Last week, news broke that a bipartisan compromise on criminal justice reform had been tentatively reached, teeing up the First Step Act for passage before Congress’ lame-duck session ends next month. The House-passed version of the bill has been stalled for more than five months, but a behind-the-scenes agreement to add sentencing reform to the prison reform package has given new life to the legislation.
President Trump quickly embraced the news, telling lawmakers to get the bill on his desk. “Did I hear that word ‘bipartisan’? Did I hear that word? That’s a nice word,” Trump quipped at a White House event, surrounded by lawmakers from both parties and his son-in-law-turned-advisor, Jared Kushner, who had been pushing the legislation. However, Senate Majority Leader Mitch McConnell reportedly told Trump there may not be enough time for the Senate to take up the bill before the legislative session ends on December 14.
Over the weekend, McConnell’s Republican colleagues, Lindsey Graham and Rand Paul, hit the Sunday circuit to pressure Senate leaders to move the legislation forward before the year-end recess. Advocates for the legislation, such as Justice Action Network, the nation’s largest bipartisan group pushing criminal justice reform, are likewise pushing the Senate majority leader to bring the First Step Act to the floor.
‘Big Government Run Amok’
“Our current criminal justice system is big government run amok,” said Lauren Krisai, a senior policy analyst with the Justice Action Network. Krisai calls the First Step Act a chance to “begin to correct that in a meaningful way,” adding that “with the support of President Trump, the Fraternal Order of Police, faith groups, advocacy groups, and legislators from both sides of the aisle, there’s really no excuse for Leader McConnell to not put this important bill on the floor.”
Not all Republican senators support this legislation. Last week, in an op-ed for USA Today, first-term Arkansas Sen. Tom Cotton called the act “a misguided effort to let serious felons out of prison.” Rather than pass it, Cotton suggested Congress first clean out the overreaching federal code and federal regulations which together create as many as 300,000 criminal violations. The junior senator from Arkansas also argued that the criminal code needs harsher sentences for fentanyl traffickers to address the current opioid crisis.
With less than a month until Congress recesses, the fate of the bill likely depends on whether the feel-good criminal justice reform narrative takes hold or whether the “weak on crime” counter establishes a foothold in the public’s consciousness. Unfortunately, while the dueling narratives compete for media space, the substantive details of the proposed changes remain ignored, with the press providing only cursory coverage of the legal changes the compromise bill would adopt.
For instance, The New York Times reported: “the compromise would eliminate the so-called stacking regulation that makes it a federal crime to possess a firearm while committing another crime, like a drug offense; expand the ‘drug safety valve’ allowing judges to sidestep mandatory minimums for nonviolent drug offenders; and shorten mandatory minimum sentences for nonviolent drug offenders.”
Are Journalists Even Reporting This Correctly?
The first compromise listed in the Times write-up struck a strange cord: Why would Democrats, who push for more gun control, seek to eliminate a crime related to the possession of a firearm? And why would Republicans, who object to the government infringing on law-abiding citizens’ right to bear arms in the name of combating gun violence, seek to protect criminals from punishment for possessing a gun?
The answer took some time to discover but is simple enough: They don’t. Contrary to the Times’ superficial reporting, the proposed compromise does not eliminate the sentencing enhancement for possession a firearm while committing another offense. Rather, the floated change would add a minor tweak to the governing law to assure that first-time offenders are not treated the same as repeat offenders. Let’s break it down.
The statutory provision at issue, Section 924(c) of the federal code, provides for an additional five years in prison for a defendant who possesses a gun during a crime of violence or a drug trafficking crime. For the second (and each subsequent offense), 25 additional years of imprisonment is tacked on to the sentence for the underlying crime. These additional terms of imprisonment are mandatory.
As currently interpreted by the Supreme Court, the five-year and 25-year mandatory sentencing enhancements of Section 924(c) are accumulated or “stacked” in the same trial. Thus, if a defendant is convicted of multiple counts of possessing a gun during a crime of violence or a drug trafficking offense, the judge must add five years to the defendant’s sentence for the first count, then 25 years for the second and all future counts of conviction—even though the convictions all stem from the same trial.
The Reform Poster Boy Isn’t What He’s Been Portrayed
Weldon Angelos has become the poster boy for those pushing to change Section 924(c). In 2004, 24-year-old Angelos was sentenced to 55 years in federal prison for possessing a handgun when he sold a few hundred dollars’ worth of marijuana to an undercover informant on three separate occasions.
