• FederalSentencingAlliance

Dichotomy of 2021 Prison Reform & Criminal Justice Reform - False Narratives and Semantics

Updated: Oct 3


As a society we have never been less concerned about propagating only the truth as we are today. Today, there seems to be a false narrative about everything, for individual gain, including political gain, at the expense of the truth. The Press plays a major role in propagating false narratives. False narratives are oftentimes tied to either creation of false subject matter from the beginning, or use of semantics after the fact. Either way, false narratives are bad and generally hurt people in some manner.


False narratives and use of semantics to defeat the rights and benefits conferred to inmates under the First Step Act of 2018 are no different. We see the writing on the wall for similar false narratives and semantics at play regarding 2021 plans for further Prison Reform and Criminal Justice Reform.


This Article primarily addresses what we saw regarding false narratives and use of semantics regarding First Step Act of 2018 implementation and application. We also took a look at current statements being made regarding 2021 Criminal Justice Reform. This is what we found.


#1 A Vision or an Agenda is Just a Play on Words, Not a Promise-


Statements made that look like promises made, but are not; include, a thought, a vision, an agenda, or an altruistic ideal, akin to a beauty contestant visualizing 'world peace', also known as a plan not achievable in the short term. Contrast that vision to promises made that are clear and concise, with a means to achieve them stated, and with a target dates identified.


Its easy to see why clear and concise promises are seldom made by politicians, because they will later be called to task by the News Media when promises made are not fulfilled. A vision, agenda, or ideal is not a promise, it’s just a public statement made hoping that an audience will believe the message. Those statements also include use of semantics. How about a plan to make an agenda? One can see certain word usage absurdity all the time in these statements, scrutinized under a microscope.Those statements are just made for political gain.


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#2 Semantics Used by Congressional Bill Drafters-


Normally a Prison Reform Bill or Criminal Justice Reform Bill starts out earnestly drafted. Somebody actually came up with an idea and drafted it. Then it is edited and sometimes reedited, among other reasons, to increase chances of gaining bipartisan support, e.g. take this out, add this, change this word, add this word, etc.


Realistically these Bills are drafted to curry votes from constituents requesting any particular legislation drafted. In other words, its what the people or groups of people want. One needs to convince constituents they are actually going to get something beneficial. What if, however, a Bill could be drafted that on its face looks beneficial, but in reality is not?


Regarding Prison Reform legislation, including the First Step Act of 2018, we have seen various key provisions drafted vaguely, including utter failure to define key terms necessary to make core provisions clear.


The analogy is an Namien Marcus coupon for 30% off your entire purchase, where everything you try to purchase at 30% off is excluded from the sale in the fine print. The coupon is meaningless and is a false narrative, presented so one will earnestly go through the Namien's Website looking for purchases, and computing what 30% off the entire purchase would be. The customer had an expectancy to immediately benefit from the 30% off coupon, and in that regard, earnestly invests an hour of their time looking for products. That customer was damaged by investing an hour of their time for nothing.


For the reasons described below, embedded vagueness and overbroad provisions within the four corners of Prison Reform legislation renders timely implementation and application of those provisions impossible in the short term. In the short term, many people wind up being hurt. They are hurt because they earnestly embraced a false narrative to their detriment in the short term, and many are hurt forever, because there is no long term for them.


The question then becomes whether the Bill is drafted vaguely on purpose in order to gain bipartisan support, or whether its ignorance on the part of the drafter. We suspect that its drafted vaguely in order to gain bipartisan support. We suggest that is true, because we do not believe that Congressional Bill Drafters are ignorant by any means.


Vaguely drafted provisions are subject to legal interpretation, if not by a Court, then by the Department responsible for implementing and applying various provisions real time.


In our example regarding the First Step Act, the agency responsible for implementing and applying many provisions intended to directly benefit federal inmates is the Bureau of Prisons. So what happens when the Bureau of Prisons gets their hands on vague provisions of a law, that are embedded into key provisions creating wiggle room? The answer is that the Bureau of Prisons will interpret those provisions to the benefit of the Bureau of Prisons, at the expense of inmate rights conferred directly by Congress. That is a tragedy. That hurts people real time. That is just wrong. But wait a minute, shouldn't the Courts get involved to correct those disparities, failures, and false narratives portrayed?


