Separating Facts from Fiction on the First Step Act

In the wake of news that President Trump is in full support of prison reform legislation not only as it passed the House of Representatives in May but also now as it is being considered in the Senate with added sentencing reforms, opponents of this bill, though few, have been quite loud.

Opponents have several reasons for crying out against the effort, which include disingenuous calls for delaying the process alongside outright misinformation and, at times, blatant lies. The common theme is their intention to mislead and scare supporters away from the bill. Opponents constantly move the goalposts on their supposed concerns. They try to confuse the unaware in an effort to convince them that a bill which has the backing of conservatives in the House and the Senate, multiple law enforcement groups, nearly every conservative group in Washington and many state level groups, and President Donald Trump is soft on crime and threatens public safety.

Nothing could be further from the truth. Some of the chief arguments put forth by opponents of the FIRST STEP Act in the House and the First Step Act in the Senate are outlined and debunked as follows:

Fiction: The FIRST STEP Act was rushed through the House without a hearing or score.

Facts: The topic of prison reform has been debated by the House Judiciary Committee for many years, the House-passed FIRST STEP Act included. During the 114th Congress, in July 2015, the House Committee on Oversight and Government Reform held two days of hearings on criminal justice reform, including front-end sentencing reforms, back-end reentry reforms, and prison reforms.

In February 2016, the House Judiciary Committee marked up the Corrections and Recidivism Risk Reduction Act, H.R. 759, by voice vote. The bill wasn’t considered on the floor of the House before the end of the Congress.

Once again, the issue has been and still is being debated in Congress. In July 2017, Rep. Doug Collins (R-Ga.) introduced the Prison Reform and Redemption Act, H.R. 3356. Although the bill was slated for mark up in the spring, it was eventually put aside in favor of a new bill, the FIRST STEP Act, H.R. 5682.

The FIRST STEP Act was marked up by the House Judiciary Committee on May 9, 2018 and passed out of committee by a 25 to 5 vote. The merits of the bill were debated during the markup. The bill passed the House on May 22 by a 360 to 59 vote without an official cost estimate by the Congressional Budget Office (CBO). Because the FIRST STEP Act was passed under the suspension of the rules, a score wasn’t required. An official cost estimate was produced by the CBO on August 20.

Fiction: Sentencing reforms need to be debated in committee before being added to the FIRST STEP Act.

Facts: The Senate Judiciary Committee has already debated and marked up each provision of sentencing reforms in the bill multiple times, and those who are suggesting that more consideration is needed are only seeking to delay. Put simply, it’s time for these reforms to be considered on the floor.

During the 113th Congress, in January 2014, the committee marked up the Smarter Sentencing Act, S. 1410. Section 3 of the Smarter Sentencing Act would have made the Fair Sentencing Act, which became law in 2010, retroactive. This is a provision included in the First Step Act, S. 3649, which was introduced in the Senate last week and would be the bill that comes up for a vote in this lame duck session. The new First Step Act includes the base text of the House-passed FIRST STEP Act, plus four sentencing reforms and a few changes to the base text. The Smarter Sentencing Act also included a different, broader expansion of the federal safety valve, which is also in the First Step Act.

The Sentencing Reform and Corrections Act, S. 2123, was subject to a hearing and a markup by the committee in October 2015. Earlier this year, the committee once again marked up the 115th Congress version of the Sentencing Reform and Corrections Act, S. 1917. Both iterations of the bill included all of the four reforms included in the First Step Act in addition to others, some of which would have had retroactive application. Of the reforms in the First Step Act, only the provision related to the Fair Sentencing Act would be retroactive.

Fiction: The sentencing reforms that are being considered as part of the First Step Act would give criminals reduced sentences.

Facts: Definitionally, pending and future sentences that have not yet been handed down cannot be “reduced.” With the exception of retroactivity of the Fair Sentencing Act, the sentencing reforms that have been added to the House-passed FIRST STEP Act for inclusion in the Senate’s First Step Act are prospective, meaning that they will apply only to pending cases and future cases. Retroactivity of the Fair Sentencing Act, therefore, is the only reform that could result in reduced sentences. Even so, its inclusion in the First Step Act is with good reason and its effect is limited. We’ll focus on this particular provision.

The Anti-Drug Abuse Act of 1986 created lengthy mandatory minimum sentences for crack cocaine offenses, resulting in a 100-to-1 disparity between crack cocaine and powdered cocaine weights and their application to sentencing laws. For example, 500 grams of powdered cocaine would trigger a 5-year mandatory minimum sentence, but only 5 grams of crack cocaine would trigger that same 5-year mandatory minimum.

