Law & the Courts

What’s Really in Congress’s Justice-Reform Bill

President Trump speaks about the “First Step Act” in the Roosevelt Room at the White House in Washington, D.C., November 14, 2018. (Leah Millis/Reuters )
The bad outweighs the good.

It remains to be seen whether the lame-duck 115th Congress will debate a sweeping overhaul of our federal criminal-justice system before we adjourn for the year. You may have heard about the legislation at hand, the FIRST STEP Act. I oppose it. I urge my fellow conservatives to take the time to read and understand the bill before signing on in support of this flawed legislation.

The 103-page bill that was released the Friday before Thanksgiving has some good parts, and I don’t question the intentions of the bill’s proponents. But you may have noticed that they talk more about their intentions than about the consequences of the bill. As conservatives, we know that good intentions say little about actual consequences. And to paraphrase Thomas Sowell, intellectuals who generate ideas with good intentions rarely have to face the consequences of those ideas personally.

When proponents of the bill discuss the substance, they claim that “nothing in the FIRST STEP Act gives inmates early release.” Instead of early release, proponents say, it merely provides incentives for inmates to participate in programs. This is nothing but a euphemism. Let there be no doubt: If the bill is passed, thousands of federal offenders, including violent felons and sex offenders, will be released earlier than they would be under current law. Whatever word games the bill’s proponents use will make no difference to the future victims of these felons.

Proponents also claim that only “low-level, non-violent” offenders will benefit, and that there are adequate safeguards to protect the public. If I believed these assertions, I would support the FIRST STEP Act. But a careful reading of the bill’s text, as opposed to the talking points used to promote it, shows that violent felons are eligible for early release, and that many of the bill’s provisions go against core conservative principles.

For background, according to the Department of Justice, the Senate version of the FIRST STEP Act creates a new “time credit” system that allows federal prisoners to accrue credits by participating in “evidence-based recidivism reduction programming or productive activities.” These new credits are in addition to existing “good time” credits and are worth up to one-third of the offender’s sentence.

The first problem with this new system is that “productive activities” is defined so vaguely that, according to the Bureau of Prisons, playing softball, watching movies, or doing activities that the prisoners are already doing today will result in new time credits. The whole idea behind these incentives is that prisoners will be less likely to recidivate upon release. But if the credits are this easy to get, how will this change the behavior of serious felons?

The second problem is that while some offenders are ineligible for these new “time credits” based on an exclusion list, many serious violent crimes are missing from that list. Since proponents tend to misstate or misunderstand their own bill, here are some of the specific federal laws that are missing from the bill’s exclusion-from-early-release list:

  • Drug-related robberies involving assault with a dangerous weapon (18 U.S.C. § 2118(c)(1))
  • Using a deadly weapon to assault a law-enforcement officer (18 U.S.C. § 111(b))
  • Assault resulting in substantial bodily injury to a spouse or child (18 U.S.C. § 113(a)(7))
  • Violent carjacking resulting in serious bodily injury (18 U.S.C. § 2119(2))
  • Trafficking heroin and fentanyl, if not also convicted of certain other charges. More than 90 percent of traffickers will be eligible for the time credits. (18 U.S.C. § 841(b))

These are not low-level, non-violent crimes, nor are they obscure crimes. There are dozens of other serious violent crimes, including sex-related offenses, that are missing from the bill’s exclusion list. Frankly, there are almost no low-level, non-violent offenders in federal prison, as opposed to state prison, to begin with. And to the extent people are in federal prison for low-level convictions, they typically pled down from more serious charges. Most important, when there are manifest injustices in individual cases, the proper course of justice is not to simply let out thousands of serious felons but to appeal to the president for clemencies and pardons. As Alexander Hamilton wrote in Federalist 74, the president is far better situated than a legislature to address such cases.

Proponents also claim that we have nothing to fear because only offenders classified as having a “low-level” of recidivism risk can use their credits to get early release. But this requires extraordinary faith in the government’s ability to predict the recidivism risk of violent felons. I understand why liberals have such faith. But it is surprising to me that conservatives, and especially libertarians, have faith that government bureaucrats can judge the state of a felon’s soul and predict his future behavior. Even if you trusted the current administration to do so, would you trust a future Democratic administration? Plus, if this safeguard is enough, why does the bill have an exclusion list in the first place?

Third, rather than focus on low-level crimes, the bill reduces the penalty for the crime of trafficking the highest quantities of fentanyl described in federal law after previously having been convicted of drug felonies. According to the National Association of United States Attorneys, reducing the sentence on the front end, combined with the new time credits on the back end, means that a repeat fentanyl trafficker could spend half the time in prison under this bill that he would spend under current law.

Finally, the Senate FIRST STEP Act gives judges much more discretion to ignore the mandatory minimum sentence for criminals with prior records. Since when has increased judicial discretion been a conservative principle? Proponents of this bill are suggesting that we put our faith in the wisdom of the same district-court judges who are issuing nationwide injunctions against the Trump administration for merely enforcing our immigration laws. Remember, about three-fifths of active district-court judges were appointed by Clinton or Obama. This bill relies on their discretion to keep the American people safe.

Instead of relying on summaries, you should read the bill yourself, and read letters from law-enforcement organizations, including the National Sheriffs Association, the Major County Sheriffs Association, the Major County Chiefs of Police, the Federal Law Enforcement Officers Association, and others that came to the same conclusion I did: The bad in this bill outweighs the good.

I believe there are reforms to the criminal-justice system that align with core conservative principles, such as adding a mens rea requirement for all crimes, reducing the size of the criminal code, and limiting federal power over our lives. This bill includes none of those provisions. But it does include the priorities of the ACLU and the New York Times editorial board. That should be enough to give conservatives pause as to whether the Senate FIRST STEP Act should be rushed through the lame-duck session.

Tom Cotton — Tom Cotton is a Republican senator from Arkansas.

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