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Congress is Back to Work, with Criminal Justice Reform Still Pending – Update for July 9, 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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CONGRESS RETURNS TO TOWN WITH CRIMINAL JUSTICE REFORM STILL ON ITS PLATE

The House and Senate were not in session last week, as legislators celebrated the July 4th holiday however they do it. The Senate returns today, and the House tomorrow, with the criminal justice debate still hot, and an announcement about a new Supreme Court justice looming.

grassley180604A recap: The House has passed the FIRST STEP Act, which proposes a number of prison reforms, including a full 54 days a year of good time, better compassionate release and elderly prisoner release policies, and credits for programming that can be used to earn more halfway house and home confinement. The bill is stalled in the Senate, because the senior Republican and Democrat on the Judiciary Committee – Charles Grassley (R-Iowa) and Dick Durbin (D-Illinois) – do not want the FIRST STEP’s prison reform without sentencing reform bundled along with it.

The sentencing reform proposals are contained in the Sentencing Reform and Corrections Act of 2017. SRCA proposes to make the Fair Sentencing Act retroactive for crack defendants sentenced before the 2010 FSA, to unstack 18 USC 924(c) sentences, and to reduce a substantial number of the mandatory minimums in 21 USC 841(b), which are generally known as “851 enhancements.” As of the end of June, Grassley and Durbin were pressing President Trump to support SRCA as well as FIRST STEP, and we were observing that as of 9 pm this evening (when Trump names his Supreme Court nominee), he is going to need a lot of help from Grassley to get the nominee through the Judiciary Committee.

Trump is needed, because all indications are that Senate Majority Leader Mitch McConnell does not intend to bring FIRST STEP or SRCA to a Senate vote without White House approval. If the bills are not voted on by the end of the year, they will die, and the whole process will have to start over next January.

sessions180215Of course, Attorney General Jefferson Beauregard Sessions III is dead set against any reduction of mandatory minimums or extension of the FSA, and his conflict with Jared Kushner, Trump’s son-in-law and advisor, over reform has not helped McConnell find his backbone. In a thoughtful opinion piece in The Washington Post last Thursday, Michael Gerson noted the success Texas have had with modifying harsh mandatory minimums, and suggested that the evidence means

that the criminal-justice views of the attorney general are far to the right of the Texas state legislature, which puts him in small and disturbing company. It means that Sessions’ opposition to sentencing reform is rooted in vindictiveness and ideology rather than a conservative respect for facts and outcomes. And it means that Sessions has learned nothing from federalism, which he seems to respect only when it fits his preconceptions.

Gerson argued that prison reform should succeed because of “trans-partisanship,” which is defined as “agreement on policy goals driven by divergent, deeply held ideological beliefs.” Liberals see racism and unfairness in the criminal justice system. Fiscal conservatives see wasted resources. Religious activists see damaged lives. Gerson wrote, “All these convictions converge at one point: We should treat offenders as humans, with different stories and different needs, instead of casting them all into the same pit of despair.”

trainwreck180305Also speaking practically, the magazine American Conservative last Friday noted that mandatory minimums and other policies that make America the incarceration capital of the world, a product of the lock-’em-up mentality, have “tarnished the image of Republicans and conservatives in the minds of many. Though Republicans have greatly increased their political power in recent elections, they have nevertheless alienated many of the fastest growing segments of the electorate, casting a pall across the impressive electoral successes of the past decade.”

In a lengthy article, the authors called for the “extension of conservative principles to criminal justice policies.” They observed that “right-leaning organizations, armed with polling data that show significant backing from many conservatives, are mobilizing on criminal justice issues. It’s time to leverage these efforts to rebuild the conservative identity. Perhaps no other policy area holds more potential than criminal justice reform.”

Washington Post, No more pits of despair. Offenders are still humans (July 4, 2018)

The American Conservative, Where the Right Went Wrong on Criminal Justice (July 6, 2018)

– Thomas L. Root

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Sen. Grassley is Relevant Again, and So is SRCA – Update for July 2, 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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SENATORS SEEK TO RECRUIT TRUMP TO BACK SENTENCE REFORM

The Senatorial Odd Couple – conservative Sen. Charles Grassley (R-Iowa) and liberal Richard Durbin (D-Illinois) – held a joint press conference last Tuesday to try to recruit President Trump as an ally to help move the Sentencing Reform and Corrections Act of 2017 through the Senate.

oddcouple180702Grassley and Durbin – No. 1 and 2 on the Senate Judiciary Committee – urged the president to get involved in the reform process — “in a positive way,” Durbin pointedly suggested. “We need for the president, the president of the United States, to say this is a priority for us as well. Let’s do this criminal justice reform, to include prison reform… What a breakthrough that would be.”

Grassley noted that Trump frequently tweets about Senate Democrats needing “to do something.” He said criminal justice reform is tailor-made for Trump’s action agenda. “It kind of is a good combination between what’s good politics and what’s good policy… This is an opportunity for the president to have a win. It’s an opportunity for our justice system to have a win. … It would help a lot if the president would engage on this very important issue,” Grassley said. 

