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DOJ Overtly Attempts to Undermine President Trump's Prison Reform Agenda

Over the past several months, there has a been a campaign against the FIRST STEP Act, H.R. 5682, waged by a handful of reactionaries whose mindset is better suited for the 1980s. It has been suspected, although not confirmed, that the talking points against the bill were coming from the Department of Justice (DOJ). We now know this to be an indisputable fact.

For those who aren’t familiar with the FIRST STEP Act, the bill would require the development of a risk and needs assessment to determine the intensity of programming for the prisoner based on his or her risk of recidivism.

The bill would also provide a modest incentive structure to eligible prisoners to earn time credits for successfully completing this programming and showing concrete progress toward reducing their risk of recidivism. Certain offenders -- such as those who committed violent offenses, sex crimes, and other specific offenses -- are ineligible for time credits.

Seems reasonable enough. After all, states like Georgia, South Carolina, and Texas have implemented reforms similar to those in the FIRST STEP Act and seen success in reducing recidivism and prison populations, as well as averting corrections costs, such as new prison construction or expansion, or resulting in budgetary savings.

Still, there are some reactionaries who ignore the successes of the states and oppose the FIRST STEP Act.

The Washington Free Beacon has obtained a letter, dated July 12, written by Assistant Attorney General Stephen Boyd to then-White House Director of Legislative Affairs Marc Short that is full of misleading statements and, in some instances, outright falsehoods about the FIRST STEP Act. Clearly, this is letter is an act of desperation.

President Donald Trump and the White House have embraced the FIRST STEP Act. The president mentioned prison reform in his State of the Union address in February and, in May, hosted an event at the White House to rally support for the effort where he spoke about his support. On Wednesday, President Trump reiterated his support for the bill. "We passed the First Step Act through the House," he said, "and we’re working with the Senate to pass that into law."

Ironically, although this bill enjoys bipartisan support both inside and outside of Congress, it also has bipartisan opposition. The unusual bedfellows working to stop the FIRST STEP Act from becoming law include Attorney General Jeff Sessions and Sens. Cory Booker (D-N.J) and Kamala Harris (D-Calif.), albeit for vastly different reasons.

We have already addressed some of the misleading statements about the FIRST STEP Act. In May, shortly before the bill passed the House in a 360 to 59 vote, we explained how the 500 driving mile provision in the bill would work and how the bill would restore congressional intent to truth-in-sentencing law. We followed up in June to debunk misleading claims about how the bill would treat illegal immigrants and recidivism of prisoners at the state level.

The letter from Assistant Attorney General Stephen Boyd is deserving of special attention because it makes so many impressively misleading or false claims about the FIRST STEP Act.

“The number of federal inmates has declined more than 16 percent since 2013 and is at its lowest level since 2004. It is likely no coincidence that, at the same time, we are in the midst of the largest drug crisis in our nation’s history and recently experienced the two largest single-year increases in the national violent crime rate in a quarter of a century.”

Whoa, boy. Simply put, correlation doesn't mean causation. The Pew Charitable Trusts found that 35 states simultaneously reduced prison populations and crime between 2008 and 2016. Twenty-one states saw double-digit declines.

We’ve previously addressed the violent crime rate. Although the violent crime rate did rise in 2015 and 2016, a national trend doesn’t appear to be developing. As then-Attorney General Alberto Gonzales said in a 2007 speech after two consecutive years of violent crime rate increases: “In general, it doesn’t appear that the current data reveal nationwide trends. Rather, they show local increases in certain communities. Each community is facing different circumstances, and in many places violent crime continues to decrease.”

Indeed, the United States saw two consecutive years, 2005 and 2006, in which the violent crime rate increased. By 2008, violent crime was back on a downward trajectory. Although the Federal Bureau of Investigation won’t release the 2017 Uniform Crime Reporting (UCR) until September, the preliminary report for the first six months of 2017 shows a slight decline in violent crime over the first six months of 2016.

The Major Cities Chief Association compared 2017 data from 65 reporting jurisdictions to 2016 data and found that number of homicides were down in Atlanta, Baltimore, Chicago, Houston, New York City, San Antonio, and Washington, D.C. The data does not include the homicide rate per 100,000 inhabitants.

“First, this legislation would eliminate important restrictions on the portion of sentences that federal inmates could spend outside of a Bureau of Prisons (BOP) facility in prerelease custody, such as residential reentry centers (halfway houses) or home confinement… It would, in effect, allow a backdoor early release, affecting a major alteration in the federal government’s truth-in-sentencing philosophy.”

Truth-in-sentencing laws require that inmates serve a certain portion, most often 85 percent, of their sentence in custody before being released. Earned time credits under the FIRST STEP Act still maintain BOP custody over inmates while in transitional housing, and is not equivalent to release or a sentence reduction.

