The First Step Act, one year later: How the bipartisan bill got people out of prison and back with their families
On March 11, 2019, Norah Yahya was released from federal prison in Danbury, Connecticut, and reunited with her five children in New York. Yahya was unexpectedly released 10 years into her 15-year sentence through the First Step Act, a bipartisan criminal justice reform bill passed almost exactly one year ago.
“It was a prayer answered for me to come home to my family who I’ve been away from for most of their lives,” Yahya tells Mic. “For me, it was also a life-saving situation.” When she was released, Yahya was unable to walk due to spinal injuries sustained in prison that she was unable to get adequate treatment for while incarcerated. But since being home, with the help of local organizations Yahya has been able to access health insurance and undergo spinal surgery to regain mobility.
Yahya is one of about 7,000 people who have gained early release from federal prison in the past year thanks to the sentencing provisions in the First Step Act. She and thousands of others have specifically benefited from the portion of the First Step Act that made the Fair Sentencing Act’s reduction of the sentencing disparity between crack and powder cocaine retroactively apply; the Fair Sentencing Act was enacted by President Barack Obama in 2010. Thousands have also been sent home under the “good conduct time” provision, which provides some incarcerated individuals with early release for meeting good conduct standards while in prison. Additionally, about 100 individuals have been released under the First Step Act’s “compassionate release” provision, which provides sentence reductions for older prisoners and those with terminal illnesses.
President Trump signed the First Step Act into law on Dec. 21, 2018. One year later, supporters of the policy celebrate what they see as a major victory in prison reform, though advocates who favor prison abolition view it as a “Band-Aid solution” that fails to address the underlying causes of mass incarceration.
The First Step Act makes some modest changes to the federal prison system — which houses about 10% of the nation’s 2.3 million incarcerated individuals — reducing some individuals’ prison time and improving some of the conditions faced by individuals while incarcerated. The reforms include prohibiting the practice of shackling pregnant women while giving birth; prohibiting juvenile solitary confinement; and requiring federal prisoners to be incarcerated within 500 miles of where they were convicted. A significant portion of the policy also mandates administrative changes to the Federal Bureau of Prisons (BOP), which are still in development, including a new “risk and needs assessment tool” and the introduction of more educational, rehabilitative, and re-entry programs.
The law aimed to produce better conditions inside prisons while liberating thousands of people from them. And its provisions were inspired in part by those with the most intimate knowledge of the system. “The most impactful parts of the policy have come directly from people who are or have been in federal prison,” says Michael Mendoza, the national director for #cut50, the branch of the Dream Corps that successfully advocated for the passage of the First Step Act. “It’s meaningful for us to have a seat at the table because we know what it’s like to be behind prison walls,” he continues. Mendoza was incarcerated for 17 years in California for a crime he committed at age 15.
For her part, Yahya learned about the First Step Act while she was still in prison, but she had no idea that she would be directly affected. “The excitement for the women inside was not only to see freedom,” Yahya says, recalling the mood when the bill passed, “but for some of us who were further away from our families than we would have chosen to be, it would put us closer to our families.”
Getting the First Step Act passed by a Republican-controlled Congress and White House meant that liberal advocates had to appeal to conservatives on their own terms. The need for compromise limited the scope of what could be included in the bill — but it did result in legislative success. Due to the repressive climate in Washington, many advocates on the left have instead shifted to local work since Trump’s election. But Van Jones, the founder of the Dream Corps, has refused to shy away from national efforts.
“The 200,000 human beings in federal prison didn’t elect Trump. They didn’t get to vote at all. They are just as deserving of strong advocacy under Trump as they were under Obama,” Jones tells Mic. “We’ve proven that you can come together and get a limited set of things done for people who desperately need release and fairness, and you can still maintain a principled opposition on things that you can’t compromise on.”
Despite the Trump administration’s discriminatory rhetoric and policies toward people of color, women, and LGBTQ communities — including the expansion of private prisons — Jones believes that bipartisan collaboration is the only viable path toward combating mass incarceration. “My view is that it was both political parties who got us in this ditch. It was Democrats and Republicans. And it’s going to take both political parties to get us out,” Jones says. “If you think we’re going to be able to get people out of prison in Georgia, Louisiana, Mississippi, or even Iowa, without having a massive Republican engagement and buy-in, you’re just not serious about what it takes to pass a law anywhere, let alone in Republican-controlled D.C. and Republican-controlled state houses across America.”
Jones and the team at #cut50 were happy to work with conservatives who embrace criminal justice reform for reasons very different from theirs. “When I’m counting votes, there’s no asterisk that says, ‘a majority of votes were just for fiscal reasons’” Jones points out. “It doesn't matter why they voted the way they voted. The same amount of people come home regardless.”
