CBO: First Step Act will release dangerous criminals … and add to the deficit

· December 17, 2018  
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Chart showing budget in the red
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We’ve been told by the arbiters of morality among the political elite that we must empty the prisons because incarceration costs too much money. When it comes to public safety, suddenly everyone is a budget hawk. Well, late Friday, the Congressional Budget Office issued its fiscal score of the jailbreak bill (S. 3649, First Step Act) and found that although this legislation will result in an outcome “roughly equivalent to reducing the federal prison population by 53,000 inmates in one year,” it will actually increase the deficit by $352 million. Given that most senators never read the bill and don’t understand criminal justice, they are unlikely to be moved by this CBO score, but it shouldn’t stop us from speaking the truth.

A wide net of jailbreak for the worst career criminals

The revelation from the CBO of how many convicts will leave federal prison early is jolting in its own right. Proponents of jailbreak, who support this and similar bills precisely because it lets violent and dangerous felons out of prison, suddenly get shy when there is public scrutiny on their legislation. They angrily contend that their bill is “reform” and won’t release anyone. Well, now the CBO confirms that is not the case. Imagine releasing the equivalent of 53,000 inmates in one year from the federal population, which houses only 10 percent of the nation’s prisoners, usually the worst career felons, such as cartel and gang members.

Even if one believes there are a few individuals here and there who can and should be released early, there is no denying that if you cast such a wide net of early release on such a sizeable portion of the most advanced felons in the country, it is a recipe for a public safety and law enforcement nightmare. As a group of police officer associations, narcotics officers, and federal prosecutors noted in a joint letter to the Senate, it will “have serious consequences upon public safety and the capacity of law enforcement to effectively respond” because the “releases will involve twice as many federal prisoners as those whose sentences were selectively commuted by President Obama throughout the entirety of his presidency.”

In addition to dangerous gangbangers and drug traffickers who will enjoy both upfront reductions in sentences and early release, guess who else is eligible for early release unless Senator Cotton’s amendment passes: felons convicted of coercing a child to engage in illicit sexual activity (or attempting to do so) under 18 U.S.C. § 2422. You might think this is a rare title of the criminal code, but there is a reason why the federal prison system is unique in the nature of its convicts. According to data from the U.S. Sentencing Commission provided to Senator Cotton’s office and shared with CR, there are 1,466 offenders currently serving in federal facilities for convictions under 18 U.S.C. § 2422.

In addition, there are 5,934 offenders convicted under 18 U.S.C. Subsection (a) or (d) of section 2113, relating to bank robbery involving violence or risk of death. Not exactly your low-level, nonviolent offenders, but they are still eligible for early release. And while the bill does exclude numerous violent felons, any federal crime of violence (as defined in 18 U.S.C. section 16) for which the offender was sentenced to a term of imprisonment of more than one year that is not included in those exceptions are still eligible for time credits. According to the U.S. Sentencing Commission data, that would account for another 25,235 current offenders.

Why do we have to continuously pull teeth from this bill and get proponents to keep revising it to exclude more dangerous criminals while they obdurately continue to extend eligibility to others? Why won’t they just write a bill affirmatively targeting those who should get leniencies and leave everyone else out of the jailbreak? Answer: because that would expose the fact that most of the federal prison population, especially those serving longer sentences, does not consist of “non-violent, low-level, first-time” offenders.

We get the jailbreak but don’t even get to save money 

So, after releasing so many dangerous criminals, won’t we at least enjoy these much-vaunted budget savings? No, says the CBO. What many have forgotten throughout this debate is that as much as incarceration costs the taxpayer, it doesn’t cost nearly as much as the welfare programs they will be eligible for once they are released from prison. And contrary to what proponents suggest, there is no magical curriculum in these “recidivism programs” that will somehow turn these people into your next wave of entrepreneurs.

