AP Photo/Susan Walsh
FIRST STEP’s Rough First Year

Despite the FIRST STEP Act’s rocky rollout, thousands released from federal prisons under the new law

2018’s FIRST STEP Act was the first significant piece of criminal justice reform at the federal level in years and, although many reform advocates voiced opposition—saying the law didn’t go far enough—the legislation received overwhelming bipartisan support in Congress.Zak Cheney-Rice, “The First Step Act Deserves Your Skepticism,” Intelligencer, December 20, 2018, https://perma.cc/LY62-EGRF; and FIRST STEP Act, S.756, 115th Cong. (2018) (actions overview), https://perma.cc/3XFQ-8YFW. For reactions to the law, see for example Jessica Jackson, “3 More Steps to Make 'First Step Act' Work,” The Hill, March 7, 2019, https://perma.cc/3AJJ-MHHF.But the first year of FIRST STEP was marked by a rocky rollout and continued concerns over the law’s controversial use of a risk assessment tool to assess eligibility for programming and early release. And FIRST STEP affected only about 12 percent of the nation’s incarcerated people—those held at the federal level under Bureau of Prisons custody. Still, thousands of incarcerated people were released from federal custody in 2019 under the law.Ayesha Rascoe, “3 Months into New Criminal Justice Law, Success for Some and Snafus for Others,” National Public Radio, April 1, 2019, https://perma.cc/ZUR4-LGJ4. For stories from incarcerated people released under the act, see Nicholas Bogel-Burroughs, “For Inmates Released Under New Criminal Justice Reforms, ‘Every Day Counts’,” New York Times, July 20, 2019, https://www.nytimes.com/2019/07/20/us/first-step-act-criminal-justice.html?module=inline

Some of the first people to benefit from FIRST STEP were those affected by the provision that retroactively applied 2010’s Fair Sentencing Act.Fair Sentencing Act of 2010, Pub. L. 111–220, August 3, 2010, https://perma.cc/DU4K-2TVCThat Obama-era law had reduced the disparity in punishment between crack and powder cocaine crimes at the federal level, but it left unchanged the sentences of people whose offenses were committed before 2010. FIRST STEP retroactively applied this provision, leading to 1,691 sentence reductions as of mid-July.U.S. Department of Justice (DOJ), “Department of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk and Needs Assessment System,” press release (Washington, DC: DOJ, July 19, 2019), https://perma.cc/HNM8-Y4MR.And a provision in the law making it easier for incarcerated people who are elderly or terminally ill to petition for compassionate release also made an immediate difference.18 U.S.C. §§ 3582 and 4205(g).As of October, nearly 100 people had made successful petitions for compassionate release, and an additional 242 had transitioned to home confinement.Antoinette T. Bacon, Associate Deputy Attorney General, “Oversight of the Federal Bureau of Prisons and Implementation of the First Step Act of 2018,” statement before the Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary, U.S. House of Representatives, Washington, DC, October 17, 2019, 3-4, https://perma.cc/9XJ5-F9CH.But there were some stumbles, as confusion over how the law was written led to delays in releasing thousands of people. FIRST STEP had increased the maximum number of credits a person could earn for good behavior.18 U.S.C. § 3624(b), as amended, https://perma.cc/Y3GH-Q8FC. For the eligibility estimation, see Samantha Michaels, “Trump’s One Real Bipartisan Win Is Already Turning into a Mess,” Mother Jones, February 5, 2019, https://perma.cc/55CQ-K5QZ.Because the increase was made retroactive, thousands were expected to have their prison sentences cut by an additional week for each year they had been incarcerated.Michaels, “Win Is Already Turning into a Mess,” 2019.But in January, a judge in the Northern District of Illinois held that otherwise qualified incarcerated people could not be released until the U.S. Department of Justice (DOJ) created and put into use a risk assessment tool required by the act.Shah v. Hartman, No. 18-C-7990 (N.D. Illinois, January 3, 2019), https://perma.cc/C4WT-H7G2.Advocacy groups had been given the impression—and some were told outright by lawmakers—that the release provision would take effect immediately, right after the credits were recalculated.Michaels, “Win Is Already Turning into a Mess,” 2019.The risk assessment tool, they argued, had nothing to do with this part of the law.Ibid.

Despite a push by groups like Families Against Mandatory Minimums for Congress to take action to remedy the issue, the “good time credit” recalculation didn’t go into effect until July—when the risk assessment tool was put in place.Families Against Mandatory Minimums (FAMM), “FAMM Urges Congress to Fix Good Time Mistake Made in the First Step Act,” press release (Washington, DC: FAMM, March 18, 2019), https://perma.cc/V4MK-Z38M; and DOJ, “DOJ Announces Release of 3,100,” 2019.At that point, DOJ announced that more than 3,100 people would be released from the custody of the Board of Prisons—although, of that number, 900 were subject to continued detention by state authorities or immigration officials.DOJ, “DOJ Announces Release of 3,100,” 2019; and Kevin Johnson, “Federal Government Releases More Than 2,200 People from Prison as First Step Act Kicks In,” USA Today, July 19, 2019, https://perma.cc/XVL8-Y33K.

