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Andrea James testimony at the Judiciary Committee on Capital Hill Bureau of Prisons & First Step Act

Madam Chairwoman Bass, Ranking Member Ratcliffe, Members of the Subcommittee:

Thank you for the opportunity to speak on behalf of the more than 219,000 women who are currently locked up somewhere in the United States, 80% of whom are mothers of small children.[1] My name is Andrea James. I am the Executive Director of the National Council for Incarcerated and Formerly Incarcerated Women and Girls, the only national organization involved in criminal justice reform that is led by formerly incarcerated women of color. Everything we do and every position we take is done after consultation with the women currently on a prison bunk. It is an honor for me to share their views on the First Step Act with you today.

First Step Act Implementation

It is no secret that the National Council opposed the First Step Act. But we are now committed to its implementation and are devoting our limited resources to make sure it succeeds. This is not easy. Our in-reach coordinator receives dozens of emails a week from women who are confused about the First Step Act and who can’t find information about eligibility or receive conflicting information. Our senior counsel is consistently drawn away from other work to answer questions about the Act itself. To name a few examples:

  • · We have had reports about case managers refusing to pass requests for compassionate release onto the Warden because the manager decided the woman “wasn’t eligible.”

  • · Aliceville FCI officials told a woman the prison didn’t have to follow the First Step Act when it denied her request to be moved within 500 miles of her family.

  • · Case managers at Dublin FCI sent back a woman’s request for compassionate release repeatedly over a three-month period for alleged deficiencies before finally submitting it to the Warden – who rejected it within three days.

[ 1] https://www.prisonpolicy.org/reports/pie2018women.html

https://www.bjs.gov/content/pub/pdf/p17.pdf (actual number in 2017 111,360)

Why is it so hard to take advantage of what the First Step Act has to offer? I believe the reason is simple: the Act is premised on exclusion. Incarcerated people cannot get information about it and therefore cannot take advantage of it. But more to the point, too many are completely excluded from the Act’s benefits. Literally 68 categories of people may not participate in educational programming to receive earned time credits, excluding them from the opportunities that are supposed to be the hallmark of the Act. Some carve-outs are oddly specific, such as a conviction for destroying a vessel but only if the act involved a substantial risk of serious bodily injury. Sec. xlvi. Others exclude exactly the people who would benefit most from education and skill development, such as members of a street gang. (xiii). The list seems to target people convicted of so-called “violent crimes” but even that is not consistent, as people who help undocumented migrants into the country (lx), possess contraband in prison (xxix), or commit computer fraud (xxiii) are also not eligible.

Aside from an apparent desire to keep punishing people we don’t like, such as sex offenders, this list of carve-outs makes no sense. Those who most need help in recovering from addiction, learning to solve problems without violence, acknowledging the harm they have caused, and forging a new path for themselves are systematically excluded from any chance at self-improvement. Finally, people who are slated to be deported after their sentences are also not eligible, which is particularly short-sighted and cruel. It is not enough that we send people back to their countries of origin without regard for their ability to survive. Our national policy denies them any chance to prepare in any way for that transition, ignoring the fact that we are all humans living in a deeply interconnected world.

Risk Assessment Tool

We are also very concerned that the Risk Assessment Tool required in the First Step Act will incorrectly identify women as likely to recidivate based on static measures such as the crime for which they were convicted, disproportionately affecting women convicted of so-called violent crimes. We therefore urge that the approach to developing the Risk Assessment Tool be modified now in order to give the Earned Credit Program a greater chance of success.

First, the circle of people involved in developing the tool must be widened. The Hudson Institute is hosting the development team and has selected academics who may have strong technical credentials but none of whom have actual experience with the criminal justice system. The voices of formerly incarcerated people, people of color, and family members of those on the inside must also be heard and their views must be taken seriously.

