The ratification of the U.S. Constitution and the establishment of a federal government did not bring with it a federal prison system. Individuals who ran afoul of the federal government and ended up with a federal criminal conviction served whatever sentence the conviction brought in a state or local penal facility. It was not until 1891 when the U.S. Congress passed the Three Prison Act which led to the construction of federal penitentiaries in Leavenworth, Kansas and Atlanta, Georgia. The federal government also took over the old territorial prison at McNeil Island located in the State of Washington as its third prison.


1930: 7500 Federal Inmates


These three penitentiaries constituted the federal prison system until the establishment of the U.S. Bureau of Prisons (“BOP”) in 1930. By this time, the prisons housed more than 7,500 inmates—more than 1500 of whom were convicted of drug offenses. Two years earlier the Chairman of the Judiciary Committee of U.S. House of Representatives called for the creation of “narcotics farms” to provide individualized treatment to prisoners who became addicted to the “drug evil.”


The BOP found itself facing a mass incarceration problem brought on by the federal law enforcement crackdown during Prohibition. Many of these inmates had serious substance abuse issues—so much so that Congress authorized the U.S. Public Health Services to construct two hospitals that would provide “state-of-the-art” drug abuse treatment programs. The hospitals were built in Lexington, Kentucky in 1935 and in Fort Worth, Texas in 1938. Congress authorized the BOP to liberally assign its drug-problem inmates to these hospitals.


Prohibition and Criminalization Spike Increase Prison Population


These modest drug reform efforts served as the BOP’s primary penal rehabilitation effort for its inmates with substance abuse problems for the next three decades. Then Congress in 1966 enacted the Narcotic Addict Rehabilitation Act (“NARA”) which established both prison and post-prison drug reform programs for federal inmates with a history of drug use. The BOP responded to NARA by taking control of the two hospitals at Lexington and Fort Worth and by creating drug treatment programs in five of its prison facilities. By 1979, the BOP had established NARA programs in every one of its penal facilities.


These programs would be needed with BOP’s expanding prison population.


Federal Inmates: 1990=59,000; 2012=94,679


By the end of 1990, the BOP held some 59,000 inmates—54 percent of whom were serving sentences to drug-related offenses. At the end of Fiscal Year 2012, there were 94,678 inmates in the BOP serving a drug-related sentence—99.5 percent of who involved drug trafficking, according to the federal Bureau of Justice Statistics. By November 2018, the BOP released information that it held 77,649 inmates convicted of drug offenses, representing 46 percent of its total inmate population.

Life Sentences for Non-Violent Drug Offenses


Hidden within the latest BOP figures is the fact that more than 2,000 of those 77,000-plus inmates are serving life sentences without the benefit of parole for non-violent drug offenses. This hidden fact is indicative of the harsh federal sentencing polices that began in 1988 when the average sentence was 17.9 months and had increased to 37.5 months by 2012. This harsh sentencing surge began as a direct result of the misnamed Sentencing Reform Act of 1984 (“SRA”).


Prison and sentencing reforms are not new to the federal criminal justice system.  In fact, many of these “reforms” never fulfill the politically hyped expectations, save the SRA which did, in fact, operate as intended by producing dramatically harsher sentences across the board for all federal crimes.


Not Overwhelmed by First Step


So forgive us if we’re not overwhelmed about the federal criminal justice reform legislation known as the First Step Act (“FSA”) that President Trump just signed into law. We believe the FSA was motivated by good political intentions evidenced by its unusual bipartisan support. But we know that as soon as the first federal inmate released as a result of FSA re-offends, particularly with a heinous offense, there will be political howls from conservative lawmakers who did not support the FSA for “reform” amendments to the legislation that could ultimately make things worse.


Accomplishments of First Step


Exactly what does the FSA hope to accomplish in the federal criminal justice system?


The following are hallmarks of the legislation as reported in a wide range of media forums:


  • Expands individual rehabilitation programming in the BOP whose participation will result in increased good-time benefits, allowing earlier release to halfway houses;
  • Increases good-time credits from 47 days to 54 days a year that will apply retroactively and will result in the immediate release of as many as 4,000 federal inmates;
  • The BOP, however, will use an algorithm that could/would preclude some “high risk” inmates from benefitting from the good-time changes and very well could have the ugly potential of perpetuating the very racial and class disparities the FSA is designed to correct
  • Reduces some harsh mandatory minimum sentencing schemes for a range of non-violent drug offenses;
  • Most of the FSA’s sentencing reforms will not apply retroactively, and that will produce substantial bitterness among the federal inmate population as many inmates convicted of the same offense will be serving dramatically different sentences;
  • The FSA, however, does make retroactive the “reforms” enacted under the Fair Sentencing Act of 2010 that could benefit as many as 2,000 inmates, according to the Marshall Project;
  • Expands the discretion of federal judges to utilize “safety valve sentencing;”
  • Reduces the mandatory minimum sentence for a “three strikes” felon from a life sentence to 25 years;
  • Restricts the common practice of U.S. attorneys stacking gun charges on drug offenders;
  • Bans the BOP policy that requires the shackling of pregnant female inmates during childbirth and allow these inmates to be housed closer to their families;
  • Prevents discrimination against faith-based programs and volunteerism within the BOP;
  • Creates evidence-based risk assessments to determine the level of halfway housing supervision; and
  • The FSA applies only to the roughly 181,000 inmates in the federal prison system, not to the other 2.1 million inmates housed in state and local penal facilities;


Many of the FSA’s reforms have been implemented in Texas, Georgia, Mississippi, South Carolina, and Kentucky. In fact, for most of the past decade Texas has led the nation in penal reform efforts, and it was the financial success these reforms brought to Texas that incentivized Congress to push forward with the FSA.


We sincerely hope that the FSA will enjoy the same success as the Texas penal reform model. While the FSA extends a lot of promise, the reality is that there are political conservatives like Sen. Ted Cruz (R-Tex) and Sen. Tom Cotton (R-Ark) who will do everything within their power to undermine the success of the legislation.


Penal and sentencing reforms are not only necessary but essential to this nation’s entire criminal justice systems. This First Step must be just that, many more “steps” must be taken before the war against the prison industrial complex can be declared victorious, and the violence against our poor, black and brown communities reduced.


We have long since moved from a mass incarceration nation to an absolute prison nation. And that is our shame to bear on the world stage.