DeSantis Says He Would Seek Repeal of FIRST STEP Act if Elected President

DeSantis calls the bill a "jailbreak," a gross misrepresentation of the criminal justice reform bill.

Republican Florida Gov. Ron DeSantis said last week that he would seek the repeal of the FIRST STEP Act, a major criminal justice reform bill signed into law by former President Donald Trump in 2018, if he is elected president.

DeSantis' comments in an interview with The Daily Wire published last Friday seem like part of a campaign strategy to paint Trump—who often muses about executing drug dealers and jokes about police brutality—as soft on crime.

"Under the Trump administration—he enacted a bill, basically a jailbreak bill, it's called the First Step Act. It has allowed dangerous people out of prison who have now re-offended, and really, really hurt a number of people," DeSantis said.

"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," DeSantis continued. "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."

In reality the FIRST STEP Act was a large but modest bill, filled with carve-outs to appease law enforcement. Among its many provisions: It expanded reentry and job training opportunities for federal inmates, banned the shackling of pregnant prisoners, and required people who are incarcerated to be housed within 500 miles of their families, when possible. It also included four changes to federal sentencing law that reduced some mandatory minimum sentences, expanded judges' discretion under the so-called safety valve, and made reductions to crack cocaine sentences under the Fair Sentencing Act of 2010 apply retroactively to current inmates.

Still, when Congress passed it by wide bipartisan margins in 2018, the FIRST STEP Act was the most sweeping criminal justice reform legislation to pass Congress in recent memory, the culmination of years of work by a group of bipartisan lawmakers in Congress and a coalition of progressive and conservative advocacy groups.

DeSantis' comments are a thumb in the eye of the many Republicans who worked on the legislation, such as former Georgia Rep. Doug Collins, author of the House version of the FIRST STEP Act, who noted that DeSantis voted for an earlier version of the bill.

"Americans want stronger economies and safer communities," Collins said in a statement following DeSantis' comments. "The First Step Act delivers both those priorities. The program's proven low recidivism rates are making us safer, and having more people in the workforce is bolstering the economy. I'm proud to have been part of its design and passage, alongside the vast majority of Republicans in both chambers, including then-Congressman Ron DeSantis. I'm proud to continue to work towards a more effective justice system across the country."

The Justice Department's 2022 annual report on the FIRST STEP Act found that, of the 9,791 people released early under the various provisions of the FIRST STEP Act, roughly 16 percent—1,557—were rearrested. But that is significantly lower than the federal prison system's overall recidivism rate. According to the Bureau of Prisons' website, the "overall recidivism rate (as defined by a rearrest or return to any jurisdiction's custody) is around 43 percent."

The bill was far from a "jailbreak." The provisions leading to early release were fixes to technical issues or sentences that nearly everyone agreed were overly punitive. 

For example, the FIRST STEP Act forced the federal Bureau of Prisons (BOP) to change the way it calculates the amount of "good time" credits inmates can earn through good behavior to shave days off their sentence. As I explained when Tucker Carlson made similarly hyperbolic claims back in 2019:

In the federal prison system, inmates were supposed to be eligible for 54 days of good time credits a year. Keeping a clean disciplinary record is one of the only ways federal inmates can reduce their sentences, since there is no parole in the federal system.

In practice, however, they could only accrue 47 days a year, thanks to the absurdly complicated way BOP calculated the credits. (If you're really a glutton for punishment, you can read a long summary of BOP's good time credit formula in a 2010 Supreme Court ruling upholding it, which includes an appendix entry about the algebra equations involved.)

For a federal inmate doing 10 years of hard time, that meant losing 70 days of potential credit toward an earlier release.

The FIRST STEP included a provision to ensure that inmates can now actually receive 54 days of good time credit a year, and it required BOP to retroactively recalculate credits for current inmates and adjust their release dates accordingly.

All of these people going home on good time credits were going to be released sooner rather than later. Most were released from halfway houses or home confinement. And they were all still subject to three to five years of supervised release.

Thousands of federal inmates also had their sentences retroactively reduced by a part of the FIRST STEP Act that retroactively applied the Fair Sentencing Act of 2010. The Fair Sentencing Act reduced the notorious sentencing disparity between crack and powder cocaine from 100-to-1 to 18-to-1, but it left thousands of federal crack cocaine offenders behind bars, serving far longer sentences than if they had been convicted of an equivalent powder cocaine offense.

The legislation also empowered judges to review federal inmates' petitions for compassionate release, a policy that allows terminally ill inmates the mercy of spending their final days at home. This has become a crucial layer of oversight for inmates suffering from medical neglect and delays in treatment. For example, in 2019 a federal judge granted an incarcerated woman's petition for compassionate release after finding that she had suffered "grossly inadequate" delays in treatment for aggressive breast cancer in the custody of the Bureau of Prisons. The judge ruled, over the opposition of federal prosecutors and the BOP, that the woman's "invasive cancer and the abysmal health care Bureau of Prisons has provided qualify as 'extraordinary and compelling reasons' warranting a reduction in her sentence to time served."

In addition, the FIRST STEP Act banned the shackling of pregnant inmates in federal prisons. The Bureau of Prisons amended its policies in 2008 to bar the practice except in cases of flight risks, but there was no federal law against it. The practice is banned in all but six states. When the House passed the FIRST STEP Act, Pamela Winn was watching from the gallery. Winn had suffered a miscarriage in federal prison after she fell while shackled by the ankles and wrists.

These are the sort of provisions that would be reversed if the FIRST STEP Act was repealed. 

The legislation was, despite its limitations, one of the few bright spots in the Trump administration's regressive criminal justice record. DeSantis' attacks not only misrepresent the bill but also make it less likely that similar bipartisan compromises will be reached to fix old mistakes of the drug war.