CD189: “First Step” Prison Reform

CD189: “First Step” Prison Reform

Jan 27, 2019

In the final days of the 115th Congress, Congress passed and President Trump signed into law the First Step Act, which made changes to the operation of the federal prison system. In this episode, learn every detail of this new law, including the big money interests who advocated for its passage and their possible motivations for doing so.

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S.756 – First Step Act of 2018
First Step Act Outline
    • Sec. 101: Risk and needs assessment system
      • Orders the Attorney General to conduct a review current and possible recidivism reduction programs, including a review of products manufactured overseas the could be produced by prisoners and would not compete with the domestic private sector
      • Orders the Attorney General to create an assessment system for each prisoner to be conducted during the intake process that will classify each of them as having minimum, low, medium, or high risk of recidivism, the prisoner’s likelihood of violent or serious misconduct, and assign them to programs accordingly. This process must be published on the Department of Justice website by July 19, 2019 (210 days after enactment).
        • Prerelease custody means home confinement with 24 hour electronic monitoring, with the possibility of being allowed to leave to go to work, to participate in a recidivism reduction program, perform community service, go to the doctor, attend religious services, attend weddings or funerals, or visit a seriously ill family member.
    • Sec. 102: Implementation of Risk and Needs Assessment System
      • By mid-January 2020, the Attorney General must implement the new risk assessment system and complete the initial intake risk assessments of each prisoner and expand the recidivism reduction programs
      • The Attorney General “shall” develop polices for the warden of each prison to enter into partnerships with “non-profit and other private organizations including faith-based, art, and community-based organizations”, schools, and “private entities that will deliver vocational training and certifications, provide equipment to facilitate vocational training…employ prisoners, or assist prisoners in prerelease custody or supervised related in finding employment” and “industry sponsored organization that will deliver workforce development and training, on a paid or volunteer basis.”
      • Priority for participation will be given to medium and high risk prisoners
    • Sec. 104: Authorization of Appropriations
      • Authorizes, but does not appropriate, $75 million per year from 2019 to 2023.
    • Sec. 106: Faith-Based Considerations
      • In considering “any entity of any kind” for contracts “the fact that it may be or is faith-based may not be a basis for any discrimination against it in any manner or for any purpose.”
      • Entities “may not engage in explicitly religious activities using direct financial assistance made available under this title”
    • Sec. 107: Independent Review Committee
      • The National Institute of Justice will select a “nonpartisan and nonprofit organization… to host the Independent Review Committee”
      • The Committee will have 6 members selected by the nonprofit organization, 2 of whom must have published peer-reviewed scholarship about the risk and needs assessments in both corrections and community settings, 2 corrections officers – 1 of whom must have experience working in the Bureau of Prisons, and 1 individual with expertise in risk assessment implementation.
      • The Committee will assist the Attorney General in reviewing the current system and making recommendations for the new system.
    • Sec. 202: Secure Firearms Storage
      • Requires secure storage areas for Bureau of Prisons employees to store their firearms on the outside of the prisoner area.
      • Allows Bureau of Prison employees to store firearms lockboxes in their cars
      • Allows Bureau of Prison employees “to carry concealed firearms on the premises outside of the secure perimeter of the institution”
    • Sec. 301: Use of Restraints on Prisoners During the Period of Pregnancy and Postpartum Recovery Prohibited
