Tag Archives: FIRST STEP Act

Nuts and Bolts of Elderly Home Detention – Update for January 9, 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.

ROGER, DODGER, INMATE CODGER – THE ABCS OF THE EOHD

There seems to be a lot of confusion about the Elderly Offender Home Detention program approved by the First Step Act, judging from the questions still piling up in our email.

elderly190109• Where did EOHD come from? Back in 2009, the Second Chance Act of 2007 authorized the BOP to run a two-year pilot program to permit non-violent elderly offenders (65 years and older) to go to home confinement for the remainder of their sentences if they had been down 10 years and done 75% of their sentences. The program was tested at only one facility (FCI Elkton) for a two-year period.

It did not work that well, because the combination 10-year minimum and 75% seemed to eliminate just about everyone who otherwise would otherwise had been eligible.

• What is it now? The First Step Act has now re-established the program, calling it the Elderly Offender Home Detention program. The new EOHD would apply ay every BOP facility – not just one – and be extended to all nonviolent elderly offenders who had completed 66.67% (no longer 75%) of their sentences. The 10-year minimum service of sentence was eliminated.

Under the program, an eligible inmate could go to home confinement at 66.67% of the whole sentence, and be released from home confinement to supervised release at 85% of his or her sentence.

home190109• What are the requirements? Most of the requirements have not changed from the pilot program. Anyone seriously thinking about applying for EOHD should read 34 USC 60541(g). Among other requirements, the eligible offender has to be 60 years old or older, cannot ever have been convicted of a crime of violence or sex offense, have served 66.67% of “the term of imprisonment to which the offender was sentenced,” have never tried to escape, whose home detention will save the BOP money, and who the BOP determines “to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.”

• It is 66.67% of what? Our reading of the statute suggests that the two-thirds must be of the whole sentence, not the sentence minus good-time, or minus earned time credits, or even minus RDAP. In fact, RDAP would have to be restructured to let eligible elderly offenders take it early in order to get any meaningful EOHD time.

• Can the BOP adopt other rules on how to run EOHD? We suspect that the BOP will treat it like it treats direct-to-home detention now. The inmate has to have a home that passes US Probation Office inspection, have the landline phone rig needed for monitoring, and have health insurance. The BOP has a lot of leeway in administering the program, and not everyone who is eligible will necessarily be permitted to go home.

When the BOP ran the program at Elkton, there was no program statement, because the program was pretty ad hoc and loosey-goosey. The BOP will probably issue a program statement now, detailing how it intends to administer the program.

One final caveat: the EOHD will not necessarily be available at all institutions. The Attorney General retains the authority to designate only certain institutions at which the EOHD will operate. However, if only somer and not others are designated, it will usher in a land-rush of inmates seeking to get to certain prisons and not others in order to benefit from the Act. If too few institutions are designated, Congress may be irate that the BOP is not using a tool available to it to reduce its costs, especially the horrific cost of elderly medical and nursing care.

denied190109I have already heard of one institution where a case manager confidently told an inmate that the warden would never approve any EOHD participants. The BOP will have a lot of discretion as to how it runs EOHD, but it will not have the discretion to NOT run it.

One benefit inmates have with EOHD may be judicial review. Under 18 USC 3625, virtually all of the BOP’s programs – halfway house, the anti-recidivism programming and placement, for example – are immune from the usual Administrative Procedure Act lawsuits an inmate could otherwise bring under 5 USC 706. However, the EOHD is authorized by a different section – in Title 34 – and appears to be subject to APA challenge if the BOP gets too arbitrary or deviates too far from the statute. That ought to give inmates a bit more leverage than they have with other BOP actions.

Elderly Offender Home Detention, 34 USC 60541(g) (as amended by the First Step Act)

– Thomas L. Root

Reading First Step A Little More Carefully – Update for January 3, 2019

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SOME EASTER EGGS – NOT ALL GOOD – IN THE FIRST STEP BILL

software_easter_eggIn computer software and media, an Easter egg is an intentional inside joke, hidden message or image, or secret feature of a work. It is usually found in a computer program or video game.

