Opioid Act Passage May Ease Path for FIRST STEP Act – Update for October 29, 2018

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OPIOID BILL SIGNED, IMPROVES FIRST STEP CHANCES

costlydrug170327President Trump signed H.R. 6, The SUPPORT for Patients and Communities Act, last week, which will provide addiction treatment programs to combat the opioid crisis. This is good news for several reasons.

First, the bill was a rare bipartisan effort in Congress, and the accolades legislators have gotten for cooperation may whet their appetite for more bipartisan activity. The next best opportunity for legislation supported by both Republicans and Democrats is the FIRST STEP Act, which Senate Majority Leader Mitch McConnell (R-Kentucky) has promised to bring to a vote if at least 60 votes are there.

Second, passage of a bill addressing the opioid crisis gives the Senators cover for prison reform. Opponents of reform complain that with the nation’s current drug crisis, Congress needs to toughen laws, not weaken them. Pointing to a separate law addressing the drug crisis lets FIRST STEP supporters argue that FIRST STEP and the SUPPORT Act together are a comprehensive approach that will make the nation safer.

Skopos Labs, which estimates the chances that federal legislation will be enacted, last week increased its odds that FIRST STEP will be enacted to 85%. The highest Skopos Labs estimate prior to last week was 73%.

Nothing else happened in the last week, with midterm elections coming up November 6th. Nevertheless, opinion pieces in the middle-of-the-road publication The Hill, the conservative Washington Times and the liberal Austin Chronicle, all uniformly urged passage of FIRST STEP.

The Hill, Critics are wrong on First Step Act that can fix criminal justice system (Oct. 26, 2018)

The Washington Times, Justice demands passage of First Step bill to rehabilitate lives (Oct. 21, 2018)

Austin Chronicle, The Texas Public Policy Foundation: Not Always Evil! – Conservative think tank aligns with FIRST STEP Act (Oct. 26, 2018)

NPR, Signing Opioid Law, Trump Pledges to End ‘Scourge’ Of Drug Addiction (Oct. 24, 2018)

– Thomas L. Root

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Dog No Longer Chases Own Tail in Stash House Selective Prosecution Cases – Update for October 26, 2018

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9TH CIRCUIT EASES DISCOVERY BURDEN IN STASH HOUSE STINGS

We have written plenty about “stash-house stings” – here, here, here, here and here, for example – those reverse stings run by ATF in which an undercover agent poses as a disgruntled drug courier who is looking for help robbing a place his boss runs where drugs and money are stashed. The agent describes the stash house to people targeted for the operation, usually ex-cons fingered by confidential informants. When the targets are fully recruited and prepped for the robbery, the ATF swoops in and arrests them all.

dogtail181026For several years, defendants in different judicial circuits have argued that stash-house reverse stings almost always target black and Hispanic defendants. In the latest case, Daryle Sellers, who is black, challenged  the ATF’s selective enforcement practices when he was charged in a stash-house sting. The district court denied him the right to use discovery in his case to show racial and ethnic bias on the part of ATF, holding that under the rigorous discovery standard set forth for selective prosecution claims in the Supreme Court’s United States v. Armstrong decision, Daryle had to show that ATF had failed to prosecute others who were similarly situated to him before he could even engage in discovery to try to prove his claim. It seems to be something like a dog chasing his own tail.

Last week, the 9th Circuit reversed, agreeing with Daryle that Armstrong does not apply to requests for discovery on a selective enforcement claim in a stash house reverse-string operation case. The panel held that contrary to Armstrong’s requirements for selective prosecution claims, a defendant need not proffer evidence that similarly-situated defendants of a different race were not investigated or arrested in order to obtain discovery on a selective enforcement claim like Daryle’s. A defendant must have more than mere speculation to be entitled to discovery, the Circuit said, and a district court should use discretion to allow limited or broad discovery based on the reliability and strength of the defendant’s showing.

Daryle’s case was remanded so that the district court could assess his discovery demand under the relaxed standard.

