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Congress Lurching Toward Easing Compassionate, Elderly Offender Release? – Update for June 29, 2020

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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.

COVID-19 SPURS LAWMAKERS, CDC

corona200313Last week’s upsurge in COVID-19 cases nationally has begun to translate to an increase in Federal Bureau of Prisons inmates with coronavirus. A number that had dwindled last week to 1,256 by last Thursday shot back up to 1,429 as of last night. The inmate death count is 93, with COVID-19 present on 71 prison compounds throughout the BOP system (57% of all facilities).

As of yesterday, the BOP had tested 21,400 inmates, up about 12% from last week. The Bureau is still showing about 30% of inmates tested as positive for COVID-19, and it has only tested about now out of six inmates.

The noteworthy developments in COVID-19 last week, however, were not viral, but rather legislative and medical.

Legislative: Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), principal authors of the First Step Act, last week jointly introduced S.4034, bipartisan legislation to reform the Elderly Offender Home Detention (EOHD) Program and compassionate release.

Sen. Charles Grassley (R-Iowa)
                  Sen. Charles Grassley (R-Iowa)

EOHD, authorized by First Step as part of 34 USC § 60541(g), permits the BOP to place prisoners who are 60 years old or older, convicted of non-violent offenses, and with good conduct in home detention for the remainder of their sentences. Compassionate release, expanded by First Step, permits a court to reduce a prisoner’s sentence for extraordinary and compelling reasons, pursuant to 18 USC § 3582(c)(1).

S.4034, dubbed the COVID-19 Safer Detention Act, would reform the EOHD and compassionate release by:

• Clarifying that the percentage of time an inmate needs to qualify for EOHD should calculated based on an inmate’s net sentence, including reductions for good time. Currently, the BOP charily calculates it as two-thirds of the total sentence, not two-thirds of the 85% of the sentence the inmate actually serves. This change has already passed the House by voice vote in HR 4018, which las been languishing in the Senate since last Christmas;

• Cutting the percentage of time an inmate must serve to qualify for  EOHD from two-thirds of the sentence to one-half;

• Making “old law” federal prisoners (those convicted prior to 1988) eligible for compassionate release;

• Making DC offenders housed in BOP facilities eligible for EOHD;

• Making denial of EOHD release subject to court review; and

• Providing that during the pandemic, COVID-19 vulnerability is deemed a basis for compassionate release, a statutory change that would prevent the government from trying to convince courts (and some have been convinced) that the pandemic is hardly extraordinary; and

• Shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days. Currently, there is no judicial review of a BOP denial of EOHD, and inmates must ask the BOP to file for compassionate release on their behalf, and wait 30 days for an answer before filing themselves.

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

It is unclear whether the bill will pass, but sponsorship by a Democrat and Republican increases its odds. Hamodia reported that the bill “will likely be attached it to another bill, such as a stimulus bill or the police-reform bill currently being crafted by Sen. Tim Scott (R-S.C.)”

Medical: The other COVID-19 major development last week was medical. Last Thursday, the Centers for Disease Control and Prevention in Atlanta released updated COVID-19 guidelines to adjust the ages and expand the health problems that could make people more likely to have severe complications. The move comes amid the rising number of younger patients and new studies that show the effects of certain conditions.

The new CDC guidelines are crucial for prisoners, because courts determine whether movants for compassionate release qualify according to whether the inmates have one or more of the CDC risk factors.

First, the CDC walked back the “65 and over” risk factor, which many judges have interpreted as being a hard number, denying any health-concern consideration for a 64-year old but treating a 66-year old prisoner as knocking on death’s door.

death200330Instead, CDC highlights that all ages could catch the coronavirus but effects of the infection may get worse as people get older. “There’s not an exact cutoff of age at which people should or should not be concerned,” Jay Butler, the CDC’s deputy director of infectious diseases, said in a news briefing.

Of more relevance to prisoners, the CDC has found that risks associated with obesity start at a much lower level. The CDC had held that only the morbidly obese (body mass index of 42+) were at risk. Now, the CDC says anyone with a BMI of 30 or more is at risk.

Under the old standard, a 50-year old 6-foot tall man would have to weigh 310 lbs. to be at risk. Now, the same guy only has to tip the scales at 225 lbs. to exceed a 30 BMI.

