Cotton Op-Ed in National Review Fix the First Step Act and Keep Violent Criminals behind Bars
By: Senator Tom Cotton (R-Arkansas)
Republicans can and should pass some common-sense amendments.
This week, the Senate will vote on the latest version of the First Step Act, a criminal-justice bill that would release thousands of dangerous criminals from federal prison earlier than under current law. This effort is misguided and dangerous, as I have written before. Thankfully, there is still time to limit the damage.
Along with Senator John Kennedy, I have introduced an amendment to categorically exclude violent felons and sex offenders from the bill's time-credit program, which can be used for early release. We also have amendments to notify victims before a prisoner is released early, and to monitor whether prisoners who are released early commit more crimes. If advocates of First Step want to protect public safety, they will support all three amendments.
Advocates of this bill already have taken a first step to improve the bill, thanks to criticism from major law-enforcement groups, victims of crime, and conservatives such as myself. After calling my concerns "100 percent fake news" and trying to force their bill through the lame-duck Congress without vetting, these advocates have finally acknowledged some of the problems I have identified and taken steps to fix them. For example, the "warden loophole" has been tightened (though not entirely closed), several crimes have been added to the ineligible-prisoners list, and fentanyl traffickers are no longer eligible to earn time credits (though unfortunately, these traffickers would still benefit from reduced sentences on the front end). The bill's "safety valve" provision was curtailed, so that judges will have less discretion to allow traffickers with serious criminal records to avoid mandatory minimum sentences required by law.
These modest changes have satisfied some of my conservative colleagues, who have signed on in support of the bill. Even this publication has offered a tentative, lukewarm endorsement. Both have said the bill should pass if it excludes violent offenders from early release.
With respect to my conservative friends and colleagues, they have jumped on the bandwagon too soon. A number of serious felonies, including violent crimes, are still eligible for early release in the version of the bill the Senate will vote on in a matter of days. In short, the First Step Act flunks their basic test to protect public safety.
Among those crimes are certain kinds of child molestation and sex trafficking, assaults on law-enforcement officers, violent bank robberies, carjackings, and hate crimes. Fittingly, the First Step Act would even allow early release for the accomplices in jailbreaks. Another crime still eligible for early release under the bill is 18 U.S.C. § 2422. This is a commonly used statute to prosecute sex offenders who attempt to coerce children into illicit activity, often through the Internet. There are 1,446 sex offenders in federal prison convicted under this statute, and not one of them deserves to be released a day early.
Our amendment would specifically exclude these crimes - and categorically exclude all other violent and sexual felonies - from eligibility for early release. This would not "gut the bill," as some left-wing groups have claimed: According to the U.S. Sentencing Commission, 62 percent of inmates would remain eligible for the time credits if our amendment is adopted. In short, this amendment would guarantee the basic level of protection that First Step's supporters have assured us the bill contained all along. They should have no problem supporting it, based on their own marketing. If they do have concerns with this common-sense amendment, I would be happy to debate which violent and sexual offenders they believe should be eligible for reduced sentences.
Our other two amendments would make further repairs to the bill. One would require that the prison notify victims before their victimizers are released back onto the streets. The victims (or next of kin) would be given the opportunity to provide a statement to the warden that could be used during early-release proceedings. Besides giving valuable information to individuals who are at risk of re-victimization, this amendment would give them an element of control in a process that often leaves people feeling helpless and afraid.
Our final amendment would require the Bureau of Prisons to track the recidivism of federal inmates who are granted early release. This would allow the public to see exactly what First Step's supporters mean when they claim released prisoners will pose "minimal or low" risk of returning to crime. In reality, early release is always a risky proposition, because one of the best predictors of committing a crime in the future is having committed a crime in the past. And even the best risk-assessment tools predict recidivism with just 70 percent accuracy - meaning in many cases, inmates deemed "low risk" by the government are not low-risk in reality. This amendment would ensure that the public learns the outcome of each roll of the dice. Surely, there can be no argument against actually measuring the effectiveness of the "evidence-based recidivism-reduction" programs in First Step.
These three amendments are modest, conservative, and grounded in common sense. They have been endorsed by law-enforcement groups such as the National Association of Police Organizations. And thankfully, the Senate can pass them with just 51 votes. This threshold gives Republicans no place to hide. We have enough members to improve this bill right now. The only question is whether we have the good sense to do it.
So far the debate over First Step has been clouded by euphemism and abstraction, which has prevented the public from understanding what the bill actually does. A concrete example will help clarify the stakes. Richard Crawford is a former NASCAR driver who was convicted in August of trying to force a twelve-year-old girl to have sex with him. Crawford was sentenced to nearly 11 years in federal prison, but the statute he was convicted under does not appear in First Step's "ineligible prisoners" list. If the bill passes, he will therefore be eligible for time credits that would reduce his time in prison by up to one-third, or nearly four years. At the end of his prison sentence he would be moved into pre-release custody or supervised release. He would essentially be a free man.
Crawford's sex crime was not obscure, low-level, or "victimless." Quite the opposite. His crime had the potential to shatter a child's life. It was punished accordingly by a judge and a jury of his peers. That is how criminal justice ought to work in America. Now a group of politicians and activists are in a position to overturn that public judgment with the First Step Act. Conservatives should resist this revolution.