Category: Criminal Justice

Background

What is contraception?

Reproductive health access has been a consistent topic in American politics since the Supreme Court’s recent Dobbs v. Jackson decision, which overturned the constitutional right to an abortion established in Roe v. Wade. One aspect of this debate is the right to contraception, which was first affirmed through Griswold v. Connecticut in 1965. The landmark case concluded that states cannot make contraception illegal. However, the contraception regulation debate is complicated due to disagreements over what constitutes abortion in post-Dobbs America. In fact, Justice Clarence Thomas wrote in his Dobbs opinion that SCOTUS “should reconsider” other cases decided by the same clause as the overturned Roe v. Wade, including Griswold v. Connecticut.

Contraception is defined by the medical and scientific community as the intentional prevention of pregnancy through the use of devices, drugs, sexual methods, and surgical procedures. Contraception is also referred to as birth control and is different from abortifacients, which are substances that lead to abortion. The medical community defines pregnancy as a fertilized egg that is implanted into the uterus. By these definitions, abortion involves the detachment of a fertilized egg from the uterine wall to end a pregnancy, while contraception involves methods to prevent pregnancy (the attachment of a fertilized egg to the uterus).

Introduction to Contraceptive Access Debate

In response to increased debates on reproductive healthcare access since the Dobbs decision, the Biden-Harris administration passed an executive order to “strengthen contraceptive access.” The order builds on the existing contraception mandate of the Affordable Care Act, which guarantees that health insurance plans must cover contraceptive methods and counseling. In addition, the Department of Health and Human Services’ Title X program provides grants to health clinics for affordable and confidential birth control access. 

Still, some state laws and policy recommendations blur the line between birth control methods and abortions, with some categorizing birth control as abortifacients. For example, Missouri defines abortion as the intentional termination of a pregnancy. However, because the ban does not define pregnancy, the law could be interpreted as a ban on anything that prevents the implantation of a fertilized egg into the uterine lining, including emergency contraceptives. As a result, a health system in Missouri initially stopped providing the emergency contraceptive Plan B after the state outlawed abortion. According to health tracking polls, 73% of Americans incorrectly believed emergency contraceptives like Plan B were abortifacients. Since these varied interpretations of birth control in post-Dobbs America have opened the door for states to restrict access to birth control, some believe that the right to contraceptives should be codified in federal law. In May 2024, Congress introduced the Right to Contraception Act to solidify a national right to contraceptive access and standardize definitions of birth control, abortifacients, and pregnancy. While the act did not pass through Congress, the right to contraception remains a debated topic as the 2024 election approaches.

Arguments For Federally Codifying Contraception Access

Proponents of contraception access cite the public health benefits of readily available and accessible contraceptives. They stress that barrier methods of birth control like condoms are important in preventing the spread of STDs. Proponents also point to evidence that increased availability of contraceptives is linked to lower rates of HIV transmission, better maternal health, and decreased pregnancies in children and older women who would otherwise experience health complications. In addition to public health benefits, some argue that birth control assists in public savings associated with the prevention of unintended pregnancies. According to the Guttmacher Institute, an estimated $7.7 billion of total net savings was attributed to public clinics providing birth control, with an estimated $4.83 in savings for every public dollar invested in contraceptive and family planning services.

Proponents also argue that access to contraceptives will reduce the need for women to seek abortions. One Washington University study explained that the majority of unplanned pregnancies in the US result from a lack of correct contraceptive use. It showed that birth control can reduce the rates at which people seek abortion by 68-72%. Moreover, seeing as unsafe abortions are one of the leading causes of maternal mortality, some argue that contraceptive access is crucial for safeguarding women’s health in a post-Dobbs world.

Other proponents of protecting contraception access point to precedent court cases that establish the right to contraception. In addition to Griswold v. Connecticut, Eisenstadt v. Baird (1972) expanded the right to contraception to unmarried individuals and Carey v. Population Services International (1977) ruled that minors have a constitutional right to contraception. Due to these precedent cases and aforementioned public health arguments, proponents believe that it is permissible to establish a national right to contraception via federal law.

