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Congress Stiffs BOP Employees and Prisoners – Update for March 12, 2024

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

CONGRESS MAKES BOP RIDE THE BACK OF THE “MINIBUS”

Moneyspigot200220The $460 billion spending bill that funds about half the federal government through September 30th was sent to President Biden last Friday, averting (yet another) government shutdown.

The bill includes six federal appropriations bills – the so-called “minibus” (as opposed to “omnibus”) provisions covering agriculture, energy, transportation and justice programs – must make Federal Bureau of Prisons Director Colette Peters wonder why she shouldn’t just skip the next congressional hearing to which she’s called in favor of a game of pickleball.

After she has explained, the employees’ union bosses have explained, the Government Accounting Office has explained, and the Dept of Justice Inspector General has explained that the BOP’s severe staffing shortfall and crumbling infrastructure can only be fixed by the application of money, Congress cut the BOP’s maintenance budget by 38%, from $180 million down to $110 million, well below the 2023 level.

What’s as bad, the budget leaves salaries flat “despite mounting concerns about safety and staffing at BOP,” according to Fed Manager. The minibus includes $8.4 billion for the agency — on par with fiscal 2023 and about $250 million below the White House’s initial proposal for 2024. 

AFGE Union Council of Prison Locals National President Brandy Moore White promptly condemned the bill: “Failing to provide the Bureau of Prisons with the funding it desperately needs to address staffing, safety, and security issues will make it even harder for employees to do their jobs and make our prisons more dangerous environments both for employees and inmates.”

bloodturnip240312Certainly, this doesn’t make any BOP resolution to its staffing shortfall any easier. The staffing crisis affects everything from lockdowns to FSA credit programs. The maintenance budget cut will give Peters a chance to do more for less. Maybe get blood from a turnip. But more likely  just let her get chastised by Congressional grandstanders at hearings for not have the tools needed to get the job done. Tools that Congress refuses to provide.

New York Times, Senate Clears $460 Billion Bill to Avert Partial Shutdown, Sending It to Biden (March 8, 2024)

Fed Manager, Details on Spending Bills Released, as Congress Works to Avoid Shutdown (March 5, 2024)

Federal News Network, 6-bill minibus rewards some agencies, while slashing budgets for others (March 5, 2024)

AFGE, Budget deal fails to provide agency with needed funding to address staffing, safety, and security issues (March 6, 2024)

– Thomas L. Root

The Santa Report: A Lump of Coal for Congress – Update for December 26, 2023

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

A LUMP OF COAL FOR CONGRESS

The House of Representatives held 700 votes in 2023, but managed to pass only 27 bills, a “dramatic productivity decline relative to previous years, even when compared to other eras of divided government,” NPR reported last week.

grid160229Yeah, it’s true that generally speaking, “[n]o man’s life, liberty or property are safe while the Legislature is in session.” (It is not true that Mark Twain originated that chestnut: it really belonged to  Surrogate Judge Gideon J. Tucker, writing in Final Accounting in the Estate of A.B. back in 18660. But “do-nothing” Congresses have been derided before, despite the fact that Truman’s original “do-nothing” Congress was more productive than many and beat the hell out of the 118th.

clowncar231226The New York Times reported that “some Republican lawmakers have expressed frustration at their inability to get things done. ‘If we don’t change the foundational problems within our conference, it’s just going to be the same stupid clown car with a different driver,’ Representative Dusty Johnson of South Dakota vented to reporters in October after Mr. McCarthy’s ouster. But those foundational problems remain.”

For all of those who regularly ask where the EQUAL Act stands, when Congress is going to “fix” 18 USC § 924(c), reinstate the elderly offender home detention program, “do something for sex offenders,” or pass the mythical “65% law” (yeah, I was once again asked about that rumor last Friday), there’s your answer.

NPR, Congress passed so few laws this year that we explained them all in 1,000 words (December 22, 2023)

New York Times, House Dysfunction by the Numbers: 724 Votes, Only 27 Laws Enacted (December 19, 2023)

– Thomas L. Root

BOP Director Called ‘Incompetent’ in Subcommittee Hearing – Update for March 23, 2021

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

ZOOM, BOP, POW!

zoom2103423Federal Bureau of Prisons Director Michael Carvajal testified last week before the House Subcommittee on Commerce, Justice, Science and Related Agencies. The nearly two-hour session, conducted over Zoom for COVID reasons, got ugly fast.

