WASHINGTON, D.C. -- In response to the EPA’s recent decision to revise the New Source Performance Standards (NSPS) for greenhouse gas emissions from coal-fired power plants, Patrick Hedger, FreedomWorks Director of Policy, commented:
“The Trump Administration EPA has once again made good on its promise to advance a bold, deregulatory agenda that promotes and strengthens American energy independence. The EPA is correct to rescind the requirement for coal-fired power plants to employ expensive and inefficient carbon capture and sequestration (CCS) technology. This decision will put the United States energy sector on equal footing with competitors around the world and is sure to help lower the cost of electricity for Americans. This proposed rule bring the EPA in compliance with the Clean Air Act by no longer forcing plants to use unproven systems for emission reduction.
“We are grateful to Administrator Wheeler for emphasizing the power of the free market to address emissions and increase efficiency without the heavy hand of government disrupting their business. FreedomWorks Foundation’s Regulatory Action Center (RAC), along with our nationwide grassroots activist community, intends to launch a comment campaign in support of the EPA’s proposed change. The RAC is proud to lead the effort to help advance the Trump Administration’s deregulatory agenda through unique comments.”
On behalf of our activist community, I urge you to contact your senators and urge them to vote NO on S.J.Res. 64, the disapproval resolution under the Congressional Review Act (CRA) to nullify the Department of the Treasury’s policy to end the collection of donor information to certain 501(c) nonprofit organizations. S.J.Res. 64 would weaken free speech protections and put donor privacy at risk.
It’s not exactly a secret that the IRS has been used as a tool to target Americans who have political or philosophical views that oppose an administration. There is no better example of this than the targeting of Tea Party organizations by the Internal Revenue Service (IRS). Led by Lois Lerner, the IRS discriminated against these Tea Party organizations and individuals simply seeking to participate in the public debate. In another separate instance, an IRS employee leaked an unredacted Schedule B containing the names and addresses of donors to an organization that promotes traditional marriage.
In July, the Department of the Treasury and the IRS announced that certain 501(c) nonprofit organizations would no longer be required to submit a Schedule B along with their annual filing, a Form 990. The policy, “Returns by Exempt Organizations and Returns by Certain Non-Exempt Organizations” (Rev. Proc. 2018–38), applies to filings made in tax year 2018 and after.
The policy doesn’t apply to 501(c)(3) organizations, nor does it apply 527 political organizations. A 501(c) organization to which the policy does apply must keep donor information and make it available to the IRS when requested.
The move to eliminate the Schedule B requirement wasn’t exactly a surprise. In December 2015, Tammy Ripperda, the director of Tax Exempt Organizations for the IRS, explained during a panel hosted by the Urban Institute that the IRS was considering eliminating the Schedule B requirement. As Politico noted when the announcement to eliminate the requirement was made by Treasury and the IRS, “The IRS had been considering scrapping the Schedule B requirements even under former Commissioner John Koskinen, tapped for the job by former President Barack Obama.”
FreedomWorks will count the vote on S.J.Res. 64 when calculating our Scorecard for 2018 and reserves the right to score any related votes. The scorecard is used to determine eligibility for the FreedomFighter Award, which recognizes Members of the House and Senate who consistently vote to support economic freedom and individual liberty.
WASHINGTON, D.C. -- In response to FOX’s statement today in support of the First Step Act, a landmark piece of criminal justice reform legislation being considered by the Senate, Jason Pye, FreedomWorks Vice President of Legislative Affairs, commented:
“How many more endorsements do Senate Republican leadership need to bring the First Step Act to the floor for a vote? President Trump has endorsed the bill. The National Fraternal Order of Police and the National District Attorneys Association have backed the First Step Act, and several conservative groups, including FreedomWorks, have also expressed very vocal support for the bill.”
“Today’s statement by FOX is just another example of the wide support the First Step Act has. How much more does it take to bring the bill to the floor for a vote this year? We have been working on this bill in the Senate for months and working on criminal justice reform in Congress for years. We know that a majority of the Senate Republican Conference would support the First Step Act if it were brought the floor. We call on Leader McConnell to take action on the bill and let the Senate vote.”
