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Interest Groups Pressure Congress on Criminal Justice Reform – Update for July 19, 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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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.”

Townhall, The First Step Act: Bringing Left and Right Together (July 13, 2018)

The Christian Post, Family Members of Inmates Lobby Senators to Pass Prison Fellowship-Backed Reform Bill (July 11, 2018)

– Thomas L. Root

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Congress is Back to Work, with Criminal Justice Reform Still Pending – Update for July 9, 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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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.

grassley180604A 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.

sessions180215Of 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.”

trainwreck180305Also 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.”

Washington Post, No more pits of despair. Offenders are still humans (July 4, 2018)

The American Conservative, Where the Right Went Wrong on Criminal Justice (July 6, 2018)

– Thomas L. Root

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Sen. Grassley is Relevant Again, and So is SRCA – Update for July 2, 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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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 2017 through the Senate.

oddcouple180702Grassley 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?
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.

kushner180622Last 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.

fingers180702Trump’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%.

The Hill, Bipartisan senator duo urges Trump to back criminal justice bill (June 26, 2018)

Axios, Jared Kushner huddles with Congress on prison reform (June 26, 2018)

Salon, Is there real hope for prison reform? Nonviolent offenders and the “Kim Kardashian moment” (June 29, 2018)

– Thomas L. Root

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More Steps Taken on FIRST STEP? – Update for June 13, 2018

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

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THE WIND MAY BE SHIFTING

imageWe 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.

compromise180614Senators 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.

cotton171226All 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.

Foreign Affairs, The Art of a Deal on Criminal Justice Reform (June 8, 2018)

Townhall, The FIRST STEP Prison Reform Bill Should Be a No-Brainer (June 8, 2018)

National Review, A Prison-Reform Bill Passed the House 360–59. It’ll Probably Die in the Senate (June 6, 2018)

– Thomas L. Root

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Truth is Stranger than Fiction: Reality TV Star’s White House Visit May Jump-Start Sentence Reform – Update for June 4, 2018

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WILL THE KARDASHIANS SAVE SENTENCE REFORM?

kardash180604Talk 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.

grassley180604Instead, 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.

sessions180215The 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.

kardashian180604Interestingly, Trump – who tends to agree with the last person who spoke to him – tweeted that he and Kardashian had 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.

The Hill, Senate grapples with prison reform bill (May 30, 2018)

Washington Post, In prison reform, a little of something is better than a lot of nothing (May 28, 2018)

The Hill, Don’t kick the can down the road on prison reform — now is the time for change (June 1, 2018)

– Thomas L. Root

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Through a Glass Darkly – FIRST STEP Act’s Chances in the Senate – Update for May 29, 2018

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FUTURE OF THE FIRST STEP ACT IS FAR FROM CLEAR

breeze180530Supporters 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.

sessions180322Third, 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 SRCA and 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).

donotwaste180530Last 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.

New York Times, Why some senators who want a criminal justice overhaul oppose a prisons bill (May 26, 2018)

New York magazine, Can Kushner’s Patchy Prison-Reform Bill Survive the Senate? (May 23, 2018)

The Marshall Report, Is The “First Step Act” Real Reform? (May 22, 2018)

Politico, Trump-backed prisons bill DOA in the Senate (May 21, 2018)

Senate Judiciary Committee release, For criminal justice bill to pass the Senate, it must include sentencing reform (May 22, 2018)

 The Atlantic, Democrats Split Over Trump’s Prison Pitch (May 23, 2018)

– Thomas L. Root

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The Thrillah on the Hill-ah – Update for May 14, 2018

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HOUSE BILL MAY FALL VICTIM TO SENATE DEMAND THAT IT DO MORE

rumble180515With the House Judiciary Committee last week rewriting the old Prison Redemption and the Reform Act into the new FIRST STEP Act (H.R. 5682), the action on criminal justice reform turns to the Senate, where FIRST STEP is already running into pushback. Let’s get ready to rumble.

The White House-backed bill picked up some mo after the House Judiciary Committee passed it onto the floor with a bipartisan 15-5 vote. But some Senate are deadlocked about how to approach the bill, threatening the chances of it getting signed into law. Ironically, the senators raising the most opposition are supporters – not opponents – of criminal justice reform. In fact, some of the traditional foes of criminal justice reform, conservative groups, sound like unabashed supporters. And those who you’d think were most likely to support reform are opposing it.