The headline grabber was Carvajal’s disclosure that all 37,000-plus of BOP employees have been offered the COVID vaccine, but only 49% have taken it. Congressman Ed Case (D-Hawaii) said with some incredulity, “Something is wrong when half of the officers that can take it, don’t… it is a public health matter… We’ve got to get the guards vaccine. It risks health safety and welfare of those prisoners.”

clueless210323Congressman Mike Garcia (R-California) asked Carvajal to compare the BOP’s management of COVID to private prisons housing federal inmates, looking at inmate deaths for each. “It’s hard to compare them because our numbers are so different,” Carvajal responded rather evasively. The information, of course, is easily obtained from the BOP’s own website, and it isn’t even embarrassing to the BOP. The prison systems’ experience is about the same, with 12.5 deaths per 10,000 inmates in private prisons, 14.9 deaths in the BOP.

Congresswoman Brenda Lawrence (D-Michigan) braced Carvajal about conditions at FCI Danbury camp, where, she said, female inmates were denied soap, medical supplies, and feminine hygiene products, while be temporarily housed in the visiting room of the men’s prison. The director denied knowing anything about that, but told Lawrence that reports of harsh pandemic conditions were “often mischaracterized or exaggerated.” He said hygiene and medical supplies were ample, dismissing Lawrence’s report: “I don’t believe that to the level that people didn’t have them.”

But the real fireworks came from two Congressmen. Steve Palazzo (R-Mississippi) complained that his office was inundated by complaints from families of elderly, non-violent inmates eligible for CARES Act release, but the BOP delayed home confinement placement. This accusation will not come as much of a shock to many inmate families. Carvajal responded that the BOP had done a wonderful job placing inmates on home confinement.

But when Congressman David Trone (D-Maryland) began questioning, the kid gloves came off. He reminded Carvajal of a meeting he had with the Director over a year before, at the end of which Carvajal promised to get Trone information he had requested. When nothing was forthcoming after a few weeks, Trone wrote to the BOP on March 31, 2020, repeating his request. Nothing happened. So the Congressman wrote again on April 17, 2020. Again he received nothing. He then sent his staff to meet with the BOP on April 23, 2020, again asking for the information.

Being stonewalled by the BOP because you’re simply unimportant? Wow. No inmate or family member has ever experienced that. Trone implied that the BOP’s dismissive treatment of his request had something to do with his not being on the Subcommittee on Commerce, Justice, Science and Related Agencies at the time. He was just one of a thundering herd of 435 members of the House. Now, he’s in a position to mess with BOP appropriations.

oops170417Oops.

Trone told Carvajal he had just sent the letter again, asking for information the BOP had first promised him over a year ago. The Congressman said pointedly, “I recommend to the Biden Administration that you and your staff are incompetent and be fired. So my question for you is, can I get a ‘yes ‘to answering all of our questions?”

A chastened Carvajal promised the information.

“That would be just great,” Trone shot back, “one year later.”

Trone also went after the BOP on First Step Act recidivism programming. Carvajal said 51,000 inmates were currently taking such programming, and 21,000 have completed it. But Trone cited the December 2020 Independent Review Commission report that bluntly predicted that the BOP will fall woefully short in meeting the January 2022 programming deadline, even while institutions are returning First Step programming money that they say they can’t use. Trone asked what additional resources the BOP needed to meet the deadline.

word210323Carvajal said he’d have to get back to Trone on that.  After all, Mr. Director, who could have supposed that Congress might be interested in the implementation of First Step, the biggest criminal justice bill in almost 30 years? Carvajal’s assurance that he would provide the Subcommittee with information he should have on hand but did not led Chairman Mike Cartwright (D-Pennsylvania) to close the session with what anyone would read as an admonition to Carvajal: “We’re going to take your promises at face value.”

That, of course, begs the question: What is the face value of a BOP promise to provide Congress with information? This would probably not be a good time to ask Congressman Trone that question.

