The Struggle To Pass The First Step Act Is A Continued Disgrace

The bill is extremely modest in its reforms, yet the opposition remains uncompromising and committed to a campaign of false, fear-mongering rhetoric.

The bill is extremely modest in its reforms, yet the opposition remains uncompromising and committed to a campaign of false, fear-mongering rhetoric.

The First Step Act is a bipartisan-supported bill that if passed, would enact meaningful federal sentencing reforms shortening the terms of thousands of American citizens currently incarcerated in the United States. The reforms would reverse some of the worst policies of the enormously failed modern drug war such as differing penalties for crack versus powdered cocaine that unfairly target minorities.

The First Step Act is therefore an important, but also extremely modest first step. The bill would affect only 1.5 percent of a federal prison population that accounts for less than 10 percent of the overall prison population in the United States. Moreover, the Bureau of Prisons will maintain complete control over who does and does not qualify for the bill’s “early release” provisions and the list of ineligible prisoners is long. This means should a drug war zealot and bigot be again in charge of the DOJ, expect the early release provisions to be applied as constrictingly and disproportionately as possible.

The larger issue, however, is the bill will likely fail in Congress. The conservative opposition within the United States Senate has utilized the kind of fear-mongering rhetoric that has become all too familiar during the modern war on drugs era. It was crushingly depressing to see this tactic appear to succeed once again as Senate Leader Mitch McConnell was reported to have told the president the First Step Act would not be brought to a vote this year. Although pressure from the bill’s bipartisan proponents has increased since the reported setback, I am not confident the powerful conservative bloc in the Senate opposing the bill can be overcome.

The cause of the conservative stubbornness is, perhaps, debatable. However, the claims used to support it are patently false. One of the main figures in opposition to the First Step Act is Senator Tom Cotton (R-Arkansas). Mr. Cotton once claimed the United States has an under-incarceration problem, a position he continues to maintain despite the overwhelming evidence crime is decreasing and wide-reaching criminal laws are ineffective at reducing crime. Senator Cotton also makes evidently false claims regarding the First Step Act so as to stall or prevent its passage.

The tragedy is the fear mongering and lying are preventing implementation of a trend of reforms that have a proven track record of reducing problems such as addiction and opioid overdoses. Moreover, our failure to follow this trend is undeniably the cause of continued violence in this country and elsewhere.

This is because unlike disputes in legally regulated markets which can be resolved through peaceful means such as the legal system, black markets are controlled by violence and fear. During alcohol prohibition, murder rates in general as well as against police officers skyrocketed as criminal syndicates became extraordinarily powerful. The same is true today in regards to criminal syndicates in Mexico and violence in places like Chicago which is largely attributable to the illicit drug trade. There is a reason one doesn’t see beer companies like Budweiser and Coors slugging it out on the streets for territory as their crime syndicate counterparts did during prohibition.

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Advocates for mass incarceration embarrass themselves when they portray their critics as wanting to open up the prisons and let everyone out. Nothing said here or in the First Step Act means we shouldn’t have people in jail, or that penal law cannot be a successful deterrent. Rather, the criminal justice system should make a distinction of the kind John Stuart Mill made in On Liberty over a century and a half ago. In On Liberty, Mill distinguished between what he called “self-regarding acts,” as in doing things to yourself that while possibly self-destructive nevertheless do not harm others, and all other acts. Mill believed government should not involve itself with “self-regarding acts,” a position which mirrors the general message of conservatism today.

That the First Step Act appears unlikely to pass due to conservative opposition therefore reflects one of the most hypocritical policy stances in modern American government. The paternalistic nature of the drug war — where big government is held as the solution to the individual health problem of addiction — stands in direct contrast to conservative outrage against the nanny state.

After all, obesity is a direct cause of death for a great number of Americans, yet at every step conservatives have mocked and ridiculed liberal attempts at government-run solutions. Neither would conservatives support incarcerating peddlers of the fast food industry for selling products which contain ingredients that directly lead to an obscene number of deaths in this country. Rightly so.

More to the point. Alcohol causes more deaths than opioids and is the underlying factor to a lot of criminal behavior, but you don’t see these same conservatives advocating for brutally enforced prohibition of alcohol. That’s because our country had to admit a long time ago that such a policy did more harm than good.

To be sure, there are stalwart conservative organizations such as National Review and the CATO Institute that have long supported abandoning the war on drugs. The data and arguments these organizations provide should be enough to convince most conservatives, yet the persistence to ignore stark realities and advance grossly hypocritical policies continues. This logically leads some like myself to conclude some other reason than the indefensible claim of protecting public safety is driving the opposition to the First Step Act…… *cough* racial prejudice *cough*

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Many conservatives will of course scoff at the claim something like racial animus is driving the opposition, and it’s undeniably true that not all possess such bigotry. But the fact that conservatives engage in such blatantly hypocritical and false claims logically opens themselves to such inferences.

In the end, debate over the reasons of opposition has little importance. As long as reform is obstructed, the country will continue to suffer needlessly under an expensive and ineffective government policy. That kind of thing typically would anger a conservative, the fact that it doesn’t and conservatives instead represent the main impediment to fixing a broken and expensive government run system speaks volumes.


Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.