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DOJ Works to Undermine Fair Sentencing Act in Name of ‘Fairness’ – Update for November 12, 2019

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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.

THIS COMES AS NO SURPRISE

strict191112The Department of Justice is interpreting the First Step Act in a way that keeps more inmates serving crack sentences behind bars longer, even as President Trump touts his administration’s role in passage of First Step, the law that made crack-cocaine sentence relief available to pre-Fair Sentencing Act defendants.

The Washington Post report last week confirmed what most people already know (and what Reuters reported several months ago), that DOJ is arguing that a defendant’s sentence length, when resentenced under the Fair Sentencing Act, should be based on the amount of crack cocaine that his or her Presentence Report found the defendant actually possessed or trafficked, rather than the amount stated in the indictment and which the jury found or the defendant pled. The Post reported that federal prosecutors have made the argument in hundreds of cases.

The distinction is crucial. The amount of crack specified in the indictment must be proven by the government to a jury. The presentence report, on the other hand, is a loosey-goosey collection of the prosecution’s version of the offense and all of the collected but unsubstantiated law enforcement gossip about the defendant that makes him or her look even worse than reality does. The standard of proof is low, the procedures amorphous, and the judge all too willing to not decide evidentiary disputes because they simply do not matter to the court in the sentencing process.

looseygoosey191112As a result, while a defendant may have been found guilty of the offense in the indictment, for instance, distribution of more than 50 grams of crack, the presentence report may cite “reliable sources” who say the defendant possessed maybe a gram a week for two years. The presentence report does some simple addition, and a total of 730 grams results.

The Post said DOJ was even seeking to reincarcerate some people already released under the retroactive FSA. One targeted former inmate was Gregory Allen, who appeared at a White House event in April to celebrate passage of the law. President Trump even called Greg to the microphone.

Before the White House event, prosecutors had lost their bid to keep Allen behind bars. Even as the President asked Greg to speak, the government was appealing its loss. DOJ dropped its appeal about two weeks after Greg’s appearance.

A DOJ spokesman defended the department’s First Step interpretation in an interview with the Post. He said DOJ’s position was justified because prosecutors in years past didn’t need to prove large amounts of drugs to obtain long prison sentences. Under today’s sentencing regime, prosecutors would likely charge the offenders with having larger drug quantities, DOJ hypothesizes. “The government’s position is that the text of the statute requires courts to look at the quantity of crack that was part of the actual crime,” the spokesman argued. “This is a fairness issue.”

Judges have rejected the DOJ interpretation in a majority of cases reviewed by the Post. But at least five federal judges have agreed with the DOJ interpretation, and others have withheld judgment until appeals courts decide the issue.

In the weeks after the bill became law, many AUSAs allowed inmate petitions for early release to go unchallenged. Then, at the direction of the DOJ, prosecutors began to reverse course, court records show. In March, AUSA Jennifer Bockhorst of ND WVa asked federal judges to place a hold on more than two dozen applications for relief, some of which she had not previously opposed. She wrote that she expected to oppose at least some of those applications based on new guidance from the Justice Department.

Some of the people who helped write the legislation also disagree, including Brett Tolman, a former US attorney in Utah. He notes that the First Step text does not explicitly instruct courts to consider the actual amount of crack an offender allegedly had. “This is not a faithful implementation of this part of the First Step Act,” Tolman told the Post. “At some point, they figured out a way to come back and argue that it wouldn’t apply to as many people.”

Rep. Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, accused DOJ at a congressional hearing last month of “trying to sabotage” the law by interpreting it in this way.

Attorney General Barr has reportedly worried that early releases of inmates under the law will increase crime. Anonymous officials told the Post that Barr is concerned the administration will be blamed if crime increases.

A great example of the kind of blame the AG hoped to duck is illustrated by the person of Rhode Island defendant Joel Francisco, released earlier under First Step this year after 14 years into a life sentence for selling crack. We previously reported he was on the run after being charged with a murder. He has since been arrested, and last week, CNN made his crime a national story.

Also last week, a routine resentencing in Connecticut made national headlines, when Joel Soto’s 17-year sentence was cut to time served, under the lurid headine, “‘Joe Crack’ asks for reduced sentence in drug case.”

“More than 4,700 inmates have been released from prison under the law since its signing late last year,” CNN reported, “and federal officials believe Francisco is the first among them to be accused of murder. While an outlier, his case is raising questions and resurfacing concerns from detractors of the legislation.”

“cotton190502This case is upsetting but it’s not a surprise,” said Sen. Tom Cotton (R-Arkansas), one of First Step’s biggest critics on Capitol Hill. “Letting violent felons out of prison early as the First Step Act did leads to more crime and more victims.”