House Subcommittee on Commerce, Justice, Science and Related Agencies, COVID Outbreaks and Management Challenges: Evaluating the Federal Bureau of Prisons’ Pandemic Response and the Way Forward (March 18, 2021)

Govt Executive, Less Than Half of Federal Bureau of Prisons Staff Have Accepted COVID Vaccines From the Agency (March 18, 2021)

– Thomas L. Root

Where Did The HEROES Go? (And Other Stories That Puzzle Inmates) – Update for January 4, 2021

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

DEAD HEROES

deadheroes210104Last May, the House of Representatives passed the HEROES Act, intended to be the second coronavirus stimulus. The bill, which included in its $3 trillion giveaway a number of criminal justice changes (like letting eligible elderly offenders get home confinement after two-thirds of their good-time adjusted sentences, instead of gross sentences), was promptly denounced by Republicans appalled at its price tag and then ignored by the Senate.

Eight months later, I am still getting questions about it, mostly from people who may have been sleeping in the back of the classroom during high school government class.

A bill passed by the House must then be passed by the Senate and then signed by the President in order to become law. In the case of HEROES, the Senate refused to consider the bill. Rather, the Senate passed the HEALS Act in response to HEROES, a bill that was then immediately not considered by the House.

sleep210104What finally happened last month was that the Senate and House worked out a compromise bill that was neither HEROES nor HEALS. The compromise bill included no sentencing provisions at all, a fact that seems not to detain prisoners at all. One inmate wrote me last weekend, asking me to confirm the rumor that § 205 of the stimulus bill gave elderly offenders the home confinement adjustment they sought. Alas, § 205 is entitled “Pipeline Safety Management Systems,” a provision of interest to elderly offenders only if they’re in the natural gas transmission business.

Another inmate asked me whether HEROES might still pass in January or February. Remember this from high school civics, boys and girls: every Congress lasts two years, and ends on January 3. The 116th Congress ended yesterday, and the 117th Congress starts its two-year run today. When a two-year Congress ends, any bill not passed by both the House and Senate is dead.

That means the sentencing changes contained in HEROES will have to be introduced all over in a new bill.

caresbear210104Someone else wondered how long the BOP’s home confinement authority will last under the CARES Act. There are three answers to that. First, the BOP’s authority lasts until 30 days after the COVID-19 national emergency declared by Trump ends. The National Emergencies Act requires any emergency to end one year after it is declared, unless extended by the President. Since some national emergencies (such as with respect to Iranian assets) have continued for four decades. The current COVID emergency ends in March, but there is little doubt Biden will extend it.

Second, the BOP’s authority only lasts as long as the Attorney General’s determination that the emergency conditions are “materially affect[ing] the functioning of the BOP.” Attorney General Barr made that determination last April, but he or the new AG could withdraw the finding at any time.

Finally, the CARES Act lets the BOP Director put prisoners in home confinement “as the Director determines appropriate.” This provision delegates virtually unreviewable power to the BOP. If the Director decided tomorrow that he had sent all the people he needed to send, he could pull the plug.

A year ago, the BOP population stood at 175,858 inmates. As of last week, the number had fallen 13.5% to 152,184. That’s a 31% drop from six years ago.

No one knows when the BOP will no longer place prisoners in home confinement. But we’re much closer to the end than we are to the beginning.

HEROES Act, H.R. 6800 (May 15, 2020)

HEALS Act, S.4318 et al. (July 27, 2020)

Section 205, Consolidated Appropriations Act, 2021 (December 27, 2020)

Section 12003(b)(2), CARES Act, H.R. 748 (March 28, 2020)

Sentencing Law and Policy, Federal prison population closes out 2020 at new modern low of 152,184 according to BOP (December 31, 2020)

– Thomas L. Root

Representatives Want BOP Reform – Update for August 19, 2020

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CONGRESSMAN FORMS BOP REFORM CAUCUS IN CONGRESS

Representative Fred Keller (R-Pennsylvania) has created a bipartisan Bureau of Prisons (BOP) Reform Caucus in Congress.

Reform200819Keller said during news conference in Lewisburg, Pennsylvania, last Friday that  the aim of the caucus is to improve BOP accountability and transparency, address systemic issues within the system and ensure the health and safety of corrections officers, staff, inmates and the communities surrounding the prisons.

“With a $7 billion budget, more than 36,000 employees and 172,000 inmates, the BOP is a massive government agency, yet its leadership in Washington lacks adequate congressional oversight,” he said. “”This will bring transparency to the Bureau of Prisons as a whole. Our goal is once we start shining a light on this, we’ll be able to affect change in the leadership of the Bureau of Prisons and the way they conduct business.”

