Tag Archives: FIRST STEP Act

FIRST STEP First Up After Mid-Terms? – Update for November 5, 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 POISED TO CONSIDER AMENDED FIRST STEP ACT

Criminal justice reform advocates confirmed to the Washington Examiner last week that sentencing reform provisions will be included in the FIRST STEP Act (S.2795), to be unveiled shortly after tomorrow’s mid-term elections, amendments which are likely to trigger an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill. 

firststep180814The FIRST STEP Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms. Reform advocates expect rapid legislative action after a pre-election pause, and believe there will be enough votes to pass the expanded legislative package. Two people close to the process told the Washington Examiner that a bipartisan group of senators has agreed to attach a set of sentencing reforms to the House-passed bill. 

The additions include shortening federal three-strike drug penalties from life in prison to 25 years, reducing two-strike drug penalties from 20 years to 15, unstacking 18 USC 924(c) sentencing enhancements to require a conviction on the first 924(c) charge before 25-year minimum mandatory sentences apply, making the 2010 Fair Sentencing Act (that cut crack penalties) retroactive, and expanding the 18 USC 3553(f) “safety valve.”

“We are very excited about it. We think that the four reforms that are in the bill are ones that make sense,” said Mark Holden, the general counsel of Koch Industries and an influential conservative reform advocate. “From what we understand, there are enough votes — plenty — for it to happen.”

Both Holden and another person close to the legislation drafting process, who asked not to be identified, said there is wording to reduce concern about illegal immigrants benefiting from sentencing reform. 

Sentencestack170404Many of the proposed changes to the FIRST STEP Act are included in the Sentencing Reform and Corrections Act (S.1917), which passed the Senate Judiciary Committee last February but has not been brought to the floor for a vote. While the physical text of the new sentencing reforms is still being written, the SRCA provides a good example of what might be in the final bill text. “The sentencing reforms that could be included in the First Step Act… do not eliminate any mandatory minimum sentences,” wrote FreedomWorks vice president Jason Pye in The Hill last week. “But these proposed reforms would apply a measure of common sense to federal sentencing law.”

Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill. Last month, President Trump said in a Fox News interview that while Attorney General Jefferson Beauregard Sessions III opposed sentencing reform, Trump was in favor. “”If he doesn’t support reform, then he gets overruled by me,” the President said. “Because I make the decision, he doesn’t,” Trump said Oct. 11. 

“I think President Trump is doing a really good job on these sentencing reform measures,” Holden said. “He’s right, he’s the president, he makes the call, and we’re glad he said it.”

cotton171204It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell (R-Kentucky), will be the ultimate decision-maker in whether the bill gets a floor vote. A Louisville Courier-Journal writer said last week that with prison and sentencing reforms polling off the charts in Kentucky, and Sen. Rand Paul (R-Kentucky) leading the charge, there is little doubt McConnell will find enough votes during the promised whip count (he needs 60) to send the bill to the floor.

The reform efforts have received significant White House support, and in turn, policy advocates have sought to build bridges with Trump-supporting activists. Last month, clemency advocates including Amy Povah of CAN-DO Clemency and Alveda King, the anti-abortion evangelical leader, hosted a panel at a Women for Trump event at Trump International Hotel in Washington. 

pardon171128Povah wants Trump to supplement FIRST STEP passage with generous use of his constitutional pardon powers. Last month, Trump said “a lot of people” are jailed for years for “no reason” and that he was actively looking to release some. Povah said clemency would be particularly appreciated around the holiday, including Thanksgiving, when presidents pardon turkeys, disillusioning people who are looking for one. 

“I think Trump said it best, he said that he’s going to release a lot of people and I think a lot of people in prison took that seriously and literally,” Povah said.

Povah said she’s particularly grateful for Kushner’s role in pushing both legislation and clemency cases, particularly after Sessions’ appointment as attorney general (an appointment Trump openly regrets making and who is likely to resign or be fired after tomorrow’s election). “Jared is a beacon of hope for so many prisoners. They had lost hope for any leniency or reform when Jeff Sessions was sworn in as attorney general. If felt like a nail in the coffin,” she said.

Washington Examiner, Prison reform bill to include sentencing, setting up post-election fight (Nov. 4, 2018)

Americans for Tax Relief, The US Needs Sentencing Reform and the First Step Act (Nov. 2, 2018)

Louisville Courier Journal, Rand Paul and Mitch McConnell play key roles in justice reform (Nov. 1, 2018)

The Hill, Congress must make sentencing reform priority for public safety (Nov. 2)

– Thomas L. Root

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Not Even Halfway on Halfway – Update for October 31, 2018

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A SOBERING REPORT ON HALFWAY HOUSE AND HOME CONFINEMENT
Not the right halfway house - but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP's transitional housing mandates.
       Not the right halfway house – but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP’s transitional housing mandates.

As Congress is on the verge of passing FIRST STEP Act, a prison reform measure which will let inmates earn substantially more halfway house or home confinement time for successfully completing programs that cut recidivism, the reality is that the BOP’s halfway house and home confinement programs needed to implement the Act may be dead on arrival.

Politico reported last week that even while inmate transfers to transitional housing (halfway house) have been delayed by many weeks and months, scores of halfway house beds lie empty (with some estimates of at least 1,000 vacant spaces) and home confinement has been drastically curtailed.

Just before he unexpectedly resigned last spring, BOP Director Mark Inch told Congress the agency is curbing transitional housing overspending of past years and streamlining operations. Yet, halfway house and home confinement are much cheaper than imprisonment: in 2017, the BOP reported it spent almost $36,300 a year to imprison an inmate, $4,000 more than the cost of halfway house placement. It costs a mere $363 a month to monitor someone on home confinement.

sessions180322Politico argued that “abandoning transitional supervision aligns with Attorney General Jeff Sessions’ disputed opinion that reduced prison populations during the Obama administration are to blame for a small uptick in violent crime.” But Sessions’ policies are running headlong into those of President Trump, who has endorsed the FIRST STEP Act, which not only lets inmates earn significant additional halfway house/home confinement time for successful programming, but also directs that the BOP shall “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted…”

In 2015, more than 10,600 federal prisoners were in halfway houses. The number of inmates in home confinement — 4,600 — was up more than a third from the year before. In all, 7.1% of BOP inmates were in transitional housing. Since then, halfway house population has dropped by 28% and home confinement is in freefall, down 61% to 1,822. Most of that cut has happened in the last year. Now only 1 in 20 people under federal supervision is in transitional housing.

Judge Ricardo S. Martinez, who chairs the Committee on Criminal Law of the Judicial Conference of the United States, complained that “we are in the dark about those numbers.” He said the committee is working to establish better communication with the BOP, because, as Politico put it, “federal judges, who can sentence defendants to halfway houses, need to know how much space is available.”

Politico, President Trump Says He Wants to Reform Prisons. His Attorney General Has Other Ideas (Oct. 25, 2018)

83 Federal Register 18863, Annual Determination of Average Cost of Incarceration (Apr. 30, 2018)

Administrative Conference of U.S. Courts, Incarceration Costs Significantly More than Supervision (Aug. 17, 2017)

– Thomas L. Root

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Opioid Act Passage May Ease Path for FIRST STEP Act – Update for October 29, 2018

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OPIOID BILL SIGNED, IMPROVES FIRST STEP CHANCES

costlydrug170327President Trump signed H.R. 6, The SUPPORT for Patients and Communities Act, last week, which will provide addiction treatment programs to combat the opioid crisis. This is good news for several reasons.

First, the bill was a rare bipartisan effort in Congress, and the accolades legislators have gotten for cooperation may whet their appetite for more bipartisan activity. The next best opportunity for legislation supported by both Republicans and Democrats is the FIRST STEP Act, which Senate Majority Leader Mitch McConnell (R-Kentucky) has promised to bring to a vote if at least 60 votes are there.

