The First Step Act: Differing Approaches to Crime Reduction Over Time

By: Emily Gill
Volume X – Issue I – Fall 2024

I. INTRODUCTION

The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, or First Step Act, is a bipartisan crime bill enacted in 2018 under the 115th Congress. The Federal Bureau of Prisons (BOP) states that the goal of this act is to “reduce the size of the federal prison population while also creating mechanisms to maintain public safety.” [1] The objectives of the First Step Act are to reform prison and sentencing practices as a means for reducing crime, recidivism rates, and the incarcerated population. [2] As of 2016, the eight-year recidivism rate in federal prisons was 49.3%. [3] Due to such high rates of reoffending in the United States, a large portion of the crime rate is made up of repeat offenders. While the First Step Act has made great strides in reducing recidivism rates, especially compared to past crime bills, its lack of influence over state prison systems, racial discrepancies, and limitations to specific offenses are weaknesses that need to be addressed for the First Step Act to be entirely successful in it accomplishing its objectives.

II. HISTORY OF AMERICAN CRIME BILLS

The First Step Act follows a long line of American crime bills. One of the first comprehensive crime bills in the United States was the Omnibus Crime Control and Safe Streets Act of 1968, which was passed as part of the Johnson administration’s “war on crime.” The overall goal of the Omnibus Crime Bill was to “prevent crime and to ensure the greater safety of the people, [and] law enforcement.” [4] This bill addressed crime under the belief system that increasing police presence and surveillance, as well as increasing penalties for petty crimes and sentence length, would reduce crime. However, this is not the case; while arrest and incarceration rates drastically increased, crime rates did not see proportional decreases. [5] Stricter policing and more arrests does not mean that there is less crime overall. [6] The Omnibus Crime Bill has been amended many times since its signing into law, but the overall goals of empowering law enforcement have remained.

Subsequently, in 1976, the Crime Control Act was passed. This bill both amended sections of the Omnibus Crime Bill and created new provisions. Like the Omnibus Crime Bill, empowering law enforcement was a large focus of the Crime Control Act, but there was a newly recognized importance of community engagement. One provision of the act was to “provide appropriate technical assistance to community and citizens groups to...encourage community and citizen participation in crime prevention and other law enforcement and criminal justice activities.” [7] However, community-oriented policing, which includes police building relationships with communities, citizen’s patrols, and neighborhood watches, have had inconclusive results in reducing crime. One particular meta analysis studying the effect of community-oriented policing on crime reduction saw that in both property and violent crimes there was a wide variety of correlation with crime reduction. [8]

The Crime Control Act also attempted to reduce crime by reducing drug use. Through this act, programs were developed to identify particular needs of “drug-dependent” individuals, which included “alcoholics, alcohol abusers, drug addicts, and drug abusers.” [9] Another large portion of this bill dealt with the funding of state and local governments to be able to create these programs. The Crime Control Act, while still very focused on increasing law enforcement as a means to reduce crime, differed from past bills by including some provisions that targeted external causes, such as drug use, for crime.

In 1984, the Comprehensive Crime Control Act was passed under the Reagan administration. This act increased bureaucratization in the Department of Justice (DOJ) by establishing agencies such as the Office of Justice Practices, Bureau of Justice Assistance, Bureau of Justice Statistics, and the United States Sentencing Commission. [10] The intent of this was to expand research, standardize particular procedures (such as sentencing procedures), and expand President Ronald Reagan’s “tough on crime” policies. Parole was eliminated, the government’s power to forfeit assets was expanded, and mandatory minimum sentences for drug offenses were established. [11] This bill is a clear example of increased punishment and policing being used as a way to prevent crime. However, incarceration—a criminalizing factor—is expanded through such policies, effectively increasing or maintaining crime rates. [12]

Next, Congress enacted the Crime Control Act of 1990, which again amended sections of the Omnibus Crime Control Act of 1968 and implemented new strategies to reduce crime. The Omnibus Crime Act was amended to create harsher penalties for drug and violent crimes and expand federal funding to support state and local governments in crime reduction. [13] However, this bill implemented more progressive crime policies, such as addressing criminal justice through reform rather than increased punishment. Unlike past bills, the Crime Control Act mentions recidivism explicitly, stating that its goal is to reduce recidivism and decrease the cost of incarceration by way of this reduction. [14] While measures to reduce recidivism are mentioned—such as alternatives to incarceration, more “appropriate” intervention, and proportional sanctions—its harsh approach to policing and sentencing is incompatible with its goal of reducing recidivism.