The First Step Act text raced through the Senate and House, and was signed by the President, in four days. It was difficult to be sure that the available version of the Act – and there had been at least three even before the Senate passed a fourth on Dec. 18 – was the latest.

The final version has a few tweaks, previously unnoticed revisions and poorly-drafted parts that were finally noticed last week. Some are confusing, a few are interesting, but others are  rather ugly.

The good: It has always been gospel for people seeking reductions in sentence under 18 USC 3582(c)(2) because of the changed drug tables that Guidelines career offenders and people with 851 enhancements were blocked from the benefits of the reductions. Guidelines career offenders have their offense levels set on a scale of 12 up to 3, depending on the statutory maximum sentence of the underlying offense. A change in drug quantity Guidelines did not affect the stat maximum, so career offenders’ offense levels did not change.

retro160110The retroactivity of the Fair Sentencing Act – part of First Step – changes the statutory maximum. It used to be that 5 grams of crack got you 5 to 40 years. Now, anything under 28 grams is 0-20 years. More than 50 grams got you 10-life; now 50 grams is 5-40, and 10-life only starts after 280 grams. The effect for a lot of guys, who were convicted of “at least 5 grams” or “at least 50 grams,” is to drop the statutory maximums, and therefore reduce their career offender ranges from 37 to 34 or 34 to 32.

Because the retroactivity of the Fair Sentencing Act requires that a court “impose a reduced sentence as if… the Fair Sentencing Act of 2010… [was] in effect at the time the covered offense was committed,” it appears that Guidelines career offenders with the right numbers in their indictments may be entitled to lower sentences, as well as the straight USSG 2D1.1 crack guidelines people.

The same stepdown from 21 USC 841(b)(1)(A) to (b)(1)(B), and from (b)(1)(B) to (b)(1)(C) may well let people with 851 enhancements get lower sentences as well.

narrow190103That’s a great gift. But not so great is language in First Step Sec. 102(b)(2) that suggests that the extra seven days a year does not have to be applied by BOP until late July 2019, when the Attorney General is required to have a risk assessment program adopted. The interpretation of the subsection is capable of being interpreted to applying only to earned-time credits, but the BOP has a history of interpreting statutory language to the inmates’ detriment (see the 2010 Supreme Court Barber v. Thomas decision).

Perhaps even worse is the apparent squishiness of the Elderly Offender Home Detention program. People who think the EOHD is a brand new bauble are mistaken: First Step is not writing on a clean slate.

The definition of “elderly offender,” unchanged (except for dropping the age requirement to 60), has been around since 2008 in The Second Chance Act. Second Chance authorized an EOHD pilot program of two years’ duration, run at a single institution. The terms are set out at 34 USC 60541(g), and should be reviewed by any inmate interested in the program.

The parts of the definition of an “eligible elderly offender” which were not changed by First Step give the BOP a lot of discretion. For example, if the BOP does not “determine that release to home detention… will result in a substantial net reduction of costs to the Federal Government,” the prisoner would be deemed ineligible. 34 USC 60541(g)(5)(A)(vi). This could exclude some people at the younger end of the age range who are especially skilled at a UNICOR job or some other maintenance position valued by the particular institution.

ripper190103Likewise, to be eligible, an offender must be “determined by the Bureau of Prisons to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.” 34 USC 60541(g)(5)(A)(vii). This criterion makes perfect sense in a perfect world: who wants Jack D. Ripper to return to the house next door?  But in the real world, this provision grants the BOP virtually unbridled discretion. If it predicts that a drug defendant has a substantial risk of peddling some more pot, or a fraudster will likely run a three-card monte game from his front porch, what judge would ever rule otherwise? What the subsection really says is that the BOP can send who its lower-level staff want to send and deny those who staff want to deny.