Not only did this mandatory minimum create a severe sentencing disparity between crack cocaine and powdered cocaine, it also led to racial disparities. Estimates vary, but according to the United States Sentencing Commission, over 80 percent of offenders convicted of crack cocaine offenses are African-American.

Because the Fair Sentencing Act included a directive to the U.S. Sentencing Commission (USSC) in Section 7 to amend sentencing guidelines, the members of the commission voted to make the subsequent guideline changes retroactive. Current law, 28 U.S.C. 994(u), allows the U.S. Sentencing Commission to consider retroactivity whenever it lowers offense levels in the sentencing guidelines. These changes are subject to congressional review.

The proposed reform would allow Section 2 and Section 3 of the Fair Sentencing Act to be applied retroactively for crack cocaine offenses committed before August 3, 2010, as the USSC guideline change retroactivity didn’t reach the full population serving sentences under the previous 100-to-1 disparity. Someone who receive a 5- or 10-year mandatory minimum weren’t impacted by the USSC’s guideline changes.

According to the United States Sentencing Commission, there were 3,147 offenders still in prison as of October 28, 2017 who would become eligible to apply for a retroactive sentence reduction. There is not a more recent number available, but in the 13 months since October 2017, one can expect that number to have decreased notably, and it cannot have increased for obvious reasons.

A reduction is not automatic and may be denied by a court. A motion would have to be made by the offender, the director of the Bureau of Prisons, a federal prosecutor, or a court for the sentence reduction to be considered. Those who were previously denied relief under the guideline changes made by the U.S. Sentencing Commission wouldn’t be eligible for relief under this proposed reform.

Around 55 percent of those who petitioned courts under the sentencing guideline changes were granted relief. The average sentence reduction for offenders whose petitions were granted was 30 months. The recidivism rate of those granted relief under the Fair Sentencing Act was the same, 37.9 percent, as the comparison group that was not granted relief, according to a March 2018 report by the U.S. Sentencing Commission. According to the USSC, roughly 85 percent of those who petitioned for resentencing under the Fair Sentencing Act were African-American.

Fiction: Other sentencing provisions are retroactive and will provide for reduced sentences.

Facts: This is false. Again, with the exception of the retroactivity of the Fair Sentencing Act, none of the sentencing reforms are retroactive and would apply to only pending cases and future cases.

The First Step Act would reform sentencing enhancements under 21 U.S. Code 841. Under current law, any prior drug felony offense can trigger a sentencing enhancement under 21 U.S. Code 841. The proposed reform would limit the use of the sentencing enhancement to serious drug felonies and expand its use to serious violent felonies, ensuring that enhanced sentences are used wisely. The current 20-year mandatory minimum would be lowered to 15 years and the current penalty for life would be reduced to 25 years.

The proposed reform is prospective, not retroactive. Any suggestion that prisoners currently incarcerated under 21 U.S. Code 841 would be released because of the change to the mandatory minimum sentence is flatly false. To call this “early release” is to abuse the meaning of those words.

Prisoners sentenced under this enhancement may earn time credits should they complete programming and reduce their risk of recidivism to minimum or low risk. Even then, his or her earned time credits only translate to an increase in the portion of his or her sentence in an alternate form of BOP custody, such as a halfway house, not early release. If the prisoner was an an organizer, leader, manager, or supervisor involved in a heroin or fentanyl offense, he or she won’t be able to use earned time credits at all.

The proposed clarification of 18 U.S.Code 924(c) is long overdue. Under current law, an offender who possessed, but didn’t brandish or discharge, a firearm during a drug offense may receive a 5-year sentencing enhancement for a first offense and a 25-year sentencing enhancement for each subsequent offense. The 25-year sentencing enhancement is meant to target repeat offenders. In practice, however, it has been used to create lengthy prison sentences for first-time offenders who may be charged with the enhancement multiple times under a single indictment. The sentencing enhancements under 924(c) run consecutively, not concurrently, and may be stacked on top of each other.

As The Federalist noted in a recent piece, “Contrary to [some] reporting, the proposed compromise does not eliminate the sentencing enhancement for possession a firearm while committing another offense. Rather, the floated change would add a minor tweak to the governing law to assure that first-time offenders are not treated the same as repeat offenders.”

