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Brian Lehrer: Brian Lehrer, WNYC. Now we continue with our election-year series, 30 Issues in 30 Days. Today, we're up to the first of eight consecutive issues around racial justice. It's Issue 15, The First Step Act. What are the next steps? This is the criminal justice bill, The First Step Act, that President Trump signed in December 2018 that is aimed at reforming sentencing laws and reducing the federal inmate population. The Brennan Center for Justice, the Nonpartisan Law and Policy Institute called The First Step Act a major win for the movement to end mass incarceration. How big a step was The First Step Act and what are the second steps that Trump or Biden say they will take down the road to a more equitable criminal justice system? With me to answer these questions to the best of his ability is Ekow Yankah, who is a Professor of Law at Cardozo Law School here in New York. Professor Yanka, welcome to WNYC.

Ekow Yankah: Thank you for having me.

Brian: The First Step Act is something that President Trump did celebrate resoundingly and he touted on the campaign trail. Here he is at a White House Prison Reform Summit in April of 2019.

Donald Trump: The more I met and spoke with those involved in our criminal justice system, the more clear it became that unfair sentencing rules were contributing to the cycle of poverty and crime like really nothing else before. It was time to fix this broken system and it's a system of the past and to improve the lives of so many people.

Brian: Professor Yankah, tell us from your perspective, what's been the most important thing or the few most important things about The First Step Act if it matters more than just on paper?

Ekow: The First Step Act is certainly a bipartisan when it is one of the things for which everybody should be able to credit the president and both sides of Congress for getting it done. It reduces the amount of time that federal prisoners will have to spend in prison. It gives more credit for good behavior so that people can see their families sooner. It retroactively applies the Fair Sentencing Act, which reduced the disparities between crack cocaine and powder cocaine. That disparity was fixed in almost a decade ago but was only applied to people going forward. This goes back and applies that and just as importantly, it tries to make conditions in prisons more humane, things like providing more educational opportunities, more rehabilitative opportunities, and even just basic humanity things like not handcuffing pregnant women to their beds when they're in childbirth. Those are all things that we should all be able to celebrate.

Brian: It's been almost two years since Trump signed the bill. What are the outcomes then? Are they measurable?

Ekow: This part is a little bit harder. Some parts of it are measurable or at least nearly automatic. For example, the sentencing reductions and the safety valve that allows judges to not automatically impose a federal three-strikes and out policy because those things are just built into the way sentences are applied. They are largely working. Sometimes you get prosecutors who resist them, you get prosecutors who want to re-incarcerate the moment somebody is released, but those are largely working. The harder parts are the parts that are about prison conditions because those things require both a change in our culture of punishing people and they just require money. They require federal funding to have those programs put in place. The Bureau of Prisons has been very reluctant to lift the hood and let us see if it's working at all.

Brian: The act does not address private prisons and it doesn't address state prisons, only the federal system. Was it meant to serve as a model for the states to follow?

Ekow: That's a great point. While this is an act that should be celebrated and people talk about it as a major win, and just because it's been so hard to reform federal sentencing, nobody should think this is going to really cure mass incarceration. America houses something like 2.2 million people either in prison or under some form of state supervision. Only something like 181,000, so under 10% of those people are in federal prison. If we really want to change the way mass incarceration consumes lives and communities, and particularly communities of color, then we're going to have to have state reform. Now, in some ways, of course, as you say, this can be a model. This can be a spur. This can be an incentive for best practices, but in other ways, there are lots of states that have been much further ahead in terms of reform and they can be leaders as well. This is a good first step as the name goes, but if we're going to be serious about changing the fact that America imprisons so far beyond any other country, we have to do more.