Second, passage of a bill addressing the opioid crisis gives the Senators cover for prison reform. Opponents of reform complain that with the nation’s current drug crisis, Congress needs to toughen laws, not weaken them. Pointing to a separate law addressing the drug crisis lets FIRST STEP supporters argue that FIRST STEP and the SUPPORT Act together are a comprehensive approach that will make the nation safer.

Skopos Labs, which estimates the chances that federal legislation will be enacted, last week increased its odds that FIRST STEP will be enacted to 85%. The highest Skopos Labs estimate prior to last week was 73%.

Nothing else happened in the last week, with midterm elections coming up November 6th. Nevertheless, opinion pieces in the middle-of-the-road publication The Hill, the conservative Washington Times and the liberal Austin Chronicle, all uniformly urged passage of FIRST STEP.

The Hill, Critics are wrong on First Step Act that can fix criminal justice system (Oct. 26, 2018)

The Washington Times, Justice demands passage of First Step bill to rehabilitate lives (Oct. 21, 2018)

Austin Chronicle, The Texas Public Policy Foundation: Not Always Evil! – Conservative think tank aligns with FIRST STEP Act (Oct. 26, 2018)

NPR, Signing Opioid Law, Trump Pledges to End ‘Scourge’ Of Drug Addiction (Oct. 24, 2018)

– Thomas L. Root

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The Sell Begins For and Against FIRST STEP – Update for October 23, 2018

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POLITICKING STARTS FOR COMPROMISE FIRST STEP ACT

Although most political news is focused on the mid-term elections in 15 days, drumbeats of support for the Senate to pass the compromise FIRST STEP Act after election day are increasing.

firststep180814A survey released last week shows widespread support for the provisions in FIRST STEP, in sharp contrast to the National Association of Assistant United States Attorneys’ survey we wrote about last week.

A national survey of 1,234 registered voters conducted online between Oct. 11-12 found 82% of respondents approved of specific FIRST STEP provisions. Additionally, 82% supported allowing non-violent offenders to finish their sentences in home confinement in order to ease their integration back into society, and 76% agreed with expanding the number of good-time days. Most important for political pressure purposes, 53% of respondents said that if the Republican-controlled Senate fails to pass FIRST STEP, they will view the Republicans more negatively.

But despite support from a large number of Republicans, conservative groups, and the White House, FIRST STEP faces stiff opposition from the Justice Department and staunch law-and-order conservatives such as Sen. Tom Cotton (R-Arkansas), who especially oppose reductions in mandatory minimums.

sentence181023Fortuitously, HBO aired a documentary last Sunday night (Oct. 21) called The Sentence, which has already been shown at Sundance Film Festival. The Sentence chronicles the aftermath of filmmaker Rudy Valdez sister’s drug conspiracy sentence and the consequences of mandatory-minimum sentencing. Cindy Shank received 15 years for conspiracy charges related to crimes committed by her deceased ex-boyfriend. The film follows the Valdez family’s effort to win Cindy clemency during the last months of the Obama administration.

“Two days after airing the film at Sundance,” Valdez said last week, “a Republican Senator (Mike Lee, R-Utah) reached out to me the say ‘thank you for making this movie’. You know, this is not a party issue, this film is apolitical, both Republicans and Democrats are coming together to fix this broken issue. I’ve been invited to speak many times on Capitol Hill, to share what I know with legislatures, to put a face on the victims, and show the effects of the federal minimum sentencing guidelines. Hopefully, by opening their eyes to the devastating effects of the federal minimum sentencing guidelines, it will help our lawmakers craft even more new legislation that actually gives Federal judges the ability to dole out fair and just punishment, with an emphasis on rehabilitation.”