For example, in 2003, Weldon Angelos was given a 55-year sentence for selling marijuana to a confidential informant during controlled buys. The informant claimed that Angelos, a first-time drug offender, had a firearm in his possession during two of the buys, although he didn’t brandish the firearm. Additional firearms were found in his home during a raid. Angelos received three sentencing enhancements under 924(c), resulting in the 55-year sentence.

The federal judge who oversaw the case, Paul Cassell, issued a memorandum opinion in which he lamented the sentence he was forced by law to give. “The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational,” Judge Cassell wrote. “Adding 55 years on top of a sentence for drug dealing is far beyond the roughly two-year sentence that the congressionally-created expert agency (the United States Sentencing Commission) believes is appropriate for possessing firearms under the same circumstances. The 55-year sentence substantially exceeds what the jury recommended to the court.”

Judge Cassell, who is known for his advocacy of victims’ rights, has since noted, “If he had been an aircraft hijacker, he would have gotten 24 years in prison. If he’d been a terrorist, he would have gotten 20 years in prison. If he was a child rapist, he would have gotten 11 years in prison. And now I’m supposed to give him a 55-year sentence? I mean, that’s just not right.”

The proposed reform of 18 U.S.Code 924(c) is prospective, not retroactive.

Finally, the First Step Act would expand the existing federal safety valve exception to mandatory minimum sentences for low-level, nonviolent drug offenders. Under current law, 18 U.S.C. 3553(f) the safety valve may apply to an offender with up to 1 criminal history point who didn’t use violence or a credible threat of violence, didn’t possess a weapon, didn’t cause serious bodily injury or death, wasn’t an organizer of the offense, and has truthfully provided to the government all information and evidence that he or she has concerning the offense.

The proposed reform would expand the safety valve to apply to an offender with up to 4 criminal history points, excluding 1-point offenses. An offender with a single 3-point offense or a single 2- point violent offense wouldn’t be eligible. Remaining existing eligibility criteria would remain the same. It would also allow the court, should it determine and specify why excluding a defendant from the safety valve’s point limitation substantially overrepresents his or her criminal history, to waive the point limitations. However, this option is only available to defendants who fit all of the other criteria for the safety valve outside of the point limitation and whose offense at hand is not a serious violent felony or a serious drug felony. The proposed reform is prospective, not retroactive.

Fiction: The First Step Act has an expansion of good time credits that will allow prisoners to be released early.

Facts: This is not an expansion of good time credits. The First Step Act would restore congressional intent to “good time credits,” which allow prisoners who “display exemplary compliance with institutional disciplinary regulations” to “receive credit toward the service of [his or her] sentence” of up to 54 days per year of his or her sentence.

Despite 54 days being clearly written in statute, the Bureau of Prisons (BOP) has interpreted this to mean a maximum of 47 days per year. The Supreme Court upheld the BOP’s interpretation, based on the deference to federal agencies established in Chevron.

The proposed change would simply alter the language of 18 U.S. Code 3624(b) to ensure that prisoners may receive “up to 54 days for each year of the prisoner’s sentence imposed by the court,” as was the original intent of the law, providing the intended time credits to prisoners who have earned them. This could amount to up to an additional seven days per year of good time above the BOP’s interpretation of 47 days.

Additionally, the proposed clarification brings good time credits into their intended alignment with truth-in-sentencing policies, which require that an offender serve not less than 85 percent of his or her total sentence. Under BOP’s current 47 days calculation, an offender who receives the maximum amount of good time is arbitrarily held to serve just over 87 percent of his or her sentence. This same offender under the proposed change would receive 54 days per year of his or her sentence, and therefore would serve just over 85 percent of his or her sentence. This restores congressional intent to the good time credit system and brings it into full alignment with truth-in-sentencing policy.

Those who would benefit from the clarification of good time credits would still be subject to three to five years of supervised release, as required by 18 U.S. Code 3583. Additionally, this provision was included in the House-passed version, the FIRST STEP Act, which passed by a vote of 360-59. Only two Republicans voted against the bill.

Fiction: Prisoners will be released early because of the earned time credits in the First Step Act.

Facts: Section 101 of the First Step Act would require the attorney general to develop and release a risk and needs assessment system within 180 days of the bill being signed into law. Each offender who enters the federal corrections system will be assessed and their risk of recidivism determined, classified as minimum, low, medium, or high.