“Although today’s vote is a positive sign, we still have a long way to go. As the bill’s title suggests, this is the first step,” said conservative nonprofit FreedomWorks. “Congress must do more to ensure that those who are re-entering society and want a better life for themselves and their families have meaningful opportunities to work toward that goal. Another part of the discussion is sentencing reform. Sooner or later, Congress will have to revisit this issue to ensure that we are reforming sentences for low-level, nonviolent offenders and reserving limited prison space for violent offenders.”

vacancy180515But Kate Gotsch of the Sentencing Project complains that the bill does not account for the fact that halfway houses likely won’t have space to accommodate the inmates who accrue more earned-time credit. Progressive groups also point out that while the legislation encourages – even rewards – prisoners for participation in rehabilitative programs, the Bureau of Prisons is struggling with a horrifically-long wait list for the programs it currently offers. And many facilities don’t have the staff to run additional programs. Much of BOP Director Mark Inch’s grilling by the House Oversight Committee last month came over severe cuts in halfway house time for inmates and for the BOP’s practice of “augmentation,” where teachers, nurses and other professional staff at federal prisons are required to drop their regular duties to fill shifts for correctional officers in the housing units.

Nevertheless, FIRST STEP co-sponsor, Rep. Hakeen Jeffries (D-N.Y.) predicted last Friday the bill would come up for a House vote by the end of May.

Sens. Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee, and Richard Durbin (D-Illinois), the No. 2 Senate Democrat, both want a broader criminal justice measure including the mandatory minimum sentencing reforms they previously tucked into the Sentencing Reform and Corrections Act, S.1917, which passed out of the Judiciary Committee last February. The SRCA, which picked up two more co-sponsors last week, is now sponsored by 14 Democrats and 13 Republicans. It slashes mandatory minimums for drug offenses, makes the Fair Sentencing Act retroactive for inmates with pre-2010 crack sentences, and brings relief to people with stacked 924(c) convictions.

sessions180322Despite White House opposition, spearheaded by Attorney General Jefferson Beauregard Sessions III, both senators say they’ve made a deal to not split prison reform from changes to sentencing guidelines. But The Hill predicted last weekend that combining sentencing reform with prison reform will “all but kill any chance of getting sentencing reform through the GOP-controlled Congress.

Grassley’s and Durbin’s approach is poison to both to Sessions and to Senate Majority Leader Mitch McConnell (R-Kentucky), who refused to bring SRCA to a vote in the last session of Congress despite sponsorship of 40” senators. And some of the bill’s most vocal opponents, Sens. Tom Cotton (R-Arkansas) and David Perdue (R-Georgia), are some of Trump’s closest allies on Capitol Hill.

Sens. John Cornyn (R-Texas) and Sheldon Whitehouse (D-Rhode Island) last week introduced a companion bill to the House’s FIRST STEP Act. S. 2795, a bill to provide for programs to help reduce the risk that prisoners will recidivate upon release from prison, represents an effort by some in the Senate to press forward with a narrower bill that would match FIRST STEP. Asked if Sens. Grassley’s and Durbin’s stance was realistic, Cornyn said, “Their opinion matters, but I wouldn’t say that’s the end of the discussion.” 

House Republicans already have made some changes to their prison reform bill in an attempt to win the support needed for it to pass that chamber, but the modifications did not placate Grassley or Durbin, whose support would likely be critical if any legislation is to reach the Senate floor.

In a show of strength, Sen. Cornyn and White House advisor and Trump son-in-law Jared Kushner were to tour FCI Seagoville in suburban Dallas last Friday, to tout FIRST STEP. Sen. Cornyn made it, but Kushner skipped out.

kushner180515Sen. Thom Tillis (R-North Carolina), while saying he’s open to either path forward on the issue, is skeptical that a prison reform bill alone would be able to get the 60 votes needed to ultimately clear the Senate. “It’s how we get the votes, and I’m not sure how you do [it with just that]. The way that that evolved was by talking about pairing the two,” he said, referring to both sentence reform and prison reform.