United States v. Sellers, Case No. 16-50061 (9th Cir. Oct. 15, 2018)

– Thomas L. Root

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Two Circuits Say Supervised Release Is Not a Guessing Game – Update for October 25, 2018

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5TH CIRCUIT SLAPS LIMITS ON RUNAWAY SUPERVISED RELEASE CONDITIONS

Just about everyone serving a federal sentence will find themselves on supervised release sooner or later. Given some of the loosey-goosey SR terms and arbitrary probation officers, it is little wonder that one out of three people on SR end up getting violated.

writingB160425Jonathan Rivas-Estrada had three special SR conditions included in his sentence, that he had to surrender himself for deportation after serving his time, had to give requested financial information to his probation officer, and had to participate in (and pay for) drug testing and treatment. At the end of a long sentencing proceeding, the district judge glossed over those special conditions, which had been in his presentence report and to which Jonathan never objected. While they were not mentioned at sentencing, the special conditions appeared in Jonathan’s written judgment.

Last week, the 5th Circuit said it did not matter what was in his PSR or what he did not object to prior to sentencing. It held that when a defendant had no opportunity to object to special conditions at sentencing (because they were not read by the district judge), any such “unpronounced” special conditions must, upon remand, be stricken from the written judgment.

drinkMeanwhile, in the 7th Circuit, Solomon Smith complained that an SR condition that he refrain from excessive alcohol use was not tailored to his offense (tax fraud) and was vague. The Circuit said he had waived the “tailoring” argument when his trial judge said he had no objections, but it held that the district court’s omission of a definition of what constituted “excessive” rendered the condition unduly vague. The district court originally proposed a BAC of 0.08%, but somehow dropped that from the final judgment. The Circuit said the written judgment should prevent uncertainty over what conditions or version of a condition the district court intend[s] to impose; liberty should not turn on guess-work.”

United States v. Rivas-Estrada, Case No. 17-40033 (5th Cir. Oct. 15, 2018)

United States v. Smith, Case No. 16-3575 (7th Cir. Oct. 16, 2018)

– Thomas L. Root

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Another Circuit Rejects Categorical Approach to Hobbs Act/924(c) Case – Update for October 24, 2018

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1ST CIRCUIT HOLD 924(c) IMMUNE TO DIMAYA ATTACK

After Sessions v. Dimaya, a lot of people doing time for using a gun during a crime of violence have hoped to attack their 18 USC 924(c) convictions by arguing the underlying crime was not violent. Two weeks ago, we reported that the 2nd and 11th Circuits had shut down Dimaya attacks on 924(c). Last week, the 1st Circuit joined them.

gunfreezone170330Section 924(c) makes it punishable by a minimum five-year consecutive sentence, to use, carry, or possess a firearm in connection with a “crime of violence.” The “residual clause” of 924(c) defines “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In Johnson v. United States and, later, in Dimaya, the Supreme Court invalidated similar residual clauses on vagueness grounds. 

Ishmael Douglas was convicted of a Hobbs Act robbery and a 924(c) count. He argued that under the categorical approach, which looks at the minimum conduct sufficient to violate the statute regardless of what the defendant may actually have done, his robbery could not be considered to be a crime of violence.

The 1st Circuit rejected Ishmael’s argument that 924(c)’s crime of violence definition is void for vagueness. “That is because,” the Circuit said, “the statute reasonably allows for a case-specific approach, considering real-world conduct, rather than a categorical approach, and because Douglas’s conspiracy to commit a Hobbs Act robbery qualifies as a ‘crime of violence’.” Agreeing with the 2nd and 11th Circuits, the 1st held that because 924(c) “requires consideration of a contemporaneous offense rather than a prior conviction, this residual clause does not raise either the practical or the Sixth Amendment right-to-trial concerns that led the Supreme Court to adopt the categorical approach in Taylor v. United States [and] Descamps v. United States.”

United States v. Douglas, Case No. 18-1129 (1st Cir. Oct. 12, 2018)

– Thomas L. Root

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The Sell Begins For and Against FIRST STEP – Update for October 23, 2018

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POLITICKING STARTS FOR COMPROMISE FIRST STEP ACT

Although most political news is focused on the mid-term elections in 15 days, drumbeats of support for the Senate to pass the compromise FIRST STEP Act after election day are increasing.

firststep180814A survey released last week shows widespread support for the provisions in FIRST STEP, in sharp contrast to the National Association of Assistant United States Attorneys’ survey we wrote about last week.