Here is how the CBO calculated the cost:

Under current law, prisoners generally are ineligible to receive benefits from several federal programs, including Medicare, Medicaid, and the health insurance marketplaces; Social Security; Supplemental Security Income; and the Supplemental Nutrition Assistance Program. By accelerating the release of prisoners, CBO estimates that the legislation would increase the number of people receiving benefits from those programs. As a result, CBO and JCT estimate that enacting the legislation would increase direct spending by $346 million and reduce revenues by $6 million over the 2019-2028 period.

Thus, when you tout fiscal outcomes at the expense of public safety, you achieve neither.

It is true that the CBO only took into account mandatory spending increases and didn’t factor in changes to discretionary spending for prisons. Proponents of the bill would argue that with fewer people in prison, Congress won’t need to appropriate as much funding for the BOP every year. However, there are also a couple of other factors that are ignored in this CBO analysis that would cancel out the savings on that front. This bill, while offering early release for many prisoners, provides an avenue for transfer to home confinement or halfway houses for even high-risk prisoners. According to the Bureau of Prisons, the marginal cost per diem per prisoner in federal facilities is only $33, while the cost of home confinement is $44 and the cost of halfway houses is $88 per day.

Then there is the enormous unfunded liability on the DOJ to create a complex system of time credits and risk assessments for every single prisoner with no exceptions (not even for criminal aliens who will later be deported). As Assistant Attorney General Stephen Boyd wrote in a letter to the White House earlier this year, the legislation “would impose impossible administrative burdens that would cripple BOP and impose significant costs on taxpayers.” As Boyd observed, the First Step Act “significantly increases limits on each prisoner’s amount of phone time per month,” which would either place the public at risk with the increased criminal activity conducted over the phones (especially by gang leaders) or force the BOP to spend more monitoring them. This bill also burdens the DOJ with endless lawsuits for increased “compassionate” release and other entitlements. Forget about the cost to local sheriffs who need to monitor thousands of the worst career criminals being released in such a short period of time.

None of this is even factoring the forgotten cost of crime on the society and victims because everyone is so focused on a zero-sum game of compassion for the criminal. Jeffrey L. Sedgwick, former director of the Bureau of Justice Statistics, wrote in the Washington Post in 2008 that “the most conservative estimate for the cost of violent and property crimes in the United States is $17 billion a year — and that’s just direct, immediate cost.” The intangible costs are possibly over $1 trillion, according to the Government Accountability Office.

Just how likely is it that these people will commit more crime?

According to the Bureau of Justice Statistics, states that have experimented with similar “recidivism reduction” programs fostering early release showed results of 68 percent of released state prisoners being re-arrested within three years, 79 percent within six years, and 83 percent within nine years. Most importantly, 77 percent of released drug offenders were arrested for a non-drug crime within nine years, and more than a third, 34 percent, were arrested for a violent crime. Thus, since this bill releases tens of thousands of violent and dangerous criminals and they recidivate at appallingly high rates under similar state jailbreak programs, why would any sane person with a modicum of regard for public safety rely on undefined programs to change this trajectory?

This bill merely takes the most violent population and forces the DOJ to enter into partnership with the very “nonprofits” and “institutions of higher education” that are already poisoning the minds of prisoners and teaching them that society failed them. Prisoners simply have to participate in some unspecified “productive activities” with no degree of accountability beyond the programs they are already enrolled in.

As the letter from law enforcement groups to the Senate observes, “Since the bill does not require BOP inmates to change anything about their current behavior or program participation to receive time credits, it will incentivize and result in offenders actually spending less time in recidivism reduction programming, and will let the worst drug traffickers out of prison even earlier. This will make our streets and neighborhoods more dangerous, because it will allow early release without improving offender rehabilitation.”

More crime, more gangs, more drug traffickers, more strained federal and state law enforcement, and we are all left with the tab for the welfare and increased crime. Indeed, there is nothing new, innovative, or reform-minded about this bill or this movement. It is the warmed-up leftovers of the McGovern/Dukakis philosophy that was soundly repudiated by Ronald Reagan. Now is not the time to regress.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.