There is a lot of conversation happening since Trump’s recent endorsement of The FIRST STEP Act (H.R. 5682), a flawed and extremely harmful bill that’s being framed as a step forward for criminal justice reform, when in reality it’s a misguided attack on the movement to end mass incarceration.
Our concerns with The FIRST STEP Act are based upon three fundamental premises:
1. The belief in the humanity of every person impacted by the justice system
2. The belief that the bill does not go far enough in addressing the systemic issues that are the driving factors of mass incarceration, and
3. The belief that we cannot trust Trump with our lives and that he will use The FIRST STEP Act as another tool of his corrupt and vindictive administration.
While we appreciate those that fought to make key changes to the bill, namely adding some sentencing reform, limiting DOJ and warden discretion, and demanding oversight for the development and implementation of failed, algorithmic based risk assessment instruments, we know that big overhauls of the federal justice system happen every 20 to 30 years and the FIRST STEP Act simply does not go far enough.
While there are many reasons to oppose this harmful bill from increased privatization to the inadequate funding providing for any meaningful change, we will focus on three key alarming aspects:
1. the bill’s racist use of risk assessments and lack of retroactivity
2. the bill’s attack on the displaced, undocumented and refugee population, and
3. the power and discretion that the bill gives to the Trump administration.
The Use of Racist Risk Assessments and Lack of Retroactivity
The FIRST STEP Act further invests in structural racism through the use of discriminatory risk assessments that will dramatically increase racial and socioeconomic disparities. Research proves that risk assessments do not accurately predict risk and in fact exacerbate racial biases against people of color, especially African Americans. Although proponents of the bill say that the system will be evaluated regularly to ensure that unwanted racial disparities do not continue, the latest studies conducted from Florida to Kentucky prove that risk assessments further marginalize those most impacted by mass incarceration.
The FIRST STEP Act excludes the vast majority of people in federal prison by not retroactively applying to those charged before the enactment of the bill. This is reason enough to say that the bill does not go far enough because if Trump and Congress were serious about transforming the federal system then they would stop tinkering at the edges and propose legislation that would seriously reduce incarceration levels.
The Attack on the Displaced, Undocumented and Refugee Population
The FIRST STEP Act excludes the majority of undocumented immigrants from obtaining “good time credit” benefits and further criminalizes migration. As a coalition of immigrant rights organizations stated, “In 2015, half (49 percent) of all federal prosecutions were for improper entry and re-entry prosecutions. Almost a quarter of those in the Federal Bureau of Prisons (BOP) prison population are non-citizens (23 percent).” The FIRST STEP Act will strip away even more protections for the displaced, undocumented and refugee populations and further target immigrants fleeing violence for federal prosecutions. Rather than acknowledging this growing percentage of the federal prison population, The FIRST STEP Act explicitly excludes and ignores them. This is far from a First Step, and in fact a continuation of Trump’s disastrous policy that continues to rip families apart.
The Increased Power Provided to the Trump Administration
The FIRST STEP Act gives way too much discretion and power to a federal administration that has consistently attacked the most marginalized including black and brown people, queer and trans people, the disabled, and immigrants. Providing Trump with another tool to imprison and attack communities of color is not only playing with fire, it’s ensuring that we roll back all the progress that we have made and emboldens a man hostile to all of us.
As the movement to end mass incarceration continues to gain victories in states all across the country, we must focus on the structural barriers (policies and practices) that drive and maintain mass incarceration. We know that the majority of people impacted by the system are governed by state and local policy and that’s why we believe that The FIRST STEP Act is derailing – and even dividing – the momentum for comprehensive sentencing and criminal justice reform.
While proponents of the bill from Senator Booker to Van Jones implore us to help pass The FIRST STEP Act because the “perfect should never be the enemy of the good,” let us remind ourselves that if we want to address the crimes of the 1992 Crime Bill Act that led to 65 million people or one in three adults in the United States now having a criminal record, we must do more. We cannot and will not endorse a Trump-endorsed policy that will continue to criminalize, incarcerate and deport members of our LGBTQIA+ communities, refugees, indigenous communities, the undocumented and Black and Brown people.
We have dedicated our lives to transforming the criminal justice system and are proud to stand alongside the leading civil rights organizations in America including The Leadership Conference on Civil and Human Rights, NAACP Legal Defense Fund, United We Dream, Asian Americans Advancing Justice, MomsRising, Just Leadership USA, Black Alliance for Just Immigration, and a host of others who are vehemently opposing The FIRST STEP Act.
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