The First Step Act showed Republicans can lead on criminal justice reform

Picture a conservative lawmaker, and I mean a hypothetical one, who has voted for tougher sentences his whole career and then sits down with a spreadsheet from his state's corrections department. The number at the bottom is a lot of money, and the line above it is a lot of people who will be back on the street in a few years with nothing to do and nowhere to go. He does not stop being tough. He starts asking whether the toughness is buying what he thinks it is buying. The Republican Party has long been the party of law and order, and nobody should apologize for that. A safe street is the first thing a government owes you. But there is a quieter conservative tradition too, the one that asks of every program, "What does it cost, does it work, and is it fair?" When conservatives asked that question about the prison system, the answers were not comfortable. And some of them acted.

That is the story behind the First Step Act of 2018, the biggest federal sentencing and prison law in a generation. It was signed by a Republican President, shaped by Republican senators, and pushed along by conservative groups that had spent a decade making the argument. It is also a law that critics on the right still dislike. I want to walk you through what the law actually does, because the fights over it have produced more heat than light.

The conservative case for reform

Start with the argument, because the law came from an argument. It runs in three parts.

Cost. Prison is among the most expensive things a government buys. Every year a person spends behind bars has a price paid by taxpayers, and conservatives are supposed to be the people who ask whether spending buys the result we want. If a program costs a fortune and does not reduce crime more than a cheaper alternative, a fiscal conservative should be the first to say so.

Fairness. A justice system has to match the punishment to the crime and treat like cases alike. Sentences that were set decades ago in a rush of public fear, and that no longer fit the person standing in front of the judge, do not strengthen respect for the law. They weaken it. Respect for the law is a conservative value.

Public safety. Almost everyone who goes to prison comes out. That is a fact of arithmetic. The question is whether the person who comes out is more likely or less likely to become a neighbor who works and pays taxes. A prison that teaches nothing and prepares no one for release, and then opens its doors, is not protecting you. It is only delaying a problem.

Notice that none of those is a soft-on-crime argument. All three are about getting more safety, more fairness and more value from the same dollar.

Texas shows the way

The most important laboratory for the idea was Texas, a state nobody would call soft. In 2007 the Texas legislature faced a projection that the prison population would keep growing and require building a lot of new prison space. Lawmakers, working with Governor Rick Perry, chose instead to put money into treatment programs, probation and diversion for low-level offenders, and to keep prison beds for the people who most needed to be locked up. It was a bet that smarter supervision would work better than more concrete.

In 2010, the Texas Public Policy Foundation launched a national effort called Right on Crime, backed by prominent conservative figures including Newt Gingrich and Edwin Meese, who had been Ronald Reagan's Attorney General. The pitch was the conservative case above: treat criminal justice like any other government program and demand results. The effort spread the Texas model and gave Republican legislators in other states permission to try reforms without being called soft. Many states did. For the broader point that states are where good ideas get tested before Washington copies them, read Brandeis Called the States Laboratories and Conservatives Took Him at His Word.

The Fair Sentencing Act of 2010

The federal story had its own earlier step. Starting in the 1980s, federal law punished crack cocaine offenses far more severely than powder cocaine offenses. The two forms of the same drug were treated under a rule that required 100 times more powder than crack to trigger the same mandatory sentence. The Fair Sentencing Act of 2010, signed by President Obama after passing Congress with bipartisan support, reduced that ratio from 100 to 1 to 18 to 1. It was a real reform and a modest one. And it did not apply to people already sentenced under the old rule.

That gap is part of the background to 2018. The First Step Act made the Fair Sentencing Act's changes retroactive, meaning that people sentenced under the old crack rules could ask a court to reconsider their sentences. A court is not required to reduce the sentence; it can, and each case is decided on its facts.

What the First Step Act does

The bill was signed by President Donald Trump on December 21, 2018, after passing both chambers with large bipartisan majorities, the product of a Senate and House bargain in the lame-duck session of Congress. The leading Senate sponsors included Chuck Grassley, the Republican who chaired the Judiciary Committee, and Mike Lee, a Republican from Utah, alongside Democrats such as Dick Durbin. In the House, Doug Collins, a Republican from Georgia, and Hakeem Jeffries, a Democrat from New York, were major figures. Here is what the law does, in plain words.

1. It trims certain mandatory minimums. For some repeat drug offenders, the enhanced mandatory minimum sentence was reduced: the 20-year minimum for a person with one prior serious drug conviction became 15 years, and the life sentence for a person with two priors became 25 years. The law also widened the "safety valve," which lets a judge go below a mandatory minimum for certain low-level offenders who meet strict conditions.
2. It fixed the stacking rule for gun crimes, going forward. Before the law, a person convicted of more than one count of using a gun in a crime of violence or drug trafficking could face a 25-year mandatory minimum on the second count, even when both counts came from the same case. The First Step Act reserved the 25-year penalty for repeat offenders with a prior final conviction. This change applies to future cases, not past ones.
3. It lets prisoners earn time credits. Federal inmates who complete approved programs, such as job training, education or substance-abuse treatment, can earn credits that can move them into prerelease custody, such as a halfway house or home confinement, near the end of the sentence. The idea is to give a man in prison a reason to prepare for the day he gets out.
4. It tightened "good time." The law clarified how the Bureau of Prisons counts good behavior credit, allowing up to 54 days a year rather than the 47 the agency had been giving.
5. It sets up a risk and needs assessment system. The Justice Department built a tool to sort prisoners by their likelihood of reoffending and to match them with programs.
6. It addresses prison conditions. The law bars the shackling of pregnant inmates and requires, as far as possible, that prisoners be placed within 500 driving miles of their families. Family ties are one of the best predictors of a successful return home.
7. It expands compassionate release. Prisoners can petition a court directly, after exhausting the prison's process, for release on extraordinary and compelling grounds.