Other lawmakers who supported the bill called the incident a tragedy, but hoped that it wouldn’t stand in the way of more progress. “If you’re looking at reforming the criminal justice system you cannot pick an individual criminal act to then raise the question as to whether or not you do reforms to the system,” said Rep. Karen Bass (D-California), a member of the House Judiciary Committee and the chair of the Congressional Black Caucus.

None of this should surprise anyone. Despite the First Step Act rhetoric, The New York Times reported last week that despite bipartisan calls to treat drug addiction as a public health issue rather than as a crime — and despite the legalization of marijuana in more states — arrests for drugs increased again last year. Such arrests have increased 15% since Trump took office.

Washington Post, Crack cocaine quantities at issue as DOJ opposes some early releases under First Step Act (Nov. 7)

ABA Journal, Crack cocaine quantities at issue as DOJ opposes some early releases under First Step Act (Nov. 8)

CNN, He was one of the first prisoners released under Trump’s criminal justice reform law. Now he’s accused of murder (Nov. 9)

Newport News, Virginia, Daily Press, ‘Joe Crack’ asks for reduced sentence in drug case (Nov. 2)

The New York Times, Is the ‘War on Drugs’ Over? Arrest Statistics Say No (Nov. 5)

– Thomas L. Root

Fake News on Second Step Act – Update for May 2, 2019

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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.

JUST FOOLIN’

trumpaprilfool190502President Trump told an April Fools’ Day gathering the White House to celebrate the First Step Act that “I’m announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records, and that’s what we’re starting right away.”

Um… not really.

The Washington Examiner last week quoted White House sources as saying that “there’s definitely not a Second Step Act.” In fact, it appears that Trump wandered off script from the prepared speech, which did not mention a Second Step at all.

Instead, the source is quoted as saying, the White House is focused instead on implementing the First Step Act in a way that denies ammunition to opponents such as uber-critic Sen. Tom Cotton, R-Ark.

cotton190502So far, First Step has not been a roaring success. A drafting error stalled additional “good time” credit for 150,000 federal inmates, creating a likely wave of about 4,000 releases around July. White House officials considered options to move forward the date but ultimately did not. “There’s a lot of concern that they have to get this right. Folks like Tom Cotton are just waiting for someone to do something stupid,” said the source who has worked on White House efforts. “People are going to want to wait and see how this [First Step Act] works out.”

Meanwhile, a broad coalition of groups is pushing for repeal of the federal ban on Pell Grants for incarcerated students, as talks heat up over reauthorization of the Higher Education Act. Those organizations include civil rights groups, religious colleges and conservative organizations, argue that college access for students behind bars is an issue of equity for postsecondary education and also the logical extension of efforts to end mass incarceration.

Since 1994, federal law has prohibited prisoners from receiving Pell Grants, the primary form of need-based student aid. The Trump administration, however, has named financial aid for incarcerated students as a top priority for a new higher ed law.

Washington Examiner, Trump declared he was working on a Second Step Act. The proposal doesn’t exist (Apr. 26)

Inside Higher Ed, The Case for Pell in Prisons (Apr. 22)

– Thomas L. Root

First Step Passes Senate Without Cotton’s Killer Amendment – Update for December 19, 2018

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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.

SENATE SHOOTS DOWN COTTON, ADOPTS CRUZ AMENDMENT, PASSES FIRST STEP

The First Step Act, now renamed the Criminal Justice Reform Act, S.756, passed the Senate last night by a vote of 87 – 12, making adoption of federal criminal justice reform virtually a done deal.

firststep1800509A different version passed the House (H.R.5682) earlier this year, so all that remains is to have the House either pass the Senate version, or hold a quick conference committee to work out a compromise before the bill comes to President Trump for a signature. House Speaker Paul Ryan (R-Wisconsin) previously promised quick action on anything the Senate sent over on First Step.

Before passing the measure, the Senate shot down the “poison pill” amendment offered by Sens. Tom Cotton (R-Arkansas) and John Kennedy (R-Louisiana). That amendment would have disqualified anyone with a crime of violence (applying the very restrictive 18 USC 924(c) definition, which is of dubious constitutionality when applied in this setting) from using program credits for early release, required victim notification whenever anyone got early release, and required DOJ to track rearrests of people who got early release. The Senate broke the amendment into three pieces, all of which were defeated by close to 2-1 votes.

As well, the Senate rejected efforts by Sen. Cory Gardner (R-Colorado) to add legalization of marijuana to the measure.

cotton181219At the same time, the Senate adopted two amendments, one from Sen. James Lankford (R-Oklahoma), which permits faith-based groups participate in providing the recidivism-reducing programs envisioned by the bill, and another by Sen. Ted Cruz (R-Texas), which added a few specific offenses to the list of offenses excluded from early release  and stripped judges of the right to make people with more than four Guidelines criminal history points eligible for the “safety valve” under 18 USC 3553(f).

The Cotton-Kennedy amendment only needed a majority to pass, but none of the three sections even came close.

Trump last night issued a statement hailing the passage of the bill. “America is the greatest Country in the world and my job is to fight for ALL citizens, even those who have made mistakes,” Trump tweeted moments after the Senate vote. “This will keep our communities safer, and provide hope and a second chance, to those who earn it. In addition to everything else, billions of dollars will be saved. I look forward to signing this into law!”

New York Times, Senate Passes Bipartisan Criminal Justice Bill (Dec. 19)

Fox News, Senate passes criminal justice reform bill, sends to House (Dec. 18)

– Thomas L. Root

 

First Step May Pass Today, But Amendment Battle Looms – Update for December 18, 2018

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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.

SENATE VOTES TO CLOSE DEBATE, SET FIRST STEP UP FOR A FINAL VOTE AS EARLY AS TODAY

firststepB180814The First Step Act of 2018 (S.3747), cleared a major hurdle last night, with the Senate voting 82-12 to end debate on the bill and steer the legislation to a final vote, likely scheduled for today.

Procedurally, the bill has been amended into another pending bill, formerly known as the Save Our Seas Act of 2018, S. 756. The bill is now being called the Senate Criminal Justice Reform Act.

A different version passed the House earlier this year, so the House would have to pass the Senate version, or a conference committee would have to work out a compromise before the bill would come to President Trump for a signature.

Before a final Senate vote, the bill’s 35 sponsors will have to defeat so-called “legislative poison pills” that they say are designed to kill the compromise that has been carefully negotiated among Democrats, Republicans and the Trump administration. “There are a number of members with outstanding concerns that they feel are still unresolved… The Senate will be considering amendments before we vote on final passage later this week,” Senate Majority Leader Mitch McConnell (R-Kentucky) said ahead of the vote.

Look out, Sen. Cotton, here comes First Step...
Look out, Sen. Cotton, here comes First Step…

Sens. Tom Cotton (R-Arkansas) and John Kennedy (R-Louisiana) will get a vote on their amendment that would bar people convicted of various offenses, including sex crimes and crimes of violence, from being able to qualify for shortened sentences, although they could still earn credits that would get them more halfway house, home confinement and in-prison privileges. The legislation already has a 50 or so exclusions, but Cotton and Kennedy want to add more crimes to the list. Sens. Patrick J. Toomey (R-Pennsylvania), Jon Kyl (R-Arizona) and John Barrasso (R-Wyoming) have endorsed Cotton and Kennedy’s effort, suggesting that they, too, are uncomfortable with the underlying bill.

The Cotton-Kennedy amendment would only need a majority to pass, so some Republicans will have to band with Democratic senators to kill it. And senators who wrote the bill say there are already a number of safeguards meant to prevent violent criminals from being prematurely released.

“From the standpoint that they aren’t specifically mentioned, the answer is, that’s true, they aren’t,” Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said. But “the reasons they aren’t is because we think that other parts of the law cover it and also the process that somebody has to go through to get a review of their sentence, the prosecutors gotta go through that as well.”

poison pillSen. Dick Durbin (D-Illinois), who helped craft the deal along with Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah), warned that as currently drafted that he believes Cotton’s amendments are “poison pills” meant to undercut the legislation as a whole. “The amendments that he will propose tomorrow, the senator from Arkansas, have been opposed by groups across the board, left and right, conservative, progressive, Republican, Democrat, they all oppose his amendments. …If he goes with the amendments we’ve seen, we’re going to have to do our best to oppose him,” Durbin said. 

Most if not all Democrat senators are expected to support First Step, although they emphasize that the bill alone is not enough. “It is a compromise of a compromise,” Sen. Kamala D. Harris (D-California) said in a statement yesterday announcing her support for the bill. “We ultimately need to make far greater reforms if we are to right the wrongs that exist in our criminal justice system.” 

Washington Post, Criminal justice bill clears hurdle in the Senate on strong bipartisan vote (Dec. 17)

The Hill, Senate votes to end debate on criminal justice reform bill (Dec. 17)

– Thomas L. Root

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First Step Vote Set, But Drama Will Go To The Wire – Update for December 17, 2018

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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.

FIRST STEP SENATE VOTES SET FOR TODAY AND WEDNESDAY

firststep1800509Senate Majority Leader Mitch McConnell (R-Kentucky) ended the Senate’s 4-day work last Thursday night by scheduled a procedural vote on the latest revision of the First Step Act of 2018 for 5:30 p.m. today. That vote, promised weeks ago, will be a crucial test of the bill’s backing, where supporters will need to put up 60 votes to advance the bill.

In the latest iteration of First Step, the measure has been renumbered this year for the third time this year as S.3747 and has dropped its unwieldy title of “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act” – and thus the need for all capital letters.

If the Monday vote is successful, the Senate leadership says First Step could be wrapped up Wednesday, after allowing opponents the opportunity to have yet amendments considered. “My impression is that people are not going to string this out unnecessarily for procedural reasons, as long as they get an opportunity to make their arguments and have a vote on their amendment,” said Senate Majority Whip John Cornyn (R-Texas), who announced his support for First Step this week.

Supporters say they have at least 70 votes for the measure, although cosponsors of the measure are officially at 35. Sen. Roy Blunt (R-Missouri), a member of Senate leadership, predicted that “slightly more than half” of the GOP conference and as many as 30 of the 51 GOP senators could back it.

As McConnell set the week’s votes last Thursday, Sen. Mike Lee (R-Utah) sought to make last-minute changes in First Step that would reflect a compromise the bill’s supporters had reached with Sen. Ted Cruz (R-Texas). Cruz endorsed the bill because it was supposed to bar many violent criminals from earning early release, but the version that was presented on Wednesday (which is available online) did not include all of the exclusions Cruz had been promised. Lee tried to get McConnell to change them, according to multiple people familiar with the matter, but McConnell wanted to give his divided caucus at least 24 hours to review the new just-released text. The bill‘s chief critic, Sen. Tom Cotton (R-Arkansas), joined in a private meeting with McConnell, Lee and Cornyn on the Senate floor Thursday afternoon, during which Lee argued that the changes should be made to increase the bill‘s conservative support.

To get any amendments into the bill, the legislation must be amended on the Senate floor. Cruz’s endorsement was critical to moving the bill forward, and he has repeatedly touted that the legislation would no longer allow the early release of violent criminals.

senatevote181217McConnell will allow only a little time and very few amendments to First Step before the Wednesday vote. After the Senate begins debating the bill, it will ultimately take 60 votes to pass it. And an amendment, however, will require just 50 votes in the narrowly divided Senate. Cotton and Sen. John Kennedy (R-La.) are expected to offer an amendment to add new exclusions to the list of inmates not allowed to get program credits. Because amendments need only a simple majority, some Republicans will have to vote against them to keep the provisions from being added to the legislation. One senator predicted that many Democrats would probably defect from the legislation if the Cotton amendment passed.

Still, First Step will pass as long as it survives an uncertain amendment process. Most Senate Democrats support it, a significant bloc of Republicans is expected to back it, and President Donald Trump is expected to sign it if it passes the Senate and House ahead of the Dec. 21 partial government shutdown deadline.

The biggest immediate impact of First Step would be felt by nearly 2,600 federal prisoners convicted of crack offenses before 2010. That’s the year the Fair Sentencing Act reduced the disparity in punishment between crack cocaine and the powdered form of the drug. First Step would make the reform retroactive.

goodconduct180509All federal inmates will benefit from an increase in good time from 47 days a year to 54 days a year, retroactive to the beginning of each inmate’s sentence. The change is estimated to result in 4,000 extra prisoners being released in the next year, some immediately.

If it passes the Senate, the House and Senate will have to reconcile their different versions of First Step and then approve the reconciled version, all before Dec. 21. Rep. Steny Hoyer, D-Maryland, the House minority whip, told reporters last week, “I presume… we will be able to approve it next week. I’m hopeful that it can move that quickly.” The New York Times said House Speaker Paul Ryan (R-Wisconsin) has pledged swift action before the House leaves town for the year-end holidays.

The Hill, McConnell sets Monday test vote on criminal justice bill (Dec. 13)

Politico, GOP infighting continues as criminal justice bill advances (Dec. 13)

The Hill, Senate heads toward floor fight on criminal justice bill (Dec. 14)

The Marshall Project, What’s Really in the First Step Act? (Nov. 16)

First Step Act of 2018, S.3747 (Dec. 12)

The New York Times, Criminal Justice Bill Will Go Up for a Vote, McConnell Says (Dec. 12)

– Thomas L. Root
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FIRST STEP Sponsors Gave Away a Lot to Get the Bill to a Vote– Update for December 13, 2018

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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.

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.

firststepB180814McConnell 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.

good-bad-news-400pxSo 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 peoplschaden170306e 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

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Progress on FIRST STEP, or Just Generating Heat Without Light? – Update for December 10, 2018

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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.

FIRST STEP GETS KNOCKED DOWN, BUT IT GETS UP AGAIN, CAN MCCONNELL EVER KEEP IT DOWN?

The lyrics from “Tubthumping,” Chumbawamba’s 1997 hit, describe the FIRST STEP Act’s week. The bill got knocked down early in the week by inaction and demagoguery, to the point that pundits were writing the bill’s obituary last Thursday. But the prison and sentencing reform act stumbled back up again on Friday, with three surprisingly positive developments.

chumba181210FIRST STEP is still far from being passed, but the pressure (for a change) is on Senate Majority Leader Mitch McConnell (R-Kentucky) instead of on the bill’s supporters. Sen. John Thune (R-South Dakota) seemed to signal that McConnell may yield to pressure. On Face the Nation yesterday, Sen. Thune said of FIRST STEP, “There are timing issues associated with it but there – at the moment at least there are still some substantive issues that are being resolved. I think if they get that worked out, if they can attract the support of more Republican Senators, there – there’s still an opportunity I think for that to be finished this year, but if not obviously it – it will be taken up again next year-”

The big news of the week came late on Friday, when President Trump decided to check back in on the bill, and pressured McConnell to bring FIRST STEP to a vote during the crowded lame duck session. After going mostly silent on the bill for several weeks, Trump singled McConnell out on Friday on his Twitter feed:

tweet181210

Trump’s public demands do not guarantee McConnell will bring the bill to a vote. He has told Trump several times that the Senate calendar is too cluttered in December to take up a bill that divides Republicans. As late as Thursday, McConnell had not mentioned the bill at either of two GOP senator meeting, and he has reportedly told senators there’s almost no window to take up the bill this year, according to multiple GOP sources.

One McConnell adviser said the senator does not intend to have a vote on the legislation because he does not have enough time and is more focused on other things — like funding the government and confirming judges. “He doesn’t like the bill,” the Washington Post reported Republican donor Doug Deason, a key White House ally, said of McConnell’s view of FIRST STEP. “He’s a Jeff Sessions-style, lock-them-up-and-throw-away-the-key kind of guy.”

mcconnell180219White House officials say McConnell doesn’t want a vote unless the overwhelming majority of Republicans will vote for it — although both Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Sen. Mike Lee (R-Utah) said that 28 or 30 GOP senators support the bill. There are 51 Senate Republicans, and nearly all of the 49 Senate Democrats are expected to back it.

McConnell complained at a Wall Street Journal event last week that such a bill requires a week or ten days to consider, while there are only two weeks left before the planned holiday recess and budget bills that must be passed. FIRST STEP advocates argue that it would only take a few days, with a cloture vote capping debate at 30 hours. McConnell acknowledged support on both sides of the aisle but called the legislation “extremely divisive inside the Senate Republican conference,” with more members undecided or opposed than in favor.

“That’s his calling card, protecting his conference,” said Kevin Ring, president of FAMM. The Atlantic suggested yesterday that while past majority leaders like Lyndon Johnson might have strong-armed their members, McConnell waits for near-unanimity among Senate Republicans. “I think he’s not just looking for 60 votes,” said Brett Tolman, a former U.S. Attorney in Utah who also worked as a GOP Senate staffer and now advocates for criminal-justice reform. “He’s looking for a majority of Republicans.”

But it's not a bad thing.
                   But it’s not a bad thing.

Earlier in the week, FIRST STEP opponents Sen. Tom Cotton (R-Arkansas), John Kennedy (R-Louisiana) and Ted Cruz (R-Texas) seemed to be on a roll, denouncing FIRST STEP as giving immediate release to sexual predators, drug kingpins and gun-toting gangbangers. But Friday, just before Trump’s renewed support,     Sen. Cruz flipped, issuing a press release pledging support:

“I have long supported criminal justice reform. I believe in reducing mandatory minimum sentences for non-violent drug offenders, and providing greater opportunities for offenders to be rehabilitated. At the same time, I do not believe we should be granting early release to violent offenders.

“That is why I drafted an amendment that would exclude violent offenders from being released early. I’m happy to report that, after working closely with the White House and the sponsors of this bill, they have decided to accept my amendment. This new version of the bill resolves my concerns, and is one that I wholeheartedly support and cosponsor.”

firststep180814Also, last Friday a leading FIRST STEP opponent announced his support of key planks of the legislation. Larry Leiser, president of the National Association of Assistant U.S. Attorneys, told the Washington Examiner he supports in principle three of four major sentencing reforms included in FIRST STEP.

The possible turning of the tide seems to have little effect on McConnell’s reluctance to hold a vote. He has angered some GOP senators and created an unusual rift with Sen. Grassley, a longtime McConnell ally. Grassley has spent years building a coalition around FIRST STEP and is pushing hard for a vote this year. “We’ve done what needs to be done,” Grassley said about the overwhelming support for the bill. “So what’s holding it up?”

On Friday, Sen. Lindsey Graham (R-South Carolina) intervened, talking directly to President Trump about attaching the criminal justice legislation to the must-pass year-end spending bill, which is already tangled in a separate fight over funds for the border wall with Mexico. “Just talked with President,” Graham tweeted. “He strongly believes criminal justice reform bill must pass now. He also indicated he supports putting criminal justice reform bill on year-end spending bill which must include MORE wall funding.”

The spending bill will need approval by Dec. 21 to avoid a funding lapse days before Christmas.

On Thursday, Sen. Lee said there were 28 hard “yes” Republican votes plus 49 Democrats for the bill. “It’s rock-solid,” he said. But Sen. John Cornyn (R-Texas), the Senate Republican whip, said more Republicans needed to be convinced. “Right now we have a majority of the Republican conference either undecided or no,” he told reporters. He also continued to call for some changes to the bill.

reefer181210Despite Sen. Lee’s assurance that he has 49 Democrat votes in favor of FIRST STEP, The Hill reported Wednesday Democrats who are mulling 2020 presidential bids have split over whether to support FIRST STEP. The decision to support or oppose the bill is a significant policy decision for 2020 Democrat candidates.

Among Republican senators, Sen. Rand Paul (R-Kentucky) told CNN that there’s a generational divide within the party on the issue. “I think there are people who were teenagers in 1937 watching ‘Reefer Madness’ and they’re still concerned that Reefer Madness is going to take over and everybody is going to become zombies, hacking and killing everyone if they smoke pot,” said Sen. Paul, a FIRST STEP supporter. “And then there are a couple of generations after 1937 of people who don’t see it with the same degree of evil.”

The Atlantic, Mitch McConnell Appears to Be Killing Bipartisan Sentencing Reform (Dec. 9)

Politico, Trump leans on McConnell to vote on criminal justice reform (Dec. 7)

The Hill, Criminal justice reform splits 2020 Democrats (Dec. 5)

Washington Examiner, Trump pushes Congress to pass floundering sentencing reform bill (Dec. 7)

Washington Post, McConnell tells White House little chance of Senate vote on criminal justice bill (Dec. 6)

Pittsburgh Tribune, McConnell blocks sentencing bill, upsetting Grassley, GOP (Dec. 7)

– Thomas L. Root

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FIRST STEP Going Nowhere Fast – Update for December 3, 2018

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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.

MCCONNELL EQUIVOCATES AS COTTON YELLS “SEX OFFENDER!” IN BID TO TANK FIRST STEP ACT

Sen. Charles Grassley (R-Iowa), chairman of Judiciary Committee, introduced the long-awaited hybrid FIRST STEP Act (S.3649) last Monday, and moved it out of Committee to the floor of the Senate the same day. That’s pretty much good news of the week.

whipping181203President Trump is still pressing the Senate to take action this year, and the ACLU is running ads in Kentucky demanding that Senate Majority Leader Mitch McConnell (R-Kentucky) schedule a floor vote. McConnell said last Tuesday that he will go where the votes are within the Republican Party. “We will be whipping that to see whether — what the consensus is — if there is a consensus in our conference about not only the substance, but the timing of moving forward with that particular piece of legislation,” McConnell told reporters.

Sen. Roy Blunt (R-Missouri) said last Friday that at least half of the Republican conference supported the bill. “If we get to it this year, it’ll be largely because of White House pressure,” said Blunt, a member of the GOP Senate leadership. “My guess is that at least half of our members are for it and most of the Democrats.”

As of yesterday, McConnell was declining to talk about his plans for FIRST STEP. An unnamed attendee at a White House meeting last Tuesday, which McConnell attended as well, assessed the prospect that McConnell will put FIRST STEP on the floor at “less than 50/50.”

nothappen181016The Washington Post reported last Tuesday that Republicans are actively discussing changes to FIRST STEP in order to win more GOP support. One change being discussed privately is tightening the “safety valve” provision. Although the most recent draft of the bill broadens the people eligible for “safety valve” treatment, Sen. David Perdue (R-Georgia) said senators are talking about reducing the people who would qualify for the “safety valve” provision.

Breitbart.com reported Saturday that a Senate document circulating among FIRST STEP opponents lists 20 violent crimes it says would be eligible for early release under the bill. The letter lists crimes including failing to register as a sex offender, drug trafficking, assaulting law enforcement, and making death threats against U.S. lawmakers, asks, among other things, whether the Senate can “trust the BOP to correctly categorize who is high vs. low risk?”

