Four changes to the FIRST STEP Act sought by Senator Tom Cotton

As regular readers know, Senator Tom Cotton has been the leading vocal advocate against significant statutory federal criminal justice reform in recent years (see, e.g., Cotton commentary covered here in 2016 regarding the SRCA and more recently here and here on the FIRST STEP front.)  I have recently been informed by knowledgeable authority that Senator Cotton's office made the following offer to the bill's proponents concerning modifications to the House-passed version of the FIRST STEP Act that would lead Senator Cotton to be supportive or neutral rather than in opposition to the bill.  It is my understanding that these suggested modifications were generally rejected (though I think #1 may have been partially adopted in the latest version of the bill now being discussed in the Senate).

1.  Add an exclusion from the early-release credits for heroin and fentanyl traffickers.  The rationale is that there are already 57 exclusions based on the severity of the crime or the likelihood that the offender could engage in that conduct from home, and trafficking those particular drugs fits both those criteria.  It's consistent with what the President has called for.  These offenders would still be eligible for expanded good time credits, and for an expanded home confinement allowance under other sections of the bill (which TC doesn't like, but he's moderated his ask.)

2.  For changing the good-time credits from 47 days per year to 54 days per year: make that change prospective, instead of retroactive. It's not a huge difference in time — likely a few weeks or a couple months — but if the change is prospective, then we would avoid releasing ~4,000 offenders the day the bill is passed before they have gone through any of the anti-recidivism training.

3.  Add Senator Cotton, Graham, and Kennedy's bill to adjust the weight for applying section 841 punishments to fentanyl trafficking to reflect fentanyl's potency.  Right now, the weights are grossly skewed and do not treat fentanyl with the same level of harshness as heroin (proportionately), even though fentanyl is far more deadly.  The President endorsed this bill when we introduced it, or he at least spoke favorably about it.

4.  Add Senator Cotton & Hatch's fix to the Armed Career Criminal Act.  This fix would impact about 300 three-time + repeat offenders per year; it would revert back to the status quo when the ACCA passed unanimously, after being [supported] by Ron Wyden; and [a fix has] been called for by even Elena Kagan [recently] at SCOTUS.  It's also a huge priority for federal prosecutors because dealing with Johnson's fallout has been a massive time-suck to their ability to do their jobs.

He has other concerns with the bill, but recognizes that he can't get everything he wants.... To give you a sense of how modest #3 and #4 are, 267 traffickers were charged with fentanyl trafficking in FY 2017, and #4 would likely affect about 300 offenders per year.

That's 567 of the most dangerous and repeat offenders who could face harsher sentences under this compromise, while the vast majority of other federal offenders and the ~180,000 federal prisoners would be newly eligible for at least some relief.

We think this would be better policy, better politics, and could pass easily without forcing Republican Senators to choose between supporting the criminal justice bill or supporting law enforcement and their voters who do not favor a criminal justice bill that solely reduces punishments.

As regular readers know, I already think the FIRST STEP Act falls far short of needed reforms to the federal criminal justice system, and so I am not especially keen on additional carve outs.  But if additional carve outs are needed to get a bill to the desk of the President, I am so very eager to see a deal get done.  There has been significant talk of significant bipartisan support for reform now for the better part of a decade, and yet no consequential statutory reform has made its way through Congress.  it seems we are really close, but it has seemed that way before, too.  And if Prez Trump really wants to see this get done, and if he is really the great deal-maker he claims to be, there surely has to be a viable path forward to legislation completion (or so I want to believe).