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 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.
Recall 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.”
On 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 Actcould 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 Examinersupporting 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.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
KUSHNER PUTS PRESSURE ON SENATE TO PASS REFORM BILL
Jared 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).
McConnell “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.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TRUMP BLASTS SESSIONS AGAIN, FUELING SPECULATION THE AG WILL BE FIRED
Attorney General Jefferson Beauregard Sessions III
Reports that Trump promised Attorney General Jefferson Beauregard Sessions III last Thursday that the President would oppose the compromise criminal justice bill are puzzling, because of thesimmering rift between Trump and Sessions that exploded again into public view late last week.
Trump complained in a Fox & Friends interview that Sessions “never took control of the Justice Department” and that he was disloyal. Sessions, whom Trump called a moron last year, finally had enough, issuing a statement saying he and the DOJ “will not be improperly influenced by political considerations.”
Trump has been furious at Sessions ever since he recused himself from the Trump Russia investigation. Trump said he considered Sessions’ decision to be a sign of disloyalty, and the two have an unusually cold relationship for a president and the nation’s top law-enforcement official.
White House spokesman Hogan Gidley said last week that Trump has made clear he supports the prison reform legislation “that will ultimately make American communities safer and save taxpayers money. The president recognizes there are some injustices in the system that should be fixed.”
Sen. Tim Scott (R-South Carolina) said it ultimately won’t matter whether they have Sessions’ support or not. “Listen,” Scott said, “[Sessions] doesn’t have a vote on this one.”
The notion that Trump mollified Sessions by agreeing to oppose the compromise package, only several weeks after Trump said he would sign anything Congress sent him on criminal justice reform, is suspect. The fact that he told White House advisor Jared Kushner and Sen. Charles Grassley (R-Iowa) the next day that he was willing to take up reform after the November elections and that White House officials continue to state his support for criminal justice reform, makes the alleged Sessions promise even harder to believe.
A Bloomberg article last Thursday provides the starkest evidence that Trump has little to gain by agreeing to kill criminal justice reform to please his AG. Bloomberg reported that Trump “may have received a crucial go-ahead signal from two Republican senators” to fire Sessions “with a key condition attached: wait until after the November elections.”
Confronted with the Manafort conviction and the Cohen guilty plea last week, Bloomberg said, Trump has reaffirmed his open resentment that Sessions recused himself from what’s become a wide-ranging investigation led by Special Counsel Robert Mueller.
Beauregard, we hardly knew ye.
The pivotal message to Trump came from Sen. Lindsey Graham (R-South Carolina). “The president’s entitled to an attorney general he has faith in, somebody that’s qualified for the job, and I think there will come a time, sooner rather than later, where it will be time to have a new face and a fresh voice at the Department of Justice,” Graham said. However, he added, forcing out Sessions before November “would create havoc” with efforts to confirm Trump’s Supreme Court nominee Brett Kavanaugh, as well as with the midterm elections on Nov. 6 that will determine whether Republicans keep control of Congress.
Grassley, the Judiciary Committee’s chairman, also changed his position on Thursday, saying in an interview that he’d be able to make time for hearings for a new attorney general after saying in the past that the committee was too busy.
Some senior Republican senators still strongly rejected Graham’s seemingly impromptu fire-him-later idea.
Despite the political hell-storm that Trump’s dismissal of Sessions would create, it is clear that criminal justice reform would only benefit from Sessions being run out of town.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
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.
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.
Durbin’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.
Then, 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 STEPcompromise, 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.”
So 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.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
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.
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.”
A 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.
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.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
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.
Not 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.
• 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.
• 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.”
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.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
WHITE HOUSE, SENATE CUTTING A DEAL ON AMENDING FIRST STEP
The FIRST STEP Act, which has stalled in the Senate because of opposition from top Republicans who want more sentencing relief than the bill offers, got a jump start in the last week, and, according to White House sources, may be set for a vote in the Senate before the end of the month.
Behind the scenes, the administration and legislators are hammering out an agreement that would add significant changes in the nation’s mandatory sentencing laws to the widely popular prison reform bill that passed the House earlier this year, the Washington Post said, crediting officials familiar with the discussions.
President Trump met with a number of state governors during his golf course vacation at Bedminster, New Jersey, last week, holding a “roundtable” that was intended to signal the important to the President of getting a Senate vote on FIRST STEP.
During Thursday’s meeting, Trump said the administration was working to “refine” the House-backed measure in the Senate. “I have to say, we have tremendous political support. It surprises me. I thought that when we started this journey about a year ago, I thought we would not have a lot of political support,” Trump said, flanked by state officials and top aides. “People I would least suspect are behind it, 100 percent.”
