Vote Alert: Release dangerous criminals from federal prisons

This vote was to pass the First Step Act, an expansive prison reform bill that reduces prison sentences for drug traffickers, increases the discretion judges have to avoid mandatory sentencing, and mandates that administrative agencies create ill-defined programs to accelerate release for federal prisoners.

A conservative approach to criminal justice should be rooted in downgrading nebulous, over-criminalized regulatory crimes while getting tougher on those who harm other people and fuel the violence in our major cities. Unfortunately, far from applying only to low-level, nonviolent, first-time offenders, as proponents suggest, the First Step Act offers front-end and back-end leniencies in sentencing and time served for many hardened criminals, including criminal illegal aliens.

This legislation:

• Reduces mandatory sentences for many of the worst repeat drug traffickers targeted by federal prosecutors during the worst drug crisis in American history. Every repeat drug trafficker subject to the mandatory minimums, including high-level international cartel officials, will benefit from reduced mandatory sentencing regardless of their prior criminal history or the type of drug.
• Expands the safety valve, which allows judges to avoid the mandatory sentencing altogether, to include people who potentially have a significant criminal history, as opposed to first-time criminals.
• Offers numerous back-end early release programs that apply retroactively so that many (but not all) drug traffickers and many other dangerous criminals in the federal system can serve at least one-third of their sentences in home confinement or full release into parole. Roughly 4,000 felons, including those with extensive records of violence and gang membership, will be eligible for immediate release when this bill becomes law. Between front-end and back-end sentencing cuts, many repeat drug traffickers will see their sentences cut in half.

Many conservative organizations and activist groups supported this legislation under the belief that participation in the training and educational programs required to qualify for early release will help reduce recidivism for ex-convicts and lower crime in the long term. However, that optimistic belief in criminal justice reform principles glossed over the actual text of the First Step Act and the nature of the federal prison system.

The federal prison population is only about 10 percent of the nationwide incarcerated population and on average is made up of the most dangerous criminals, particularly the ones serving for drug trafficking. While supporters of the bill argue that incarceration rates in the United States are at record levels broadly, that is simply not true, particularly in federal prison. The federal prison population shrank by 17.6 percent in raw numbers from 2013 to the present. State prison populations have declined every year for the past decade, and with the population growing, the percentage of adults in the U.S corrections system (combined federal and state) is lower than at any time since 1993.

Those who remain in federal prisons often have significant criminal records in the state system and typically plead down from more serious charges. According to the U.S. Sentencing Commission, 72.8 percent of those convicted in the federal system in 2016 had prior convictions, and those with prior convictions had an average of 6.1.

Proponents of the bill say that convicts must participate in recidivism reduction programs in order to obtain early release, but these programs are ill-defined as “productive activities.” Congress delegated the design of these programs to the administrative state, abdicating its responsibility to make clear laws to unelected bureaucrats who change priorities and policies with every new presidential administration. There are already numerous recidivism reduction programs that are either mandatory or have high rates of participation, yet nothing in this bill ensures that prisoners have to engage in anything more substantial than what is already law, much less proven activities that will reform them.

According to Bureau of Justice statistics, states’ experiments with similar recidivism reduction programs fostering early release resulted in 68 percent of released state prisoners being re-arrested within three years, 79 percent within six years, and 83 percent within nine years. Most importantly, 77 percent of released drug offenders were arrested for a non-drug crime within nine years, and more than a third were arrested for a violent crime.

Finally, proponents of the bill argue that the early release only applies to nonviolent criminals. Yet leaders in Congress like Sen. Tom Cotton, R-Ark., and Sen. John Kennedy, R-La., confirmed that several violent crimes ranging from assaulting a law enforcement officer to first-time assault with intent to commit rape were not excluded by the First Step Act. Cotton offered amendments to the legislation that sought to exclude more classes of sex offenders and violent criminals, to require the government to notify victims of a crime before prisoners are released, and to require the Bureau of Prisons to track the re-arrest rates of those who are released early. Those amendments and other important amendments that would have strengthened the bill and corrected several of these problems were rejected by the Senate before the bill was passed.