President Trump is looking to leverage his new trade deal, the U.S.-Mexico-Canada Agreement (USMCA), by threatening to withdraw unilaterally from the North American Free Trade Agreement (NAFTA). He says this will give Congress the choice between accepting the USMCA, or returning to the pre-NAFTA framework which, he said, worked very well.
This approach, however, is in gross violation of Article II, Section 2 of the United States Constitution. The Constitution states that the President “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” It takes two-thirds of the Senate to ratify a treaty. In a document as carefully crafted as the U.S. Constitution, it makes very little sense that the framers would allow a single person to withdraw from such an obligation.
Even Alexander Hamilton, one of the most fervent advocates for a strong, unitary executive, did not agree with this approach. In Federalist 75, he says, “the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.” The participation of the legislature in the treaty process was vital for making it all work. Despite, the President’s negotiating authority, he was never meant to be the final arbiter.
Hamilton’s words in Federalist No. 75 also illuminate an important point that’s been overlooked in discussions on this issue. Treaties carry the force of federal law and operate as such. Put in that context, a President certainly cannot overturn a federal law unilaterally. Otherwise, I would expect that President would have overturned ObamaCare by now, or that most presidencies would just be consumed by repealing past legislation they found distasteful. Of course, this is not how our republic, or our system of separation of powers, works.
Indeed, even Hamilton’s arch-rival Thomas Jefferson, declared in 1801, “Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded.”
Now, NAFTA is not an official treaty. It is, however, what is known as a congressional-executive agreement. These agreements require a simple majority approval of both chambers of Congress and are limited in scope to each branch’s enumerated constitutional powers. It was enacted through the NAFTA Implementation Act of 1993. This is a binding piece of legislation and, again, the President may no more nullify this than he could any other legislative action. The legislation provides for termination but is silent on the internal mechanisms of doing so, meaning the Constitution must be the guide for action or inaction in this instance.
The NAFTA Implementation Act also clarifies in numerous places what the President’s powers are with regards to modifications. In Section 109, the provision with regards to termination of the agreement, it is silent on any executive authority. This should lead to the conclusion that it was understood that the legislature, and the legislature alone, is responsible for the termination of NAFTA.
Many proponents of President Trump’s approach to this issue cite his unilateral withdrawal from the Joint Comprehensive Plan of Action (JCPOA or “the Iran Deal”) as proof that he does have this authority. However, the JCPOA was entered into as neither a treaty nor an executive agreement. Congress would have had no say whatsoever in that agreement had then-President Obama not signed off on the Iran Nuclear Agreement Review Act of 2015. Therefore, that did not constitute the unilateral scrappage of a constitutionally binding treaty or agreement that required legislative action to overturn.
Unfortunately, there have been two examples of such unconstitutional action. In 1978, Jimmy Carter withdrew from a 1954 treaty with Taiwan, so that his administration could establish diplomatic ties with the People’s Republic of China. The chief opponent of this move was then-Senator Barry Goldwater (R-Ariz.), who said Carter’s actions set “a dangerous precedent for executive usurpation of Congress’s historically and constitutionally based powers.” Just because it was carried out did not make it legal or constitutional.
The same applies to the 2002 case of George W. Bush abrogating the term of an anti-ballistic missile (ABM) treaty so that his administration could build a missile defense system the agreement prohibited. Former Senator Russ Feingold (D-Wis.) spoke out against it, and 30 members of the House of Representatives sued the administration for usurping the legislative branch’s proper authority.
Donald Trump, like all other U.S. Presidents, took an oath to “preserve, protect, and defend the Constitution of the United States.” Unilaterally withdrawing from NAFTA, without getting approval from Congress, would be a clear violation of that oath. As a President who professes to be a proponent of small government, he cannot participate in what would be an erosion of limits on executive power and an affront to our clear separation of powers. The legislative branch must have a say in whatever NAFTA’s fate may be.
1) Video of the Week: This video details 25 government regulations that wildly overstep the bounds of proper, constitutional governance.
25 STUPID Government Regulations (That Will Make You Shake Your Head) - YouTube
2) Monopoly Isn’t Always What We Think: “Indeed, crony capitalism is a problem in today’s economy. It is possible that the Left and Right could make common cause on this issue. But not by treating market concentration as the proxy for monopoly power. Crony capitalism is by definition politically-connected capital. Without refined measures of identification, renewed antitrust enforcement would likely take disproportionate aim at harmless monopolies, those effectively replicating competitive equilibria, and would overlook markets in which politically well-connected capital exercises real monopoly power.”