The recent COVID-19 outbreak at the Lewisburg Federal Penitentiary and several cases at the three-prison Allenwood complex “are proof that the policies BOP set in place to mitigate the spread of the disease have failed,” Keller complained.

andykim200820Other members of the caucus are Republican Reps. Glen Thompson of Pennsylvania, Elise Stefanik of New York and Rodney Davis of Illinois and Democrat Reps. Matt Cartwright of Pennsylvania and Andy Kim of New Jersey.

Don’t kid yourself that this caucus has anything to do with the welfare of inmates. Rather, it’s aimed at how the BOP treats its employees and the communities surrounding its facilities, a “straw-that-broke-the-camel’s-back moment resulting from USP Lewisburg’s COVID-19 outbreak and its effect on the surrounding county’s coronavirus case numbers. Nevertheless, any Congressional focus on the highhandedness of BOP management – whether it’s the dismissive treatment of its staff or the cavalier approach to the communities in which the agency facilities are located – can only help.

Pennlive.com, Congressman creates bipartisan Bureau of Prisons Reform Caucus (August 14, 2020)

WNEP-TV, Lawmakers form prison reform caucus (August 14, 2020)

– Thomas L. Root

Dog Bites Man: Congress Expected to Do Nothing on Criminal Justice Reform This Session – Update for May 23, 2019

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CONGRESS POISED TO DO NOTHING ON JUSTICE REFORM UNTIL AFTER 2020

The media are already buzzing about the 4,000+ expected releases from federal prison after July 19, when the seven-days-per-year extra good time awarded in the First Step Act is scheduled to be effective.

grid160411The Washington Examiner wrote last week that “Trump’s potentially contradictory impulses for law and order but also second chances face a looming political test when about 4,000 federal inmates are released in July under an expansion of “good time” credit in the First Step Act, which he signed in December. Reform advocates say successful reentry into society for the looming wave must be assured. Otherwise, the reform cause and its political backers, including Trump, could be damaged.”

The immediate release wave had been expected right when the bill passed on Dec. 21. But as the Examiner put it, a “drafting error placed the good time credit expansion — allowing an extra seven days a year — in an unrelated section of the law featuring a seven-month delay.”

mcconnell180219While Congress may be watching to see how the releasees do, it will not be acting on any criminal justice reform itself. It is clear that nothing the Democratic-run House of Representatives may pass is even going to come to a vote in the Senate. In Saturday’s Wall Street Journal, Senate Majority Leader Mitch McConnell (R-Kentucky) made it clear that the Republican-led Senate will block anything Senate or House Democrats want. “Meanwhile, the Democrats are divided,” the Journal said. “House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer tout their legislative agenda, but half or more of their followers would rather rough up President Trump and then impeach him.”

Some of the Democrats running for president are touting criminal justice reforms as part of their platforms, but neither the candidates nor their opponents are interested in seeing anything enacted before the election.

With some of the 25-odd Democrats announced for president including strong criminal justice proposals in their platforms, it is unlikely the Senate would hand any of them a victory by passing any criminal justice reform measure.

Washington Examiner, Trump embrace of criminal reform faces test as 4,000 inmates near release (May 17)

Wall Street Journal, Mitch McConnell on Judges and the ‘Graveyard’ (May 18)

– Thomas L. Root

Congress, Media Force BOP to Back Down on Book Restriction – Update for May 7, 2018

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BOP REVERSES COURSE ON BOOK LIMITATIONS

Next to watching the FBI walk a Bureau of Prisons employee off the premises in handcuffs, there is nothing BOP management hates more than congressional heat. Last week provided a perfect illustration of that basic truth, as the BOP hastily reversed a controversial policy that had was making it harder and more expensive for inmates to receive books by banning direct delivery through the mail from publishers, bookstores and book clubs.

books180507The policy banned books from outside sources, including Amazon and Barnes & Noble. Instead, prisoners would have had to submit a request to purchase books through an ordering system run by the commissary in which they would pay list price, shipping and a 30% markup, and could buy hardcover books only, according to memos distributed in at least three BOP facilities. Under the new protocol, a book Amazon might sell for as little as $11.76, including shipping, could cost more than $26.00.

The book policy has been in effect at USP Atwater since last October, USP Victorville since February, and reportedly at USP Lee as well. But the issue only erupted publicly last month at House oversight hearings on the BOP, where Director Inch had his head handed to him by Congresswoman Karen Bass, who raised the issue of the policy being implemented at USP Coleman and lambasted the Director for adopting a policy that seemingly banned books.

