Member preview

Fact Check: The First Step Act Makes Jeff Sessions Weaker (Not Stronger)

Jeff Sessions Is Not Granted Unchecked Powers by the First Step Act

Many commentators continue to assert that the First Step Act gives Jeff Sessions huge new powers because he gets to design, choose, and implement the First Step Act Risk Assessment Instrument.

This argument is patently false (which might be why the DOJ violently opposes the First Step Act although their arguments are more than a little bit questionable).

Right now:

Jeff Sessions is 100% in charge of the Department of Justice and as Attorney General he oversees the entire Bureau of Prisons.

Everything from staffing, to release, to “good time” designations is either decided by statute or is ultimately under Jeff Session’s discretion and control.

After Passage:

Adding any new decision-making tool, regardless of how it is designed, would be MORE of a constraint on his powers (it cannot be less of a constraint because he has no pre-existing non-statutory <or constitutional> constraint now).

But, even beyond that, there are EXTENSIVE limits in the statute constraining the design, use, and control over the Risk-Assessment tool.

It is true that Jeff Sessions would be responsible for creating the Risk Assessment Tool (Section 101) but in order to do so he will have to carry out this duty in consultation with:

  • The Director of the Bureau of Prisons
  • The Director of the Administrative Office of the United States Courts
  • The Director of the Office of Probation and Pretrial Services
  • The Director of the National Institute of Justice
  • The Director of the National Institute of Corrections.

In addition to consultations, after the instrument is created, Mr. Sessions will have to prepare and present an evidence-based report demonstrating the effectiveness of the risk assessment annually to the US Congress. If that weren’t enough, the General Accounting Office “must audit” the use of the instrument at BOP facilities.

In other words, Mr. Sessions will not be given unchecked power to create implement a risk assessment tool by this legislation.

Let us also not forget that Jeff Sessions isn’t always going to be Attorney General.

To recap, absent passage of the First Step Act:

  • there are no new good time credits
  • there are no early releases to halfway houses or to home supervision
  • there is no access to new programming

And, absent passage, Jeff Sessions will remain “large and in charge” with a staff allowed to use personal discretion to do virtually whatever they want (in terms of prisoner dispositions).

In fact, the ONLY vehicle for reducing Jeff Sessions influence available to us right now is passage of the First Step Act.

Oh, and it would mean up to 4,000 human beings could come home earlier to there families…That too.

Anyway, passage of the First Step Act would weaken (and not strengthen) Jeff Sessions which should be one of the few things in the world that both parties, Chuck Grassley, and almost all political observers can celebrate together.

Josh is the co-host of the Decarceration Nation podcast and is a blogger and freelance writer who writes about criminal justice reform, television, movies, music, politics, race, ethics, and more.