First Step Act - A Step Forward or Another Step Backward?

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Photo by Nathan Dumlao on Unsplash

As much as I would like to view the “First Step Act” as some grand slam for criminal justice reform, if for no other reason than to honor the work put into its passage by Van Jones, I simply can not find justification for doing so, especially after a careful reading of H. R. 5682.

This bill was introduced in the House by Rep. Doug Collins (R-GA-9), not one of your more liberal congresspersons. His sponsorship begs the question, why would a conservative Georgia Republican sponsor legislation at its core that would cut short the time that federal prisoners would otherwise serve. Collins was able to get it out of the Judiciary Committee and onto the floor for a successful vote. This week the bill passed the Senate with an overwhelming 87–12 vote.

Let me hasten to say that I admire Van Jones. His grandfather the late Christian Methodist Episcopal Church Bishop, Chester A. Kirkendall, in my mind, was one of the great intellects of the 20th century. I think Van represents the spirit of Bishop Kirkendall well.

In fact, I am a Christian Methodist today instead of a Colored Methodist because Bishop Kirkendall moved the 1956 Quadrangle Conference of Colored Methodists to change the name to accommodate one of his seminary professors at Chicago University.

For much of this year, Jones labored in a nonpartisan way to get the First Step Act through Congress. He worked with Kim Kardashian, Jared Kushner, and grassroots criminal justice reformers. His hard work paid off. This is a feat within itself, considering Republicans drove Jones out of the Obama White House before he could get his seat warmed well.

At the heart of the First Step Act, is an attempt at recidivism reduction. Recidivism in this context occurs when a convicted criminal has been released from serving a prison sentence and is subsequently convicted of another crime.

A 2011 Pew Report placed the national recidivism rate at 43 percent, nearly half of the people released from prison. This revolving door has put a strain on the prison industrial complex and places men and women in the system during their senior years when medical cost tends to be greater.

As more people are convicted of crimes related to their abuse of opioids, the federal prison system is faced with a different inmate, often young whites from good suburban families, who no one in their sphere would have predicted would end up behind federal bars. There has been a societal push to treat white drug offenders as addicts in need of treatment rather than incarceration. The First Step Act addresses this criminal phenomenal as if it were a social problem. Not only does the Act provide treatment for opioid junkies, but it also serves as an early get out of jail card for them.

Section 407 (a)of the Act requires: “Not later than 90 days after the date of the enactment of this Act, the Director of the Bureau of Prisons shall submit to the Committees on the Judiciary and the Committees on Appropriations of the Senate and of the House of Representatives a report assessing the availability of and the capacity of the Bureau of Prisons to treat heroin and opioid abuse through evidence-based programs, including medication-assisted treatment where appropriate.”

Once a prisoner has been placed in a supervised release program, the Act provides medication for heroin and opioid abusers.

Subsection (b) of Section 407 states: “Not later than 120 days after the date of the enactment of this Act, the Director of the Administrative Office of the United States Courts shall submit to the Committees on the Judiciary and the Committees on Appropriations of the Senate and of the House of Representatives a report assessing the availability of and capacity for the provision of medication-assisted treatment for opioid and heroin abuse by treatment-service providers serving prisoners who are serving a term of supervised release, and including a description of plans to expand access to medication-assisted treatment for heroin and opioid abuse whenever appropriate among prisoners under supervised release.”

The First Step Act essentially makes opioid abusers a protected class in the federal prison system because, while all persons convicted for other non-violent crimes are eligible for recidivism reduction treatment, they are not given the same preferential treatment and must jump through tremendous hoops to become eligible and to maintain their eligibility to earn credits towards early release.

In a May 2017 report, Jeremiah Agenyi conducted an overview of “Recidivism In The United States.”

“In many prisons, crime continues inside the prison walls. Gangs exist and flourish on the inside, often with many key tactical decisions being made by leaders who are in jail,” Agenyi wrote.

How does a convicted Black drug dealer lower his risk of recidivism under the First Step Act?

The Act leaves it up to correctional officials to determine which inmates are eligible for the program if the official determines “the prisoner is unlikely to recidivate.” The Act does not provide any objective criterion for this assessment, it leaves it up to the subjectivity of correction officials.

The Act sets into motion some sort of slavery or indentured servitude as prisoners in the recidivism reduction program must accept employment with private employers who have agreed to give them a job during a supervised release period. Nothing in the Act spells out how much the employer must pay the prisoner. It probably does not take a rocket scientist to figure out payment is less than the minimum wage for non-incarcerated workers. Section 405 set forth Expanding Inmate Employment Through Federal Prison Industries, which is yet another way to exploit inmate labor at low wages and credits towards an early release.

Moreover, if the goal of this act is to reduce the recidivism rate, it fails to appropriate any money for job creations. Without jobs returning citizens have no other choice other than a return to the criminal activity that landed them in prison. While the Act provides funding for drug addiction, it does not provide money for jobs.

There are two items in the First Step Act that have absolutely nothing to do with criminal justice reform.

First, Title II of the Act: Bureau of Prisons Secure Firearm Storage or the Lieutenant Osvaldo Albarati Correctional Officer Self-Protection Act of 2018”.

Totally unrelated to criminal justice reform. This section could have been enacted without being included in what is touted as major legislation on criminal justice reform.

Secondly, Title III, Restraints On Pregnant Women Prohibited, while it is commendable that the federal government will stop this practice, it should have been done as a matter of human decency. Congress, nor the President, if he signs this bill should not get any kudos for criminal justice reform because of this proviso. It is simply stultifying that one would pass off a basic human right as criminal justice reform. In fact, the act of codifying a prohibition of restraints on pregnant women shows how truly sick and in need of drastic overhauling the American criminal justice system is.

Perhaps the one good thing to come out of this first step is that it prevents anyone convicted of a crime related to treason from participating in the program. If President Trump is ultimately convicted of a crime related to treason, his First Step Act will ensure that he serves every minute of any sentence imposed.

If this is the first step it is hard to decipher whether it is the first step forward or another step backward. The devil, you best believe, is stirring around in the details.

Harold Michael Harvey is an American novelist and essayist. He is a Contributor at The Hill, SCLC National Magazine, Southern Changes Magazine, Medium, and Black College Nines. He can be contacted at hmharvey@haroldmichaelharvey.com

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Harvey is Living Now Book Awards 2020 Bronze Medalist for his memoir Freaknik Lawyer: A Memoir on the Craft of Resistance. Available at haroldmichaelharvey.com

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