Response to Senator Tom Cotton’s false and misleading claims about the FIRST STEP Act
In his latest media blitz attempting to derail a bipartisan breakthrough to improve the federal criminal justice system, U.S. Senator Tom Cotton made a series of false or misleading statements in an interview with Politico and a piece authored for the National Review Online that deserve a response.
To derail reform, Cotton either overlooks or deliberately ignores the bill’s many safeguards — which are specifically designed to protect public safety. As the loudest defender of the failing status quo, the Arkansas Senator seems desperate to undermine President Trump and his bipartisan allies — who are winning more Republican, Democratic and law enforcement support every day for the FIRST STEP Act.
Perhaps worse: Cotton’s only barometer for success seems to be how many people we lock up in our federal prisons and how long we can keep them there. Unfortunately, Cotton is woefully out of step with the times — and his own party.
Nearly a decade ago, conservative reformers realized that America’s experiment with “punishment-only” prisons had wasted taxpayer money and created more crime. That’s why conservative, anti-crime governors like Rick Perry in Texas and Nathan Deal in Georgia took on the status quo in their home states; they fought successfully to implement “punishment-plus-rehabilitation” models that cut the prison population, while lowering the crime rate and making their communities safer.
The FIRST STEP Act attempts to bring the wisdom of those red state reforms to the failing federal system. This breakthrough legislation aims to transform the federal prison system so that men and women return to communities after prison with the life-skills and vocational training they will need to successfully rejoin society as positive, contributing members.
Following the examples of Texas and Georgia, the First Step Act proposes that the Federal Bureau of Prisons:
- Analyze its existing programs for their effectiveness;
- Establish a Risk and Needs Assessment system to evaluate every incarcerated individual, placing them into four categories (Minimal, Low, Medium, and High Risk);
- Match individuals to the programs they need most (like education, mental health support, and vocational training), prioritizing the highest risk individuals for the most programs;
- Encourage participation in programming with meaningful incentives; and
- Inject the prison system with the resources necessary to bring it into the modern era, including $325 million over five years, expanded access for volunteers, nonprofit and faith-based partnerships, and a commitment to reinvest cost-savings into the system.
The FIRST STEP Act also includes four sentencing reforms that address some of the harshest and most outdated federal sentencing laws, many originating from President Clinton’s 1994 Crime Bill. States that implemented similar reforms to their prison system and sentencing laws saw crime rates plummet and wasteful spending on prisons shrink.
Every year, approximately 40,000 people are released from federal prisons after completing their sentences. Under the present system, many of them will return worse off than when they went in. It is not a question of IF or WHEN they come home. The question is HOW they will come home — and WHAT prisons can do to best prepare them to come home as a job-ready, crime-free contributors to our society.
Myth #1: Thousands of dangerous people would be released from prison early, threatening public safety
Ideally, every incarcerated person should return home from prison job ready and personally transformed. The FIRST STEP Act creates an Earned Time Credit system that gives incarcerated persons a meaningful incentive to participate in programs that the BOP has shown to be effective at helping people prepare to live productive lives, after they are released. For every 30 days of programming, an individual can earn 10 days of Earned Time Credit. These credits can be used to shorten the amount of time that one stays in prison. Instead, they earn the chance to serve the remainder of their sentence in “Pre-Release Custody,” meaning in a halfway house, on home confinement, or on community supervision.
Senator Cotton claims that this credit system allows individuals who are a threat to public safety, or who have committed egregious crimes, to receive “early release.” However, there are three important safeguards that Senator Cotton has overlooked or ignored:
- First, individuals placed in pre-release custody are in fact still under the close supervision of the federal government. They serve out the full term of their sentence – but they serve a small portion of their time in alternative custody not prison. Evidence shows that allowing individuals to re-acclimate to society post-incarceration reduces the risk of future crime. This approach lets people continue establishing life-skills and vocational training outside the confines of often overcrowded or dangerous prison conditions but still closely monitored by law enforcement agencies. Earned credits do not result in outright release; they result in release to supervision. In other words, every single person who benefits remains under the requirements of supervision until their entire sentence is served.
- Second, in order to qualify for pre-release custody transfer, a prisoner must be shown for two consecutive annual risk assessment reviews to be placed in the Minimal or Low risk category and to not have increased their risk score. This risk-assessment prevents the transfer of people who are at high risk of future crime. Unless and until the person in prison works their way down to a low-risk category, through demonstrating their commitment to and success at rehabilitation, they cannot use their Earned Time Credits to be transferred into any form of pre-release custody. They will stay incarcerated until they show, for two consecutive years, a deep and demonstrated commitment to their own rehabilitation.
- Third, there is a list of exclusions that prevent people who have been convicted of certain serious crimes from earning or cashing in any credit. According to the CBO analysis, 61% of federal inmates would be ineligible for the earned time credits due to the 50+ offense-based exclusions. Notably, these individuals still access the benefits of increased programming, which they have a demonstrated need to receive, but they cannot benefit from any transfer to prerelease custody.
Providing Earned Time Credits is a proven policy – championed in many conservative states, by conservative governors. It is time for the federal system to get people who need the most help into the programs that will help them the most.
Finally, the FIRST STEP Act also fixes the math on already existing Good Time Credits. As is the case now, Good Time is automatically granted to every individual in the federal prison system as an incentive to not get in trouble or violate rules of the prison. If you are not in good standing, your Good Time credits are taken away. Unfortunately, the BOP in practice, has used an erroneous calculation to award only 47 days per year of Good Time credit. The FIRST STEP Act would force the BOP to follow original Congressional intent, which was 54 days.