Sen. Grassley appears to be closing the door for now on negotiating with Cornyn. He said he and Durbin are pushing forward with their bill, adding that he’s delivered that message to Kushner several times. “[We’re going] to try to convince the White House that we’re right,” he said. “This is a wonderful opportunity for the president to have a bipartisan victory and to sign it, and that’s exactly what he needs for the midterm election.”

S. 2795: A bill to provide for programs to help reduce the risk that prisoners will recidivate upon release from prison, and for other purposes, Introduced May 7, 2018, by Sens. Cornyn and Whitehouse.

FreedomWorks, FreedomWorks Applauds Important “First Step” In Criminal Justice Reform (May 9, 2018)

The Hill, Trump-backed prison reforms face major obstacles in Senate (May 13, 2018)

Roll Call, Criminal justice overhaul efforts appear stuck (May 11, 2018)

Mother Jones, Jared Kushner’s Prison reform Bill Just got Slightly Less Bad (May 7, 2018)

– Thomas L. Root

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Prison Reform Gets a Hearing – Update for April 16, 2018

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HOUSE PRISON REFORM BILL GOES TO HEARING THIS WEEK

redemption180411The House Judiciary Committee will mark up H.R. 3566, the Prison Reform and Redemption Act, this week, a Republican proposal that aims to reduce recidivism. Rep. Doug Collins (R-Georgia), sponsor of the PRRA, said the bill, which has 10 Democrat and seven Republican co-sponsors, would allow prisoners to serve the final days of their sentences in a halfway house or home confinement if they complete evidence-based programs that have been shown to reduce recidivism rates.

Prison programming could include everything from job and vocational skills training to education and drug treatment.

The White House announced in February it was throwing its support behind prison reform measures such as the PRRA instead of measures like the Sentencing Reform and Corrections Act, sponsored by Senate Judiciary Committee Chairman Charles Grassley (R-Iowa). The White House says it sees no path forward for sentencing reform. “And so what we see now is an environment where the prison reform does have enough support to get done,” an official said. “And we think that by maybe doing this in smaller bits and pushing the prison reform now, we think this has a better chance of getting done.” 

blackprisoner171116Not everyone agrees. The Leadership Conference on Civil and Human Rights an umbrella group of 63 organizations, wrote to the House Judiciary Committee last week to complain about the PRRA and “efforts to pass prison reform (or ‘back-end’ reform) legislation without including sentencing reform (or ‘front-end’ reform).” The Conference said that any “legislation that addresses only back end reforms is doomed to fail in achieving these goals. Without changes to sentencing laws that eliminate mandatory minimums, restore judicial discretion, reduce the national prison population, and mitigate disparate impacts on communities of color, H.R. 3356 alone will have little impact.”

The PRRA lets inmates earn credits for completing designated BOP programs that will let them go to halfway house or home confinement early, with the more credits earned, the earlier the prisoner can get released to residential reentry. But the Conference letter noted that “currently there are not enough of these programs available in the Federal Bureau of Prisons (BOP) to serve those currently in prisons. Furthermore, BOP more recently has reduced the number of residential reentry centers it contracts with to provide halfway house programming.”

mcconnell180219And the leadership of two organizations on the opposite end of the political spectrum, conservative FreedomWorks and liberal Center for American Progress, wrote in The Hill last week that “[a] recent markup of the Sentencing Reform and Corrections Act yielded the same favorable vote as the last committee vote on this legislation, and even those who voted against the legislation voiced support for some level of sentencing reform. Sen. Lee maintains that SRCA would receive 70 votes on the Senate floor, if Senate Majority Leader Mitch McConnell (R-Kentucky) would simply allow the bill to come to a vote.”

Trump son-in-law and advisor Jared Kushner convinced President Trump to support prison reforms like those some states have implemented more than a decade ago, which since saved billions and has resulted both in the closure of prisons and a drastic reduction the crime rate. Jared presented those ideas to Trump at a White House meeting in January. The following month, the White House asked lawmakers to draw up legislation, highlighting many of the same policies.

Kushner has since worked with Sen. John Cornyn, R-Texas, a long-time criminal justice reform advocate, who helped craft the plan the House will begin debating this week.

