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.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.
Some of the first people to benefit from FIRST STEP were those affected by the provision that retroactively applied 2010’s Fair Sentencing Act.That 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.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.As of October, nearly 100 people had made successful petitions for compassionate release, and an additional 242 had transitioned to home confinement.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.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.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.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.The risk assessment tool, they argued, had nothing to do with this part of the law.
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.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.
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.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.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.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.
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.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.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”).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.
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.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.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.Initial risk assessments of everyone in the federal prison system are due by January 2020.