This is consistent with vocal complaints last week from Sen. Tom Cotton (R-Arkansas), FIRST STEP’s biggest opponent, that sex offenders could get off easy. He based his claim on a Dept. of Justice report that the bill could make people convicted of some sex crimes eligible for early release.

Ohio State University law professor Doug Berman lamented last week in his Sentencing Law and Policy blog that, while it seems “a super-majority of all Senators (representing a super-super majority of the nation’s population) want this legislation enacted… that a few Senators from a few states can, in essence, exercise a heckler’s veto highlights why thoughtful federal criminal justice reform has been so very hard.”

CNN, Mitch McConnell faces tough choice on criminal justice proposal (Dec. 2, 2018)

Politico, White House makes last-ditch push on criminal justice reform bill (Nov. 27, 2018)

Washington Post, Senate Republicans mull changes to controversial criminal justice bill (Nov. 26, 2018)

Breitbart.com, Exclusive — GOP Senate document lists 20 violent crimes eligible for early release under criminal justice reform bill (Dec. 1, 2018)

– Thomas L. Root

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Still Some Life Left in FIRST STEP? – Update for November 26, 2018

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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.

FELLOW REPUBLICANS URGE MCCONNELL TO PUT FIRST STEP TO A VOTE

intimidation181126Republican senators last week put a full-court press on Senate Majority Leader Mitch McConnell (R-Kentucky) to bring the modified FIRST STEP Act to the Senate floor before Congress adjourns for the year on Dec. 14. 

[Update: The Senate Judiciary Committee reported the modified FIRST STEP Act, now S.3649, to the floor on Monday, November 26, 2018].

McConnell has been coy about the bill’s prospects, even with the backing of President Donald Trump and his son-in-law and senior adviser, Jared Kushner. McConnell’s intransigence in the face of Trump’s urging and the demands of his own party could open a new divide between McConnell and Trump weeks after they worked together to widen the Senate majority in the midterm elections.

If the Senate does not pass FIRST STEP in the next two weeks, the bill would have to be reintroduced in January, and would a Democrat-controlled House that would probably include a lot of sentencing reform provisions that would be non-starters in the Senate.

“This really does need to get done this year,” Sen. Mike Lee (R – Utah) said in an interview. “Saying that we’ll do it next year is tantamount to saying this just isn’t going to get done.”

In general, McConnell doesn’t like voting on legislation that divides Senate Republicans. FIRST STEP has been controversial among a few conservative Republicans for months, even sparking a Twitter argument between Lee and Sen. Tom Cotton (R – Arkansas), last Monday.

“Unaccountable politicians and those who live behind armed guards may be willing to gamble with your life,”  Cotton wrote in a USA Today op-ed piece Nov. 15. “But why should you?”

cotton171226And Sen. John Kennedy (R-Louisiana) argued earlier this month, “A dangerous person who is properly incarcerated can’t mug your sister. If we’re not careful with this, somebody is going to get killed.”

In the past three years, Sen. Charles E. Grassley (R-Iowa), chairman of the Judiciary Committee, blocked a Democratic Supreme Court nominee, pushed through an army of conservative judges and secured confirmation two Trump nominees.

Grassley had some chits to call in when he spoke to McConnell last Monday morning about FIRST STEP. I have been there for you, Grassley told McConnell, and I would hope this is something that you would help me make happen, the New York Times reported that three people familiar with the call said.

Meanwhile, Sen. Lindsey Graham (R-South Carolina) told NBC a week ago that he’s confident FIRST STEP would receive 80 votes in the Senate, and would be a positive first step for the government in the wake of a contentious midterm election cycle. “Let’s start 2019 on a positive note,” Graham said. “I’m urging Sen. McConnell to bring the bill to the floor of the Senate. It would get 80 votes. Mr. President, pick up the phone and push the Republican leadership… The Republicans are the problem here, not the Democrats.”

FIRST STEP proponents fear McConnell will let the short window for consideration this year slide shut rather let a vote go forward on a complicated issue that divides Republicans. Republican senators allied with Grassley, including Lee, Graham and Tim Scott of South Carolina, began last week to contact wavering colleagues by phone. Kushner convened a call with business groups to praise the changes, and the White House circulated a USA Today op-ed that Kushner wrote with Tomas J. Philipson, a member of the White House Council of Economic Advisers. Donald Trump Jr. and Ivanka Trump, the president’s eldest son and daughter, blasted supportive messages to their millions of Twitter followers urging Congress to move quickly.

firststepslamduck181126Kushner reportedly plans to ask Trump to lobby McConnell directly by phone, but is waiting to line up more Republican support first, according to two people familiar with his thinking. Trump is not waiting for Kushner’s request, already using Twitter last Friday to urge McConnell and Minority Leader Chuck Schumer to pass the “badly needed” criminal justice reform bill.