“Second, the Department is concerned about the legislation provisions that would allow criminals to be given substantial time credits for participation in nearly any activity.”

The earned time credits outlined in the FIRST STEP Act are nowhere near as widely available as DOJ portrays in its letter. They are only eligible to be earned by those who have proven themselves to be of minimum or low risk to recidivate and has been determined by the warden of the prison to not be a danger to society if transferred to prerelease custody.

Additionally, time credits are not available for “nearly any activity.” Activities that eligible prisoners may earn time credits for “evidence-based recidivism reduction programs or productive activities, according to their specific criminogenic needs,” as determined by a risk and needs assessment.

“This would effectively function as a blanket, one-third reduction in the amount of time that many convicted felons would spend in BOP custody.”

Aside from being false on the count of how easy and accessible earned time credits are to earn, let alone to cash in, the rest of the statement is false as well. Again, time spent in transitional housing outlined in the legislation is still time in BOP custody. Pre-release custody is just that -- custody. To say that earned time credits will result in reduced time in BOP custody is to tell a flat-out lie.

“The legislation would also revise the current good conduct credit system to allow inmates to earn time off for good conduct for time they did not actually serve in prison.”

DOJ frames this policy change in a negatively skewed light. And, we’ve been over this one before. The FIRST STEP Act amends 18 U.S. Code 3624(b) to reinforce the existing statute, which says a prisoner “may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment” if “the prisoner has displayed exemplary compliance with institutional disciplinary regulations.”

Congress clearly intended this provision to be in full compliance with truth-in-sentencing laws that require inmates to serve at least 85 percent of their sentence in BOP custody, as the 311 days one would serve per year for good time is almost exactly 85 percent of 365 days, or a whole year.

The Bureau of Prisons, however, has calculated good time credits based on days actually served, not the sentence length, or “term of imprisonment” as the statute intends. This has resulted in a maximum of 47 days of good time per year, instead of the intended 54 days. That the legislation revises the current good conduct credit system is a positive change, restoring true congressional intent to the system.

Also, keep in mind that the Department of Justice opposes this provision because it would give a maximum of one week of good time credit per year to the most well-behaved, model prisoners. These prisoners who have earned the full amount of good time credits are the least likely to reoffend after release from a federal facility.

“For example, under the bill, a repeat drug trafficker who distributed thousands of doses of lethal fentanyl would be able to combine these programs to be back in the community he ravaged after serving only approximately five years of a ten-year mandatory minimum sentence.”

Again, this is simply not true. The FIRST STEP Act clearly states that individuals who are convicted of a crime under “Section 401(a) of the Controlled Substances Act, relating to manufacturing or distributing a controlled substance, but only in the case of a conviction or offense...of that section for which death or serious bodily injury resulted from the use of such substance,” would not be eligible to earn time credits. The individual being described would most likely have been convicted of a crime under the aforementioned statute. Therefore, the maximum time that this individual could earn off of his sentence through good time credits, which are different than the earned time credits, would be consistent with truth-in-sentencing laws of 15 percent, or in this case, approximately one and a half years.

Even if an individual convicted of a similar crime that did not result in “death or serious bodily injury” was eligible for earned time credits by meeting all other requirements under the FIRST STEP Act, he or she could earn a maximum of 10 days to be served in transitional housing for each 30 days of successfully completed programming. This is still not time off of the mandatory minimum sentence, as the letter says, because time in transitional housing is, again, time in BOP custody and time being served on a sentence.

“Third, the time credit eligibility requirements under the bill would allow many of the most serious, violent criminals in federal prison...to be released early.”

Firstly, nobody is being released from their sentences early via earned time credits. This point has been emphasized time and time again.

Secondly, the serious and violent crimes for which prisoners are ineligible to receive time credits if they are convicted of are listed ad nauseum in the FIRST STEP Act, including “relating to assault with intent to commit murder,” “relating to explosives and other dangerous articles,” “relating to distribution of information relating to explosive, destructive devices and weapons of mass destruction,” “relating to the use of fire or an explosive,” “relating to homicide,” “relating to kidnapping,” “relating to peonage, slavery, and trafficking persons,” “relating to terrorist attacks,” “relating to bank robbery resulting in death,” “relating to robberies and burglaries involving controlled substances resulting in death,” “relating to sabotage,” “relating to sexual abuse,” “relating to the sexual exploitation of children,” “relating to certain activities relating to material involving the sexual exploitation of minors,” “relating to terrorism,” “relating to torture,” “relating to treason,” and the list goes on. Clearly, to say that many of the most serious and violent criminals will be released by this legislation is entirely off-base.

“The bill lists a few particular convictions as disqualifying.”

