Thousands of people currently in federal prison will be able to finish out their sentences at home under a significant, controversial prison reform bill passed overnight by the U.S. Senate.
With both House leaders and President Donald Trump signalling they’re eager to move the measure into law, the Senate’s final debate and votes this week were the last meaningful obstacle to the ref”orms.
Dubbed the First Step Act (FSA) by activists hoping to communicate that they know it doesn’t fix all of the U.S. prison system’s myriad ills, the package is quite narrowly tailored. Dozens of categories of criminal conviction are excluded from the new systems created by the bill. But for tens of thousands of current prisoners, the bill would erect a clear, simple path to exit prison early and be transferred to electronic monitoring and halfway-house systems in their homes and communities for the latter years of their sentences. The reform would also extend retroactive resentencing to approximately 3,000 people who were left out of past efforts to shrink the racist gap in mandatory minimum sentencing for crack and powder cocaine.
Those are small numbers, considering that nearly seven million Americans are either in jail, in prison, or under court-mandated supervision outside a carceral facility. But any prison reform legislation operating on the federal level is going to pose such math problems for the most ambitious advocates, since the feds only have custody of about 180,000 people out of that multi-million-person carceral population.
The FSA’s small scope and technocratic design has prompted some reform advocates to reject the bill, raising important questions of strategy and policy for a movement that’s become one of the only bipartisan games in town under the Trump administration.
But even as those internal conflicts simmer, the Senate’s dramatic final day of legislative action on the bill Tuesday showed that the movement against mass incarceration already has its traditional antagonists on the run.
A small core of right-wing Senators, led by Tom Cotton (R-AR), had sought to sabotage the FSA with a string of amendments designed to undermine or outright destroy its central mechanics. The trio of Cotton amendments were defeated by two-to-one margins on Tuesday evening.
Cotton’s main attack on the bill was gussied up to look like a thoughtful, compassionate attempt to include the victims of crime in any changes to how the people who hurt them are treated. But in reality, Cotton’s victim’s-rights amendment — which victims’ advocacy groups ended up opposing — was designed to gut the FSA’s core system of new incentives and opportunities to un-cage prisoners sooner. The bill draws on state experiments in Texas, Rhode Island, and elsewhere to create a nearly automated system: If a prisoner successfully completes anti-recidivism program X, she gets moved into pre-release custody Y days sooner.
Cotton’s victim’s rights amendment would have given Bureau of Prisons wardens a veto power over this new system — less a tweak to the law than a booby trap that would destroy it.
“The law says, objectively, if you pass these courses and you follow these steps, you’ll be able to come home a little earlier. You might have an ankle bracelet on, you might be in a halfway house, but you’ll be able to hug your daughter before her prom, to go to your mom’s funeral,” said Van Jones, the longtime progressive advocate who’s also cultivated an unusually deep Republican rolodex over the past few decades in media and politics. Cotton’s supposed victim’s-rights amendment would shatter that core mechanism of the law’s changes and push people away from taking the right steps while inside, Jones told ThinkProgress.
“So you’re telling me, if I do all this work, tell these gang members to kiss my ass, even after all that the warden can decide it’s not good enough? Then fuck you,” Jones’ imagined inmate would say, “maybe I’m gonna get with these gang members after all.”
Cotton’s other major amendment would have stapled on nine new categories of criminal offense for which a person could never be eligible for early supervised release under the FSA’s system. There are already close to 50 federal offenses that make a person permanently ineligible for the FSA — a list that has generated substantial criticism from veterans of the prison and justice reform movements even before Cotton’s additions.
It would also largely automate the decision-making about those inmates who do become eligible, with decisions about release conditions made according to a mathematical risk assessment tool instead of by human panels of prison employees. Such formulaic justice is probably not the perfectly neutral arbiter that some proponents tend to suggest, as reform advocates in California told ThinkProgress earlier this year about a similar policy change there. But it would give policymakers a surer shot at eradicating the individual racial and class biases that currently infiltrate parole and early release determinations.
After the bill’s crafting coalition made further concessions this fall, even the national Fraternal Order of Police got on board with the FSA. With votes on Cotton’s amendments looming, the arch-right Freedomworks issued a warning that it would fight any senator who sided with Cotton against the bill — a surprising bit of bedfellow-swapping given the long-term political history of criminal justice policy, perhaps, but also a predictable reflection of the Koch brothers’ recent injections of cash and resources in support of reforming the prison and criminal justice systems.
