The House has passed the “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act.” Why the ridiculous name? Because it spells out FIRST STEP.
FIRST STEP is an appropriate name. As we will see, this legislation is intended to be the first step towards a jail break.
A combination of Democrats and libertarians, aided by Sen. Charles Grassley who is neither, has been trying for several years to reduce federal mandatory minimum sentences for drug dealers and to do so retroactively. If successful, this effort would mean the release from prison of many thousands of drug felons before they have served their full sentence (a sentence that often is the product of a plea bargain and thus doesn’t reflect the full scope of the defendant’s true criminality).
Sponsors have coupled the lenient sentencing and jail break legislation with “corrections reform.” This focuses on ways to rehabilitate prisoners, using methods that sponsors claim have worked well at the state level.
These legislative efforts have come up short (though at the executive branch level President Obama used clemency to effectuate a jail break for more than a thousand felons). However, the corrections side of the bills has drawn little fire and aspects of it have been fairly well received.
Drawing from the lessons of its past legislative failures, Team Leniency is now trying to smuggle a jail break into a corrections bill. It is aided by Jared Kushner at the White House.
FIRST STEP effectuates a jail break by retroactively applying good time credits and participation in rehabilitation program credits to reduce sentences. The result would be backdoor sentence reduction. Using the credits, offenders would be released without having served their full and justly deserved sentences, as they would be under the failed sentencing reform bills.
How many felons would profit? I’m told that 4,000 to 5,000 inmates would be set free at once.
The legislation extends to felons convicted of trafficking in the most dangerous drugs, including opioids. At first blush, it seems strange that, in the midst of a devastating opioid crisis, Team Leniency would be legislating to put opioid dealers back on our streets.
But the drive for leniency has always been about drugs. From the standpoint of the Democrats, that’s where the federal felons (and their votes) are. And for a certain kind of libertarian, drug use is ground zero in the quest for liberty. (If you don’t believe me, try discussing drug laws with a libertarian).
Where Jared Kushner is coming from, I can’t tell you.
What are the politics of FIRST STEP? I’ll speculate that this legislation, which passed the House with overwhelming support on Tuesday can easily pass in the Senate, as well.
However, Chairman Grassley is on the record that for criminal justice reform to pass the Senate, it must include sentencing reform. Senate Democrats are of the same view. In other words, the 4,000 to 5,000 person jail break in STEP plus the Obama commutation jailbreak isn’t enough. Mandatory minimums must be reduced and the reduced sentences must be appled retroactively.
FIRST STEP, then, appears to be the first step in getting a vehicle to the Senate which can be used to effectuate the full Team Leniency agenda. The votes are there to accomplish this if the Senate votes on the full agenda.
Fortunately, Majority Leader McConnell has yet to show a willingness to allow a floor vote on sentencing reform. He understands that few issues divide the caucus more. He’s also been around long enough to remember the bad old days before the current system of tough mandatory minimums was implemented. And he’s politically savvy enough not to want to be releasing drug felons at a time when violent crime is on the rise and the nation is suffering an opioid epidemic.
The wild card, I suppose, is the White House. President Trump surely understands the same realities as McConnell. Yet, his son-in-law has made lenient sentencing his hobby horse.
Attorney General Sessions vigorously opposes sentencing reform and, along with Sen. Tom Cotton, was the key to blocking it in the Senate a few years ago. But Sessions hasn’t been on Trump’s good side for quite a while.
On balance, it seems that Team Leniency is overreaching. By seeking the whole loaf, its chances of getting anything this year seem low.
But this is one to keep our eyes on.
NOTE: This post has been updated to reflect the passage by the House of FIRST STEP on Tuesday.