Brian: Listeners, we're talking about sentencing reform as the first step, as in First Step Act in criminal justice reform as part of our 30 Issues in 30 Days Election series. If anyone has a personal relationship to this issue as someone who has been incarcerated, or someone who's been a lawyer or anyone else, (646) 435-7280, (646) 435-7284. Professor Ekow Yankah from the Cardozo Law School. President Trump takes a lot of credit for The First Step Act, but at the same time, he's doing other things like ending the use of consent decrees between the justice department and local police agencies accused of excessive force. These, as many of our listeners know, were agreements designed to reform police practices and improve community relations. Trump also signed an executive order allowing local police departments to get military equipment while others objected to that. Does The First Step Act make up for the policies and actions that Trump has taken up separately or how do you see it in the context of the bigger picture?

Ekow: I think the answer is clearly, no. Whatever your politics are, we can say it's a good thing he signed this, it's a good first step to continue to play on words. It's frankly good to see Congress able to do anything in a bipartisan manner. This First Step Act was born almost a decade ago in different bills. It's good that that got done, but the president's overall record on criminal justice reform is very clear. Indeed, as you probably know, there were reports that he regretted signing The First Step Act that he rejected the influence of the advisers, including Jared Kushner, who pushed him to do this and that he wants to be unequivocally a law and order president. Whatever people think that phrase means, it is meant regressive and frankly, worsen just as bad ineffective policies. It means looking tough and being stupid while we harm community after community. I'm thrilled that this was signed. It is something we should celebrate, but it's not reasonable to pretend that the president is a criminal justice reformer.

Brian: Critics of Joe Biden often give him for sponsoring the 1994 Crime Bill, which many say contributed mightily to this era of mass incarceration. How does The First Step Act compare with Joe Biden's record on the issue of criminal justice over the years, if you're willing to go there?

Ekow: Oh, I'm happy to go there. I'm one of the people who criticize Joe Biden and his actions on criminal justice reform. I think whoever you support, in the same way, I can give credit to Trump for signing The First Step Act while being quite clear in my politics about how I feel about the president. I can also think Joe Biden is a better candidate, for example, and be quite clear about criticizing, not just Joe Biden, but an entire establishment that has, for just way too long, thought that the automatic reaction to anything was to look tough on crime. That was quite outside of any evidence that these policies were successful. It was a way of triangulating our politics, a way of trying to move to the right so you could look better for a national election. We should expect our leaders to have some amount of more insight and frankly, political bravery than that.

Brian: I want to play a clip of Kamala Harris in a clip of my pants from the debate this week on this issue. Senator Harris offered a vision, parts of a vision of what steps a Biden-Harris administration might take on criminal justice reform, although she didn't mention sentencing laws per se, which is what The First Step Act is about. Here's a little bit of what she had to say.

Kamala Harris: I believe strongly that first of all, we are never going to condone violence, but we always must fight for the values that we hold dear, including the fight to achieve our ideals. That's why Joe Biden and I have said on this subject, look and I'm a former career prosecutor. I know what I'm talking about. Bad cops are bad for good cops. We need reform of our policing in America and our criminal justice system, which is why Joe and I will immediately ban chokeholds and carotid holds. George Floyd would be alive today if we did that. We will require a national registry for police officers who break the law. We will on the issue of criminal justice reform, get rid of private prisons and cash bail and we will decriminalize marijuana. Page: Thank you, Senator Harris. Harris: We will expunge the records of those who have been convicted of marijuana. Page: Thank you, Senator Harris.

Harris: This is a time for leadership on a tragic, tragic issue- Page: Senator Harris your time is up

Harris: -of unarmed Black people in America who are being killed. Page: Thank you, Senator Harris.

Brian: Kamala Harris said she and Joe Biden would ban chokeholds, create a registry for cops who break the law, end private prisons and cash bail, and decriminalize marijuana. Very specific list in that answer. A few minutes later, Mike Pence criticized Kamala Harris for her record in the state of California when she was DA of San Francisco and Attorney General of the state. Here he is at the vice presidential debate.

Mike Pence: When you were Attorney General of California, you increased the disproportionate incarceration of Blacks in California, you did nothing on criminal justice reform in California. You didn't lift a finger to pass the First Step Act on Capitol Hill. The reality is your record speaks for itself.

