Alarmist Nonsense Should Not Stop Sentencing Reform: Modest Changes in First Step Act Are No Threat to Public Safety

By Jacob Sullum

November 21, 2018 5 min read

The federal sentencing reforms that Donald Trump endorsed last week could shorten the terms of 2,700 or so drug offenders who are already in prison and perhaps another 2,200 who are sent there each year. That amounts to 1.5 percent of the current federal prison population and 3 percent of the federal defendants sentenced in fiscal year 2017, respectively.

These reforms, which are included in the Senate version of the aptly named First Step Act, are extremely modest, especially since the federal system accounts for only 9 percent of the 2.2 million people incarcerated across the country. Yet opponents of the bill portray it as a reckless gamble with public safety, which is how they portray every attempt to make our obscenely bloated, mindlessly punitive criminal justice system even slightly more proportionate and discriminating.

"A dangerous person who is properly incarcerated can't mug your sister," says Sen. John Kennedy (R-La.). "If we're not careful with this, somebody is going to get killed."

"Unaccountable politicians and those who live behind armed guards may be willing to gamble with your life," writes Sen. Tom Cotton (R-Ark.). "But why should you?"

To hear Kennedy and Cotton tell it, Congress is on the verge of freeing hordes of muggers and murderers. That is not remotely true, and they know it.

The only sentencing provision of the First Step Act that affects current prisoners is retroactive application of the Fair Sentencing Act, which Congress overwhelmingly approved — by a voice vote in the House and unanimous consent in the Senate — eight years ago. That law reduced the unjust, irrational disparity between the smoked and snorted forms of cocaine, but it did not apply to crack offenders who had already been sentenced, so thousands of people continued to serve prison terms that pretty much everyone agreed were too long.

The most consequential forward-looking sentencing reform in the First Step Act, which might help about 2,000 defendants a year, widens the "safety valve" that exempts certain low-level, nonviolent offenders from mandatory minimums. The bill raises the number of allowable criminal history points and authorizes judges to waive that requirement when a defendant's score "substantially overrepresents" the seriousness of his criminal history or the danger he poses.

Two other reforms in the bill would apply to just 50 or so defendants a year, but they address serious, long-standing and widely recognized injustices. One provision clarifies that escalating mandatory minimums for drug offenders who have guns require prior convictions, rather than multiple charges in a single case.

The case of Weldon Angelos, a first-time offender who received a 55-year mandatory minimum in 2004 for three marijuana sales totaling a pound and a half, dramatically illustrates the problem that provision addresses. Because Angelos allegedly carried a pistol during one pot sale and had guns nearby during the other two, prosecutors charged him with three counts of using a firearm in the course of a drug trafficking offense, triggering a five-year sentence for the first count and 25-year sentences for the second and third, all to be served consecutively.

The fourth sentencing reform in the First Step Act narrows the criteria for mandatory minimums that apply to repeat drug offenders and reduces the sentences, from 20 to 15 years for defendants with one prior conviction and from life to 25 years for defendants with two. Only politicians who think nothing of locking people in cages for decades based on conduct that violates no one's rights could possibly view those changes as soft on crime.

These reforms, which represent compromises on top of compromises, have attracted broad bipartisan support, including the backing of a president who ran on a "law and order" platform modeled after Richard Nixon's. Senate Majority Leader Mitch McConnell (R-Ky.) has promised a vote on the bill, and he should not use the alarmist nonsense emanating from the likes of Kennedy and Cotton as an excuse to renege on that commitment.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

Photo credit: at Pixabay

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