The aforementioned list, which is not exhaustive, lists many, many more than just “a few” disqualifying convictions. The twisting of words to give the impression that earned time credits are available to serious and violent criminals is intentionally misleading and an attempt by DOJ to misrepresent what the bill would do in practice.

“Fourth, the Department is concerned that the legislation as drafted will be interpreted to provide significant benefits to illegal aliens, including...releasing them early (for maximum amount of time allowable by law) to home confinement.”

We have debunked this notion in an earlier post, noting that prisoners subject to ICE detainers wouldn’t be eligible for placement in home confinement. As was noted in that post,

“Taylor Millard recently wrote about this in a blog post at Hot Air, in which he thoroughly debunked this claim made by opponents of the FIRST STEP Act, with an assist from John Koufos of Right on Crime. Under current Bureau of Prisons' regulations, a prisoner who is subject to an ICE detainer wouldn't be eligible for placement in home confinement."

"Detainers are defined in BOP Program Statement 5800.15 as such: 'A formal request from a Federal, state, or local jurisdiction for an inmate’s custody upon completion of a term of imprisonment. This definition includes requests for criminal and non-criminal charges (e.g., material witnesses, deportation, probation/parole violator warrants, child support, etc.).' A federal agency such as ICE would be given priority over state or local detainers.”

“A separate regulation, BOP Program Statement 7310.04, makes it clear that "detainee inmates" -- that is, a prisoner subject to a detainer -- isn't eligible are excluded from placement in Community Corrections Centers. Other limitations, including a limitation on "[i]nmates who are assigned a 'Deportable Alien' Public Safety Factor," also apply. Another regulation, BOP Program Statement 7320.01, CN-2, excludes inmates with public safety factors from placement in home confinement.”

“Fifth, the legislation would impose impossible administrative burdens that would cripple BOP and impose significant costs on taxpayers”

The most crippling cost for BOP is over-incarceration of individuals who do not pose true threats to public safety. The goal of prison reform is to ensure that our correctional system does what it is meant to do and allows individuals to succeed in society -- corrected, if you will -- following release. The federal prison system has overwhelmingly failed to do its job, with recidivism rates near 40 percent.

The cost on taxpayers to provide evidence-based programming in prisons proven to prevent recidivism is nothing compared to the taxpayer savings that come from reducing recidivism rates and saving over $35,000 per year per person who is not reincarcerated as a result of a failing government bureaucracy that was unable to create the result it is intended to.

“Furthermore, the legislation would require BOP to incur significant additional costs for long-term use of halfway houses and home confinement (both of which are costlier than housing inmates in federal custody).”

This is also simply false. Halfway houses are slightly less expensive per year than the average cost of incarceration in a federal prison facility, and home confinement is significantly less expensive. Additionally, minimum and low risk individuals placed in transitional housing as a result of earned time credits are able to use this time to reintegrate more successfully into society as a result of the time credits and further reduce their risk of recidivating.

All of this contributes to taxpayer savings both in preventing taxpayer resources from being used on their reincarceration and in their economic contributions to society as a result of being productive, law-abiding, taxpaying citizens once again.

“Finally, the legislation would require substantial expenditure of BOP, prosecutorial, and court resources as it allows prisoners to file motions for compassionate release in federal court.”

Again, the government resources spent on keeping elderly, sick individuals incarcerated in their dying weeks and months would be much better placed working to remove the burden of these individuals’ cost in these weeks and months, not only to carry out the “compassionate” aspect of compassionate release, but also to create taxpayer savings in the end.

At its core, what the Department of Justice has done in this letter is taken a stance in direct opposition to the outlined and vocally expressed support for the prison reform measures endorsed by President Trump and his White House. Since his initial remarks on the need for prison reform in his State of the Union Address in January of this year, the support for prison reform inside the Trump White House has grown stronger and stronger.

As recently as this afternoon, the president himself reiterated his support for the FIRST STEP Act in a meeting with a group of inner city pastors from around the nation. He passionately discussed the massive benefits that result across the board from employing returning citizens, which is precisely what the FIRST STEP Act is carefully tailored to do efficiently and safely.

"Send a bill to my desk. I will sign it," President Trump said to a bipartisan group of criminal justice stakeholders in May prior to the passage of the FIRST STEP Act in the House. "It will be strong and it will be good, and it will be what everybody wants."

Everybody, it would appear, except for the Department of Justice. It is long past time for the DOJ to look at the facts and accept the reality that prison reform and justice reinvestment work for public safety, for fiscal responsibility, and for common sense. They should and must cooperate with, not thwart the efforts of, experts on both sides of the aisle to see the FIRST STEP Act signed into law and subsequently to see that the law is faithfully executed, as is the Department of Justice’s constitutional duty.

Jason Pye contributed to this blog post.