No, the House-passed FIRST STEP Act won't release criminal aliens from prison

There is much concern from those against the House-passed FIRST STEP Act that it will cause a plethora of chaos and more gang-riddled communities due to its attempt to reduce recidivism. The bill is using methods which have worked quite well in Texas, Georgia, and other Republican-led states in not only reducing crime but also averting expected corrections costs.


Yet, opponents are preying on the fears of those who do not understand why tossing someone in a hole then throwing away the key may not be the best way to rid the country of crime. They claim FIRST STEP Act will release a demonic red ten-speed bike on America to haunt and torture us for eons with malicious intent. The latest line of false attacks claims illegal immigrants – who end up in custody for a crime – will somehow end up on the streets by qualifying for the time credits section of the act.

“Under the proposed law, on the other hand, the BOP must release anyone designated as “lower level” risk into home confinement,” Conservative Review columnist Daniel Horowitz furiously protested June 5th before impugning the reputation of reformers by claiming their foundation was based on a lie. “This part of the bill, unlike the time credits for “recidivism” programs, made no exceptions for deportable aliens. Such a provision was in the original bill but was removed. Members of Congress didn’t bother reading either version of the bill. The original bill required the DOJ to transfer any deportable over to ICE, and that would have covered those released under section 402. Without that provision, there is nothing stopping the release of illegals under the “lower level risk” provision.”

It is true the House removed part of Section 102 which stated, “If 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 filed by United States Immigration and Customs Enforcement for the purposes of determining the alien’s deportability, United States Immigration and Customs Enforcement shall take custody of the alien upon the alien’s transfer to prerelease custody.” This was a drafting error, per FreedomWorks Vice President of Legislative Affairs Jason Pye, and was left in the bill by mistake hence its removal.


A glance at federal law also shows Horowitz’ argument is rent asunder like a frost giant following a bloody confrontation with Thor and his mighty hammer Mjölnir. Right on Crime National Director of Reentry Initiative John Koufos provided me details via email on what’s changing, what isn’t, and noted, “current law prohibits deportable aliens from going to home confinement, and the change in Section 402 would not affect that.”

Detainers, generally

BOP defines a detainer as “[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.). See BOP Program Statement 5800.15 §602(a) (Author note: emphasis added by Koufos). Perfected detainers require a warrant, except for ICE detainers which are perfected by the submission of a form by ICE or the United States Marshal Service. Id. at §604. Detainers filed by federal agencies, such as ICE are always given priority over non-federal detainers. Id. at 606…

Home Confinement is governed by BOP Program Statement 7320.01, CN-2 which is the administrative regulation related to 18 U.S.C.§3624(c). Typically, inmates are placed in Home Confinement after designation to a RRC/Community Corrections Center. Since inmates with ICE detainers are ineligible for RRCs they will never progress to a stepdown consideration for Home Confinement.


The path from the federal prison to the immigration holding center will not be interrupted by FIRST STEP despite Horowitz’ repeated worries. The Washington Times reported in 2015 the illegal immigrants released by the Obama Administration were going to end up in the streets of their home country, not American streets.

Edgar Holguin, an assistant federal public defender in El Paso, Texas, said his office has handled sentence reduction hearings for about 300 of the 6,000 inmates. For inmates who are noncitizens, he said, it is unlikely they will be allowed to remain in the country.

“These folks are pretty much a priority for deportation,” Mr. Holguin said, referencing ICE’s focus felons. “You are not talking about someone who was caught with a couple of cigarettes of marijuana in their pocket. This is at a much higher level.”

Many noncitizens already are going through removal proceedings while in prison, he said. For those who have not, Mr. Holguin said, the inmates typically are transferred to immigrant detention centers for processing, where they are held until the outcome of their removal hearing is determined.

“They never step on free land,” Mr. Holguin said. “These folks will be told, ‘Wait here, because immigration has a bus coming for you.’”

One lawyer for Immigrant Legal Resource Center complained to The Washington Times any illegal immigrant the Obama Administration released would go straight to deportation without representation. Not exactly the golden road into American cities as Horowitz professed and asserted – likely until his face has turned blue.


FIRST STEP Act won’t change things for illegal immigrants currently in federal lockup or those who eventually end up in federal prison. They’ll still be deported, unless Congress changes immigration law. It’s extremely unlikely any immigration law changes will happen in FIRST STEP Act and any attempts would likely doom the bill from making it out of Congress.

It’s unsurprising Horowitz, along with other justice reform opponents, are focused on California. Their attempts at ‘reform’ were a mess. It is important to remember the current reform legislation in Congress isn’t focused on the failures of California, but the success of Texas, Georgia, and other Republican-led states. Places who have seen crime rates drop thus ending the need for so many prisons (despite quibbles from opponents on how rates are calculated). It’s why International Association of Chiefs of Police came out in support of FIRST STEP earlier this month by telling Senate leaders in a letter the bill, “contains several measures intended to more effectively rehabilitate prisoners so that they are less likely to reoffend after release and, thereby, are less likely to cause additional harm to society.”

Make no mistake, FIRST STEP Act authors – along with justice reform proponents – want to see the streets clean of crime. It just doesn’t have to involve bigger prisons.

“The bill authors were careful to make this a bill that puts public safety first,” Due Process Institute Rule of Law Initiatives Director Joe Luppino-Esposito emailed me. “There are a lot of misconceptions about what the FIRST STEP Act does, since major sentencing reforms have been on the table in the past. But once you read the bill, it is easy to recognize how common sense these changes really are. Remember the first rule of legislative analysis: keep reading.”


One would hope looking up currently applicable federal law is also on those rules of legislative analysis.

The spelling of the name of John Koufos was corrected in this post.

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