Arguments Against Federally Codifying Contraception Access

Some opponents of federally codifying contraception access argue that doing so would encroach on states’ right to restrict abortion. As shown in national polls, many Americans define abortion as the prevention of a likely pregnancy, and therefore believe that emergency contraceptives are abortifacients. Many religious groups similarly believe that life begins at conception, and thus have moral concerns with emergency contraceptives. They argue that by introducing legislation like the Right to Contraception Act, which defines abortion more narrowly, Congress would encroach on states’ rights to regulate and restrict abortion as they define it. For example, some members of Congress opposed the Right to Contraception Act because they believed it would lead to abortion drugs such as mifepristone being available in all states. 

Those who oppose a federal right to contraception also point to the religious right to refuse compliance with certain laws and mandates. In the 2014 SCOTUS case Burwell v. Hobby Lobby Stores, the court ruled that it was lawful for private employers with religious objections to deny health coverage for contraception, despite the Affordable Care Act contraception mandate. In 2017 and 2018, the Trump Administration further regulated contraceptive access by issuing refusal laws that allow employers and universities to deny insurance coverage of contraceptives on the basis of moral and religious objections. The Biden-Harris executive order on contraceptives in 2023 removed the moral exemption, but the religious exemption remains. Opponents to federally codifying the right to contraception argue that removing the religious exemption would limit freedom of religion for institutions founded on religious beliefs. 

Conclusion

In summary, the debate over the right to contraception highlights deep divisions regarding the definition of abortion and concerns about states’ rights. As the 2024 election approaches, the future of contraceptive access in America remains uncertain, with ongoing discussions about its moral, legal, and public health implications.

Background and Introduction

In 2021, Medicare accounted for $900 billion, or 21% of U.S. healthcare spending, making it a critical revenue source for hospitals. The way Medicare reimbursements are governed is a contentious issue, particularly due to the significant impact on rural hospitals, which often receive lower payments for their services. A key factor in determining these payments is the wage index, which assesses a hospital’s labor costs relative to the average income in its surrounding area. A hospital with a wage index above 1.0 receives reimbursements higher than the national average, while one with a wage index below 1.0 receives less.

Furthermore, Medicare operates under a principle of budget neutrality, meaning any changes to its reimbursement policies must not result in increased overall spending. This requirement implies that increasing reimbursements for rural hospitals would necessitate reductions for others, deepening divisions within the healthcare community over how Medicare funds are allocated.

Rural Hospitals in the U.S. and the Save Rural Hospitals Act

In the U.S., rural hospitals serve 14% of the population, or 46 million Americans. These hospitals are often in a precarious financial situation; from 2010 to 2021, 136 rural hospitals closed either partially or fully, exacerbating the shortage of healthcare services in rural areas. Currently, an additional 600 rural hospitals are at risk of closing. A major factor contributing to this financial instability is low Medicare reimbursements coupled with a scarcity of patients who have private insurance, which generally pays more than Medicare. The core issue lies in the wage index system used by Medicare, which often results in lower reimbursements for rural hospitals because they are typically located in areas with a low wage index. This discrepancy means that the cost of providing services often exceeds the reimbursements these hospitals receive, leading to financial losses.

To address this critical situation, the Save Rural Hospitals Act has been proposed. This legislation aims to adjust the wage index by setting a minimum threshold of 0.85, ensuring that even the hospitals in the poorest regions receive sufficient revenue to maintain their operations. This change could be pivotal in preventing the closure of over 200 rural hospitals in the coming years.

Increasing Medicare reimbursements to rural hospitals presents a complex challenge, particularly because Medicare operates under a budget-neutral framework. This means any increase in payments to one group must be offset by a decrease to another, making it difficult to boost funding for rural hospitals without affecting others negatively.

For instance, the Save Rural Hospitals Act proposes increasing the minimum wage index to 0.85 for rural hospitals. While this would provide much-needed support to these facilities, the funds would need to be redirected from hospitals with a wage index above one, many of which are urban hospitals that also face significant financial pressures. Urban safety net hospitals, which were severely impacted during the COVID-19 pandemic with rising expenses and financial losses, would be particularly affected.
Reallocating Medicare funds is highly contentious, especially among hospitals in wealthier areas that would stand to lose funding. Legal challenges like the case of Bridgeport Hospital et. al. v. Becerra, where hospitals successfully sued over reductions in Medicare reimbursements, illustrate the resistance to such changes. Additionally, as former Wisconsin Senator Herb Kohl pointed out, the budget neutrality of the bill means that any benefit to one state comes at the expense of another, complicating the legislative process and making it difficult to pass reforms that could help disadvantaged or rural areas without harming others. This dynamic creates a significant barrier to reforming Medicare payments in a way that equitably supports all hospitals.

