The Senate needs to vote on First Step Act

Time is running out for the Senate to pass a meaningful justice reform bill which will reduce the size of government, protect police, and give certain prisoners a second chance at a law-abiding existence.

The First Step Act is based on policies which have worked in Georgia and Texas, which is why it’s quite curious one of the biggest opponents of the bill is Texas Republican Senator John Cornyn. The New York Times reported last week Cornyn might be sandbagging a potential vote by claiming only a fraction of Senate Republicans are interested in the bill. This directly goes against comments from Iowa Senator Chuck Grassley who believes an overwhelming majority of the Senate wants the bill to pass.

Why Cornyn is so hesitant to support First Step is anyone’s guess, but the theory – based on some of his past statements – is because of a rather harsh sentiment towards sentencing reform. Cornyn has never shown any inclination toward sentencing reform, and one can surmise its inclusion in the bill is causing some of his dander to furiously fly like two alley cats fighting for territory.

There are others in the U.S. Senate who are none-too-pleased about First Step – the most recognizable Senator Tom Cotton. The Arkansas Republican’s distaste for the bill is well-known and includes multiple editorials demonizing the bill with a variety of outrageous challenges. Among these is claiming the bill doesn’t go far enough.

“Mens rea, a common element of most state crimes, means that the offender must have a certain state of mental culpability to be charged with the crime,” Cotton wrote in USA Today on November 15th. “Coupled with the vast and confusing criminal code, the lack of mens rea leaves Americans at risk of arbitrary prosecution for trivial conduct. Senator Orrin Hatch has been a champion for mens rea reform to ensure that, at a minimum, a defendant should have known his conduct was wrong before facing criminal charges. Congress should incorporate these concepts into criminal-justice legislation.”

Justice reform proponents are skeptical at Cotton’s insistence this is a sticking point to his support of the proposal – which, by the way, is supported by President Donald Trump.

“Senator Cotton wouldn’t vote for this if mens rea was included,” FreedomWorks Vice President of Legislative Affairs Jason Pye told me a day after Trump came out in support of First Step. “Senator Cotton also said he supports prison reform…that’s a load of crap. Senator Cotton and his staff were railing against this when it was just the prison reform bill. They tried to affect the outcome in the House. We know that for a fact. I know for a fact that his staff told me back in, I think, mid-May to say that he wants to see anything on this issue pass is absurd.”

It’s interesting Cotton would suggest the criminal code needed to be whittled down (he’s right, for those wondering) because he’d previously told Hudson Institute the nation had an “under incarceration problem,” and railed against previous sentencing reform efforts in Congress. His sudden concern over the criminal code appears to be rather fickle given these previous comments.

Cotton’s second line of attack against First Step is a rather bizarre assertion it will suddenly turn federal prisons into Gotham City’s Arkham Asylum or Blackgate Prison – where inmates walk out almost as soon as Batman hands them over to GCPD.

“Frankly, there are almost no low-level, non-violent offenders in federal prison, as opposed to state prison, to begin with,” Cotton fretted in National Review on November 26th while suggesting supporters either don’t understand the bill or just lie about what’s in the text. “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.”

The facts say otherwise.

Bureau of Prisons statistics show over 50% of their current prisoner population is housed in low or minimum-security facilities. First Step also includes a laundry list of criminal convictions which would not be eligible for time credits. These include people convicted of sexual abuse, sexual exploitation of children, buying or selling children, child pornography, violators of the Immigration and Nationality Act, and those who are subject to deportation. Prisoners who had previously been served time for a violent offense – and served over a year in behind bars – are also not eligible for time credits. This nullifies Cotton’s claim sex offenders and violent criminals would end up being released from prison due to First Step.

Cotton also cites an argument typically used by conservatives and libertarians by opining it would inappropriate to trust bureaucrats to make good decisions – especially since administrations tend to change from one party to the other. However, there’s very low turnover in BOP leadership – meaning the director tends to stay on the job through multiple presidential administrations regardless of political party. The agency is going to have only its tenth director (whenever Trump decides to appoint a new one) in almost 100 years – a rarity in politically-appointed offices which tend to change leadership with each incoming administration.

“[T]he legislation doesn’t ask ‘government bureaucrats’ to ‘judge the state of a felon’s soul,’” Utah Senator Mike Lee declared in a National Review article rebutting Cotton. “Rather, it directs experienced law-enforcement officers to determine whether an offender is a danger — a job they already do daily, in order to run the nation’s federal prisons. Similar risk assessments have already been implemented in Texas and Georgia, and these states are hardly the post-apocalyptic criminal hellscapes that Cotton predicts such a system would cause.”

Trump’s support can also not be overstated. The President has consistently shown a willingness to endorse justice reform efforts – something activists aren’t forgetting – despite this notion he’s a “law and order” president.

“I don’t find this at all at odds with any sort of ‘law and order’ stance,” Right on Crime Director Derek Cohen told me over the phone citing the changes made to the bill when it comes to sentencing. “You have 924c which essentially, you know, that was made to punish repeat offenders and the way it’s applied is you have one indictment with three counts of the same exact crime and that triggers the enhancement. That in and of itself is not even how the law was meant to operate. You have things like the 841 and 851 slight reduction in mandatory minimum enhancements. That’s just taking down the minimum, that doesn’t mean where we stop counting for the prison years – that’s where we start counting for the prison years.”

“First Step Act is about prisoner accountability,” Pye confidently stated. “Prisoners have to complete certain programming – recidivism reduction programming – and then if they do complete it and successfully lower their risk, those who have lowered their risk to minimal or low-risk of recidivism can earn time credits, use those time credits to be placed in home confinement or halfway house…This is about accountability.”

Just a few weeks remain in the legislative year before the new Congress comes to power. It would be wise to get First Step Act done now – instead of starting all over again. A vast majority of senators – including Kentucky Senator Rand Paul and Texas Senator Ted Cruz – approve of First Step Act. It’s time to bring it to the floor for a vote.

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David Strom 12:01 PM on October 07, 2022