An op-ed piece in USA Today last week by FAMM president Kevin Ring expanded on The Sentence’s theme of the effect long prison sentences have on inmates’ children. Ring, a former Capitol Hill lobbyist who served a federal sentence, wrote about the effect on his children of his own imprisonment, admitting that “I ended up serving time with people whose unnecessarily long sentences were caused by the laws I helped write.”

sessions180322Meanwhile, different drumbeats continue to sound a death knell for Attorney General Jefferson Beauregard Sessions III. The New York Times published a long story last Friday reporting how “discontent and infighting have taken hold at the Justice Department, in part because Mr. Sessions was so determined to carry out that transformation that he ignored dissent, at times putting the Trump administration on track to lose in court and prompting high-level departures… President Trump has exacerbated the dynamic, they said, by repeatedly attacking Mr. Sessions and the Justice Department in baldly political and personal terms. And he has castigated rank-and-file employees, which career lawyers said further chilled dissent and debate within the department.” Observers say it is almost a certainty that Sessions, a staunch opponent of sentencing reform, will resign after the mid-terms.

Reason.com, Poll Shows Wide Support for Criminal Justice Reform Bill in Congress (Oct. 18, 2018)

The Poll

USA Today, I once wrote mandatory minimum laws. After ties to Abramoff landed me in prison, I know they must end. (Oct. 16, 2018)

The Knockturnal, ‘The Sentence’ Goes to Capitol Hill (Oct. 18, 2018)

The New York Times, Justice Dept. Rank-and-File Tell of Discontent Over Sessions’ Approach (Oct. 19, 2018)

– Thomas L. Root

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Senate Will Take Up Compromise FIRST STEP Act After Mid-Terms – Update for October 15, 2018

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MCCONNELL WILL BRING FIRST STEP TO SENATE VOTE NEXT MONTH IF SUPPORT IS THERE

A chance for criminal justice reform returned to the Senate last week, when Senate Majority Leader Mitch McConnell (R-Kentucky) told reporters that he intends to bring the compromise FIRST STEP Act up for a Senate vote after the Nov. 6th election, if he determines there are at least 60 votes in favor of passage.

wereback170921The bill merges some of the most important mandatory sentence and 924(c) stacking provisions of the Sentencing Reform and Corrections Act with the House-passed FIRST STEP Act, that offers increased halfway house or home detention for programming, corrects good time and makes favorable changes to compassionate release, the elderly offender home detention program and other aspects of prison life.

“Criminal justice has been much discussed,” McConnell told reporters Wednesday. “What we’ll do after the election is take a whip count and if there are more than 60 senators who want to go forward on that bill, we’ll find time to address it.” 

It’s a significant commitment from McConnell who has resisted bringing criminal justice reform legislation to the floor because support for it divides the Republican conference. As a result, a bill that easily cleared the House with bipartisan support last May has languished in the Senate, where McConnell controls what comes up for a vote.

Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog last week that President Trump said last August he had secured 30 to 32 ‘yes’ votes among Republican senators and hoped that “the number of GOP supporters could eventually grow as many as 40 to 46.” Berman predicted in August that the compromise FIRST STEP Act could “perhaps garner up to 90 votes in the Senate, and I do not think this head-counting is likely to change all that dramatically after the election (though one never knows).” He predicts that the prospect of the FIRST STEP Act becoming law before the end of the year “might be pretty darn good.”

firststepB180814Former South Carolina Sen. Jim DeMint, who leads a conservative coalition favoring FIRST STEP passage, said last week that the Senate’s lame duck session (after the November mid-term elections) is the best chance for reformers to actually get something done. “We’ve got the votes to do it,” DeMint said, “and the normal characters who sometimes Mitch McConnell has to protect from taking a tough vote would, I think, be very comfortable with it.” 