What is The HOPE Act 2023

The Harnessing Opportunities by Pursuing Expungement (HOPE) Act of 2023 is a legislative proposal aimed at addressing the challenges faced by individuals with state cannabis offenses on their criminal records. The HOPE Act authorizes the Department of Justice (DOJ) to make grants to states and local governments to reduce the financial and administrative burden of expunging convictions for state cannabis offenses. This bill is designed to help clear cannabis convictions from millions of Americans’ records, allowing people to regain access to essential employment, housing, loans, and more. The Act is a bipartisan effort spearheaded by Representatives David Joyce (R-OH) and Alexandria Ocasio-Cortez (D-NY).

What does The HOPE Act 2023 do?

The HOPE Act of 2023 is legislation that seeks to transform the landscape of cannabis policy in the United States. Furthermore, it mandates a study by the DOJ on the impacts of a cannabis-related criminal record and the costs of related incarcerations. Lastly, the reintroduction of the HOPE Act could influence political discourse and policy decisions surrounding such as cannabis policy crime reform, voting behavior, and healthcare and social service policies, in the 2024 election cycle, fostering a platform for diverse opinions.

Argument for The HOPE Act 2023

The HOPE Act seeks to expunge cannabis convictions, thereby addressing systemic flaws such as racial disparities, collateral consequences, and inefficient use of resources in the criminal justice system. As many employers conduct background checks, employers may be hesitant to hire someone with a criminal record. Similarly, housing applications often require background checks, and a criminal record can lead to denial of housing.  Individuals with cannabis convictions often find themselves trapped in a cycle of poverty. The HOPE Act aims to break the cycle by incentivizing states to expunge cannabis convictions. Additionally, the Act encourages broader cannabis reform, fosters opportunities for reintegration, and removes barriers to socioeconomic prosperity. 

Economically, the Act aims to empower individuals by removing employment and housing barriers associated with cannabis convictions. This is particularly significant considering the estimated $78 to $87 billion annual GDP loss attributed to the workforce exclusion of individuals with cannabis convictions. Furthermore, the Act seeks to make the expungement process more efficient by providing federal grants to states, which will provide financial aid from the federal government to state governments to support specific programs or initiatives.

The HOPE Act also represents a shift in cannabis policy, reflecting the growing public support for cannabis legalization, with 70% of U.S. adults favoring legalization in 2023. Over time, there has been an increased acknowledgment of the potential therapeutic uses of cannabis, which has contributed to shifting attitudes. Concurrently, there has been a growing awareness of the societal and racial disparities that have arisen from the enforcement of cannabis-related laws. 

 The HOPE Act represents an effort to align federal law with these changing societal perspectives by encouraging states to expunge cannabis convictions, not only recognizing the shifting attitudes towards cannabis but also addressing the historical consequences associated with cannabis-related convictions. In essence, supporters argue that the HOPE Act of 2023 represents a comprehensive approach to cannabis reform, addressing both social justice and economic considerations in its provisions. 

Argument Against The HOPE Act 2023

The HOPE Act of 2023 has been met with various criticisms, many of which prioritize other pressing issues over cannabis reform. For instance, the ongoing opioid crisis, particularly the proliferation of fentanyl analogs, is viewed by some as a more immediate concern that requires urgent attention. Opponents believe the urgency and severity of the opioid crisis demand  immediate and undivided attention. Critics argue that the resources and time spent on cannabis reform could be better utilized to combat the opioid epidemic, which is causing widespread harm and loss of life. In 2020, nearly 75% of the 91,799 drug overdose deaths involved an opioid. The number of drug overdose deaths increased by more than 16% from 2020 to 2021. They contend that while cannabis reform is important, it does not present the same level of immediate danger as the opioid crisis, and thus, should not be the primary focus at this time. The crux of the argument is not about the inability to multitask, but rather about prioritizing resources and attention based on the severity and immediacy of the issues at hand.