      • From the day a prisoner’s pregnancy is confirmed and ending 12 weeks or longer after the birth, a “prisoner in the custody of the Bureau of Prisons, or in the custody of the United States Marshals Service… shall not be placed in restraints”
        • Will not apply to state prisons or local jails
      • Exceptions include if the prisoner is an “immediate and credible flight risk” or if she poses an “immediate and serious threat of harm to herself or others”
      • No matter what, a pregnant or recovering mother can’t:
        • Have restraints placed around her ankles, legs, or waist
        • Have her hands tied behind her back
        • Be restrained using “4-point restraints”
        • Be attached to another prisoner
      • Within 48 hours of the pregnancy confirmation, the prisoner must be notified of the restraint restrictions (it doesn’t say how they must be notified)
    • Sec. 401: Reduces Sentencing for Prior Drug Felonies
      • Changes the mandatory minimum for repeat offender with a previous “serious drug felony” (which is defined based on the length of the prison sentence: An offense for which they served more than 12 months) or a “serious violent felony” (added by this bill) from an automatic 20 year sentence to an automatic 15 year sentence.
      • Changes the mandatory minimum for repeat offenders with two or more previous “serious drug felony or serious violent felony” convictions from a mandatory life sentence to a mandatory 25 years.
      • Applies to cases that have not been sentenced as of the date of enactment and is not retroactive
    • Sec. 402: “Broadening of Existing Safety Valve”
      • Expands the criteria for leniency from mandatory minimums to include people with up to 4 prior non-volent convictions, not including minor misdemeanors.
      • Applies to cases that have not been sentence as of the date of enactment and is not retroactive.
    • Sec. 404: Appeals For Current Prisoners Convicted of Crack Related Crimes
      • Allows people who were convicted of crack related crimes prior to August 3, 2010 (when the Fair Sentencing Act of 2010 – which reduced the sentencing differences between crack and power cocaine – became law) to be eligible for reduced sentences.
    • Sec. 502: Changes Existing Programs
      • Creates an optional grant program for the Attorney General allowing him to provide grants to private entities along with governmental ones, for consulting services (to “evaluate methods”, “make recommendations”, etc).
      • Authorizes, but doesn’t appropriate, $10 million per year from 2019 through 2023 ($50 million total)
    • Sec. 503: Audits of Grantees
      • Requires annual audits of entities receiving grants under the Second Chance Act of 2007 beginning in fiscal year 2019.
      • Prohibits grantees from using grant money to lobby Department of Justice officials or government representatives, punishable by the full repayment of the grant and disqualification for grants for 5 years.
    • Sec. 601: Placement of Prisoners Close to Families
      • Requires that attempts be made to place a prisoners within 500 driving miles of the prisoner’s primary residence
      • Adds “a designation of a place of imprisonment… is not reviewable by any court.”
    • Sec. 603: Terminally Ill Prisoners Can Go Home
      • Allows some terminally ill or elderly prisoners over the age of 60 to serve the rest of their sentences in home confinement
    • Sec. 605: Expanding Prison Labor
      • Allows Federal Prison Industries to sell products, except for office furniture, to government entities for use in prisons, government entities for use in disaster relief, the government of Washington DC, or “any organization” that is a 501(c)3 (charities and nonprofits), 501(c)4s (dark money “social welfare” organizations), or 501d (religious organizations).
      • Requires an audit of Federal Prison Industries to begin within 90 days of enactment, but no due date.
    • Sec. 611: Healthcare Products
      • Requires the Bureau of Prisons to provide tampons and sanitary napkins to prisoners for free
    • Sec. 613: Juvenile Solitary Confinement
      • Prohibits juvenile solitary confinement to only when needed as a 3 hour temporary response to behavior that risks harming the juvenile or others, but it can not be used for “discipline, punishment, or retaliation”
Federal Prison Industries: UNICOR
Shutdown Back-Pay Law