4) New Regulations on “Clean Meat” Would Be Detrimental: “I’m writing to encourage Rep. Rob Bishop and the rest of Congress to drop rider SEC 736 from the Farm Bill. This rider would force the USDA to issue new regulations on ‘clean meat’ or ‘cell-based meat,’ even though the USDA and FDA are already working together to oversee the safe production of these foods.”
FreedomWorks signed on to a coalition letter with 54 other conservative, free market advocacy groups to oppose the Department of Health and Human Services' (HHS) proposed international pricing index (IPI). If implemented, this rule would tie drug prices for Medicare Part B recipients to an international model based on the prices in over a dozen European countries.
This would allow countries that have single payer health care systems to determine drug prices for American patients and caregivers, and give foreign lawmakers undue influence over our domestic policy. This rule is also an abuse of existing statute which allows HHS to institute limited experiments to lower drug prices. The scope of this proposal is not limited, and would apply to half of the Medicare Part B population. There is no reason to import foreign price controls to our markets, and by doing so, it seems the administration has embraced socialist, single payer health care.
You can read the full text of our coalition letter here or in the attachment below. You can also make your voice heard here to let big government bureaucrats know that you don't want European socialist price controls in America.
The Internal Revenue Service (IRS) has a long, well-documented history of abusing federal forfeiture laws. They seize assets from innocent Americans on the mere suspicion of malfeasance. If the IRS believes a citizen is structuring deposits to avoid reporting requirements, the agency can seize your money. Administrative reforms were made in 2015 to roll back some abuses, but there is still much work to be done.
People like dairy farmer Randy Sowers, who had $30,000 wrongfully seized from him and his family, can see their lives change almost instantly because of the IRS’s wild speculations about their finances. Thankfully, the Sowers family had their money returned to them when it was determined the seizure was wrongful, but we can’t count on every victim being so fortunate.
A similar situation happened to Andrew Clyde, the owner of Clyde Amory in Athens, Georgia. The IRS seized $950,000 from him, eventually returning all but $50,000. Clyde spent roughly $150,000 in attorneys fee.
According to the Institute for Justice, from 2005 to 2012, the IRS seized roughly $242 million in assets across 2,500 cases for offenses that were only alleged at that point. Frighteningly, in about one-third of those cases, the “offense” was making a series of transaction below $10,000. The IRS is casting a wide net and is threatening to catch scores of innocent families in it.
The broad, irresponsible nature of this practice was brought to light through a report done by the Treasury Inspector General for Tax Administration (TIGTA). TIGTA took a sample of 278 seizure cases and found that in a whopping 91 percent of them, there was no evidence that the funds were a part of illegal structuring or otherwise illegal activity. This is outright theft propagated against American citizens.
There is a bill called the Clyde-Hirsch-Sowers RESPECT Act, H.R. 1843, introduced by Rep. Peter Roskam (R-Ill.), which would help curb these abuses. The bill passed in the House well over a year ago, but has received little to no attention in the Senate. The RESPECT Act would codify the aforementioned administrative reforms, essentially preventing the IRS from taking money away from innocent people.
Fortunately, a provision of the Retirement, Savings and Other Tax Relief Act of 2018, the House amendment to the Senate-amended version of H.R. 88, introduced by Rep. Kevin Brady (R-Texas), there are aspects of the RESPECT Act. We are glad that Congress will get a chance to review and pass this important language which will provide basic protections for many American families and individuals.
We urge Congress to recognize the importance of this issue and continue to address it going into the new year, to protect the property and property rights of their constituents. Codifying these administrative reforms are a great first step, and it is encouraging that they found their way into Chairman Brady’s bill. It is important that this also not be the last step, and that IRS abuse is reined in wherever it can be.
This is also taking care of one type of abuse at one agency. Congress needs to look more broadly into wrongful government seizures of property, to better ensure that Americans can feel secure in their possessions, and not be concerned about any government agency taking them up for their own purposes without cause.