 Parenthetically, I witnessed the operation of the 2-year pilot program, run at FCI Elkton in Lisbon, Ohio. In one memorable denial, a 79-year old man, 10 years into a 15-year marijuana sentence – who had had multiple strokes, suffered from heart disease and hearing loss, and had gone through multiple chemotherapy treatments for unrelated cancer, was denied the pilot EOHD program because of violence in his criminal history. It seemed that in 1949, as a hot-blooded youth, he had robbed a corner grocery store.

“You’re a danger,” the Elkton case manager told the minimum-security septuagenarian, “based on your robbery conviction” more than a half-century before. And that was that.

The BOP did not release a guiding program statement for the Elkton EOHD experiment, just a one-page release for prisoners. One can only hope for more detail, more consistency, and more common sense from the full-blown EOHD.

Enrolled Bill, First Step Act of 2018 (Dec. 21)

BOP, Elderly Offender Home Detention Pilot Program (Feb. 5, 2009)

– Thomas L. Root

Inmate Celebs Jump on First Step Act – Update for January 2, 2019

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IT’S WHO YOU KNOW…

A few connected people did not let the ink dry on President Trump’s signature before deploying their lawyers to make hay out of the First Step Act’s modification to the compassionate release provisions of 18 USC § 3582(c)(1).

whoknows190102On the last Friday of 2018, a federal judge reduced former Birmingham, Alabama, mayor Larry Langford’s sentence for corruption to time served, a day after Ebony magazine reported that he was near death and being denied release. He had served a little more than half of a 15-year sentence for bribery and corruption, but the family and friends in Congress were able to convince the U.S. Attorney and BOP to move for his compassionate release.

U.S. District Court Judge Scott Coogler ordered that Langford “shall be released from the custody of the Federal Bureau of Prisons as soon as his medical condition permits, the release plan is implemented, and travel arrangements can be made.”

iknowyou190102Meanwhile, lawyers for Annette Bongiorno, Bernie Madoff’s former secretary, raced into court a day after First Step became law to ask her judge to order the BOP to send her to home confinement on March 19, the day on which she will have served two-thirds of her sentence. Not content to have the BOP process her Elderly Offender Home Detention program request (probably a wise idea), her lawyers want Judge Laura Taylor Swain – who is already on record favoring Bongiorno’s home confinement – to tell the BOP to get it done.

The government has not yet weighed in on Bongiorno’s request, which was picked up in the national media as soon as it was filed (no doubt because the defendant’s lawyers made sure of the publicity.)

The Birmingham News, Larry Langford will be freed after sentence reduction (Dec. 28)

ABC News, Bernie Madoff’s secretary wants to use new Trump law to get out of jail early (Dec. 25)

United States v. Bongiorno, Case No. 10-cr-228, Letter Motion (Dec. 22)

– Thomas L. Root

A Week After Christmas, First Step Is No Longer So New and Shiny – Update for December 31, 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.

IMPATIENCE, DISAPPOINTMENT IS SETTING IN ON FIRST STEP

President Trump shortened thousands of sentences by signing the First Step Act of 2018, S.756, four days before Christmas. But 10 days later, inmates and frustrated families say they are afraid the gift be may lost somewhere in the bureaucracy.

lousygift181231Silence from the BOP is creating concern that foot-dragging will slow sentence reductions. The new law gives inmates an extra seven days good time for each year of their sentence, but it’s unclear when the BOP will make the calculations. Advocates estimate that 4,000 federal prisoners will be released almost immediately under the good-time expansion.

LISA called the BOP’s Designation and Sentence Computation Center in Grand Prairie, Texas, on Dec. 27. DSCC is responsible for making all BOP sentence computation changes. A BOP spokesman said DSCC is still awaiting Dept. of Justice guidance, which he does not expect to receive for two or three weeks. “Until we get direction on what to do,” he said, “nothing is going to happen.”

bureaucracy180122“We are currently reviewing the new legislation to determine implementation guidance for BOP,” said DOJ spokesman Wyn Hornbuckle. More than 80% of DOJ’s workforce is working through the government shutdown, which began hours after Trump signed the First Step Act. But three-fourths of those people are law enforcement agents, and are unlikely to be busy writing directives for implementation of the law.