Additionally, the complexity of comprehensive cannabis legislation is highlighted by the crowded landscape of cannabis reform bills, suggesting that achieving comprehensive reform may be more challenging than initially anticipated. Comprehensive reform is not just about reaching a consensus on the need for reform, but also about navigating the intricacies of differing viewpoints, reconciling conflicting interests, and crafting legislation that can garner sufficient support to pass. The HOPE Act exemplifies those factors by acknowledging the need for cannabis conviction reform, navigating bipartisan viewpoints, reconciling interests of criminal justice and cannabis offenses, and crafting a bill that offers federal grants to states for expungement, balancing state rights and reform support. 

Following this, another layer of complexity involves the financial system and social equity objectives. This includes considering how the economic system will adapt to a legal cannabis market, and how to ensure that the benefits of this market are equitably distributed. Critics also argue that some legislation appears to prioritize financial system concerns over social justice issues, potentially undermining the social equity objectives of cannabis reform. This is further complicated by the general stigma tied to cannabis reform, which continues to influence public and political opinion. The multitude of layers involved in the process amplifies the complexity of implementing the HOPE Act.

Indeed, some leaders advocate for maintaining marijuana’s status as a Schedule I substance under the Controlled Substances Act. This classification indicates that marijuana is considered to have a high potential for abuse and has no currently accepted medical use in treatment in the United States. These leaders emphasize that any changes to its classification should be based on rigorous scientific evidence.

Concerning the HOPE Act, this stance presents a significant challenge. The Act’s objective to expunge cannabis offenses and promote social equity is in direct contrast with the Schedule I classification of marijuana. If marijuana remains a Schedule I substance, the social justice goals of the HOPE Act could be hindered, as the classification maintains the criminalization of marijuana at a federal level. Therefore, the debate around marijuana’s classification directly impacts the potential effectiveness and implementation of the HOPE Act.

Conclusion

As the discourse around cannabis reform continues to evolve, the HOPE Act underscores the importance of a balanced, evidence-based approach that considers both the societal implications and the individual impacts of cannabis-related offenses. Regardless of one’s political affiliation, the Act invites a broader conversation about the future of cannabis policy in the United States.

Background on Reproductive Freedom 

The history of reproductive rights in the United States has been shaped by legal debates, societal perception, and ongoing conversations about autonomy and morality. Roe v. Wade, a landmark 1973 Supreme Court decision, legalized abortion nationwide by establishing a constitutional right to privacy in pregnancy decisions. In 2022, the Supreme Court heard Dobbs v. Jackson Women’s Health Organization, a case centered on a Mississippi law banning most abortions after 15 weeks of pregnancy. It gained widespread attention as the Court reconsidered the scope of abortion rights. Ultimately, the Supreme Court upheld Mississippi’s law, which weakened the precedent set by Roe v. Wade. This decision has allowed many states to overturn formerly protected reproductive healthcare services, creating variation in what is legally protected and accessible across the United States.

Introduction to the Reproductive Freedom for All Act

The Reproductive Freedom for All Act originated to protect reproductive rights by ensuring that all individuals, regardless of geographic location have access to comprehensive reproductive health services. The bill can be broken down into four parts:

1. Contraceptive Access: States cannot prohibit individuals from accessing or using contraceptives or contraceptive care.
2. Undue Burden: States cannot impose undue burdens or excessive obstacles on a woman’s decision to have an abortion before fetal viability.
3. Regulation Post-Viability: After fetal viability, states can regulate abortion. However, an exception will be made if a health care practitioner deems that an abortion is necessary to protect the health or life of the mother.
4. Safety Regulations: States can create reasonable regulations that promote the health and safety of a woman seeking to terminate a pregnancy, as long as these rules are not undue burdens.  

Arguments in Support of the Reproductive Freedom for All Act

Proponents of the bill argue that undue burdens on women limit reproductive freedom and autonomy. Supporters of sex equality “observe that abortion restrictions deprive women of control over the timing of motherhood and so predictably exacerbate the inequalities in educational, economic, and political life engendered by childbearing and childrearing.” Targeted Restrictions of Abortion Providers, sometimes referred to as TRAP laws, create requirements for abortion providers that many believe are designed more to limit access to reproductive health services rather than to genuinely improve patient safety. One example of a TRAP law is the requirement that abortion providers comply with ambulatory surgical center building requirements. Rebuilding clinics to meet these requirements is prohibitively expensive, and, many believe, does not improve health outcomes for patients.

The definition of undue burden remains open to interpretation, and proponents of the Act argue that these burdens are not based on science and cause more strain on overall health and freedom. The aim of this section of the legislation is to remove unnecessary barriers or obligations that inhibit the right to access reproductive care.

