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Memo to Senators: Swallow Your Doubts About the First Step Act

Originally published here. | By Josh Hoe

Last week, legislation designed to accelerate reentry for thousands of federal prisoners passed the United States House of Representatives by a whopping 360-59 margin.

Up next for the First Step Act will likely be a much more hostile reception in the Senate.

Here’s why senators should swallow their doubts and pass it.

The First Step Act is not a magical elixir. It won’t solve every problem facing our criminal justice system. But it will immediately make a difference in the lives of as many as 4,000 inmates the day after it is signed into law.

I support the First Step Act because it allows inmates staying out of trouble and participating in programming to serve out the remainder of their sentences somewhere (anywhere) other than prison. Not only would people go home earlier; they would go home earlier after participating in programming that teaches them coping and job skills, which in turn will help them reenter society as citizens more capable of productive reentry.

I support the First Step Act for one even more powerful reason.

Being kept in boxes outside of a prison is better than being kept in boxes inside of a prison.

When I was in prison, I saw people violently attacked for reaching across the table for salt, for starting a conversation without following the correct protocol, and for being gay.

I saw new inmates violently extorted, assaulted, and “recruited” (the kindest way to put it) into gangs. I saw the weak punished and strength defined solely by the willingness to engage in brutality.

Being in prison is a process of constantly having to watch your back (and your front). When trouble comes, it comes quickly and seems to inevitably sweep bystanders into the vortex.

So, in addition to allowing inmates to more quickly reconnect with children and family members, find gainful employment, and build a productive life at less cost to US taxpayers, the First Step Act will reduce the number of human beings subject to the vagaries of prison violence.

I know from experience and from the evidence that America’s prisons and jails, as currently constructed and even after accounting for the time that inmates are removed from society, do not increase public safety.

Second, since over 95 percent of all people in prison will come home again, early release to community corrections is much more successful at reducing recidivism than prison is and, as Jason Pye of FreedomWorks, put it:

The (First Step Act) is the lowest hanging fruit of criminal justice reform. Efforts in the states have passed with little to no opposition because there is universal agreement that reducing recidivism, or offenders’ likelihood of reoffending, is the key to promoting public safety.

We are a better America when we embrace our empathetic tendencies.

We are a better America when we see prison sentences as a last resort, to be used only when we know for a fact it is the best way to generate safe outcomes.

Some people have argued that one of the elements of the bill, the rule that moves people closer to home, can threaten public safety. But copious evidence proves that being incarcerated or housed closer to home results in safer outcomes.

Some also worry that the Act will further reinforce Attorney General Jeff Sessions’ harsh approach to crime and punishment. But it’s unclear how legislation that uses unconditional language about mandated reform somehow would make the lives of prisoners worse or his power greater.

Sessions will not remain Attorney General forever, and with criminal justice reform gathering supporters on both sides of the aisle, the likelihood can only grow that in the future we will have a true reformer in the position.

I suspect the real fear is that Jeff Sessions will use some of the provisions of the Act in ways that are racially disparate, while at the same time sentencing continues to over-punish people of color. This is a weighty concern, and we should fight every day to address racial disparities in sentencing and remain incredibly vigilant.

But this is not a new concern, nor is it something the First Step can make worse.

Some also object to the use of risk assessment tools to inform sentencing decisions, arguing they can be used in a biased way.

Yes. Risk assessment tools are biased (they are constructed by human beings).

But as the Center for Court Innovation has shown, they can be tested and are usually made subject to review and to accountability measures.

Prisoners of the Federal Bureau of Prisons are judged entirely on records made up only by correctional officers and unit counselors which are inherently more subjective, less testable over time, and based on less outcomes-based data, than risk-assessment tools.

What About Sentencing Reform?

Much of the opposition to the First Step Act has focused on the notion that prison reform without sentencing reform would be hollow.

While I fully support sentencing reform, I believe reducing numbers on the back-end of incarceration still results in a total reduction in Mass Incarceration (simple math).

In addition, the currently available vehicle for sentencing reform, Senator Chuck Grassley’s Sentencing Reform And Corrections Act (SRCA), is a less-than-perfect vehicle decreasing some mandatory minimums while increasing or creating others.

We can and must still work together to make sentencing reform a reality as soon as possible.

I hate legislative carve-outs (exceptions built into legislation excluding particular “kinds” of prisoners) but when lives are on the line, we can’t make perfect the enemy of the good.

If the people who are left behind by criminal justice reform will be in no better or worse shape than they were before a particular piece of legislation is passed, we should still help as many people get home as we possibly can.

I celebrated when President Obama commuted roughly 1,324 sentences(despite the many left behind), and I will celebrate the roughly 4,000 people who will be able to return to community supervision as a result of this bill passing.

Remember, this bill is called the First Step Act, not the “Only Step Act.”

It is important that we fight for the return of every single person as soon as they are ready to come home. We need to demand that a second and, if necessary, a third step follows this first step.

But what we absolutely should not do is hold thousands of prisoners who could come home tomorrow hostage while we argue about the details.

Joshua B. Hoe is the host and creator of the Decarceration Nation podcast, an author, formerly incarcerated, and a criminal justice reform advocate in Michigan. The most recent episode of his podcast is a deep dive into the First Step Act. Readers’ comments are welcome.

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