The Big Lie: Ron Desantis' Characterization of The First Step Act as the "Jailbreak Bill" is Patently Absurd

Until recently, some grotesquely unfair and outdated laws were long overdue for change.  

For decades, African Americans were being crushed with decades in federal prison or life without parole for possession of a handful of crack, a nonviolent drug crime. This cruel oversentencing was the product of a massive flaw in the law. The law punished crack 100 times more harshly than powdered cocaine. That meant someone could get caught with a handful of crack and face penalties more severe than someone caught with pounds of powdered cocaine. Congress eventually discovered no legal or scientific justification for the massive 100:1 sentence disparity between powdered cocaine and crack cocaine–the two substances are pharmacologically identical. But the bigger problem was that 95 percent of the people prosecuted under this draconian crack law were minorities: 90 percent were African Americans. It wasn’t a war on drugs as much as it was a war on drugs that Black people sold. 

There had been a mass caging of African Americans under a law that Congress found to be without legal and scientific justification and instead borne on the hysteria around the crack epidemic in the 80s. In 2010, Congress passed the Fair Sentencing Act, which dramatically reduced penalties for crack cocaine, making them more comparable to the pharmacologically identical powdered cocaine. Finally, some justice. Not so fast.

Congress did not make the law retroactive. Thus, the men and women who were crushed with decades to life in prison before this change in the law were not allowed to benefit—only the people sentenced after the change in the law could benefit. To say it another way, the men and women who were imprisoned for absurdly long sentences for relatively minor nonviolent drug offenses under a broken law that was so senseless and unfair that Congress discarded it and replaced it with a newly updated law based on new information would have to continue to rot in prison since they were sentenced before Congress realized how broken and unfair the law was. 

Fast forward another decade.   In December 2018, President Trump signed the First Step Act (FSA) into law. A prominent feature of the FSA was that it made the crack law retroactive. This meant thousands of men and women languishing in prison for decades could finally take advantage of Congress’ changes to the law all those years earlier.

As a result, to date, about 4000 prisoners have been released. Let me be clear about something. These men and women were given a get-out-of-jail-free card. These men and women were serving overinflated sentences under a broken law that had been rectified a decade earlier. Many prisoners had served 10, 15, 20, 25 years or more than they should have served in the first place. It just took a while for (a) Congress to fix the outdated law and (b) for the FSA to make the law retroactive. 

In a perfect world, 100 percent of released prisoners would become law-abiding citizens and never re-offend. But in an ideal world, those men and women wouldn’t have been stripped from their young children and aging parents, friends, and other family members to be warehoused for decades because of a radically unfair law that turned out to have no legal justification.

After decades of isolation, one can imagine some of their struggles in reentering society.  Yes, some of them reoffended. 

But now, we have political news and politicians scolding those who pushed the FSA forward and attacking Trump for signing it into law. Politicians are calling the FSA the “jailbreak bill”: https://www.politico.com/news/2023/06/18/desantis-trump-criminal-justice-reform-00102516

"So one of the things I would want to do as president is go to Congress and seek the repeal of the First Step Act. If you are in jail, you should serve your time. And the idea that they're releasing people who have not been rehabilitated early so that they can prey on people in our society is a huge, huge mistake," Desantis stated.

They are saying that the FSA flung open the prison gates so violent, crazed prisoners could terrorize society while overwhelming local police departments. Some politicians are now aggressively pushing this false narrative. Presidential candidate Ron Desantis vows to repeal the “evil” FSA if elected. To fuel the hysteria, they point to the fact that many inmates released reoffended. There has never been a zero percent recidivism rate.

But I understand. Who wants dangerous criminals to be cut loose so they can victimize our children, spouses, parents, and other loved ones? Not me. Democrats and Republicans want law and order because people want safe communities regardless of political affiliations. I think everyone can agree on that point. Prison is a good place for some. 

But I want to dispel this insane notion that the FSA has allowed dangerous criminals to run amok. This faulty view of the FSA is absurd and not grounded in reality. It is a narrative manufactured to cast certain people in a bad light so others in the political arena can look good and push their agenda. But these people have real lives at stake in this political game.  

First, think about what people are saying. They are saying that the FSA should be repealed and never should have been signed into law in the first place. In turn, they are saying that the people imprisoned under the old, broken crack law should have been held in prison, even though it is undisputed that there’s no legal or scientific justification for the law.

Remember, if someone was serving a 30-year sentence under the old crack law, under the new law, his sentence might be ten years. These people are saying, in effect, “Leave them in prison. Let ’em rot!”

Remember, the law was changed not because of some soft-on-crime stance but because it was discovered that punishing a pharmacologically identical substance (crack cocaine) 100 times more harshly than its counterpart (powered cocaine) without scientific or legal justification is irrational, especially when 95 percent of the people hammered with the brutally long sentences are minorities. What do we call a law that buries alive Black people 100 times more harshly for the same conduct that others are receiving a small fraction of the punishment? What is that called? 

