Tom Cotton (R-AR) and Sen. John Kennedy (R-LA).
Cotton was perhaps the most vocal opponent of the bill, writing several columns and frequently taking to Twitter to attack the bill. Sen. Mike Lee (R-UT), a staunch supporter of criminal justice reform as well as one of the most conservative members of Congress, pushed back against Cotton’s arguments in a National Review article.
Cotton, along with Kennedy and Sen. Pat Toomey (R-PA), pushed several amendments to the bill that they presented as in the interest of public safety but supporters of the bill denounced as “poison pills.” I wrote about one of those amendments for Reason earlier this week, noting that these Senators were claiming to be acting on conservative principles but were pushing new laws that would constitute federal overreach into an area of law already adequately addressed by the states, with no improvement to public safety.
In the end, the opposition to the bill failed. The Cotton-Kennedy amendments were rejected and the bill went to the floor without being further watered down. The Senate vote was 87-12, and today’s vote in the House was a similarly sweeping bipartisan victory of 358-36. The bill is now headed to the White House where Trump will sign it tomorrow.
Credit where credit is due: Trump, with the encouragement of Jared Kushner and a bipartisan coalition of criminal justice reform advocates, came out publicly in support of the bill and that undoubtedly helped earn additional Republican votes. Among the supporters of the bill: Right on Crime, FreedomWorks, Americans For Tax Reform, Americans for Prosperity, Heritage Action, Families Against Mandatory Minimums, R Street Institute, Cut50, the ACLU, former Obama adviser Van Jones, and Kim Kardashian and Kanye West.
Jason Pye, the Vice President of Legislative Affairs for FreedomWorks, has been a dogged champion for this bill, helping coordinate efforts among various advocacy groups and personally visiting with members of Congress and their staffers. Pye was overjoyed when we spoke on the phone after the bill passed, calling the bill “historic” and “a new chapter on how we approach criminal justice at the federal level.”
Pye noted the more than thirty states that have passed successful reforms, and credited them as inspiration for Congress.
“[The previous] state level reforms focused on reducing recidivism and ensuring that the most severe sentences were reserved for violent and repeat offenders,” said Pye. “The First Step Act predominately focuses on recidivism reduction, but it also has some modest sentencing reforms that ensure that we are handing down sentences that are just. We still have much more to do. We look forward to continuing to look for ways to successfully reintegrate the formerly incarcerated into society and ensure that they become productive, taxpaying citizens.”
Derek Cohen, the director of the Center for Effective Justice and the Right on Crime campaign for the Texas Public Policy Foundation, shared Pye’s enthusiasm for the bill, saying that his organization was “thrilled” to see the bill clear Congress. TPPF is located in Austin, Texas, and has been heavily involved with the reforms in the Lone Star State. Jerry Madden, the former legislator who led the reforms in the Texas House, is an adviser to Right on Crime, and Cohen, along with Marc Levin, Right on Crime’s Vice President of Criminal Justice Policy, are frequently seen testifying before Texas legislative committees to support reform efforts.
“With each successive floor vote, the margin of victory grew,” noted Cohen. “This shows that ‘public safety’ and ‘second chances’ are complimentary–not competing–goals. We can punish justly, efficiently, and humanely, as the experiences of state after state have shown.”
The bill’s passage less than two weeks before the end of the year, and less than a month before Democrats take the reins of power in the House, had its supporters breathing a sigh of relief today. Beyond the partisan political distractions that are expected as the 2020 presidential campaign starts to heat up — anyone else think the Kavanaugh hearings will sadly prove to be a mild prelude to the insanity the next two years will bring? — even though Congressional Democrats overwhelmingly voted for the FIRST STEP Act and have publicly campaigned on supporting criminal justice reform, there was no guarantee that this issue would be a priority for a Pelosi-led House.
Grover Norquist, President of Americans for Tax Reform and another longtime conservative criminal justice reform advocate, is among those who are skeptical this bill could have survived next year’s Congress.
Norquist credited this bill as “a Republican bill” and noted that “it should’ve passed four years ago but Obama and [former Sen. Democratic Leader Harry] Reid and the Democrats refused to let it come forward lest it interfere with Hillary [Clinton’s presidential] campaign.
“This is the last wholly sensible bill that will pass for the next two years,” added Norquist. “Anything reasonable promoted by Trump and supported by Republicans will be rejected by the Democrats.” He even predicted that Democrats would refuse to stand next to Trump when the bill is signed.
“We’re entering a period of gridlock, and this bill made it through just as the door was shutting. It’s the last plane to leave Casablanca, the last rowboat rowing away from the Titanic.”
If Norquist’s pessimism isn’t accurate, criminal justice reform advocates still hope to tackle civil asset forfeiture (where the government can seize money or property even if you are not convicted–or even charged!–with a crime), overcriminalization, and mens rea reform (the legal doctrine regarding the level of intent required for a criminal conviction–as the law becomes increasingly complex and obscure, inadvertent violations are more likely, and good faith violations can occur).
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[Disclosure: I was previously employed by Right on Crime, the criminal justice reform project of the Texas Public Policy Foundation. This article is my opinion and should not be attributed to any other person or entity.]
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