Government Employee Fair Treatment Act of 2019, signed January 16 2019. – Bill Text

Additional Reading

Sound Clip Sources

Discussion: Criminal Justice Reform and Senate Vote on First Step Act, C-SPAN, December 19, 2018.

Speakers: – Mike Allen, Founder and Executive Editor of Axios – Mark Holden, Senior Vice President and General Counsel of Koch Industries – Senator Amy Klobuchar

Sound Clips:

  • 22:27 Mike Allen: So, I have on NPR, “Koch-Backed Criminal Justice Reform to Reach Senate.” To some people, at least at first blush, there’s an incongruity to that. Tell us how Koch Industries got involved in this issue. Mark Holden: Yeah, well, I mean, Charles Koch and David Koch have been very focused on these issues forever, literally. They were early funders of Families Against Mandatory Minimums, Institute for Justice, a lot of different groups. And from Charles’s perspective, the war on drugs, it’s been a failure. It doesn’t mean that you—there aren’t—it was in a criminal element within the war on drugs, but there are a lot of people in the war on drugs who don’t need to be incarcerated for so long. And so we’ve been very much in favor of proportional sentencing. You know, punishment must fit the crime. You break the law, you should pay a price, and then once you pay that price, you should be welcomed back into society, with all your rights. All your rights come back. That’s why we supported Amendment 4 down in Florida, the voting restoration rights for people with felonies in Florida. We don’t think it makes sense for people not to be able to participate once they’ve paid their debt to society. And for us, for Charles in particular, this is all about breaking barriers to opportunity.
  • 24:10 Mark Holden: And last night, 87 to 12, that’s a curb stomping. And I will note, as a Patriots fan, Gronk is 87 and Brady’s 12, right? I mean, yeah. Something there.
  • 49:00 Mike Allen: Watching last night, and the conversations today, it was clear there was a real sense of history, a sense of occasion on the Senate floor last night. Take us there. Tell us what that was like. Senator Amy Klobuchar (MN): Well, we haven’t had a lot of joyous moments in the Senate this year. Big-surprise-news item I gave you. And this was one of those because I think for one thing we’re coming to the end of the year. We were able to get some really important things done: the farm bill; the sex harassment bill that I led with Senator Blunt that had been really difficult to negotiate for the last year; and then of course the budget, which we hope to get done in the next two days; and then we’ve got this. And this was something that has been explained. It was five years in the making. It took people out of their comfort zones. You had people on both sides that never thought they’d be talking about reducing drug sentences. So in that way, it was kind of this Christmas miracle that people came together. But the second piece of it was just that we knew they were these bad amendments that you’ve heard about. Some of them we felt were maybe designed to put us in a bad place, only because politically the bill protected us from a lot of the things that were in the amendments. So what was the best part of the night for me was that it wasn’t Democrats fighting against Tom Cotton and these amendments; it was Chuck Grassley, in his festive-red holiday sweater, who went up there with that Iowa accent that maybe only I can understand, being from Minnesota, and was able to really effectively fight them down. And the second thing was just the final vote—I mean, we don’t get that many votes for a volleyball resolution—and that we had that strong of support for the reform was also really exciting.
Senate Session: Senate floor First Step Act Debate and Vote, C-SPAN, December 18, 2018.
Podcast: Wrongful Conviction Podcast: Kim Kardashian and Jason Flom join forces to advocate for Criminal Justice Reform and Clemency, September 5, 2018.
Netflix Episode: Orange is the New Black, Season 3 Episode 5, Fake it Till You Make It Some More, June 11, 2015.
Netflix Episode: Orange is the New Black, Season 3 Episode 6, Ching Chong, Chang, June 11, 2015.
Video Clip: Whitney Houston ‘Crack is Whack’ Clip from 2002 Diane Sawyer Interview on ABC News, YouTube, February 11, 2012.
Hearing: Federal Prison Industries, House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, C-SPAN, July 1, 2005.

Witnesses: – Phillip Glover – American Federation of Government Employees Prison Locals Council – President – Paul Miller – Independent Office Products & Furniture Dealers Association

Sound Clips:

  • 1:32 Former Representative Howard Coble: Prisoners who are physically able to work must labor in some capacity five days a week. FPI is a government corporation that operates the BOP’s correctional program and employs inmates of the federal prison population to manufacture goods for and provides services to federal agencies. About 20% of the inmates work in Federal Prison Industries’, FPI, factories. They generally work in factory operations such as metals, furniture, electronics, textiles, and graphic arts. FPI work assignments pay from $0.23 to $1.15 per hour.
  • 6:19 Representative Bobby Scott (VA): FPI can only sell its products and services to federal agencies. The program was established in the 1930s, in the midst of the Great Depression, as a way to teach prisoners real work habits and skills so that when they are released from prison they’ll be able to find and hold jobs to support themselves and their families and be less likely to commit more crimes. It is clear that the program works to do just that. Followup studies covering as much as 16 years of data have shown that inmates who participate in Prison Industries are 14% more likely to be employed and 24% less likely to commit crimes than like prisoners who do not participate in the program.
  • 1:39:58 Former Representative Pieter Hoekstra, current Ambassador to the Netherlands: Mandatory source was great for Federal Prison Industries during the 1990s and 2001 and 2002. But you know what? I think it was wrong that Federal Prison Industries was the fastest and probably the only growing office-furniture company in America during that time. As the industry was going through significant layoffs, Federal Prison Industries was growing by double digits each and every year.
  • 1:46:40 Philip Glover: If you have someone serving at USP, Leavenworth, for instance, and they’re in for 45 years or 50 years, you can educate them, you can vo-tech them, but to keep them productive and occupied on a daily basis and feel like they have a little bit of worth, this program seems to do that. That’s where, at least as a correctional officer, that’s where I come from on this program is that it gives the inmate a sense of worth, and every day he goes down and does something productive.


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Music Presented in This Episode

Intro & Exit: Tired of Being Lied To by David Ippolito (found on Music Alley by mevio)

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