The First Step Act: A State Inspired Effort at Criminal Justice Reform

By Heath Bergmann

As of December 31st, 2016, approximately 1.5 million prisoners were held in United States (U.S.) correctional facilities at the federal and state level. Of these inmates, 188,400 were in custody of the federal government. The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, commonly referred to as the FIRST STEP Act, provides rehabilitative and transitional services aimed at reducing the rate in which federal prisoners recidivate upon release. The act is an excellent example of policy diffusion, or “the spread of innovations from one government to another”, in which the U.S. government is seeking to replicate the success of its states, the ‘laboratories of democracy’. [i]

With the Senate expected to hold a vote on the FIRST STEP Act today, minority opposition is still found within the Democratic and Republican parties. Some Democrats feel the bill is not strong enough and want to revisit the legislation in the 116th Congress, when they will control the House of Representatives. Senate Majority Leader Mitch McConnell is currently working through a set of amendments aimed at securing the vote of skeptical Republicans. A few Republicans oppose the bill due to the leeway granted to judges to avoid mandatory minimums and potential loopholes in the act that may allow violent or sex related criminals to receive leniency. Others are critical of the state inspired bill as not every state has seen definitive benefits from prison reform, with California showing mixed results after the 2011 enactment of its Criminal Justice Realignment bill.

Building on demonstrated state level success, the House and Senate versions of the FIRST STEP Act task the Bureau of Prisons to implement risk reduction programs that aim to reduce recidivism of federal inmates. Inmates deemed ‘low-risk’ would have the opportunity to participate in recidivism reduction programs in exchange for time credits which could be applied toward pre-release custody programs such as halfway houses, home confinement or supervised release. The bills also mandate de-escalation training for federal prison guards, implement rules to encourage penitentiaries to transfer prisoners closer to their families, and prohibit the shackling of pregnant inmates. The Senate version of the bill also reduces drug offense mandatory minimums and retroactively applies the principles of the Fair Sentencing Act, which aimed to reduce disparities in crack cocaine drug sentencing.

To analyze the impact of this policy, it is important to understand how the U.S. became the leading incarcerator in the world. Since 1980, the U.S. inmate population has tripled, largely attributed to the anti-drug legislation of the 1980s and 1990s. The primary drivers have been federal and state laws requiring mandatory minimum sentences for drug-related crimes. These laws, intended to curtail drug trafficking, resulted in extended prison sentences, at times even for minor drug offenses such as possession. As prison costs skyrocketed and crippled state budgets, policy makers explored new approaches to reduce prison populations.

Results from state prison reform efforts nationwide indicate that, if implemented correctly, the FIRST STEP Act will reduce recidivism among federally held inmates. In 2005, Michigan became one of the earliest states to institute prison reform by enacting the Prisoner Reentry Initiative, which took an interdisciplinary approach to prepare inmates and their families for reentry into society and expanded continuity services after release. Over the next decade, Michigan expanded prison reform efforts to include job training and other services, leading to a record low recidivism rate of 28.1 percent in 2017.

The catalyst for the spread of state level criminal justice reforms and recidivism reduction programs has been Texas. In 2007, the Texas Department of Criminal Justice sought $523 million from the state legislature to build three new prisons. Instead Texas State Congressman Jerry Madden, head of the corrections committee and a statistical engineer by trade, convinced his colleagues to support a measure that allocated $241 million to existing prisons for drug treatment, mental health support and rehabilitation. Fueled by reduced recidivism rates, the prison population in Texas has been in decline since 2010, and the violent crime rate also fell 20 percent across the state. By the summer of 2018, Texas closed four state prisons and plans to close four more, saving the state an estimated $3 billion.

Texas quickly became the model for prison reform efforts nationwide with states including Kansas, Ohio, and South Carolina pursuing similar legislation. Even traditionally ‘tough on crime’ states such as Louisiana, Mississippi, and Georgia have followed suit. South Carolina in particular saw dramatic results after passing its Omnibus Crime Reduction and Sentencing Reform Act in 2010. As a result, revocations to prison for parole violations fell 33 percent, with the three-year recidivism rates dropping 13 percent while crime rates have plummeted and the prison population has declined by 14 percent. The state has closed six correctional facilities, saving an estimated $491 million.

Political scientist Craig Volden noted how one of the “benefits of American federalism is the ability of states to serve as policy laboratories, adopting novel policies to address their needs, abandoning unsuccessful attempts, and learning from the successes of similar states.”[ii] In the case of the FIRST STEP Act, the U.S. government, through policy diffusion, has the opportunity to adopt the principles of state reform efforts and change the culture and effectiveness of U.S. federal prisons.

Photo by Davien Orion on Flickr

[i] Shipan, Charles R. and Craig Volden. (2008). “The Mechanisms of Policy Diffusion”. American Journal of Political Science, Vol. 52, No. 4 (Oct., 2008), pp. 840-857.

[ii] Volden, Craig. (2006). “States as Policy Laboratories: Emulating Success in the Children’s Health Insurance Program”. American Journal of Political Science, Vol. 50, No. 2 (Apr., 2006), pp. 294-312.


Heath A. Bergmann is a Captain in the United States Army and second year Master of Public Policy candidate at the University of Michigan’s Gerald R. Ford School of Public Policy.