The conservative reasons for supporting the First Step Act certainly diverge from those guiding advocates on the left. While Jones touts the retroactivity on the FSA as a “huge racial justice victory,” David Safavian, a conservative member of the coalition, argues that “this was not a bill focused on racial equity.” Safavian is the deputy director of the Nolan Center for Justice, a branch of the American Conservative Union Foundation, which advocates for reforms to the criminal justice system rooted in the “core values of liberty, personal responsibility, and fiscal responsibility.”
Safavian says that he “completely disagrees” with the premise that the Trump “administration is discriminating against people of color and women.” He also stresses that members of the Trump administration, including the president’s son-in-law and senior adviser Jared Kushner, whose father was incarcerated for tax evasion, support prison reform due to their own experiences with incarceration.
While it’s questionable to equate the limited accountability generally faced by wealthy businessmen like Charles Kushner to the widespread “tough on crime” policies that resulted in African Americans being five times as likely to be incarcerated as white Americans, at the end of the day, Safavian was able to help shepherd the First Step Act along by making the right case to the right people. Safavian himself has direct experience with the criminal justice system — he spent a year in prison for perjury — and was moved to advocate for the law because of the high rates of recidivism in the prison system, as well as his firsthand experience seeing how the system fails to prepare incarcerated individuals for successful lives after their release. He served as a liaison with the Trump administration and was ultimately key to the bill’s passage.
The result is that Yahya has been able to resume her role as the caretaker for her five children — something that was impossible when she was incarcerated in another state. She’s been able to support her son in seeking addiction treatment, offering him the care she wishes she’d had as a young adult. Yahya herself had her childhood cut short, having her first child at age 15 and being forced to make her way as an emancipated minor at age 16. She dealt with “a lot of trauma,” she says, “from rape to molestation to murder, that characterized me and led me in the wrong direction.” Now that she has her freedom, Yahya has taken technology education courses and is working toward starting her own catering business.
“There’s going to be a whole new generation who will be released and coming out, and we need to be prepared on how to embrace them and how to help them.”
But while the First Step Act produced a second chance for Yahya, it certainly isn’t perfect. Critics point to some aspects of the law that could make it possible to further harm the most marginalized individuals in prison. One example: the pending “risk and needs assessment” tool, which will be used to determine which incarcerated people are eligible for rehabilitative programming and early release. The tool is supposed to give people who haven’t been convicted of certain ”disqualifying offenses,” which have been deemed “high risk,” the opportunity to earn credits while in prison that could go toward an early release. While advocates from #cut50 stress that the tool is not permitted to “exacerbate” racial disparities, Andrea James of the National Council for Incarcerated and Formerly Incarcerated Women and Girls testified to Congress in October that she “is skeptical that this system can be implemented in a way that fully respects the individual circumstances and background of each incarcerated person.”
Other advocates reject altogether the idea of viewing people’s deservingness or eligibility for freedom through the lens of their risk level. By judging a person based on the crime that landed them in prison, “literally just picking and choosing who is deserving of re-entry support and who is not,” the tool is in danger of falling back on the same biases that currently plague the system, says David Booth, deputy executive director of Black & Pink, an LGBTQ prison abolition organization.
Additionally, the BOP is in charge of the prison development and re-entry programs mandated by the First Step Act. Whether individuals are given the opportunity to participate in these programs will determine whether they will be eligible for sentence reductions or early release. Yet these programs continue to suffer from under-funding, and advocates Mic spoke with worry that the new risk assessment tool could function to further exclude the most marginalized individuals — such as LTBGQ people of color — from access to the programs required to secure their freedom.
“The BOP historically has long wait lists and inadequate programming,” says Booth, who also leads the National LGBT HIV Criminal Justice Working Group. “I’m afraid it’s going to create a lot more problems and hurdles down the road.”
Still, the First Step Act has altered the national dialogue on the prison system and opened the door for more substantive changes in the future. Mendoza and Yahya believe that one of the most meaningful results of the law is its potential to bring more people like themselves — those with direct knowledge of the criminal justice system — into political advocacy.
“It empowers me to give back,” says Yahya. “There’s going to be a whole new generation who will be released and coming out, and we need to be prepared on how to embrace them and how to help them.”
Going forward, Yahya plans to continue her advocacy in support of currently and formerly incarcerated women. After lacking the institutional support she needed to address the trauma in her own life, she supports the creation of more mental health resources, trauma-informed care, and job training for marginalized individuals — especially low-income women of color.
“It’s called the First Step Act, and that’s exactly what it is,” says Yahya. “It was a great accomplishment because it’s just the first step toward a lot of things that need to be addressed for incarcerated and formerly incarcerated people.”