Separating fact from fiction in the FIRST STEP Act before Congress

The House of Representatives is signing off on a bill which appears to be a good measure in the push for justice reform on the federal level. The FIRST STEP Act focuses on studying recidivism – the chance current and future convicted criminals could reoffend – and enacting reforms. A 2016 U.S Sentencing Commission study on federal prisoner recidivism found almost 50% of offenders ended up reoffending with most of those happening within the first 21 months of release. The FIRST STEP Act is focused on reducing this rate by figuring out ways to encourage reintegration into society along with saving taxpayer dollars. It’s a measure which is sorely needed to reduce the federal deficit, because offenders cannot be locked away forever, while also encouraging public safety. The bill affects both current and future prisoners in federal lockup.

The House approved the bill 360-59 on Tuesday about a week after House Judiciary Committee members signed off on FIRST STEP by a 25-5 decision. The committee vote was interesting because Republican Congressman Steve King teamed up with Democrats Sheila Jackson Lee, Jerrold Nadler, Jamie Raskin, and Pramila Jayapal in voting, “No,” on the bill.

Congressman Bob Goodlatte was a key supporter of the bill and is thankful it passed.

“Since the vast majority of federal prisoners will one day be released from prison, the FIRST STEP Act provides inmates the help they need to successfully reenter society so that they don’t return to a life of crime,” the Virginia Republican stated after the vote. “Importantly, these reforms will enhance the safety of our communities.”

Other supporters of the bill were more than happy with the passage because most of the ideas came from Republican-led states which had previously passed justice reform.

“More than 30 states across the country, led by traditionally conservative Georgia and Texas, have already implemented many of the policies outlined in the FIRST STEP Act,” FreedomWorks President Adam Brandon said in a statement late Tuesday. “It’s about time that Congress caught up with the states and got on-board with evidence-based criminal justice reform.”

“Today’s vote is a victory for real solutions and hope for incarcerated individuals who want to live a law-abiding productive life,” opined ex-Senator Jim DeMint via Right on Crime. “It is an important step toward reducing crime, reducing costs, and giving a second chance to those who are willing to change. It offers redemption to those who have paid their due, and it offers families hope for a better future in which their loved one can succeed as a contributing member of society.”

Democratic opponents aren’t really happy with the act. Nadler said he thought the bill was well-intentioned yet thinks “the new incentive system for pre-release custody credits could exacerbate racial biases and, unlike previous criminal justice efforts, is not balanced with the necessary reforms to our federal sentencing system.”

Other Democrats expressed concerns about the bill before it made it through the House with a letter signed by Jackson Lee, Congressmen Dick Durbin and John Lewis, and Senators Cory Booker and Kamala Harris. Their concerns include funding, giving too much power to Attorney General Jeff Sessions, and the fact it focuses on low and minimum risk reoffenders, not high or medium risk.

The act itself appears to accomplish its goals. It requires the Attorney General’s Office to look at which current prisoners have the biggest chance of re-offending then classifying them as high-risk, medium-risk, low-risk, or minimum-risk. Opponents who believe the AG’s Office will have too much power to determine the classification level do have a point, but the office is required to come up with methods for prisoners to lower their classification level. It also provides plenty of incentives for lowering classification levels by saying offenders can get more visitation and phone/video conference rights. Wardens are able to determine how this works out, so it’s not a top heavy, one size fits all approach.

The big change is a plan to put current and future prisoners into facilities closer to their homes, when possible. Section 401 establishes the so-called 500-mile rule if there are enough beds available and the prisoner’s security designation allows it which means high-risk prisoners will not be put in minimal security facilities. The change in prisoner housing is something justice reform proponents are extremely pleased to have in the bill.

“Close family ties are proven to reduce reoffending, yet many prisoners are incarcerated hundreds of miles from their spouses and children,” FreedomWorks Vice President of Legislative Affairs Jason Pye said to me over email. “The bill would require that federal prisoners serve their time within 500 driving miles of home, to help maintain these important family relationships. The Bureau of Prisons will continue to have flexibility to depart from this placement rule if necessary because of lack of bed space, the prisoner’s security level, or the prisoner’s programming or medical needs.”

There is certainly something to be said about keeping family ties when someone ends up behind bars. The HBO show Oz chronicled the change of lead character Tobias Beecher as he entered into a fictional state prison from a wide-eyed lawyer to a hardened inmate who pretty much does what he can to survive.

Orange is the New Black also chronicled life of Piper Kerman inside a federal prison and how it affected those around her. Kerman also testified before a Senate committee in 2014 about her time in prison. The ability to make it easier for prisoners and their family members to keep their ties together – without the need for families to spend an arm and a leg to go visit their loved ones behind bars – can help keep inmates from becoming desensitized to the entire experience of prison. It can also help keep families of prisoners, who suffer because of the crime made by felons, out of poverty because they aren’t spending all sorts of cash go to see their loved one.

The FIRST STEP Act still has plenty of critics on both sides of the aisle. The Leadership Conference, ACLU, and NAACP argued the bill is too flawed and were irked it didn’t contain sentencing reform. The groups were also frustrated with the laundry list of criminal exceptions i.e. offenders who would not be eligible for recidivism reduction programs and didn’t like the fact immigration-related offenses were part of said exceptions. They also showed concerns the Attorney General’s Office had too much power in classifications.

