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Tucker Carlson and John Kennedy get the First Step Act all wrong

| July 25, 2019

Originally published in the Washington Examiner on July 24, 2019

When President Trump signed the First Step Act into law in December 2018, he was flanked by conservative senators and law enforcement officials. They were on hand to see him enact a carefully cultivated collection of criminal justice reforms, emulating on the federal level smart policy changes already successfully passed in red states such as Texas, Georgia, and South Carolina.

That’s why it’s surprising and concerning to see pushback to the reforms now coming from some on the Right, primarily due to a misreading of the legislation itself and a misunderstanding of its aims and outcomes.

The legislation championed by the White House and passed with bipartisan congressional support put public safety first. It created a system in which rehabilitation programming, those programs shown to reduce criminals reoffending after release, was expanded and incentivized.

So it was jarring to see an exclusive report on Fox News’s Tucker Carlson Tonight claiming that “Violent criminals and sex offenders released early due to ‘First Step Act’ legislation.” Citing an unnamed “administration official” with no explanation of how the offenders were supposedly released, host Tucker Carlson brought on Sen. John Kennedy, a Republican from Louisiana, to bash this legislation and rehash his opposition to its passage.

Yet Carlson and Kennedy get the First Step Act all wrong.

In reality, only certain lower-level inmates were given eligibility for home confinement or a halfway house placement. Many types of serious offenders, such as violent and sex offenders, were statutorily prohibited from accruing any “earned time” credit under the First Step Act, though they were still offered the recidivism-reducing programming afforded to other inmates.

The portion that Sen. Kennedy, and, likely, the anonymous Department of Justice official who spoke to Fox News, have seized upon is in Section 102 of the bill. Yet a closer inspection reveals their analysis is off the mark.

Back in 1984, the Sentencing Reform Act functionally eliminated federal parole, and replaced it with a system of “good time” credits. The new system created by Congress was that no less than 85% of an issued sentence must be served, and conversely that no more than 15% of the overall time can be deducted from the underlying sentence. While this was a less-preferable, one-size-fits-all approach, it offered some incentive for inmates to comply with the guard instructions and warden mandates, but it could be easily taken away.

Implementation problems with the Sentencing Reform Act arose when the Bureau of Prisons misinterpreted the prima facie legislative intent. The BOP erroneously interpreted the 1984 bill as to allow for a maximum good time credit of 47 days, but it should have been 54 days under a proper reading of the law.

So the Reagan-era law only had its application clarified by President Trump through the First Step Act. In other words, the First Step Act made no substantive changes to a policy that has been in place since 1984. It is a shame criminal justice hardliners and cooperative propagandists are using this small tweak to undermine the Trump administration’s laudable work to improve public safety.

Moreover, the segment grossly mischaracterizes the application of the “good time” credits. Carlson’s coverage left viewers with the impression that individuals who were not eligible for release are now being let out as a result of passing the First Step Act.

The truth of the matter is that roughly 95% of inmates eventually will be returning to our communities. And the only incentives we can offer to inmates to comply with prison authorities and participate in recidivism-reducing programming is through the credit system. It may not be perfect, but it’s far more of an effective carrot-and-stick approach than knee-jerk hawks such as Tucker Carlson and Sen. Kennedy would have you believe. And despite their cries, criminal justice reform actually leads to far greater public safety.

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DEREK M. COHEN is Director of Right on Crime and the Center for Effective Justice at the Texas Public Policy Foundation. Cohen graduated with a B.S. in Criminal Justice from Bowling Green State University. He went on to complete an M.S. degree in Criminal Justice from the University of Cincinnati, where he also recently completed his Ph.D. dissertation on the long-term costs and outcomes associated with correctional programming. His academic work can be found in Policing: An International Journal of Police Strategies & Management and the forthcoming Encyclopedia of Theoretical Criminology and The Oxford Handbook on Police and Policing, and has scholarly articles currently under review. He has presented several papers to the American Society of Criminology, the Academy of Criminal Justice Sciences, and the American Evaluation Association on the implementation and outcomes of various criminal justice policy issues. Prior to joining the Foundation, Cohen was a research associate with University of Cincinnati’s Institute of Crime Science. He also taught classes in statistics, research methods, criminal procedure, and corrections.

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