Trump fails the first test of the First Step Act

Next week’s Senate Judiciary Committee hearing to consider the nomination of William Barr to be the next attorney general of the United States will be an important test of the Trump administration’s commitment to goals of the recently enacted Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, commonly known as the FIRST STEP Act, is a bipartisan criminal justice reform legislative package. Unfortunately, from what we know of Barr, President TrumpDonald TrumpHillicon Valley — State Dept. employees targets of spyware Ohio Republican Party meeting ends abruptly over anti-DeWine protesters Jan. 6 panel faces new test as first witness pleads the Fifth MORE has already failed the exam.

When Trump signed the FIRST STEP Act into law in December, there was disagreement on the merits of the provisions that lowered mandatory minimum sentences and included reentry and educational programming at the federal Bureau of Prisons.


But supporters and critics agreed on one thing — that the legislation was appropriately named to signal its place as a first of many steps to reform the federal criminal justice system. This referred not only to the need to pass other measures addressing issues — like bail practices, policing and more sentencing reforms — but also the responsibility placed on the administration to implement the bill rigorously.

Much of this depends on the next head of the Justice Department, especially given the abysmal record of former Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsPress: For Trump endorsement: The more sordid, the better Those predicting Facebook's demise are blowing smoke If bitcoin is 'digital gold,' it should be taxed like gold MORE. As Sen. Tim ScottTimothy (Tim) Eugene ScottHow expanded credit data can help tackle inequities Dems erupt over GOP 'McCarthyism' as senators vet Biden bank watchdog pick Why Democrats' prescription drug pricing provision would have hurt seniors MORE (R-S.C.) made clear, “I will also continue to advocate to the president that he nominate a new Attorney General that is passionate about criminal justice reform and further steps that can be taken in this area.” With Barr, however, the president tapped Jeff Sessions in sheep’s clothing.

The nomination of Barr has not received much attention, especially compared to the overwhelming opposition generated toward Sessions’ nomination and tenure. (This could be attributed to the timing of the announcement, which occurred just before the holidays and shortly after the death of President George H.W. Bush, in whose administration Barr previously served in the same capacity). Some may find reassurance simply by the fact that the nominee previously held the job and that Trump is in dire need of competent cabinet officials.

But criminal justice reformers should have the same level of concern with Barr as they had with Sessions. Barr was and is an unapologetic tough-on-crime warrior. Under his leadership, the Justice Department in 1992 issued a report, “The Case for More Incarceration,” in which the three primary sections were entitled: (I) Prisons work; (II) More prisons are needed; and (III) Failure to incarcerate costs money.

History and research have clearly rebutted those arguments. Numerous reports, including a comprehensive study by the National Academy of Sciences in 2014, concluded that lengthy prison sentences had had a negligible effect on crime prevention but high financial, social and human costs. And analysis by the Pew Public Safety Performance Project shows that crime rates actually fell faster in states with larger prison rate declines.

Barr’s positions taken over 25 years ago could be placed into context if he demonstrated an evolution in thinking. Just like Sessions, however, Barr has doubled down on the need to arrest and incarcerate more people, even when crime rates currently hover near historical lows.

As recently as 2015, Barr opposed many of the same sentencing reform provisions that are now part of the FIRST STEP Act and endorsed the view that “[o]ur system of justice is not broken.” And in 2018, he praised Sessions’ tenure as Attorney General especially for re-instituting charging practices that required federal prosecutors to pursue the highest sentences possible. Clearly, there is little, if any, daylight between Barr and Sessions in their hostility toward reforming the justice system.

This is bad news for the FIRST STEP Act and it will be crucial for Senators on the Judiciary Committee — Democrats and Republicans — to ask specific questions of how the nominee intends to implement the legislation as well as his stances on criminal justice reform. Will he commit to including the full $75 million authorized by the FIRST STEP Act in the next budget request to Congress to implement prison reform measures?

What qualifications are important in the next director of the Bureau of Prisons, a position which has been vacant since the abrupt resignation of Gen. Mark Inch last May? Does he continue to believe that more prisons are needed even when crime rates are half of what they were when he was Attorney General? If so, will there ever be a time when more prisons won’t be needed?

If Barr’s positions remain consistent with his past record of empty tough-on-crime rhetoric, the 87 Senators who voted for the FIRST STEP Act and claim to support criminal justice reform must oppose his confirmation. Otherwise, they too will fail the first test of the FIRST STEP Act.

Edward Chung is the vice president of criminal justice reform at the Center for American Progress and a former senior advisor and prosecutor at the U.S. Department of Justice.