Attorney General Jefferson Beauregard Sessions III - death to misdemeanants?
Attorney General Jefferson Beauregard Sessions III – death to misdemeanants?

Grassley has engaged Attorney General Jefferson Beauregard Sessions III and White House adviser and Trump advisor and son-in-law Jared Kushner on the issue, which has probably left the Senator 1-1: Kushner is a supporter, while Sessions would likely support expanding the death penalty to cover misdemeanors.

Grassley said Sessions told him that SRCA would not undercut the administration’s “tough on crime” stance. “I thought that I determined an opening. Well that opening hasn’t materialized and obviously I didn’t make an impact,” Grassley said.

That may change very soon. Grassley has suddenly become very important to Donald Trump, because it is the Judiciary Committee that will conduct hearings on Trump’s Supreme Court nominee, who will be announced next Monday. The Republicans badly want to confirm the new justice, who will replace the retiring Anthony Kennedy, and Grassley, as chairman of Judiciary, holds a few of the keys to the kingdom.

That’s good news, because criminal justice reform has largely stalled on Capitol Hill. The House passed the FIRST STEP Act, which only addresses prison reform, and Senators John Cornyn (R-Texas) and Sheldon Whitehouse (D-Rhode Island) have introduced a similar bill in the Senate. But Grassley and Durbin are pushing broader criminal justice reform legislation that include both the sentencing reform changes in SRCA and the prison reform changes of FIRST STEP.

kushner180622Last Tuesday, Kushner met with Cornyn and Whitehouse, as well as FIRST STEP sponsors Reps. Doug Collins (R-Georgia) and Hakeem Jeffries (D-New York) from the House of Representatives, to strategize on how to move FIRST STEP forward following House passage last month, according to a report on the Axios news website.

SRCA has the backing of more than a fourth of the Senate, and Grassley and Durbin reiterated last Tuesday that they believe they have the 60 votes needed to pass the legislation in the Senate if they are able to get the bill to the floor. Bringing the bill up for a vote requires the approval of Senate Majority Leader Mitch McConnell (R-Kentucky). McConnell will do what Trump wants him to do. Trump needs Grassley’s cooperation, and Grassley needs Trump’s backing on comprehensive criminal justice reform. Trump does not much need Sessions, whom has been in Trump’s doghouse for well over a year.

fingers180702Trump’s recent pardons and commutations suggests that maybe the Russia probe has sensitized him to what it feels like to have the Dept. of Justice and FBI gunning for you. Amy Povich of the CAN-DO Foundation said of Trump, “I am encouraged that for the first time we are seeing somebody who possibly understands the complexities of the Office of the Pardon Attorney being controlled by the Department of Justice. There are a lot of dirty cases and they don’t want those to see the light of day, so they let their prosecutors have the largest voice as to which cases go over there. Trump now apparently understands this and that is why he’s asking for a list. We are honored to have been asked to provide a list, so fingers crossed.”

Risk-assessment company Skopos Labs sets the odds of FIRST STEP becoming law at 82% as of today, and rates SRCA’s chances at 63%.

The Hill, Bipartisan senator duo urges Trump to back criminal justice bill (June 26, 2018)

Axios, Jared Kushner huddles with Congress on prison reform (June 26, 2018)

Salon, Is there real hope for prison reform? Nonviolent offenders and the “Kim Kardashian moment” (June 29, 2018)

– Thomas L. Root

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More Steps Taken on FIRST STEP? – Update for June 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. 

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THE WIND MAY BE SHIFTING

imageWe have previously reported that the prison reform bill named FIRST STEP Act, H.R. 5682, faces a tough battle in the Senate, starting with the unwillingness of Senate Majority Leader Mitch McConnell to bring it to a vote, and Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) pledging that no FIRST STEP Act will pass without the Sentencing Reform and Corrections Act (S.1917) being written into FIRST STEP’s provisions.

But it was a wild week in the nation’s capital last week, and as a result, the goal may be closer than ever. In one of Washington’s most interesting plot twists, historic criminal justice reform legislation now finds itself atop Trump’s policy agenda, and one floor vote away from his signature.

A detailed story in Foreign Affairs last week suggested that a deal that includes some first-step changes to harsh sentencing laws is now likelier in the wake of the Alice Johnson commutation of the life sentence of Alice Marie Johnson. Even Sessions has said he could support reforms to “stacking” provisions in 18 USC 924(c), which results in first-timers getting three or more stacked 924(c) enhancements for a single course of conduct, with sentences of 62 years or more for what should be a 12-year bit.

While the SRCA proposal to reform what are generally (and misleadingly) called “851” enhancements (provisions in 21 USC 841(b) that double mandatory minimum sentences for prior state felony drug convictions), might not make it, a compromise could include a broader safety valve, which would give judges more discretion to depart from mandatory minimums when circumstances warrant.

compromise180614Senators Mike Lee (R-Utah) and Rand Paul (R-Kentucky), both longtime SRCA supporters, will be key brokers in any deal. Lee could help bring Democrats such as SRCA supporters Richard Durbin (D-Illinois) and Cory Booker (D-N.J.) to the table, and Paul shares a backyard with McConnell, who will determine if the bill even gets a vote.