Brian: Poor Susan Page, the moderator trying in both cases to keep the candidates to their allotted time. As you know, Professor Yankah, much of the criticism of Kamala Harris from the left is about how she presented herself as a tough on crime prosecutor back then. One of the specific things that Vice President Pence said in that clip was that she increased the disproportionate incarceration of Blacks in California. How do you see her record?

Yankah: People have been really conflicted on this. I think part of what's happening and all for the better is that the ground has shifted under people's feet. 20 years ago, the thing to do and this applies to Biden as well was to be quasi-liberal Democrat who is still tough on crime. As we watched a generation of people just wasted under policies that were not buying us any further safety nor punishing people justly. Suddenly those people have found that the ground has shifted under them and their records are rightfully being criticized. That being said, I also know some defense counsel who actually worked with Kamala Harris in California and do you think she was reasonable? Do you think that she was on the whole aimed at justice for, in particular, communities of color? My overall criticism is that there was a language and a mode of thinking in America that dominated for generations, that just thought that the answer to every social problem was to slap more criminal punishment on it. I think no party was immune from that. I think to be frank, quite honest, the Republican Party made that a cornerstone of their political identity and deserves much more blame, but it would be folly to pretend that the Democratic Party didn't equally try to triangulate and thread the needle for political rather than any brave moral insight.

Brian: The vice president there brought up the racial disparity in terms of who gets incarcerated. Getting back to the first step back, we know the prison population at the federal level and the state level is disproportionately Black. According to the Pew Research Center, in 2018, Black Americans represented 33% of the prison population, but only 12% of the US adult population overall, whites accounted for 30% of prisoners, but 63% of the adult population. Does the First Step Act address this disparity in the ways that it needs to, in your opinion?

Yankah: Not in the ways that it needs to. This brings up two important points. It does, as I said, go back and retroactively apply the Fair Sentencing Act which lessens the disparity between crack cocaine and powder cocaine. That was important both symbolic and practical driver of racial disparity. It doesn't really move the numbers in massive ways, but it did create both injustice in individual cases and move the numbers' sum. So that's important, but look, if we're really going to address these disparities as you pointed out and is important to speak about Kamala Harris's list of reforms, most of which I support, we shouldn't be too fixated on the federal government. In fact, as you say, the vast majority of prisoners are in state prisons and jails. Sometimes we get fixated on the White House because it absorbs so much oxygen. It takes so much of our eyeballs, but if we want to change these things, we have to mobilize for local DA elections. We have to mobilize for electing mayors. I heard Maya Wiley on just before me, we have to think about city council. We have to think about-- Your DA and mayor have much more effect and your governor, of course, have much more effect on these things than any president can and that's where our focus should be. The federal government is the single largest jailer because of its size, but every state together just do worse than federal government and it's by far the largest part of the prison population. That's where we need to attack these racial disparities.

Brian: Of course, just as we talked about that in the last segment with Maya Wiley, who's now a candidate for Mayor of New York in next year's election. We'll continue to talk about that a lot next year with whoever else is running and her, but right now it's the presidential election. What's in play is federal policy. Let me move on to the fact, in that context, that last year, Senator Cory Booker and New Jersey Congresswoman Bonnie Watson Coleman introduced what they called The Next Step Act and that legislation would address the consequences of the war on drugs they say and provide more training for law enforcement, are you familiar with The Second Step Act and what second steps it would really take if it was ever passed?

Yankah: I've seen some of the broad outlines but none of us know exactly what would be passed. I think attacking the war on drugs is obviously important. It's going to matter a great deal in terms of reorientating our punishment system, reorientating the way we see a deep social problem. I do think people need to again, recognize that while the drug laws insert a lot of people in jail and then knock them back out and destroy a lot of lives, it's not obvious that the drug laws are that-- We occasionally hear horrific stories and they stick with us. Somebody who's caught with a third drug arrest, who's going to be in jail for the rest of their life and the First Step Act, for example, helps reduce that but most people who are in prison are in prison for violent crimes or problematically things we describe as violent where if we really looked underneath it's not clear how violent it is. The drug crimes are important, but they're really not going to be-- They're not the central thing driving mass incarceration. We need to think deeply about how we address social problems and whether the first answer to every misdemeanor, every fight that breaks out, these are serious things they need to be solved, but sending people to prison for stretches of time is not solving them.

