Tuesday, January 29, 2019


Yale Law Faculty Reflect on First Step Act

In December 2018, Congress passed The First Step, a rare piece of bipartisan legislation that takes initial steps to reform the criminal justice system and ease punitive prison sentences at the federal level.

The bill’s biggest changes aim to reduce certain mandatory minimum sentences under federal law and ease the “three strikes rule” in which those with three or more convictions automatically get 25 years in prison.

“This is an important and bipartisan accomplishment,” said Professor Kate Stith, who teaches criminal law and procedure and is a former federal prosecutor. “We should be pleased and give credit where credit is due. But there is much more to do, as the name of the legislation makes clear.”

Professor Gideon Yaffe, who studies the philosophy of law, particularly criminal law, hailed the bill for making genuine progress and improving the prospects of federal prisoners in the United States.

“We should be pleased and give credit where credit is due. But there is much more to do, as the name of the legislation makes clear.” — Professor Kate Stith

“Thanks to the law, things will be better, over time, for mentally-ill prisoners, for pregnant prisoners, for addicted prisoners, and for those leaving prison with the sincere goal of returning to productive lives in our communities,” said Yaffe. “And there will be no loss whatsoever in public safety, or in the pursuit of the retributive, rehabilitative, and expressive goals of incarceration.”

However, Yaffe noted that the modest improvements do not mean that policy makers should stop looking for other ways to improve the system.

For example, he noted that the First Step Act commissions a report on the current use of methadone and other medication-assisted treatments for prisoner opioid addiction that is expected to propose significant expansion of such treatments. But a report by itself will not solve the problem, he emphasized.

“There needs to be action in line with what the report recommends,” said Yaffe. “The Act does not actually expand medication-assisted opioid addiction treatment, or allocate money for the purpose, leaving that to be done by later laws or administrative actions. Will such laws ever be produced, or will our legislators and our bureau of prisons' administrators simply congratulate themselves on producing an impressive report? Only time will tell.”

Clinical Associate Professor of Law Miram Gohara, who spent 16 years representing death-sentenced clients in post-conviction litigation, said it was encouraging to see a bill aimed at reducing incarceration rates and improving conditions at federal prisons for the first time in two generations.

Gohara noted that she was particularly pleased to see that the new legislation was making retroactive the 2010 Fair Sentencing Act’s reduction in the disparity between crack and powder cocaine sentencing, which could make about 2,600 federal prisoners eligible for release earlier than their original end-of-sentence dates.

However, Gohara cautioned that, “the First Step Act’s opportunity for prisoners to earn good-time credit off their sentences if they participate in vocational and rehabilitative programming will only be an effective one if programming is widely accessible, well-funded, and designed to provide meaningful educational programs, job training, and counseling to the men and women serving federal time.”

Stith and Gohara also pointed to certain state department of corrections, including Connecticut’s and Rhode Island’s prison systems, which have pioneered innovative rehabilitation and educational programs the federal Bureau of Prisons should consider replicating.

Lastly, Gohara explained why there is good reason for some to question a more controversial aspect of the bill — the reliance on risk assessments and algorithms to determine prisoners’ eligibility for good-time credits.

“The formulas that departments of correction most often rely on perpetuate racial and class bias in their implementation,” said Gohara. “That and the act’s exclusion of broad categories of prisoners, including those convicted of immigration-related offenses and non-citizens from opportunities for early release, are the law’s most glaring shortcomings.”