Other conditions CDC identified as elevating COVID-19 risk included chronic kidney disease, COPD, weaker immune system due to organ transplant, heart conditions, sickle cell disease, type 1 and 2 diabetes, asthma, dementia, cerebrovascular diseases, cystic fibrosis, high blood pressure, liver disease, pulmonary fibrosis, and an inherited blood disorder known as thalassemia. The CDC also added pregnancy to the list.

A number of inmates have been denied compassionate release because judges decided their risk factors – such as hypertension and dementia – did not match the risk factors on the prior CDC list. There is no statutory limitation to the number of times an inmate may file for compassionate release (other than the judge’s ire, perhaps), meaning that the changing COVID-19 risk landscape offers prisoners a new shot at release.

COVID-19 Tracker: The Marshall Project is running a state-by-state COVID-19 prison tracker website, which includes “Federal” as a category. The site charts total cases, inmates and staff currently sick, deaths, and new cases by date.

S.4034, COVID-19 Safer Detention Act (introduced June 22, 2020)

Hamodia, New Senate Legislation Expands Early Release (June 23)

CDC, People of Any Age with Underlying Medical Conditions (June 25, 2020)

Medical Daily, CDC Updates Guidelines On Coronavirus Risk Factors (June 26)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (June 25)

– Thomas L. Root

Double Secret PATTERN Scoring – Update for June 1, 2020

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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.

BAIT AND SWITCH?

bait200601For those of you who just came in, the First Step Act, among many other things, mandated that the Federal Bureau of Prisons would employ a state-of-the-art risk and needs assessment program, intended to determine how likely an inmate was to be a recidivist upon release, and what programs would best address the factors making him or her likely to reoffend.

First Step provided that inmates could then earn credits for successfully completing the programming, credits that would enable them to go home earlier or obtain extra halfway house.

It was intended to be a win all around.

The Dept. of Justice conducted a 10-month long study-and-comment period beginning in April 2019 on how to best develop a risk and need assessment program that met First Step standards. That resulted in adoption of PATTERN (“Prisoner Assessment Tool Targeting Estimated Risk and Needs” for you folks who eschew acronyms). PATTERN employed a series of about a dozen static and dynamic factors to provide an aggregate number placing the inmate being tested in the minimum, low, medium or high category.

The original PATTERN factors were very publicly modified last January to lessen the risk that PATTERN might be unconsciously biased so that it returned higher scores for racial minorities. And with that, PATTERN was ready for use.

The BOP announced that all inmates had been rated by PATTERN, but a number of people from different institutions expressed frustration at getting their PATTERN score from BOP staff. A few swore their BOP case managers had no idea what PATTERN even was. Using the revised PATTERN matrix over the past four months, I have helped several people estimate their PATTERN scores. But in almost every case, when the people I helped received their actual PATTERN scores from the BOP, those scores were higher – sometimes much higher – and the reason for the discrepancy was a mystery.

topsecret200601We may now have an answer to the conundrum, but it is not a pretty one. ProPublica, an independent investigative journalism nonprofit, last week reported that it had obtained a 20-page policy document drafted by the BOP earlier this year that altered the PATTERN standards to make “it harder for an inmate to qualify as minimum risk.” The draft document, which does not appear to have been finalized, dramatically changes the maximum number of points for each risk category, according to ProPublica. “It really tanks the whole enterprise if, once an instrument is selected, it can be strategically altered to make sure low-risk people don’t get released,” Brandon Garrett, a Duke University law professor who studies risk assessment, was quoted as saying. “If you change the cut points, you’ve effectively changed the instrument.”

ProPublica said a BOP spokesman had confirmed that the Bureau had revised the risk categories without informing the public. The 2019 report was an “interim report,” ProPublica quotes the spokesman as having said. “The interim report mentioned that DOJ would seek feedback and update the tool accordingly, which was done.” The spokesman said the draft policy document “was not authorized for release.”

So, as Dean Wormer might have said, it’s like a double secret PATTERN score.

doublesecret200610
Ohio State University law professor Doug Berman wrote in his Sentencing Policy and Law blog that the ProPublica report was “yet another ugly example of how the Department of Justice acts more like a Department of Incarceration.”

The ProPublica report came in a week in which former Trump lawyer Michael Cohen was sent to home confinement, although he has served only a third of his sentence. The Cohen and Paul Manafort releases, a Marshall Project/NBC report said, are “raising questions about the BOP’s opaque process and its fairness.”

ProPublica reported that Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), who were First Step Act co-authors, said last week the DOJ’s inspector general has agreed to examine BOP’s compliance with Barr’s home confinement directive and overall response to the COVID-19 pandemic.