A national survey of 1,234 registered voters conducted online between Oct. 11-12 found 82% of respondents approved of specific FIRST STEP provisions. Additionally, 82% supported allowing non-violent offenders to finish their sentences in home confinement in order to ease their integration back into society, and 76% agreed with expanding the number of good-time days. Most important for political pressure purposes, 53% of respondents said that if the Republican-controlled Senate fails to pass FIRST STEP, they will view the Republicans more negatively.

But despite support from a large number of Republicans, conservative groups, and the White House, FIRST STEP faces stiff opposition from the Justice Department and staunch law-and-order conservatives such as Sen. Tom Cotton (R-Arkansas), who especially oppose reductions in mandatory minimums.

sentence181023Fortuitously, HBO aired a documentary last Sunday night (Oct. 21) called The Sentence, which has already been shown at Sundance Film Festival. The Sentence chronicles the aftermath of filmmaker Rudy Valdez sister’s drug conspiracy sentence and the consequences of mandatory-minimum sentencing. Cindy Shank received 15 years for conspiracy charges related to crimes committed by her deceased ex-boyfriend. The film follows the Valdez family’s effort to win Cindy clemency during the last months of the Obama administration.

“Two days after airing the film at Sundance,” Valdez said last week, “a Republican Senator (Mike Lee, R-Utah) reached out to me the say ‘thank you for making this movie’. You know, this is not a party issue, this film is apolitical, both Republicans and Democrats are coming together to fix this broken issue. I’ve been invited to speak many times on Capitol Hill, to share what I know with legislatures, to put a face on the victims, and show the effects of the federal minimum sentencing guidelines. Hopefully, by opening their eyes to the devastating effects of the federal minimum sentencing guidelines, it will help our lawmakers craft even more new legislation that actually gives Federal judges the ability to dole out fair and just punishment, with an emphasis on rehabilitation.”

An op-ed piece in USA Today last week by FAMM president Kevin Ring expanded on The Sentence’s theme of the effect long prison sentences have on inmates’ children. Ring, a former Capitol Hill lobbyist who served a federal sentence, wrote about the effect on his children of his own imprisonment, admitting that “I ended up serving time with people whose unnecessarily long sentences were caused by the laws I helped write.”

sessions180322Meanwhile, different drumbeats continue to sound a death knell for Attorney General Jefferson Beauregard Sessions III. The New York Times published a long story last Friday reporting how “discontent and infighting have taken hold at the Justice Department, in part because Mr. Sessions was so determined to carry out that transformation that he ignored dissent, at times putting the Trump administration on track to lose in court and prompting high-level departures… President Trump has exacerbated the dynamic, they said, by repeatedly attacking Mr. Sessions and the Justice Department in baldly political and personal terms. And he has castigated rank-and-file employees, which career lawyers said further chilled dissent and debate within the department.” Observers say it is almost a certainty that Sessions, a staunch opponent of sentencing reform, will resign after the mid-terms.

Reason.com, Poll Shows Wide Support for Criminal Justice Reform Bill in Congress (Oct. 18, 2018)

The Poll

USA Today, I once wrote mandatory minimum laws. After ties to Abramoff landed me in prison, I know they must end. (Oct. 16, 2018)

The Knockturnal, ‘The Sentence’ Goes to Capitol Hill (Oct. 18, 2018)

The New York Times, Justice Dept. Rank-and-File Tell of Discontent Over Sessions’ Approach (Oct. 19, 2018)

– Thomas L. Root

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Supreme Court, Weary of ACCA, Ducks Trio of Cases – Update for October 22, 2018

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SUPREME COURT REFUSES CHANCE TO APPLY JOHNSON TO MANDATORY GUIDELINES

Three years ago, the Supreme Court held in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act definition of a crime of violence, which included within its sweep any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” was unconstitutionally vague. Because the ACCA’s definition was identical to the Guidelines’ “career offender” definition, a lot of people thought that it was only a matter of time before “career offender” sentences would be cut as well.

thilo181022But two years after Johnson, the Supreme Court ruled in Beckles v. United States that because the Guidelines are merely advisory, a constitutional vagueness challenge to the career offender guidelines would not work. But the Guidelines have only been advisory since 2005, when United States v. Booker held that mandatory sentencing guidelines were unconstitutional. What the Beckles court did not answer was the question of whether someone whose “career offender” sentence was imposed under the pre-2005 mandatory Guidelines could successfully make a Johnson challenge. Nevertheless, Beckles seemed to presage a holding that would invalidate mandatory Guideline “career offender” sentences under Johnson as soon as the proper case presented itself to the Supremes.