A sign of how this will play out showed up late last week. A poll, commissioned by a group representing the National Association of Assistant United States Attorneys found that 66% of Americans opposed FIRST STEP’s provision that let prisoners earn extra halfway house and home confinement by completing programming. The poll misrepresented FIRST STEP, falsely asserting the programming would award good time (which it does not):

“FIRST STEP’s primary effect, if implemented, would be to reduce the number of federal prisoners by altering the system’s “good time” credit rules, making it easier for convicts to be released early if they completed certain education, training, and other reformatory programs”

liar151213That is the kind of misrepresentation for which members of NAAUSA (pronounced like “nausea,” we think) love to prosecute people. In truth, all FIRST STEP awards is a chance for prisoners completing such programs to spend more of the end of their sentence in halfway house or on home confinement, still within the custody of the Federal BOP and confined except for well-monitored activities such as job searches, church services and medical appointments.

The poll and reporting on it leave little doubt, however, that the lobbying by NAAUSA and other people whose livelihoods may be threatened by FIRST STEP will be intense.

Curiously, an independent study sponsored by the National Institute of Justice released last Thursday found that half of Americans favored community-based sentences for drug and property crimes.

Sentencing Law and Policy, Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward (Oct. 10, 2018)

The Hill, McConnell looking at criminal justice reform after midterms (Oct. 10, 2018)

Louisville Courier-Journal, Conservatives want prison reform, and they’re making moves in McConnell’s Louisville (Oct. 11, 2018)

Washington Examiner, Jim DeMint: This is how criminal justice reform gets done this year (Oct. 11, 2018)

Washington Free Beacon, Poll: Three-Fourths of Americans Oppose Central Plank of FIRST STEP Act (Oct. 11, 2018)

The Conversation, Reduced sentencing for nonviolent criminals: What does the public think? (Oct. 11, 2018)

– Thomas L. Root
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Senate Quibbles Over Kavanaugh While FIRST STEP Molders – Update for October 2, 2018

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FIRST STEP ACT STANDING STILL

It’s no surprise to anyone that the Senate’s version of the FIRST STEP Act, which reportedly will be amended to include some mandatory minimum sentence patches contained in the Senate Reform and Corrections Act of 2017, has been standing still since the White House deal brokered in late August.

mcconnell180219Recall that the White House convinced warring Republicans, led by Sen. Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee, to accept FIRST STEP as the vehicle to push prison and sentence reform through Congress. The irony was that Sen. Grassley and others did not think that FIRST STEP gave inmates too much. Instead, they complained that FIRST STEP gave inmates too little, because they see reform of drug mandatory minimums, Fair Sentencing Act retroactivity, and unstacking multiple 18 USC 924(c) sentences as essential.

Senate Majority Leader Mitch McConnell (R-Kentucky) fecklessly announced a month ago that he would not bring FIRST STEP to a floor vote until after the November mid-term elections, because he did not want to put Republican senators running for re-election in the position of having to take a stand on prison or sentencing reform. It hardly seems to be fraught with electoral peril: a recent University of Maryland poll found that over 70% of Americans favor reducing drug mandatory minimums and making the change retroactive.

The Brett Kavanaugh nomination fight could affect the chances of FIRST STEP passage, but what is going on in the nomination process is so unprecedented that no one can assess what that change will be. After one of the most bitter Senate battles in modern history, both parties might be eager to show the nation that the Senate can pass a measure with bipartisan support. As one commentator noted about the FIRST STEP Act last week, “The prison population is a lot smaller than the entirety of the American people and the ‘everyone wants this’ rationale doesn’t always work. In this case, however, bipartisanship is the truth.”

done160530On the other hand, the Republicans could be too bitter over Kavanaugh or even suffer a loss of the Senate. Right now, the Real Clear Politics poll predicts 47 solid Republican seats, 44 solid Democrat seats, and nine that are too close to call. It is entirely possible that the November election will cause Sen. McConnell to use the remaining few weeks of the 115th Congress to do things he will not be able to do in 2019. If that is the case, the FIRST STEP Act could become a casualty of political forces that have nothing to do with animosity toward federal inmates.