Following the Crime Control Act, the Violent Crime Control and Law Enforcement Act of 1994 was passed by President Bill Clinton. This act was the most comprehensive crime bill in the United States at this time and continued the “tough on crime” approach previous bills had taken. This was seen through drastic increases in funding for hiring more police officers and building more prisons, as well as the implementation of a three strike law for drug or violent offenders. Additionally, the punishment for drug, gang, and violent offenses was made much harsher, as were mandatory minimums, and states were incentivized to have offenders serve a majority of their sentence rather than have early releases on parole. [15] Aside from its harsh crime policies, the bill also included provisions for grants regarding juvenile crime prevention, and heavily focused on the impact of violence on victims, specifically women. [16]

Moreover, the Violent Crime Control Act included the Federal Death Penalty Act of 1994, which expanded the crimes the death penalty could be used for to include drug-offenses that resulted in death. [17] It was thought that the death penalty would be a deterrence to crime; if drug and other violent crimes result in the death penalty, they are less likely to happen. However, it has been shown that the death penalty does not decrease crime, in fact there may actually be a positive correlation between the two. [18] Overall, the policies of this bill heavily contributed to mass incarceration by increasing policing (and thus arrest and incarceration rates), as well as increasing sentencing length.

One of the most recent crime bills leading up to the First Step Act was the Fair Sentencing Act of 2010. This act amended the Controlled Substances Act by getting rid of mandatory minimums for possession or usage of crack cocaine and reduced the provision that treated crack to powder cocaine in a 100:1 ratio to 18:1. [19] Historically, crack cocaine offenses were primarily imposed on Black individuals, so the harsher punishments imposed by this ratio caused unfairly longer sentences for Black defendants. [20,21] The Fair Sentencing Act worked to correct this racially biased policy. However, while the act did get rid of mandatory minimums with drug cases, which overtime may reduce incarceration rates, it did increase punishment in violent drug cases.

III. THE FIRST STEP ACT

The First Step Act was enacted in 2018 and was a progressive step in criminal justice reform. While there are many important provisions set forth by the First Step Act, there are a few that shift more radically from past legislation. One of which was the requirement of the Department of Justice and Bureau of Prisons to establish and implement a risk and needs assessment system for inmates. [22] In response to this, the DOJ created the Prisoner Assessment Tool Targeting Estimated Risks and Needs, or PATTERN. [23] This test takes into account factors such as gender, education level, incident reports, and programs completed while incarcerated, to predict general and violent recidivism rates. PATTERN has been successful in predicting recidivism rates at the one, two, and three-year ranges, and has been used to help determine eligibility for programs and early release opportunities. [24]

Another main provision under this act was the systems of earned time credits (ETC) and good time credits (GTC), where inmates can work, take part in vocational and educational programs, and maintain good conduct to earn credits, which work as days off of sentences. [25] Rehabilitative processes, such as educational and vocational programs, reduce recidivism rates and are incentivized through this program. [26] Additionally, since inmates reduce their sentences by completing these programs and earning ETCs and GTCs, the incarcerated population may lessen, as inmates complete their sentences more quickly. Furthermore, prison itself is a risk factor for increasing recidivism—it has been shown to have a slightly positive association with reoffending—so this program works two-fold to try and reduce recidivism rates. [27,28] Residential reentry centers, where inmates may be placed before they are fully released, are also emphasized in this provision. Reentry programs help reduce recidivism by providing structure, employment counseling, job placement, financial management assistance, and other services that allow inmates to better reintegrate into society upon release. [29]

Other provisions in the First Step Act work to reform prison and sentencing practices. There are two main provisions pertaining to drug offenders including the reduction of mandatory minimums for particular nonviolent drug offenses and allowing sentences under the mandatory minimum (essentially making the mandatory minimum not mandatory) for some nonviolent drug offenses. Also related to sentencing, the bill requires low-risk inmates to serve the maximum amount of time permitted under house arrest, and requires inmates to be placed within 500 miles of their primary residence. Additionally, the First Step Act requires that the Fair Sentencing Act of 2010 must work retroactively, meaning that drug possession sentences from before the passing of the Fair Sentencing Act can be reduced in accordance with the act.