The deal being discussed would add four sentence reform measures from the Sentencing Reform and Corrections Act(legislation sponsored by Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Sen. Richard J. Durbin (D-Illinois) and backed by a broad coalition of Senate Democrats and Republicans) to the House bill. Ohio State law professor Doug Berman said last week in his Sentencing Law and Policy blog that he believed the revised measure will breeze its way to passage in the Senate, with a vote of in favor of 80% or more.
“We are trying to get a Senate vote in the next two weeks,” an administration said. White House officials hope that Trump’s meeting with governors will spark action in the Senate and prompt leaders to put legislation on the summer calendar. Senate Majority Leader Mitch McConnell has kept the Senate in session.
“There can’t be any doubt that by having this as the only major event on the president’s schedule that he is laser focused on this,” said a Trump aide. “We think that with this momentum and with the coalition behind it, that this can actually happen.”
At the session with governors, Trump said, “Our first duty is to our citizens, including those who have taken the wrong path but are seeking redemption and a new beginning. That’s people that have been in prison, and they come out and they’re having a hard time… We’ve passed the FIRST STEP Act through the House, and we’re working very hard in the Senate to refine it and pass it into law. We think we’ll be successful in that regard. The bill expands vocational educational programs to eligible federal inmates so that more of them can learn a trade. And that’s what we’re doing. We’re teaching them trades. We’re teaching them different things that they can put into good use, and put into use to get jobs.”
ABC News reported last Thursday that “the Senate is now expected to move forward with a modified version of the House bill that will reduce the current mandatory life sentence for certain drug offenses from a life sentence to 25 years, prohibit the doubling of mandatory sentences for certain gun and drug offenses, broaden judicial discretion, and make retroactive the 2010 Fair Sentencing Act that narrowed the discrepancy in sentencing guidelines for crack versus powdered cocaine.”
Jon Ponder, an associate minister at a Las Vegas church who has two priors for robbery, was one of the ministers who met with the President at the White House in late July. Ponder, founder of HOPE for Prisoners, a program that helps more former inmates adjust to life after prison by providing financial advice, personal mentoring and connections to employers, said he believes Trump supports inmate re-entry programs as much as he does.
“I think that something would really have to be wrong with that man to sit down in that room and have the conversation with the (ministers) that he did, if he was not being sincere about this,” Ponder said. “I believe that he spoke from his heart. He shared in that room that he was very compassionate about this, and about the importance of people who are fighting for a second chance.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TRUMP BREAKING CRIMINAL JUSTICE REFORM LOGJAM?
President Trump told Republican senators last Wednesday that he’s open to a proposal on prison and sentencing reform that combines the FIRST STEP Act with provisions of the Sentencing Reform and Corrections Act of 2017, giving new life to criminal justice reform that had seemed hopelessly stalled on Capitol Hill.
The compromise presented to President Trump by Republican senators at a White House meeting on Wednesday would combine the FIRST STEP Act with four sentencing reform provisions that have bipartisan Senate backing, according to a source familiar with the meeting.
A senior White House official described the president as “positively inclined” toward the compromise proposal. The source said Trump told GOP senators to “do some work with your colleagues” and “let’s see where the Senate is andthen come back to me with it.”
The White House meeting with Republican senators included Mike Lee (Utah), Lindsey Graham (South Carolina), and Senate Judiciary Committee chairman Charles Grassley (Iowa).
Trump’s support is significant because the core group of Republicans and Democrats behind the Senate bill has insisted on including sentencing reform as part of any criminal justice legislation, but Senate Majority Leader Mitch McConnell (R-Kentucky) is not about to bring a bill to the floor if there is vocal opposition from either the White House or the Republican caucus. “The question is whether there [are] enough sentencing provisions in there to make those guys happy without turning off too many Republicans and making it too toxic for McConnell to put on the floor,” says Alex Gudich, deputy director of #Cut50, a criminal justice advocacy group.
The Hill reports that some of the bill backers now think there’s a possibility of moving the modified legislation through the Senate as soon as this month, although it’s more likely be delayed until the lame-duck session after the midterm elections, that starts in mid-November.
Conservatives such as Sen. Tom Cotton (R-Ark.) and Attorney General Jeff Sessions have opposed combining prison and sentencing reform. Cotton argued in a speech at the Hudson Institute earlier this year that “if anything, we have an under-incarceration problem.”
Meanwhile. the Washington Free Beaconpublished a leaked letter from the Dept of Justice to the White House outlining its concerns about the FIRST STEP Act. “In the Department’s view,” the letter says, “this legislation, if passed in its current form, would further and significantly erode our long-established truth-in-sentencing principles, create impossible administrative burdens, effectively reduce the sentences of thousands of violent felons, and endanger the safety of law-abiding citizens and law enforcement officers.”
The DOJ letter also tied the declining federal prison population to rising crime rates. “The number of federal inmates has declined more than 16% since 2013 and is at its lowest level since 2004,” the letter reads. “It is likely no coincidence that, at the same time, we are in the midst of the largest drug crisis in our nation’s history and recently experienced the two largest single-year increases in the national violent crime rate in a quarter of a century.”
