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| - “Astonishingly, the bill goes soft on some of the worst crimes — trafficking heroin and fentanyl — by allowing most traffickers to spend up to a third of their sentence at home, where many of them will no doubt return to dealing drugs.”
“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.”
— Cotton, in a National Review op-ed, Nov. 26, 2018
It’s rare to see a broad mix of Democrats, Republicans, centrists, libertarians, the American Civil Liberties Union and President Trump all on the same page. But that’s the case with the First Step Act, an ambitious sentencing reform bill five years in the making.
Cotton long has been the standard-bearer for the opposition. The conservative lawmaker says the 103-page bill would slash sentences for thousands of prisoners, many of them heroin and fentanyl traffickers or sex offenders.
Trump and his unlikely band of allies are calling on Senate Majority Leader Mitch McConnell (R-Ky.) to hold a vote by the end of the year. The House passed a version of the bill in May, voting 360 to 59.
“This bill is the best chance I have seen in decades to help begin to fix the federal prison system in meaningful ways that will reduce crime, lower prison populations, decrease costs and cut the rate of recidivism,” former House speaker Newt Gingrich, a Republican, wrote in a Washington Post op-ed Thursday. “Most important, it will help improve the lives of all Americans by giving some who are struggling with drug addiction, poverty or a lack of education the opportunity to become honest, upstanding citizens.”
A Harvard Law School graduate, Cotton makes precise points in USA Today and the National Review criticizing the bill. But he gives short shrift to safeguards in the legislation. Let’s take a look.
The facts
Sen. Charles E. Grassley (R-Iowa), the chairman of the Senate Judiciary Committee, is sponsoring the First Step Act along with a bipartisan group of 31 senators. Here’s the full bill. Here’s an eight-page summary, here’s a summary of the summary, and here’s an analysis by the U.S. Sentencing Commission of how many thousands of prisoners would be affected. Sponsors are still considering changes to accommodate critics, according to Politico.
In its current form, the bill would reduce mandatory minimum sentences for drug crimes and nonviolent offenses; create more programs for prisoners designed to reduce the likelihood of recidivism; award time credits toward early release to prisoners in those programs; and implement a data-driven system to determine which prisoners are low-risk and safe to parole or release to a halfway house. These are just some of the key provisions.
“The biggest immediate impact of the bill would be felt by nearly 2,600 federal prisoners convicted of crack offenses before 2010,” according to the Marshall Project. “That’s the year Congress, in the so-called Fair Sentencing Act, reduced the huge disparity in punishment between crack cocaine and the powdered form of the drug. The First Step Act would make the reform retroactive. Those eligible would still have to petition for release and go before a judge in a process that also involves input from prosecutors. With crack’s prevalence in many black neighborhoods in the 1980s, the crack penalty hit African Americans much harder than white powder cocaine users. That disparity has been a major example of the racial imbalance in the criminal justice system.”
Writing in USA Today, Cotton called for other types of reforms: tougher sentences for dangerous drug crimes, cutting down the number of criminal laws and creating a transparent database that lists all of them, and a mens rea element (consciousness of wrongdoing) for federal crimes to mirror what states have.
Cotton also warned that “the bill goes soft on some of the worst crimes — trafficking heroin and fentanyl — by allowing most traffickers to spend up to a third of their sentence at home.” In the National Review op-ed, he added that sex offenders and prisoners convicted of a range of violent crimes would also be released earlier.
Prisoners convicted of certain serious crimes would not be able to redeem time credits for early release under the First Step Act. These specific exceptions cover “crimes relating to terrorism, murder, sexual exploitation of children, espionage, violent firearms offenses, or those that are organizers, leaders, managers, supervisors in the fentanyl and heroin drug trade,” as well as those with deportation orders. The list includes nearly 50 crimes in total, though not the ones Cotton pointed out.
Cotton notes in the National Review that more than 90 percent of heroin and fentanyl traffickers “will be eligible for the time credits” anyway, because the exceptions in the First Step Act cover “organizers, leaders, managers and supervisors.” Lower-level drug dealers potentially would be able to cut their sentences by earning time credits.
“This was sticking point in negotiations,” he tweeted. “[The National Sheriffs' Association] & I wanted all excluded. Drafters said no.”
However, under the First Step Act, it’s not enough to rack up time credits. The bill says the U.S. Bureau of Prisons would be able to grant early release only to prisoners who present a “minimal” or “low” risk of recidivism.