Meanwhile, speculation that Trump may fire Attorney General Jefferson Beauregard Sessions III – the man who torpedoed the SRCA and has backed off Obama-era easing of DOJ charging policies – has cooled. The Weekly Standard reported his week that such a firing is highly unlikely. Instead, Sessions has a stronger hold on his job than ever.

With Sessions gone, it would be difficult for Grassley to avoid spending the rest of the year on anything but hearings for a new AG. With the risk growing daily that the Democrats may capture the Senate in the midterm elections in November, the chance to confirm more conservative judges would have been frittered away.

sessions180215Still, The Standard reports that anti-Sessions sentiment lives on in the Trump family. Jared Kushner is a supporter of criminal justice reform, which Sessions opposes. EPA Administrator Scott Pruitt, who openly lobbied to replace Sessions and angered the President in the process, was Kushner’s hope for attorney general and possible backer of SRCA. Pruitt is hanging on to his EPA job by a thread, and has probably permanently spindled any hope of becoming Attorney General.

The Hill, Prison reform bill set for House markup next week (Apr. 11, 2018)

McClatchy Washington Bureau, Washington looks to Texas on federal prison reforms (Apr. 13, 2018)

The Leadership, Letter of Concern regarding H.R. 3356, the Prison Reform and Redemption Act (Apr. 12, 2018)

The Weekly Standard, Jeff Sessions and His Enemies (Apr. 13, 2018)

– Thomas L. Root

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Sentencing Reform Taking It On The Chin – Update for April 11, 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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SENTENCING REFORM IS DEAD… LONG LIVE PRISON REFORM

kushner180411A couple of hagiographic news articles on Trump son-in-law Jared Kushner’s efforts pushing federal criminal justice reform last week make it clear, if it was not clear before, that hopes of sentencing reform – rewriting mandatory minimums and giving guys with grossly-stacked sentences a chance to get resentenced to something that make sense – are waning.

Notwithstanding Sen. Charles Grassley’s (R-Iowa) optimism, prospects for the Sentencing Reform and Corrections Act of 2017, are bleak, with Attorney General Jefferson Beauregard Sessions III leading Administration opposition to the notion of front-end sentencing reform.

So, if traditional sentencing reform is dead in the water, The Hill asked last week, what’s left? Prison reform legislation that focuses on reentry programs offering prisoners the opportunity to shorten their sentences on the back end is what’s being favored now. Rather than trimming sentences from the start, these programs allow prisoners to earn credits toward early release by participating in programs intended to help reintegrate them into society and reduce their propensity to reoffend. Although they face some of the same political resistance as front-end sentencing reductions, it is significantly easier to overcome.

redemption180411The Hill argued that prison reform bills “avoid many of the usual pitfalls that sentencing reform legislation encounters because they shift the narrative from one of retribution to redemption, from past wrong to future promise. Instead of getting bogged down on issues like whom to punish and for how long, politicians are able to talk about what comes next. Leaving the nominal sentence unchanged insulates these reforms from charges that they don’t adequately reflect the egregiousness of a given crime or that they will negatively impact deterrence.”

The Las Vegas Review-Journal suggested last week that anything criminal justice advocates may get from Congress this year will be due to Kushner, whose father did a bit a decade ago for some white-collar and tax beefs. Sentencing reform failed last year despite Obama’s willingness to sign it, and after law-and-order Trump was elected, it looked like any reform would not happen.

But Kushner convinced Trump to support prison reform (not sentencing reform), changes that would “create a prison system that will rehabilitate citizens who have made mistakes, paid the price and are deserving of a second chance — which will ultimately reduce crime and save taxpayer dollars.”

sessions180322In practical terms, Kushner has helped in two ways. First, his commitment tells Hill Republicans that Trump is not likely to reverse his support for prison reform. Second, Kushner found a way to co-opt Sessions, by convincing advocates to delay their push for sentencing reform in exchange for Sessions not standing in the way of their rehabilitation goals. As a result, DOJ now “is working closely with the White House to develop legislative reforms that further the president’s goals for prison and re-entry improvements,” said spokesman Drew Hudson.

The lead horse in the prison reform race is the Prison Reform and Redemption Act, sponsored by Rep. Doug Collins, R-Georgia, that would require prisons to assess inmates’ recidivism risk, encourage drug treatment and offer incentives for inmates to participate in recidivism reduction programs.

