CD189: "First Step" Prison Reform

In the final days of the 115th Congress, Congress passed and President Trump signed into law the First Step Act, which made changes to the operation of the federal prison system. In this episode, learn every detail of this new law, including the big money interests who advocated for its passage and their possible motivations for doing so.

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Bills/Laws

S.756 - First Step Act of 2018

• Govtrack Link
• Committee Summary
• Bill Text
• House Final Vote Results
• Senate Final Vote Results
• Sponsor: Sen. Dan Sullivan (AK)
• Original bill numbers for the First Step Act were S.2795 and HR 5682

First Step Act Outline

• TITLE I - RECIDIVISM REDUCTION
  • Sec. 101: Risk and needs assessment system
    • Orders the Attorney General to conduct a review current and possible recidivism reduction programs, including a review of products manufactured overseas the could be produced by prisoners and would not compete with the domestic private sector
    • Orders the Attorney General to create an assessment system for each prisoner to be conducted during the intake process that will classify each of them as having minimum, low, medium, or high risk of recidivism, the prisoner’s likelihood of violent or serious misconduct, and assign them to programs accordingly. This process must be published on the Department of Justice website by July 19, 2019 (210 days after enactment).
      • Prerelease custody means home confinement with 24 hour electronic monitoring, with the possibility of being allowed to leave to go to work, to participate in a recidivism reduction program, perform community service, go to the doctor, attend religious services, attend weddings or funerals, or visit a seriously ill family member.
  • Sec. 102: Implementation of Risk and Needs Assessment System
    • By mid-January 2020, the Attorney General must implement the new risk assessment system and complete the initial intake risk assessments of each prisoner and expand the recidivism reduction programs
    • The Attorney General “shall” develop polices for the warden of each prison to enter into partnerships with “non-profit and other private organizations including faith-based, art, and community-based organizations”, schools, and “private entities that will deliver vocational training and certifications, provide equipment to facilitate vocational training…employ prisoners, or assist prisoners in prerelease custody or supervised related in finding employment” and “industry sponsored organization that will deliver workforce development and training, on a paid or volunteer basis.”
    • Priority for participation will be given to medium and high risk prisoners
  • Sec. 104: Authorization of Appropriations
    • Authorizes, but does not appropriate, $75 million per year from 2019 to 2023.
  • Sec. 106: Faith-Based Considerations
    • In considering “any entity of any kind” for contracts “the fact that it may be or is faith-based may not be a basis for any discrimination against it in any manner or for any purpose.”
    • Entities “may not engage in explicitly religious activities using direct financial assistance made available under this title”
  • Sec. 107: Independent Review Committee
    • The National Institute of Justice will select a “nonpartisan and nonprofit organization… to host the Independent Review Committee"
    • The Committee will have 6 members selected by the nonprofit organization, 2 of whom must have published peer-reviewed scholarship about the risk and needs assessments in both corrections and community settings, 2 corrections officers - 1 of whom must have experience working in the Bureau of Prisons, and 1 individual with expertise in risk assessment implementation.
    • The Committee will assist the Attorney General in reviewing the current system and making recommendations for the new system.
• TITLE II - BUREAU OF PRISONS SECURE FIREARMS STORAGE
  • Sec. 202: Secure Firearms Storage
    • Requires secure storage areas for Bureau of Prisons employees to store their firearms on the outside of the prisoner area.
    • Allows Bureau of Prison employees to store firearms lockboxes in their cars
    • Allows Bureau of Prison employees “to carry concealed firearms on the premises outside of the secure perimeter of the institution”
• TITLE III - RESTRAINTS ON PREGNANT PRISONERS PROHIBITED
  • Sec. 301: Use of Restraints on Prisoners During the Period of Pregnancy and Postpartum Recovery Prohibited
    • From the day a prisoner’s pregnancy is confirmed and ending 12 weeks or longer after the birth, a “prisoner in the custody of the Bureau of Prisons, or in the custody of the United States Marshals Service… shall not be placed in restraints”
      • Will not apply to state prisons or local jails
    • Exceptions include if the prisoner is an “immediate and credible flight risk” or if she poses an “immediate and serious threat of harm to herself or others”
    • No matter what, a pregnant or recovering mother can’t:
      • Have restraints placed around her ankles, legs, or waist
      • Have her hands tied behind her back
      • Be restrained using “4-point restraints"
      • Be attached to another prisoner
    • Within 48 hours of the pregnancy confirmation, the prisoner must be notified of the restraint restrictions (it doesn’t say how they must be notified)
• TITLE IV - SENTENCING REFORM
  • Sec. 401: Reduces Sentencing for Prior Drug Felonies
    • Changes the mandatory minimum for repeat offender with a previous “serious drug felony” (which is defined based on the length of the prison sentence: An offense for which they served more than 12 months) or a “serious violent felony” (added by this bill) from an automatic 20 year sentence to an automatic 15 year sentence.
    • Changes the mandatory minimum for repeat offenders with two or more previous “serious drug felony or serious violent felony” convictions from a mandatory life sentence to a mandatory 25 years.
    • Applies to cases that have not been sentenced as of the date of enactment and is not retroactive
  • Sec. 402: "Broadening of Existing Safety Valve”
    • Expands the criteria for leniency from mandatory minimums to include people with up to 4 prior non-volent convictions, not including minor misdemeanors.
    • Applies to cases that have not been sentence as of the date of enactment and is not retroactive.
  • Sec. 404: Appeals For Current Prisoners Convicted of Crack Related Crimes
    • Allows people who were convicted of crack related crimes prior to August 3, 2010 (when the Fair Sentencing Act of 2010 - which reduced the sentencing differences between crack and power cocaine - became law) to be eligible for reduced sentences.
• TITLE V - SECOND CHANCE ACT OF 2007 REAUTHORIZATION
  • Sec. 502: Changes Existing Programs
    • Creates an optional grant program for the Attorney General allowing him to provide grants to private entities along with governmental ones, for consulting services (to “evaluate methods”, “make recommendations”, etc).
    • Authorizes, but doesn’t appropriate, $10 million per year from 2019 through 2023 ($50 million total)
  • Sec. 503: Audits of Grantees
    • Requires annual audits of entities receiving grants under the Second Chance Act of 2007 beginning in fiscal year 2019.
    • Prohibits grantees from using grant money to lobby Department of Justice officials or government representatives, punishable by the full repayment of the grant and disqualification for grants for 5 years.
• TITLE VI- MISCELLANEOUS CRIMINAL JUSTICE
  • Sec. 601: Placement of Prisoners Close to Families
    • Requires that attempts be made to place a prisoners within 500 driving miles of the prisoner’s primary residence
    • Adds “a designation of a place of imprisonment… is not reviewable by any court.”
  • Sec. 603: Terminally Ill Prisoners Can Go Home
    • Allows some terminally ill or elderly prisoners over the age of 60 to serve the rest of their sentences in home confinement
  • Sec. 605: Expanding Prison Labor
    • Allows Federal Prison Industries to sell products, except for office furniture, to government entities for use in prisons, government entities for use in disaster relief, the government of Washington DC, or “any organization” that is a 501(c)3 (charities and nonprofits), 501(c)4s (dark money “social welfare" organizations), or 501d (religious organizations).
    • Requires an audit of Federal Prison Industries to begin within 90 days of enactment, but no due date.
  • Sec. 611: Healthcare Products
    • Requires the Bureau of Prisons to provide tampons and sanitary napkins to prisoners for free
  • Sec. 613: Juvenile Solitary Confinement
    • Prohibits juvenile solitary confinement to only when needed as a 3 hour temporary response to behavior that risks harming the juvenile or others, but it can not be used for “discipline, punishment, or retaliation”

