We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FIRST STEP GETTING WATERED DOWN AS IT APPROACHES THE FINISH LINE

We now have some idea of what had to be given away to convince House Majority Leader Mitch McConnell (R-Kentucky) to agree to schedule a vote on the FIRST STEP Act, perhaps as soon as tomorrow. The Senate released the text of the revised FIRST STEP Act (S.3649) this afternoon.

McConnell cited “improvements to the legislation that have been secured by several members” in his surrender speech last Tuesday, in which he agreed to bring the bill to the floor for debate and a vote. Whether these changes actually count as improvements depends on your perspective, but they were crucial to gaining the support of Sen. Ted Cruz (R-Texas) and a few other Republican senators who were initially opposed to the bill, which according to The New York Times “seemed to be the clincher” in moving McConnell off the fence.

The votes of Cruz and the others were hardly needed to pass FIRST STEP, which already had the support of Democrats, most Republicans, the president, and several law enforcement groups that are ordinarily leery of sentencing reform. The bill, which may get a Senate vote as soon as today, is expected to pass by a margin of more than 2 to 1. But McConnell “wanted every conceivable guarantee that the criminal justice measure would not blow up on him politically,” The Times said. The cost of reassuring McConnell was further dilution of a bill that was already pretty weak tea, the result of compromises on top of compromises.

Here are some of the additional concessions that were necessary to get McConnell to honor his promise of a vote:

• The bill now excludes all 924(c) firearm offenders from earning time credits.

• The bill now excludes fentanyl and heroin traffickers who are leaders/organizers from earning time credits.

• The bill now limits early release from prison to supervised release by specifying that only low and minimum risk offenders are eligible and specifying that the maximum amount of time off a sentence is 12 months. Also specifies that if a prisoner violates a condition of his or her prerelease custody, and the violation is nontechnical in nature, the Director of the Bureau of Prisons shall revoke the prisoner’s prerelease custody.

• The bill removed first time 18 USC 2252A(a) porn download offenders from earning time credits.

• The bill specifically excludes additional offenses from receiving earned time credits, including smuggling aliens into the U.S. with records of aggravated felonies, importing aliens for prostitution, drug-related robberies involving assault with dangerous weapon, carjacking resulting in serious bodily injury, threatening to murder a congressman, senator or government official, assault of a spouse or intimate partner or dating partner resulting in substantial bodily injury, assault of a law enforcement officer with a deadly weapon, arson, possessing contraband in prison, rioting in prison, gang-related felonies, escape, and failure to register as a sex offender.

So is there any good news? Well, the 54 days a year good time is still in the bill, still applies to everyone, and still is retroactive. No one has messed with the Fair Sentencing Act retroactivity, or the changes in the compassionate release or elderly offender home detention program. And Politico is asking in headlines, “Is Tom Cotton’s winning streak about to end?”

Who said schadenfreude was a bad thing?

At Reason magazine, Jacob Sullum said today, “On the whole, the FIRST STEP Act still represents a significant improvement. But the changes are quite modest in the context of a federal system that imprisons more than 180,000 people and state systems that hold another 2 million. The difficulty of passing these incremental reforms, which took years notwithstanding broad bipartisan support, does not bode well for further progress anytime soon.”

There remains the possibility that after the Senate passes the bill, some of the good stuff will get put back into the bill by the joint conference committee. The irony is that if FIRST STEP gets back what has been given away to get the bill to the floor, the overwhelming support for the bill in the Senate guarantees that changes – even if McConnell, Cruz and Cotton do not like them – will sail through.

Politico, Is Tom Cotton’s Winning Streak About to End? (Dec. 13)

U.S. Senate, S.3649, Amendment to FIRST STEP Act (Dec. 13, 2018)

Reason.com, Here Are the ‘Improvements’ That Won a Senate Vote on Sentencing Reform (Dec. 13, 2018)

– Thomas L. Root