Brian: What might some good next steps be in your opinion, what should be in a Second Step Act that could have an impact on what you just described at the federal level?

Yankah: That's a great question. Whenever my students ask me these questions, I always start by saying, if I knew all the answers, I wouldn't have kept them secret, I would tell everybody. [laughs]

Brian: You'd be president, you'd be King, you'd be Tsar.

Yankah: Or at least governor and God help us more philosopher Kings. Look, it seems to me if what we really want to do is have a more humane system, there are a couple of things we're going to have to do. It's going to meet a multi-pronged attack on lots of different levels. We're going to have to invest more in social safety net. We're going to have to take care of the underlying root problems that cause incarceration in the beginning. We have lots of evidence that these programs are cheaper and buy more public safety. They buy more public safety but on top of that, when we focus on prison reform, we're going to need shorter sentencing. We're going to need to do one of the things in the First Step Act that's going to continue is focused on getting real facts about which programs lead to less recidivism. We're going to need real rehabilitation and job training in prisons. We're going to have to think about how to reincorporate people, not just into life, but into the economy when they leave prisons. Do you know in New York, if you have a record, you can't be a barber, for example, or a bartender? These are jobs that let people eat. These are the kind of job where you can start to rebuild your life and instead, we allow either lobbyists or some weird sense of retributivism to keep people out of the kinds of ways they can rebuild their lives. Then we're shocked when they return to crime. Those are some of the things we'd have to do. Lastly, it doesn't sound very romantic, but we have to focus on the way in which crime and age are related. It turns out that lots of people just age out of crime. I mean, it's all very boring, but you get to a certain point where you're middle age-- I'm exhausted just running after my kids. Frankly, a lot of criminality happens when people are young, misbehaving, have lack of opportunities and they gradually age out of crime. Yet we leave them in our prisons for years and sometimes decades after we would have lots of evidence that they would commit no more violent crimes. Those are practical ways that we can all come together to reasonably reduce mass incarceration and leave our communities safe.

Brian: In our last minute, how do you see the importance of activism? How much of even the fact that The First Step Act was passed in a bipartisan way in Congress and signed by President Trump or how much of whatever Joe Biden's and Kamala Harris's positions are today indicate that their views have evolved from either side of the aisle, people's views, as a result of activism against mass incarceration?

Yankah: I think it's unquestionable. It's one of the things that reminds us that no one person can get these things done. It takes newspaper articles, journalists like yourself discussing it. People marching in the streets, law review articles, philosophers writing books, the Michelle Alexanders, the new Jim Crow, no one thing made these things happen. The last thing I'll say is one thing that's really important to me that I should have focused on earlier is that the activism protests that we're starting to see have done a better job of showing people that these problems are widespread, that there's an interracial-- We have an interracial reasons to fight these things. Sometimes even though it is true that mass incarceration disproportionately affects the Black community, sometimes we make the mistake of thinking it's a Black issue. When you see people marching the streets, it brings home to you that there are white families, Latino families, native American families, all of whom have been rended apart by mass incarceration. One of the things activists can do is show us the commonality of these problems. It's a little bit to both recognize that it's disproportionately affecting communities of color, but not to be so simplistic as to think mass incarceration is only a Black problem.

Brian: We leave it there with Ekow Yankah, Professor of Law at Cardozo Law School. Thank you so much for joining us for this.

Yankah: Thank you for having me.

Brian: This has been Issue 15 in our election series 30 Issues in 30 Days. It's the first of eight consecutive on racial justice. Monday will be Issue 16.

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