Congress Helped Thousands of People Get Out of Prison Early. But Many of Them Will Probably Be Deported Right Away.

How the First Step Act fails immigrants.

In this undated photo, immigrants walk to hearings at the Stewart Detention Center in Lupmkin, Georgia. Jeremy Redmon/Atlanta Journal-Constitution/AP Photo

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.

After months of anticipation, about 3,000 people will be released early from federal prisons on Friday as part of the First Step Act, a bipartisan law that reformed federal sentencing and prison conditions. It’s the biggest release yet since the law was signed in December. President Donald Trump has applauded it as an example of his commitment to second chances for the incarcerated. 

But not everyone in this group will get to go home. Roughly a quarter of them are not United States citizens, and many will instead be sent straight to immigration detention to face deportation proceedings, which could take years.

“Folks sadly may be thinking, ‘Oh, I’m going to be released, I’m going to go home and be with my family again,’ and many of them will probably be surprised to learn that that’s not actually the case,” says Iliana Holguin, a Texas-based attorney who is a board member with the National Immigration Project of the National Lawyers Guild.

The people looking forward to early release are getting out because they earned credit for good behavior while behind bars. The Bureau of Prisons was previously giving people 47 days off their sentence per year of good behavior, but the First Step Act stipulated that people can shave off 54 days per year instead. That change applied retroactively but was not implemented until this week, a delay that frustrated prisoner advocacy organizations, as I’ve previously reported. In addition to the people released this week, at least 1,023 others have already had their sentences shortened because the law retroactively reduced a disparity between crack and powder cocaine sentences.

The roughly 750 noncitizens who will be released Friday will likely include both undocumented people and permanent residents with green cards, some of whom may have lived in the country for years with family members who are US citizens. Following standard procedure, many will be immediately transferred to an immigrant detention facility, at which point they can attempt to request bond, though it is typically denied to people who have been convicted of crimes.

According to immigration attorneys, some of these people, including green card holders, will be eligible for an immigration hearing, where they can try to build a case for why they should remain in the United States. But many of them, especially undocumented people convicted of certain felonies, will be fast-tracked through the system and prepared for immediate deportation. Others who received removal orders during their incarceration can also be deported right away.

The large number of noncitizens in the group is not unusual. As the Marshall Project points out, about a fifth of all federal prisoners were born in another country. Of these, nearly half are incarcerated for drug trafficking or related offenses, and more than a quarter are incarcerated for immigration offenses. In fact, the majority of all federal prosecutions are for immigration-related crimes, especially for illegal entry or reentry. That was true under the Obama administration, too, but it’s been amplified by the Trump administration’s zero tolerance policy, which results in immediate federal prosecution for people crossing the border without documentation. 

The fact that so many people will be funneled straight from prison to yet another form of detention is a reminder that the First Step Act, the first major criminal justice reform bill to pass Congress in a generation, was limited in scope and largely left immigrants behind. “This was a bipartisan effort,” says Rose Cahn, an attorney at the Immigrant Legal Resource Center, and both sides agreed “to essentially throw noncitizens under the bus.”

The First Step Act was opposed by some immigrant rights groups, including the Immigrant Legal Resource Center. The law encourages prisoners to participate in rehabilitative programs like drug counseling and job training by allowing them to earn extra time in halfway houses or home confinement if they do. But immigrants who committed certain offenses like illegal reentry are among a list of prisoners who are barred from earning this benefit. Some immigrants convicted of different crimes can ask to be included, but only if they first agree to begin immigration court proceedings and make it through without a deportation order, according to Alisa Wellek, executive director of the Immigrant Defense Project. Their odds aren’t great, given the difficulty of getting an attorney in these Institutional Hearing Program courts, which are housed within the prison system. In the last fiscal year, only 4 percent of people who went through these courts had attorneys, according to Justice Department data. Of those who didn’t, 97 percent were deported.

Even before the law passed, federal prisons barred undocumented immigrants from spending any of their sentences in halfway houses or home confinement, and blocked them from most prison rehabilitative programs. Immigrant rights groups had hoped lawmakers would reform these rules as part of the First Step Act, but Republicans were opposed, says Cahn, and Democrats, trying to compromise, agreed not to press for these changes. Now the rules, which were once just internal policies of the federal prison system, are codified into law.

“Allegedly the First Step Act is based on this notion that people should be defined by more than the biggest mistake they ever committed, that people should be entitled to redemption, but there’s this caveat,” Cahn says. “If you’re not a US citizen, then you’re excluded from this notion of second chances.”

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate