Exclusive: In Letter to Trump, DOJ Blasts FIRST STEP Act

DOJ: Bill would free many, including drug dealers

A prison cell block is seen at the El Reno Federal Correctional Institution in El Reno, Oklahoma
A prison cell block is seen at the El Reno Federal Correctional Institution in El Reno, Oklahoma / Getty Images
August 1, 2018

The Department of Justice is forcefully opposed to a major criminal justice reform bill, according to an internal letter sent last month and obtained by the Washington Free Beacon.

The letter was authored by Assistant Attorney General Stephen Boyd and sent to Marc Short, the now-former director of legislative affairs for President Donald Trump. In it, Boyd outlined Justice's serious concerns about the FIRST STEP Act, a bipartisan proposal for which the White House has signaled sympathy.

Proponents have argued the bill, which passed the House in May and now awaits action in the Senate, is a "prison reform" measure that would overhaul the process of incarceration without actually reducing terms. It would do so by expanding the number of opportunities prisoners have to earn "good time" credits towards early release through participation in vocational training and rehabilitative programming.

However, critics of FIRST STEP argue it would indirectly lead to the release of some 4,000 federal prisoners thanks to the new "good time" credit rules. These prisoners, the DOJ contends in its letter, could include violent offenders and drug traffickers.

The FIRST STEP Act was opposed by both leading law-and-order conservatives in the Senate and from the law enforcement community itself. Assistant U.S. Attorneys, the National Sheriffs Association, and others have raised concerns about the dangers the bill poses to law and order in a time of rising murder rates and an exploding drug crisis.

Attorney General Jeff Sessions, who vehemently opposed sentencing reform while in the Senate, has publicly pushed back against the more radical Sentencing Reform and Corrections Act, an alternative to FIRST STEP authored by Senate Judiciary Chairman Chuck Grassley (R., Iowa) and Sen. Dick Durbin (D., Ill.).

The newly obtained letter, sent to the White House on July 12, goes further than opposing SRCA, outlining the Justice Department's concerns with FIRST STEP and asking for those concerns to be addressed before the bill moves forward.

"In the Department's view, this legislation, if passed in its current form, would further and significantly erode our long established truth-in-sentencing principles, create impossible administrative burdens, effectively reduce the sentences of thousands of violent felons, and endanger the safety of law-abiding citizens and law enforcement officers," the letter reads.

Front and center in DOJ's concerns is the restructuring of the "good time" credit system. The system would give credits for "nearly any activity," Boyd claims, including otherwise mandatory programming. It would also mandate that credits be allocated based on the length of the sentence imposed, rather than the length of the sentence actually served, reducing the truthfulness of the original sentence. And the credits can be combined with other early-release opportunities, meaning that serious criminals could potentially not serve out substantial parts — one third to one half — of their terms.

But the number of people released is not the only issue. FIRST STEP would substantially expand the number of individuals serving out the ends of their sentences in halfway houses or on house arrest, giving them what DOJ calls "nearly-unlimited opportunities" to serve their prison term outside of federal custody. That, the letter argues, would mean too little time actually served in prison, as well as reducing the amount of oversight over potentially violent criminals who may then reoffend.

DOJ also argues that the bill is poorly written with regards to whom it excludes from early release eligibility. Section 3632(d)(4)(D) of FIRST STEP excludes most violent offenders from acquiring more good time credits, but importantly does not include many drug-related offenses, including traffickers in deadly opioids like heroin and fentanyl.

"It does not prevent drug traffickers, cartel members, or gang leaders from quickly returning to the streets," the letter notes. "In other words, it grants the option of significantly early release to many of the most serious criminals who drive death and destruction in our communities."

Lastly, the letter highlights serious problems with the application of FIRST STEP to illegal immigrants, who may serve sentences for federal immigration crimes before deportation. The bill requires that federal prisoners be held within 500 miles of their place of residence in the United States, meaning that the Bureau of Prisons may be required to move illegal immigrants away from the southwestern border, making it harder to deport them after their sentences are served. Similarly, the stipulations about halfway house release or home arrest may make it easier for detained illegal immigrants to escape into the interior before deportation.

"There is more to be done to make our federal prison system more efficient while making inmates more productive and helping them learn to respect the rule of law and the rights of others while they serve their sentences," the letter concludes. "However, the Department urges the White House and Congress to consider the potential ramifications of this legislation in its current form."