“That determination is based on actuarial data and information that BOP currently uses that has to be an accurate predictor of behavior,” said Taylor Foy, a Grassley spokesman. “There’s a rubric that all of the inmates will have to go through, that they’ll be evaluated against, and that’s what makes their determination of their risk level.”
“At all times the Bureau of Prisons retains all authority over who does and does not qualify for early release,” Sen. Mike Lee (R-Utah), a co-sponsor of the bill, tweeted in response to Cotton.
Cotton doesn’t mention this requirement in his USA Today op-ed, although it has been part of the discussion in Congress for some time. In the National Review, Cotton does mention this provision — but quickly dismisses it by questioning whether “government bureaucrats can judge the state of a felon’s soul and predict his future behavior.” He also warns that “a future Democratic administration” can’t be trusted with these decisions.
This argument is misleading, since BOP officials and wardens use objective criteria and a point system to assess risk and would keep doing so under the new law before granting early release. They’re not peering into anyone’s soul so much as crunching numbers, and the president’s political stripes are not a factor in the equation.
We obtained BOP materials that say prisoners' risk levels are “computed by summing scores for 15 predictors of serious misconduct such as prior record, seriousness of the current offense, history of violence, prison rule infractions, age, and the inmate’s participation in programs.” These materials also say “the two most common public safety factors bumping inmates from minimum security up to low security are being a deportable alien and being a sex offender,” which mitigates Cotton’s point that those convicted of sex crimes would be able to shave years off their sentences under the First Step Act.
After this article was published, Cotton’s staff provided information from the Justice Department showing that out of the 15,526 federal inmates serving a sentence for a sex offense, 73 percent are currently classified as low-security.
Cotton’s staff found another section of the bill that opens the door to early release for prisoners who are not necessarily deemed “minimum” or “low” risk. (The two other levels are “medium” and “high.”)
Under this section, the prisoner would have to accumulate enough time credits for early release, file a petition, get the warden to approve it, and have shown “through the periodic risk reassessments a demonstrated recidivism risk reduction.” The warden would have to find first that the prisoner “made a good faith effort to lower their risk” by participating in prison programs and that the inmate “would not be a danger to society if transferred to prerelease custody” (such as a halfway house) “or supervised release” (meaning parole).
“A careful reading of the bill shows that actually, the proponents are wrong that only minimal or low-risk inmates can use the credits,” a Cotton staff lawyer wrote in an email. “Even medium and high risk prisoners ARE eligible for early release through the new time credits, although under more heightened standards.”
Foy said: “The Bureau of Prisons hires wardens, trains them, oversees them, and carefully monitors the way that they comply with department regulations and guidance, especially where the release of prisoners is concerned. The legislation requires the warden to make a determination that the prisoner, among other things, ‘would not be a danger to society if transferred to prerelease custody or supervised release’ and ‘is unlikely to recidivate.’ Under the First Step Act, BOP is required to establish the risk assessment tool to make these very determinations and the warden would be extremely deferential to the risk and needs assessment program.”
Cotton also notes that prisoners could receive time credits under the bill for “productive activities,” not just for participating in the new anti-recidivism programs to be designed under the terms of the bill. “Productive activities” could mean anything prisoners already do, even watching a movie, he argued. But his staff could not provide examples of prisoners receiving time credits for early release for watching TV, and Lee wrote in a dueling National Review op-ed that it doesn’t happen in the real world.
“The way the law is written now, ‘productive activities’ are defined so vaguely that, based on what the BOP told us, almost anything the prisoner is doing fits into that definition,” a Cotton representative said. “What the BOP told us is that because this is a liberty interest ... an inmate can sue if they think they are not being treated fairly.”
This is an interesting find worth further discussion, but the bottom line is that BOP officials would still be making the pivotal call on a prisoner’s application for early release, using a strict and objective analysis.
The Pinocchio Test
Cotton knows what he’s talking about and makes many detailed counterarguments to the sentencing reform proposal. It’s telling that Senate supporters are now mulling changes to the bill after Cotton’s critiques began to percolate.
But his USA Today op-ed omits an important safeguard in the First Step Act: No one walks free unless the Bureau of Prisons gives the green light, and that decision must be based on metrics and numbers. Cotton’s National Review op-ed does mention this provision, but he gives it short shrift. It’s misleading to say BOP officials would be searching inmates' souls, and we don’t see how these officials would score prisoners differently whether a Democrat or Republican inhabits the White House.
Without minimizing Cotton’s concerns about public safety, these omissions and twists make a difference in the public’s perception of the bill and are worth Two Pinocchios.
Two Pinocchios
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