First Step Act of 2018 (Public Law 115-391)

The Policy

Synopsis

S 756, the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act of 2018 (FIRST STEP Act, Public Law 115-391) aims to reform the federal criminal justice system by taking steps intended to reduce mass incarceration and recidivism rates as well as instituting a number of public health policies in federal prisons. The bill aims to accomplish this by:

  • Implementing an evidence-based recidivism reduction program;
  • Reauthorizing the Second Chance Act of 2007, a series of programs assisting prisoners with reentry after release;
  • Retroactively appling the Fair Sentencing Act of 2010, allowing inmates convicted of crack possession prior to 2010 to petition for release;
  • Ensuring that federal prison employees store firearms securely at the prison;
  • Prohibiting the use of restraints on pregnant prisoners;
  • Curbing mandatory minimum sentencing;
  • Placing prisoners in facilities closer to their families;
  • Mandating safety training for prison workers;
  • Improving female hygiene in prisons;
  • Expanding compassionate release for terminally-ill prisoners; and
  • Allowing prisoners to acquire “good time credits” for early release.

This brief focuses specifically on two neuroscience-related provisions within the bill: expanding evidence-based treatment for opioid and heroin abuse (Section 607) and restricting the use of juvenile solitary confinement (Section 613).

In Section 607, the bill mandates the Bureau of Prisons (BOP) to submit two reports to the Senate Committee on the Judiciary, the Senate Committee on Appropriations, the House of Representatives Judiciary Committee, and the House of Representatives Committee on Appropriations,  relating to the treatment of opioid and heroin abuse. The first report, which shall be submitted no later than 90 days after the enactment of the Act, will assess the ability of the BOP to effectively treat heroin and opioid abuse, including via medication-assisted treatment (MAT). The report will also include the framework by which BOP will implement expansion of these evidence-based treatments to prisoners. The second report shall succeed the first report, and be submitted no later than 120 days after the enactment of the Act. This report will analyze the availability and capacity for the provision of MAT, specifically for prisoners serving under supervised release. Both reports must not view MAT as a replacement to holistic or other drug-free approaches. After both reports have been submitted, the BOP is tasked with implementing the plans laid out in the reports.

In Section 613, the bill adds a section to 18 U.S.C. 403 expressly prohibiting the use of juvenile solitary confinement (i.e., room confinement) as a means of punishment or discipline, except in cases where the juvenile’s behavior poses a risk of physical harm to themselves or others. The bill mandates that before room confinement, staff must use the least restrictive techniques available (e.g., talking to the juvenile or bringing in a mental health professional to handle the situation. In the case of a juvenile who is subject to room confinement, staff must explain the reasons for room confinement and ensure that the juvenile will be released upon regaining self-control. Room confinement cannot exceed three hours for juveniles who risk harm of others, and cannot exceed 30 minutes for juveniles who risk harm of themselves. If juvenile still poses a risk of harm after room confinement, they must be transferred to another facility where services other than room confinement can be provided. Consecutive periods of room confinement are also prohibited. ­

Context

Bipartisan support for addressing mass incarceration, reducing recidivism, and improving prison conditions has emerged as a recent trend. Momentum behind the FIRST STEP Act keeps with actions during the Obama administration, during which time the administration granted executive clemency to over 1,300 individuals and advocated for broad prison reform. While the debate touches on many other contentious issues in America (e.g., immigration, race relations, police relations, and the opioid epidemic), a 2018 poll found that most Americans broadly support prison reform.

The opioid epidemic has provided forced policymakers on both sides of the aisle to think critically about the way policy plays a role in treating those with substance use disorder, and has provided a much-needed boost to proponents of MAT. While the number of opioid overdoses has continued to increase in the general public, the rates are even greater among those who are incarcerated or have been recently released from prison. Until the passage of the FIRST STEP Act, there was only limited access the availability of MAT in prisons. The World Health Organization released guidelines on pharmacological treatment of opioid dependence in 2009, calling specifically for widespread availability of evidence-based treatment in prisons. Similar legislation across the past few years has sought to address opioid use in prisons as well, including the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment Act of 2018 (SUPPORT Act).

After years of continued advocacy efforts by child psychiatrists and juvenile law experts, policymakers have considered and acknowledged scientific evidence that solitary confinement has a pronounced negative effect on adolescent development and mood regulation. Importantly, authorities from the US Department of Justice report that juveniles who are subjected to solitary confinement have higher rates of suicide. As of 2016, the Juvenile Residential Facility Census reported that 46% of facilities practice solitary confinement.

