JohnSimon, Associate Member, University ofCincinnati Law Review
According to the Bureau of Justice Statistics, nearly 2.2 million Americans were held in prison at the end of 2016. The United States, which represents approximately five percent of the world’s population, boasts almost twenty-five percent of the world’s incarcerated population.
Responding to these alarming statistics, a bi-partisan coalition of Congressmen have introduced a bill,called the FIRST STEP Act, to both the House of Representatives and the Senate.In May 2018, the House passed the FIRST STEP Act by a vote of 360 to 59; for six months, Senators have delayed a vote while attempting to negotiate more comprehensive reforms that will encompass reforms both at the front and backends of the incarceration process. On November 14, 2018,President Trump officially endorsed the bill and its passage noting that “[he’ll]be waiting with a pen.” Along the way, interest groups, including groups of prosecutors and police officers, have thrown their support behind the bill’s passage.
Senator McConnell has announced his intention to call a vote on the Senator floor prior to the end of the year. With the Senate’s vote occurring in the near future, the FIRST STEP Act poses serious questions regarding its potential impact on the mass incarceration problem plaguing the United States.
Brief History of Mass Incarceration
Mass incarceration began to take hold in the 1970s as politicians used fear and racial rhetoric to enact harsher penalties for criminal activity. For instance, President Nixon declared that the United States was engaged in a “war on drugs” and stressed the need to be “tough on crime,” prompting the enactment of mandatory minimums. Further, under President Reagan, the United States’ prison population nearly doubled from a population of 329,000 to 627,000 while the war on drugs expanded.
During these decades, the federal prison population certainly grew, but most growth occurred within the state prison population. Prison growth during this period can at least be partially attributed to legislation such as the 1994 Crime Bill, which granted states additional funds to enhance police training,prosecutorial activity, and to construct additional prisons. Further, the Bill sought to impose more stringent prison sentences upon offenders. Across all states, incarceration rates rapidly increased; in Texas, for instance, the incarceration rate quadrupled between 1978 and 2003.
Since 2008, incarceration rates have slowly declined, especially at the state level as more than thirty states have adopted sentencing and corrections reforms to prioritize prison space for serious offenders while shifting funding to provide alternatives to incarceration for other offenders. In states such as Louisiana, reforms have been adopted that reduce certain mandatory minimums and redefine entire violations. Other states, including Massachusetts, are poised to implement similar reforms in the near future.
The First Step Act
The original version of the FIRST STEP Act, passed by the House of Representatives, primarily focused on back-end reforms that would provide inmates with programming opportunities to reduce recidivism. Specifically, the federal government would allocate $50 million per year over a five-year period to grant inmates educational opportunities,vocational training, and mental health treatment. Inmates participating in these opportunities could receive good behavior time which would be used to increase time spent in a halfway house or home confinement. The Act seeks to ban the shackling of pregnant women, would place inmates in facilities within 500 miles of home, and would help inmates acquire identification documents upon release. Finally, the Act would promote the early release of elderly inmates.
The New York Times has released the most recent iteration of the FIRST STEP Act, which seemingly incorporates the concerns of those believing that the Act did not provide sufficient measures to correct the criminal justice system. The newly crafted Act pulls from the failed Sentencing Reform and Corrections Act of 2017 to include reductions in mandatory minimums for drug convictions; these reductions would not be retroactive for those currently serving prison time. Further, the Act includes a “safety valve” for first-time drug offenders whereby first-time drug offenders may escape from receiving the mandatory minimum sentence. Further, inmates who complete programs within prison will receive good behavior time which would become applicable to sentence reductions. Finally, all prior provisions of the FIRST STEP Act, including all back-end reforms, are included in the most recent iteration.
Though the fate of the bill remains uncertain, Senator Chuck Grassley, who drafted the Sentencing Reform and Corrections Act, has stated his belief that the bill, combining the FIRST STEP Act and Sentencing Reform and Corrections Act, can be pushed through the Senate.
The revised FIRST STEP Act appropriately addresses several facets contributing to the high incarceration rates plaguing the United States.