There are also provisions specifically for the wellbeing of female inmates, including limiting the use of restraints on pregnant and postpartum inmates, and requiring tampons and sanitary napkins to be made available and free. Additionally, the bill includes provisions regarding correctional officers, such as incorporating de-escalation procedures into training, and allowing correctional officers to store and carry firearms outside the perimeter of a prison. Other provisions in this bill include requiring probation and pretrial services officers to provide supervision to sex offenders who were conditionally released, requiring the BOP to help inmates obtain identification documents prior to their release, and limiting juvenile solitary confinement.

IV. SUCCESS AND CRITICISMS OF THE FIRST STEP ACT

Since its enactment in 2018, the First Step Act has shown documented success in reducing the incarcerated population and recidivism rates. There have been over 40,000 releases as a result of this legislation: almost 5,000 instances of compassionate release or reduced sentences, over 1,000 elderly inmates approved for home confinement, and at least 5,000 other inmates released to home confinement. [30] Additionally, nearly 8,500 inmates have been placed into residential reentry programs and about 7,000 have been put into Medication Assisted Treatment for substance use. [31] Furthermore, through the retroactive application of the Fair Sentencing Act, about 4,000 inmates have had their sentences reduced. [32] About 20% of federally incarcerated inmates in 2018 have been released as a result of the act, which is a clear improvement, especially as past crime bills have aligned with an increase in incarceration. [33,34] The rate of recidivism has drastically lowered in inmates who went through First Step Act programming, dropping below 10% as of a June 2024 report, indicating that these programs are successful in reducing crime. [35] This is also significant because the offenses that fall under the First Step Act are primarily non-violent, which generally have high recidivism rates. [36] The nine-year rearrest rate for both property and drug offenses is generally over 80%, but offenders in these categories, who were released under the First Step Act, had recidivism rates of 10.2% and 6.7% respectively, demonstrating First Step Act programs are successful in reducing recidivism. [37,38] However, since these programs have only been implemented for six years, it is impossible to know what the rates will be at the eight and ten year mark. While early reductions in recidivism rates indicate progress, there is the chance that higher rates persist in the long-term.

Critics of the First Step Act question if its limited jurisdiction allows it to be effective. Some inmates are automatically ineligible to earn the reduced time credits set up by the First Step Act based on perception that they may pose an increased risk to society due to the offenses they committed. [39] These offenses include violent offenses, offenses against the state, sex related crimes, human trafficking, repeated possession of firearms (for felons), and high-level drug offenses. Drug offenses, sex offenses, and violent crimes (other than murder), have relatively high recidivism rates on average, meaning that by excluding these offenses from the First Step Act, Congress has undermined their ability to fully address this problem. [40] Offenders who cannot earn credits not only do not have a chance to reduce their sentences, but more importantly are not incentivized to complete programs that can reduce criminogenic risk factors.

Another aspect that limits the reach of the First Step Act is that it only applies to federal prisons and not state prisons. A majority of incarcerated individuals are under their state’s prison system as opposed to the federal prison system; almost 60% of inmates in the U.S. are incarcerated in state prisons, whereas only about 12% are in federal custody and the rest are in local jails. [41] Since such a large population of incarcerated individuals in state facilities, the act cannot be as effective as possible, since it can only apply to 12% of those incarcerated. One potential way for this act to reach state systems would be to limit funding to states unless they comply with provisions set by the bill. The Violent Crime Control and Law Enforcement Act of 1994 used this tactic to encourage states to change their sentencing practices by funding the construction of more prisons. [42] However, this could lead to potential problems, as this would be expensive for the federal government, funding may not be consistent across states, and this tactic may not be well received by states who do not have prison reform as a priority.

An additional criticism of the First Step Act has been of PATTERN, and how it predicts higher recidivism rates for inmates that are racial minorities than for white inmates. In one study, “Black defendants were 77% more likely to be labeled as a higher risk of committing a future violent crime” compared to white defendants. [43] A common criticism of algorithm-based models, such as PATTERN, is the bias they often hold in carceral settings, specifically against minorities, as they are often less accurate when concerning inmates who are not white. Using the “area under curve” statistical method, which measures how correctly predictive tool performs, it was found that the AUC value was higher (the tool worked more correctly) for White inmates than for Black or Hispanic inmates. [44] Over 50% of Black men were identified as having a high risk of recidivism, whereas only 29% of White men were. Since there is more error with minority inmates, it is possible this is an over evaluation. Based on the outcome of PATTERN, the BOP advises what should be done based on inmates’ criminogenic needs. However, if Black and Hispanic inmates’ risks of recidivism are being identified as higher than they are, this may lead to discrepancies in access to rehabilitative programming, reentry programming, and release eligibility.

V. IMPLICATIONS AND CONCLUSION

The First Step Act, while enacted under a conservative administration, is arguably the most progressive federal crime bill America has seen. There is much more of a focus on the reduction of crime through rehabilitative programming, rather than a reduction of crime through increasing arrests and punishment. While the OJP maintains that “the chance of being caught” is incredibly powerful in preventing crime, general deterrence—deterrence that seeks to discourage crime by general punishment of offenders—is proven to be an ineffective means of reducing crime. [45,46] Although unsuccessful, this type of deterrence seems to have been the main motivator behind harsher penalties for drug and violent offenses in the past. The rehabilitative programming introduced by the First Step Act will likely be extremely beneficial in reducing rates of recidivism, as it targets the reduction of crime through reducing criminogenic risk factors, rather than ineffective measures such as deterrence. This is likely to affect the overall crime rate, as the 10-year recidivism rate in the United States is about 80% on average, meaning a large portion of offenders reoffend. [47] If the amount of reoffending can be lessened, a portion of crime will also reduce.

The application of the First Step Act, specifically surrounding how particular provisions of the act apply retroactively, has caused confusion. Two cases have recently been granted writs of certiorari by the Supreme Court, and will be heard during this upcoming cycle. Hewitt v. United States and Duffey v. United States ask whether First Step Act provisions reducing sentences apply retroactively when someone’s original sentence took place before the act but then was resentenced later on. The decision of these cases will help solidify how the act is able to work, and hopefully expand the number of inmates that the act can apply to.

Overall, the First Step Act has set a successful framework for lowering recidivism rates, reducing crime, and decreasing the incarcerated population. However, for this act to be successful, it needs to greatly expand its reach to allow individuals who committed violent crimes to take part in programming, as well as apply fully retroactively. The federal government should also incentivize state compliance with the act. Without expanding to include more incarcerated individuals, the First Step Act is undermining its own efficacy.

Endnotes

[1] “An Overview of the First Step Act,” BOP: First Step Act Overview, accessed 2024, https://www.bop.gov/inmates/fsa/overview.jsp#:~:text=The%20First%20Step%20Act%20requires,needs%20and%20reduce%20this%20risk.

[2] First Step Act, Pub. L. No. 115–391 (2018), https://www.congress.gov/115/plaws/publ391/PLAW-115publ391.pdf

[3] Kim Steven Hunt, Recidivism Among Federal Offenders: A Comprehensive Overview, March 2016, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2016/recidivism_overview.pdf.

[4] Omnibus Crime Control and Safe Streets Act, Pub. L. No. 90-351, 82 Stat. 197, Title I (1968). https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1615.pdf

[5] Lisa Ly, “Federal Policies and Mass Incarceration in America,” Policy Perspectives 30 (2023): 1–14, https://doi.org/10.4079/pp.v30i0.03.