Thilo Brown, as well as two other mandatory Guidelines “career offenders,” had such cases, and their petitions for writs of certiorari arrived at the high court last summer while the Justices were gone fishin’. The three cases would provide the Court a chance to answer the Johnson mandatory “career offender” question everyone thought the Justices had all but begged to have presented.

Apparently not. Last week, the Court denied certiorari to all three.

The decision not to review Thilo’s case drew a dissent from Justice Sonia Sotomayor, rare for a cert denial. She said, “This important question, which has generated divergence among the lower courts, calls out for an answer… Regardless of where one stands on the merits of how far Johnson extends, this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people. That sounds like the kind of case we ought to hear.”

Brown v. United States, Case 17-9276 (Supreme Court, Oct. 15, 2018)

– Thomas L. Root

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No “Double Coupon” Day for Rule 35(b) Recipient – Update for October 18, 2018

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2ND CIRCUIT SAYS NO DOUBLE-DIPPING ON RULE 35(b)

Igor Katsman was doing 10 years for a fraudulent check-cashing scheme when the FBI approached him about a different insurance fraud scheme in which he had been involved. He cooperated, leading to the government entering into a joint EDNY‐SDNY cooperation agreement with Igor, in which the government agreed to make a motion under Federal Rule of Criminal Procedure 35(b) to reduce his 10-year sentence if he provided substantial assistance in the insurance case. In connection with the deal, Igor was required to plead guilty to nine counts in the insurance fraud case.

Although Igor’s maximum sentence in the insurance case was 125 years, he was sentenced to time served. He then appeared before the EDNY court for a Rule 35(b) reduction on his check fraud sentence.

The district court was underwhelmed, holding that because Igor had been involved in the insurance fraud scheme while on presentence release in the check case, “the nature of the instant underlying crimes, and the undersignedʹs consideration of the 3553(a) factors,” convinced it to deny the Rule 35(b) motion.

Last week, the 2nd Circuit upheld the denial. The Court observed that “in deciding a Rule 35(b) motion, a district court makes two inquiries. First, it must determine whether the defendant in fact provided substantial assistance. Second, if so, it must then determine what, if any, reduction in sentence is warranted.”

Here, there was no question Igor was a big help to the government. However, in light of the circumstances of this case, including that Igor got a massive break in his “time served” sentence in the insurance case, that he had engaged in criminal activity while on presentence release, and that he lied to the district court about the additional criminal conduct, the district court was within its rights to deny the motion.

The Circuit admitted it had never considered whether 18 USC 3553(a) factors could be considered on a Rule 35(b) motion. However, the 2nd ruled, “nothing in the text of the rule precludes the court from considering factors in addition to a defendantʹs substantial assistance in deciding whether to reduce a sentence, and, if so, to what extent. The only limit to the courtʹs discretion under Rule 35(b) is the requirement that the defendant provide ʺsubstantial assistanceʺ if he is to receive any benefit for his cooperation.”

Despite his cooperation, Igor had nothing coming off his 10-year sentence.

United States v. Katsman, Case No. 16‐2583‐cr (2nd Cir. Oct. 10, 2018)

– Thomas L. Root
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Trump’s Way or the Highway on Sentencing Reform – Update for October 17, 2018

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TRUMP SAYS HE’LL OVERRULE SESSIONS ON SUPPORTING FIRST STEP
Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

Anyone who remembers recent sentencing reform history will recall that when Attorney General Jefferson Beauregard Sessions III was a senator from Alabama, he led the charge against the Sentencing Reform and Corrections Act of 2015. And last winter, Sessions infuriated Senate Judiciary Committee chairman Charles Grassley (R-Iowa) when he sent an open letter to the Committee telling it not to vote out the 2017 version of SRCA.