The Federal Bureau of Prisons reports that the federal prison population has grown from roughly 25,000 prisoners in 1980 to 180,000 in 2017 despite small decreases over the past few years. These numbers represent only a fraction of the total prison population, as most incarceration occurs at the state level.

The Science

Science Synopsis

This section will address two neuroscience-related topics of relevance to the bill: the treatment of opioid and heroin abuse and the solitary confinement of juveniles.

Opioid and Heroin Abuse Treatment

Opioids are a class of drugs that, when bound to opioid receptors in the brain, produce both pain relieving and euphoric effects. Opioids are either derived naturally from the opium poppy plant (e.g., morphine and codeine, commonly referred to as opiates), partially synthesized from opium (e.g., heroin, oxycodone, and hydromorphone), or fully synthesized to mimic the effects of opium (e.g., fentanyl and methadone.) Medically, these drugs are primarily used for their analgesic properties; of concern, these drugs are often misused, overprescribed, and/or abused given their propensity for dependence.

Rates of opioid dependence have significantly increased in the United States over the past two decades, resulting in a drastic increase in overdose deaths nationwide. Three of the most common treatment options for opioid dependence include:

  1. Residential or inpatient addiction treatment, or what is typically known as “detox” or “rehab,” where patients remain in house at facilities for a given period of time to allow their bodies to detoxify from drug dependence, separate from their environments, and explore various behavioral support systems;
  2. Counseling and behavioral therapy, which provides a variety of psychological tools to assist in recovery and reduce the risk of relapse; tools include skill building, adherence to a recovery plan, group therapy for social reinforcement, and professional/educational outcomes assessment. This is often provided in residential treatment facilities in tandem with medication-assisted treatment; and
  3. Medication-assisted treatment, which involves the provision of various drugs to combat withdrawal symptoms, mitigate cravings, and prevent relapse. Specific to opioid use disorder, there are several drugs involved in MAT:
    • Methadone is a slow-acting opioid agonist, which mimics the effects of opioids, reducing withdrawals and cravings. It is only available at methadone clinics, once daily;
    • Buprenorphine is a partial opioid agonist, which produces similar effects to opioids, but in diminished effect. It is proven to be effective at combating withdrawal symptoms and cravings; and
    • Naltrexone is an opioid antagonist, which does not have the effects of opioid drugs. Naltrexone binds and blocks the opioid receptors, preventing the feeling of getting “high” when users take opioids on the medication. It is available in pill form or a monthly intramuscular injection.

All three treatment options have not been readily available for prisoners, despite evidence that up to half of all prisoners in the federal and state systems meet criteria for substance use disorder. After release, the risk of death is greater than twelve times that of other individuals, mostly due to drug overdose. One study conducted in North Carolina found that former inmates had a 40 times greater risk of opioid overdose death than the general population, in large part due to low tolerance due to forced withdrawal during incarceration.

Solitary Confinement of Juveniles

Attempts to understand the immediate and long-term psychological impact of solitary confinement date as far back as the practice itself (to the mid-nineteenth century). From then to now, psychology and neuroscience studies have repeatedly pointed to the negative effects of this practice on the human psyche.

The brain engages in a process known as neuroplasticity, which refers to alterations in the structure and functioning of brain circuitry in response to outside stimuli. This allows neural connections to form or alter (i.e., adapt) in response to the surrounding environment.  One particularly plastic region of the brain is the hippocampus; severe stress is known to reduce the region's plasticity potential, which can lead to a decline in perception and memory. Notably, some studies indicate that isolated rats have brains with altered neuronal populations and properties — particularly in the hippocampus and cerebral cortex which are two areas involved in perception, memory, and executive function.

Studies using electroencephalography (EEG) — a neuroimaging technique used to monitor the brain’s activity — have shown that just a few days of solitary conditions can cause prisoners to reach more slowly to stimuli and experience an increase in confusion and “mental fog”. Another study indicates that former prisoners subjected to solitary confinement have a two and half time increase in prevalence of post-traumatic stress disorder (PTSD) compared to prisoners without a history of solitary confinement. Alongside PTSD, psychologists frequently bring up other resulting symptoms: anxiety, paranoia, deficient impulse control, memory deficiencies, concentration issues, and hypersensitivity to external stimuli. Self-harm is prevalent in prisons, and half of all successful prison suicides occur among those in solitary confinement. Evidence suggests that humans, like all mammals, have a fundamental need for belongingness and social connection; this need is deprived in solitary confinement conditions.

