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Cotton in Washington Times "How the Senate First Step Act is flawed"

November 30, 2018

How the Senate First Step Act is flawed

The Senate First Step Act would make sweeping changes to our federal criminal justice system. While the bill's supporters have started this reform process with good intentions, the latest version of the bill would result in the early release of thousands of violent felons. My Senate colleagues should take the time to fix the flaws in this legislation instead of rushing a bill through in the lame-duck session.

Proponents of the bill claim that "nothing in the First Step Act gives inmates early release." Instead, they say that federal prisoners can earn time credits for participation in recidivism reduction programming and other productive activities. But these new time credits do allow for early release - up to one-third of the offender's sentence - and are in addition to existing "good time" credits.

One of the major problems with the bill is that thousands of offenders will be released almost immediately because two sections apply retroactively. That means they will not participate in any additional rehabilitation programs. The release of such a large number of prisoners at once will surely endanger public safety and will strain law enforcement's ability to protect their communities. Even for the sections that only apply prospectively, inmates only have to participate in "productive activities" to get credits for early release. That includes playing softball, watching movies or doing activities that the prisoners are already doing.

Defenders of the bill will say these risks to the public aren't realistic because serious and violent criminals are ineligible for earning new credits. While some inmates are excluded from earning new credits, many perpetrators of violent crimes would be allowed to earn these new credits - crimes including, but not limited to, drug-related robberies, involving assault with a dangerous weapon, using a deadly weapon to assault a law enforcement officer, assault resulting in substantial bodily injury to a spouse or child, and violent carjacking resulting in serious bodily injury.

In addition to these offenses, sex offenders and drug traffickers would also be eligible for early release. According to the Justice Department, individuals convicted of failing to register as a sex offender, importing aliens for prostitution, and first-time assault with intent to commit rape or sexual abuse will be eligible for the new credits. On top of that, the vast majority of fentanyl, heroin and methamphetamine traffickers would also be able to accrue credits for early release under the First Step Act. Considering that more than 72,000 Americans died from drug overdoses last year, is this the right time to reduce the penalty for trafficking deadly drugs?

Let's take an example. Under current law, a second-time offender with 400 grams of fentanyl, which is enough to kill 50,000 people - about the size of Conway, Arkansas - would be sentenced to a mandatory minimum of 20 years. If the inmate behaves in prison and participates in drug rehabilitation, he could get out in 17 to 18 years. Under this bill, by shortening the mandatory minimums from 20 to 15 years on the front end, and adding new early-release provisions that can shorten the sentence by up to a third on the back end, he could be released in eight to nine years.

We must also remember the federal agents and officers who have undertaken great risks in arresting violent criminals and drug dealers. Why would we cheapen their sacrifice by putting criminals back on the street before they are reformed members of society? Perhaps that's one of many reasons why most law enforcement organizations, including the National Sheriffs Association, Major County Sheriffs Association, Major County Chiefs of Police, the Federal Law Enforcement Officers Association, and others oppose the First Step Act.

I agree with the bill's proponents that we should give prisoners more opportunities to earn a GED, to learn a trade, to participate in the kind of training and education - often faith-based - that will help them get back on their feet. But there is no reason to combine those laudable goals with shortening sentences and granting early release to violent criminals, sex offenders and drug traffickers. The threat to public safety is just too great.