Team leniency sells a bill of goods on FIRST STEP

Team leniency — the folks who favor shorter sentences for federal drug felon and favor letting these felons out of jail before their sentences have been fully served — promised it would push for such legislation as soon as the elections were over. They weren’t going to push for it before the elections because leniency legislation is massively unpopular.

Now that the elections are safely behind them, leniency supporters have started their push in earnest. We can expect that some form of their pet bill — the FIRST STEP Act — will be voted on by both chambers of Congress before the end of the year.

Whether leniency legislation is enacted ultimately depends, I think, on whether President Trump wants it. Trump has made at least one public statement suggesting that he does, but he has also privately expressed opposition. And, of course, toughness on drug crime and drug criminals has been a staple of his rhetoric. Indeed, he has suggested that fentanyl dealers should get the death penalty in some cases.

I’d like to believe that Trump won’t sign or support legislation that shortens sentences for federal drug felons and puts them back on the street before they have served their sentences. And I’d be surprised if he signs and supports such legislation against the wishes of the law enforcement community.

Until now, the law enforcement community has solidly opposed to leniency legislation. But now, one major law enforcement organization, the Fraternal Order of Police (FOP), has expressed support for FIRST STEP. You can read its statement of support here.

Fortunately, the other major organizations continue forcefully to oppose First Step. However, the FOP is, without a doubt, an important player.

Here’s the thing, though. The FOP has been sold a bill of goods. A reliable source on Capitol Hill says that, based on the most recent draft (as of November 10) of the First Step legislation, it appears that the bill’s authors have not followed through on the promises they made to induce FOP’s support — promises the FOP relies on its statement of support.

In some cases, yes, there is legislative language included that is relevant to the promises outlined in the FOP’s statement of support. However, the bill’s authors have also slipped in significant carve-outs and loopholes that render the touted language ineffectual. In other words, the bill’s authors have paid lip service to the promises made to the FOP, but haven’t actually delivered.

I expect to discuss these promises, and the failure to deliver on them, in a series of posts. Tonight, I will focus on one of them — the crucial promise that, to quote the FOP statement, “[T]ruly dangerous offenders, like those who commit crimes while armed and those who traffic in deadly narcotics like fentanyl, are ineligible to participate in the First Step program.”

I’m told that this promise is false. First, as to those who commit crimes while armed, the bill does contain an exclusion from the time credit system for offenders convicted of using or carrying a gun during a violent crime or drug trafficking offense. But the exclusion applies only if (1) the criminal has already been convicted of the same section (or an equivalent crime at the state level); and (2) the criminal has been able to “meaningfully participate” (whatever that means) in recidivism reduction programming during each of his prior gun convictions.

Thus, armed criminals are not precluded from benefiting from leniency legislation if they haven’t previously been convicted of the same crime (even if they have significant criminal histories). And repeat gun criminals are not excluded if they have ever served time for a previous gun conviction without “meaningfully” have gone through the recidivism reduction programming. (Assuming these programs are worthwhile, the premise of FIRST STEP, one can argue that if they had gone through such a program meaningfully, they wouldn’t have committed more offenses).

Thus, for example, if an offender had five previous gun convictions at the state and federal level, but only went through recidivism reduction programming four times, he would still get early release under the time credit program. How ridiculous is that?

Fentanyl dealers aren’t excluded either. The exclusion for them applies only if the trafficker is also found by the sentencing court to be an “organizer, leader, manager, or supervisor” in the drug trafficking operation.

The majority of fentanyl traffickers aren’t organizers or leaders of their drug trafficking organization. But they are still major contributors to the epidemic that is killing so many Americans. They are key accomplices to these killings.

As noted, President Trump has talked about tougher sentences for those who deal fentanyl. He wasn’t talking about just organizers and leaders of trafficking organizations.

Keep in mind, as well, that organizers and leaders of fentanyl dealing organizations can benefit from the leniency legislation by plea agreements under which they are not labeled as such. Indeed, according to my source, 93 percent of all drug traffickers (and 91 percent of all heroin traffickers—a close proxy for fentanyl traffickers, given that the Sentencing Commission doesn’t track the role adjustments for fentanyl traffickers specifically) did not receive an “organizer or leader” enhancement in 2017.

Thus, more than 90 percent of fentanyl traffickers would not be excluded from the time credit system based on the language of the latest draft bill.

Note too that this language does not exclude fentanyl traffickers from leniency if they traffic in multiple drugs (as virtually all fentanyl traffickers do) and are either convicted of or plead to trafficking in one of the other drugs (often because it is easier to prove heroin or cocaine trafficking than to prove which analogue of fentanyl was involved in the offense).

Again, President Trump didn’t advocate tougher sentences for 10 percent of fentanyl dealers, he advocated tougher sentences for all of them.

By contrast, and perversely, FIRST STEP delivers lighter sentences for up to 90 percent of fentanyl dealers and tougher sentences for none, not even those whose dealing directly causes death — the group Trump said should receive the death penalty.

The Fraternal Order of Police has been sold a bill of goods. President Trump shouldn’t buy it.