First, the Act addresses recidivism.A 2016 study conducted by the United States Sentencing Commission, which tracked more than 25,000 federal offenders over an eight-year period, showed that nearly half of those offenders were rearrested for a new crime or for a violation of the post-release conditions. The Commission found that two factors impacted recidivism rates: (1) the age of the offender; and (2) the offender’s criminal history. Other factors were relevant including educational achievement. The FIRST STEP Act’s focus on providing educational opportunities, vocational training, and mental health evaluations may not entirely correct the high recidivism rates shown by the study, but these reforms will, at a minimum, provide inmates with additional opportunities for self-improvement.
Second, the Act addresses disproportionate sentencing stemming back to the “war on drugs” mentality of the 1970s, 80s, 90s, and early 2000s. Nearly half of the federal prison system is inhabited by those convicted of drug offenses. The FIRST STEP Act’s incorporation of the Sentencing Reform and Corrections Act, which reduces mandatory minimum sentences imposed primarily upon drug offenders, and protects first-time offenders, will create a more fair system. Further, the reduction of mandatory minimums will gradually reduce the federal prison population considering many of the system’s drug offenders are serving lengthy sentences.
With mass incarceration slowly declining at the state level, the federal government possesses the opportunity to craft comprehensive legislation that would ultimately lower the federa lprison population and reduce recidivism. While passage of the FIRST STEP Act is not certain, several key figures in the legislature remain confident that a successful vote will occur prior to the end of the year.
 Drew Kann, 5 Facts Behind America’s High Incarceration Rate, CNN (Jul. 10, 2018), https://www.cnn.com/2018/06/28/us/mass-incarceration-five-key-facts/index.html.
 Mass Incarceration, American Civil Liberties Union, https://www.aclu.org/issues/smart-justice/mass-incarceration (last visited Nov 16, 2018).
 Russell Berman, Democrats Split Over Trump’s Prison Pitch, The Atlantic (May 23, 2018), https://www.theatlantic.com/politics/archive/2018/05/the-democratic-fight-over-prison-reform/560975/.
 Seung Min Kim, Trump Endorses Bipartisan Criminal-Justice Reform Bill, The Washington Post (Nov. 14, 2018), https://www.washingtonpost.com/politics/trump-endorses-bipartisan-criminal-justice-reform-bill/2018/11/14/9be8f926-e84c-11e8-bd89-eecf3b178206_story.html?utm_term=.c69694afa541.
 Jeremy Diamond, Trump to Announce Support for Criminal Justice Overhaul Proposal,CNN (Nov. 13, 2018), https://www.cnn.com/2018/11/13/politics/trump-support-criminal-justice-overhaul/index.html.
 Draft Amended FIRST STEP Act Gives and Takes Away – Update for November 14, 2018, Legal Information Services Associates LLC (Nov. 14, 2018), http://www.lisa-legalinfo.com/tag/first-step-act/.
 James Cullen, The History of Mass Incarceration, Brennan Center for Justice (Jul. 20, 2018), https://www.brennancenter.org/blog/history-mass-incarceration.
 Id.; see also A Brief History of the Drug War,Drug Policy Alliance, http://www.drugpolicy.org/issues/brief-history-drug-war (last visited Nov. 16, 2018).
 Cullen, supra note, 7.
 Adam Gelb & Jacob Denney, National Prison Rate Continues to Decline Amid Sentencing, Re-Entry Reforms, The Pew Charitable Trusts (Jan. 16,2018), https://www.pewtrusts.org/en/research-and-analysis/articles/2018/01/16/national-prison-rate-continues-to-decline-amid-sentencing-re-entry-reforms.
 The State of Sentencing & Decriminalization, Vera, https://www.vera.org/state-of-justice-reform/2017/the-state-of-sentencing-decriminalization (last visited Nov 16, 2018).
 The FIRST STEP Act, H.R.5682, 115th Cong., Summary (2017-18).
 Draft Amended FIRST STEP Act Gives and Takes Away – Update for November 14, supra note 6.
 Kann, supra note 1.
 United States Sentencing Commission, Recidivism Among Federal Offenders: A Comprehensive Overview (2016).
 Offenses, Federal Bureau of Prisons (Oct. 27, 2018), https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp.