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First Step Vote Set, But Drama Will Go To The Wire – Update for December 17, 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 SENATE VOTES SET FOR TODAY AND WEDNESDAY

firststep1800509Senate Majority Leader Mitch McConnell (R-Kentucky) ended the Senate’s 4-day work last Thursday night by scheduled a procedural vote on the latest revision of the First Step Act of 2018 for 5:30 p.m. today. That vote, promised weeks ago, will be a crucial test of the bill’s backing, where supporters will need to put up 60 votes to advance the bill.

In the latest iteration of First Step, the measure has been renumbered this year for the third time this year as S.3747 and has dropped its unwieldy title of “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act” – and thus the need for all capital letters.

If the Monday vote is successful, the Senate leadership says First Step could be wrapped up Wednesday, after allowing opponents the opportunity to have yet amendments considered. “My impression is that people are not going to string this out unnecessarily for procedural reasons, as long as they get an opportunity to make their arguments and have a vote on their amendment,” said Senate Majority Whip John Cornyn (R-Texas), who announced his support for First Step this week.

Supporters say they have at least 70 votes for the measure, although cosponsors of the measure are officially at 35. Sen. Roy Blunt (R-Missouri), a member of Senate leadership, predicted that “slightly more than half” of the GOP conference and as many as 30 of the 51 GOP senators could back it.

As McConnell set the week’s votes last Thursday, Sen. Mike Lee (R-Utah) sought to make last-minute changes in First Step that would reflect a compromise the bill’s supporters had reached with Sen. Ted Cruz (R-Texas). Cruz endorsed the bill because it was supposed to bar many violent criminals from earning early release, but the version that was presented on Wednesday (which is available online) did not include all of the exclusions Cruz had been promised. Lee tried to get McConnell to change them, according to multiple people familiar with the matter, but McConnell wanted to give his divided caucus at least 24 hours to review the new just-released text. The bill‘s chief critic, Sen. Tom Cotton (R-Arkansas), joined in a private meeting with McConnell, Lee and Cornyn on the Senate floor Thursday afternoon, during which Lee argued that the changes should be made to increase the bill‘s conservative support.

To get any amendments into the bill, the legislation must be amended on the Senate floor. Cruz’s endorsement was critical to moving the bill forward, and he has repeatedly touted that the legislation would no longer allow the early release of violent criminals.

senatevote181217McConnell will allow only a little time and very few amendments to First Step before the Wednesday vote. After the Senate begins debating the bill, it will ultimately take 60 votes to pass it. And an amendment, however, will require just 50 votes in the narrowly divided Senate. Cotton and Sen. John Kennedy (R-La.) are expected to offer an amendment to add new exclusions to the list of inmates not allowed to get program credits. Because amendments need only a simple majority, some Republicans will have to vote against them to keep the provisions from being added to the legislation. One senator predicted that many Democrats would probably defect from the legislation if the Cotton amendment passed.

Still, First Step will pass as long as it survives an uncertain amendment process. Most Senate Democrats support it, a significant bloc of Republicans is expected to back it, and President Donald Trump is expected to sign it if it passes the Senate and House ahead of the Dec. 21 partial government shutdown deadline.

The biggest immediate impact of First Step would be felt by nearly 2,600 federal prisoners convicted of crack offenses before 2010. That’s the year the Fair Sentencing Act reduced the disparity in punishment between crack cocaine and the powdered form of the drug. First Step would make the reform retroactive.

goodconduct180509All federal inmates will benefit from an increase in good time from 47 days a year to 54 days a year, retroactive to the beginning of each inmate’s sentence. The change is estimated to result in 4,000 extra prisoners being released in the next year, some immediately.

If it passes the Senate, the House and Senate will have to reconcile their different versions of First Step and then approve the reconciled version, all before Dec. 21. Rep. Steny Hoyer, D-Maryland, the House minority whip, told reporters last week, “I presume… we will be able to approve it next week. I’m hopeful that it can move that quickly.” The New York Times said House Speaker Paul Ryan (R-Wisconsin) has pledged swift action before the House leaves town for the year-end holidays.

The Hill, McConnell sets Monday test vote on criminal justice bill (Dec. 13)

Politico, GOP infighting continues as criminal justice bill advances (Dec. 13)

The Hill, Senate heads toward floor fight on criminal justice bill (Dec. 14)

The Marshall Project, What’s Really in the First Step Act? (Nov. 16)

First Step Act of 2018, S.3747 (Dec. 12)

The New York Times, Criminal Justice Bill Will Go Up for a Vote, McConnell Says (Dec. 12)

– Thomas L. Root
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Cotton’s Price is Too High – Update for November 20, 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.

COTTON SAID TO HAVE NAMED HIS PRICE FOR SUPPORTING FIRST STEP

cotton181120If the modified FIRST STEP Act makes it to the floor of the Senate, a likelihood that is dimming day by day, Sen. Tom Cotton (R-Arkansas) has already staked out his price for abandoning his vitriolic opposition to the bill. Cotton and former Attorney General Jefferson Beauregard Sessions III, recently departed from DOJ, have been the most ardent foes of FIRST STEP and the Sentencing Reform and Corrections Act of 2017. Now, Sen. Cotton is the last man standing.

Cotton has maintained his opposition to FIRST STEP — a sweeping package of criminal-justice reforms designed to reduce incarceration rates and recidivism — despite broad bipartisan support, even provoking a Twitter war yesterday with Sen. Mike Lee (R-Utah), a former federal prosecutor who strongly supports FIRST STEP and co-sponsored the doomed SRCA (which donated several provisions to the modified FIRST STEP).

In defending his opposition on Twitter yesterday, Cotton accused FIRST STEP’s proponents of trying to push the measure through Congress without allowing time for an adequate review of its contents, and warned that it would grant early release to fentanyl dealers, violent criminals and “criminal immigrants” (as though non-citizens convicted of felonies are not promptly deported after their sentences are completed). Lee accused Cotton’s criticisms of being “fake news.”

pricesIt turns out that Cotton had a price, albeit it a high one, for remaining neutral on FIRST STEP. Ohio State University law professor Doug Berman wrote at his Sentencing Law and Policy Blog Sunday that Cotton previously offered to remain neutral or even support FIRST STEP if the bill were modified to (1) exclude heroin and fentanyl traffickers from early release for programming credits; (2) make the change from 47 to 54 days of good time non-retroactive; (3) adjust the weight of fentanyl under the drug trafficking statute (21 USC 841(b)) to reflect its potency; and (4) fix the Armed Career Criminal Act to undo the Johnson holding.

Berman wrote that the proposals (except for a part of the first one) were rejected by FIRST STEP sponsors.

Meanwhile, the Democrats’ recapture of the House in the midterm elections complicates FIRST STEP’s chances. Many progressive Democrats and advocacy groups opposed the FIRST STEP Act in the House and insisted that it include stronger sentencing reforms. Many of those same lawmakers would like to see the sentencing reforms in the Senate version be made retroactive, something that would almost surely reignite conservative opposition to the bill.

flipflop170920Sens. Cory Booker, D-New Jersey, and Kamala Harris, D-California, who are both running for president, have opposed criminal justice. Harris claims now to support reform, but she opposed it as California’s attorney general. Booker, who claims to support reform in principle, seems to be calculating whether its passage will help or harm his presidential campaign.

The Washington Examiner, however, predicted last week that “if Trump applies pressure, he will find that the numbers are there in Congress to defeat both Cotton’s faction and the Democrats in opposition – specifically, the ones blocking reform because it would hurt their own presidential bids if it passes during Trump’s presidency.”

Reason.com, Trump Endorses Criminal Justice Bill, Giving Momentum to Long-Delayed Reforms (Nov. 14, 2018)

Washington Examiner, Trump is right to embrace criminal justice reform (Nov. 15, 2018)

National Review, Mike Lee Accuses Tom Cotton of Spreading ‘Fake News’ on Criminal-Justice-Reform Bill (Nov. 19, 2018)

– Thomas L. Root

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Trump Backs FIRST STEP, but Future Remains Uncertain – Update for November 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.

PRESIDENT BACKS FIRST STEP

In a late afternoon press conference yesterday, President Trump threw his support behind the FIRST STEP Act, increasing the likelihood that the legislation will be passed by the Senate.

firststep1800509Several people involved in the negotiations had cautioned on Tuesday that the emerging agreement required an explicit endorsement from Trump in order to pass. Supporters of the bill would begin gauging support for the bill later this week, officials said, if Trump signed off on the measure.

Trump congratulated his own administration for making FIRST STEP happened. That claim may be true, because an August peace conference sponsored by the White House got Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois) – who had been hostile to FIRST STEP because it omitted sentencing reform of the type they championed in the Sentencing Reform and Corrections Act of 2017 – on board.

Senate Majority Leader Mitch McConnell (R-Kentucky), who has been quiet – if not downright dismissive – on the merits of FIRST STEP, appears unlikely to take the lead in formally rounding up support, however. And some liberal Democrats may not ultimately endorse the compromise product, fearing they have conceded too much to the right on the sentencing changes. Certainly, spirited opposition from the right is expected from perennial reform foe Sen. Tom Cotton (R-Arkansas).

cotton171226McConnell is expected to order a whip count later this week, and has pledged to bring the bill to the floor for a vote if the count shows 60 votes in favor of the bill. Trump’s support came after several law enforcement associations announced their backing for the legislation.

The National District Attorneys Association, which represents 2,500 district attorneys and 40,000 assistant district attorneys, became the latest law enforcement organization to support the bill, according to a letter the group’s president addressed to Trump. “This legislation is a bipartisan effort to address front-end sentencing reform and back-end prison reform, and our association is appreciative of your efforts to partner with the Nation’s prosecutors on this important matter,” association President Jonathan Blodgett wrote in the letter, obtained by CNN.

Washington Post, Trump endorses bipartisan criminal-justice reform bill (Nov. 15, 2018)

CNN, Trump to announce support for criminal justice overhaul proposal (Nov. 14, 2018)

Wall Street Journal, Trump Supports Changes to Criminal-Justice System (Nov. 14, 2018)

– Thomas L. Root

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Trump’s Way or the Highway on Sentencing Reform – Update for October 17, 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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TRUMP SAYS HE’LL OVERRULE SESSIONS ON SUPPORTING FIRST STEP
Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

Anyone who remembers recent sentencing reform history will recall that when Attorney General Jefferson Beauregard Sessions III was a senator from Alabama, he led the charge against the Sentencing Reform and Corrections Act of 2015. And last winter, Sessions infuriated Senate Judiciary Committee chairman Charles Grassley (R-Iowa) when he sent an open letter to the Committee telling it not to vote out the 2017 version of SRCA.

With Senate Majority Leader Mitch McConnell (R-Kentucky) gun shy about bringing the compromise FIRST STEP Act to a vote if there is insufficient support, Sessions could be a real impediment to passage of sentencing and prison reform.

That’s why President Trump’s statement last Thursday that he would overrule Sessions if he tries to stymie efforts to overhaul the criminal justice system is so significant. In a wide-ranging interview on “Fox & Friends,” the President said he would shut down any Sessions opposition to congressional passage of the compromise FIRST STEP Act. “

When asked whether Sessions is standing in the way of criminal justice reform, Trump said the decision is not up to the attorney general. “He gets overruled by me,” Trump said. “I make the decision, he doesn’t.”

“We do need reform, and that doesn’t mean easy,” the president said during the 40-minute interview. “We’re going to make certain categories tougher when it comes to drug dealing and other things, but there has to be a reform because it is very unfair right now. It’s very unfair to African-Americans. It is very unfair to everybody, and it is also very costly.”

nothappen181016Sessions, a law-and-order candidate now in the doghouse with Trump over the Mueller Russia probe, played a role in successfully urging the president to put off action on criminal justice reform before the midterm elections. But Trump now seems to have made the issue a top priority, thanks in large measure to the advocacy of senior White House adviser and son-in-law Jared Kushner.

“Jared Kushner has kept the president in the loop and today’s statements by the president are indicative that he’s interested in this issue and is the one that will make the final decision,” The Hill quoted a person it said was familiar with the discussion. Kushner reportedly briefs Trump regularly on the status of sentencing reform.

Trump’s comments came just before he had lunch with the rapper Kanye West and former Cleveland Browns star Jim Brown, who are expected to urge Trump to move forward with sentencing and prison reforms.

kardashian180604Last June, West’s wife, Kim Kardashian persuaded Trump to commute the sentence of Alice Marie Johnson, a 63-year-old grandmother who was serving a life sentence for a first-time drug offense committed in the early 1990s.

Trump said Kardashian “brought the attention to Mrs. Johnson” and said it was unfair that she received such a long sentence.

The Hill, Trump: I’ll overrule Sessions on criminal justice reform (Oct. 11, 2018)

Politico, Trump: ‘I make the decision’ on prison reform, not Sessions’ (Oct. 11, 2018)

– Thomas L. Root
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