FreedomWorks is proud to announce that our bill of the month for December 2018 is the JOBS Act, S. 3692, sponsored by Sen. Steve Daines (R-Mont.). The bill would reauthorize the Temporary Assistance for Needy Families (TANF) program while instituting much-needed reforms and accountability measures, which will help lift vulnerable Americans out of poverty and into sustainable, well-paying jobs.
TANF is badly broken. The sweeping welfare reforms passed in 1996 by then-Speaker Newt Gingrich have been undermined over the last two decades. The work requirements that conservatives championed have been undermined by federal and state lawmakers so that they can be easily reduced to almost nothing using formula gimmicks. This departure from an outcome-based evaluation model allowed our system to fail so many needy Americans.
Fortunately, such an outcome-based framework is embodied in the JOBS Act. In measuring outcomes, the JOBS Act seeks to increase employment, retention, and advancement, as opposed to merely measuring short-term engagement. These metrics are far more conducive to long-term success and independence. The JOBS Act also encourages TANF case managers to set goals for recipients to better track their progress.
Proper accountability measures are put into place in the JOBS Act that help ensure compliance. Individuals who fail to meet the requirement will be penalized, provided they do not have good cause for doing so. States who fall short of their engagement requirements will also be sanctioned. This will end the disturbing trend of states refusing to engage their workforce and pocketing the money for their own means.
Another issue with our welfare system is that it is often targeted towards those who may not most need the assistance. The JOBS Act assuages this issue by ensuring that funds are only directed to families whose monthly income is at or below 200 percent of the federal poverty level. This is a reasonable, common-sense means test that will save the federal government, and the American taxpayers, money.
In this same vein, the JOBS Act would require that at least one-quarter of funds be directed towards core activities. The aforementioned diversion of funds is becoming an issue for taxpayers, and this provision is just one of many that hold state lawmakers accountable. The bill also phases out third-party spending as something states can use to count towards this requirement.
With TANF authorization set to expire, now is the time to consider real, honest reforms that will ensure our welfare system is properly targeted, and as efficient as possible. We hope members of Congress in both chambers will consider the JOBS Act as the best path forward.
FreedomWorks is proud to honor Rep. Alex Mooney (R-W.Va.) as the member of the month for December 2018. He serves in the House of Representatives for West Virginia’s 2nd Congressional District, which spans lengthwise through the middle of the state, from Harpers Ferry in the state’s easternmost tip to beyond Charleston in the western part of the state.
Rep. Mooney has represented the 2nd Congressional District since 2015 and will be going into his third term in January 2019, having won his reelection by just over 11 percentage points. Prior to his election to Congress, Rep. Mooney served in the Maryland State Senate, representing the 3rd District for 12 years from 1999 to 2011.
Rep. Mooney then moved to the small town of Charles Town -- not Charleston -- West Virginia, and later chose to run for then-Rep. Shelley Moore Capito’s seat in the 2nd Congressional District, who was running for U.S. Senate. Both were successful in their campaigns. Notably, Rep. Mooney’s victory made him the first Latino to be elected to Congress in West Virginia.
During his time in Congress, Rep. Mooney has been a principled fighter for liberty -- as so many of his colleagues in the House Freedom Caucus are -- boasting a lifetime score of 91 percent with FreedomWorks. He serves on the House Financial Services Committee, which produced the Financial CHOICE Act, H.R. 10, that would have created more accountability in the United States’ financial system, end the “too big to fail” mentality, and promote economic growth by repealing counterproductive regulations.
Rep. Mooney continually takes a stand against the federal government’s excessive spending, voting against leadership’s “must-pass” spending bills including multiple bloated omnibus spending bills during his time in office. He also introduced legislation, the End Government Shutdowns Act, H.R. 3776, that would strip leadership of its often-used tool of coercing members into voting for such spending bills with the threat of a government shutdown should the bills not pass that day.
His bill would ensure that appropriations would not lapse in these instances, but would continue at the levels provided in the previous fiscal year. This would go a long way in ensuring that leadership and big-government, big-spending proponents cannot use the process against conservatives in facing members with a politically tough, binary choice between debt-exploding spending levels and a government shutdown.
