What the Latest Bipartisan Prison Reform Gets Wrong and Why It Matters

A specter is haunting the United States — the specter of “bipartisan prison reform.” Although the last effort at bipartisan prison reform stalled out in 2014-15, the US now seems poised to pass the “First Step Act,” after Donald Trump signaled his support for the measure in a statement at the White House on Wednesday.

Passage of the bill would be a major victory for Trump. A number of liberal and progressive commentators have gone all in on the legislation, which has been heavily shaped by Jared Kushner and Koch Industries attorney Mark Holden. CNN commentator and Cut50 co-founder Van Jones praised Trump. “Give the man his due,” Jones tweeted, saying the president is “on his way to becoming the uniter-in-Chief on an issue that has divided America for generations.”

Yet, regardless of who is “uniting” around its passage, the bill itself is both weak and dangerous. While it offers a few token reforms — some of them, like the end of shackling for pregnant and post-partum women in federal custody, necessary and long overdue — it leaves many of the most pressing issues off the table. It barely makes a dent in terms of reducing the length of prison sentences or reducing the number of people in prison. Meanwhile, it heightens the use of racist and classist assessment mechanisms and expands the net of surveillance.

The proposed bill includes a few minor reductions in sentence length for federal prisoners, by expanding potential access to good time credits and lowering the age of consideration for compassionate release. However, it will not make any sentence reductions retroactive (except for the 2010 Fair Sentencing Act, which minimized — but did not erase — the disparity between crack and cocaine sentences). This means that people who are currently serving, for example, life sentences for drug offenses will not get any relief from this bill. A press release from the National Fraternal Order of Police, which endorsed the First Step Act, indicates that the organization “engaged” with lawmakers to ensure that most sentencing changes would not be applied retroactively. Despite Trump taking a deserved pot shot at Bill Clinton’s support for punitive crime policy of the 1990s, the bill would leave intact the lengthy sentences and limited legal access that Clinton enacted in a trifecta of laws (the Anti-Terrorism and Effective Death Penalty Act, the Illegal Immigration and Immigrant Responsibility Reform Act, the Prison Litigation Reform Act).

The bill also expands the cruelties of “e-carceration.” These reforms use electronic monitoring and other forms of often-privatized surveillance to build what activists have dubbed “digital prisons” that fatten the wallets of prison telecommunication companies while further extending carceral control into people’s homes and daily lives. Vivian Nixon, a formerly incarcerated person and director of College and Community Fellowship, dubbed First Step “an insidious move toward expanded control and surveillance in our homes and communities.”

Additionally, the First Step Act relies on the same tried-and-terrible “risk assessment” algorithms that have been repeatedly proven to reproduce racism in sentencing. These risk assessment techniques demonstrate the deep conservatism driving the bill. Treating incarcerated people as entrepreneurial supplicants, the legislation seeks to “incentivize” their participation in prison programs — except that people who fail the “risk assessment” cannot access many of the benefits anyway. The Leadership Conference on Civil and Human Rights wrote that the Act’s use of algorithms risks “embedding deep racial and class bias into decisions that heavily impact the lives and futures of federal prisoners and their families.”

We are seeing a dangerous combination of overwhelming Democratic support for this woefully misguided legislation and terribly misguided excitement for bipartisan cooperation with a white nationalist administration. This combination is bad policy — and bad politics.

In fact, one should scuttle any talk of bipartisanship. For Republicans, the First Step Act is a calculated political move. They want, first and foremost, to rescue their moribund, dying minority of a political party from the dust heap of history. The successful, if partial, overturning of policies that disenfranchise people with felony convictions in Alabama, Florida, Virginia and elsewhere poses new political questions. Republicans can no longer ignore formerly incarcerated people or their families as a political constituency: 70 million Americans have criminal records, and mass incarceration is increasingly being felt in conservative white rural communities. Though the US prison system is thoroughly racist, there are still hundreds of thousands of white people who have been in prison or whose family members have. Some GOP strategists are hoping that they can be convinced to vote Republican. And indeed, many of them might.

The First Step Act needs to be seen in the context of both what the federal government can do in general on prison issues — and what this federal government can, or will, do. The federal government oversees two primary areas of punishment: the federal prison system and immigrant detention. The federal prison system is about 13 percent of the overall prison system — so no matter what the bill does, it will only impact a small portion of those incarcerated. (That, in and of itself, is not a reason to oppose it, but it bears mentioning for the sake of clarity.) Even if it wanted to — which it most assuredly does not — the federal government simply cannot enact the massive reductions in the US prison population that would be required to end mass incarceration. That fight remains strongest at the state and local levels.

Meanwhile, when it comes to immigrant detention, of course, the Trump administration is not even pretending to attempt to reduce the incarcerated population. The severity of this administration’s approach to immigrants and refugees reveals the punitive foundations of its worldview. This is, after all, the party of concentration camps for migrant children. The party of expanded detention and accelerated deportation. The party of raids on immigrant communities. The party of border walls, border fences, border guards and border militarization. The party of the Muslim ban. The party of ending abortion and erasing transgender people out of legal personhood, both of which rest on expanded criminalization. The party of “lock her up.”

None of that has changed, nor will it. Six weeks ago, the administration diverted nearly half-a-billion dollars from medical research, the Federal Emergency Management Agency and other necessary federal projects to pay for its expanded regime of immigrant detention (including family separation). The First Step Act continues this nativistic violence by excluding undocumented immigrants as well as “people who are convicted of high-level offenses.”

In pushing the First Step Act, Republicans are hoping to score a public relations victory to stabilize their power. They are aiming to shore up their legitimacy while the party otherwise advances transparently dangerous and historically unpopular policies to strip people of their health care, right to organize, and environmental and personal safety. The First Step Act does not signal any change of heart or action by the core violence of this administration.

Such is the way of politics. Even white nationalist kleptocrats need to adjust to changing circumstances. Yet progressives do a dangerous disservice to give any comfort to this agenda. The First Step Act is only being debated as a result of the hard work that a large number of grassroots organizers have put in over the years and decades. Yet the bill evacuates many of their demands. As author, activist and formerly incarcerated person James Kilgore tweeted, this act aims “to sideline voices of radical critics of mass incarceration/prison industrial complex. A moderate reform agenda like this will not bring us to 1980 levels of incarceration before the earth boils due to climate change.”

Bipartisanship requires a “middle ground” on which to find a mutually agreeable solution. That middle ground has been fundamental to the development and maintenance of mass incarceration. Though Democrats and Republicans have at times disagreed on the particulars, both have shared what historian Julilly Kohler-Hausmann has called a “get tough” approach to limiting welfare and expanding punishment. Both parties have tried to solve social problems through expanding the power of police, the scope of prisons and the scale of surveillance. Both parties have persecuted working-class communities of color through domestic wars on crime, drugs, gangs and terrorism. Each new front in these wars has moved the middle rightward.

Ending mass incarceration will require more partisanship, not less. Stemming the rising tide of fascism will require more partisanship, not less. Partnering with Trump and company in the name of “bipartisanship” to achieve a few tepid reforms pretends that their extreme violence against Black, Native, Latinx, and multiracial queer and transgender communities is somehow separate from the field of prison rather than central to it.

There is no victory in walking the path of co-optation. Instead of trying to meet in the middle with white nationalists and corporate shills, progressives should be trying to make the middle ourselves: to build the common sense reasoning and policy platforms that advance new paradigms of justice, safety and sustainability. We’ve got a world to win.