A leading opponent of President Trump’s push for criminal justice reform has admitted that he supports key planks of the legislation, giving reformers hope it can pass by the end of the year.
Larry Leiser, president of the National Association of Assistant U.S. Attorneys, told the Washington Examiner he supports in principle three of four major sentencing reforms included in the Trump-backed First Step Act.
Provisions to reduce prison sentences were added last month to satisfy senators pushing for deeper reform after less-controversial prison reform and societal reentry measures passed the House of Representatives in May. Leiser opposes the underlying bill, but said there’s merit to the additions.
“This is significant because Larry has been among the loudest and most persistent critics of criminal justice reform and the First Step Act,” said Koch Industries general counsel Mark Holden, a supporter of the legislation. “Having him on board with these reforms should help ease any concerns some senators may have about making our sentencing laws more proportional and just.”
[Opinion: Trump is right to embrace criminal justice reform]
The First Step Act faces a tight deadline before Democrats retake the House of Representatives in January. Reform advocates fear that a divided Congress will lead to an impasse that results in no reform.
Republicans are split on the bill, and Senate Majority Leader Mitch McConnell, R-Ky., has not committed to a vote. Bill supporter Sen. Lindsey Graham, R-S.C., said last month that it would get 80 votes in the Senate, but that the push would likely die when Democrats retake the House and advocate for even farther-reaching changes.
As time dwindles, Holden shared with the Washington Examiner details about a private conversation he had with Leiser, a leader of the opposition, alongside Sen. Tom Cotton, R-Ark.
Holden said that nearly a year ago, Leiser said he supported three of four major sentencing changes ultimately added to the bill. In a phone call Wednesday, Leiser confirmed the account, but said that he opposes the overall package, mainly due to concerns about process and provisions that passed the House.
“What Mark Holden is trying to do is pick off the things we agree on and say we support the overall bill, [but] there are parts of the bill that we think are adverse to public safety,” Leiser said.
Leiser said he supports repeal of a three-strikes life sentence for drug crimes, curbing a firearms sentencing enhancement, and expanding a sentencing “safety valve” to allow judges to deviate from harsh drug penalties, though he believes the Senate bill sets the bar too low.
Leiser said he opposes a fourth major sentencing addition to the First Step Act that would retroactively reduce sentences for crack cocaine convicts punished under a since-changed law. Many such sentences, however, already were cut by former President Barack Obama.
Although he supports some of the reforms, Leiser opposes seemingly less-contentious provisions in the bill that passed the House, notably allowing inmates who participate in anti-recidivism programs to transfer early to supervised release, such as living in a halfway house. He said there’s no evidence programs reduce recidivism at the federal level and that he suspects reformers are downplaying the bill’s potential effects
“If you read this bill carefully, what they are trying to do in an almost stealth-like manner is eliminate mandatory minimums,” Leiser said, arguing that a provision allowing judges to overlook a defendant’s criminal history in certain cases if tabulations overstate the severity of past crimes amounts to a “Brock Turner” exception, referencing the Stanford University student given a short prison sentence for rape at a judge’s discretion.
A recent blog post by reform supporters argues that Turner, and many others, would not qualify for a sentence reduction because the flexibility provision does not apply for people convicted of “a serious drug felony or a serious violent felony.”
The First Step Act would slightly expand the amount of “good time” credit off sentences, from 47 to 54 days per year, but in a recent letter, Leiser warned that the supervised release-expediting credits for anti-recidivism programs means someone with a 20-year mandatory minimum sentence under could be released in fewer than eight years. He told the Examiner that would “destroy truth in sentencing.”
Holden said Leiser’s concerns about the utility of anti-recidivism programs are “completely unfounded, as these evidence-tested programs are proven to work in states like Texas, Michigan, and South Carolina,” pointing to a 2013 Justice Department study that “found that these programs cut recidivism nearly in half and defray significant future incarceration costs to taxpayers.”
And although transfer to halfway houses could be greatly expedited, Holden argued that doesn’t mean a fast-track out of discipline.
“The First Step Act’s earned time credits won’t reduce anyone’s sentence,” he said. “They will instead allow inmates who are deemed a minimal or low risk based on a [Bureau of Prisons] risk assessment to serve parts of their sentences in halfway houses or in home confinement, under BOP supervision.”