With Senate Majority Leader Mitch McConnell (R-Kentucky) gun shy about bringing the compromise FIRST STEP Act to a vote if there is insufficient support, Sessions could be a real impediment to passage of sentencing and prison reform.

That’s why President Trump’s statement last Thursday that he would overrule Sessions if he tries to stymie efforts to overhaul the criminal justice system is so significant. In a wide-ranging interview on “Fox & Friends,” the President said he would shut down any Sessions opposition to congressional passage of the compromise FIRST STEP Act. “

When asked whether Sessions is standing in the way of criminal justice reform, Trump said the decision is not up to the attorney general. “He gets overruled by me,” Trump said. “I make the decision, he doesn’t.”

“We do need reform, and that doesn’t mean easy,” the president said during the 40-minute interview. “We’re going to make certain categories tougher when it comes to drug dealing and other things, but there has to be a reform because it is very unfair right now. It’s very unfair to African-Americans. It is very unfair to everybody, and it is also very costly.”

nothappen181016Sessions, a law-and-order candidate now in the doghouse with Trump over the Mueller Russia probe, played a role in successfully urging the president to put off action on criminal justice reform before the midterm elections. But Trump now seems to have made the issue a top priority, thanks in large measure to the advocacy of senior White House adviser and son-in-law Jared Kushner.

“Jared Kushner has kept the president in the loop and today’s statements by the president are indicative that he’s interested in this issue and is the one that will make the final decision,” The Hill quoted a person it said was familiar with the discussion. Kushner reportedly briefs Trump regularly on the status of sentencing reform.

Trump’s comments came just before he had lunch with the rapper Kanye West and former Cleveland Browns star Jim Brown, who are expected to urge Trump to move forward with sentencing and prison reforms.

kardashian180604Last June, West’s wife, Kim Kardashian persuaded Trump to commute the sentence of Alice Marie Johnson, a 63-year-old grandmother who was serving a life sentence for a first-time drug offense committed in the early 1990s.

Trump said Kardashian “brought the attention to Mrs. Johnson” and said it was unfair that she received such a long sentence.

The Hill, Trump: I’ll overrule Sessions on criminal justice reform (Oct. 11, 2018)

Politico, Trump: ‘I make the decision’ on prison reform, not Sessions’ (Oct. 11, 2018)

– Thomas L. Root
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Enough is Still Too Much in the 6th Circuit – Update for October 16, 2018

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WHEN TIME SERVED AIN’T GOOD ENOUGH
Sweet Brown should have been Steve's judge.
Sweet Brown should have been Steve’s judge.

Steve Mitchell did 17 years on a 21-year Armed Career Criminal Act conviction before his sentencing court, applying Johnson v. United States, held that one of his three predicate crimes of violence was not violent at all. The District Court sentenced him to time served plus three years of supervised release, and cut him loose.

Steve appealed. Yeah, you read that right. He appealed the decision that set him free. But Steve’s claim was anything but frivolous: he argued that because his conviction for being a felon in possession of a gun (18 USC 922(g)) could not be enhanced by the ACCA, the maximum sentence was only 10 years, and the District Court should have resentenced him to 10 years, not time served (which worked out to 17 years). What Steve wanted, of course, was for the District Court to recognize that he had served seven years extra, and therefore cut him loose from supervised release, too.

Last week, the 6th Circuit agreed with Steve that his “time-served” corrected sentence is unlawful. Absent the ACCA enhancement, Steve could have received only a ten-year-maximum sentence. But when the district court corrected his sentence to remove the enhancement, it gave him a “time-served” — or 17-year – sentence. The Circuit said that sentence in excess of the statutory maximum is unlawful.

doover181015The appellate court remanded Steve’s case to the district court for a re-do that recognized (1) a time-served sentence that is equivalent to a term-of-months sentence above the statutory maximum is invalid, and (2) while a district court has the discretion to select appropriate proceedings for correcting a sentence, the corrected sentence must comply with substantive and procedural reasonableness.

The Circuit did not rule on the district court’s reimposition of 3 years’ supervised release, holding that “on remand, the district court should take the opportunity to provide an appropriate rationale for its supervised release decision.”