We reported last month that Inch seemed nonplussed, saying he was unaware of the Coleman policy and would look into it. When he suggested Rep. Bass might misunderstand the policy, she shot back, “I hope you follow up with Coleman, because this does not seem to be a misperception, this seems to be a directive.”

At the time, we figured the Coleman warden’s new policy was a frolic that the Central Office might not know anything about, but the fact that the policy has been on a slow-walk rollout at joints in California, Virginia and Florida suggests that Director Inch’s denial of knowledge about the book restriction might be less than candid.

petition180507After the House hearings raised the book restriction issue, The Washington Post followed up, asking the BOP for the identity of the book vendor the BOP would use, the markup and the rationale for the restriction. The Central Office refused to say, but told the Post in an email last Thursday that the BOP had rescinded the memos and will review the policy to “ensure we strike the right balance between maintaining the safety and security of our institutions and inmate access to correspondence and reading materials.”

“You shouldn’t have to be rich to read,” complained Tara Libert, whose D.C.-based Free Minds Book Club has had reading material returned from two California prisons in recent months and has stopped shipping to two others because of the policy.

So the complaints went from inmates to families to congressional representatives to the media, demonstrating that if the issue is right, even the people who seem to have no power can end up making government accountable.

Washington Post, Federal prisons abruptly cancel policy that made it harder, costlier for inmates to get books (May 3, 2018)

In Justice Today, New Federal Prison Policies May Put Books and Email on Ice (Apr. 27, 2018)

– Thomas L. Root

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What’s New Is Old in Criminal Justice Reform – Update for October 4, 2017

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HISTORY REPEATS ITSELF

Two bills looking to reshape the nation’s criminal justice system were introduced this week, and all of sudden, criminal justice advocates are partying like it’s 2015.

party171004Leading the pack, a pack of influential senators led by Chuck Grassley (R-Iowa) and Dick Durbin (D-Illinois) announced the introduction of S. 1917, the Sentence Reform and Corrections Act of 2017.  SRCA17 – a retread of the Sentence Reform and Corrections Act of 2015 – is aimed at easing sentences for some federal offenders, such as for drug crimes, while beefing up other tough-on-crime laws. The measure would get rid of the federal three-strike law mandatory life sentence for some repeat drug offenders, three-strike but would also allow some people with previous convictions for serious violent and serious drug felonies to face enhanced penalties.

“This bill strikes the right balance of improving public safety and ensuring fairness in the criminal justice system,” said Grassley, who is chair of the Senate Judiciary Committee. “It is the product of much thoughtful deliberation, and we will continue to welcome input from stakeholders as we move forward.”

obtaining-clemencySRCA17 reportedly reduces the enhanced penalties that apply to repeat drug offenders and eliminates the three-strike mandatory life provisions for some offenders; expands the existing safety valve to offenders with more extensive criminal histories, and creates a second safety valve that gives judges discretion to sentence certain low-level offenders below the 10-year mandatory minimum; expands the reach of the enhanced mandatory minimum for violent firearm offenders to those with prior federal or state firearm offenses but reduces that mandatory minimum to provide courts with greater flexibility in sentencing; requires the Dept of Justice to conduct risk assessments to classify all federal inmates and to use the results to assign inmates to appropriate recidivism reduction programs, including work and education programs, drug rehabilitation, job training, and faith-based programs, permitting prisoners who successfully complete these programs to get early release and to spend up to 25% of their remaining sentence in home confinement or a halfway house; and provides for a report and inventory of all federal criminal offenses.

Sen. Grassley has not revealed his scheduling plan for marking up SRCA17. Its 2015 predecessor passed the Judiciary Committee 15-5 during the last Congress, but never reached a floor vote due to Senate Majority Leader Mitch McConnell (R-Kentucky), who did not want the measure voted on during the contentious 2016 presidential campaign.

A bipartisan coalition of legislators supports SRCA17, including Senator Mike Lee (R-Utah), Lindsey Graham and Tim Scott (both R-South Carolina), Jeff Flake (R-Arizona), Roy Blunt (R-Missouri), Dianne Feinstein (D-California), Sheldon Whitehouse (D-Rhode Island), Patrick Leahy (D-Vermont) and Cory Booker (D-New Jersey).

sessions170811
The Attorney General, whom President Trump says is “an idiot,” will likely oppose SRCA17.