All prisoners will be allowed the opportunity to participate in evidence-based recidivism reduction programs, which the Bureau of Prisons would have two years to phase in after the completion of the initial risk and needs assessments. These programs must show by empirical evidence to reduce recidivism and help prisoners successfully reenter society. Programs may include education, drug rehabilitation, faith-based services and classes, behavioral treatment, and social learning. Prisoners who are minimal or low risk may participate in productive activities, in addition to evidence-based recidivism reduction programs.

Certain prisoners would be allowed to earn time credits, incentivizing them to successfully complete recidivism reduction programming. Prisoners would earn ten (10) days of time credits for every 30 days of successfully completed programming. Prisoners determined to be at a low risk of recidivism over two consecutive assessments would earn an additional five (5) days of time credits for every 30 days of successfully completed programming. Prisoners would be periodically reassessed to determine whether their risk level has changed.

Only those who are minimal or low risk as determined by the risk assessment, pursuant to the last two reassessments of the prisoner, may use earned time credits for placement in pre-release custody. Prisoners who have demonstrated recidivism risk reduction through periodic risk reassessments who wish to “cash in” time credits must have a petition approved by the prison warden upon the warden’s determination that he or she would not be a danger to society, has made a good faith effort to lower his or her risk, and is unlikely to recidivate in order to become eligible.

These earned time credits were included in — and in fact are the most significant part of — the House-passed version of the bill, the FIRST STEP Act, which passed by a vote of 360-59 and received only 2 Republican “no” votes.

Fiction: Violent prisoners, including those who assault police with a deadly weapon, will be able to earn time credits for early released.

Facts: This is false. Section 101 of the First Step Act specifically excludes certain prisoners from being able to use earned time credits for placement in pre-release custody. There are more than 50 categories of offenses in the list. If a prisoner is convicted of any one of these offenses, he or she won’t be able to use earned time credits, regardless of their risk of reoffending. The section that contains the list of exclusions begins on page 12, line 5 and runs through page 23, line 3.

The list of exclusions, as well as relevant statutes, includes assault with the intent to murder, sex offenses, child pornography, terrorism offenses, and offenses that result in death or serious bodily injury. Exclusions have also been added for certain fentanyl and heroin offenders. These excluded offenders are defined as being an organizer, leader, manager, or supervisor of others in the offense.

Fiction: Illegal immigrants will be able to use time credits for placement in pre-release custody.

Facts: Some opponents of the First Step Act have, perhaps unwittingly, confused the good time credits and earned time credits. The First Step Act specifically excludes illegal immigrants from being able to use earned time credits for placement in pre-release custody. This provision is found in Section 101 of the text, beginning on page 23, line 4.

Fiction: The First Step Act’s emphasis on home confinement means that illegal immigrants won’t be transferred into ICE custody.

Facts: Although the First Step Act does place emphasis on home confinement to the extent possible for minimal and low risk prisoners, existing BOP guidelines wouldn’t be altered or changed by the bill. Under current Bureau of Prisons’ regulations, a prisoner who is subject to a detainer filed by Immigration and Customs Enforcement (ICE) wouldn’t be eligible for placement in home confinement.

Detainers are defined in BOP Program Statement 5800.15 as such: “A formal request from a Federal, state, or local jurisdiction for an inmate’s custody upon completion of a term of imprisonment. This definition includes requests for criminal and non-criminal charges (e.g., material witnesses, deportation, probation/parole violator warrants, child support, etc.).” A federal agency such as ICE would be given priority over state or local detainers.

A separate regulation, BOP Program Statement 7310.04, makes it clear that “detainee inmates” — that is, a prisoner subject to a detainer — isn’t eligible are excluded from placement in Community Corrections Centers. Other limitations, including a limitation on “[i]nmates who are assigned a ‘Deportable Alien’ Public Safety Factor,” also apply. Another regulation, BOP Program Statement 7320.01, CN-2, excludes inmates with public safety factors from placement in home confinement.

For example, in 2015, when approximately 6,000 prisoners were released from federal prisons as a result of the USSC’s “all drugs minus two” amendment to the sentencing guidelines, almost a third of them were transferred into ICE custody. “They never step on free land,” said an assistant federal public defender. The FIRST STEP Act does nothing to change this. In fact, the text explicitly states this in Section 105 (beginning on page 51, line 14) that “Nothing in this Act, or in the amendments made by this Act, may be construed to…amend or affect the enforcement of the immigration laws.”