ProPublica, Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out (May 26)

Sentencing Law and Policy, “Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out” (May 27)

The Marshall Project, Michael Cohen and Paul Manafort Got to Leave Federal Prison Due to COVID-19. They’re The Exception (May 21)

– Thomas L. Root

Smarter Sentencing Act Back In The Senate Hopper – Update for November 19, 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.

SMARTER SENTENCING ACT RE-INTRODUCED IN SENATE
Sen. Mike Lee (R-Utah)
Sen. Mike Lee (R-Utah)

The Smarter Sentencing Act, a bill intended to further reduce drug mandatory minimum sentences, was reintroduced in the Senate last week by Sen. Richard Durbin (D-Illinois) and Mike Lee (R-Utah), both members of the Senate Judiciary Committee. As of the date of this report, we have no bill number to associate with the legislation.

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

A lot of what had been contained in prior versions of the SSA, a bill which has been introduced in every Congress since 2013, was included in the First Step Act. What the current version contains is unclear, because the text of the proposed bill has not yet been released. However, Durbin’s office said “the central remaining sentencing reform in the Lee-Durbin legislation would reduce mandatory minimum penalties for certain nonviolent drug offenses.”

In the last iteration of the bill, S.1933 (115th Congress, 2017-18), the bill proposed an expanded “safety valve” under 18 USC § 3553(f) to allow a court to impose a sentence below the statutory mandatory minimum for an otherwise eligible drug offender who has three or fewer criminal history points. This change was incorporated into the First Step Act. Also, last year’s SSA reduced mandatory minimum sentences for drug offenses specified in 21 USC § 841(b)(1)(A) and (b)(1)(B):

•  from 10 years to 5 years for a first-time high-level offense (e.g., one kilogram or more of heroin),

•  from 20 years to 10 years for a high-level offense after one prior felony drug offense,

•  from life to 25 years for a high-level offense after two or more prior felony drug offenses,

•  from 5 years to 2 years for a first-time low-level offense (e.g., 100 to 999 grams of heroin), and

•  from 10 years to 5 years for a low-level offense after one prior felony drug offense.

The First Step Act incorporated the life-to-25 year and the 20-to-15 year reductions, but not the remainders.

Additionally, last year’s SSA made existing mandatory minimums inapplicable to a defendant who functions a courier; and establishes new, shorter mandatory minimum prison terms for a courier.

The current version of the Smarter Sentencing Act “gives federal judges the authority to conduct individualized reviews to determine the appropriate sentences for certain nonviolent drug offenses,” Durbin said in a press release.

BILL-DOA191120Lee said, “The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses, while enabling nonviolent offenders to return more quickly to their families and communities.”

The bill is cosponsored by ten Democratic senators, including three presidential contenders, making the likelihood it will pass in the Senate virtually zero.

The Justice Roundtable, Durbin, Lee Reintroduce Smarter Sentencing Act (Nov. 16)

– Thomas L. Root

A Lesson in Government – Update for October 17, 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.

HOW (AND WHY) OUR LAWS ARE MADE

howlawsmade191018Remember government class in high school? Not so much, huh? Back to school time, boys and girls… Here’s a real-life example of how legislation is written:

In 2010, Congress passed the Fair Sentencing Act, reducing the 100-1 ratio of crack to powder cocaine to 18-1. Under the old regime, a defendant with 1 gram of crack cocaine was deemed to have 100 grams of powder cocaine. Because sentences vary in proportion to the amount of controlled substance possessed, a defendant (almost always black) with a slight amount of crack was punished much more severely than a defendant (usually white) with a slight amount of powder coke.

The FSA as proposed would have eliminated the disparity altogether, so that the mandatory minimum for a kilo of powder was the same for a kilo of crack. The House passed the bill with a 100-1 ration reduced to 1-1. But when the bill finally passed the Senate, 1-1 has mystically become 18-1. No one could figure out where the 18-1 ratio came from. Careful deliberation? Scientific studies?

sessions170811“We could find no objective proof that crack cocaine was in fact more dangerous than powder cocaine,” said Sen. Richard Durbin (D-Illinois), sponsor of the Senate version of the bill, explaining the rationale behind the original draft. But then-Sen. Jefferson Beauregard Sessions III (R-Alabama) was opposed to changing the ratio at all, believing that the crime rate was falling because more people were being locked away for a long time (as well as thoroughly enjoying the prospect of those dangerous black criminals from the hood being warehoused in federal prisons for decades on end).