[6] Joseph Margulies and Lucy Lang, “Prosecutors and Responses to Violence,” Community_Trust_9, November 2019, https://vrnclearinghousefiles.blob.core.windows.net/documents/JJC_Prosecutors_Violence.pdf.

[7] Crime Control Act of 1976, Pub. L. 94-503, https://www.congress.gov/94/statute/STATUTE-90/STATUTE-90-Pg2407.pdf

[8] Charlotte Gill et al., “Community-Oriented Policing to Reduce Crime, Disorder and Fear and Increase Satisfaction and Legitimacy among Citizens: A Systematic Review,” Journal of Experimental Criminology 10, no. 4 (August 2, 2014): 399–428, https://doi.org/10.1007/s11292-014-9210-y.

[9] Crime Control Act of 1976, Pub. L. 94-503, https://www.congress.gov/94/statute/STATUTE-90/STATUTE-90-Pg2407.pdf

[10] Comprehensive Crime Control Act of 1984, Pub. L. 98-473, https://www.ojp.gov/pdffiles1/Digitization/123365NCJRS.pdf

[11] Nichole McCarthy, “Comprehensive Crime Control Act of 1984,” Comprehensive Crime Control Act of 1984 | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute, July 29, 2024, https://www.law.cornell.edu/wex/comprehensive_crime_control_act_of_1984#:~:text=It%20represented%20the%20first%20comprehensive,for%20the%20federal%20prison%20system.

[12] Elaine R Jones, “The Failure of the ‘Get Tough’ Crime Policy,” University of Dayton Law Review, 26, 20, no. 2 (1995): 803–8, https://ecommons.udayton.edu/cgi/viewcontent.cgi?article=2180&context=udlr.

[13] Crime Control Act of 1990, Pub. L. 101-647, https://www.ojp.gov/pdffiles1/Digitization/140616NCJRS.pdf

[14] Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, https://www.govinfo.gov/content/pkg/COMPS-10824/pdf/COMPS-10824.pdf

[15] Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, https://www.govinfo.gov/content/pkg/COMPS-10824/pdf/COMPS-10824.pdf

[16] Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, https://www.govinfo.gov/content/pkg/COMPS-10824/pdf/COMPS-10824.pdf

[17] Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, https://www.govinfo.gov/content/pkg/COMPS-10824/pdf/COMPS-10824.pdf

[18] “Studies on Deterrence, Debunked,” Studies on Deterrence, Debunked | Death Penalty Information Center, 2017, https://deathpenaltyinfo.org/policy-issues/deterrence/discussion-of-recent-deterrence-studies.

[19] Fair Sentencing Act of 2010, Pub. L. 111-220, https://www.congress.gov/111/plaws/publ220/PLAW-111publ220.pdf

[20] David A. Sklansky, “Cocaine, Race, and Equal Protection,” Stanford Law Review 47, no. 6 (July 1995): 1283–1322, https://doi.org/10.2307/1229193.

[21] “Crack Cocaine and the Fair Sentencing Act,” Fair Sentencing Act Fact Sheet, November 2023, https://legislativeanalysis.org/wp-content/uploads/2023/11/Fair-Sentencing-Act-Fact-Sheet-FINAL.pdf.

[22] First Step Act, Pub. L. No. 115–391 (2018), https://www.congress.gov/115/plaws/publ391/PLAW-115publ391.pdf

[23] “PATTERN Risk Assessment,” BOP: First Step Act, Resources, accessed 2024, https://www.bop.gov/inmates/fsa/pattern.jsp.

[24] Nancy La Vigne, “2022 Review and Revalidation of the First Step Act Risk Assessment Tool,” National Institute of Justice 2022 Review and Revalidation of the First Step Act Risk Assessment Tool, March 2023, https://www.ojp.gov/pdffiles1/nij/305720.pdf.

[25] “First Step Act Earned Time Credits,” First Step Act Earned Time Credits | United States Sentencing Commission, January 25, 2024, https://www.ussc.gov/education/first-step-act-earned-time-credits.

[26] Gregory Magee, “Education Reduces Recidivism,” Technium Social Sciences Journal 16 (2021): 175–82, https://doi.org/10.47577/tssj.v16i1.2668.