The conservative prison reforms pursued by President Ronald Reagan in the 1980s strengthened sentencing laws and led to a significant drop in crime across all categories of offenses in the 1990s. The First Step Act embraces an opposing philosophy of criminal justice and takes a step backward in protecting Americans from violent criminals.

For more of Conservative Review’s coverage of the First Step Act, click here.

The U.S. Senate voted to pass the First Step Act on December 18, 2018, at 8:22 p.m. in a roll call vote of 87 – 12.

The House of Representatives voted to pass the Senate version of the bill on December 20, 2018 at 1:58 p.m. in a roll call vote of 358 – 36.

To see how your elected officials stack up or other votes that compose the Liberty Score, view our full scorecard here.

Conservative position: NO

U.S. Senate

YEAs — 87

Alexander (R-TN)

Baldwin (D-WI)

Bennet (D-CO)

Blumenthal (D-CT)

Blunt (R-MO)

Booker (D-NJ)

Boozman (R-AR)

Brown (D-OH)

Burr (R-NC)

Cantwell (D-WA)

Capito (R-WV)

Cardin (D-MD)

Carper (D-DE)

Casey (D-PA)

Cassidy (R-LA)

Collins (R-ME)

Coons (D-DE)

Corker (R-TN)

Cornyn (R-TX)

Cortez Masto (D-NV)

Crapo (R-ID)

Cruz (R-TX)

Daines (R-MT)

Donnelly (D-IN)

Duckworth (D-IL)

Durbin (D-IL)

Ernst (R-IA)

Feinstein (D-CA)

Fischer (R-NE)

Flake (R-AZ)

Gardner (R-CO)

Gillibrand (D-NY)

Grassley (R-IA)

Harris (D-CA)

Hassan (D-NH)

Hatch (R-UT)

Heinrich (D-NM)

Heitkamp (D-ND)

Heller (R-NV)

Hirono (D-HI)

Hoeven (R-ND)

Hyde-Smith (R-MS)

Inhofe (R-OK)

Isakson (R-GA)

Johnson (R-WI)

Jones (D-AL)

Kaine (D-VA)

King (I-ME)

Klobuchar (D-MN)

Lankford (R-OK)

Leahy (D-VT)

Lee (R-UT)

Manchin (D-WV)

Markey (D-MA)

McCaskill (D-MO)

McConnell (R-KY)

Menendez (D-NJ)

Merkley (D-OR)

Moran (R-KS)

Murphy (D-CT)

Murray (D-WA)

Nelson (D-FL)

Paul (R-KY)

Perdue (R-GA)

Peters (D-MI)

Portman (R-OH)

Reed (D-RI)

Roberts (R-KS)

Sanders (I-VT)

Schatz (D-HI)

Schumer (D-NY)

Scott (R-SC)

Shaheen (D-NH)

Smith (D-MN)

Stabenow (D-MI)

Tester (D-MT)

Thune (R-SD)

Tillis (R-NC)

Toomey (R-PA)

Udall (D-NM)

Van Hollen (D-MD)

Warner (D-VA)

Warren (D-MA)

Whitehouse (D-RI)

Wicker (R-MS)

Wyden (D-OR)

Young (R-IN)

NAYs — 12

Barrasso (R-WY)

Cotton (R-AR)

Enzi (R-WY)

Kennedy (R-LA)

Kyl (R-AZ)

Murkowski (R-AK)

Risch (R-ID)

Rounds (R-SD)

Rubio (R-FL)

Sasse (R-NE)

Shelby (R-AL)

Sullivan (R-AK)

Not Voting — 1

Graham (R-SC)

House of Representatives*

*Minority party (Democrats) in italics.

YEAs — 358

NAYS — 36

 NOT VOTING — 38

*Minority party (Democrats) in italics.