OPINION: A Jailbreak? Please. The First Step Act Is Modest Reform

Kevin Ring | President, Families Against Mandatory Minimums

A broken clock is right twice a day. That’s one record of accuracy that Arkansas Republican Sen. Tom Cotton has failed to match during his crusade against efforts to improve our federal criminal justice system.

A few years ago, Cotton infamously asserted that the United States has an “under-incarceration” problem. The United States is the world’s largest jailer.

Most recently, he urged his Senate colleagues to oppose the First Step Act, bipartisan prison reform legislation in the U.S. Senate, in part, he said, because most serious and violent offenders are in federal, not state, prisons. The opposite is the truth, as anyone with a rudimentary knowledge of U.S. prisons or access to Google knows.

Cotton’s habit of misstating facts is paired by a routine of making dire predictions about the potential impact of reform.

In a claim that would make Chicken Little look measured, Cotton says the First Step Act would lead to a “jailbreak.” Because a few Republican senators have admitted they are taking Cotton’s criticisms seriously, his laughable “jailbreak” claim deserves debunking.

First, any federal criminal justice reform will affect a very small percentage of the people held in prisons around the country. As Professor Keith Humphreys wrote in The Washington Post:

The United States imprisons a staggering 1.5 million people, only one-eighth of whom (12.6 percent) are in federal prisons. Because violent crimes such as homicide and rape are almost always charged and prosecuted at the state level, the proportion of all violent prisoners who are in federal prisons is even smaller (1.8 percent). The narrowly focused First Step Act thus carries no risk of releasing an avalanche of violent offenders on communities — even abolishing the entire federal prison system outright wouldn’t do that.

Second, while any federal reform would have a limited impact on our national prison population, the First Step Act is especially modest. The only relief offered to all federal prisoners other than those serving life sentences is the opportunity to earn an extra week off their sentence each year because of good behavior. One week.

The bill offers a subset of prisoners a chance to acquire “earned time” credits that might allow them to serve the end of their sentence in a less restrictive form of federal custody, like a halfway house or on home confinement. Individuals earn these credits by completing programs that have been determined to reduce a person’s risk of re-offending.

Given the importance of incentives in increasing participation in rehabilitative programming, I had hoped that the bill would give earned time credit to all prisoners not serving life sentences (as is the case with good time). The bill’s sponsors, however, excluded tens of thousands of individuals from securing earned time.

The benefit is limited to individuals who 1) are determined to be low or minimal risk of reoffending, and 2) did not commit one of dozens of crimes that sound scary. (There is no other way to explain which crimes made the list.)

The First Step Act was improved with the addition of four, long overdue sentencing reforms, thanks to Iowa Republican Sen. Chuck Grassley and Illinois Democratic Sen. Dick Durbin. These provisions are very important but also very modest.

One reform simply extends justice to the 3,000 individuals serving lengthy crack cocaine-related sentences that Congress repudiated in 2010. Another reform restores congressional intent on when enhancements intended for repeat gun offenders should apply.

A review of the bill’s narrow provisions makes plain that it is no jailbreak. Sen. Cotton has been left grasping at straws, questioning the bill’s pedigree. He wrote in National Review that the bill contains “the priorities of the ACLU and New York Times editorial board.”

He didn’t share with National Review’s readers some of the bill’s other backers: President Trump, Vice President Mike Pence, Speaker Paul Ryan, former Speaker Newt Gingrich, former Attorney General Michael Mukasey, Grover Norquist, the Fraternal Order of Police and National District Attorneys Association, the U.S. Chamber of Commerce, the National Governors Association, the American Conservative Union and FreedomWorks.

The First Step Act is an important incremental reform. Though modest in scope, the bill will help thousands of families who have loved ones in federal prison. It will correct some of the federal justice system’s worst sentences and add much-needed rehabilitative programming to federal prisons.

Those who believe, like Sen. Cotton, that the United States has an under-incarceration problem should probably oppose the First Step Act. Everyone else should support it.

Kevin Ring is president of FAMM, a national criminal justice advocacy organization, and editor of Scalia’s Court: A Legacy of Landmark Opinions and Dissents.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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