McConnell has not yet budged. In a statement Friday, a spokesman for McConnell told The New York Times: “The support for, and length of time needed to move the new bill is not knowable at this moment.”

Earlier this month, McConnell told the Louisville Courier Journal, “We don’t have a whole lot of time left, but the first step is to finalize what proponents are actually for. There have been a lot of different versions floating around. And then we’ll whip it and see where the vote count is.”

Wall Street Journal, McConnell Controls Fate of Criminal-Justice Overhaul Bill (Nov. 20, 2018)

CNBC, Trump pushes Mitch McConnell and Chuck Schumer to pass ‘badly needed’ bipartisan criminal justice reform bill that’s stalled in the Senate (Nov. 23, 2018)


The New York Times, McConnell Feels the Heat From the Right to Bring Criminal Justice Bill to a Vote (Nov. 20, 2018)

The Hill, Graham urges GOP leadership to bring vote on criminal justice reform (Nov. 18, 2018)

– Thomas L. Root

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Cotton’s Price is Too High – Update for November 20, 2018

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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.

COTTON SAID TO HAVE NAMED HIS PRICE FOR SUPPORTING FIRST STEP

cotton181120If the modified FIRST STEP Act makes it to the floor of the Senate, a likelihood that is dimming day by day, Sen. Tom Cotton (R-Arkansas) has already staked out his price for abandoning his vitriolic opposition to the bill. Cotton and former Attorney General Jefferson Beauregard Sessions III, recently departed from DOJ, have been the most ardent foes of FIRST STEP and the Sentencing Reform and Corrections Act of 2017. Now, Sen. Cotton is the last man standing.

Cotton has maintained his opposition to FIRST STEP — a sweeping package of criminal-justice reforms designed to reduce incarceration rates and recidivism — despite broad bipartisan support, even provoking a Twitter war yesterday with Sen. Mike Lee (R-Utah), a former federal prosecutor who strongly supports FIRST STEP and co-sponsored the doomed SRCA (which donated several provisions to the modified FIRST STEP).

In defending his opposition on Twitter yesterday, Cotton accused FIRST STEP’s proponents of trying to push the measure through Congress without allowing time for an adequate review of its contents, and warned that it would grant early release to fentanyl dealers, violent criminals and “criminal immigrants” (as though non-citizens convicted of felonies are not promptly deported after their sentences are completed). Lee accused Cotton’s criticisms of being “fake news.”

pricesIt turns out that Cotton had a price, albeit it a high one, for remaining neutral on FIRST STEP. Ohio State University law professor Doug Berman wrote at his Sentencing Law and Policy Blog Sunday that Cotton previously offered to remain neutral or even support FIRST STEP if the bill were modified to (1) exclude heroin and fentanyl traffickers from early release for programming credits; (2) make the change from 47 to 54 days of good time non-retroactive; (3) adjust the weight of fentanyl under the drug trafficking statute (21 USC 841(b)) to reflect its potency; and (4) fix the Armed Career Criminal Act to undo the Johnson holding.

Berman wrote that the proposals (except for a part of the first one) were rejected by FIRST STEP sponsors.

Meanwhile, the Democrats’ recapture of the House in the midterm elections complicates FIRST STEP’s chances. Many progressive Democrats and advocacy groups opposed the FIRST STEP Act in the House and insisted that it include stronger sentencing reforms. Many of those same lawmakers would like to see the sentencing reforms in the Senate version be made retroactive, something that would almost surely reignite conservative opposition to the bill.

flipflop170920Sens. Cory Booker, D-New Jersey, and Kamala Harris, D-California, who are both running for president, have opposed criminal justice. Harris claims now to support reform, but she opposed it as California’s attorney general. Booker, who claims to support reform in principle, seems to be calculating whether its passage will help or harm his presidential campaign.

The Washington Examiner, however, predicted last week that “if Trump applies pressure, he will find that the numbers are there in Congress to defeat both Cotton’s faction and the Democrats in opposition – specifically, the ones blocking reform because it would hurt their own presidential bids if it passes during Trump’s presidency.”

Reason.com, Trump Endorses Criminal Justice Bill, Giving Momentum to Long-Delayed Reforms (Nov. 14, 2018)

Washington Examiner, Trump is right to embrace criminal justice reform (Nov. 15, 2018)

National Review, Mike Lee Accuses Tom Cotton of Spreading ‘Fake News’ on Criminal-Justice-Reform Bill (Nov. 19, 2018)

– Thomas L. Root

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