Jun 20, 2023, 7:00pm EDT
politicsNorth America

Donald Trump used to brag about the First Step Act. Not any more.

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The News

The First Step Act, Donald Trump’s marquee criminal justice reform package, became a centerpiece of his 2020 campaign — exhibit A of him doing what no other politician could do. It’s getting a different treatment from Republicans now.

Ron DeSantis has pledged to repeal the law. Mike Pence has said it’s time to “rethink” it. Trump himself rarely talks about it; when asked about sentencing reform by Fox News today, he touted his new proposal to give drug dealers the death penalty.

With little pushback, and to the amazement of the bipartisan coalition that passed it, the ex-president’s rivals now characterize what was arguably his biggest bipartisan victory as a well-intentioned mistake.

“It’s campaign rhetoric, and they know they can’t deliver on it,” said Jason Pye, who lobbied for the law with the libertarian group FreedomWorks, and now runs “rule of law initiatives” at the Due Process Institute. “And it’s fascinating, because the impact of the law is exactly what we wanted it to be.”

DeSantis has led the pack on repeal, calling the bipartisan legislation a “jailbreak bill,” blaming it for higher crime, and denouncing the release of a terrorism financier who benefited from its sentencing reduction.


“They’re releasing people who have not been rehabilitated early, so that they can prey on people in our society,” DeSantis said on The Ben Shapiro Show last month, echoing some of the law’s original critics, like Arkansas Sen. Tom Cotton.

DeSantis, who signed a number of tough sentencing laws before launching his campaign, hasn’t detailed his specific problems with the law, which reduced mandatory minimum sentences for drug offenses, expanded education and vocational programs in prisons, and moved thousands of prisoners into home confinement or halfway houses. The Department of Justice recently found that just 12.4% of prisoners released under it had committed new offenses, compared to the recent average of 43% for all federal ex-prisoners.

But Trump hasn’t defended the First Step Act, either. His campaign only hit back at DeSantis for criticizing the law after voting for an earlier, less-comprehensive version in the House. (His campaign did not respond to a request to comment for this article). His former vice president said at a CNN town hall this month that “we need to take a step back from the approach of the First Step Act” to get “serious and tough” on crime.

“We’ve got a crime wave in our major cities,” Pence said. “Now more than ever, we ought to be thinking about how we make penalties tougher on people that are victimizing families in this country.”

South Carolina Sen. Tim Scott, who voted for the law and earned bipartisan credit for getting it over the finish line, appears to be the one 2024 challenger willing to defend it.


“The legislation is working the way it was intended to,” Scott told Fox News host Lawrence Jones. “Attacking President Trump is just a terrible idea, especially on legislation where, the more you look at it, the better it gets.” But Scott himself hasn’t talked much about First Step on the trail; a section of his website devoted to his “record” on crime-fighting mentions two pro-police and tougher sentencing bills that haven’t passed, but not the historic 2018 law.

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David’s view

You can’t overstate how much the First Step Act mattered to Trump’s 2020 run, especially after he realized that Joe Biden, who helped author the 1994 crime bill loathed by criminal justice reform advocates, would win the Democratic nomination. The law featured prominently in an effort to win over Black voters, which bumped his share of that electorate from 8% in 2016 to 12% against Joe Biden.

The Trump re-elect spent millions to run a clemency and First Step-focused ad during the 2020 Super Bowl, focused on the moment that a non-violent drug trafficking convict named Alice Marie Johnson was released from federal prison. The message: “Politicians talk about criminal justice reform. President Trump got it done.”

Johnson would repeat that message at the Republican National Convention, as the Trump campaign ran swing-state ads about Biden’s role in the sentencing laws that First Step partially rolled back. When he faced then-California Sen. Kamala Harris in their only debate, Pence attacked her from the left on criminal justice reform.

“You increased the disproportionate incarceration of Blacks in California,” Pence told Harris. “You did nothing on criminal justice reform in California. You didn’t lift a finger to pass the First Step Act on Capitol Hill.”


But Trump (and Pence) lost, Biden won. A Democratic administration started administering the law. Crime went up, and Republicans ran midterm campaigns against the progressive reforms (softer sentencing, more prosecutorial discretion, bail reform) that grew out of 2020’s George Floyd protests.

That quickly changed the conversation around First Step, to Johnson’s dismay; in an interview with Politico last week, she worried that DeSantis and other critics were “dehumanizing the people” for craven political reasons. The Next Step Act, introduced by New Jersey Sen. Cory Booker to build on the new consensus and his unexpected win with Trump, never picked up momentum. But he hasn’t been approached by Republicans seeking to seriously revisit the First Step Act, either.

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The View From Criminal Justice Reformers

The coalition of left-wing and libertarian criminal justice reformers that backed First Step is weaker than it was in 2018; the Koch political network, which worked on passage for years, is now running ads to beat Trump. But advocates said that they were more disappointed by the political rhetoric than worried about opponents getting 60 senators to scrap the law.

“We’re 3-plus years into implementation, and you’re still looking at a 12% recidivism rate,” said Timothy Head, the executive director of the Faith & Freedom Coalition, which is hosting 11 presidential candidates in D.C. this week. “If you offered any state corrections officer in any state in America a 12% recidivism rate, they’d be celebrating.”

Ames Grawert, a senior counsel at the left-leaning Brennan Center, said that the linkage DeSantis and Pence made between reform and rising crime didn’t make any sense. “These are people from across the country,” he said of people being freed under First Step. “To think that this small group of people could somehow translate to a nationwide increase in murder rates — red state, blue state, urban, rural, etc. — just doesn’t hold water.”

The walk-back from criminal justice reform has also come at a somewhat strange moment in the campaign. The murder rate, in most cities, appears to have fallen since last year, with no change to how Republicans running for president talk about it. Rather, the candidates continue to highlight gruesome local crime stories to portray a country falling apart under Joe Biden.

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Room for Disagreement

At least one of this year’s presidential candidates is attempting to attack the First Step Act without laying blame on Trump for its purported shortcomings — which may be a dual sign of just how toxic criminal justice reform has become in GOP circles even as the former president remains popular. Vivek Ramaswamy told Semafor that criticisms of the statute had already “devolved into a tired talking point” for other contenders, and blamed Biden for implementing the law too laxly

“The U.S. Sentencing Commission under Biden loosened provisions to make the First Step Act more lenient to criminals than was initially intended,” he said. “Based on this abuse of the statute by the Biden administration, I would repeal it.”

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  • The Marshall Project’s Weihua Li pokes some holes in the DeSantis crime record in Florida, which “rests on patchy, incomplete crime data.” In the Spectator, Amber Athey looks at how the GOP has “sprinted away” from First Step.