Who knows? Maybe the sentencing court will decide that Steve has suffered enough.

United States v. Mitchell, Case No. 17-5904 (6th Cir. Oct. 10, 2018)

– Thomas L. Root
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Senate Will Take Up Compromise FIRST STEP Act After Mid-Terms – Update for October 15, 2018

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MCCONNELL WILL BRING FIRST STEP TO SENATE VOTE NEXT MONTH IF SUPPORT IS THERE

A chance for criminal justice reform returned to the Senate last week, when Senate Majority Leader Mitch McConnell (R-Kentucky) told reporters that he intends to bring the compromise FIRST STEP Act up for a Senate vote after the Nov. 6th election, if he determines there are at least 60 votes in favor of passage.

wereback170921The bill merges some of the most important mandatory sentence and 924(c) stacking provisions of the Sentencing Reform and Corrections Act with the House-passed FIRST STEP Act, that offers increased halfway house or home detention for programming, corrects good time and makes favorable changes to compassionate release, the elderly offender home detention program and other aspects of prison life.

“Criminal justice has been much discussed,” McConnell told reporters Wednesday. “What we’ll do after the election is take a whip count and if there are more than 60 senators who want to go forward on that bill, we’ll find time to address it.” 

It’s a significant commitment from McConnell who has resisted bringing criminal justice reform legislation to the floor because support for it divides the Republican conference. As a result, a bill that easily cleared the House with bipartisan support last May has languished in the Senate, where McConnell controls what comes up for a vote.

Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog last week that President Trump said last August he had secured 30 to 32 ‘yes’ votes among Republican senators and hoped that “the number of GOP supporters could eventually grow as many as 40 to 46.” Berman predicted in August that the compromise FIRST STEP Act could “perhaps garner up to 90 votes in the Senate, and I do not think this head-counting is likely to change all that dramatically after the election (though one never knows).” He predicts that the prospect of the FIRST STEP Act becoming law before the end of the year “might be pretty darn good.”

firststepB180814Former South Carolina Sen. Jim DeMint, who leads a conservative coalition favoring FIRST STEP passage, said last week that the Senate’s lame duck session (after the November mid-term elections) is the best chance for reformers to actually get something done. “We’ve got the votes to do it,” DeMint said, “and the normal characters who sometimes Mitch McConnell has to protect from taking a tough vote would, I think, be very comfortable with it.” 

A sign of how this will play out showed up late last week. A poll, commissioned by a group representing the National Association of Assistant United States Attorneys found that 66% of Americans opposed FIRST STEP’s provision that let prisoners earn extra halfway house and home confinement by completing programming. The poll misrepresented FIRST STEP, falsely asserting the programming would award good time (which it does not):

“FIRST STEP’s primary effect, if implemented, would be to reduce the number of federal prisoners by altering the system’s “good time” credit rules, making it easier for convicts to be released early if they completed certain education, training, and other reformatory programs”

liar151213That is the kind of misrepresentation for which members of NAAUSA (pronounced like “nausea,” we think) love to prosecute people. In truth, all FIRST STEP awards is a chance for prisoners completing such programs to spend more of the end of their sentence in halfway house or on home confinement, still within the custody of the Federal BOP and confined except for well-monitored activities such as job searches, church services and medical appointments.

The poll and reporting on it leave little doubt, however, that the lobbying by NAAUSA and other people whose livelihoods may be threatened by FIRST STEP will be intense.

Curiously, an independent study sponsored by the National Institute of Justice released last Thursday found that half of Americans favored community-based sentences for drug and property crimes.

Sentencing Law and Policy, Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward (Oct. 10, 2018)

The Hill, McConnell looking at criminal justice reform after midterms (Oct. 10, 2018)

Louisville Courier-Journal, Conservatives want prison reform, and they’re making moves in McConnell’s Louisville (Oct. 11, 2018)

Washington Examiner, Jim DeMint: This is how criminal justice reform gets done this year (Oct. 11, 2018)

Washington Free Beacon, Poll: Three-Fourths of Americans Oppose Central Plank of FIRST STEP Act (Oct. 11, 2018)

The Conversation, Reduced sentencing for nonviolent criminals: What does the public think? (Oct. 11, 2018)

– Thomas L. Root
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