Additionally, Rep. Mooney promotes sound money policy, which FreedomWorks supports. He has a bill that would return the United States to the gold standard, by defining the dollar as a fixed weight of gold. As he notes in the bill, H.R. 5404, “The American economy needs a stable dollar, fixed exchange rates, and money supply controlled by the market, not the government.”
As he has demonstrated in his votes and in his initiatives while in Congress, Rep. Mooney can be counted on as a champion for the limited government principles central to constitutional conservatism. FreedomWorks is proud to feature Rep. Alex Mooney (R-W.Va.) as December’s member of the month, to recognize and honor those who defend our liberties in Washington every day.
The myths surrounding the First Step Act continue to emerge, most frequently from Sen. Tom Cotton (R-Ark.), the bill’s most outspoken critic. The First Step Act, S. 3649, which was carefully drafted by a bipartisan group of lawmakers in Congress, is supported by President Trump, over 150 former federal prosecutors, multiple law enforcement agencies, a wide base of faith leaders, and conservative policy groups both in Washington and across the country.
Below is a full, line-by-line analysis of Sen. Cotton’s most recent op-ed from November 29th in the Washington Times, “How the Senate First Step Act is flawed,” which is full of misleading and at many times entirely false statements about the effects of the legislation.
1. While the bill’s supporters have started this reform process with good intentions, the latest version of the bill would result in the early release of thousands of violent felons.
No, the earned time credit system established by the First Step Act only allows for early transfer into alternate forms of Bureau of Prisons (BOP) custody, such as halfway houses or home confinement. This is in no way, shape, or form “early release,” and is in fact dubbed “pre-release custody.” Just as it sounds, this type of custody comes before release, meaning that it cannot definitionally be release. The BOP is already permitted to do this by current law. The First Step Act simply incentivises important recidivism reduction programming by offering more time in pre-release custody.
Firstly, even Sen. Cotton has himself said that there “is no such thing as a ‘low-risk violent sex offender.’” Therefore, there should be no fear that anybody of that nature would even benefit from early transfer to pre-release custody under the bill, as one must prove him or herself low- or minimum-risk by the risk assessment in order to quality.
Additionally, violent felons are largely excluded from benefiting at all from earned time credits under the bill. They would still be able to participate in recidivism reduction programming, but if they fall under one of the 50+ excluded offense categories under the bill, they cannot even “cash in” their successful participation for time in pre-release custody, let alone be released early as a result. This exclusions list serves as an extra safeguard for these individuals in addition to the risk and needs assessment.
2. But these new time credits do allow for early release — up to one-third of the offender’s sentence.
No, this is not even a half-truth. This is completely false. Again, pre-release custody, which is what qualifying prisoners are able to earn and benefit from under the First Step Act, is just that -- pre-release, meaning BEFORE release. These individuals, who have not only participated in but successfully completed programming that results in their continual re-evaluations proving him or her a low- or minimum-risk of recidivism, would be allowed to serve an increased portion of his or her sentence in pre-release custody.
For the sake of full disclosure, let’s spell out what would happen to somebody who gets earned time credits under the First Step Act. A prisoner who qualifies for earned time credits simply would be moved to a lower security (i.e., more comfortable) environment for the duration of those credits. For example, he or she could be transferred from a low-security environment to a halfway house.
Such a prisoner is not released a single day earlier because of earned time credits under this bill, but all inmates desire to live in less secure and therefore more ’normal’ circumstances. That’s what they get with earned time credits, which is why the bill’s modest but meaningful incentives will be effective in encouraging prisoners to rehabilitate themselves. Additionally, should an offender violate any of the terms imposed on him or her while in pre-release custody, he or she would be returned to prison to serve out the remainder of his or her sentence.
The maximum amount of his or her sentence that a qualifying, low- or minimum-risk offender would be eligible to serve in pre-release custody as a result of the earned time credits is up to one-third of the offender’s sentence. This is because, for every 30 days of successfully completed recidivism reduction programming, qualifying offenders can earn ten days of earned time credits. But again, these earned time credits are not for early release, simply for a transfer into an alternate form of BOP custody.
In order for an offender to receive the maximum amount of earned time credits, he or she must successfully complete programming every single day he or she is incarcerated and also prove him or herself low- or minimum-risk of recidivism per multiple reassessments under the established risk and needs assessment created by the legislation. Needless to say, doing so would be incredibly difficult, and any individual who is able to successfully meet all of the requirements necessary for the maximum benefit would be an ideal model returning citizen, not a dangerous or violent offender.
