Jailbreak legislation is back and worse than ever

Three years ago, liberal Democrats and naive Republicans pushed hard for leniency-for-criminals legislation. It provided for a sharp reduction of mandatory minimum sentences for drug felons, to be applied retroactively so as to free many thousands of drug felons before they completed their sentences.

The leniency legislation also included “corrections reform.” The focus here was on ways to rehabilitate prisoners, using methods that sponsors claimed, quite speciously, have worked well at the state level.

I sounded the alarm over the sentencing reform component in an article for the Weekly Standard. Given the high rates of recidivism for drug felons, I argued that the leniency legislation inevitably would lead to more crime, just as crime rates are rising and the nation is experiencing an epidemic of drug-related deaths.

The 2015-16 attempt at a legislative jailbreak gained considerable momentum thanks to support from Republicans who should know better — e.g. Sens. Charles Grassley, John Cornyn, and Mike Lee. However, Republicans who do know better — notably then Sen. Jeff Sessions and Sen. Tom Cotton — rallied the caucus against the jailbreak. Majority Leader McConnell, recognizing that this legislation would badly divide the caucus and, I imagine, that it was both bad policy and bad politics, made sure the bill never made it to the floor.

This year, as I discussed here, Republican members of Team Leniency, thinking that reducing mandatory minimums and freeing drug felons through the front-door would be too controversial, tried to smuggle a more limited jail break into a corrections reform bill. The legislation was called FIRST STEP.

FIRST STEP proposed to cut jail time by retroactively applying “good time” credits and participation in rehabilitation program credits to reduce sentences. Using the credits, offenders would be released without having served their full and deserved sentences. My sources told me that 4,000 to 5,000 inmates would be set free at once.

FIRST STEP had considerable support from congressional Republicans, as well as from the White House where Jared Kushner peddled it. Indeed, the bill easily passed in the House.

However, many Democrats refused to support it because the jailbreak was too limited. They demanded the big reduction in mandatory minimums, applied retroactively, they had sought in 2015-16.

So did Sen. Grassley, chairman of the Senate Judiciary Committee. As recently as 2015, Grassley had been a vehement opponent of sentencing reform legislation. But later that year, he flipped. Now, from all that appears, there is no distance between him and likes of Sen. Dick Durbin when it comes to making sure major drug felons spend less time in prison.

I thought it likely that the insistence on the whole leniency loaf by liberal Democrats and Chairman Grassley would prevent the passage of any leniency legislation, including the “corrections” bill, this year. That seemed to be the consensus on the Hill, as well.

But now, congressional Republicans seem ready to do what congressional Republicans often do best — capitulate to the left.

A revised FIRST STEP legislation has gained momentum. It combines a more liberal version of the FIRST STEP back door jailbreak with significant reductions in mandatory minimums. Just as left-liberal Democrats had demanded.

I’ll discuss this legislation in more detail in upcoming posts. For now, here is the big picture:

The bill would substantially reduce prison time on the front end by slashing mandatory minimum sentences for serious federal drug trafficking crimes. It would also substantially reduce prison time on the back end by awarding significant time credits without providing incentives for any new changes in behavior.

What would this mean in practice? It would mean that drug felons sentenced to what currently is a 20-year mandatory minimum sentence (reserved for repeat offenders trafficking in the largest amounts) could be back in the community in as little as 7 years, 10 months (as opposed to 16 years, 1 month under current law).

Drug felons sentenced to a 10-year mandatory minimum sentence (reserved for repeat offenders trafficking in significant amounts and first-time convicts trafficking the largest amounts) could be back in the community in as little as 5 years (as opposed to 7 years, 4 months under current law). And drug felons sentenced to a 5-year mandatory minimum (reserved for first-time offenders trafficking in significant amounts) could be back in as little as 2 years, 2 months (as opposed to 3 years under current law).

The bill thus increases risks to public safety, eviscerates the concept of truth in sentencing, and reduces the consequences for many of the worst criminals, including gang members and drug traffickers.

The legislation is so flawed, so perverse, that Democrats couldn’t get it enacted under the Obama administration. It would be scandalous for them to get it done under the Trump administration. Yet, for reasons to be discussed in a later post, the chances of them accomplishing this are considerable.

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