Supporters of the Act argue that without federal protections, states will criminalize abortions, affecting not only women seeking to terminate unintended pregnancies but also a diverse range of patients needing medical care for various reasons. Additionally, proponents argue that restricting access to abortion leads to higher rates of unsafe abortion procedures. According to a 2018 study by the Guttmacher Institute, countries with the least restrictive abortion laws had a 1% rate of unsafe abortions, while countries with the most restrictive laws had a 31% rate. Advocates of the Act believe that regardless of the legal status of reproductive services, people will continue to seek out these services, even if it means that birth control or abortions are provided in an unsafe way. Unsafe reproductive services are considered preventable causes for maternal death and physical health risks, and are included in the World Health Organization’s list of essential health care services. 

While some believe that abortion access should be legislated at the state level, others argue that restrictions in some states impact access in other states because people travel across state lines to require healthcare. For example, if New Hampshire bans the procedure but Vermont does not, people are likely to travel from New Hampshire to Vermont, increasing wait times and overwhelming clinic capacities in Vermont. For this reason, many argue that federal protection is required because restrictions in some states affect recipients of abortion services in others. 

Inconsistent laws surrounding reproductive freedom and abortion can place an undue burden on healthcare providers who offer these services. Following the Dobbs v. Jackson Women’s Health Organization decision, states with total abortion bans required clinics to stop abortion procedures. Between 2020 and 2023, the overall number of abortions increased by 11%, and 17% were performed on patients who traveled from out of state to access services. Healthcare providers are now required to navigate evolving legal and medical circumstances and make decisions under uncertain conditions,  increasing their liability. 

Restrictions on reproductive services affect providers in several ways. Staffing sustainability, changes in organization structure, increased workload for certain practitioners, and financial costs all create an increased burden on certain providers. Some argue that restrictions on reproductive freedom will ultimately create systemic inefficiencies that increase waiting times for all patients and increase workload for staff.

Arguments Against the Reproductive Freedom for All Act

Opponents often have religious or moral objections to the nuanced nature of reproductive ethics. Some argue that there are various key features that indicate a fetus is a living being:

• Distinct: “has a DNA and body distinct from parents.”
• Living: “grows by reproducing cells… turns nutrients into energy through metabolism… and can respond to stimuli.”
• Human: “has a human genetic signature.”
• Organism: “is an organism (rather than a mere organ or tissue) [which is] an individual whose parts work together for the good of the whole.”

An embryo has the genetic makeup of a human being, and although immature, some argue that the embryo will grow to develop into a mature human being. Many have religious objections to terminating pregnancies, while others believe that terminating a fetus that has reached viability is akin to extinguishing a human life and should be regulated as such. Actions that limit the potential for life or intentionally terminate a pregnancy, such as contraceptive use or abortion, are considered unjust by some.

What are Prison Nurseries? 

United States prison nurseries are programs within correctional facilities that allow pregnant, incarcerated mothers to keep their infants with them from the child’s birth to the end of their sentence. Located within a separate wing of a prison, the nurseries are subject to decreased security and expanded mobility for inmates. Babies have access to on-site daycare while their mothers work prison jobs, attend school, or undergo rehabilitation. Prison nursery expansion would predominantly impact women who are serving time for non-violent crimes and are due to give birth between 18 months to 2 years before their sentence ends. There are currently eleven active prison nurseries in the United States.

SIMARRA

Due to significant increases in female incarceration rates, the debate surrounding prison nursery expansion is gaining momentum. There are currently over 170,000 women in prison, 58% of whom are mothers, and an estimated 58,000 who are pregnant upon incarceration. In 2021, Texas representative Sheila Lee Jackson introduced the Stop Infant Mortality and Recidivism Reduction Act of 2021 (SIMARRA), which aimed to establish prison nurseries programs in all federal prisons. The proposed legislation ordered mandatory parenting classes and frequent health assessments for participants and their infants. Although the bill died at the beginning of 2023, it left controversy in its wake.