There are limited data available regarding the exact impact of solitary confinement on the developing adolescent brain, but it is hypothesized to be even more consequential than the impact of these conditions on the developed adult brain. The American Civil Liberties Union (ACLU) and Human Rights Watch released a report in 2012 listing the following psychological and physical harms related to youth solitary confinement: anxiety, rage, insomnia, self-harm, suicidal ideation, PTSD, inadequate exercise, stunted growth, educational impairment, and hallucinations. 

Scientific Assumptions

Opioid and Heroin Abuse Treatment

  • MAT is a promising treatment plan for opioid abuse in prisons (Section 607(a)): Researchers have thoroughly investigated the benefits of various medications in the treatment of opioid withdrawal and maintenance, and there is general consensus in support of these modes of treatment.  

Solitary Confinement of Juveniles

  • The effects of solitary confinement are harmful on juveniles (Section 613): Researchers have thoroughly investigated the harmful effects of solitary confinement on juveniles, and there is general consensus opposed to the practice.
  • Solitary confinement does not reduce an inmate’s risk of harming themselves or others (Section 613 (5043) (b) (2)): Few studies exist on the exact link between risk of harm and solitary confinement.

Relevant Experts

Nicole Schramm-Sapyta, Ph.D. 

  • Schramm-Sapyta, Nicole, Q. David Walker, Joseph M. Caster, Edward D. Levin, and Cynthia M. Kuhn. 2009. “Are Adolescents More Vulnerable to Drug Addiction Than Adults? Evidence from Animal Models.” Psychopharmacology 206(1): 1 – 21. doi: 10.1007/s00213-009-1585-5

The Debate

Scientific Controversies / Uncertainties

There is not much scientific debate regarding the effects of evidence-based opioid abuse treatment and solitary confinement. Any stance in opposition to scientific consensus typically centers around moral rather than scientific arguments. For example, opponents of MAT in prisons do not argue about the effectiveness of treatment, but rather about the moral argument on whether prisoners deserve treatment. Similarly, proponents of solitary confinement do not deny the practice’s harmful psychological effects, but rather consider them necessary to proper prison conduct. One study conducted in the Colorado Department of Corrections found improvement in psychological well-being for those in solitary confinement, but some voiced concerns about the methods used in the research.

Endorsements & Opposition

  • Senator Cory Booker (D-NJ), press release, December 18, 2018: “Our country’s criminal justice system is broken – and it has been broken for decades. You cannot deny justice to any American without it affecting all Americans. That’s why the passage of the First Step Act tonight is so meaningful”
  • Senator Chuck Grassley, personal blog, December 20, 2018: “The reforms in the First Step Act will reduce the tax burden, help law enforcement fight crime, stop the revolving prison door, and give nonviolent, low-risk inmates a head start on a fresh start”
  • Thomas Hodgson (on behalf of 56 sheriffs from 34 different states), press release, November 29, 2018:  “We applaud President Donald Trump’s efforts to advance an initiative that channels inmates to responsibly prepare for reentry into our communities. As a pro-law and order president, he recognizes that one of the greatest contributions to public safety is to have more inmates leave prison with more life skill tools.”
  • Van Jones (leader of the Cut50 organization), CNN interview, December 21, 2018: “This is history.”
  • The Leadership Conference on Civil and Human Rights, statement, July 8, 2018: “Any effort to pass prison reform (or ‘back-end’ reform) legislation without including sentencing reform (or ‘front-end’ reform) will not meaningfully improve the federal system.”
  • Senator Ben Sasse (R-NE), press release, December 17, 2018: “While this Sentencing Reduction Bill does some good things for nonviolent inmates, as written it will also release thousands of violent felons very early.”

Potential Impacts

It is important to note that the First Step Act only affect federal prisons, which house approximately 11% of the total US prison population.

The Brennan Center for Justice states that the First Step Act will “reduce the number and amount of people in prison…and improve conditions for current prisoners.”

Many experts claim that the biggest impact of this bill is to signal that the issue of mass incarceration attracts bipartisan support and that it “is intended as a stepping stone to larger reforms.”