Last week, BOP inmate and former Illinois Governor Rod Blagojevich published a commentary in the Washington Examiner supporting prison reform, arguing that the government’s 97% conviction rate are strong arguments for reform. He wrote, “shouldn’t that fact raise an alarm bell to all freedom loving people? Michael Jordan, as great as he was, only made half the shots he attempted. And knowing what I now know through my experience, this almost perfect success rate is convincing proof that the federal criminal justice system works against the accused. It is neither a place to expect a fair trial nor is it a place where the promise of justice for all is a promise kept.”

Although you can be sure that there are good practical reasons for Congress to pass FIRST STEP, there is no guarantee that it will Another thing you can be sure of is that very little about the FIRST STEP Act will be heard in the next five weeks.

Civilcandor.com, Sentencing Reform Bills Won’t Help the Guilty by Accusation (Sept. 29, 2018)

Real Clear Politics, Election 2018 – Senate (Sept. 30, 2018)

fiWashington Examiner, Rod Blagojevich: My plea for prison reform (Sept. 28, 2018)

– Thomas L. Root

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Kushner Unrelenting On Criminal Justice Reform – Update for September 4, 2018

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KUSHNER PUTS PRESSURE ON SENATE TO PASS REFORM BILL

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

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

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

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

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

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

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

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

– Thomas L. Root

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After Wild Week, Criminal Justice Reform Postponed Until November, If Then – Update for August 27, 2018

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TOPSY-TURVY WEEK IN WASHINGTON FOR CRIMINAL JUSTICE REFORM

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

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

What a mistake leaving town turned out to be…

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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Rough Road Ahead in the Senate for Criminal Justice Reform? – Update for August 20, 2018

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CRIMINAL JUSTICE REFORM: TRUMP WANTED TO LEAD, NOW IT’S TIME TO DO IT

Now that the Senate has resumed sessions after a shorter-than-normal August break, criminal justice reform advocates are escalating pressure on Majority Leader Sen. Mitch McConnell (R-Kentucky). They want him to schedule a vote on the revised FIRST STEP Act bill, which will include mandatory minimum relief, a bill backed by President Donald Trump.

trumplogjam180806

But there are worrisome signs that a long-running GOP rift on the issue has not healed. Politico reports that interviews with a dozen GOP senators show that the future of FIRST STEP, either amended or in its original form, remains precarious. That’s because the handful of Republicans who have long protested reducing mandatory-minimum sentences leave McConnell without any incentive to call up legislation that would split his conference.

One of the critics of adding sentencing reform to the House-passed FIRST STEP Act, Sen. John Kennedy (R-Louisiana) predicted last week that McConnell would not bring the bill to the floor any time soon. “I’m not sure that we can put together a deal,” Kennedy said in an interview. “I’m not sure we should.” 

White House officials and FIRST STEP supporters have been talking with Republican holdouts to convince them to back the compromise, which adds four sentencing reform provisions to the House bill. Trump senior adviser and son-in-law Jared Kushner “will be making the rounds on the Hill,” according to a veteran Kentucky Republican strategist who now leads the nonprofit Justice Action Network. “And once we have the requisite number of Republican votes, I think his father-in-law is going to lean in hard.”

sessions180215A lot of involvement from the President will be required for the GOP to unify over reducing mandatory minimum sentences as part of a prisons package. Sen. Charles Grassley (R-Iowa) has 15 Republican cosponsors on the Sentencing Reform and Corrections Act, which contains mandatory minimum reductions, but Attorney General Jefferson Beauregard Sessions III opposes SRCA, and is even against FIRST STEP. Another conservative who is vocal in opposing either bill, let alone a blend of them, is Sen. Tom Cotton (R-Arkansas). Cotton wrote an op-ed piece last week that was breathtaking in its falsehoods and shibboleths, calling FIRST STEP a “jailbreak” sentencing bill that would flood the streets with stone-killer ex-cons. Cotton’s opinion piece was roundly condemned, but McConnell is hypersensitive to any dissention in the Republican caucus. There is little doubt that Cotton’s intemperate complaints concern McConnell a lot.cotton171226

Besides Cotton, other reliable allies of the White House, including Senate Majority Whip John Cornyn (R-Texas), are opposing the administration’s approach, which would combine FIRST STEP with changes to some of SRCA’s sentencing and mandatory minimums. The proposal nevertheless has wide, bipartisan support in the Senate.