The unveiling of the risk assessment tool came with its own controversy. Such tools have been criticized for perpetuating racial disparities in the criminal justice system.Julia Angwin and Jeff Larson, “Bias in Criminal Risk Scores Is Mathematically Inevitable, Researchers Say,” ProPublica, December 30, 2016, https://perma.cc/UMH8-QTM2.Risk assessment tools are, to a large extent, dependent on data—like number of arrests—that inherently reflects the overpolicing and overincarceration of Black and Latinx Americans.See for example Julia Angwin, Jeff Larson, Surya Mattu, and Lauren Kirchner, “Machine Bias,” ProPublica, May 23, 2016, https://perma.cc/G2KN-LHDS.And as the centerpiece of FIRST STEP, this tool received significant public scrutiny. The purpose of the tool—called PATTERN, for Prisoner Assessment Tool Targeting Estimated Risks and Needs—is to assess everyone serving a federal prison sentence using an algorithm to determine if they present a high, medium, low, or minimum risk of reoffending.DOJ, The First Step Act of 2018: Risk and Needs Assessment System (Washington, DC: DOJ, 2019), https://perma.cc/6A99-54QE.The designations affect who is eligible to participate in certain aspects of FIRST STEP: only those at a low or minimum risk are eligible for early release, for example.18 U.S.C. § 3632, https://perma.cc/4ZFZ-ZWXK.

The DOJ, in its initial report describing the tool, said that people at the high and medium risk levels should be able to lower their designations.DOJ, The First Step Act of 2018, 2019, 5-6. People convicted of the list of offenses described in 18 U.S.C. §3632(d)(4)(D) and (E) are not eligible to earn time credits.But some have questioned whether that’s true, since the assessment focuses on some factors that incarcerated people cannot change, such as gender or age of first incarceration.Emily Tiry and Julie Samuels, “How Can the First Step Act’s Risk Assessment Tool Lead to Early Release from Federal Prison?” Urban Institute, September 5, 2019, https://perma.cc/XKH4-EBLV.Others have expressed concern that the tool doesn’t address the specific needs of the incarcerated person (despite the law mandating a “risk and needs assessment”).Sarah Anderson, “FreedomWorks' Testimony to DOJ on the First Step Act's "PATTERN",” FreedomWorks, September 12, 2019, https://perma.cc/6XX5-JSSU. Also see Letter from The Leadership Conference on Civil and Human Rights, The Leadership Conference Education Fund, The American Civil Liberties Union et al. to David B. Mulhausen, Director of the National Institute of Justice re: comments in response to the July 19, 2019, release of the FIRST STEP Act of 2018: Risk and Needs Assessment System report, September 3, 2019, https://perma.cc/C8TM-KNGQ.Indeed, the DOJ’s own report about the risk and needs assessment tool highlighted the low percentage of people—51 percent—in the Bureau of Prisons system who receive any programming.DOJ, Office of the U.S. Attorney General, The First Step Act of 2018: Risk and Needs Assessment System (Washington, DC: DOJ, 2019), 47 https://perma.cc/D5LT-EMFQ.

And then there are the likely racial disparities in application and implementation. At a congressional hearing in October, one expert testified that under the tool as it’s currently designed, Black men are the least likely to ever gain the benefits of FIRST STEP.Melissa Hamilton, “Written Testimony of Melissa Hamilton to the United States House of Representatives Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security Oversight: Hearing on the Bureau of Prisons and Implementation of the First Step Act,” October 17, 2019, 11-12, https://perma.cc/E4UC-Q4ZQ.In fact, if hypothetical incarcerated men are compared with the only difference being race, the tool predicts that 73 percent of Black men will commit a new crime after release, but only 43 percent of white men will, automatically placing the Black men in a higher risk bracket and limiting their access to the law’s benefits.Ibid.At that same hearing, Kathleen Hawk Sawyer, director of the federal Bureau of Prisons, told lawmakers that the agency is still fine-tuning the tool.Kathleen Hawk Sawyer, director, Federal Bureau of Prisons, “Oversight of the Federal Bureau of Prisons and Implementation of the First Step Act of 2018,” statement before the Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary, U.S. House of Representatives, Washington, DC, October 17, 2019, 8, https://perma.cc/674Z-EN5C.Initial risk assessments of everyone in the federal prison system are due by January 2020.DOJ, The First Step Act of 2018, 2019, 83.