Collins said his bill would create “a federal prison-wide system for evaluating the risk of every individual prisoner for re-offending and then offering evidence-based resources — like mental health care, vocational skills, substance abuse treatment and faith-based programs — that make them less likely to re-offend when they are released.”

Las Vegas Review-Journal, For Trump son-in-law Jared Kushner, prison reform is personal (April 7, 2018)

ABC, Inside Jared Kushner’s personal crusade to reform America’s prisons (April 8, 2018)

The Hill, Incentivized early release the right path to sentencing reform under Trump-Sessions (April 6, 2018)

– Thomas L. Root

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Sentencing Reform, We Hardly Knew Ye – Update for March 21, 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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COALITION TO PASS SENTENCING REFORM IS FALLING APART

The bipartisan sentencing reform movement is breaking apart in the face of President Trump’s prison reform proposals, which focus on prisoners re-entering society instead of reducing mandatory minimums. The division between prison reform and sentencing reform advocates, especially in the Senate, could threaten the momentum behind either proposal.

trump170515
President Trump counts the number of high officials he has fired or who have left his Administration… could the Attorney General be next?

Trump and Attorney General Jefferson Beauregard Sessions III have no interest in anything more than prison reform right now. And Jared Kushner, the White House’s sentencing reform advocate, has reportedly decided prison reform is the only way forward. Senate Majority Whip John Cornyn (R-Texas) won’t support Sen. Charles Grassley (R-Iowa) on the Sentencing Reform & Corrections Act – which Grassley’s Judiciary Committee passed last month 15-5 — despite his prior support. Cornyn is pushing instead for his bill, the CORRECTIONS Act with Sen. Sheldon Whitehouse (D-Rhode Island) that calls only for prison reforms aimed at aiding re-entry and reducing recidivism. An aide to a Judiciary Committee member told Axios last week that “McConnell isn’t going to put sentencing reform on the floor, particularly now that the administration opposes it. So the options are the Whitehouse-Cornyn bill, or nothing.” 

reform160201On the House side, Rep. Doug Collins (R-Georgia), whose Redemption Act mirrors the Cornyn-Whitehouse bill and has the most momentum in the House, told Axios he supports some kind of broader, more comprehensive criminal justice reforms, but right now, “prison reform can get the votes in Congress… but sentencing reform can’t.” Reps. Bobby Scott (D-Virginia) and Jason Lewis (R-Minnesota, who are cosponsoring a bipartisan House sentencing reform bill, are still optimistic about the chances for sentencing reform. The odds of getting any bill through the House Judiciary Committee, whose chairman Bob Goodlatte (R-Virginia) is so notoriously slow at moving legislation that the Committee has become known as the place bills go to die, are considered slim. “This guy just refuses to move legislation,” said a senior Republican lawmaker. “I can’t think of a single thing he’s actually accomplished,” added a top GOP Republican aide.

Progressive groups and senators like Grassley, Dick Durban (D-Illinois), Lindsey Graham (R-South Carolina) continue to push for sentencing reform.

sessions180322There’s some good news coming out of the Washington rumor mill. After Secretary of State Rex Tillerson was fired and Trump economic advisor Gary Cohn quit last week, several publications reported that the President had Sessions on his short list of people to be fired. Vanity Fair said that according to two Republicans in regular contact with the White House, there have been talks that Trump could replace Sessions with EPA Administrator Scott Pruitt, former Oklahoma attorney general, who would not be recused from overseeing the Russia probe. Such a replacement could soften Trump Administration opposition to SRCA, inasmuch as Pruitt is not reputed to be as hidebound as Sessions.

Axios, The criminal justice reform coalition is breaking up (Mar. 15, 2018)

Politico, The Place Bills Go to Die (Mar. 15, 2018)

Just Security, How Trump Might Replace Sessions with Pruitt as Attorney General (Mar. 15, 2018)

Vanity Fair, “Trump wants them out of there”: After swinging the axe at Tillerson, Trump mulls what to do with McMaster, Sessions, Jared, and Ivanka (Mar. 14, 2018)

– Thomas L. Root

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