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#3 False Narrative and Semantics Used by the Bureau of Prisons Leadership-


Regarding numerous First Step Act of 2018 provisions drafted vaguely, the Bureau of Prisons immediately recognized that many key words were undefined, and that many words, terms, and provisions were susceptible to either an ultra conservative view or a liberal view. Of course the BOP took the ultra conservative approach, such as with recidivism reduction and productive activity incentive programming, absolutely destroying 2019-2021 incentive for an inmates to engage incentive programming. This was also achieved by bastardizing key vaguely written authorities subject dispute and plausible deniability, e.g. mandatory authority verses discretionary authority to timely apply earned time credits to inmates time accounts.

This fallout has created chaos being exposed real time right now.


In other words, through false narratives propagated and widespread use of semantics, the BOP has single handedly eviscerated First Step Act pre release earned time credit incentives, clearly a violation of Congressional intent, and core provisions of the First Step Act of 2018.

How did that happen?


Vaguely drafted words and provisions were susceptible to being "Ruled Out" directly by the Bureau of Prisons, through subsequent administrative rules promulgated for the specific purpose of defining terms undefined by Congress, by making specific parameters not succinctly delineated by Congress, and by calling its authorities discretionary and not mandatory. The operative Rule changes were then used to defeat Congressional intent through subsequent arguments made. In short, the Bureau of Prisons usurped authority from Congress to defeat timely beneficial effects of various First Step Act of 2018 provisions.


We suggest that the BOPs primary focus being a false narrative in Court, and regarding use of semantics regarding application of First Step Act provisions, has effectively rendered many provisions intended to benefit federal inmates, ultra vires in beneficial application. e.g the Namien's coupon example.

Here is a semantics hypothetical in play.


A Law reads: ‘You must mow the lawn on January 1st of each year, but you may use a rented lawn mower for that purpose’.


In that hypothetical, it is the intent of Congress that the lawn gets mowed on January 1st, regardless of how it is mowed. The reading with semantics at play, would be that it's discretionary whether to rent a lawn mower or not, and if discretion is not exercised to rent a lawn mower, the lawn will not get mowed on January 1st of each year. Next the argument would follow that the lawn did not get mowed, because a decision was made not to rent a lawn mower for that purpose.


These things are absurd to preposterous. So, the Courts can fix these problems, right?


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#4 Buttressed Semantics Created and Parlayed by the District Courts-


There seems to be widespread failure by the District Courts to embrace, analyze and snuff out false narratives and use of semantics presented by the Bureau of Prisons in Court. Although District Courts used to be concerned about the truth, and the intent of Congress when looking at any particular law, regarding Prison Reform legislation, the District Courts have been loathe to address critical false narratives and use of semantics head on. One Court went so far as to state: "The Bureau of Prisons contends.." What does that mean? Why doesn't the Court critically analyze what is being "contended". What does "contends" legally mean anyway? Fact checks and law checks are few and far in between, by District Courts pretending to analyze many core First Step Act of 2018 provisions at this time. This is a travesty of justice, it truly is.


There also seems to be widespread Court semantics at play, by spinning things in a circular fashion in one particular line, separated by a comma, and then making a pivot leading to an immediate dump of the Habeas Corpus Petition filed.


This surely looks like a Court parlay of the false narrative created by the Bureau of Prisons. The majority court opinion narratives do not pass the sniff test by any means.


The majority opinions not only capitalize on, but also further propagate false narratives and fundamentally unfair semantics at play in Court. We say that because we see no meaningful legal analysis made in these decisions. Use of semantics by the Courts are clearly visible within the four corners of many majority published opinions. When you look at the substance of most majority view cases, however, none of them critically analyze facts, laws presented, or arguments made by the Bureau of Prisons, that keep changing daily. When arguments keep changing daily, that means they were false from the beginning. The majority opinions look like a white wash and are a white wash, regarding First Step Act earned time credit issues.


You may ask why? We believe that the majority of First Step Act time credit opinions are written for the purpose of short-stopping tens of thousands of time credit petitions from being filed by federal inmates nationally. In short, the District Courts are loathe to embrace these issues head on right now. The problem is that by the time they do earnestly embrace these issues, tens of thousands of inmates will be irreparably harmed by these shenanigans at play.


