The First Step Act — the Zombie Bill that Refuses to Die

By Dan Cadman on November 15, 2018

This is the third installment of my blog and Backgrounder writings on the First Step Act, a prison-reform bill that has lurched its way out of the House of Representatives and into the Senate despite being deeply flawed and opposed by various law enforcement organizations, and even the Justice Department.

The New York Times is reporting that supporters are hoping to shove it through the lame duck session and onto the president's desk, where he may indeed sign it even though it goes against his claims to be in favor of strict immigration enforcement, particularly against alien criminals.

The bill apparently survives because of behind-the-scenes influence from Jared Kushner, ensuring that it doesn't die the death it's due. I have no opposition to offer with regard to general prison and sentencing reform bills, but as I've remarked in various postings — and as is definitely the case with this bill — too often the authors of such bills do a shockingly poor job of distinguishing between citizens and removable aliens when it comes to certain programs.

Just to put this into context, the First Step Act would require the federal Bureau of Prisons (BOP) to give good time credits to prisoners, including alien criminals, that substantially reduce their sentences if they participate in recidivism reduction programs, one gauge of success being that the prisoners simply maintain the status quo and aren't determined to be an increased risk of recidivism during the duration of their participation in the program. Though I find that bizarre in general, to stick with the issue of immigration specifically, the question is why an alien, who is destined for removal from the United States for having committed crimes rendering him deportable, is entitled to participate in sentencing reduction programs whose goal is integration back into the community. Aren't the slots and financial resources better saved for candidates who will be expected to reintegrate on release?

The Senate's version of the bill attempts to recognize this absurdity through a new provision that didn't exist in the House version. It says:


(i) IN GENERAL.—A prisoner is ineligible to apply time credits under (C) if the prisoner is the subject of a final order of removal under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(ii) PROCEEDINGS.—The Attorney General, in consultation with the Secretary of Homeland Security, shall ensure that all aliens described in sections 212 and 237 of the Immigration and Nationality Act (8 U.S.C. 1182, 1227) who seek to earn credits are subject to proceedings described in section 238(a) of that Act (8 U.S.C. 1228(a)) at a date as early as practicable during the prisoner's incarceration.

Translated into plain-speak, what this means is that aliens who are serving time in penal institutions should be subjected to removal proceedings as promptly as possible under Section 238(a) of the Immigration and Nationality Act — and as soon as a final order is procured, they become ineligible for sentencing reduction credits. The language fails on two counts:

First, until the final order is obtained, they continue accruing that good time. Consider that such proceedings, conducted under the Institutional Hearing Program, are dependent on the availability of immigration judges, plus the time and money to send them on such details. To be cost-effective for BOP, for the judges, and for Homeland Security agents, this means lining up a host of such hearings at a single time. Thus, Institutional Hearing Program (IHP) proceedings may only take place every several months. The language also doesn't take into account that an alien may seek judicial review of the immigration judge's order in a federal circuit court of appeal. Even if the appeal is frivolous, until it's disposed of, the removal order isn't final and the alien continues to accrue good time credits.

Second, consider that the language prohibiting participation in time-reduction programs (which is admittedly technical) only applies to aliens who are being charged as removable for certain crimes. Ironically, those crimes don't include aliens in prison for some immigration offenses — such as individuals who have repeatedly reentered the United States after having been removed. What sense does it make to incentivize more future illegal reentries by reducing their sentences for participating in "recidivism reduction" programs when they've already shown themselves to be recidivists and scofflaws?

The Senate version of the bill also continues to require BOP to "place the prisoner in a facility as close as practicable to the prisoner's primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence." Nowhere are alien inmates excluded in the language of this provision. But what does the phrase "primary residence" mean when an alien is in the United States in violation of law in the first place, and subject to removal? Why not overtly exclude removable aliens from the provision?

Finally, the Senate bill (like its House cousin) also requires that "The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph." Granted, the BOP might consider a removable alien not to be within the category of "lower risk", but why subject that consideration — or how federal courts might construe the concept of risk in any alien prisoner-initiated lawsuit — to interpretation? Again, why not overtly exclude them from such a provision?

One last picayune detail. Under Section 510 ("Data Collection"), the Senate bill requires BOP to collect a mountain of data relating to various categories of prisoner. The data relating to aliens is contained in a single sentence on page 37, line 28: "(20) The number of aliens in prison during the previous year."

It seems to me a simple matter to ask BOP to collect and collate the information with more detail and stratification. For example, what about age? Gender? Category of crime? Country of nationality? Better yet, why not insist that BOP collaborate with Homeland Security officials and cross-tabulate the data to find out how many were resident aliens convicted of crimes, how many were nonimmigrants convicted of crimes, and how many were illegal border-crossers convicted of crimes? How about examining how many were charged with criminal offenses as a part of their illegal border crossing, which would give a good window into such activities as drug mules, money and weapons couriers, etc.?

If the Senate passes its equally flawed bill and it goes into conference with the House to resolve the differences, we can still hope the president vetoes it, because unless and until alien prisoners are specifically excluded from these provisions of law, Congress will be making removal of alien criminals — already a hard job — even harder. This is inexcusable. It's a simple thing to do, and would in no way impinge on the efforts of prison and sentencing reformists.


Further Reading:

The First Step Act, Revisited

A Brief Examination of the First Step Act