By Joe Luppino-Esposito | Due Process Institute | Director, Rule of Law Initiatives
I’ve seen this dubious memo being passed around on the Hill, which was said to have been written by the office of Senator Tom Cotton, who is licking his wounds after his three-amendment and final bill defeat in the Senate. (I’m sure the Senator’s colleagues in the other chamber really appreciate him sending them a note suggesting that they cannot figure out the differences between these versions of the First Step Act).
There’s a reason that the bill passed the Senate 87-12, including a supermajority of the Republican conference—it is a strong conservative bill that focuses on public safety and reentry to lower recidivism.
Claim 1: Prisoners can now use credits to transfer into supervised release. (Emphasis original)
Though true, this is very limited in its application. There is no leeway regarding the determination of an offender being low-and minimum-risk. And supervised release is not “without safeguards.” Former inmates in supervised release must report to a probation officer, and any violations can result in that individual returning to prison.
Claim 2: Senate bill added Cory Booker’s juvenile justice language which applies a mandate on state and local jails.
That’s for state and local jails who agree to accept federal juvenile inmates. This is a voluntary contracting process. There are only about 70 juveniles in the entire federal system. And these requirements are minimal—using solitary confinement only for temporary reasons, or finding alternatives if the juvenile cannot avoid physical harm to himself or others.
Claim 3: Senate bill reduces the penalty for repeat fentanyl traffickers by cutting the § 841(b) mandatory minimums for repeat offenders trafficking the highest quantities of drugs.
The “three strikes” enhancement penalties went from 20 years to 15 years for the second strike, and from a life sentence to a 25-year mandatory term. And these are on top of the hefty mandatory minimums for the underlying drug offenses. These are just the “floors” of sentences, not the “ceilings.”
Furthermore, with this change, the bill also defines “serious drug felony” and “serious violent felony” and applies the enhancements to both. Previously, these enhancements only applied to drug felonies, not serious violent felonies.
Claim 4: Senate bill expands the “safety valve” to allow liberal judges to ignore the criminal record of more felons. Currently, only defendants who have 1 criminal history point can qualify. This raises the cap to 4 points and does not count 1-point offenses towards the total.
The bill expands the safety valve to help prosecutors trying to come to plea deals in exchange for information. By still charging these defendants appropriately, prosecutors can offer a deviation from the mandatory minimum so long as the defendant shares all necessary information—and hits all of the other criteria already in the law as well. The 4 points may not be any 2-point violent offense or 3-point offense of any kind. The excluded 1-point offenses are those with a sentence of less than 60 days, or fines-only, probation, or suspended or deferred sentences. This is not a way “to ignore the criminal record” but rather a clear formula.
Claim 5: Senate bill reduces the penalty for violent gun felons under Section 924(c).
Only if you think the following result is what Congress intended when it drafted the law:
A defendant sells $1,000 of drugs on three occasions in a week. On two of those occasions, he is believed to have a firearm on his person, and on the third, the firearm is in his home. The gun is never used nor brandished. Upon being convicted of the crime, the defendant receives the first-offense 924(c) enhancement of 5 years. He then receives another 50 years for the other two counts—25 years for each—although this is all on the same indictment.
Such were the facts in the Weldon Angelos case. Then-Senator Jeff Sessions told the House Judiciary Committee that he supported the “stacking fix” because of this bizarre result. This is not a reduction in penalty but rather a proper interpretation of congressional intent that meant to focus these penalties on true recidivists, not defendants with multiple counts.
The First Step Act, S. 756, is a bill based in conservative values, as tested in Texas, South Carolina, Georgia and several other red states. We should be celebrating that liberals have joined conservatives in this approach to criminal justice, not trying to find reasons to oppose a bill supported by President Trump, law enforcement, and dozens of conservative organizations. I urge all members of the House to vote for this bill.