The federal First Step Act was passed in late 2018 in an effort to reverse course on some overly harsh sentences that had been passed down over the last several decades. It also allowed for the early release of terminally ill people and passed a variety of reforms to the federal prison system.
For example, people convicted of crack cocaine offenses have historically been sentenced to as much as 100 times the sentences handed down to people convicted of a similar amount of powder cocaine. This is problematic, in part, because white people have tended to use powder cocaine, while minorities have tended to use crack cocaine.
The sentencing disparity between the two types of cocaine has been partially addressed through changes to federal sentencing policy, although it remains about 18:1.
Now, people who have been convicted of crack cocaine offenses can petition a judge to reduce their sentences. This is one example of how the First Step Act allows for sentencing reductions.
According to the Justice Department, there have been 2,471 court orders reducing sentences since the law took effect. In addition, over 3,100 people have been released early due to good behavior.
Compassionate release, a program allowing the early release of terminally ill prisoners, has seen a major increase since the law took effect, too. In 2018, there were only 34 people sent home on compassionate release. Since the First Step Act took effect, there have been 124.
Will the Bureau of Prisons’ risk assessment tool be fair?
When considering whether someone should be released from prison, the justice system’s top priority is keeping the community safe. Therefore, it would be very helpful if there were a way to tell in advance which people are most likely to commit a new offense if they are released.
Another part of the First Step Act authorizes the Bureau of Prisons to develop a risk assessment tool that would ideally create a fair and just assessment of whether a certain person is likely to reoffend.
Federal public defenders and criminal justice reform advocates are concerned that the risk assessment tool will suffer from the same biases and discriminatory tendencies that previous risk assessments have.
Far too often, these seemingly neutral assessments rely on data that itself has racial overtones. For example, these tools sometimes assess a higher risk for someone who has had multiple run-ins with the police that did not result in charges. Since minorities tend to be arrested and not charged at higher rates than whites, this factor could artificially inflate the risk associated with minorities.
We will keep an eye out for developments on the risk assessment tool and all the aspects of the First Step Act.