Also of note is that the federal criminal justice system offers much less time in the form of credits than states do as a whole. The federal system ranked second lowest in the country in terms of the maximum amount of time possible to earn off one’s prison sentence.
Many states, such as Arkansas, make time credits available to all prisoners except prisoners serving life sentences. The First Step Act is a far more measured approach, only allowing those who test as low-risk to qualify for earned time and providing a lengthy list of excluded offenses on top of the risk assessment requirement.
3. One of the major problems with the bill is that thousands of offenders will be released almost immediately because two sections apply retroactively. That means they will not participate in any additional rehabilitation programs. The release of such a large number of prisoners at once will surely endanger public safety and will strain law enforcement’s ability to protect their communities.
This argument is incredibly misleading. Firstly, the two sections with retroactive application are are entirely separate and different provisions. The first would restore congressional intent that provides for up to 54 days of good time credits per year of incarceration. The other provision would apply the revised sentences of the Fair Sentencing Act of 2010 to all those convicted, whether sentenced prior to or after the date of that legislation’s enactment.
The restoration of congressional intent to good time credits will apply to prisoners currently incarcerated as well as those who will come into the federal correctional system in the future. All the fix in the First Step Act would do is allow prisoners eligible for good time credits under the statute which became law in 1984 to earn at most 54 days per year of good time, as is explicitly written in the statute itself.
One would think that having 54 days stated in the text would be sufficient to ensure that Congress’ intent for the statute is carried out. However, as incredible as it seems, the BOP bureaucracy claims that the number “54” as stated in the statute actually means 47 days.
Conservatives have been trying to re-establish congressional primacy in setting policy, giving less broad authority to executive agencies to interpret law however they choose. The words of a statute should be the law, not the whims of the bureaucracy. This bill does not “give” any additional time to prisoners. Rather it restores the days that the BOP has been cheating them out of for over 30 years.
Also, restoring the additional seven days lost per year by BOP’s interpretation of the statute to those incarcerated who have been approved for the maximum amount of good time will not, as Sen. Cotton tries to claim, “surely endanger public safety.” In fact, the prisoners who will benefit from this provision are those who have displayed the most exemplary compliance with disciplinary regulations during the entire period of his or incarceration.
The retroactive application of the Fair Sentencing Act of 2010, which lowered the crack-to-powder cocaine sentencing disparity is done to provide equity at no cost to public safety. The Fair Sentencing Act lowered the terribly unjust crack-to-powder cocaine sentencing disparity from 100-to-1 to 18-to-one. (It is important to note that then-Senator Jeff Sessions (R-Ala.) was the principal co-sponsor of the bill.) Without retroactive application, some offenders are serving much longer sentences than others in their prison who dealt exactly the same amount of crack cocaine. The only factor that results in this wide disparity in sentences for the same offense is the date of their offense.
The offenders who may be in a position to benefit from this section will not by any stretch of the imagination “be released almost immediately.” In order to even be considered for a sentence reduction, a motion must be made by the offender, the director of BOP, a federal prosecutor, or a court. Following this, the motion may, of course, be denied by the court. Additionally, the population currently incarcerated that would be eligible to make a motion for resentencing was 3,147 in October 2017, was 2,660 in August 2018, and can today be expected to be reduced by a similar amount, putting the total eligible population just above 2,000.
Additionally, partial-retroactivity of the Fair Sentencing Act has already been tried, via guideline changes from the United States Sentencing Commission (USSC) that resulted in a population of offenders who became eligible to make a motion to have sentence reductions under the law. The success of this limited retroactivity has been studied, and the USSC has determined that the population given retroactive sentencing had an identical recidivism rate -- 37.9 percent -- as the population that was not. This actually proves that, in fact, that applying the law retroactively will not have any negative effect on public safety.
4. Even for the sections that only apply prospectively, inmates only have to participate in “productive activities” to get credits for early release. That includes playing softball, watching movies or doing activities that the prisoners are already doing.
This claim is false on every single count. Again, earned time credits do not allow early release. They simply allow eligible offenders who work their way down to a low- or minimum-risk of recidivism through successful participation in programming to serve an increased portion of their sentences in alternate forms of BOP custody.