The day the bill was to come up for a committee vote, Durbin ran into Sessions at the Senate gym. Durbin recounted, “I said to Jeff, “come on, Jeff. We can’t just stop the conversation and see this bill die in committee.” said Durbin. “If you won’t do this 1-1 deal, what deal will you do?”

Sessions offered lowering 100-to-1 to 25-to-1. Durbin countered, 10-to-1. No dice, Sessions said.

What about 15-to-1?

“I’ll take 18-to-1,” Durbin recalls as Sessions’ response.

“We moved from 100-to-1 to 18-to-1 because of a conversation in the Senate gym, that is literally how it happened,” said Durbin.

violent160620A further lesson, this one on what influences legislators. It does not matter how many success stories arise from people who got out early because of the First Step Act’s retroactivity for crack defendants. The public will be reminded endlessly of the one failure.

Stories last week continued to highlight Joel Francisco, released on a sentence reduction last spring, who is a fugitive after allegedly stabbing a man to death in a Providence, Rhode Island, hookah lounge. The Providence Journal again noted that “the life sentence was reduced to time served under a bipartisan criminal justice reform law signed by President Trump in December.”

The conservative American Thinker was more graphic:

Cmdr. Thomas Verdi, the deputy chief of the Providence Police Department, who was familiar with Francisco, warned federal officials that the ‘crown prince of the Almighty Latin Kings’ gang… had a ‘propensity for violence…” At the news of his release, Verdi expressed his doubts about Francisco’s rehabilitation. He was right. Last Wednesday, Francisco, 41, stabbed 46-year old Troy Pine to death.

It only takes one failure, and a compliant news media, to poison the public on sentencing reform.

An opinion piece in The Hill this week, however, tried to put the Francisco matter in context: 

[I]f Francisco is guilty of this crime, he is the exception not the norm. Thousands of individuals are being released from custody under the First Step Act, and many more who have worked hard to prove their rehabilitation stand to benefit in the months to come. While it’s still too early to assess how many of these individuals will commit a new offense, there has hardly been a widespread spike in crime.  

The criminal justice system is not perfect; there will always be cases where someone returns to crime after re-entering society. The only way to guarantee that this doesn’t happen – the fear-filled, totalitarian way – is to imprison everyone who commits a crime for life. The pragmatic, limited-government way is to continue reforming the criminal justice system until we’ve achieved a balanced measure of accountability and rehabilitation.

Peoria, Illinois, Journal Star, Sen. Dick Durbin recalls how he and Jeff Sessions struck deal on Fair Sentencing Act in Senate gym (Oct. 10, 2019)

Providence Journal, Heartbroken father urges son, accused of fatal Providence stabbing, to turn himself in (Oct. 9, 2019)

American Thinker, Trump-supported early prison release law draws blood (Oct. 10, 2019)

The Hill, Don’t give up on the First Step Act (Oct. 17, 2019)

– Thomas L. Root

Dept. of Low Expectations – Update for October 8, 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.

ONE BILL GETS REPORTED FROM ONE COMMITTEE, AND EVERYONE THINKS HE’S GOING HOME

release191008A few readers complained last week that I had not reported the House Judiciary Committee’s vote that sent H.R. 4018 to the House floor. H.R. 4018 is a bill that would modify the Elderly Offender Home Detention Program (34 USC § 60541(g)(5)) to let those over-60 year old prisoners qualify for home detention after doing two-thirds of their net sentence rather than their gross sentence.

Currently, to qualify for the First Step Act’s expanded EOHD program, you must be 60 years old and have served two-thirds of your whole sentence. In other words, if you were sentenced to 100 months, you have to serve 67 months before you go home on home detention, and then you stay in detention until you reach 85 months, when you are released.

H.R. 4018, a single-sponsor bill, would qualify a 60-year old prisoner after he or she did two thirds of the net sentence. If you were sentenced to 100 months, you get out after 85 months with good time. H.R. 4018 would put you in the EOHD with two thirds of 85 months. Thus, you would go home after 57 months, and stay on home detention until 85 months.

longodds191008The House Judiciary Committee reported the bill favorably on Sept. 10 by a 28-8 vote. Nevertheless, Skopos Labs – which tracks federal legislation – gives the bill a 3% chance of becoming law. The legislation, with only 10 House co-sponsors, had little chance of being brought up for a Senate vote even before the impeachment talk ramped up. Recall how the First Step Act, with the House passing a very pro-prisoner version, barely made it to the Senate floor. That bill, with over 40 Senate co-sponsors and President Trump lobbying for passage, finally passed as a well watered-down measure in the closing hours of the Senate.

