Collateral Damage - The Harm of the First Step Act

By Bill Mefford

One issue I am passionate about is criminal justice reform. Our current criminal justice system is racist and classist. This is not me being provocative. It is fact. It is far better to be white, rich and guilty than poor, a person of color, and innocent. There are multiple industries that thrive on the mass incarceration of people of color and Congress, despite all of their hype and rhetoric, have yet to talk about that at all. As a result, their attempts at reform just beat around the edges.

I have lived in and seen firsthand how the racist criminal justice system harms local communities by robbing them of one of their greatest resources: young men of color. There are more young men of color in prison than in college. This is not an accident. This is the result of decades of racist laws that lock up people for low level drug offenses or other nonviolent offenses like truancy while people like Michael Flynn commit treason and walk away without serving a day.

I led the work for the United Methodist Church on reducing mass incarceration for ten years on Capitol Hill and one of the the greatest obstacles to achieving any level of reform often came from our own allies. I remember gun violence prevention organizations repeatedly using messages that demonized “criminals and gang members” in order to limit access to guns. Their messages made it harder for us to humanize those directly impacted by mass incarceration.

The same thing happened with immigration, which I also worked on. Immigrant-rights organizations used to talk about how undocumented immigrants were different from “regular criminals.” They gladly threw those directly impacted by the criminal justice system under the bus in order to make the case for the issue they were working on.

We have to stop this. We have to stop hurting others impacted by injustice because we work on a very narrow singular focus. We are part of a connected universe - injustice anywhere is a threat to justice everywhere.

And this is why I am actually not heartened at all about the latest legislative reform to be brought to the Senate floor, the First Step Act. The First Step Act contains some very good provisions. They include:

  • Allowing judges to sentence below a drug mandatory minimum in low-level cases.

  • Retroactive application of the Fair Sentencing Act: People in prison under the 100-to-1 crack and powder cocaine sentencing disparity could petition for sentence reductions

  • Reduced sentencing enhancements for prior drug offenses from among the country’s most extreme sentences for drug offenses, these prospective changes to enhancements for second and third drug convictions would reduce a mandatory minimum of 20 years to 15 years, and reduce mandatory life without parole to 25 years. This is hardly ground-breaking, but it is indeed, a first step.

  • Expanding who would qualify for compassionate release and expedites federal prisons’ processing of compassionate release applications

  • Ending shackling of pregnant prisoners throughout their pregnancies, including during labor and delivery

  • Ending juvenile solitary confinement

  • Improving evidence-based treatment programs for opioids and heroin in federal prisons.

These are all good measures and much-needed. But here is what this bill also does:

  • The risk assessment tools to determine the time served by those incarcerated as prescribed in the bill are in danger of including racial and other demographic disparities.

  • Some experts are concerned that the bill may lead to unintended consequences, such as perpetual surveillance due to a rise in electronic monitoring and the shifting of the costs of incarceration from the government to directly impacted people.

  • In determining the high risk population in prison may exclude people most in need of services from accessing services because of their classification

  • Immigrants are excluded from many of the bill’s benefits based simply on immigration status

  • The bill authorizes funding for faith-based services thereby dramatically increasing the unconstitutional use of taxpayer dollars to provide religious programs

  • The bill continues to allow for the privatization of certain public functions and allows private entities to profit from incarceration, thereby ensuring that reduced incarceration will likely not occur

These are significant problems. Why is it that we can’t just provide real solutions to real problems? Why do we have to fund private corporations while we try to reduce the number of those incarcerated - canceling out one with the other? Why do we allow religious organizations to commit discrimination while we try and provide resources to reduce recidivism and increase community integration for returning citizens?

Why do we hurt one group to help another?

I don’t know why, but we do it all of the time. And there is almost a total lack of condemnation for hurting on group to benefit another coming from our supposed faith leaders. And they should.

The First Step Act should be named the One Step Forward, Too Many Steps Back Act. Let’s provide solutions that do more good than harm.

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