Federal Prison Industries: UNICOR

• UNICOR Index
  • FPI is a “wholly-owned government corporation established by Congress on June 23, 1934. It’s mission is to protect society and reduce crime by preparing inmates for successful reentry through job training”
• UNICOR FAQs
• UNICOR 2018 Sales Report
• UNICOR Federal Prison Industries, Inc., Fiscal Year 2015, Annual Management Report, November 16, 2015

Shutdown Back-Pay Law

-Government Employee Fair Treatment Act of 2019, signed January 16 2019. - Bill Text

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Additional Reading

• Article: Revolving door brings Trump-tied lobbying firm even closer to the White House by Anna Massoglia and Karl Evers-Hillstrom, OpenSecrets News, January 22, 2019.

• Article: Trump fails the first test of the First Step Act by Edward Chung, The Hill, January 10, 2019.

• Article: The First Step Act could be a big gift to CoreCivic and the private prison industry by Liliana Segura, The Intercept, December 22, 2018.

• Article: For-profit prisons strongly approve of bipartisan criminal justice reform bill by Karl Evers-Hillstrom, OpenSecrets News, December 20, 2018.

• Statement: SPLC statement on bipartisan passage of First Step Act criminal justice reform bill by Lisa Graybill, Southern Poverty Law Center, December 20, 2018.