I did not mention H.R. 4018 for the same reason I did not mention the proposed Prohibiting Punishment of Acquitted Conduct Act of 2019, introduced Sept. 26 by Senators Chuck Grassley (R-Iowa) and Dick Durbin (D-Illinois). The bill would prohibit federal courts from considering acquitted conduct at sentencing, defining ‘acquitted conduct’ to include “acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.”

Grassley, who is Senate president pro tempore, said, “If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment.” Currently, the Guidelines are written to run up the sentence with acquitted conduct, and judges do it all the time.

mcconnell180219This bill, S.2566, already has five co-sponsors, two Democrats and three Republicans. Grassley has a lot of horsepower in the Senate leadership. Yet, like H.R. 4018, it has no more than a ghost of a chance of passage. Senate Majority Leader Mitch McConnell (R-Kentucky), controls what bills reach the Senate floor for a vote. He has been an opponent of any prison reform, and only brought First Step to a vote because of White House pressure. Now, with President Trump soured on criminal justice legislation and preoccupied with re-election and impeachment, there won’t be any White House support for bringing any criminal justice measure to a Senate vote.

Stories like this don’t help: Last Friday, the Providence, Rhode Island, Journal reported that Joel Francisco, released from a life sentence for crack because of the First Step Act, is wanted for stabbing a man to death in a hookah bar. Remember Wendell Callahan? The Sen. Tom Cottons (R-Arkansas) of the world are always gleeful to have a poster child against sentencing reform like this fall into their laps.

H.R.4018 – To provide that the amount of time that an elderly offender must serve before being eligible for placement in home detention is to be reduced by the amount of good time credits earned by the prisoner (reported favorably by House Judiciary Committee, Sept. 10)

S. 2566: A bill to amend section 3661 of title 18, United States Code, to prohibit the consideration of acquitted conduct at sentencing (Introduced Sept. 26)

Providence, Rhode Island, Journal, He was released early from prison in February. Now he’s wanted for a murder on Federal Hill (Oct. 4)

– Thomas L. Root

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

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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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Trump Backs FIRST STEP, but Future Remains Uncertain – Update for November 15, 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.

PRESIDENT BACKS FIRST STEP

In a late afternoon press conference yesterday, President Trump threw his support behind the FIRST STEP Act, increasing the likelihood that the legislation will be passed by the Senate.

firststep1800509Several people involved in the negotiations had cautioned on Tuesday that the emerging agreement required an explicit endorsement from Trump in order to pass. Supporters of the bill would begin gauging support for the bill later this week, officials said, if Trump signed off on the measure.

Trump congratulated his own administration for making FIRST STEP happened. That claim may be true, because an August peace conference sponsored by the White House got Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois) – who had been hostile to FIRST STEP because it omitted sentencing reform of the type they championed in the Sentencing Reform and Corrections Act of 2017 – on board.

Senate Majority Leader Mitch McConnell (R-Kentucky), who has been quiet – if not downright dismissive – on the merits of FIRST STEP, appears unlikely to take the lead in formally rounding up support, however. And some liberal Democrats may not ultimately endorse the compromise product, fearing they have conceded too much to the right on the sentencing changes. Certainly, spirited opposition from the right is expected from perennial reform foe Sen. Tom Cotton (R-Arkansas).

cotton171226McConnell is expected to order a whip count later this week, and has pledged to bring the bill to the floor for a vote if the count shows 60 votes in favor of the bill. Trump’s support came after several law enforcement associations announced their backing for the legislation.

The National District Attorneys Association, which represents 2,500 district attorneys and 40,000 assistant district attorneys, became the latest law enforcement organization to support the bill, according to a letter the group’s president addressed to Trump. “This legislation is a bipartisan effort to address front-end sentencing reform and back-end prison reform, and our association is appreciative of your efforts to partner with the Nation’s prosecutors on this important matter,” association President Jonathan Blodgett wrote in the letter, obtained by CNN.