SRCA17 will enjoy support from White House senior advisor Jared Kushner, who is interested in reforming the federal criminal justice system and previously has met with senators about the issue. The bill will undoubtedly be opposed by Attorney General Jefferson Beauregard Sessions III, a man recently described by President Trump as an idiot, who helped kill SRCA15 when he was a senator.

Meanwhile, five Republican senators Ted Cruz (Texas), Orrin Hatch and Mike Lee (both of Utah), Rand Paul (Kentucky), David Perdue (Georgia) introduced S. 1902, the Mens Rea Reform Act, on Monday. The MRRA would prevent the government from convicting someone of a federal crime without proving they committed the crime “knowingly and willfully.”

This is the second time Republicans in Congress have introduced “mens rea” reform, presenting a similar bill in 2015 that never made it out of committee.

Daily Caller, October 3, 2017: Senate Republicans team with Democrats in another push for soft sentencing

Politico, October 4, 2017: Senators unveil bipartisan criminal justice reform package

The Daily Signal, October 3, 2017: Criminal justice reform is alive and well in Congress

– Thomas L. Root

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Congress to Try, Try Again on Sentencing Reform – Update for September 21, 2017

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

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WE’RE BACK, BABY!

wereback170921After serving as a showpiece for what great bipartisanship can accomplish, the Sentencing Reform and Corrections Act of 2015 foundered on the shoals of presidential campaign politics last year, never making it to a floor vote in the Senate due to the fears of Majority Leader Mitch McConnell (R-Kentucky) that the vote could tarnish Republicans at the polls.

The bill, originally introduced in 2015, would cut mandatory minimum sentences for certain drug offenses and armed career criminals while increasing mandatory minimums for other offenses such as domestic violence. The bill was watered down early on in the process to satisfy law-and-order senators by eliminating any retroactive provisions. In other words, changing the law so that newly convicted people would not face unintended “stacked” mandatory minimums made sense, but relieving sentences of people who were given those “stacked” sentences the day before the bill passed did not.

flipflop170920Watered down or not, the SRCA fell to demagoguery from the likes of Sen. Ted Cruz (R-Texas), who supported the measure before he started running for president, but then opposed it on the campaign trail. An even greater foe was then-Sen. Jefferson Beauregard Sessions III, who is now Attorney General.

Nevertheless, building on the Senate’s success in repealing Obamacare and passing comprehensive tax reform, some U.S. senators are now planning to take a second stab at passing a bipartisan criminal justice reform bill after it stalled amid GOP infighting. Sens. Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) said Tuesday that they will reintroduce the SRCA, but they did not specify exactly when.

“While the political landscape in Washington has changed, the same problems presented by the current sentencing regime remain,” Grassley said. Despite the fact the bill has been worked on now over three different congresses, Durbin believes it the “best chance in a generation to right the wrongs of a badly broken system.”

The bill cleared the Senate Judiciary Committee in 2015, with Sen. John Cornyn (R-Texas) – one of the co-sponsors – predicting it would come to a floor vote soon afterwards. As Senate law-and-order conservatives started taking whacks at it, House Speaker Paul Ryan (R-Wisconsin) questioned whether the House would even be willing to debate the version of SRCA the Senate was cooking up. The bill died with the end of the last congress.

Starting with the day after its death last January, Grassley and Durbin began expressing interest in reviving the criminal justice bill. Along with Sen. Mike Lee (R-Utah), reportedly met with President Trump’s son-in-law and senior adviser Jared Kushner last March to discuss the issue. Kushner has a special interest in federal criminal justice reform.

sessions170918The push to pass the criminal justice reform bill could set up a potential fight with the Dept. of Justice, and Sessions, who was one of the leading opponents against the legislation when he was a member of the Senate. It is not known how much influence the AG still has with the President, who thinks Sessions is both “weak” and an “idiot.”

Sen. Thom Tillis (R-North Carolina), another supporter of the criminal justice reform effort, speculated last January that Sessions as attorney general would have as a chief objective enforcing what Congress sends him — even if he disagrees with it — rather than slipping into the role of legislator and try to change the laws. “He’s going to be focused on being the nation’s top law enforcement official,” Tillis said. “I don’t necessarily see him weighing in heavily on public policy choices that President Trump makes.”