Also heartening was McConnell’s unpopular announcement last week that the Senate will not take the month of August off, as it usually does, but instead stay in town to complete a lot of unfinished business.

cotton171226All is not roses, however. Senator Tom Cotton (R-Arkansas), one of the few Americans who believes the country has an “underincarceration problem,” has mounted a guerrilla campaign to undermine FIRST STEP’s support on the right. For example, he is reportedly pushing law-enforcement groups to oppose the bill. His efforts have borne fruit recently, as the Federal Law Enforcement Officers Association withdrew its endorsement of the bill after being pressured by Cotton’s office. Also, last week, the National Association of Assistant U.S. Attorneys slammed FIRST STEP, but that group hardly needed Cotton’s urging to do so.

Foreign Affairs, The Art of a Deal on Criminal Justice Reform (June 8, 2018)

Townhall, The FIRST STEP Prison Reform Bill Should Be a No-Brainer (June 8, 2018)

National Review, A Prison-Reform Bill Passed the House 360–59. It’ll Probably Die in the Senate (June 6, 2018)

– Thomas L. Root

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Through a Glass Darkly – FIRST STEP Act’s Chances in the Senate – Update for May 29, 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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FUTURE OF THE FIRST STEP ACT IS FAR FROM CLEAR

breeze180530Supporters of a federal criminal justice system overhaul seemed well on their way to victory after the FIRST STEP Act breezed through the House last week on an impressive bipartisan vote. The Act, H.R. 5682, has strong administration backing, including the fingerprints of Jared Kushner, the presidential adviser and son-in-law. It has some important Senate supporters. But a lot of informed people are still predicting that neither the FIRST STEP Act nor any other criminal justice reform bill will pass the Senate this year.

First, senior Senate authors of the long-stalled Sentencing Reform and Corrections Act, S.1917 – including Senate Judiciary chairman Charles Grassley (R-Iowa), are steadfastly opposed to FIRST STEP. They consider it an insufficient half-measure for its focus on prison programs without changes in federal sentencing laws. Plus, Grassley is still smarting from his inability to pass SRCA last year, and he says he’s not going down without a fight.

Second, Senate Majority Leader Mitch McConnell (R-Kentucky) is highly unlikely to try to move the bill through the Senate as long as Grassley is opposed to it, according to Republican senators and aides. They say McConnell, who is not that keen on criminal justice legislation in general, is definitely uninterested in circumventing his Judiciary Committee chairman and provoking an intra-party fight that would eat up weeks of floor time. A Republican senator said flatly of McConnell’s view of the bill right now: “It’s not on the priority list.” If McConnell decides not to bring the bill to a vote, no one can force him to do so.

sessions180322Third, impressive groups of opponents to FIRST STEP are lining up on both sides of the aisle. Attorney General Jefferson Beauregard Sessions III Sessions, a former senator himself, opposes SRCA and is lukewarm about FIRST STEP. And even the narrower FIRST STEP bill will probably face opposition on the right from Sessions’ allies, like Senator Tom Cotton (R-Arkansas), who once memorably said America has an “under-incarceration problem” and is reportedly stirring up opposition to FIRST STEP among law enforcement groups.

At the same time, FIRST STEP is opposed by some civil-rights groups, former Attorney General Eric Holder, and a coalition of leading Senate Democrats, including Richard Durbin (D-Illinois), Cory Booker (D-New Jersey), and Kamala Harris (D-California). In a letter last week, the senators said FIRST STEP would be “a step backwards” and that prison reform would fail if Congress did not simultaneously overhaul the nation’s sentencing laws. Also signing the letter were Representatives Sheila Jackson Lee (D-Texas) and John Lewis D-Georgia).

donotwaste180530Last Wednesday, a group of senators asked McConnell for a last-ditch negotiation session to seek an acceptable compromise. SRCA backers fear this may be the only chance for years to come to pass major criminal justice reform. “You don’t get many opportunities around here to do anything meaningful or substantive,” said Durbin, a chief author of the sentencing provisions. “Let’s not waste this one. Let’s get this right.”

Although Trump supports FIRST STEP, it’s unclear how he would react if Congress sent him a bill that included SRCA-style sentencing reforms. A prison reform-only bill gives Trump what he wants: To look tough to his base by not budging on sentences while also showing evangelicals he believes in “second chances.” Adding sentence reform might be too much for him.

New York Times, Why some senators who want a criminal justice overhaul oppose a prisons bill (May 26, 2018)

New York magazine, Can Kushner’s Patchy Prison-Reform Bill Survive the Senate? (May 23, 2018)

The Marshall Report, Is The “First Step Act” Real Reform? (May 22, 2018)

Politico, Trump-backed prisons bill DOA in the Senate (May 21, 2018)

Senate Judiciary Committee release, For criminal justice bill to pass the Senate, it must include sentencing reform (May 22, 2018)

 The Atlantic, Democrats Split Over Trump’s Prison Pitch (May 23, 2018)

– Thomas L. Root

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

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

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WE’RE BACK, BABY!

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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