“Some families have loved ones who they know would be home tomorrow,” said Kevin Ring, FAMM president, told the Washington Examiner. “People are very concerned about when this is going to get done. Congress has passed this. It’s in effect.”

“We want to be prepared and know what’s going on,” said Steve Henderson, whose brother is serving federal time for a drug case. “When you have an infraction in prison, when they take the time away from you, they calculate it immediately… the next day it is gone,” Henderson said. But now, when “you have people across the country who are supposed to be home, all of a sudden DSCC isn’t answering their phones.”

For some, judging from many of the hundreds of First Step questions LISA received in the last week, the uncertainty is creating real questions about adjustment in the dates they are to go to halfway house. Others, including many already in halfway houses, calculate that they are now past their release dates, yet have no answers from BOP on getting out. At least one inmate, a resident of a Chicago halfway house, filed a pro se 28 USC 2241 motion last week in the U.S. District Court for the Northern District of Illinois, and has a hearing set for later this week.

why181231Angela Stanton King, an ex-inmate who is now a reform advocate, complained to the Examiner, “These are people at the holidays jumping up and down because the bill passed, and then they’re like, ‘Now what are we waiting for?'”

Meanwhile, other media outlets are noting that the lack of retroactivity in all but one of First Step’s sentencing reforms is disappointing. In one of many compromises made by criminal justice reform advocates to win conservative support, changes in so-called 851 enhancements and several other provisions were not made retroactive.

“I’m human and I would have loved to have benefited from the bill, but unfortunately I don’t,” one inmate doing life under 18 USC 3559 told the Guardian from federal prison in Lexington, Kentucky. “I don’t necessarily feel left behind, I just feel [lawmakers] don’t understand what goes on with the… actual humans that their choices and politics affect.”

bitter181231“I absolutely think that this one is going to be catalytic towards other decarceration campaigns on the local and state level,” said Glenn Martin, an ex-inmate reformer who helped bring dozens of groups together to support First Step. Nevertheless, the lack of retroactivity on a majority of the sentencing reforms was “a tough pill to swallow.”

“It’s one of the concessions that hurts the most,” said Martin. “It’s about fairness, and yet there’s this group of people who continue to be harmed because of the lack of retroactivity.”

Washington Examiner, Prisoners due for release under First Step Act stuck in limbo (Dec. 28)

The Guardian, Current inmates feel left behind by Trump’s criminal justice reform bill (Dec. 22)

– Thomas L. Root

You’ve Got Questions, We’ve Got Blank Stares – Update for December 27, 2018

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QUESTIONS ANYONE?

questions181227Yesterday, we presented a précis on the First Step Act. It didn’t help much. We have logged over 600 emails asking questions about the effect of the First Step Act on the sentences of existing inmates, and they continue to pour in.

Did we not make everything pellucidly clear?

Apparently not. Here are the most popular questions and our answers:

•   What sentencing changes are retroactive?

Only people with pre-Fair Sentencing Act crack sentences get retroactive relief. There is no retroactive relief for 18 USC 924(c) stacking, for denial of safety valve, or for 851 sentencing enhancements.

That is not to say that these changes will not come, just like the Fair Sentencing Act – which conservatives would not vote for if it was retroactive – finally became retroactive eight years later. But for now, the people with 924(c) stacked sentences, 851 life and 20-year sentences, and non-safety valve sentences are out of luck.

•   How about the seven days extra good time? Is it retroactive?

Yes.

•   When will I get the seven days extra good time?

This question is on everyone’s lips. The change in federal inmates’ sentence computation will be performed by the Bureau of Prisons’ Designation and Sentence Computation Center in Grand Prairie, Texas. It should not be difficult to do, and it is hardly as though BOP did not know this was coming. However, the BOP is a bureaucracy, and no one in a bureaucracy is going to be daring or self-starting enough to throw the switch just because some blow-dried President in Washington, D.C., makes something binding federal law.