Under Section 924(c), possession of the gun during the first sale resulted in a mandatory five-year sentence, but the second sale triggered an additional 25-year sentence, as did the third sale. Thus, for possessing a gun while selling about $1,000 worth of marijuana, Angelos received a 55-year prison sentence, although he was later released from prison in 2016, apparently when the federal prosecutor failed to object to Angelos’ motion for a reduced sentence.
The statutory language of the proposed change to Section 924(c)—leaked to The New York Times—is minor, but would have significant consequences to those similarly situated. The relevant provision of the proposed legislation would clarify that second and later convictions would only trigger the 25-year mandatory sentencing enhancement if the first conviction had already become “final.”
A conviction becomes final only after the right to appeal has expired, so under the amendment a defendant, such as Angelos, would receive a five-year mandatory sentence under Section 924(c) for possessing a gun during a drug deal, assuming he had no prior convictions at the time of the trial. That five-year sentence would then be on top of whatever sentence stemmed from the underlying drug offense. But the additional 25 years of imprisonment would not be stacked on top unless the defendant commits another crime.
This proposed change seems imminently reasonable. As Brett L. Tolman, the U.S. attorney for the district of Utah at the time Angelos was sentenced, explained, “the draconian sentence mandated for Angelos seemed disconnected to the purpose of the law.” Now an advocate for criminal justice reform and an attorney in private practice in Utah, Tolman noted that Congress intended Section 924 to punish those with prior convictions more severely, but in practice first-time offenders, such as Angelos, receive sentences far exceeding those needed for retribution or rehabilitation.
While Angelos’ case highlights an apparent injustice with the functioning of Section 924(c), the unreported facts underlying Angelos’ conviction raise another question for Congress and the public to consider: How harshly should criminals who possess guns be sentenced?
Every time there is a mass shooting, gun control activists demand more gun laws, implying that if only the United States had commonsense gun laws, gun violence would not occur. But what of the criminals who possess guns? And possess them illegally?
There’s Much More to the Angelos Story
This is where “the rest of the story” comes in to play. Although the press loves to portray Angelos as a young family man—the father of two small children—and an up-and-coming record producer who inadvertently got caught up in a drug sting, the court records tell a different story.
First, in addition to the three Section 924 gun possession counts that triggered the 55-year sentence, a jury convicted Angelos on 13 other counts, including money-laundering, two counts of possessing a stolen firearm, and one count of possessing a firearm which had its serial number filed off. While Angelos technically qualified as a first-time offender, he would be better described as an offender caught for the first time as an adult.
Angelos had a previous juvenile conviction on a felony firearm charge and a long juvenile arrest record for a number of other offenses. Additionally, according to the appellate court decision, the drug sales that hit Angelos with the 55-year mandatory minimum were sales to a confidential informant who was “a fellow gang member.” Far from dealing drugs on the side, the evidence indicated that Angelos had sold drugs regularly for several years.
A search of Angelos’ apartment also resulted in the seizure of three pounds of marijuana, a Glock 17 9mm handgun, a Ruger P85 9mm handgun, and a Walther PPK .380 handgun, as well as a large cache of cash. A later search of a house Angelos rented uncovered several large duffle bags containing marijuana residue, a bulletproof vest, another handgun, and a Bushmaster XM15-E2S—an assault weapon in the parlance of the gun control crowd. The reality of Angelos’ background is much more troubling than the media and some proponents of this legislation would have you believe.
Yet while much of the media portrays Angelos’ history sympathetically, Tolman harbors no such illusions. “None of the prosecutors involved in the case viewed Angelos’ criminal conduct naively,” Tolman noted. “He was definitely on a dangerous road at the time he was arrested, but a 55-year sentence is crazy.” At the same time, Tolman admits that Angelos’ nearly lifetime sentence likely served as a wakeup call, prompting the young man to turn his life around following his release from prison.
As Tolman sees it, the suggested amendment to Section 924 and the other changes proposed in the compromise floated for the First Step Act strike a necessary balance: “All of the changes proposed address problems with the current sentencing code, while assuring prosecutors retain the tools necessary to obtain tough sentences for dangerous criminals.”
We will soon know whether Congress also sees the First Step Act as striking the appropriate balance between deterrence and punishment and justice. The bigger question, though, may be for Second Amendment advocates and gun control activists to debate: How can we, as a country, enforce the many commonsense gun laws already on the books without resorting to lifetime sentences for criminals?