As conservative groups, law enforcement hard-liners, and President Trump all lined up alongside the narrow, modest progress that the FSA would make, the bill’s limitations and details split the traditional support base for such measures. Progressive critics of the bill have criticized the bill for being unduly narrow — even in the limiting context of federal prisoners, they say, much more can and should be done to expand restorative justice opportunities to broader categories of offenders.
The bill’s exclusion for anyone convicted of dealing drugs who had their charges enhanced for being in possession of a gun when they were busted has drawn particular ire. The bill will boost white collar crooks and people who can afford to pay for an ankle bracelet once they become eligible for supervised release, Just Leadership USA’s Deanna Hoskins said, while reinforcing misleading cultural stigmas about different types of criminal behavior.
“This bill excludes the people it’s supposed to help. It’s been designed for individuals who’ve never had any interaction with police, who were convicted for their first crime, and who have the means to pay for this. That is not what the casualties of the war on drugs look like,” Hoskins told ThinkProgress. Her organization is one of several prominent justice system reform groups that remains opposed to the legislation even after repeated revisions.
The legislation doesn’t tackle mass incarceration, Hoskins said, but instead replaces it with “e-carceration” in the form of dehumanizing home monitoring — and even that will primarily be open to the people least in need of it, she fears. “We’ve created a bill for very wealthy people,” Hoskins said, “and excluded thousands of black and brown people, who we will cement into cages.”
These sorts of fights are in many ways the symptom of a healthy movement, and a successful one. For decades, the question of how incarcerated people could be better treated and better helped was literally academic. Now, it’s political and legislative, something people with actual power are arguing passionately about on lawmaking floors.
The progressive disputes tend to frustrate Jones, who’s ended up the most visible non-Kardashian face of the legislation over these last months. He understands where they’re coming from, and that they’re driven by good-faith reservations, but the consequences of saying no to a Kushner- and Trump-backed shift in law for the better seem so dire as to make the objections foolish.
“We have so conditioned people to only see cynicism in D.C. that you have a major breakthrough, a once in two generations breakthrough happening, and nobody’s even registering it. This breaks a pattern that has existed since before you were born,” Jones said.
“A wall that’s held in our imaginations and our aspirations for now two generations, since 1988, has just collapsed,” he said. “Now, what happens next I don’t know. But can we just take yes for an answer for the universe?”
Cotton’s other major amendment would have stapled on nine new categories of criminal offense for which a person could never be eligible for early supervised release under the FSA’s system, exacerbating the structural problems that prompted Hoskins and many of her peers to decide they could not support a bill that is at least broadly aligned with their aims.
That Cotton measure failed on Tuesday night too. The rejections suggest that the older, grimmer discourse on crime may finally be in retreat. The world where the infallibility of judges and cops was taken for granted and the people they put in cages were presumed irredeemable may be ending, not just in the mass cultural consciousness but in the minds of extremely conservative people who hold elected office.
Cotton can’t even get longtime allies like Sen. John Cornyn (R-TX), the boot-scuffing cowboy-hat-tipping embodiment of the tough-on-crime Republican of old, to join him as a sparkplug of opposition to the bill.
“People don’t run for office saying I’m gonna be soft on crime in Texas and get elected. But what we can do is be smarter on crime,” Cornyn said Tuesday on the floor, borrowing rhetoric used for years by groups like the American Civil Liberties Union. Cornyn went on to explain how Texas and other states have pushed both crime and incarceration rates down steeply using the same mix of practices at the heart of the FSA.
The split within the GOP caucus isn’t the same as the disputes within the progressive reform movement. But they do inform one another, with people like Jones and his allies preferring to take a few Cornyns now and worry about fixing the rest later.
“The drug cartel’s best friend is Tom Cotton, because he is insisting that our prisons remain a university for graduates into their enterprise. You could not design a better approach to keep Americans less safe, to help the cartels more, than what he’s doing,” Jones said.
“He should send the drug cartels a bill for all the work he’s doing for them.”
This piece has been updated to note that Tom Cotton represents the state of Arkansas.