We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
INMATE FAMILIES LEAN ON SENATORS FOR PRISON REFORM
About a hundred family members of incarcerated federal inmates met with nearly half of the United States Senate last Wednesday to urge passage of the FIRST STEP Act, the Trump-backed prison reform bill that passed the House in May.
The FIRST STEP Act would expand the training and educational programs, allow eligible inmates to earn time credits they could use for more halfway house or home confinement, widen compassionate release and elderly offender release programs, and force the BOP to honor a 500-mile from home limit on prison selection in most cases.
FIRST STEP has not been voted on in the Senate, and has been opposed by over 70 left-leaning social justice groups that want the bill to include mandatory minimum sentencing reform for non-violent drug offenders.
At a rally held on the Capitol steps last Tuesday hosted by the nonprofit Families Against Mandatory Minimums, family members spoke about their experiences and how the FIRST STEP Act would not only benefit their imprisoned loved ones but would also benefit them as well.
FIRST STEP does not include changes to mandatory-minimum sentencing, but FAMM and other groups argue that federal inmates and their families cannot wait any longer for Congress to fix a broken prison system in hopes of a perfect bill sometime in the future.
“Did you know that the Bureau of Prisons recently confirmed that there are 16,000 people in the federal system awaiting literacy classes?” James Ackerman, CEO of the evangelical prison ministry Prison Fellowship, said during the rally. “It is shameful. We can almost guarantee that somebody is going to have a very difficult time re-entering society from prison if they can’t read.”
As Prison Fellowship has been one of the most active supporters of the FIRST STEP Act, Ackerman asserted that the legislation will order the BOP to implement programs to help inmates with all different kinds of problems.
Under the legislation, prisoners would receive individual assessments to determine what kind of support they need while serving their time — whether it is anger management, addiction rehabilitation, job training, life skills education or financial management training.
“We have been in communication with the White House over the course of the last year,” Ackerman told the rally. “I can confirm for you that the White House, we have been told, is supportive of the FIRST STEP Act. If they get a bill passed, it goes to the White House and we are going to have people coming home.”
Prison Fellowship Senior Vice President Craig DeRoche said the focus is now on Senate Majority Leader Mitch McConnell (R-Kentucky) to put the bill up for a vote. He hopes McConnell will do so before the Senate breaks for the summer.
Although Prison Fellowship supports sentencing reform bills, DeRoche does not think the Sentencing Reform and Corrections Act, supported by Judiciary Committee chairman Charles Grassley (R-Iowa) and Sen. Richard Durbin (D-Illinois) is viable given the current political make-up and the Trump administration’s seeming opposition to sentencing reform.
FAMM apparently agrees. “You can imagine that no one wants mandatory minimums more than a group called Families Against Mandatory Minimums,” FAMM president Kevin Ring said. “But we are also cognizant of the political environment in which we find ourselves. The attorney general doesn’t support sentencing reform. The president doesn’t seem to support sentencing reform. But as the theme of this rally indicates, we can’t wait for any progress just because we can’t get everything. We wish it would include sentencing but we are going to get what we can.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
CONGRESS RETURNS TO TOWN WITH CRIMINAL JUSTICE REFORM STILL ON ITS PLATE
The House and Senate were not in session last week, as legislators celebrated the July 4th holiday however they do it. The Senate returns today, and the House tomorrow, with the criminal justice debate still hot, and an announcement about a new Supreme Court justice looming.
A recap: The House has passed the FIRST STEP Act, which proposes a number of prison reforms, including a full 54 days a year of good time, better compassionate release and elderly prisoner release policies, and credits for programming that can be used to earn more halfway house and home confinement. The bill is stalled in the Senate, because the senior Republican and Democrat on the Judiciary Committee – Charles Grassley (R-Iowa) and Dick Durbin (D-Illinois) – do not want the FIRST STEP’s prison reform without sentencing reform bundled along with it.
The sentencing reform proposals are contained in the Sentencing Reform and Corrections Act of 2017. SRCA proposes to make the Fair Sentencing Act retroactive for crack defendants sentenced before the 2010 FSA, to unstack 18 USC 924(c) sentences, and to reduce a substantial number of the mandatory minimums in 21 USC 841(b), which are generally known as “851 enhancements.” As of the end of June, Grassley and Durbin were pressing President Trump to support SRCA as well as FIRST STEP, and we were observing that as of 9 pm this evening (when Trump names his Supreme Court nominee), he is going to need a lot of help from Grassley to get the nominee through the Judiciary Committee.
Trump is needed, because all indications are that Senate Majority Leader Mitch McConnell does not intend to bring FIRST STEP or SRCA to a Senate vote without White House approval. If the bills are not voted on by the end of the year, they will die, and the whole process will have to start over next January.
Of course, Attorney General Jefferson Beauregard Sessions III is dead set against any reduction of mandatory minimums or extension of the FSA, and his conflict with Jared Kushner, Trump’s son-in-law and advisor, over reform has not helped McConnell find his backbone. In a thoughtful opinion piece in The Washington Post last Thursday, Michael Gerson noted the success Texas have had with modifying harsh mandatory minimums, and suggested that the evidence means
that the criminal-justice views of the attorney general are far to the right of the Texas state legislature, which puts him in small and disturbing company. It means that Sessions’ opposition to sentencing reform is rooted in vindictiveness and ideology rather than a conservative respect for facts and outcomes. And it means that Sessions has learned nothing from federalism, which he seems to respect only when it fits his preconceptions.
Gerson argued that prison reform should succeed because of “trans-partisanship,” which is defined as “agreement on policy goals driven by divergent, deeply held ideological beliefs.” Liberals see racism and unfairness in the criminal justice system. Fiscal conservatives see wasted resources. Religious activists see damaged lives. Gerson wrote, “All these convictions converge at one point: We should treat offenders as humans, with different stories and different needs, instead of casting them all into the same pit of despair.”
Also speaking practically, the magazine American Conservative last Friday noted that mandatory minimums and other policies that make America the incarceration capital of the world, a product of the lock-’em-up mentality, have “tarnished the image of Republicans and conservatives in the minds of many. Though Republicans have greatly increased their political power in recent elections, they have nevertheless alienated many of the fastest growing segments of the electorate, casting a pall across the impressive electoral successes of the past decade.”
In a lengthy article, the authors called for the “extension of conservative principles to criminal justice policies.” They observed that “right-leaning organizations, armed with polling data that show significant backing from many conservatives, are mobilizing on criminal justice issues. It’s time to leverage these efforts to rebuild the conservative identity. Perhaps no other policy area holds more potential than criminal justice reform.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SENATORS SEEK TO RECRUIT TRUMP TO BACK SENTENCE REFORM
The Senatorial Odd Couple – conservative Sen. Charles Grassley (R-Iowa) and liberal Richard Durbin (D-Illinois) – held a joint press conference last Tuesday to try to recruit President Trump as an ally to help move the Sentencing Reform and Corrections Act of 2017through the Senate.
Grassley and Durbin – No. 1 and 2 on the Senate Judiciary Committee – urged the president to get involved in the reform process — “in a positive way,” Durbin pointedly suggested. “We need for the president, the president of the United States, to say this is a priority for us as well. Let’s do this criminal justice reform, to include prison reform… What a breakthrough that would be.”
Grassley noted that Trump frequently tweets about Senate Democrats needing “to do something.” He said criminal justice reform is tailor-made for Trump’s action agenda. “It kind of is a good combination between what’s good politics and what’s good policy… This is an opportunity for the president to have a win. It’s an opportunity for our justice system to have a win. … It would help a lot if the president would engage on this very important issue,” Grassley said.
Attorney General Jefferson Beauregard Sessions III – death to misdemeanants?
Grassley has engaged Attorney General Jefferson Beauregard Sessions III and White House adviser and Trump advisor and son-in-law Jared Kushner on the issue, which has probably left the Senator 1-1: Kushner is a supporter, while Sessions would likely support expanding the death penalty to cover misdemeanors.
Grassley said Sessions told him that SRCA would not undercut the administration’s “tough on crime” stance. “I thought that I determined an opening. Well that opening hasn’t materialized and obviously I didn’t make an impact,” Grassley said.
That may change very soon. Grassley has suddenly become very important to Donald Trump, because it is the Judiciary Committee that will conduct hearings on Trump’s Supreme Court nominee, who will be announced next Monday. The Republicans badly want to confirm the new justice, who will replace the retiring Anthony Kennedy, and Grassley, as chairman of Judiciary, holds a few of the keys to the kingdom.
That’s good news, because criminal justice reform has largely stalled on Capitol Hill. The House passed the FIRST STEP Act, which only addresses prison reform, and Senators John Cornyn (R-Texas) and Sheldon Whitehouse (D-Rhode Island) have introduced a similar bill in the Senate. But Grassley and Durbin are pushing broader criminal justice reform legislation that include both the sentencing reform changes in SRCA and the prison reform changes of FIRST STEP.
Last Tuesday, Kushner met with Cornyn and Whitehouse, as well as FIRST STEP sponsors Reps. Doug Collins (R-Georgia) and Hakeem Jeffries (D-New York) from the House of Representatives, to strategize on how to move FIRST STEP forward following House passage last month, according to a report on the Axios news website.
SRCA has the backing of more than a fourth of the Senate, and Grassley and Durbin reiterated last Tuesday that they believe they have the 60 votes needed to pass the legislation in the Senate if they are able to get the bill to the floor. Bringing the bill up for a vote requires the approval of Senate Majority Leader Mitch McConnell (R-Kentucky). McConnell will do what Trump wants him to do. Trump needs Grassley’s cooperation, and Grassley needs Trump’s backing on comprehensive criminal justice reform. Trump does not much need Sessions, whom has been in Trump’s doghouse for well over a year.
Trump’s recent pardons and commutations suggests that maybe the Russia probe has sensitized him to what it feels like to have the Dept. of Justice and FBI gunning for you. Amy Povich of the CAN-DO Foundation said of Trump, “I am encouraged that for the first time we are seeing somebody who possibly understands the complexities of the Office of the Pardon Attorney being controlled by the Department of Justice. There are a lot of dirty cases and they don’t want those to see the light of day, so they let their prosecutors have the largest voice as to which cases go over there. Trump now apparently understands this and that is why he’s asking for a list. We are honored to have been asked to provide a list, so fingers crossed.”
Risk-assessment company Skopos Labs sets the odds of FIRST STEP becoming law at 82% as of today, and rates SRCA’s chances at 63%.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
KUSHNER LOBBYING SENATE IN SUPPORT OF FIRST STEP ACT
Senators Charles Grassley (R-Iowa), Dick Durbin (D-Illinois), Kamala Harris (D-California) and Cory Booker (D-New Jersey) remain adamantly opposed to any bill that does not modify mandatory minimums. Nevertheless, the conservative Koch-backed group Freedom Partners announced last week that it was embarking on a spending pitch urging senators to support FIRST STEP despite Republican disagreement. The first round of mailings from Freedom Partners targets 15 Democratic senators and two Republicans: Grassley and Sen. Orrin Hatch (R-Utah).
CNN commentator Van Jones, a progressive who founded the criminal justice reform advocacy group #cut50, has been working closely with Kushner urging passage of prison reform. He told The Marshall Project this week:
Van Jones
Where is this strong bipartisan coalition for sentencing reform [that some claim exists]? I know that they were able to get the Sentencing Reform and Corrections Act out of committee in judiciary, which is good on the Senate side, but there is zero chance that that bill is going to be brought for a vote by Senate Majority Leader Mitch McConnell in its present form, and there’s not even a strategy to get McConnell to check it out, that I can tell. A lot of the Republicans do want sentencing reform, but they can’t start there with a critical mass of their other colleagues.
An opinion piece in The Hill last week noted that “the problem of prison overcrowding and systemic biases against African Americans cannot be solved by presidential pardons alone. Nonetheless, Trump’s attention to these issues might help drive reforms through legislation and prosecutorial decisions. Significant criminal justice reforms are necessary, beginning with addressing the root causes of offending, which include mental illness and lack of family, education, employment and/or social opportunities.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE WIND MAY BE SHIFTING
We have previously reported that the prison reform bill named FIRST STEP Act, H.R. 5682, faces a tough battle in the Senate, starting with the unwillingness of Senate Majority Leader Mitch McConnell to bring it to a vote, and Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) pledging that no FIRST STEP Act will pass without the Sentencing Reform and Corrections Act (S.1917) being written into FIRST STEP’s provisions.
But it was a wild week in the nation’s capital last week, and as a result, the goal may be closer than ever. In one of Washington’s most interesting plot twists, historic criminal justice reform legislation now finds itself atop Trump’s policy agenda, and one floor vote away from his signature.
A detailed story in Foreign Affairs last week suggested that a deal that includes some first-step changes to harsh sentencing laws is now likelier in the wake of the Alice Johnson commutation of the life sentence of Alice Marie Johnson. Even Sessions has said he could support reforms to “stacking” provisions in 18 USC 924(c), which results in first-timers getting three or more stacked 924(c) enhancements for a single course of conduct, with sentences of 62 years or more for what should be a 12-year bit.
While the SRCA proposal to reform what are generally (and misleadingly) called “851” enhancements (provisions in 21 USC 841(b) that double mandatory minimum sentences for prior state felony drug convictions), might not make it, a compromise could include a broader safety valve, which would give judges more discretion to depart from mandatory minimums when circumstances warrant.
Senators Mike Lee (R-Utah) and Rand Paul (R-Kentucky), both longtime SRCA supporters, will be key brokers in any deal. Lee could help bring Democrats such as SRCA supporters Richard Durbin (D-Illinois) and Cory Booker (D-N.J.) to the table, and Paul shares a backyard with McConnell, who will determine if the bill even gets a vote.
Also heartening was McConnell’s unpopular announcement last week that the Senate will not take the month of August off, as it usually does, but instead stay in town to complete a lot of unfinished business.
All is not roses, however. Senator Tom Cotton (R-Arkansas), one of the few Americans who believes the country has an “underincarceration problem,” has mounted a guerrilla campaign to undermine FIRST STEP’s support on the right. For example, he is reportedly pushing law-enforcement groups to oppose the bill. His efforts have borne fruit recently, as the Federal Law Enforcement Officers Association withdrew its endorsement of the bill after being pressured by Cotton’s office. Also, last week, the National Association of Assistant U.S. Attorneys slammed FIRST STEP, but that group hardly needed Cotton’s urging to do so.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
WILL THE KARDASHIANS SAVE SENTENCE REFORM?
Talk about headlines we never imagined ourselves writing… The twists and turns of federal sentence and prison reform legislation get weirder and weirder. Last week, as Senate Republicans fought one another over whether FIRST STEP Act (H.R. 5682) did enough to benefit prisoners, President Trump had a sit-down in his office with Kim Kardashian over a commutation for Alice Martin, a grandmother doing life at FCI Aliceville, and then pardoned a conservative New York filmmaker who did 8 months in a halfway house over a two-bit campaign finance crime.
So why does this matter to federal prisoners?
To start, The Hill reported last week that the Senate is “under growing pressure” to take up the FIRST STEP Act, which is a priority Trump son-in-law and senior adviser, Jared Kushner. But Senate negotiators say they are not close to a deal that would allow the bill to move quickly.
Instead, the fight is pitting two influential senators, John Cornyn (R-Texas) and Judiciary Committee Chairman Charles Grassley (R-Iowa), against each other as they back competing bills. “We’ve got work to do here on building consensus… but right now we don’t have it,” Cornyn said last week. The divisions could scuttle any chance that the Trump-backed FIRST STEP becomes law this year.
Both Cornyn and Grassley are signaling they plan to press forward with trying to build support for their own separate bills once the Senate returns to Washington, D.C., this week. “We’re going to take up my bill,” Grassley said, referring to the Sentence Reform and Corrections Act (S.1917). “Or I should say, my bipartisan bill that’s got 28 co-sponsors — equal number Republicans and Democrats… What the House does through [FIRST STEP] is about the equivalent of a spit in the ocean compared to what the problem is of too much imprisonment.”
SRCA would link prison reform to reductions in mandatory minimums for certain drug offenses, correction of stacked 924(c) convictions, and retroactivity of the 2010 Fair Sentencing Act. Both Grassley and Durbin say they’ve made a deal not to separate the prison and sentencing reform components despite pressure from the White House.
The Hill reports that SRCA is unlikely to be taken up in the Senate given opposition from Trump officials, chiefly Attorney General Jefferson Beauregard Sessions III. Grassley admitted last week he has not yet convinced Senate Majority Leader Mitch McConnell (R-Kentucky) to bring SRCA to the floor. “You’ve got to remember that McConnell doesn’t like the bill,” Grassley said, “and all I can say is that you ought to let a Republican president who needs a big, bipartisan victory have a bipartisan victory.”
Last week, McConnell told senators, “Look, guys, if you all can get your act together and come up with something that you’re comfortable with, that the president will sign, I’d be willing to take a look at it.”
Enter Kim Kardashian West, reality TV star and wife of Kanye West. Kim, who made early release for federal prisoner Alice Martin. Kardashian visited the White House on Wednesday to urge President Trump to commute the sentence of a 63-year-old grandmother serving life for a first-time drug offense. In pleading her case for a commutation for the inmate, Kardashian seized upon draconian federal sentencing practices that can put low- or midlevel nonviolent offenders away for decades, even life.
Interestingly, Trump – who tends to agree with the last person who spoke to him –tweeted that he and Kardashianhad a good visit, and talked about “prison reform and sentencing.” This left some observers hopeful that the President was listening to people other than Sessions, and was about to signal his support for adding some sentencing reform measures to FIRST STEP. At the same time, Trump’s interest in harsh sentencing may help McConnell find some backbone to put FIRST STEP and SRCA to a vote.
Meanwhile, debate continued about the FIRST STEP Act. The liberal opponents of FIRST STEP argue that passing the bill, which lacks any reform of mandatory minimum sentence, would leave Congress and the administration believing they had solved mass incarceration, and thus not willing to address the issues at the heart of the prison problem anytime soon. But the Washington Post suggested this fear is overblown:
If Democrats take control of the House in November, they will be able to revisit the issue anytime they want — but they will have real clout to go along with their passion,” the Post said. “Nothing in the current bill precludes bolder, more comprehensive action when the votes, and the president’s pen, are lined up and ready.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
FUTURE OF THE FIRST STEP ACT IS FAR FROM CLEAR
Supporters of a federal criminal justice system overhaul seemed well on their way to victory after the FIRST STEP Act breezed through the House last week on an impressive bipartisan vote. The Act, H.R. 5682, has strong administration backing, including the fingerprints of Jared Kushner, the presidential adviser and son-in-law. It has some important Senate supporters. But a lot of informed people are still predicting that neither the FIRST STEP Act nor any other criminal justice reform bill will pass the Senate this year.
First, senior Senate authors of the long-stalled Sentencing Reform and Corrections Act, S.1917 – including Senate Judiciary chairman Charles Grassley (R-Iowa), are steadfastly opposed to FIRST STEP. They consider it an insufficient half-measure for its focus on prison programs without changes in federal sentencing laws. Plus, Grassley is still smarting from his inability to pass SRCA last year, and he says he’s not going down without a fight.
Second, Senate Majority Leader Mitch McConnell (R-Kentucky) is highly unlikely to try to move the bill through the Senate as long as Grassley is opposed to it, according to Republican senators and aides. They say McConnell, who is not that keen on criminal justice legislation in general, is definitely uninterested in circumventing his Judiciary Committee chairman and provoking an intra-party fight that would eat up weeks of floor time. A Republican senator said flatly of McConnell’s view of the bill right now: “It’s not on the priority list.” If McConnell decides not to bring the bill to a vote, no one can force him to do so.
Third, impressive groups of opponents to FIRST STEP are lining up on both sides of the aisle. Attorney General Jefferson Beauregard Sessions III Sessions, a former senator himself, opposes SRCAand is lukewarm about FIRST STEP. And even the narrower FIRST STEP bill will probably face opposition on the right from Sessions’ allies, like Senator Tom Cotton (R-Arkansas), who once memorably said America has an “under-incarceration problem” and is reportedly stirring up opposition to FIRST STEP among law enforcement groups.
At the same time, FIRST STEP is opposed by some civil-rights groups, former Attorney General Eric Holder, and a coalition of leading Senate Democrats, including Richard Durbin (D-Illinois), Cory Booker (D-New Jersey), and Kamala Harris (D-California). In a letter last week, the senators said FIRST STEP would be “a step backwards” and that prison reform would fail if Congress did not simultaneously overhaul the nation’s sentencing laws. Also signing the letter were Representatives Sheila Jackson Lee (D-Texas) and John Lewis D-Georgia).
Last Wednesday, a group of senators asked McConnell for a last-ditch negotiation session to seek an acceptable compromise. SRCA backers fear this may be the only chance for years to come to pass major criminal justice reform. “You don’t get many opportunities around here to do anything meaningful or substantive,” said Durbin, a chief author of the sentencing provisions. “Let’s not waste this one. Let’s get this right.”
Although Trump supports FIRST STEP, it’s unclear how he would react if Congress sent him a bill that included SRCA-style sentencing reforms. A prison reform-only bill gives Trump what he wants: To look tough to his base by not budging on sentences while also showing evangelicals he believes in “second chances.” Adding sentence reform might be too much for him.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
FULL HOUSE OF REPRESENTATIVES PASSES FIRST STEP ACT, PUTS THE BALL IN THE SENATE’S COURT
The U.S. House of Representatives upped the ante on criminal justice reform late yesterday afternoon by passing the admittedly limited (and some say flawed) FIRST STEP Act,H.R. 5682, by an overwhelming 350-59 vote.
The House Judiciary Committee approved the bill two weeks ago by a 25-5 vote, sending it to the House floor for a vote, replacing the Prison Reform and Redemption Act, H.R. 3356. Reps. Doug Collins (R-Georgia) and Hakeem Jeffries (D-New York), co-sponsors of the PRRA, wheeled and dealt with committee members to revise a number of provisions, which resulted in their introducing the new FIRST STEP Act.
But if the measure did become law as it is written today, this is some of what it would do:
(1) RISK ASSESSMENT AND PROGRAMMING CREDIT
FIRST STEP proposes to use a new “risk assessment” tool, which the Federal Bureau of Prisons will develop and employ over 18 months to calculate how likely an inmate is to commit new crimes upon release. Once everyone is assessed as minimum, low, medium or high, some inmates will be entitled to get earned-time credits that may be cashed in for more halfway house or home confinement that what BOP was otherwise prepared to offer.
The BOP is responsible for identifying the programs that will entitle inmates to credit. Programs that could earn credit include working at UNICOR, RDAP, GED and adult education programs, as well as mental health programs. Inmates participating the approved programs can earn 10 days of credit for every 30 days of classes. Once an inmate has worked down to the minimum risk for recidivism, he or she can get 15 days for every 30 days of programming. The bill also provides that while inmates are successfully completing courses, the BOP should extend other benefits, including higher commissary spending limits, longer phone time, more visiting hours, and closer-to-home transfers. The bill suggests that all inmates can earn these rewards, but only eligible inmates can get time credits.
Priority for participation in recidivism reduction programs is to be given to medium-risk and high-risk prisoners, with access to productive activities given to minimum-risk and low-risk prisoners. Inmates may use credits earned in the programs to serve more time in halfway houses or on home confinement.