By letting people who stay out of trouble get home sooner, this one fix would save approximately $1 billion after the first year and, conservatively, about $40 million per year thereafter. It would also let prison officials focus more resources on those who continue to get in trouble, rather than warehousing reformed people who have changed their ways.
Myth #2: The bill requires extraordinary faith in the government’s ability to predict the recidivism risk of violent felons; i.e. we cannot trust BOP’s judgement about who is safe for release
By placing individuals into its care and custody, the BOP is already entrusted with the responsibility to keep us safe from people who have committed serious and violent crimes.
If we take people who have committed serious offenses and put them in an environment where they are further damaged by the unsafe and barbaric conditions of the federal prison system, they will return to communities eventually as more hardened criminals with an increased likelihood of continued criminal activity. A 2012 Government Accountability Audit stated that “the federal inmate population has negatively affected inmates, staff, and infrastructure…BOP officials reported increased use of double and triple bunking, waiting lists for education and drug treatment programs, limited meaningful work opportunities, and increased inmate-to-staff ratios. These factors, taken together, contribute to increased inmate misconduct, which negatively affects the safety and security of inmates and staff.” Not only do these conditions threaten the safety of people who work and live in federal correctional facilities, they also threaten public safety when incarcerated individuals return home. That is the pro-crime status quo.
Additionally, the Risk and Needs Assessment System that is proposed in the FIRST STEP Act would rely upon a deep analysis of research and data on what works over time. There is ample evidence that show a variety of factors that either increase or decrease an individual’s likelihood to commit future crimes. Relying on data and evidence to make decisions has improved public safety in states that have passed similar reforms – it is past time to bring these same effective policies that enhance public safety to the federal system.
Myth #3: “Productive activities” is defined so vaguely that, according to the BOP, playing softball or watching movies will result in new time credits. If the credits are this easy to get, how will this change the behavior of serious felons?
The First Step Act proposes two levels of programming – “recidivism reduction programs” and “productive activities.”
The recidivism reduction programs are those that have been analyzed by the BOP to be most effective at meeting the criminogenic needs of high-risk individuals who are incarcerated and replacing anti-social behavior with pro-social habits. The Risk and Needs Assessment System prioritizes the highest needs prisoners with the most impactful programs. High-risk individuals are also high-need individuals. Currently, our system only categorizes them as high-risk (through the current classification of “high-security), and then uses that categorization to deprive them of critical programming, leaving them to waste away until their release date. If we want our communities to be safer, high-risk individuals need to be matched to the highest quantity and most effective quality of programming. This will help prevent future crime.
The second category of programs are called “productive activities,” which only a limited category of federal prisons would be eligible to earn Time Credits for participating in. These productive activities only qualify for time credits if an individual is in a minimal or low risk category. This allows for people with a lower risk and needs classification to access a broader pool of programs and activities in order to earn credit, because their classification shows that they are not high needs and can benefit from less regimented programming.
Myth #4: Law Enforcement groups oppose the bill
170+ former Attorney Generals, Deputy Attorney Generals, Judges, and US Attorneys who have signed statements in support of the First Step Act. Law enforcement leaders across the country have authored opinion pieces heralding these much-needed reforms to the federal system, applying the time-tested policies from states that have implemented such reforms.
National law enforcement groups like the Fraternal Order of Police and the International Association of Police Chiefs, National District Attorneys Association, The National Organization of Black Law Enforcement Executives, Law Enforcement Leaders to Reduce Crime and Incarceration, Major City Chiefs Association, and Major County Sheriffs of America have all been supportive of the measure.
In a statement, the Fraternal Order of Police said the bill “will make our streets and neighborhoods safer [and] our police will be better protected.” The bill will also “improve the ability of our criminal justice system to effectively rehabilitate offenders,” the group said.
Myth #5: This is a rushed process with no hearings; we need more debate
We’ve been talking about the same basic premise for the past 5+ years in Congress. Since 2009, when Congress passed the Fair Sentencing Act, it has been clear that the 1994 Crime Bill and other “tough on crime” policies were a failed experiment. Their causal impact on crime reduction is slim-to-none. These policies have wasted billions of dollars, and they have devastated millions of lives.
To hold back bipartisan progress, Tom Cotton’s only hope is to sow fear and doubt about these evidence-based reforms. In Texas and Georgia, some people also stooped to fear-mongering. But scare tactics failed in the red states, and they seem certain to fail in the U.S. Congress, too.
The punishment-only approach has failed everywhere. The punishment-plus-rehabilitation model is succeeding in red states. Tom Cotton believes that we should punish people who break the law. Few disagree, if any. The problem is this: we are not doing enough to help people in federal custody turn away from their past and toward a better future.
Virtually everyone in prison is one day released. Unless we give them an incentivized opportunity to rehabilitate, too many come out as more of a risk to the community and more likely to reoffend. About half will be re-arrested within five years. Those who do succeed will do so by the grace of God, the support of family, or incredible perseverance – not because the Bureau of Prisons fulfilled its duties.
Advocates of the FIRST STEP Act are fighting against the status quo in our federal prisons, which is essentially a pro-crime environment. Tom Cotton is standing up for the status quo, which is pro-crime. We are fighting for peaceful streets — to make communities safer and better. Passage of the FIRST STEP Act will represent the biggest leap forward for community safety in a generation.