Conservative groups supporting criminal justice reform pushed back against the DOJ letter. FreedomWorks rebutted the report, saying, “Simply put, correlation doesn’t equal causation.” And when reporters asked Grassley today about his former Senate colleague Sessions’ efforts to derail the criminal justice legislation, Grassley responded sharply, “With all that I have done to help Sessions, to keep the president from firing him, I think Sessions ought to stay out of it.”
Criminal justice reform groups have been bolstered by a poll released last week by Freedom Partners, a nonprofit group that funds conservative and libertarian causes, showing 70% of voters nationwide think the Senate should pass the FIRST STEP Act.
Ohio State University law prof Doug Berman said in his Sentencing Law and Policy blog this past weekend, “I am not counting any sentencing reform chickens before they hatch, but this description of the compromise combo FIRST STEP Act and SRCA would seem to make a lot of sense in light of various positions staked out on both sides of the aisle. And if Prez Trump signals support for such a reform package and is willing to make it a priority, I would now be inclined to predict this will get done this year. But because Prez Trump has never seemed a serious advocate for sentencing reform, and because his Attorney General likely dislikes all of this, and because the run-up and aftermath of an election can disrupt lots in DC, I am inclined to remain pessimistic about all of this until votes are being scheduled and taken.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
CLOCK RUNS WHILE PARTISANS FUME OVER FIRST STEP ACT
The Senate will be working through August while the House takes a break, because Senate Majority Leader Mitch McConnell (R-Kentucky) has a Supreme Court nomination, as well as a looming midterm election disaster, to address. The pressure remains on McConnell to bring the FIRST STEP Act to a vote as well.
The problem is that Senate Judiciary Committee Chairman Charles Grassley continues to back the Sentence Reform and Corrections Act of 2017, his pet bill, and refusing to back FIRST STEP unless the bill is amended to adopt some of the SRCA provisions.
Last week, Georgetown law professor Shon Hopwood (who is both a skilled litigator and a former BOP prisoner) blasted an opinion piece written by the president of progressive criminal justice reform group JustLeadershipUSA in which she called for opposition to FIRST STEP as dangerous and suggested that home confinement was as bad or worse than being locked up. Hopwood wrote,
Arguing against a bill that will move thousands of people from federal prisons to back home with their families because we can’t get Congress to release people outright, is about as shocking a proposition as any I’ve ever heard from a criminal justice reform organization dedicated to ending mass incarceration. JLUSA would have a hard time convincing anyone currently in federal prison of the position that somehow home confinement is worse than people remaining in prison… Although we are trying to create a political climate to eventually move to a system of full release good-time credits, that doesn’t mean we should deny current prisoners and their families this relief.
Some complain that FIRST STEP is far from perfect… so we should wait for the next bus.
Hopwood admits that the bill is far from perfect, but he writes that “First Step along with some sentencing additions is the best bill we can get now in the current political climate. If we don’t take First Step now, we will be waiting at least another two years for any possibility of federal prison reform. If the past thirty years is a guide, we are probably waiting much, much longer. Given the stakes, there should be an urgency on all sides to get this done.”
Meanwhile, director of the conservative Center for Urban Renewal and Education Star Parker complained that Senate Republicans ought to be rolling out the red carpet for FIRST STEP, especially because the White House is behind it. “Senate Majority Leader McConnell and Senator Grassley should see this as an opportunity for the Republican-controlled Congress to show it can act decisively on a major national problem,” she wrote. “Holding up prison reform to add on the complex issue of sentencing reform will result in what I said above: either nothing will happen or we’ll get one big unworkable bill.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ARE POLITICS KILLING HOPES FOR PRISON REFORM?
Legislators and interest groups on both sides of the current Senate tussle over whether to pass the FIRST STEP Act or the Sentencing Reform and Corrections Act of 2015 continue to stake out their positions, and concern is rising that the political bickering may doom both bills.
Some complain that FIRST STEP is far from perfect… so we should wait for the next bus.
It has now been nearly two months since FIRST STEP passed the House by a huge margin and it has now been more than five months since the SRCA, sponsored by Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois), passed the Senate Judiciary Committee by a significant margin.
Last week, two executives from the conservative reform group FreedomWorks complained in Washington Examiner that “the FIRST STEP Act hasn’t moved in the Senate. [The bill], led by Sens. John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I., has been referred to the Senate Judiciary Committee. Grassley has said that at least some SRCA-style sentencing reforms would have to be added to the FIRST STEP Act before it can move forward.”