Recidivism Benefits Vs. Constitutional Controversy 

Advocates of prison nurseries often cite decreased rates of recidivism, or the rate of reoffending, as evidence to support expansion efforts. A study conducted in a prison nursery within Nebraska’s Correctional Facility for Women found that over an 18-year period, there was a 28% reduction of recidivism for successful nursery program participants. Compared to mothers who are separated from their children following birth, prison nursery participants often develop strong maternal bonds and a sense of obligation that encourages healthy parenting and discourages reentrance into the criminal justice system. 

However, critics believe that prison nurseries are unconstitutional. Due to the fact that prison nursery expansion would only extend to female correctional facilities, some argue that it violates the Fourteenth Amendment by discriminating against incarcerated men. Furthermore, since infants and toddlers cannot cognitively make choices in their best interest, nor vocalize their desire to leave a facility, some believe that the programs are in violation of a child’s due process rights. Finally, a rigid selection process inhibits most qualified pregnant women from participating in the prison nursery programs. Therefore, while some women are given the opportunity to serve their sentence in close contact with their child, others face forced, and often permanent separation from their infant. The discrepancies between prisoner treatment are often considered unethical.

Cognitive & Emotional Benefits vs. Psychological Uncertainties

Mother-child attachment fostered in prison nursery settings has been found to yield positive and lasting psychological effects for both infant and incarcerated mother. A study conducted in New York State’s Bedford Hills prison nursery tracked the preschool outcomes of children after prison nursery completion. Research found that there are positive or neutral short-term developments in motor-skills and cognitive growth. Compared to infants separated from their mothers at birth, children raised in prison nurseries have been more likely to develop secure attachment, which results in better mental and emotional health, maintenance of strong relationships, and a decrease in one’s likelihood to engage in delinquent behaviors in the future. 

Nevertheless, critics note that early childhood development in a correctional facility produces stress for infants, which can lead to trauma. For example, some mothers drop out of prison nursery programs electively due to the pressures of raising a baby in restrained conditions, while others are expelled due to violations of rules. The repercussions of failed participation often instills lifelong feelings of dejection for children who are separated from their mother after initial bonding. Deborah Jiang Stein, an author who spent her first months in the Federal Prison Camp in West Virginia, was removed from her mother after a year in the prison nursery program. She attributes her frequent sensations of internal displacement with the separation and her subsequent time in foster care. Due to high rates of eventual and often abrupt mother-child separation during or after completion of prison nursery programs, some argue that immediate separation of the mother and child after birth is psychologically healthier for the infant.

Financial Advantages vs. Mother-Child Best Interest

Familial and personal challenges lead many incarcerated women to place their infant into the child welfare system. However, due to the oversaturation of the United States foster care system, supporting children in prison nursery programs is financially less expensive. Low prison nursery recidivism rates indirectly cause a decrease in spending on the prison system and child welfare programs. One study found that in West Virginia, prison nursery programs save the state $1,000 per child, per month and in Nebraska, the state saves an average of $17,500 per child, per year. No prison nursery has exceeded the cost of any other child welfare alternative.

Despite the financial draws, critics claim that prison nurseries are not always in the best interest of all mother-child pairs. Today, incarcerated mothers must undergo an application process within their correctional facility to earn a place in the prison’s nursery program. However, there is no individual legal proceeding that determines whether a nursery program is the best option for a particular child. For example, professor, author, and legal scholar James Dwyer argues that prison nurseries have not been proven, beyond a reasonable doubt, to be better than any other “non-incarceration placement alternative.” Options including adoption, which often allow for the development of a relationship between a biological mother and her child, have not been proven by the state to be inferior to prison nursery programs. Without an individual evaluation of each child, some believe that prison nurseries are impeding infants’ rights to freedom and liberty.

Conclusion

The debate surrounding prison nurseries is projected to increase as rates of female incarceration in the United States grow. While research on the topic of prison nurseries in the United States is considered less populous than research on other criminal justice issues, new policies are increasing discussion surrounding the prison programs. It is expected that legislation like SIMARRA will be prominent in national discourse surrounding future criminal justice reform policies. Ultimately, the path forward is dependent on deciding whether prison nursery programs should be federally mandated and controlled, or if their establishment and maintenance should remain in the hands of individual prison facilities.

The First Step Act

The First Step Act is a bipartisan piece of criminal justice legislation signed into law in 2018, aiming to reduce crime while giving… citizens a chance at redemption.” The First Step Act (FSA) requires the Attorney General (AG) to develop a system for the Bureau of Prisons to assess the recidivism risk and criminogenic needs of all federal prisoners. The system should also place prisoners in recidivism reduction programs and productive activities to address their needs and reduce this risk. The program aims to promote good behavior, educational training, and fair supervision of prisoners by correctional officers in order to obtain an early release from a prison sentence, and lower the recidivism rates of incarcerated individuals in the United States. 