Washington Post, Trump endorses bipartisan criminal-justice reform bill (Nov. 15, 2018)

CNN, Trump to announce support for criminal justice overhaul proposal (Nov. 14, 2018)

Wall Street Journal, Trump Supports Changes to Criminal-Justice System (Nov. 14, 2018)

– Thomas L. Root

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Senate Reconvenes with FIRST STEP Act on Its Plate – Update for November 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.

IT’S THE WITCHING HOUR FOR FIRST STEP

The Senate reconvenes today for what promises to be a busy lame-duck session, one that may be easier for Republicans to manage because they retained control of the Senate after last week’s bruising mid-term election.

firststep180814The biggest task facing the Senate is to address the budget ahead of a December 7th deadline. But equally important to 5,000 of our readers who happen to be guests of Uncle Sam’s Bureau of Prisons, the Senate has a final chance before the end of the year to pass a bill that combines prison and sentencing reforms calculated to improve the lives of more than 180,000 federal inmates while increasing the odds that they will never be inmates again.

The FIRST STEP Act (S. 2795), a pronounceable acronym for the “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act,” offers prison programs in an attempt to reduce inmates’ likelihood to re-offend after they’ve been released. The House approved the bill in May. In August, the White House brokered a compromise among several senators, including Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois), to include some sentence reform provisions from the Sentencing Reform and Corrections Act of 2017 (S.1917), which the Senate Judiciary Committee approved last winter. 

The amended Act will reportedly be introduced in the Senate today.


The changes that would flow from passage of FIRST STEP are incremental but significant: Increases in compassionate release of terminally ill inmates: bans on restraints for pregnant inmates during childbirth, cuts to some mandatory minimum sentences, greater leeway for judges imposing sentences, more good time, elderly inmate home confinement, and programs that let inmates earn more time in halfway house and home confinement.


But some tough decisions and hard bargaining lie ahead. The bill is hotly debated and opposed by some conservatives who worry it may release dangerous people prone to reoffend and overburden local police. There is also fear that mixing sentencing reform with prison reforms, which have generally had more support among lawmakers, will threaten chances of passing a criminal justice bill this year before having to start all over again with a new Congress.

Georgetown University law professor Shon Hopwood said he thinks legislators have found a compromise that can pass Congress and be signed into law. FIRST STEP will not bring retroactive relief to that many inmates, but Hopwood still says the reforms would bring about concrete changes in the lives of many federal inmates.


grassley180604Sen. Grassley said last month he thinks the plan to combine the FIRST STEP with his own SRCA can get through the Senate. “We’ve already worked out what I think is something that can move in the Senate if we can get it up, and it would be both sentencing reform and prison reform,” Grassley said. While he did not elaborate on the nature of the agreement, he said he’s been in talks to get the compromise legislation moving in the lame-duck session between November’s elections and the end of the current Congress in January.

A committee aide said the in-the-works deal rolls in several elements of the SRCA, including reductions in mandatory minimums, increased flexibility for judges to set lower sentences, change to how 924(c) enhancements for drug crimes are calculated and Fair Sentencing Act of 2010 retroactivity.

Conservative Republicans who oppose FIRST STEP lost traction last week with the forced resignation of Attorney General Jefferson Beauregard Sessions III, who had previously infuriated Grassley with his unsubtle lobbying to kill SRCA in Committee. Last week, the Fraternal Order of Police, a vigorous opponent of SRCA last March, issued a press release supporting the amended FIRST STEP.

What’s more, some influential conservative voices favor the amended FIRST STEP Act. The National Review said last Friday that “by a 360–59 vote, the House adopted prison reform via the FIRST STEP Act. The Senate should add sentencing-reform language before full adoption.”

There is a chance some controversial elements of prison reform, such as increased “good time,” could still fall by the wayside in order to mollify some conservative concerns with the existing legislation, according to Rep. Doug Collins (R-Georgia), the House FIRST STEP Act (H.R. 5682) sponsor. But not including sentencing reform in the package could alienate Democrats needed to ensure the compromise legislation passes both chambers. Longtime sentencing reform advocate Sen. Durbin and other Democrats like Sen. Cory Booker (D-New Jersey) and Sen. Kamala Harris (D-California) had previously opposed FIRST STEP because it did not include sentencing reform. The three instead pushed for the Grassley/Durbin-sponsored SRCA, although they don’t appear to have been involved in crafting the Senate Judiciary Committee chairman’s compromise legislation.


cornyn181113Sen. John Cornyn, R-Texas, the majority whip and main sponsor of the Senate version of FIRST STEP, said last month that Senate Majority Leader Mitch McConnell (R-Kentucky) will have a tight schedule to fill, between confirming the backlog of two dozen judges and keeping the government open ahead of a Dec. 7 funding deadline. “Certainly Sen. McConnell is going to prioritize federal judicial nominations, but if there is the will to move on legislation, that would be included,” Cornyn said. However, with Republicans not just retaining, but building on their majority in the Senate for the next Congress, the pressure may be off McConnell to push through judicial appointments before next term.