(2) GOOD TIME INCREASE
Title 18, USC 3624(b) has always said that inmates can earn 54 days a year in good time. The BOP, however, interpreted the statute to mean that after a year, you get your 54 days. Everyone else thought that you get 54 days after 319 days, to make a full year. The difference in interpretation, upheld by the Supreme Court, was seven days.
FIRST STEP cleans up the good-time language of 18 USC 3624(b) to give inmates the extra seven days, and makes the change retroactive to the first day of all current sentences. So in a 60-month sentence, an inmate would get 35 more days lopped off his sentence. It may not seem like a lot, but everyone with an “out date” – no matter what the offense – gets the cut. This is estimated to affect 93% of all federal inmates (the remainder serving life sentences or on death row).
(3) CLOSER TO HOME
The bill also directs the BOP to make placing an inmate near home for his or her whole bit a top priority. BOP still has wiggle room for bed space, programming, CIM status and the such, but the 500-mile distance will now be 500 driving miles, not the 500 straight-line miles BOP used previously, which were a hardship to so many. And it will make the 500-mile limit a statutory imperative, harder for the BOP to ignore.
(4) MAX HOME CONFINEMENT
The bill also amends 18 USC Sec. 3624(c)(2) to require the BOP, “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.” That time, 10% of a sentence up to a maximum of six months, remains unchanged.
(5) ELDERLY OFFENDER, COMPASSIONATE RELEASE WILL BE D-I-Y
The bill changes the elderly offender program, extending it to the whole BOP system, not just a few prisons. It also drops the age for elderly offenders from 65 to 60, drops the requirement that the amount of the sentence served from 75% to 67%, and completely eliminates the requirement that the inmate serve a minimum of 10 years.
Best of all, the elderly offender program, the eligible terminally ill offender program, and the compassionate release programs would all now permit the inmate himself or herself to file with the courts for relief if the BOP fails or refuses to make the request itself.
(6) SO WHO IS ELIGIBLE?
Everyone other than those with life sentences will get an additional seven days off per year, retroactive to the beginning of their current sentence. Likewise, everyone will be eligible for in-prison benefits like higher commissary limits, better visitation, preferential housing, or more phone time.
However, the real prize for completion of rehab programs will be the RRC credits, additional time awarded to people for halfway house or home confinement, and there is a long list of inmates not eligible for RRC credits. The most common excluded categories are people serving sentences under Title 18 or Title 21 for
(1) Sec. 113(a)(1), relating to assault with intent to commit murder.
(2) Sec. 115, relating to influencing, impeding, or retaliating against an official by injuring a family member, except for a threat made in violation of that section
(3) Any section of chapter 10, relating to biological weapons.
(4) Any section of chapter 115, relating to chemical weapons.
(5) Any Sec. of chapter 39, relating to explosives and other dangerous articles, except for Sec. 836 (relating to the transportation of fireworks into a State prohibiting sale or use).
(6) Sec. 842(p), relating to distribution of information relating to explosive, destructive devices, and weapons of mass destruction, but only if the conviction involved a weapon of mass destruction (as defined in Sec. 23382a(c)(2) of such title).
(7) Subsec. (f)(38), (h), or (1) of Sec. 844, relating to the use of fire or an explosive.
(8) Sec. 924(e), relating to unlawful possession of a firearm by a person with 3 or more convictions for a violent, felony.
(9) Sec. 10380(a)(1), relating to fraud and related activity in connection with computers.
(10) Any section of chapter 951, relating to homicide, except for Sec. 1112 (relating to manslaughter), 1113 (relating to attempt to commit murder or manslaughter, but only 1f the conviction was for an attempt to commit manslaughter), 1115 (relating to misconduct or neglect of ship officers), or 1122 (relating to protection against the human immunodeficiency virus).
(11) Any section of chapter 55, relating to kidnapping.
(12) Any offense under chapter 77, relating to peonage, slavery, and trafficking in persons, except for Secs 1592 through 1596.
(13) Sec. 1751, relating to Presidential and Presidential staff assassination, kidnapping, and assault.
(14) Sec. 1841(a)(2)(C), relating to intentionally killing or attempting to kill an unborn child.
(15) Sec. 1992, relating to terrorist attacks and other violence against railroad carriers and against mass transportation systems on land, on water, or through the air.
(16) Sec. 2113(e), relating to bank robbery resulting in death.
(17) Sec. 2118(e)(2), relating’ to robberies and burglaries involving controlled substances resulting in death.
(18) Sec. 2119(3), relating to taking a motor vehicle (commonly referred to as ‘carjacking’) that results in death.
(19) Any section of chapter 109A, relating to sexual abuse, except that with regard to Sec. 2244, only a conviction under subsec. (c) of that section (relating to abusive sexual contact involving young children) shall make a prisoner ineligible under this subparagraph.
(20) Sec. 2251, relating to the sexual exploitation of children.