• Article: The First Step Act is not sweeping criminal justice reform - and the risk is that it becomes the only step by Natasha Lennard, The Intercept, December 19, 2018.

• Article: Conservatives scramble to change criminal justice bill by Jordain Carney, The Hill, December 18, 2018.

• Article: The FIRST STEP Act will make us safer without the Cotton-Kennedy amendments by Tricia Forbes, The Hill, December 18, 2018.

• Article: Who no details about criminal justice 'reform'? by Thomas R. Ascik, The Hill, December 17, 2018.

• Letter: The ACLU and the Leadership Conference support S.756, and urge Senators to vote yes on Cloture and no on all amendments, The Leadership Conference, CivilRights.org, December 17, 2018.

• Article: Koch-backed criminal justice reform bill to reach Senate, All Things Considered, NPR, December 16, 2018.

• Article: The problem with the "First Step Act" by Peniel Ibe, American Friends Service Committee, December 14, 2018.

• Article: Why is a Florida for-profit prison company backing bipartisan criminal justice reform? by Steve Dontorno, Tampa Bay Times, December 7, 2018.

• Article: How the FIRST STEP Act moves criminal justice reform forward by Charlotte Resing, ACLU, December 3, 2018.

• Article: Private prison companies served with lawsuits over using detainee labor by Amanda Holpuch, The Guardian, November 25, 2018.

• Statement: GEO Group statement on federal legislation on prison reform (The FIRST STEP Act), GEO Group, November 19, 2018.

• Article: Karl Rove's crossroads GPS is dead, long live his multi-million dollar 'dark money' operation by Anna Massoglia and Karl Evers-Hillstrom, OpenSecrets News, November 16, 2018.

• Article: We are former attorneys general. We salute Jeff Sessions. by William P. Barr, Edwin Meese III, and Michael B. Mukasey, The Washington Post, November 7, 2018.

• Article: How the Koch brothers built the most powerful rightwing group you've never heard of by Alexander Hertel-Fernandez, Caroline Tervo, and Theda Skocpol, The Guardian, September 26, 2018.

• Article: U.S. prisoners' strike is a reminder how common inmate labor is by Ruben J. Garcia, CBS News, September 8, 2018.

• Article: Kim Kardashian, activist, visits White House to call for prisoner freedom by Amelia McDonell-Parry, Rolling Stone, September 6, 2018.

• Article: Who is Chris Young? Kim Kardashian West to meet with Donald Trump to try to get prisoner pardoned by Janice Williams, Newsweek, September 5, 2018.

• Article: Kim Kardashian West visits White House to talk prison reform by Brett Samuels, The Hill, September 5, 2018.

• Article: Kim Kardashian West to another convicted felon's case: report by Brett Samuels, The Hill, September 5, 2018.

• Article: 'Prison slavery': Inmates are paid cents while manufacturing products sold to government by Daniel Moritz-Rabson, Newsweek, August 28, 2018.

• Article: Turf war between Kushner and Sessions drove federal prison director to quit by Glenn Thrush and Danielle Ivory, The New York Times, May 24, 2018.

• Report: Attorney General Sessions announces Hugh Hurwitz as the Acting Director of the Federal Bureau of Prisons, Department of Justice, May 18, 2018.

• Article: Beware of big philanthropy's new enthusiasm for criminal justice reform by Michelle Chen, The Nation, March 16, 2018.

• Article: Corporations and governments collude in prison slavery racket by Mark Maxey, People's World, February 7, 2018.

• Article: Super PAC priorities USA plans to spend $50 million on digital ads for 2018 by Jessica Estepa, USA Today, November 2, 2017.

• Article: Private prisons firm to lobby, campaign against recidivism by Jonathan Mattise, AP News, October 31, 2017.

• Article: Slave labor widespread at ICE detention centers, lawyers say by Mia Steinle, POGO, September 7, 2017.

• Article: The sordid case behind Jared Kushner's grudge against Chris Christie by Byron York, The Washington Examiner, April 16, 2017.

• Report: How much do incarcerated people earn in each state? by Wendy Sawyer, Prison Policy Initiative, April 10, 2017.

• Press Release: The GEO Group closes $360 million acquisition of community education centers, Company Release, GEO Group, Inc., April 6, 2017.

• Article: How a private prison company used detained immigrants for free labor by Madison Pauly, Mother Jones, April 3, 2017.

• Article: Bias in criminal risk scores is mathematically inevitable, researchers say by Julia Angwin and Jeff Larson, ProPublica, December 30, 2016.