Originally drafted and proposed in early 2018, the First Step Act was created as “new age” legislation after the Second Chance Act of 2007. A bipartisan House coalition approved the bill, and it received substantial support from both parties.

Arguments in Favor of the First Step Act

One major change is the expansion of opportunities which facilitate transition back into society. Inmates are incentivized to participate in these programs because class attendance counts as good behavior and leads to a reduction in sentence length. Eligible inmates can earn 10 to 15 days of time credits for every 30 days of successful participation in Evidence Based Recidivism Reduction Programs and Productive Activities. Supporters argue this policy benefits society as a whole. Inmates receive vocational, educational, and mental training, so they are equipped to succeed. Employers have access to trained and skilled future employees.

The First Step Act is also praised for guaranteeing protection from cruel and unusual punishment from correctional staff. The FSA requires the Bureau of Prisons (BOP) to provide training to correctional officers and other BOP employees (including those who contract with BOP to house inmates) on how to de-escalate encounters between an officer or employee of BOP and a civilian or an inmate, and how to identify and appropriately respond to incidents that involve people with mental illness or other cognitive deficits. Supporters believe that this step will control the behavior of inmates while incarcerated, further promoting good time provisions and mental well-being of inmates before potential release. With increased reformed control within prisons, it is argued that rehabilitation of inmates would be an easier process.

Arguments Against the First Step Act

Some voters argue that the FSA was adopted under a misguided approach to reforming our federal justice system. Many who oppose the First Step Act argue that, despite good intentions, it is dangerous to release prisoners back into society without a full prison sentence, and rush rehabilitation. A community impacted by a specific prisoner may be upset to learn they will be released into society sooner than expected. This can cause panic and fear in affected victims, and create the feeling that justice was not served. While supporters argue that recidivism training classes should reduce community concerns and allow eligible inmates time credits, others argue that prisoners convicted of a crime must meet the mandatory minimum of a sentence before time credits can be obtained from recidivism classes or good outstanding character. These citizens argue meeting a mandatory minimum of a sentence would ensure the prisoner would face the consequences of their actions under law; therefore, the prisoner would not be eligible to receive time credits until the minimum sentence under law has been fulfilled—ensuring the safety of communities, and correct punishment has been enforced.

Moreover, some have raised concerns about how the First Step Act will affect minority communities. The bill faced backlash because it only applies to citizens—temporary or permanent residents who have not been naturalized are excluded. Many believe this two-tiered system indicates that immigrants do not deserve the same humane treatment within the criminal legal system. In addition, some risk assessment tools used to assess recidivism have been found to have a racial bias. For example, the risk assessment tools applied in sentencing decisions in Florida—meant to predict recidivism—were twice as likely to be wrong when evaluating Black people as White people. Under the FSA, risk assessment tools may bias by racial evaluations based on specific crime, location, and time credit handouts under the FSA’s reformed time credit policy.

The First Step Act TodayAs of March 2023, there still is no clear direction on the calculation of time credits or policy change, and the frustration has grown among prisoners and families who are anxiously waiting on a determination of when a federal prison term will end. The First Step Act has barely been enforced by the Bureau of Prisons, and the BOP director has changed guidelines around how time credits can be used and obtained for prisoners. Families, prisoners, and lawmakers have become increasingly upset with the lag in legislation implementation. When time credit guidelines are changed, it becomes challenging for both prisons and incarcerated individuals to calculate remaining sentences.

What is the Medicaid Reentry Act?

The Medicaid Reentry Act is a proposed amendment to Medicaid law, designed to enhance healthcare access for incarcerated individuals, especially during their transition back into society. This legislation addresses healthcare disparities and improves health outcomes for a population often facing socioeconomic vulnerability.  For example, despite approximately 58% of incarcerated adults meeting clinical criteria for drug dependence or abuse, less than 30% receive any drug-use treatment while incarcerated. The Act seeks to bridge this gap in healthcare provision.

What does the Medicaid Reentry Act do?

