It was all smiles among President Donald Trump, criminal justice reform advocates, law enforcement representatives, and a bipartisan group of legislators in the Oval Office in 2018. Trump, who campaigned on law and order, was preparing to sign the First Step Act, one of the biggest criminal justice reform legislative bills in U.S. history.
“This is the first step, but there’s going to be a second, and third, and possibly a fourth. It’s a great subject,” Trump said.
Seven years later, Trump remains steadfast in his support of the act, giving advocates on both sides of the aisle a sense of cautious optimism about the possibility of more reform.
“If I take him at his word, he says it’s coming, so I trust that it’s coming,” Shana-Tara O’Toole, founder and president of the nonpartisan Due Process Institute, told me.
The First Step Act allowed low-risk federal prisoners to earn time credits they could use at the end of their prison sentences in either a halfway house or at home on electronic monitoring. It also required the Bureau of Prisons to offer more, and better, rehabilitative programming to inmates.
The law also lowered some mandatory minimum prison sentences for prisoners given an enhanced penalty if they were convicted of a serious drug felony or serious violence felony.
Two years later, the nation was rocked by a high-profile crime spike during the COVID-19 pandemic. And when riots tied to the killing of George Floyd in Minnesota left some cities in shambles, it gave opponents of the law an opportunity to argue it should be repealed.
Critics of the First Step Act suggested it was akin to so-called “reforms” in progressive American cities where homelessness and drug addiction problems were apparently ignored. Conservative commentator Daniel Horowitz argued for an infrastructure project in 2022 focused on jails and prisons for people “who belong there.”
O’Toole acknowledged that crime rose during COVID, but she attributed it to the unique circumstances of the pandemic, during which much of the nation was forced into lockdown. Other advocates, such as Lauren Krisai, executive director of Justice Action Network, argued the public’s fear of violence was fueled by a sensationalist media that ignored the trend in most communities to focus on crime in larger cities such as New York, San Francisco, or Washington, D.C.
Other reform advocates, such as Jessica Jackson of REFORM Alliance, saw the rise in crime during COVID as an opportunity to reframe the debate. “Criminal justice reform has always been about public safety,” Jackson said. “It’s been about the proven, effective ways to redirect people away from crime, away from the poor choices they made, and get people on a better path.”
The bipartisan reform push ran into some complaints from the Left. Social justice groups described the law as not going far enough to address racial disparities. Former Obama administration official Roy L. Austin Jr. called the First Step Act “a Pyrrhic victory” that would leave inmates at the mercy of a federal government, specifically Trump, that didn’t care about reform.
But First Step Act supporters portray the reforms as a delicate balance between fairness and public safety. R Street Institute Criminal Justice and Civil Liberties fellow Lisel Petis said people came together to make the system better. The law featured bipartisan agreement on multiple areas in the criminal justice sphere instead of trying to solve everything. In a world in which Trump emphasizes the need for government efficiency, this was one way to do it.
Perhaps even more important, the reforms are seen as methodical, well-thought-out ideas meant to save the government money and create a safer society. “I think this is one of the few policy areas where you can foster that level of cooperation to actually move past politics and just get things done,” Krisai said.
O’Toole said the only way to get criminal justice reform done is through bipartisanship. “Focus on where there is agreement, where there are common values, regardless of what side of the political aisle you’re on, and try to get those done.”
This hasn’t moved tough-on-crime proponents from their belief the United States has an under-incarceration problem.
A recent Manhattan Institute study claimed people who break the law today “will be the same people who commit crimes until they are incapacitated by age, infirmity, imprisonment, or death.” The study posits that criminals have poor self-control, make bad decisions, and do not believe their behavior is “wrong or immoral.”
The authors cite a 2002 study in the Lancet to suggest 47% of state prisoners had antisocial personality disorder. That makes them “resistant to change,” according to the authors. This meant that “progressives” ignore facts for a “more palatable presupposition” that offenders would be a positive influence on their community if they weren’t in prison.
There are significant problems with this claim. The Lancet study is over two decades old, with a focus on global data, not the U.S. prison population. It includes surveys dating back to the 1970s, with major differences between American and global sources. In fact, less than half of the surveys looked at U.S. prisons.
A more recent Lancet Psychology global study found that 6% to 10% of global violent criminals suffered from a personality disorder. Yet, Manhattan Institute authors use older findings to push their narrative, ignoring the global, flawed data.
The numbers are more conclusive for the First Step Act. Federal Bureau of Prisons statistics show only 9.8% of the more than 44,000 federal inmates released under the law have been arrested and convicted again. That’s an amazing number, considering the federal recidivism rate is 50% to 80%! “And the Bureau of Prisons would tell you that … is a good number,” O’Toole scoffed.
Jackson called the First Step Act a resounding success, not just for Trump but for those who were released early and for public safety. O’Toole admitted the law wasn’t perfect but noted it is “hard to argue” with the number of people it has helped.
That gives criminal justice reform advocates additional hope for Trump 2.0. They believe that if people on both sides of the aisle remember the success of the First Step Act, then they’ll be willing to enact bipartisan criminal justice reform legislation that could end up on Trump’s desk before the end of his second term.
“Those are the policies that we are continuing to champion, with bipartisan support,” Jackson said.
More than that, the First Step Act appears to have reinspired Republican governors to pass smart criminal justice reform legislation.
States like Florida, Georgia, and Mississippi passed laws that extended evidence-based recidivism-reducing activities or expanded parole eligibility. In Oklahoma, Republican Gov. Kevin Stitt mentioned the need to create better outcomes through fines and fees reform, plus possibly abolishing debtors prisons. Jackson and Krisai praised GOP leadership for seeing the First Step Act as smart-on-crime reform instead of simply opening up prison doors and letting everyone out.
Democratic-led states are also examining more measured reform. Maryland is considering a bill that would expand the eligibility of record expungement to people who commit a technical violation while on probation or parole. New Jersey Gov. Phil Murphy, a Democrat, also promised to overhaul technical parole violations to keep unnecessary incarcerations from occurring.
It’s also a policy for which both major parties on the state level can come together. The states are “where there’s the most opportunities and … the biggest amount of bipartisan cooperation,” Krisai said. She noted that state actions tend to prompt action from Congress and the White House, fostering more bipartisan work.
We’ll see how much that continues under Trump 2.0.
Taylor Millard is a freelance journalist who lives in Virginia.