Few in the Senate question the merits of FIRST STEP. An earlier version of the bill was passed by the Senate Judiciary Committee 15-2 in 2014. But politics could condemn any criminal justice reform. “Democrats,” the FreedomWorks piece said, “with their eyes on the party’s presidential nomination view criminal justice reform as a campaign issue. Selfishly killing the FIRST STEP Act for little more than political gain risks infecting criminal justice reform with the same toxicity that has plagued immigration reform proponents, not to mention that it also denies much-needed relief to communities, families, and individuals who have been severely affected by crime.”
The FreedomWorks officials said the next step must be to strike a deal in the Senate that will add modest sentencing reforms to make the legislation acceptable to Grassley without dividing the Republican conference. If there is any infighting among the Republicans, Senate Majority Leader Mitch McConnell will be unwilling to bring the bill to the floor for a vote. “It is a delicate balance to strike,” the FreedomWorks executives said, “but the Senate, which often refers to itself as the greatest deliberative body in the world, should be up for the challenge. On bipartisan legislation that has the backing of the White House, working out a deal on FIRST STEP should be a layup.”
These days, passage of any federal criminal justice reform seems to be more like a three-pointer from mid-court. Last week, Grassley and Sen. Orrin Hatch (R-Utah) doubled down on their SRCA position in an opinion piece in the Washington Examiner, urging passage of both mens rea reform and the SRCA:
Mens rea reform, in addition to sentencing and prison reform, is an essential part of the criminal justice reform constellation… We firmly believe that mens rea reform is an important piece of the broader criminal justice reform landscape. Together with the bipartisan Sentencing Reform and Corrections Act, which we both support, the Mens Rea Reform Act will improve fairness and clarity in our criminal justice system.
Grassley, current chairman of the Senate Judiciary Committee, and Hatch, a former chair of that Committee, are both legislators with more-than-average juice in the Senate. Grassley may be able to trade his current importance to the White House (as chair of Judiciary, he is key to getting Judge Brett Kavanaugh through the Supreme Court confirmation process) for Trump pressuring McConnell to bring SRCA to a vote. But although Washington is sweltering under the July sun and the end of the year seems far off, there are not that many legislative days left in the calendar year. Something needs to happen soon.
Meanwhile, the interest groups continue to check in, adding to the chaos. Last week, two police chiefs – one from the D.C. metro police force and the other, a former chief of New Orleans and Nashville – wrote in The Hill that “police and prosecutors need Congress to take meaningful action, like moving forward with a bipartisan solution hammered out by Grassley and Durbin. The Sentencing Reform and Corrections Act would shorten unnecessarily long sentences for low-level offenses, while also improving prison conditions and reentry services for men and women coming home from prison.”
Such public pressure does not much help to convince McConnell that scheduling either bill for a vote – likely, a showdown risking Republican fratricide – is a good idea.
Other criminal justice reformers are taking shots at FIRST STEP. DeAnna Hoskins, the president of JustLeadershipUSA, a progressive criminal justice reform group, blasted FIRST STEP last week, arguing, “The need and demand for reform are real. The FIRST STEP Act is not only a step backward; it invites a scary future. We need good proposals that address the structural racism baked into our justice system. We can pursue good proposals at all levels of government — proposals that are human-centered, values-driven, and that truly have an impact on decarcerating and decriminalizing communities across the country.”
She dismisses FIRST STEP’s process that lets inmate earn more halfway house and home confinement time. “For those released from prison on credit time, an electronic shackle awaits,” she writes, “branding people with a tool that tracks their every movement, expands the carceral state into our neighborhoods and significantly lowers the threshold for reincarceration.”
Our observation is that, lucky for her, Ms. Hoskins probably has never done federal time. Had she been a guest of the BOP, she would understand that just about every inmate in the system would gladly have the “carceral state” expanded into his or her home neighborhood by doing as much incarceration time at home – ankle bracelet and all – as possible. One inmate told us, “The best day I ever had locked up was worse than the worst day I ever spent at home.”
Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog last week, complained that Grassley and Durbin are hurting momentum. “At this point I am eager to hear any news about any movement in the Senate with respect to the FIRST STEP Act or the Sentencing Reform and Corrections Act… Prez Trump has suggested he will sign whatever bill gets delivered to his desk. But as the summer marches on, I am struggling to remain optimistic that the full Senate will get to vote on any of these reform proposals anytime soon.”
At the same time, Berman denounced Hoskins’ buzz-word policy nonsense. Her blather (although Prof. Berman is more polite in his terminology) is “disturbing hyperbole… Like the author here, I would like to see reform that goes beyond the FIRST STEP Act. But broader reforms have been stalled by leaders in DC who are likely to be in place at least until 2020 if not later. Hoping and waiting for something better leaves current prisoners and their families waiting and waiting and waiting… But rather than seeing a politic consensus for “transforming our criminal justice system,” I just see a lot of political division among advocates for reform that seems to be making achieving any reform that much harder.”
Recall 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.
On 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.