The Medicaid Reentry Act, introduced as a bipartisan effort by Senators Tammy Baldwin of Wisconsin and Mike Braun of Indiana, targets the reduction of drug overdoses and recidivism post-release from prison. Recidivism, the tendency for convicted individuals to re-offend, is a pressing issue in our justice system. This Act addresses it by providing healthcare services during the crucial reentry period post-incarceration, aiming to break the cycle of recidivism.

The Act proposes reinstating Medicaid benefits for eligible individuals 30 days prior to their release to avoid coverage gaps. Immediate access to healthcare upon release can help manage chronic conditions and mental health issues, thereby reducing overall illness rates. Additionally, it facilitates access to substance use disorder treatments, lowering the risk of overdose deaths. The Act aims for improved health outcomes and cost-effective healthcare.

Its discussion in the context of the COVID-19 pandemic, the drug overdose crisis, and structural racism highlights its potential positive impact on healthcare services for eligible incarcerated individuals. This is especially relevant given the high rates of chronic diseases, mental illness, and substance use disorders among the incarcerated population.

Arguments for The Medicaid Reentry Act:

The Medicaid Reentry Act is a significant piece of legislation aimed at improving the reintegration of individuals after incarceration by addressing healthcare transitions. It recognizes the crucial role of health coverage, care, and medication during reentry, focusing on effective state and local practices to connect returning individuals with healthcare services.

One key aspect of the Act is granting states the flexibility to reinstate Medicaid benefits before release, ensuring a smooth transition and immediate healthcare support upon reentry. Supporters of the Act highlight its importance, noting that individuals reentering society are 129 times more likely than the general population to die from a drug overdose in the first two weeks post-release. The Act prioritizes streamlined access to addiction treatments, thereby reducing the risk of post-release overdose deaths—a critical concern given the higher prevalence of substance use disorders in correctional facilities. By providing thirty days of Medicaid coverage before release, the Act aims to improve access to quality healthcare, promoting successful reintegration for individuals in jails, prisons, and juvenile detention centers.

Supporters of the act recognize that the majority of incarcerated individuals will eventually reintegrate into society, highlighting the importance of uninterrupted health coverage. This approach aims to improve health outcomes, leading to better employment opportunities, housing stability, and family support, potentially reducing recidivism and the financial burden of repeated incarcerations.

The policy is aligned with data demonstrating that expanding eligibility for public assistance programs such as Medicaid can have positive impacts on incarcerated individuals’ health, economic well-being, and crime-related outcomes. Expanded Medicaid eligibility in certain healthcare policies can increase access to treatment for conditions that may enhance employment prospects and reduce the risk of reoffending.

Arguments against the Medicaid Reentry Act:

Opponents of the Medicaid Reentry Act argue that the legislation could contribute to the national debt, especially in the current inflationary environment and amid ongoing concerns about the impact of the latest coronavirus variant. They point to the Medicaid Inmate Exclusion Policy, which prohibits the use of federal Medicaid funds for healthcare services provided to inmates of a public institution, as a key factor in the financial strain on counties. This policy shifts the responsibility of covering medical costs for incarcerated individuals to local budgets. Opponents are concerned that passing the Medicaid Reentry Act under this regulation could exacerbate financial strain on local budgets.

Critics raise concerns about Medicaid enrollment declines in states not expanding, especially in Republican-led areas. The absence of consistent standards for accrediting correctional medical services under Medicaid leads to care quality issues. The Act’s effectiveness in jails, where discharge timing is uncertain, may be limited. Medicaid’s dual role as healthcare and a federal grant system raises worries about unequal benefits favoring wealthier states. The removal of Medicaid continuous enrollment may impact the Act’s effectiveness. 

Research on state-driven Medicaid changes shows mixed results on recidivism. Fast-tracked Medicaid enrollment for individuals leaving prisons with serious mental illness increased usage but didn’t lower recidivism rates after twelve or thirty-six months. This raises doubts about Medicaid expansion’s effectiveness in this regard.

Conclusion

The Medicaid Reentry Act aims to improve healthcare for individuals post-incarceration, potentially reducing recidivism. However, concerns exist about financial strain on local budgets, inconsistencies in correctional medical services, and the Act’s effectiveness in jails due to uncertain discharge timing. The debate underscores the complexity of healthcare policy in the context of incarceration and reentry, highlighting the need for careful consideration of both the benefits and potential drawbacks of such legislation.