Secondly, the experience of women (and men) currently serving time must shape the development of the Risk Assessment tool. Many women who are long-timers are integral to the smooth functioning of the prisons. They teach new correction officers the procedures of the prison. They counsel women adjusting to life in prison and provide comfort to those separated from their families. I will never forget is the cries of a mother in Danbury FCI who had just been told that her young daughter was murdered. The prison provided no counseling and refused to let her attend her child’s funeral. Because of the care, support, and wisdom of the long-timers at Danbury, she managed to get through that trauma. Now she is working to establish a protocol for notification and emotional support for any women who receives that kind of tragic news while incarcerated. She could contribute more to the risk assessment discussion than any statistician.

By definition, women serving decades-long sentences will be flagged as high risk. In fact, they are the opposite. Years behind bars bring a painful wisdom that benefit other women on prison bunks and prison staff. If these contributions are not captured in the Risk Assessment Tool, it will contribute to the problem, not the solution.

Finally, credit for earned-time classes must be made retroactive. We must honor the efforts that women have made to transform themselves so that they can contribute to their communities when they finally return home. Opportunities for learning are scant in federal prisons and long-timers have already taken the courses available to them. We have heard of women turning down courses because they are afraid they will not get earned time credit for them. The First Step Act is supposed to identify and lift up incarcerated people who are actively getting ready to become productive members of society. As written, it actually punishes people for their initiative. In order to accomplish its purpose, earned time credit must be made retroactive.

Next Steps

We must now act on the lessons learned from development and passage of the First Step Act. First and foremost, impacted people must have a seat at the table. We know what needs to be done to make the system work. We are parents, neighbors, and friends who want to live in a safe community just like everyone else. Our goal is not to oppose reform, but when we know something won’t work or is just window-dressing we need – and are entitled to – a meaningful opportunity to explain why. For instance, the National Council and other organizations representing the formerly incarcerated fought to make the fix of the sentencing disparity between crack and powder cocaine retroactive. The U.S. Sentencing Commission estimated that as of May 26, 2018, 2,660 people would be eligible for a sentence reduction.[2] As of August 14, 2019, seven months after the passage of the First Step Act, 63% of those eligible have had their sentences reduced.[3] One of them is sitting behind me. Martha Bowden served 18 years for a crack conviction. She should have been released in 2012 when the crack vs powder cocaine disparity was reduced from 100:1 to 18:1. But she had to remain locked up for seven more years until our community finally was able to make legislators see that the Fair Sentencing Act needed to be made retroactive. Congress’s willingness to heed our voices has allowed the First Step Act to make at least one meaningful difference.

In closing, I would like to draw attention to the importance of language. Throughout my testimony, I have used the terms “women” and “those who are incarcerated” instead of inmate or prisoner. I ask you to do the same. People who are locked up are individuals who love their families, worry about their kids, and aspire to a better future, just like the rest of us. They may have been convicted of serious crimes but they are still human beings and their humanity deserves to be recognized.

We all agree that the work is not done. But we must be clear about what the work is. We cannot afford to focus on prison reform, making the life of people in cages a little less horrendous. We cannot let the madness of locking up 1.5 million people simply become a statistic.[4] That is more than the entire population of 11 different states or the District of Columbia. Each and every one of those people matters. Instead, we must create paths for our sisters and brothers to come home and make amends to – and in – the community that they have harmed. We must forget the step of prison reform and make the leap to decarceration.

Thank you and #FreeHer

[1] https://www.prisonpolicy.org/reports/pie2018women.html; https://www.bjs.gov/content/pub/pdf/p17.pdf (actual number in 2017 111,360)

[2] https://www.ussc.gov/sites/default/files/pdf/research-and-publications/prison-and-sentencing-impact-assessments/January_2019_Impact_Analysis.pdf

[3] https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/first-step-act/20190903-First-Step-Act-Retro.pdf . (Two notes of caution: only 32 of the reductions were given to women and the BOP filed zero motions on behalf of people in the custody.)

[4] https://www.bjs.gov/content/pub/press/p17ji17pr.pdf