Tag Archives: FIRST STEP Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

FIRST STEP GETTING WATERED DOWN AS IT APPROACHES THE FINISH LINE

We now have some idea of what had to be given away to convince House Majority Leader Mitch McConnell (R-Kentucky) to agree to schedule a vote on the FIRST STEP Act, perhaps as soon as tomorrow. The Senate released the text of the revised FIRST STEP Act (S.3649) this afternoon.

firststepB180814McConnell cited “improvements to the legislation that have been secured by several members” in his surrender speech last Tuesday, in which he agreed to bring the bill to the floor for debate and a vote. Whether these changes actually count as improvements depends on your perspective, but they were crucial to gaining the support of Sen. Ted Cruz (R-Texas) and a few other Republican senators who were initially opposed to the bill, which according to The New York Times “seemed to be the clincher” in moving McConnell off the fence.

The votes of Cruz and the others were hardly needed to pass FIRST STEP, which already had the support of Democrats, most Republicans, the president, and several law enforcement groups that are ordinarily leery of sentencing reform. The bill, which may get a Senate vote as soon as today, is expected to pass by a margin of more than 2 to 1. But McConnell “wanted every conceivable guarantee that the criminal justice measure would not blow up on him politically,” The Times said. The cost of reassuring McConnell was further dilution of a bill that was already pretty weak tea, the result of compromises on top of compromises.

Here are some of the additional concessions that were necessary to get McConnell to honor his promise of a vote:

• The bill now excludes all 924(c) firearm offenders from earning time credits.

• The bill now excludes fentanyl and heroin traffickers who are leaders/organizers from earning time credits.

• The bill now limits early release from prison to supervised release by specifying that only low and minimum risk offenders are eligible and specifying that the maximum amount of time off a sentence is 12 months. Also specifies that if a prisoner violates a condition of his or her prerelease custody, and the violation is nontechnical in nature, the Director of the Bureau of Prisons shall revoke the prisoner’s prerelease custody.

• The bill removed first time 18 USC 2252A(a) porn download offenders from earning time credits.

• The bill specifically excludes additional offenses from receiving earned time credits, including smuggling aliens into the U.S. with records of aggravated felonies, importing aliens for prostitution, drug-related robberies involving assault with dangerous weapon, carjacking resulting in serious bodily injury, threatening to murder a congressman, senator or government official, assault of a spouse or intimate partner or dating partner resulting in substantial bodily injury, assault of a law enforcement officer with a deadly weapon, arson, possessing contraband in prison, rioting in prison, gang-related felonies, escape, and failure to register as a sex offender.

good-bad-news-400pxSo is there any good news? Well, the 54 days a year good time is still in the bill, still applies to everyone, and still is retroactive. No one has messed with the Fair Sentencing Act retroactivity, or the changes in the compassionate release or elderly offender home detention program. And Politico is asking in headlines, “Is Tom Cotton’s winning streak about to end?”

Who said schadenfreude was a bad thing?

At Reason magazine, Jacob Sullum said today, “On the whole, the FIRST STEP Act still represents a significant improvement. But the changes are quite modest in the context of a federal system that imprisons more than 180,000 peoplschaden170306e and state systems that hold another 2 million. The difficulty of passing these incremental reforms, which took years notwithstanding broad bipartisan support, does not bode well for further progress anytime soon.”

There remains the possibility that after the Senate passes the bill, some of the good stuff will get put back into the bill by the joint conference committee. The irony is that if FIRST STEP gets back what has been given away to get the bill to the floor, the overwhelming support for the bill in the Senate guarantees that changes – even if McConnell, Cruz and Cotton do not like them – will sail through.

Politico, Is Tom Cotton’s Winning Streak About to End? (Dec. 13)

U.S. Senate, S.3649, Amendment to FIRST STEP Act (Dec. 13, 2018)

Reason.com, Here Are the ‘Improvements’ That Won a Senate Vote on Sentencing Reform (Dec. 13, 2018)

– Thomas L. Root

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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

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

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

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

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

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

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

tweet181210

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

FELLOW REPUBLICANS URGE MCCONNELL TO PUT FIRST STEP TO A VOTE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

– Thomas L. Root

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