Those advocating for reform have an ally in the White House: President Donald Trump’s son-in-law Jared Kushner has championed passage of FIRST STEP for months, and Trump himself has continued to say he would support the Act.

A CNN report last week suggested continuing White House interest in FIRST STEP. CNN said that former New Jersey governor Chris Christie, whom CNN says is a front-runner to be President Trump’s new attorney general, attended a “law enforcement roundtable on prison reform efforts at the White House on Thursday morning.” Christie then met privately with the President’s son-in-law and senior adviser Jared Kushner to further discuss prison reform issues. An administration official said Kushner and Christie have “a really close and good working relationship, particularly as it relates to prison reform.”


Some reform advocates worry that pushing too hard to add too much to a reform package could jeopardize the progress made by FIRST STEP. Kevin Ring, president for FAMM, said there are real people who will have their lives improved by the bill, and they could easily end up with no legislation at all. “We’d greatly prefer having the sentencing be a part of it, but we don’t want to hold out for everything and end up with nothing,” he said.


For Hopwood, the next two months presents a choice between trying to help as many people as possible now and going for the long haul. “What you’re saying when you hold out for systemic reform is, ‘We don’t want to help the lives of people who are in the system for 20 years,’ because it might be that long,” Hopwood said.

Law360, Hard Decisions Loom In Lame-Duck Push For Sentencing Reform (Nov. 4, 2018)

CNN, Trump considering Christie, Bondi, Acosta for attorney general (Nov. 8)

National Review, The Lame-Duck Session Should Sprain Trump’s Wrist (Nov. 9)

– Thomas L. Root

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Kushner Unrelenting On Criminal Justice Reform – Update for September 4, 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.

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KUSHNER PUTS PRESSURE ON SENATE TO PASS REFORM BILL

kushner180622Jared Kushner, son-in-law and senior advisor to the President, told reporters last week that the White House is “very close” to finalizing a criminal-justice-reform package that combines the Sentencing Reform and Corrections Act (S.1917) and the FIRST STEP Act (S.2795), to break a Senate logjam due to internal Republican Party divisions. The House passed a pared-down criminal-justice bill earlier this year with significant bipartisan margins.

Kushner has worked for months with key House lawmakers and senators to shepherd through a legislative package that reforms federal prison policy and mandatory-minimum sentencing laws. The measure is still far from being signed into law and otherwise allies of the White House, such as Sen. Tom Cotton (R-Ark.), are determined to kill it.

Ten days ago, Kushner turned up the pressure on Majority Leader Mitch McConnell (R-Kentucky) to bring the revised FIRST STEP Act to a vote. Kushner is touting a Kentucky poll showing that 70% of those surveyed support FIRST STEP to convince McConnell to bring the issue to a vote. Kushner told the media he has spoken several times with Trump about FIRST STEP, which passed the House in May on a 360 to 9 vote.

The legislation has been met with divisions in the Senate where critics, including Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois) say it does not address the “front end” problem of longer prison sentences which have fueled decades of growth in the federal prison population. 

A recent White House-driven compromise to the Senate version of FIRST STEP would loosen mandatory minimum sentences for repeat non-violent drug offenders and scrap the “three-strike” mandatory life in prison provision. A spokesman for McConnell said he discussed the hybrid bill 10 days ago week with Kushner, Grassley, and Sens. John Cornyn (R-Texas) and Mike Lee (R-Utah).

mcconnell180219McConnell “made it clear” after the meeting that the hybrid FIRST STEP/SRCA won’t come up for a vote before the November election. McConnell’s spokesman. said that although McConnell did not commit to holding a vote, “proponents of the legislation will continue to discuss the issue with their colleagues followed by a whip count after the October session to accurately assess the Conference’s view on the issue.”