Supporters say completing the bill would give the administration a needed win heading into November’s midterm elections. Opponents say it would make Trump look soft on crime.

A senior White House official said the Administration has 30 to 32 locked down “yes” votes among Republican senators. He offered hope that the number of Republican supporters could eventually grow as many as 40 to 46.

Trump and McConnell, once implacable foes, have forged something of a partnership these days. That arrangement will be tested in the coming days.

The Hill, Sentencing reform heats up, pitting Trump against reliable allies (Aug. 17, 2018)

CBS News, Trump, McConnell forge partnership as mid-terms approach (Aug. 17, 2018)

Politico, Criminal justice deal faces steep Senate hurdles despite Trump’s push (Aug. 17, 2018)

– Thomas L. Root

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What Will A Blended FIRST STEP Bill Contain? – Update for August 15, 2018

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

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WHAT WILL BE ADDED TO FIRST STEP IN THE WHITE HOUSE DEAL?

As we have reported, the Trump Administration is brokering a deal to amend the FIRST STEP Act to include some of the sentencing reform provisions of the Sentencing Reform and Corrections Act. The compromise, intended to appease SRCA co-sponsors Sen. Charles Grassley (R-Iowa) and Sen. Richard Durbin (D-Illinois), should clear the way for a Senate vote on FIRST STEP, and passage of some badly needed prison reform.

grassley180604Not everything in SRCA will get dropped into the Senate version of the FIRST STEP Act. Nevertheless, what is proposed is significant to a lot of people.

The SRCA additions to FIRST STEP will probably include:

• Reductions in some drug mandatory minimums, reducing penalty from life to 25 years for a third drug conviction, and from 20 to 15 years for a second drug conviction.

Sentencestack170404•   Ending 18 USC 924(c) “stacking” charges. This provision would prohibit the doubling up of mandatory sentences for carrying a gun during drug or violent crime offenses. The way 924(c) is written now, a defendant who carries a gun while selling pot three days in a row commits three separate 924(c) offenses. The first one carries a consecutive 5 years, and the second and third each carry a consecutive 25 years, meaning the defendant gets 55 years plus the pot sale guidelines. The change in the law makes clear that the increased penalty for a second or third 924(c) offense applies only after conviction for the first one.

• Increase “safety valve” application. This provision would give judges more discretion in giving less than the mandatory minimum for certain low-level crimes, including people with Criminal History II in the safety valve provisions of 18 USC 3553(f).

• Retroactivity for the 2010 Fair Sentencing Act. This provision would make the FSA, which changed sentencing guidelines to treat offenses involving crack and powder cocaine more equally, retroactive to people sentenced before the law went into effect.

"Just the facts, FAMM."
                          “Just the facts, FAMM.”

Last Friday, FAMM released an extended series of fact sheets reviewing which SRCA sentencing provisions are in play. The document, written as a memo to Congress members and staff, is entitled “Fact sheets explaining potential sentencing additions to FIRST STEP Act.” It explains in detail the provisions possibly being added to FIRST STEP, and describes cost savings and justice issues surrounding each.

Also last week, Marc Holden, general counsel to Koch Industries and point man for the Koch initiatives on criminal justice reform, wrote, “By supporting these smart-on-crime, soft-on-taxpayers reforms, President Trump is demonstrating exemplary leadership. If Congress is able to pass the FIRST STEP Act with these sentencing provisions included, it would give the president a lasting, landmark achievement on criminal justice reform that has eluded previous administrations.”

FAMM, Facts sheets explaining potential sentencing additions to FIRST STEP Act (Aug. 10, 2018)

Freedom Partners, President Trump is Leading on Criminal Justice Reform; Senate Should Send Him a Bill (Aug. 9, 2018)

– Thomas L. Root

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