• Article: Jailed for ending a pregnancy: How prosecutors get inventive on abortion by Molly Redden, The Guardian, November 22, 2016.

• Article: Federal prison-owned 'factories with fences' facing increased scrutiny by Safia Samee Ali, NBC News, September 4, 2016.

• Investigative Summary: Findings of fraud and other irregularities related to the manufacture and sale of combat helmets by the Federal Prison Industries and ArmorSource, LLC, to the Department of Defense, Office of the Inspector General, August 2016.

• Report: Federal prison industries: Background, debate, legislative history, and policy options, Congressional Research Service, May 11, 2016.

• Article: New Koch by Jane Mayer, The New Yorker, January 25, 2016.

• Article: Pregnant and behind bars: how the US prison system abuses mothers-to-be by Victoria Law, The Guardian, October 20, 2015.

• Article: American slavery, reinvented by Whitney Benns, The Atlantic, September 21, 2015.

• Article: Yes, prisoners used to sew lingerie for Victoria's Secret - just like in 'Orange is the New Black' season 3 by Emily Yahr, The Washington Post, June 17, 2015.

• Report: Treatment industrial complex: How for-profit prison corporations are undermining efforts to treat and rehabilitate prisoners for corporate gain by Caroline Isaacs, Grassroots Leadership, November 2014.

• Report: The prison indistries Enhancement Certification Program: A program history by Barbara Auerbach, National CIA, May 4, 2012.

• Article: The hidden history of ALEC and prison labor by Mike Elk and Bob Sloan, The Nation, August 1, 2011.

• Article: Slave labor - money trail leads to Koch brothers and conservatives who want your job! by Bob Sloan, Daily Kos, February 21, 2011.

• Article: The Legacy by Gabriel Sherman, New York Magazine, July 12, 2009.

• Hearing: Federal Prison Industries, House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, C-SPAN, July 1, 2005.

• Article: Democratic donor receives two-year prison sentence by Ronald Smothers, The New York Times, March 5, 2005.

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Sound Clip Sources

Discussion: Criminal Justice Reform and Senate Vote on First Step Act, C-SPAN, December 19, 2018.

Speakers: - Mike Allen, Founder and Executive Editor of Axios - Mark Holden, Senior Vice President and General Counsel of Koch Industries - Senator Amy Klobuchar

Sound Clips:

• 22:27 Mike Allen: So, I have on NPR, “Koch-Backed Criminal Justice Reform to Reach Senate.” To some people, at least at first blush, there’s an incongruity to that. Tell us how Koch Industries got involved in this issue. Mark Holden: Yeah, well, I mean, Charles Koch and David Koch have been very focused on these issues forever, literally. They were early funders of Families Against Mandatory Minimums, Institute for Justice, a lot of different groups. And from Charles’s perspective, the war on drugs, it’s been a failure. It doesn’t mean that you—there aren’t—it was in a criminal element within the war on drugs, but there are a lot of people in the war on drugs who don’t need to be incarcerated for so long. And so we’ve been very much in favor of proportional sentencing. You know, punishment must fit the crime. You break the law, you should pay a price, and then once you pay that price, you should be welcomed back into society, with all your rights. All your rights come back. That’s why we supported Amendment 4 down in Florida, the voting restoration rights for people with felonies in Florida. We don’t think it makes sense for people not to be able to participate once they’ve paid their debt to society. And for us, for Charles in particular, this is all about breaking barriers to opportunity.

• 24:10 Mark Holden: And last night, 87 to 12, that’s a curb stomping. And I will note, as a Patriots fan, Gronk is 87 and Brady’s 12, right? I mean, yeah. Something there.

• 49:00 Mike Allen: Watching last night, and the conversations today, it was clear there was a real sense of history, a sense of occasion on the Senate floor last night. Take us there. Tell us what that was like. Senator Amy Klobuchar (MN): Well, we haven’t had a lot of joyous moments in the Senate this year. Big-surprise-news item I gave you. And this was one of those because I think for one thing we’re coming to the end of the year. We were able to get some really important things done: the farm bill; the sex harassment bill that I led with Senator Blunt that had been really difficult to negotiate for the last year; and then of course the budget, which we hope to get done in the next two days; and then we’ve got this. And this was something that has been explained. It was five years in the making. It took people out of their comfort zones. You had people on both sides that never thought they’d be talking about reducing drug sentences. So in that way, it was kind of this Christmas miracle that people came together. But the second piece of it was just that we knew they were these bad amendments that you’ve heard about. Some of them we felt were maybe designed to put us in a bad place, only because politically the bill protected us from a lot of the things that were in the amendments. So what was the best part of the night for me was that it wasn’t Democrats fighting against Tom Cotton and these amendments; it was Chuck Grassley, in his festive-red holiday sweater, who went up there with that Iowa accent that maybe only I can understand, being from Minnesota, and was able to really effectively fight them down. And the second thing was just the final vote—I mean, we don’t get that many votes for a volleyball resolution—and that we had that strong of support for the reform was also really exciting.