They never should have had that sentence in the first place. Yet people are screaming from the rooftops to board up homes and businesses because the evil FSA has freed dangerous criminals en masse.  

If people want to denounce and repeal the FSA and a core aspect of the FSA was NOT to implement new soft-on-crime laws but to remedy grotesquely unfair laws that served to illegitimately incapacitate people with cruelly long sentences that were out of whack with the dictates of common sense and radically disproportionate to the seriousness of the crime, then they are against justice.

Let the punishment fit the crime. I agree. Lock up people who are dangerous to the public because they commit crimes. I agree. But don’t bury humans with ridiculous sentences that are purely punitive. Be smart on crime. 

When Russia imprisoned WNBA player Brittany Griner for possession of marijuana, it ignited passionate pleas for her release until Heaven and Earth were moved to free her. But we dole out much harsher punitive sentences here in the United States, and people want blood and callously scream for them to be locked away for decades, if not for the rest of their life. No mercy until they or their loved one ends up in the government’s crosshairs. Then, well, it’s different.

I want to stop and applaud Alice Marie Johnson for standing up against these politicians. President Trump commuted her nonviolent drug-related death-by-imprisonment sentence in 2018. Alice has since gone on to accomplish in the five years since her release what most people consider extraordinary lifetime achievements. Put differently, in the five years since her release, she achieved things that would take most successful people a lifetime to accomplish. 

And when I say accomplish, I'm not talking about making money. I'm referring to her incredible altruistic work in helping people. 

At any rate, Alice said she was appalled by the movement against the FSA. “What they’re doing is dehumanizing the people,” she said. “The uptick in crime is not because of the First Step Act. I say … shame on them for mischaracterizing this.”

And this is why I love Alice. Last year, I wrote a blog post about her: https://www.thejusticeprojecttexas.com/blog/7q6rbxtq8czm8ol5edhr6al96udhr5.

But I need to be fair because there is more to the FSA than the old crack law having been made retroactive. I honed in on that particular aspect of the FSA to make a point. 

With that, the FSA did not meaningfully cut down federal sentences. It’s not like a prisoner was serving, say, 20 years in prison, and then once Trump signed into law the FSA, this dangerous criminal was cut loose after serving, say, 5 or 10 years, multiplied over tens of thousands of prisoners.

But this is precisely how some influential politicians and political news outlets portray it, which is misleading.

Take me. I’m serving a 30-year federal prison sentence for a nonviolent crime. I’ve been in prison now for about 14 years. There is no parole in the federal system. I would probably have made parole in the state system after serving about 3 to 5 years of my 30-year sentence. But in the federal system, I’m required to serve almost all of it—if I earn all of my meager good time, I can serve 85 percent, so about 27 and a half years.

So, what practical benefits does a nonviolent offender like me reap? Nobody set me free. Instead, since the BOP’s PATTERN scoring system rates me as a low risk of recidivism since my crime is nonviolent and is not a sex offense, since I work and stay out of trouble, since I’ve taken nearly 15 programs this year alone, and about 50 classes in total, since I do everything right, if I’m good for the next decade-plus, I can earn one year of additional good time. That’s it. One year off over a 30-year sentence. In addition, I can earn a little extra time I can spend in a halfway house or, if I’m eligible, on home confinement, both of which are still considered BOP custody, probably an extra six months.

So, in all, because of the FSA, over my 30-year sentence, I can get out of prison custody one year early as long as I’m not a violent offender or sex offender and if I do everything right. This is the “jailbreak” the politicians are talking about. Meanwhile, people who commit murder and rape in state custody made parole after serving a fraction of their sentence. But the FSA is the problem.  

I can hear the opposition now. But there are nearly 20,000 official FSA releases thus far! And 2000 have re-offended after their release, so the FSA is bad. So, almost 20,000 federal prisoners were just set free? This is highly misleading. There were about 185,000 prisoners in the federal system. A lot of those prisoners were nearing the end of the term of their sentence. So when the FSA kicked in, and they got the one year off in good time and about six months extra of halfway house/home confinement time, it naturally pushed out the prisoners a year to 18 months from release. Now, people can say that in addition to the 4000 offenders released under the new crack law, there were nearly 20,000 offenders released early under the FSA.  

This looks like many prisoners were just set free. But the truth is in the details.

Yes, technically, they were released early, but no, an army of dangerous prisoners’ sentences weren’t just cut down by any meaningful amount of time because of a soft-on-crime law. There is a big difference between some soft-on-crime law setting dangerous criminals free and a law that allows specific classes of prisoners to spend years and even decades earning by good behavior and active participation in programs and work, an extra year (as well as some prerelease credits to be spent in a halfway house or on home confinement) off their sentences

This is the “jailbreak” that politicians are talking about reversing.

