The Washington PostDemocracy Dies in Darkness

Opinion Is this really the best we can do for criminal-justice reform?

Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) speaks on the Senate's passage of the First Step Act on Tuesday. (Tasos Katopodis/Getty Images)
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DeAnna R. Hoskins is president and chief executive of JustLeadershipUSA, a criminal-justice reform advocacy group. She previously served as a senior policy adviser at the Justice Department from 2016 to 2018.

The U.S. mass incarceration crisis did not happen overnight. Decades of poor policy decisions enacted by bipartisan majorities produced the harmful system we seek to end. But, as we strive for reform, we must not replace existing harmful policies with new ones.

The criminal-justice reform bill making its way through Congress represents the most recent example of well-intentioned legislation that will set new norms that further extend the carceral state into our communities. The bill, called the First Step Act, has been heralded as the most significant criminal-justice reform of our generation. Countless organizations have expressed their support for the legislation, and leaders from both political parties have worked together to craft this legislative compromise.

I applaud the efforts to take a positive step forward, but we must question how sincere our efforts are if the First Step Act is all that we can achieve. In a country that incarcerates more than 2 million people and holds more than 4 million people under correctional supervision, we must do better.

My organization opposes the First Step Act along with more than 150 groups because we recognize the harm this legislation will create and perpetuate. The bill is riddled with carve-outs that exclude people from earning time credits for early release and relies on dangerous technology in an attempt to reduce the damage that our country’s criminal-justice system inflicts. These are clear signals that we have missed an opportunity for true reform.

First, the bill opens the door for a greater reliance on correctional control with electronic monitoring that would disproportionately affect black and brown people as well as immigrants. This “e-carceration” threatens to invade the privacy of people released under supervision and could lower the threshold for reincarceration. In promoting this technology, the legislation also creates new opportunities for companies to profit from the expansion of these practices. GEO Group and CoreCivic, two of the country’s largest detention companies, are urging the Senate to pass this legislation, but that’s probably because they can directly profit from this greater reliance on community correctional control.

Second, the bill’s development and implementation of a risk-assessment tool sets a dangerous precedent for how we perceive and treat people before, during and after incarceration. Risk-assessment instruments draw upon a number of static and dynamic factors in a person’s life to determine their level of “risk” to commit a new crime or pose a threat to public safety. We must shift the narrative from one of “risk” to one of “needs” and recognize that in far too many cases, poverty and systemic barriers to economic opportunity and basic necessities drive the conditions that perpetuate the revolving door of incarceration for many in this country. When 1 in 87 working-aged white men is in prison or jail, compared with 1 in 36 Hispanic men and 1 in 12 African American men, we must take a closer look at what is driving the conditions that fuel these disparities.

Third, recently added provisions in the legislation barring those convicted of certain crimes from earning early release will disproportionately affect people of color. The bill, for example, would prohibit people with federal firearm convictions from redeeming “earned time” credits, but the reality is that 24 percent of the people incarcerated on these charges are white people. The rest are people of color. The same applies for people convicted of drug trafficking, for which almost 78 percent are nonwhite.

Legislators had a chance to shift reform in a fundamentally positive direction, but they are instead settling with business as usual in Congress: choosing between an incremental change or the unacceptable status quo. This may be a “first step,” but in many ways, it is a step in the wrong direction. A better step would be toward building a system that focuses on rehabilitation, reconciliation and dignity. We are far from that ideal.