Additionally, to say that inmates can play softball and watch movies to earn time credits -- even for pre-release custody -- is absurd. In order to earn time credits, inmates must successfully participate in newly-established evidence-based recidivism reduction programming based on his or her individualized risk and needs assessment. He or she must also prove a low- or minimum-risk of recidivism under the reassessments in order to benefit from the earned time credits.
The only inmates for which “productive activities” are available are those who are already low-or minimum-risk of recidivism. The term “productive activity,” and to whom it applies, is defined in the bill on pages 34 and 35. The text of the relevant provision states: “The term ‘productive activity’ means either a group or individual activity that is designed to allow prisoners determined as having a minimum or low risk of recidivating to remain productive and thereby maintain a minimum or low risk of recidivating, and may include the delivery of the programs described in paragraph (1) to other prisoners.”
Clearly, productive activities are geared toward prisoners who are assessed as a minimum- or low-risk of recidivism. These are inmates who have participated in existing programming, have proven themselves ready for reentry into society, and have little to no risk of recidivating upon release. This is also a matter of safety as well. It is a well-established best practice in correctional systems to not have low-risk prisoners mixed in programming with higher-risk prisoners, because doing so has a negative effect on the rehabilitation of low-risk prisoners. It is also most cost effective to reserve the most intensive programming for higher-risk prisoners.
Medium- and high-risk prisoners are excluded from participating in productive activities, and instead must participate in intensive recidivism reduction programming if they wish to benefit from earned time credits. Prisoners who are initially assessed as medium- or high-risk may only be allowed to participate in productive activities once they no longer have that medium- or high-risk status because they have successfully lowered their risk of recidivism to minimum or low through more intensive programming.
5. While some inmates are excluded from earning new credits, many perpetrators of violent crimes would be allowed to earn these new credits — crimes including, but not limited to, drug-related robberies, involving assault with a dangerous weapon, using a deadly weapon to assault a law enforcement officer, assault resulting in substantial bodily injury to a spouse or child, and violent carjacking resulting in serious bodily injury.
What this statement intentionally does is confuses earning time credits with benefiting from them. The exclusions list should be viewed as an additional safeguard on the risk and needs assessment created by the legislation. Therefore, just because specific crimes do not appear on the exclusions list does not mean that inmates convicted of those crimes will ever be able to benefit from the time credits they earn.
Rooted in evidence-based and proven models from across the many states that have implemented similar reforms, the risk and needs assessment given to all inmates is designed to capture the likelihood of inmates to recidivate, based on a holistic assessment of the inmate.
The exclusions list includes over 50 categories of serious and violent offenses fully excluded from benefiting from time credits, although these excluded offenders are still eligible to participate in recidivism reduction programming. What one must not lose sight of is that somebody convicted of a crime such as violent carjacking resulting in serious bodily injury is an incredibly high-risk inmate. He or she, as evaluated under any risk assessment, would come back as such. Even if he or she is eligible to earn time credits, there is an extraordinarily slim chance that any offender of this nature would be able to reduce his or her risk of recidivism enough to qualify as the low- or minimum-risk status needed to benefit from the time credits.
Therefore, the rhetoric around specific crimes that are or are not excluded is simply intended to confuse and frighten those who are unfamiliar with the structure and impact of reforms such as incentivization through earned time credits into believing that any non-excluded offender will be getting immediate access to a get-out-of-jail free card. This is not even close to the reality.
The additional safeguard of an exclusions list, on top of the evidence-based risk and needs assessment, provides more than enough assurance that those criminals who are most dangerous will not be able to benefit from early transfer to pre-release custody, regardless of the alarming, misinformed, and misleading statements made by the bill’s opponents.
6. In addition to these offenses, sex offenders and drug traffickers would also be eligible for early release. According to the Justice Department, individuals convicted of failing to register as a sex offender, importing aliens for prostitution, and first-time assault with intent to commit rape or sexual abuse will be eligible for the new credits.
There is not much to say here that hasn’t already been said. Nobody is eligible for early release via the new earned time credit system, once again. And those listed in reference to the Justice Department are such high-risk prisoners that he or she will not feasibly be able to reach the low- or minimum-risk status necessary to benefit from that system anyhow.
