Yesterday, I wrote about President Trump’s support for what Sen. Tom Cotton calls jailbreak legislation. That legislation, known as FIRST STEP, enables the early release from federal prison of most categories of federal felons and sets lower mandatory minimum sentences for many federal drug felons.
Yesterday’s post focused on the politics of FIRST STEP. Today, I want to focus on how the legislation would affect fentanyl dealers. I focus on them because Trump has promised to get tougher on this category of drug dealer. Indeed, he seems to have advocated the death penalty for fentanyl dealers whose dealing leads to a death. (Of course, every fentanyl deal carries the potential of leading to a death and, short of that, ruining a person’s life).
Yet now, Trump is backing legislation that will enable the early release from prison of the vast majority of those who deal this deadly substance which America is producing so much tragedy in America today.
Here’s the problem: FIRST STEP provides for the awarding of early release time credits (in effect a get-out-of-jail card) to every category of federal felons except categories specifically exempted. But in the case of drug traffickers, only those found by the sentencing court to be an organizers, leaders, managers, or supervisors” are exempt. Ordinary dealers are not. They are eligible for the get-out-of-jail card.
A serious drug trafficking operation has many more dealers than “organizers, leaders, manager, and supervisors.” Moreover, felons higher up in a trafficking operation often plead down to a mere dealing offense, with the result that the sentencing court doesn’t find them to be an organizer, leader, manager, or supervisor.
Thus, according to Sen. Tom Cotton, more than 90 percent of federal felons who traffic in fentanyl will fall outside of the exemption for drug dealers. In other words, they will be in the category of those eligible for early release.
As if this leniency for these life-destroyers were not enough, many drug traffickers would be serving shorter sentences to begin under FIRST STEP. The result of shorter sentences and early release will is a huge reduction in jail time for drug traffickers as a class — at least half of today’s sentence in some cases.
This is not what President Trump promised. It is the reverse.
Sen. Cotton has laid out this case in a series of tweets. I reproduce the case below, minus the statutory references, which you can find at the link to his account:
Proponents of the First Step Act have said that “nothing in the First Step Act gives inmates early release.” [Note: I think Tom is referring to Sen. Mike Lee who attacked him on Twitter] But look at what the bill does to a fentanyl trafficker convicted of trafficking 1lb (enough to kill >100K people) under §841(b).
Assume this trafficker has a prior serious drug felony. Under current law, minimum 20-year sentence. Under the First Step Act, reduced to 15 years, or 5 years earlier release.
Next, trafficker is eligible for expanded “good time” credits because bill allows offenders to earn 54 days credit for each year sentenced instead of each year served. This section is applied retroactively, too.
Then, bill creates new “time credits” section, and trafficker can get 10 days credit per 30 spent in “evidence-based recidivism reduction programming or productive activities.” 15 days if “low-risk.” This = up to 1/3rd of the sentence, or 5 out of 15 years.
Some offenders ineligible for this, but fentanyl traffickers are eligible. Only fentanyl organizers—under 10% of traffickers—are excluded. This was sticking point in negotiations. @NationalSheriff & I wanted all excluded. Drafters said no.. . .
If the trafficker in “low-risk” category, he can use credits to transfer into “pre-release custody or supervised release.” In other words, he’s out early. If high-risk, trafficker still gets 25% 841(b) reduction.
This trafficker went from 20-year sentence to out in about 10 years (or less, if combined with programs already in law) if low-risk and out in 15 years if high-risk. Yet proponents claim there’s “no early release.” Should we not hold a hearing on this bill?
(Emphasis added)
Of course, the Senate should hold a hearing. But that’s not acceptable to Team Leniency. It knows FIRST STEP can’t withstand the scrutiny a hearing would produce.
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