Today, Ranking Member Jerrold Nadler (D-NY) of the House Committee on the Judiciary, delivered the following remarks on the House floor in opposition to H.R. 5682, the “FIRST STEP Act.”

“I rise in opposition to H.R. 5682, the “FIRST STEP Act.”  On principle, I cannot support legislation which fails to address the larger issue of sentencing reform, and, though this bill makes moderate improvements in areas related to our prisons, actually does more harm by cementing into our system new areas of racial biases and disadvantage that make worse a criminal justice system desperately in need of reform.  Despite the bill’s good intentions, the new incentive system for pre-release custody credits could exacerbate racial biases and, unlike previous criminal justice efforts, is not balanced with the necessary reforms to our federal sentencing system.  As Monday’s New York Times editorial observed: “A partial bill could end up being worse than nothing.”

“I have several specific concerns with the legislation.  First, H.R. 5682 excludes large categories of inmates from being eligible for the pre-release custody incentives established by the bill, based on convictions for various offenses and immigration status. 

“Second, certain prisoners who are eligible to participate in the incentive system and who successfully participate in recidivism reduction programs would face being denied early entry to pre-release custody if such inmates are judged to have a higher than “low recidivism risk” under the new system.    It would be unfair to deny these prisoners what they earned, and it is counterproductive for all of us to, in effect, create a disincentive for prisoners who most need recidivism reduction programming from engaging in it.

“Third, the combination of these factors, implemented through a problematic risk assessment tool, could operate to exacerbate racial and socioeconomic disparities already present in the criminal justice system. As the Leadership Conference on Civil and Human Rights, the ACLU, the NAACP, the National Immigration Law Center and dozens of other advocacy groups warn: “the exclusions could … have a disparate impact on racial minorities.”

“I want to acknowledge the tremendous work of my colleagues on the Judiciary Committee – Representatives Jeffries, Richmond, and Bass particularly – for their efforts to improve the legislation.  I wholeheartedly support certain provisions in the current version of H.R. 5682, such as expanding time credits for good behavior, banning the shackling of women prisoners, and enhanced compassionate relief.  But, unfortunately, these good provisions do not outweigh the potentially harmful provisions contained elsewhere in the bill.

“Perhaps most importantly, it is clear that prison reform alone will not ameliorate the crisis of mass incarceration unless we address the principal cause of the problem—unjust sentencing laws.  As former Attorney General Eric Holder writes in today’s Washington Post, “to reform America’s prisons, we must change the laws that send people to them in the first place.  Anything less represents a failure of leadership.”

“It is unfortunate that after waiting nearly one and a half years to take up the issue of criminal justice reform, the Majority was unwilling to subject H.R. 5682 to a single legislative hearing, or even bother to obtain a CBO score so we could understand its impact.

“I also do not believe we can simply accept, as a reason not to change our sentencing laws, opposition to sentencing reform by a Trump Administration that changes its legislative positions on a near-daily basis and that has already done so much to weaken and undermine the criminal justice system.   Nor do I believe more balanced reform is not viable when Senator Chuck Grassley, the Chairman of the Senate Judiciary Committee told us that, “for any criminal justice reform proposal to win approval in the Senate, it must include … sentencing reform.” 

“Although I oppose this legislation, I remain fully committed to achieving balanced reform as part of an effort to make our criminal justice system more just and our constituents more safe. 

“I reserve the balance of my time.”  

###