As of last Friday afternoon, DSCC said it was waiting for guidance from the Dept. of Justice. Inasmuch as Monday and Tuesday were federal holidays, we doubt anything was forthcoming on those days. Whether DSCC is even staffed, due to the partial government shutdown, is not clear.

Yet, the BOP faces liability for holding people past their release dates, and as of last Friday, nearly everyone’s release date changed. We talked to DSCC today, and we were told that it still awaits direction from DOJ, and does not expect that for two to three weeks. No one appears to be in a hurry there.

That’s the long answer. The short answer is that we don’t know.

creditsign181227•   How about programs I have already completed? Are credits retroactive?

No, the credits are not. However, a change in 18 USC 3621(h) provides that “beginning on the date of enactment of this subsection, the Bureau of Prisons may begin to expand any evidence-based recidivism reduction programs and productive activities that exist at a prison as of such date, and may offer to prisoners who successfully participate in such programs and activities the incentives and rewards described in subchapter D.” We cautiously interpret this to mean that the BOP can start giving credits for programs successfully completed at any time after last Friday. This does not require the BOP to do so, but it is out there.

•   Are all 924(c) offenses ineligible for earned-time credit?

The Act excludes from earned time credits any offense of conviction under “924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime.” We read this to exclude all 924(c)s, whether for a crime of violence or for drugs.

•   If you have a 2-level enhancement to your drug conviction for a gun, are you excluded?

No, only a statutory 924(c) conviction excludes you.

miracle181227•   When is First Step effective?

Unless a law says otherwise, it is effective when the president signs it. But do not expect miracles. For the earned time credits, the Attorney General has seven months (until late July 2019) to develop the risk assessment system. The BOP then has 180 days to apply the risk assessment system to everyone and identify the programs that it believes will reduce recidivism (by late January 2020). The BOP then has two years (by January 2022) to fully ramp up the system.

During the initial two years of the program, the First Step Act anticipates, there will be more people wanting programs than there will be program space. The BOP is to put people nearest the end of their sentences in the programs first.

The Elderly Home Detention Program has never had a BOP program statement that implemented it, because it was limited in time and location. The BOP will have to develop procedures to process and judge applications. Nothing prevents someone from applying right away – and we recommend using 34 USC 60541(g)(5)(A) as a guide – but do not expect speedy processing.

Our take about compassionate release, however, is that Congress intends that it be implemented immediately. What is more, the BOP has procedures for dealing with compassionate release applications. While its history of doing so is not especially honorable, there is no need for delay while the BOP spools up a program statement on how to process them.

Nothing else in First Step should require any time for implementation. New or renewed requests for home confinement instead of halfway house, transfers to closer-to-home locations and the extra seven days should be immediate. How quickly the BOP updates sentences to account for the extra seven days is anyone’s guess, but a lot of people with short time will need that done immediately. (See answer above)

•   How do you file for a reduction in a crack sentence because of FSA retroactivity?

You file a motion under 18 USC 3582(c)(2). You should check with the federal public defender in the district in which you were sentenced. Many court ordered the FPD to represent people eligible under 3582(c)(2).

•   Are Guidelines 4B1.1. career offenders excluded from anything under First Step?

No. If you are excluded, it is because of a statute you were convinced of violating.

•   If I was convicted of a crime of violence or a sex offense in my past, does that exclude me from getting earned time credits?

No. Only your current offense will exclude you.

• Who is excluded?

We’ll cover that tomorrow.

now181227•   How soon can people start receiving credits?

Credits could start to accrue as early as the end of July 2019. The Act anticipates that it could take up to two years for the program to completely spool up, and preference will be given to the people who are short time first. This could mean that people with longer dates will not start getting earned time credits right away.

However, there had been discussion that BOP could be expansive in its interpretation of what constituted programs that lessened recidivism, and it could even include UNICOR employment and adult education classes.

•    Did your 21 USC 851 10-year sentence drop to 5 years?