Senate Session: Senate floor First Step Act Debate and Vote, C-SPAN, December 18, 2018.

Podcast: Wrongful Conviction Podcast: Kim Kardashian and Jason Flom join forces to advocate for Criminal Justice Reform and Clemency, September 5, 2018.

Netflix Episode: Orange is the New Black, Season 3 Episode 5, Fake it Till You Make It Some More, June 11, 2015.

Netflix Episode: Orange is the New Black, Season 3 Episode 6, Ching Chong, Chang, June 11, 2015.

Video Clip: Whitney Houston 'Crack is Whack' Clip from 2002 Diane Sawyer Interview on ABC News, YouTube, February 11, 2012.

Hearing: Federal Prison Industries, House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, C-SPAN, July 1, 2005.

Witnesses: - Phillip Glover - American Federation of Government Employees Prison Locals Council - President - Paul Miller - Independent Office Products & Furniture Dealers Association

Sound Clips:

• 1:32 Former Representative Howard Coble: Prisoners who are physically able to work must labor in some capacity five days a week. FPI is a government corporation that operates the BOP’s correctional program and employs inmates of the federal prison population to manufacture goods for and provides services to federal agencies. About 20% of the inmates work in Federal Prison Industries’, FPI, factories. They generally work in factory operations such as metals, furniture, electronics, textiles, and graphic arts. FPI work assignments pay from $0.23 to $1.15 per hour.

• 6:19 Representative Bobby Scott (VA): FPI can only sell its products and services to federal agencies. The program was established in the 1930s, in the midst of the Great Depression, as a way to teach prisoners real work habits and skills so that when they are released from prison they’ll be able to find and hold jobs to support themselves and their families and be less likely to commit more crimes. It is clear that the program works to do just that. Followup studies covering as much as 16 years of data have shown that inmates who participate in Prison Industries are 14% more likely to be employed and 24% less likely to commit crimes than like prisoners who do not participate in the program.

• 1:39:58 Former Representative Pieter Hoekstra, current Ambassador to the Netherlands: Mandatory source was great for Federal Prison Industries during the 1990s and 2001 and 2002. But you know what? I think it was wrong that Federal Prison Industries was the fastest and probably the only growing office-furniture company in America during that time. As the industry was going through significant layoffs, Federal Prison Industries was growing by double digits each and every year.

• 1:46:40 Philip Glover: If you have someone serving at USP, Leavenworth, for instance, and they’re in for 45 years or 50 years, you can educate them, you can vo-tech them, but to keep them productive and occupied on a daily basis and feel like they have a little bit of worth, this program seems to do that. That’s where, at least as a correctional officer, that’s where I come from on this program is that it gives the inmate a sense of worth, and every day he goes down and does something productive.

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Resources

• About Page: Americans for Prosperity

• American Addiction Centers: Crack Cocaine & Cocaine: What's the Difference?

• Annual Report: The GEO Group, Inc. 2017 Annual Report

• Lobbying Report: Lobbying Disclosure Act of 1995 (Section 5)

• Media Statement: Statement from CoreCivic President and CEO Damon Hininger on the First Step Act

• OpenSecrets: Americans for Prosperity

• OpenSecrets: CoreCivic Inc. Lobbyists

• OpenSecrets: CoreCivic Inc Profile for 2018 Election Cycle

• OpenSecrets: GEO Group Lobbyists

• OpenSecrets: GEO Group Profile for 2018 Election Cycle

• OpenSecrets: Outside Spending of Political Nonprofits

• OpenSecrets: Trump 2017 Inauguration Donors

• Product Page: Pride Enterprises

• Ranker.com: 50 American Companies That Have Ties to Modern Slavery

• SPLC: Criminal Justice Reform

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Visual Resources

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Community Suggestions

See more Community Suggestions HERE.

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Cover Art

Design by Only Child Imaginations

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Music Presented in This Episode

Intro & Exit: Tired of Being Lied To by David Ippolito (found on Music Alley by mevio)