The First Step Act is an imperfect first step

The First Step Act was a very promising piece of legislation for criminal justice reform when it was signed into law by President Donald Trump in December 2018. Now that a year has passed and we are beginning to see some of its results, it's clear that some aspects are just plain backwards.

The First Step Act caught the nation's attention for its rare bipartisan support in an especially divisive political atmosphere. Lawmakers on both sides of the aisle agreed on the need for the new legislation to deal with criminal justice reform and the number of inmates in the federal prison population. As Trump said at the April Prison Reform Summit, the First Step Act "will give countless current and former prisoners a second chance at life and a new opportunity to contribute to their communities, their states, and their nation."

The act is a multi-phase plan that encompasses different provisions for an inmate to qualify for a sentence reduction.

One provision of the act retroactively implemented a law that reduced the penalty for selling crack cocaine. As a result, it allowed for the early release of thousands of inmates who, under the new guidelines, had already served the new statutory sentence. Because of that provision, as of July, 1,691 prisoners doing time for selling crack cocaine saw their sentences reduced, according to the Department of Justice.

However, to many people's surprise, lawyers for the DOJ, have been challenging the act by appealing some of the early releases that were already granted. Of the inmates granted early release, 81 of those cases were, or are being appealed.

The DOJ is challenging the amount of time each defendant must serve in accordance to the new sentencing criteria set forth by the act, and they're doing so by asking the judges in each case to consider the total amount of narcotics involved in each case and not the actual amount the inmate was convicted for.

The problem is that defendants are required to plead guilty/no contest and admit to the "factual basis" in the case, in order to accept a plea deal convicting them with a lesser charge. In other words, if, hypothetically, a defendant is charged with possession of 1,000 grams, but takes a plea deal so that he's only convicted of possession of five grams, the defendant must plead guilty/no contest and the Factual basis alleged -- possession of 1,000 grams -- in order to receive the plea deal.

If the DOJ's argument prevails, it essentially negates the purpose of the plea deal altogether. The hypothetical defendant in the earlier example's sentence would be recalculated based on the punishment for possession of 1,000 grams, disqualifying them from the benefit of the First Step Act. By those standards, some of the inmates who were just released may not be eligible after all and may have to actually return to prison.

It's a shocking move that advocates of the First Step Act say undermines the intent of the law.

Fortunately, many of the appeals have been unsuccessful thus far, according to a Reuters analysis in July. At that time, of the 81 appealed under this provision, 73 were denied. However, the attempts still point to a fatal flaw in the way First Step Act cases are determined or decided. The criteria must be more narrowly drawn.

Another byproduct of the act is the large number of prisoners returning to society without the necessary skills or resources to adapt to life after prison. The First Step Act promised to work to prevent recidivism, partly though the Bureau of Prisons' "Ready to Work" initiative to connect employers with inmates nearing release under the act.

However, there's more that can and should be done right now. Helping inmates integrate into normal society is about more than just connecting them with a job. Everyday technology, for example, has changed drastically in the past two decades. Things like iPhones, GPS and Wi-Fi are completely foreign to some prisoners re-entering society today. Yet, they are important concepts in daily life that individuals must know or be familiar with in order to maintain employment. The individuals who are unable to adapt will inevitably fall behind and have less of a chance to advance in their life on the outside.

The act hopes to address these issues in the upcoming years with the introduction of the attorney general's new risk and needs assessment system tool to be used by the Bureau of Prisons to track inmates' risks of recidivism and offer programs to better help them succeed once they are released.

The tool is designed to assess and determine each prisoner's risk of recidivism, and their risk of violence or serious misconduct. It'll also determine the type of programming a prisoner should undergo, when the prisoner should be re-assessed, and when a prisoner is ready to transfer into pre-release custody in order to better prepare them for release.

The system will also allow inmates to earn time credits that, under some circumstances, can be used toward supervised release, early transfer to a halfway house, or home confinement. Time credits are earned by engaging in rehabilitation programs while in custody.

However, the problem is that the risk assessment system is not yet up-and-running, but sentences have already been recalculated and prisoners have been released. Therefore, there are inmates who have been released under the First Step Act that have not been able to reap the benefits of the programs the act plans to offer.

In all, the First Step Act did its part by allowing thousands of inmates to see release dates in their lifetimes, but there are still provisions of the act to be implemented and guidelines to be defined. While it's not a complete success, the act is the first big step we have seen from the Justice Department, and it appears to be a good sign for the future of criminal justice reform. 