[27] Ryan Cotter, Length of Incarceration and Recidivism, June 2022, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2022/20220621_Recidivsm-SentLength.pdf.

[28] Damon M. Petrich et al., “Custodial Sanctions and Reoffending: A Meta-Analytic Review,” Crime and Justice 50, no. 1 (December 1, 2021): 353–424, https://doi.org/10.1086/715100.

[29] “About Our Facilities; Completing the Transition,” BOP: Residential Reentry Management Centers, 2024, https://www.bop.gov/about/facilities/residential_reentry_management_centers.jsp.

[30] “First Step Act,” BOP: First Step Act, 2024, https://www.bop.gov/inmates/fsa/.

[31] “First Step Act,” BOP: First Step Act, 2024, https://www.bop.gov/inmates/fsa/.

[32] “First Step Act,” BOP: First Step Act, 2024, https://www.bop.gov/inmates/fsa/.

[33] E. Ann Carson, Prisoners in 2018, April 2020, https://bjs.ojp.gov/content/pub/pdf/p18.pdf.

[34] “Growth in Mass Incarceration,” Research - Get the Facts - The Sentencing Project, June 20, 2024, https://www.sentencingproject.org/research/.

[35] First Step Act Annual Report - June 2024, June 2024, https://www.bop.gov/inmates/fsa/docs/first-step-act-annual-report-june-2024.pdf.

[36] J. J. Prescott, Benjamin David Pyle, and Sonja B. Starr, “Understanding Violent-Crime Recidivism ,” Notre Dame Law Review 95, no. 4 (2020), https://ndlawreview.org/wp-content/uploads/2020/05/9.-Prescott-et-al..pdf.

[37] Mariel Alper and Matthew R. Durose, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14) , May 2019, https://bjs.ojp.gov/content/pub/pdf/rsorsp9yfu0514.pdf.

[38] “First Step Act,” BOP: First Step Act, 2024, https://www.bop.gov/inmates/fsa/.

[39] Madeleine Dolan, “The First Step Act’s Misstep: Why the First Step Act Violates Prisoners’ Rights to Equal Protection,” American University Law Review Forum 69, no. 233 (2020): 233–65, https://amunlawreview.wpengine.com/wp-content/uploads/2020/08/Dolan.to_.Forum_.pdf

[40] Mariel Alper and Matthew R. Durose, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14) , May 2019, https://bjs.ojp.gov/content/pub/pdf/rsorsp9yfu0514.pdf.

[41] E. Ann Carson and Rich Kluckow, Correctional Populations in the United States, 2021 – Statistical Tables, February 2023, https://bjs.ojp.gov/document/cpus21st.pdf.

[42] Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, https://www.govinfo.gov/content/pkg/COMPS-10824/pdf/COMPS-10824.pdf

[43] Amy Cyphert, “Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk,” Seton Hall Law Review 51 (2020): 331–81, https://doi.org/10.2139/ssrn.3793685.

[44] Amy Cyphert, “Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk,” Seton Hall Law Review 51 (2020): 331–81, https://doi.org/10.2139/ssrn.3793685.

[45] Laura Bennett and Felicity Rose, “Deterrence and Incapacitation: A Quick Review of the Research,” Deterrence and Incapacitation: A Quick Review of the Research: The Center For Just Journalism, 2024, https://justjournalism.org/page/deterrence-and-incapacitation-a-quick-review-of-the-research#:~:text=General%20deterrence&text=from%20committing%20crimes.-What%20does%20the%20evidence%20say%3F,be%20if%20they%20are%20caught.

[46] Five Things About Deterrence, May 2016, https://www.ojp.gov/pdffiles1/nij/247350.pdf.

[47] Tenzing Lahdon, “Justice Matters Newsletter - From the Desk of BJA - November 2023,” From the Desk of BJA- November 2023 | Justice Matters | Bureau of Justice Assistance, November 27, 2023, https://bja.ojp.gov/news/justice-matters/desk-bja-november-2023#:~:text=A%20U.S.%20Department%20of%20Justice,formerly%20incarcerated%20people%20were%20rearrested.

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