This is just bad journalism or someone pushing their agenda. But it is not by any objective standard an accurate representation of the reality of the FSA. This narrative is designed to appeal to one’s raw emotions: FSA = more than 20,000 dangerous criminals having been released from prison = 2000 released prisoners have committed more crimes = FSA is bad. It’s more nuanced than that, and this oversimplification obfuscates the matter.

In addition to these changes, there were some reforms to something called an 851 enhancement. The 851 enhancement allowed prosecutors to take sentencing discretion away from judges. If even a low-level offender committed a minor, nonviolent crime that merited, say, five or so years in prison, and he had two prior serious drug offenses, the prosecutor could use the 851 enhancement to force the judge to impose a life sentence without the possibility of parole, which is essentially death by imprisonment. To a lesser extent, prosecutors could trigger a mandatory minimum 20-year sentence for other offenders who had one prior serious drug offense.

Congress created the 851 enhancement to combat dangerous supercriminal drug kingpins who ruled over illegal empires. But prosecutors weaponized the enhancement to hammer low-level offenders as a punishment for exercising their right to a trial, a motion to suppress, or some other inconvenience. 

The FSA made minor changes to this weapon so it could not be abused at the same level. Low-level offenders were receiving sentences on par with convicted serial killers. The changes were not retroactive. 

Similarly, a draconian 924(c) stacking law was being misapplied, resulting in extreme sentences that had no connection to the seriousness of the crime. The FSA also made some fundamental changes to this outdated law so that the punishment would fit the crime. This law was not retroactive. 

There were some other tweaks to the Compassionate Release framework and other minor tweaks not worth mentioning.

In the same vein, a lie is being sold. Anyone telling you that the FSA allows federal prisoners to earn 10 to 15 days off every 30 days of their sentence is poorly misinformed or delusional. That is not the reality of the situation. No, I cannot earn 10 to 15 years off my 30-year sentence. I can earn one year—one year. That’s the “jailbreak” you are hearing about.

To be sure, no floodgates were opened for federal prisoners. The FSA was hardly a soft-on-crime bill. It was more like a smart-on-crime bill. Indeed, some outdated, grotesquely unfair laws were rectified. But there is a fundamental difference between a law that genuinely reforms the entire system by way of a paradigm shift and cuts prisoners’ sentences down in any meaningful way and a law that finally rectifies the most outdated, radically unfair laws on the books, which lead to sentences so excessive they are irrational on their face.

They want you to think that the FSA is this soft-on-crime law that magically erased federal sentences and that murderers and rapists are pouring out of the prison into your community. 

Friends, justice is not using outdated, broken laws to impose bone-crushing sentences spanning decades or life in prison for offenses that do not merit such a sentence, brutal sentences that break up families and cause incalculable human misery and emotional and psychological distress. That’s senseless, cruel, and barbaric. That vicious brand of justice is punitive, and it ignores the evidence that demonstrates these changes make the justice system smarter and more effective.

And allowing nonviolent offenders the opportunity to earn one year of good time in a system that doesn't offer parole is hardly revolutionary prison reform. It's a crumb. 

Some of these people who fight tooth and nail against any change in criminal justice/prison reform make me think. Have they ever made a mistake? Because let’s face it. A drug dealer or “criminal” is not just that hoodlum selling drugs on a corner in the bad part of town. There are affluent college girls slinging pain pills or popping them without a prescription, or selling marijuana, cocaine, or ecstasy, or drinking while driving or buying and serving alcohol to underage people. This goes on at Harvard, SMU, Stanford, and so on. Crime doesn’t just occur in poor neighborhoods. It’s just policed much more heavily there. 

How many people have been legally drunk behind the wheel of a car or boat? How many people have fudged on their taxes? And on and on. If everyone were jailed, not for just crimes they were convicted of, but for every crime they have ever committed and punished harshly, people would start to see things differently. 

Some people would understand that nonviolent, low-level offenders don’t need to sit in a cage for decades to get it. They would see firsthand the pain and misery it caused their loved ones and its ripple effect on their children.

And what about the thousands of people under the FSA who were released and went on to become productive members of society, be involved with their children and families, pay taxes, and live life? What about those people? What about all those success stories? There will never be a zero percent recidivism rate. Never.  

The people who were being warehoused under these brutally long sentences are people. They have a name. Marcus had never been to prison. He was twenty-two. He was caught with a little crack and received 30 years in prison without parole. He and I were friends here at Fort Worth Medical Center. He had six children. He taught fitness classes here. After serving twenty-two years in federal prison for a small amount of crack, he was finally released a little early. He’s now thriving out in the world with his family. There are thousands of Marcuses.  And these politicians are so upset that they are using their platforms to smear the FSA and anyone who helped bring it into law. They want Marcus in a cage, not working in the community, spending time with his family, and being a positive force.

But I’m not mad at them. I hope they and their loved ones are not judged as harshly as they want others judged. Mercy has a place in our society and even in our justice system. I harbor no animosity toward them and only want their hearts to change and for people to understand the truth, not a distorted reality perpetuated by rhetoric and lies.