Fiction: A recent report from the Bureau of Justice Statistics found that 83 percent of prisoners released from state prisons in 2005 were rearrested within nine years. This shows that efforts to reduce recidivism at the state level haven’t worked.

Facts: Recidivism can be measured in different ways, including the rearrest rate. But the rearrest rate may not be a good guide. A former prisoner who was arrested may not have been convicted and incarcerated. A better measure may be the reconviction rate or the reincarceration rate.

The Bureau of Justice Statistics (BJS) did, in May, release data on the rearrest rates of prisoners from 30 states. These prisoners were released in 2005 and tracked through 2014, a nine-year time period. The report shows that 68 percent of these former prisoners were rearrested within three years, 79 percent were rearrested within six years, and 83 percent were rearrested within nine years. Reconviction and reimprisonment rates were not included in the latest BJS report, although the 2014 version did include such data.

Those who oppose criminal justice reform, even prison reform, which is the lowest hanging fruit, are using the BJS data to argue that efforts to reduce recidivism won’t work. But using this data in such a way is misleading, again, because rearrest may not be a fair measure and because the reform movement in the states isn’t captured by the data.

Criminal justice reform is a fairly recent movement at the state level. More than 30 states have passed criminal justice reforms, although some more comprehensively than others. The data analyzed by the Pew Charitable Trusts show that recidivism is on a downward trajectory. Texas was one of the early states, beginning its reforms in 2007. South Carolina passed reforms in 2010. Georgia didn’t adopt legislation until 2012. These states, as well as others, are seen as successes.

Prisoners tracked in the BJS data wouldn’t have been exposed to the recidivism reduction programming offered as a result of the reforms in these states prior their release in 2005. Moreover, the measure of recidivism by BJS is rearrest rates. Another measure is reincarceration. Texas, for example, had a three-year recidivism rate — as measured by reincarceration — of 21 percent among prisoners released in 2013.

Similarly, South Carolina had a three-year recidivism rate — measured by reincarceration — of 23.1 percent in 2013. Georgia’s three-year recidivism rate — measured by reconviction — was around 27 percent in 2014. Although it’s unclear, these figures may not include reincarceration as a result of technical violations, which could lead to the reimprisonment of former prisoners. Technical violations can include a failure to meet with a parole officer or failing a drug test.

Fiction: Republicans can just wait to do this next year and will have more time to consider a better product then, right?

Facts: No, this is wrong. With Democrats taking over the House again in the 116th Congress that begins in January, Republicans will lose out on the opportunity to ensure that the package Congress considers prioritizes the top concern of to criminal justice reform: public safety.

By taking best practices from the states, the reforms being considered in the First Step Act in this lame duck session of the 115th Congress are certain to put the issue of public safety, which is achieved through reducing crime rates, first.

One primary goal of criminal justice reform for conservatives is to ensure that when offenders return to their communities, they do so as reformed individuals who will not commit more crimes upon release. Another primary goal for conservatives is to make certain that we are using incarceration effectively and as needed, that the punishment handed down fits the crime committed, and that resources are used most on those criminals we are afraid of and not needlessly wasted beyond necessity on those criminals we are mad at.

These goals must be at the top of the list when crafting criminal justice reform policies, and with strong conservative leaders like Rep. Doug Collins (R-Ga.), Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah), and President Donald Trump, Republicans can be certain that these are in fact at the top. The attempts to lure Congress into waiting to move on this issue until next Congress is faulty at best and intentionally sabotaging at worst.

In order to ensure that public safety remains the top priority in justice reform, Republicans must push to send the First Step Act to President Trump’s desk before the 115th Congress comes to a close. Additionally, passing comprehensive criminal justice reform as crafted by conservatives while Republicans have united government is a politically smart move, showing the whole country that Republicans are able and willing to work across the aisle to achieve real reform.

In a time with such a constantly polarized political atmosphere, passing this carefully crafted, heavily debated, well-vetted, and proven successful criminal justice reform package would go a long way for a lot of Americans. Those touched by the criminal justice system directly or secondhand and those who have never interacted with the system alike will see the noticeable impact of safer streets and rehabilitated neighbors, friends, and citizens.

The Senate must act swiftly to pass the First Step Act, S. 3649, and send it to the House — which has already overwhelmingly approved a former version of the bill — to do the same. President Trump has already expressed his full support for the comprehensive package, saying he “look[s] very much forward to signing it.” Congress must give him this chance.

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