(21) Sec. 22514, relating to the selling or buying of children.
(22) Any of paragraphs (1) through (3) of Sec. 2252(a), relating to certain activities relating to material involving the sexual exploitation of minors.
(23) A second or subsequent conviction under any of paragraphs (1) through (6) of Sec. 2252A(a), relating to certain activities relating to material constituting or containing child pornography.
(24) Sec. 2260, relating to the production of sexually explicit depictions of a minor for importation into the United States.
(25) Sec. 2284, relating to the transportation of terrorists.
(26) Sec. 2291, relating to the destruction of a vessel or maritime facility, but only 1f the conduct which led to the conviction involved a substantial risk of death or serious bodily injury.
(27) Any section of chapter 1135, relating to terrorism.
(28) Sec. 2340A, relating to torture
(29) Sec. 2381, relating to treason
(30) Sec. 2442, relating to the recruitment or use of child soldiers.
(31) Sec. 401(a) of the Controlled Substances Act (21 U.S.C. 841) relating to manufacturing or distributing a controlled substance, but only in the case of a conviction for an offense described in subparagraph (A), (B), or (C) of subsec. (b)(1) of that section for which death or serious bodily injury resulted from the use of such substance.
(32) Sec. 276(a) of the Immigration and Nationality Act (8 U.S.C. 1326), relating to the reentry of a removed alien, but only if the alien is described in paragraph (1) or (2) of subsec. (b) of that section.
(33) Sec. 601 of the National Security Act of 1947 (50 U.S.C. 3121), relating to the protection of identities of certain United States undercover intelligence officers, agents, informants, and sources.
(34) An offense described in Sec. 3559(c)(2)(F), for which the offender was sentenced to a term of imprisonment of more than one year, if the offender has a previous conviction for which the offender served a term of Imprisonment of more than one year, for a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in Sec. 1111), voluntary manslaughter (as described in Sec. 1112), assault with intent to commit murder (as described in Sec. 113(a)), aggravated sexual abuse and sexual abuse (as described in Secs 2241 and 2242), abusive sexual contact (as described in Secs 2244(a)(1) and (a)(2)), kidnapping (as described in chapter 55), carjacking (as described in Sec. 2119), arson (as described in Sec. 844(f)(3), (h), or ()), or terrorism (as described in chapter 113B).
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE LAGNIAPPES
In New Orleans, a lagniappe is a little gift that comes with goods and services you buy. The FIRST STEP Act, which we’ve been writing about the past few days, has a few lagniappes, too.
First, the law has always said that inmates can earn 54 days a year in good time. The BOP, being the bureaucracy it is, interpreted that in the most restrictive way possible, a tortured reading that after a year, you get your 54 days. Everyone else with a GED or above thought that you get 54 days after 319 days, to make a full year. The BOP’s twisted interpretation, upheld by the Supreme Court (and – note to Justice Gorsuch, we cannot limit Chevron deference soon enough), screwed inmates out of seven days a year.
FIRST STEP cleans up the good-time language of 18 USC 3624(b) to get inmates the extra seven days, and makes the change retroactive to the first day of an inmate’s current sentence. So in a 60-month sentence, a prisoner will get 35 more days lopped off his or her sentence. It may not seem like a lot, but everyone with a release date (not including lifers and death sentence people) – no matter what the offense – gets the cut.
The bill also directs the BOP to make placing an inmate near home for his or her whole sentence a top priority. BOP still has wiggle room, but the 500-mile distance will now be 500 driving miles, not the 500 straight-line miles BOP used previously, which were a hardship to so many. A real-life example: an inmate from Port Huron, Michigan – at the southern end of Lake Huron – was sent to MDC Brooklyn, a federal prison in New York City. That was well within 500 air miles from Port Huron, but was 685 miles by road (unless the family cut through Canada, where it was still 610). Under the old BOP standard, New York City was “close to home” north of Detroit. Under the new one, not so much.
The bill also amends 18 USC Sec. 3624(c)(2) to require the BOP, “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.” That time, 10% of the sentence up to six months, remains unchanged.
Finally, the bill re-ups the BOP’s elderly offender program. The original program, authorized by Congress in the Second Chance Act of 2008, was a whopping failure. Out of 200,000 inmates in the system, the BOP only found 85 people who met its criteria for the program. The BOP found that the program achieved no cost savings, a finding that was sufficiently puzzling that Congress sic’ed the Government Accountability Office on the project. The GAO, unsurprisingly, found that the BOP had cooked the books, and substantially understated the costs of keeping people locked. up.
The FIRST STEP Act extends the pilot program to the whole BOP system, not just a few prisons. Also, the bill drops the age for an elderly offender from 65 to 60, drops the requirement that the percentage of sentence completed from 75% to 67%, and completely eliminates the requirement that the inmate have served at least 10 years to be eligible.