One of the harshest conservative critics is columnist Daniel Horowitz. Horowitz has long called FIRST STEP Act a “jailbreak bill” and howled from the hills it was part of the “Willie Horton soft on crime” agenda. Horton is the Massachusetts murderer who never returned from a prison furlough and raped a Maryland woman.

“The bill allows for early release of existing federal prisoners and makes no exceptions for those who trafficked heroin and fentanyl,” Horowitz ranted at Conservative Review May 10th while forecasting doom, chaos, and all level of destruction on America should the bill become law. “Imagine: While these same members are spending billions of dollars on programs misdiagnosing the drug crisis, they are simultaneously seeking to let out the most hardened and professional traffickers, even of the deadliest substances. They would be placed under an ill-defined “community supervision” program in their homes.”

His portents of an America rife with crime continued after the bill passed Congress on Tuesday.

Sadly, it appears that, just as with the terrible omnibus bill, many members of Congress and perhaps even the president don’t really know what’s in this bill. They are being told that this is some “prison reform” and “job training” for prisoners. It’s as if they think this bill is about granting prisoners better-quality food or mattresses. They were never told of the multiple retroactive early release provisions, the unworkable relocation of thousands of prisoners, and the endless lawsuits that will empower liberal judges to unleash the very crime wave that Trump warned about.

It’s almost like Horowitz has decided to do his best imitation of the Goth Kids from South Park by crying out “death and despair” and seeing America as a country on the brink of becoming chock full of Mad Max-like gangs or roving bands of Scoia’tael in howling winds like the world of The Witcher because this bill could become law. The facts are, of course, a wee bit different.

“Literally nothing could be further from the truth simply because no sentences are being changed at all,” Right on Crime Director Dr. Derek M. Cohen told me during an interview. “Nobody is getting any sort of post-hoc release in sentencing because of this.”

The bill text itself also supports Cohen’s beliefs, not Horowitz, and no sentences are being changed. Time credits are discussed in FIRST STEP, specifically how they can be used and who benefits from them.

Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities and who have been determined to be at minimum risk or low risk for recidivating pursuant to their last two reassessments shall be applied toward time in pre-release custody. The Director of the Bureau of Prisons shall transfer prisoners described in this subparagraph into prerelease custody, except that the Director of the Bureau of Prisons may deny such a transfer if the warden of the prison finds by clear and convincing evidence that the prisoner should not be transferred into prerelease custody based only on evidence of the prisoner’s actions after the conviction of such prisoner and not based on evidence from the underlying conviction, and submits a detailed written statement regarding such finding to the Director of the Bureau of Prisons.

This destroys Horowitz’ conclusion of prisoners getting early release willy nilly because there are multiple boxes an offender has to check before they can go to prerelease custody. Let’s also not forget there is an extremely long list of exceptions to these time credits including but not limited to: murder, assault to commit murder, terrorism, kidnapping, human trafficking, sexual abuse, child pornography, torture, and treason. Horowitz’ qualms you’ll suddenly see illegal immigrants released from federal lockout without being deported are also untrue. The final part of Section 102 notes ICE will take custody of “a prisoner who is placed in prerelease custody is an alien whose deportation was ordered as a condition of such prerelease custody or who is subject to a detainer…”

Cohen also took umbrage to a May 3rd declaration from Horowitz in CR which avowed, “the highly touted success on the state level that is used to promote federal jailbreak is nothing short of a disaster.”

“The data does not just back that [claim] up. [Texas has] the lowest crime rate recorded since 1967.” Cohen remarked and also poked holes in Horowitz’ argument justice reform was unnecessary because incarceration rates were at the lowest levels since at least 1996. “Incarceration rates to most people in criminal justice are more of a secondary indicator…At the end of the day, what’s really important if we’re making that this is a public safety nightmare argument like Mr. Horowitz seems to be doing is look at the crime rate. You have to look at the crime rates, and our crime rates have been plummeting for two decades. It has nothing to do with the baseline. We are at parity with 1967 level crime rates in Texas across violent and property crimes.“

Texas’ justice reform laws have been signed by noted ‘liberal’ (note sarcasm) Governors Rick Perry and Greg Abbott and pushed by such groups like Texas Public Policy Foundation which consistently leads the charge in favor of fewer regulations, economic freedom, and property rights. They’re not exactly an organization which big government-loving people typically run to get their talking points or research. Other states like Georgia, Alabama, and Oklahoma have done their own justice reform initiatives which has seen success. So, this notion people all across America will suddenly have to go to bed with all doors quadruple locked, their front yards full of anti-personnel mines, and multiple weapons by their bedside is just plain fiction. Justice reform is working and working well. The federal government is making the right move by leaning towards justice reform and FIRST STEP Act is great start. It’s only a start and the bill could be better. The federal government does need to enact sentencing reform but it’s something which will hopefully be either added to the bill in the Senate or come down through a separate piece of legislation.

The FIRST STEP Act is not a bill enacting justice reform for the sake of justice reform. It’s a judicious bill put together by politicians who studied the issue and applied the conservative principles of limited government and reduced spending. It’s a bill which should become law and hopefully spur more well thought out action on justice reform.

Correction: It’s Daniel Horowitz, not David. We apologize for the error.

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