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Following "First Step" Bill's Passage, Progressives Warn Greater Reforms Needed to Truly "Right the Wrongs" of Mass Incarceration

"Against a political culture that lauds compromise, the push to end the brutal carceral system must be uncompromising."

The First Step Act, a bipartisan criminal justice reform bill that passed in the Senate Tuesday, leaves much-needed reforms out, progressives said Wednesday. (Photo: Josh Rushing/cc/ACLU of Louisiana)

The criminal justice reform bill which passed in the Senate Tuesday and is expected to be signed into law in the coming days has been recognized by progressives and prison reform advocates as one of Congress's most far-reaching efforts to fix the federal justice system that currently holds 225,000 Americans in its clutches in decades. But many noted Wednesday that the system's problems are far too vast to be fixed by one piece of legislation reached through bipartisan compromise.

The First Step Act passed overwhelmingly in the Senate in an 87-12 vote, with a number of Republican amendments, attempting to further limit its scope, being voted down. Sen. Bernie Sanders (I-Vt.) applauded the passage of the bill, which could release from prison thousands who have served years behind bars, but called for reforms that go much further—and fundamentally reframe the purpose of the justice system.

"We must end cash bail, end private prisons, end mandatory minimums, [and] reinstate the federal parole system," Sanders wrote on Twitter. "Our primary goal must be rehabilitation, not punishment."

"The First Step Act is very much just that—a first step," added Sen. Kamala Harris (D-Calif.) on Twitter. "It is a compromise of a compromise, and we ultimately need to make far greater reforms if we are to right the wrongs that exist in our criminal justice system."

The First Step Act would reform a number of aggressive sentencing laws which have contributed to mass incarceration in recent decades. Judges will be given more flexibility in handing our mandatory minimum sentences; minimum sentences will be reduced; and punishment for breaking the "three strikes rule," which is responsible for about 800 federal inmates' life sentences, will be reduced to 25 years.

"We're most enthusiastic about the sentencing reforms included in the legislation, although the compromise bill removed the retroactive provision for several of them," said Marc Mauer, executive director of the Sentencing Project.

One reform that will apply retroactively is a fix to the racial disparity between sentences for powder cocaine and crack cocaine offenses. Inmates in prison for crack offenses will be able to petition for early release, a reform that could affect 2,600 prisoners. While more than 66 percent of crack cocaine users in the U.S. are white or Latinx, black Americans make up more than 80 percent of those convicted for crack offenses.

Four thousand could also be released thanks to new rules allowing inmates to gain credits for good behavior—but the compromise allows the justice system to use an algorithm—backed by the Koch brothers—to provide "risk assessments" that will likely use the same racist and classist criteria that makes black and Latinx Americans more likely than their white counterparts to be sent to prison in the first place.

"An algorithm that excludes someone from earning credits due to previous criminal history may overlook that black and poor people are more likely to be incarcerated for crimes even when they're not more likely to actually commit those crimes," wrote German Lopez at Vox.com. "The bill would also exclude certain inmates from earning credits, such as undocumented immigrants and people who are convicted of high-level offenses."

The bill provides more funding for education and vocational training in prisons, but as Marc Mauer of the Sentencing Project noted, "programming participation and incentives are prioritized for 'low-risk' prisoners, whereas research shows that it's more effective to target 'high-risk' individuals."

"That's because the low-risk people are in fact low-risk, so less chance of them reoffending, whereas there's greater opportunity to have an impact on the scale of reoffending with the ones more likely to do so in the absence of rehabilitative programming," Mauer said in a statement.

As Natasha Lennard wrote at The Intercept, the First Step Act "points to bipartisanship's limits" rather than its ability to pass truly sweeping reform.

"The First Step Act functions as a compromise precisely because it is not a challenge to the carceral state," Lennard wrote. "While bipartisanship entails finding compromises with those like [Utah Republican Sen. Mike] Lee who believe in the fundamental justness of our justice system, its reformist results will find low limits. Against a political culture that lauds compromise, the push to end the brutal carceral system must be uncompromising."

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