Best of all, the elderly offender program, the eligible terminally ill offender program, and the compassionate release programs would all now permit the inmate to file with the courts for the program directly. Previously, the BOP was the sole gatekeeper under 18 USC 3582(c)(1). Generally, a snowball stood a better chance in Death Valley than an inmate stood of getting the BOP to recommend an elderly or compassionate release program.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
UNWRAPPING THE FIRST STEP BILL
We have been reporting on the FIRST STEP Act, H.R. 5682, the House’s current iteration of prison reform, now expected to be voted on next month. Today, we’re going to look briefly at what the bill would do.
FIRST STEP proposes to use a new “risk assessment” tool, which the BOP will employ during the first 18 months after passage to calculate how likely each inmate in its custody is to commit new crimes upon release. Once everyone is assessed as minimum, moderate or high likelihood of recidivism,, some inmates will be entitled to get earned-time credits that may be cashed in for more halfway house or home confinement that what BOP was otherwise prepared to offer (which isn’t much, see here).
The eligible programs will be those found by the BOP to reduce recidivism. The bill suggests that this definition is intended to be broad enough to enable inmates earn credits – up to 10 days off for every 30 days of a program – for everything from the Residential Drug Abuse Program (RDAP) and GED to Adult Continuing Educations courses (often taught by inmates) and even working at UNICOR (Federal Prison Industries), which already is a plum job assignment. Once an inmate has worked down to the minimum category for risk for recidivism, the benefit for every 30 days of programming will increase from 10 to 15 days.
The bill also provides that while inmates are successfully completing courses, they should be entitled to other in-prison benefits, including higher monthly commissary spending limits, longer monthly phone time (beyond the standard 300 minutes per month), more visiting hours, and closer-to-home transfers. The bill suggests that all inmates can earn these rewards, regardless of offense, but only eligible inmates can get time credits.
The “ineligibles” are comprised of some 49 offense categories, but generally can be grouped as people who were convicted of violent crimes, Armed Career Criminal Act inmates, and sex offenders.
FIRST STEP is not without critics, most of whom complain the bill seeks to get inmates into programs that already are too full. According to Kara Gotsch of the Sentencing Project, the wait list for BOP GED programs is currently at 15,000 people. In a letter to the House Judiciary Committee last month, dozens of civil rights groups described the legislation as “an empty promise” that would likely be “doomed to fail.”
And the credits that earn a prisoner more halfway house? Mother Jones magazine complains that halfway houses already lack enough beds to accommodate the number of inmates who should have access to them. Because FIRST STEP requires the BOP to honor earned-time credits, passage of the bill could very quickly have an irresistible force (the law) meet an immovable object (the capacity of the halfway house system).
Also, the bill doesn’t allow all inmates to cash in on earned-time credits accrued through rehabilitative programming. Prisoners convicted of a range of crimes of violence, some drug kingpin offenses and sex offenses, would not be eligible — although drug crimes account for nearly half the total federal prison population. Inmates who are deemed to have a high risk of recidivating could also be prevented from using their credit to reduce their time in prison, complained Gotsch: “The people who really need the programming won’t be able to cash in, which might make them less likely to participate.” However, an amended version of the bill, not yet introduced, would allow high-risk inmates to cash in credits if they get approval from the warden.
There may also be problems with the system by which inmates would be designated as high risk. The bill instructs the Bureau of Prisons to use a risk assessment tool to determine prisoners’ chances of recidivating—an approach that has never been tested, says Gotsch. (More commonly, risk assessment tools are used to help estimate inmates’ security risk inside a prison, to determine whether they should be housed in medium- or high-security facilities.) “Research shows that risk assessments often do not accurately predict risk,” the civil rights groups wrote in their letter to the House Judiciary Committee, and “that these tools can produce results that are heavily biased against Black defendants.”
Many facilities don’t have enough staff to run new programs, according to Jesselyn McCurdy at the American Civil Liberties Union. “Wardens regularly require teachers at federal prisons to postpone or cancel their classes so they can fill empty slots for correctional guards in the housing units,” she said, a system called augmentation. “The whole concept of this bill is not based in the reality of what is going on in the Bureau of Prisons at the moment,” McCurdy said.
Our own observation is different from the others: the bill relies on the BOP to identify eligible programs, select the in-prison benefits to be allowed, and to award the earned-time credits. The BOP has a terrible record of using congressionally-authorized discretion to reduce prison terms (like compassionate release under 18 USC 3582), the Elderly Offender Pilot Home Detention Program and additional halfway house under the Second Chance Act) and to grant prisoners discretionary benefits (furloughs for eligible minimum security prisoners). Trusting the BOP to wholeheartedly adopt programs that reduce prison populations seems rather naive to us.
H.R. 5682, The FIRST STEP Act, passed out of House Judiciary Committee May 9, 2018