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#5 In a Perfect World: Truth and Justice Would Prevail, But We Are Not in a Perfect World-


In order to fix Fist Step Act of 2018 problems and ensure that history does not repeat itself in 2021-2022 regarding contemplated further Prison Reform Bills and Criminal Justice Reform Bills, we first need promises made by the President, as opposed to altruistic statements, visions, plans to make agendas, and the like. Those are meaningless. If the President cannot make a promise, the President is not serious about the content. Period.


Congress needs to draft clearly written, and clearly edited legislation, with bipartisan support.

If Congress cannot get bipartisan support on the front end for clearly written legislation, they are doing a disservice to Americans at the end of the day. A poorly written Bill does more damage than no Bill written, because it creates the expectancy of a real benefit that will never be delivered. People only wind up getting hurt from poorly drafted legislation that permits others to go in the back door, after the fact, to destroy the beneficial effects of the legislation.

First Step Act of 2018 earned early release time credit incentive programming is the milk carton testament to that proposition.


The Courts should be held accountable for propagating false narratives, fundamentally unfair semantics presented by the Bureau of Prisons, fundamentally unfair Rule changes made just to win further Court cases, and for taking a thoughtless pivot and dump approach without core critical legal analysis, or fact checking, of facts averred and issues presented.


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End Thoughts-


Truth is a concept that we never hear much about these days. Truth is adversarial to both false narratives and the use of semantics for personal or political gain. Truth is offensive to many in 2021. Truth exposes false narratives and unfair use of semantics. It is difficult to get the truth out, where the New Media only presents a false narrative, or sound bites of a false narrative nationally.


Have you ever heard the expression: "You lie, and I'll swear to it"?


An open and notorious video was posted online showing a well known politician instructing a closed audience, how to create false narratives and then to propagate those false narratives for immediate political gain. The false narrative creation went like this: 1.) Find a political target that you want to attack; 2.) Accuse that person falsely of something that is damaging, the more damning the better; 3.) Get the News Media to cover the initial story, and be an anonymous source, when possible; and then, 4.) Only cite to the News Media story to support the false and damaging narrative going forward. Folks, that is propaganda used by third world countries, not by people the United States. Or is it? Have false narrative become the truth in the United States?


Since 2018 false narratives, and use of semantics has become such a way of life in the United States, that they are embedded everywhere. Prison Reform and Criminal Justice Reform is no different. False narratives and planned use of semantics are embedded there to. The problem is that it renders the legislation meaningless in the short term, until the legislation is later fixed, if it is ever later fixed. The legislation and the subsequent law, is then rendered ultra vires into perpetuity. It served its purpose though, it got votes from Citizens wanting to believe.


Many Courts across the nation used to have plaques in the courtroom that read something like this: “We who labor here seek only the truth”. We don't see those around anymore


Political and judicial use of semantics to support positions take simply to curry votes needs to stop regarding Prison Reform and Criminal Justice Reform legislation, because real people wind up being hurt in the short term. People's lives are at stake, this is not just some game being played on a chess board. In addition to federal inmates being hurt, so are their families, and so are the thousands of Bureau of Prisons third party Vendors providing early release programs and activities under the First Step Act.


There is no possible way to achieve meaningful Prison Reform or Criminal Justice Reform or any other Reform, with a repeat of embedded wiggle room intentionally drafted into further First Step Act of 2018 implementation legislation, or 2021 planned Criminal Justice Reform legislation. If that does repeat in 2021-2022, that will surely cause lots of gnashing of teeth in the Biblical sense for years to come, from those that will gain no meaningful or timely benefit from that legislation.


These things can all change through public awareness and accountability.


We have always proffered that the only way to change and abused system is to first identify the abuse. Hence, this Article.

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This Article is presented solely for the purpose of creating critical thinking regarding the subject matter and issues presented. This Article certainly does not constitute legal advice and solely represents the opinion of the Author regarding various matters that are clearly subject to alternative views and arguments. However, if you disagree with this Article or anything in it, please feel free to contact the Author for a discussion regarding any or all content that you consider wrong.


Please see Federal Sentencing Alliance's many First Step Act of 2018 publications available on Amazon, including one publication regarding time credit implementation and application disparities and failures found HERE.


© 2021 Federal Sentencing Alliance


Namien Marcus is a fictitious organization made up for a hypothetical example only.


Photo by Damir Spanic on Unsplash


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