This blog post, co-written by Joe Luppino-Esposito of the Due Process Institute and John Koufos of Right on Crime, originally appeared at the Due Process Institute blog on Dec. 4, 2018.

The latest unfounded attack on the First Step Act comes from a group claiming to represent the view of federal prosecutors, who really ought to know better. Especially when the error stems from an improper reading of the bill and the Federal Sentencing Guidelines.

The National Association of Assistant United States Attorneys (NAAUSA) is a small quasi-union for prosecutors who normally focus on salaries and benefits, but in recent years have forayed into policy analysis.

In their latest letter in opposition to the First Step Act—a bipartisan criminal justice reform bill that is cosponsored by over one quarter of the Senate as of this writing—the president of NAAUSA, Lawrence Leiser, argues that there is a “Brock Turner” provision in the bill. Turner, whose conviction for felony sexual assault made news in 2016, served three months in prison after being sentenced to six months. Specifically, Leiser claims that under Section 402 of the First Step Act, the new law would grant relief to a hypothetical defendant who has the same criminal history and sex assault conviction as Turner, were Turner to face sentencing for federal drug charges as well. Leiser bases his claim on an argument that Turner would not qualify as a “serious violent felon” under the new definition contained in the First Step Act.

Leiser’s argument fails on three counts:

1. It’s true that Section 401 creates new definitions of “serious violent felon” for the purposes of the so-called “three strikes” laws. Inexplicably, however, Leiser conflates Sections 401 and 402, believing that one must be a “serious violent felon” to be excluded from the safety valve. In fact, the disqualifier is much lower.

2. In addition, Section 402 clearly states that “a prior 2-point violent offense, as determined under the sentencing guidelines” would disqualify a defendant from receiving the safety valve. Federal Sentencing Guidelines Section 4B1.2(a)(2) counts forcible sex offenses as crimes of violence, which are later defined as where consent to the conduct is not given or is not legally valid, such as where the consent to the conduct is involuntary, incompetent, or coerced.  A 2-point offense is defined as a “prior sentence exceeding 60 days.” This fits squarely in the exclusion in the bill’s language.

3. The bill also excludes from safety valve relief anyone with more than 4 criminal history points. In total, in Leiser’s hypothetical example, this Turner-like defendant would appear to have 6 points, as follows from consulting existing Sentencing Guidelines:

4A1.1(b) = 2 points for sentence of at least 60 days (Turner was sentenced to 6 months)

4A1.1(d) = 2 points because instant offense (i.e., the offense where this hypothetical defendant would seek safety valve release) was committed while under supervision, here registration as a sex offender.

4A1.1(e) = 1 point for each crime of violence not counted because it was part of the original sentence. Brock Turner was convicted of three separate offenses and, as such, should get two more points.

These are serious errors in interpreting how this bill would actually work in the real world. As we have seen several times in the last few weeks, opponents of the First Step Act are intent on finding problems in the legislation where they don’t exist. This can be excused (to a degree) from the armchair pundits. And of course general members of the public aren’t expected to always understand legalese. But there is no excuse for a group of Assistant U.S. Attorneys to not read, and understand, a bill before opposing it. The American people deserve more from their public servants than untruthful fear-mongering.