What the law does not do

This is where fairness to the critics requires some care. The First Step Act applies to federal prisoners. The federal system holds only a small share of the people incarcerated in the United States. Most prisoners are in state prisons and local jails, governed by state law. So whatever you think of the Act, it did not rewrite criminal justice across the country. State legislatures do that, as the Texas example shows.

The law also excludes many offenders from its time-credit program. People convicted of certain violent, sexual and other serious offenses are ineligible for the earned credits, and the reduced mandatory minimums reach only certain drug offenders with limited records. That is a feature of the design. The reformers who wrote it knew that to pass a bill at all they had to show that dangerous offenders would remain locked up.

The objection from Senator Cotton and others

Not every Republican agreed. Senator Tom Cotton of Arkansas led the opposition. He argued that the bill would release dangerous people early and that Congress should not take the risk. Others, including some law enforcement groups and some prosecutors, raised similar concerns. Let me state the best form of the objection, the way the critics would put it.

One. The first duty of government is to protect the innocent, and the people most affected by crime are often the poor and vulnerable in the neighborhoods hit hardest.

Two. Longer sentences keep dangerous people off the streets while they serve them. Whatever else prison does, it incapacitates. A law that shortens time served is a bet that the people let out will not commit more crimes.

Three. Risk assessments can be wrong. Any tool used to decide who gets credit and who does not will make mistakes, and the victim of a mistake is a member of the public.

Four. Reform that passes in a hurry, in a lame-duck session, deserves skepticism.

These are not frivolous points, and any honest reformer ought to answer them rather than dismiss them. Here is how I would answer.

The answer

First, the safeguards. The bill's supporters pointed out that violent and many other serious offenders were carved out of the credit system, and that the changes to mandatory minimums were targeted and left the mandatory minimums for many offenses in place. A reform that leaves in place the long sentences for dangerous people is not a jailbreak. It is a set of adjustments at the margins.

Second, on incapacitation, the objection proves less than it seems to. A person serving a long sentence for a nonviolent offense takes up a bed that might be better used for someone more dangerous. And because nearly everyone is released eventually, the question is what kind of person walks out, and how closely they are supervised. The law's emphasis on programming and on placing prisoners near their families was meant to answer that.

Third, on risk, the Act does not hand the decision to a computer. Courts still decide sentencing questions, and prison officials still operate the system. A risk tool is one input. Congress also keeps the power to oversee how the Justice Department uses it, and it should, which is part of a conservative theory of oversight, spelled out in Why the Filibuster Is the Best Friend a Minority Party Ever Had and elsewhere on this blog.

Fourth, on process, the Act was the result of years of work, including earlier failed attempts, and it took shape through negotiation among Republicans and Democrats and with the White House, which supported it. It is not a leap in the dark. If you want a view of how Congress turns negotiations into laws, see How a budget becomes law, from the President's request to the checks.

I will add the one caution I always want a reformer to hear. Whether the program meets its promise depends on how well the Bureau of Prisons and the Justice Department carry it out, and on whether Congress pays for the programs that make the credits meaningful. A time credit for a class that the prison does not offer is a promise on paper. Conservatives who supported the Act have a duty to keep checking.

What this tells us about conservatism

The First Step Act is a good example of the principle that conservatism is not a machine for saying no. It is a way of thinking about government that asks hard questions about cost and results. The same instinct that makes us skeptical of a bloated federal agency should make us skeptical of a bloated prison system, and the same belief in redemption that sits at the heart of the faith traditions many of us share should make us open to the idea that a person can change. Those are conservative ideas. The libertarian wing of the movement brings its own contribution, a suspicion of state power over the individual, and the wing that cares about order brings the demand that reforms be tough on the dangerous. A good law needs both. If you are interested in how those wings get along, take a look at What Libertarians Teach Conservatives and Where the Two Part Ways.

Finally, notice who has the power in a case like this. The President can sign a bill, but he cannot make one. The credit goes to the lawmakers, advocates and ordinary citizens who spent years on the details. If you think a government program is broken, the way to fix it is the same as in 2018: gather facts, find allies in both parties, and keep at it.

The bottom line

• You can be firmly for law and order and still ask whether the prison system gives taxpayers a safer country for the money. The First Step Act shows that the two positions are compatible.
• The Act is a federal law. If you want reform of your local jail or your state prison, the people to call are your state legislators and county officials, and the Texas example is your template.
• Read what the law says, not what the cable segments say about it. The text of the First Step Act is on Congress.gov, and the Bureau of Prisons publishes its implementation information.
• Whatever you think of the Act, hold the agencies to the standard. Ask your representatives whether the programs that earn credits are funded and available, and whether violent offenders remain excluded as promised.
• Remember the victim. Any reform worth supporting keeps the safety of the innocent at the center, and the best reformers say so first.