7. On top of that, the vast majority of fentanyl, heroin and methamphetamine traffickers would also be able to accrue credits for early release under the First Step Act. Considering that more than 72,000 Americans died from drug overdoses last year, is this the right time to reduce the penalty for trafficking deadly drugs?
Once again, nobody is able to accrue earned time credits for early release under the First Step Act. This is one-hundred percent false. Additionally, the fact that 72,000 Americans died from drug overdoses last year actually speaks to the dire need to try a new tactic.
This tactic is not, as Sen. Cotton claims, “reduc[ing] the penalty for trafficking deadly drugs,” as mid- and high-level fentanyl and heroin traffickers are excluded from earning time credits under the legislation. But, it is ensuring that the punishment fits the crime at hand and ensuring that certain inmates are given reasonable incentives to meaningfully lower his or her risk of recidivism.
These reforms enhance public safety by reducing crime rates, save taxpayer dollars by reducing incarceration rates, contribute to the economy by bolstering the labor force and increasing the number of taxpaying citizens, and perhaps most importantly uplifts the value of human life.
8. Let’s take an example. Under current law, a second-time offender with 400 grams of fentanyl, which is enough to kill 50,000 people — about the size of Conway, Arkansas — would be sentenced to a mandatory minimum of 20 years. If the inmate behaves in prison and participates in drug rehabilitation, he could get out in 17 to 18 years. Under this bill, by shortening the mandatory minimums from 20 to 15 years on the front end, and adding new early-release provisions that can shorten the sentence by up to a third on the back end, he could be released in eight to nine years.
Firstly, this hypothetical is misleading because it implies, again, that earned time credit somehow shorten the length of this offender’s sentence. While the hypothetical is correct that the bill shortens the mandatory minimum for a second-time offender in this scenario from 20 years to 15, it is still important to note that this is the mandatory minimum, meaning that the sentence length imposed can always be above this minimum. It also does not factor in the sentence for the underlying crime being prosecuted.
Where it is entirely incorrect, however, is in calculating the potential for sentence reductions from there. With a maximum of 54 days of good time per year for perfect disciplinary behavior in prison, this offender, assuming he or she was sentenced to 15 years -- the minimum possible -- his or her sentence could be reduced to just under 13 years. (This would be just over 13 years under the current 47 day calculation without the bill’s good time credit fix.) This offender would remain in BOP custody for the full time.
Even if he or she is eligible to earn time credits under the bill -- which is highly unlikely due to the exclusion for fentanyl offenders who are managers, leaders, organizers, or supervisors of others in the offense, that such a person would likely fall under anyhow -- would again only be able to cash in the time credits for pre-release custody, NOT for time off of his or her sentence. To say that this person could be released in eight or nine years is completely, utterly false.
All of the supporters of the First Step prioritize public safety in their crafting and consideration of criminal justice reform legislation, and the First Step Act is the culmination of these efforts.
It is nonsensical to believe, even for one minute, that legislation with this broad and intense level of support would in any way threaten public safety. In fact, the First Step Act would greatly enhance public safety and make our communities safer, regardless of the fear-mongering from opponents who speak to the contrary.
9. We must also remember the federal agents and officers who have undertaken great risks in arresting violent criminals and drug dealers. Why would we cheapen their sacrifice by putting criminals back on the street before they are reformed members of society?
Senator Cotton should not presume to speak for the brave officers who risk their lives protecting the public. Those who actually represent these officers support this important legislation, because the officers on the streets are tired of rearresting offenders who serve time but are not equipped to leave their lives of crime to live decent and constructive lives.
Research has shown that the programs which the First Step Act encourage are effective at changing offenders’ lives. They will stop the revolving door of recidivism and help inmates become productive, law-abiding citizens. That is why the bill has the strong support of the Fraternal Order of Police, the International Association of Chiefs of Police, the National Organization of Black Law Enforcement Executives and the National District Attorneys Association. In addition, the bill is endorsed by over 170 former federal prosecutors, including two former US Attorneys General, and a former Director of the FBI.
Therefore, who should we believe? Police and prosecutors, or supposedly “tough on crime” politicians who have no direct experience with the criminal justice system? The choice is clear.