The Washington Post, Jared Kushner ramps up push for criminal justice reform (Aug. 30, 2018)

Lexington, Kentucky, Herald-Leader, Jared Kushner joins campaign to press McConnell on criminal justice reform (Aug. 30, 2018)

– Thomas L. Root

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After Wild Week, Criminal Justice Reform Postponed Until November, If Then – Update for August 27, 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.

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TOPSY-TURVY WEEK IN WASHINGTON FOR CRIMINAL JUSTICE REFORM

Last week, the editor of this newsletter took a vacation away from the Internet and cellphone coverage for the first time in years. After all, the last weeks of August are always quiet in the courts and halls of Congress.

scotus170627
The Supreme Court may be gone for the summer, but no one else in Washington seems to be…

What a mistake leaving town turned out to be…

The week started out well. Senate Minority Whip Richard Durbin (D-Illinois), the No. 2 Senate Democrat, said he could support the compromise criminal justice reform bill that Republican colleagues presented to President Trump and senior White House officials three weeks ago. That bill, which combined four sentencing changes with FIRST STEP Act, is a compromise pushed by senior White House adviser Jared Kushner in order to win the support of Senate Judiciary Committee Chairman Charles Grassley (R-Iowa). Grassley, co-sponsor of the Sentencing Reform and Corrections Act of 2017 (which was approved by the Committee last February), has opposed FIRST STEP because of the absence of sentencing reform provisions that change some mandatory minimums.

oddcouple180702Durbin’s announcement made him the first Democratic senator to support the legislation, which is key to assuring Senate passage.

Two days later, the news site Axios reported that Senate Majority Leader Mitch McConnell (R-Kentucky) agreed in a meeting with Kushner, Grassley, Sen. John Cornyn (R-Texas) and Sen. Mike Lee (R-Utah) to bring the compromise bill to a vote if an informal review showed that the measure had at least 60 votes in support. Axios admitted that McConnell’s spokesperson said a commitment to a vote had not been made, but asserted that another source said the Majority Leader came just shy of promising a vote.

Axios also reported President Trump had said earlier on Thursday that while he will not endorse the bill before the midterms, he was open to the compromise currently being negotiated, according to a senior administration official and Sen. Lee. The White House said in a statement “the President remains committed to meaningful prison reform and will continue working with the Senate on their proposed additions to the bill.”

While many, including Lee, wish the vote would occur today, McConnell’s willingness to bring it to a vote if the support is there (and earlier reports are that the compromise would collect 80 votes or more) is encouraging. The delay is entirely political: “I think the sentencing reforms are still controversial and divide Republicans,” Cornyn said. “I just don’t see the wisdom of dividing Republicans on a contentious matter like that before the election.

sessions180322Then, on Friday, the Washington Free Beacon reported that Trump told Attorney General Jefferson Beauregard Sessions III and Kushner the day before that he was opposed the FIRST STEP compromise, in large part due to an exception he believes it carves out that may release convicted drug traffickers early. A statement released by the Dept. of Justice seemed to confirm that. DOJ said: “We’re pleased the president agreed that we shouldn’t support criminal justice reform that would reduce sentences, put drug traffickers back on our streets, and undermine our law enforcement officers who are working night and day to reduce violent crime and drug trafficking in the middle of an opioid crisis.”

The Free Beacon story, however, said that Trump had later walked back his opposition, and told Grassley and Kushner that he was “willing to take up prison/sentencing reform” after the election.

The Free Beacon said “McConnell is famously skittish about dividing his caucus, and so is still unlikely to bring a bill to the floor if it does not have Republican caucus support. Trump’s backing—once held out, and now withdrawn—would almost certainly be vital to getting more Republicans on board.”

dontknow180828So the compromise may be voted on after the mid-term elections the first week of November. Or it may not. Trump may support it. Or he may not. The Democrats may support the compromise. Or they may not.

Of course, last week also brought the conviction of Paul Manafort, Trump’s former campaign chairman, on fraud charges unrelated to the Trump campaign, and the guilty plea (and probable cooperation agreement with the Feds) of Trump’s former lawyer, Michael Cohen. That is bad news for the defendants and for Trump, but to the extent it makes Trump angrier and more fearful of the Justice Department, it probably increases the chances Trump will support criminal justice reform.

The Hill, Democratic leader gives boost to criminal justice reform compromise (Aug. 21, 2018)

Axios, McConnell commits to moving forward on criminal justice bill after midterms (Aug. 23, 2018)

Washington Free Beacon, Trump Strongly Opposed to FIRST STEP (Aug. 24, 2018)

– Thomas L. Root

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