No. Drug sentence enhanced by an 851 notice due to prior drug or state convictions changed, but only natural life (fell to 25 years to life), and 20 years (fell to 15 years to life). Nothing beyond that. And the change is not retroactive.

•   If you are excluded from getting earned time credits, how much halfway house/home confinement will you get?

The Second Chance Act still applies, and theoretically, you are entitled to up to 12 months of halfway house. The BOP has been very stingy with halfway house in the last year and a half, however, and no one knows what the BOP will do.

•   For EOHD, do you serve two-thirds of your sentence or two-thirds of the time between you start and you get good-time release?

If you got 180 months, for example, you serve 120 months. If you get EOHD, you will be on home confinement for 33 months. At 1053 months, you are released on good-time release.

•   If you get 12 months off for RDAP, can you get another 12 months off for earned time credits?

Theoretically, the one does not affect the other. But the BOP has the option to credit you with more halfway house or a shorter sentence, and no one knows how the BOP will decide to apply the earned time credits. No one in Congress discussed this, or, to our knowledge, even thought about it. Some things, like Donald Rumsfeld liked to say, are unknown unknowns.

S.756, First Step Act, passed into law Dec. 21, 2018

– Thomas L. Root

Find Your Pen, Mr. President – Update for December 21, 2018

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HOUSE OF REPRESENTATIVES OKS FIRST STEP

The House on Thursday approved S.756, with the final name of the First Step Act (no capital letters anymore) and sent it to President Trump’s desk.

firststepB180814The long-awaited and frequently-declaraed-dead legislation overwhelmingly passed the House by a vote of 358-36 after the Senate passed it 87-12 on Tuesday.

Trump has already endorsed the legislation, and he is expected to sign it into law in the next few days.

If you want a copy of the Act as approved, you can find all 149 pages  here.

– Thomas L. Root

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

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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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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 Sponsors Gave Away a Lot to Get the Bill to a Vote– Update for December 13, 2018

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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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McConnell Blinks! FIRST STEP Will Be Voted on This Month – Update for December 12, 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 TO BRING FIRST STEP TO A VOTE

firststep180814Senate Majority Leader Mitch McConnell (R-Kentucky) folded yesterday, announcing during a floor speech that the Senate will vote this month on the FIRST STEP Act, S.3649.

McConnell said the Senate will take up the legislation, written by Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), Sen. Richard J. Durbin (D-Illinois) and several other Democratic and GOP senators, despite the controversial nature of the bill within the Senate Republican ranks. The bill could be debated as early as the end of this week.

Proponents of the bill believe the changes could receive as many as 85 votes in the Senate. House Speaker Paul Ryan (R-Wisconsin), who also privately pressured McConnell to take up the bill, has pledged swift action before the House leaves town for the year-end holidays.

The decision to put the bill to a vote comes “at the request of the president and following improvements to the legislation” secured by several senators, McConnell said.

At this time, no one knows what FIRST STEP’s sponsors had to give away, but Sen. Ted Cruz (R-Texas) said last Friday that he was supporting the measure now because it would be amended to prevent those convicted of crimes of violence from benefitting from earning earlier release for completing programs that reduce recidivism.

novacation181212McConnell warned that because of the decision to add the criminal justice bill to the Senate agenda, “members should now be prepared to work between Christmas and New Year’s.” He urged senators to “work together or prepare for a very, very long month.” On the Senate’s to-do list is passing a farm bill, averting a partial government shutdown and clearing the deck of judicial and executive branch nominations.

The legislation has the strong support of Trump and his adviser and son-in-law Jared Kushner. Responding to McConnell’s announcement, Trump’s daughter Ivanka tweeted, “It’s official . . . the #FIRSTStepAct is headed to the floor for a vote. This historic legislation will reform our prison system and lift millions of Americans!”

Washington Post, McConnell to bring up criminal-justice bill for a Senate vote (Dec. 11)

The New York Times, Criminal Justice Bill Will Go Up for a Vote, McConnell Says (Dec. 11)

– Thomas L. RootLISAStatHeader2small