The Hill, Senators to reintroduce bipartisan criminal justice bill (Sept. 19, 2017)

– Thomas L. Root

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Sentencing Reform has Quite a Week for a Corpse – Update for February 3, 2017

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

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FLIGHT OF THE PHOENIX

phoenix170203Congressman Bob Goodlatte (R-Virginia), chairman of the House Judiciary Committee, said yesterday that his agenda for the 115th Congress includes comprehensive sentencing reform, which was subject of a two year-long bipartisan push in both houses of the 114th Congress before being run down and killed by the 2016 elections.

Speaking to the Federalist Society at the National Press Club, Goodlatte said, “Both Ranking Member Conyers and I remain committed to passing bipartisan criminal justice reform. We must rein in the explosion of federal criminal laws, protect innocent citizens’ property from unlawful seizures, and enact forensics reforms to identify the guilty and quickly exonerate the innocent. We must also reform sentencing laws in a responsible way and improve the prison system and reentry programs to reduce recidivism.”

Goodlatte’s announcement bookends a week that began with House Oversight Committee Chairman Jason Chaffetz (R-Utah) saying that criminal-sentencing reform proponents in Congress are optimistic that Vice President Mike Pence will be an ally, helping them to work with the Trump administration to pass sentence reform legislation.

“I’ve got reason to be hopeful,” Chaffetz told reporters at a morning session of the Seminar Network, a group of libertarian and conservative donors gathered in Palm Springs by Charles and David Koch.

Senator Sessions as AG – Don't expect that you've got anything coming.
      Incoming Attorney General Sessions – no friend of sentencing reform.

Even as Congressional Republicans started sliding sentencing reform onto the front burner, CNN darkly warned that “the future of criminal justice reform hangs in the balance as the nomination of Alabama Sen. Jeff Sessions, President Donald Trump’s pick for attorney general” was approved in a party-line vote by the Senate Judiciary Committee. CNN cited unidentified “activists” who worried that Trump would “halt former President Barack Obama’s reforms, and institute new policies that could worsen conditions.”

We’re not sure what planet CNN has been on, but we’re fairly confident that Obama’s only criminal justice “reform” of note in eight years – unless you include his arbitrary and gimmicky clemency lottery – was passage of the Fair Sentencing Act of 2010. And as for that, Sessions not only voted for the Act, but in fact worked with Sen. Dick Durbin (D-Illinois) in gaining its passage. That Act reduced the sentencing disparity between offenses for crack and powder cocaine from 100:1 to 18:1, a change widely seen as benefitting minorities, whom were statistically more likely to be involved with crack than with the standard powder. Obama loved to talk a good game, but his Administration promised much (remember Eric Holder’s grand “working group to examine Federal sentencing and corrections policy” announced with fanfare in 2009, only to disappear in the Washington swamp, never to be heard from again?) but delivered damn little.

None of this is to suggest that Trump or Sessions share enlightened views on sentencing reform. To the contrary: Trump branded many of the federal prisoners receiving clemency as “bad dudes,” a label applied in usual Trumpian fashion with little reflection and no investigation. As a senator, Sessions was one of the early and vociferous opponents of the Sentence Reform and Corrections Act of 2015, contending that it would “release many dangerous criminals back into American streets.”

President Trump says they're coming to a street corner near you .
     President Trump says they’re coming to a street corner near you
.

This might be a plus. With Sessions no longer in the Senate to organize an uber-conservative revolt against sentencing reform, Sen. Tom Cotton (R-Arkansas) will stand virtually alone in trying to derail sentence reform. Sure, Sessions may still be against it, but he’ll have much bigger fish to fry over at 9th and Constitution, running the 113,500 employees at DOJ.

As for Trump, will he be an impediment to bipartisan sentencing reform? Who can predict anything with the famously impulsive President? It is noteworthy, however, to observe that last Tuesday in introducing Judge Neil Gorsuch as his nominee for Justice Antonin Scalia’s seat on the Supreme Court, Trump noted of Judge Gorsuch: “While in law school, he demonstrated a commitment to helping the less fortunate. He worked in both Harvard Prison Legal Assistance Projects and Harvard Defenders Program.”

Ohio State University law professor Doug Berman, who writes the Sentencing Law and Policy blog, found it “quite notable that… Prez Trump would stress this history.” Could it be that the President would not be as inalterably opposed to federal sentencing reform as some “activists” might fear?

– Thomas L. Root

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