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Sentencing Commission’s Sounds of Silence on Retroactivity – Update for August 9, 2024

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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.

SENTENCING COMMISSION PUTS BRAKES ON RETROACTIVITY

deafeningslience240809In the annals of retroactive U.S. Sentencing Commission guidelines, never has such an ambitious retroactivity agenda yieldzed such… silence.

The USSC is the federal agency responsible for promulgating guidelines for federal judges in imposing criminal sentences. Its proposed amendments to those Guidelines — made in the spring of every year — become part of the Guidelines on November 1 unless Congress steps in to veto some or all of the changes.

A Guidelines change that would reduce a sentencing range does not apply to the sentence of a prisoner who has already been sentenced unless the Commission proposes a change in USSG § 1B1.10, the Guideline governing retroactivity.

Retroactivity doesn’t happen often. In 36 years and over 825 amendments, the USSC has made an amendment retroactive 21 times (under 3% of the time).

retro240506This year, the Commission proposed to make four Guideline changes, in areas of acquitted conduct, gun enhancements, Guidelines calculation where a defendant is convicted of an 18 USC § 922(g) felon-in-possession count, a 21 USC § 841 drug trafficking count , and a separate 18 USC § 924(c) gun conviction; and a change in the drug Guidelines to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that inflate sentencing ranges.

The Commission solicited public comment on the proposed retroactivity and the staff prepared retroactivity impact reports that, among other matters, estimated how many prisoners would be eligible for reduced sentences if retroactivity on each proposal was adopted.

However, at yesterday’s meeting, the Commission tersely declined to vote on the measure. After about 10 minutes of discussion on Commission priorities for the coming year, US District Court Judge Carlton Reeves (SD-MS), chairman of the Commission called for a motion to adopt the retroactivity proposal. His call was met with a deafening silence.

Chairman Reeves was not surprised, the decision to defer retroactivity apparently having been scripted beforehand. He said:

The matter fails for a lack of a motion.

The public tuned in today to hear not only about the commission’s final priorities but also our decision about retroactivity. Our final priorities made clear that we are listening closely to the public’s recommendations about how to do our work. Many have called for the Commission to identify clear principles that will guide its approach to retroactivity. After deep deliberation, we have decided to heed those calls. For that reason, we will not be voting on retroactivity today. Nevertheless, I want to thank all of those who submitted comments and testimony regarding retroactivity for these amendments. Please know that your input has been heard and will continue to be heard as the Commission moves forward.

So what happened?

The best speculation is that the Commission is responding to criticism heaped on it for adopting amended Guideline 1B1.13(b)(6), which permits judges to grant compassionate release where a prisoner’s sentence could not be imposed today because of changes in the law that occurred after the sentence was imposed. Subsection (b)(6) contains a lot of caveats: the prisoner must have served 10 years, the change must have created a substantial disparity between the prisoner’s sentence and current sentences for the same offense, and the inmate’s prison record had better be clean as a whistle.

Nevertheless, after the Commission adopted the amended 1B1.13 containing the new subsection (b)(6), Sen John Kennedy (R-LA), a member of the Judiciary Committee, introduced the Consensus in Sentencing Act (S.4135) to require the Commission to achieve “bipartisan agreement to make major policy changes.” The bill would amend 28 USC § 994(a) to require that amendments to the Guidelines receive five votes from the Commission’s seven voting members.

At the time, Kennedy whined that “[t]he Sentencing Commission for decades strove to achieve bipartisan agreement when adopting amendments to the Sentencing Guidelines. In recent years, the Commission has lost its way and begun forcing through amendments on party-line votes.”

The Commission has seven voting members. No more than four members can belong to the same political party.

Sens Ted Cruz (R-TX), John Cornyn (R-TX), Tom Cotton (R-AR) and Marco Rubio (R-FL) cosponsored S.4135, which is stalled in the Judiciary Committee and has no chance of passage before the 118th Congress expires at the end of the year.

Nevertheless, in June, retired US District Judge John Gleeson, a member of the Commission, met with Kennedy, after which Kennedy said that “Gleeson acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.”
“I look forward to seeing the fruits of this commitment.”

I suspect he just did.

can230407The Commission did not reject retroactivity on the amendments, but its intention to adopt guiding principles for retroactivity pretty much ensures that any decision on making the acquitted conduct and other amendments retroactive has been kicked down the road for a year or better.

Sentencing Commission Public Hearing (Video) (August 8, 2024)

Sentencing Commission, Final Priorities for Amendment Cycle (August 8, 2024)

S.4135, Consensus in Sentencing Act

Sen John Kennedy, Kennedy introduces bill to restore bipartisan decision-making at Sentencing Commission (April 7, 2024)

Sen John Kennedy, Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines (June 3, 2024)

– Thomas L. Root

Sentencing Commission Announces Slate of Fall Amendments – Update for April 22, 2024

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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.

SENTENCING COMMISSION TAKES A WHACK AT ACQUITTED CONDUCT

The US Sentencing Commission last week adopted a slate of proposed amendments to the Guidelines, finally addressing the acquitted conduct issue that has bedeviled the Commission and Supreme Court for the past two years.

can230407SCOTUS sidestepped the question last year, sitting on 13 certiorari petitions raising the question of whether sentencing for acquitted conduct – that is, conduct for which a defendant has been found not guilty by a jury – is constitutional. At the prodding of the Dept of Justice – which told the Supremes that they should let the Sentencing Commission handle it only to then tell the Sentencing Commission it lacked the power to do so – SCOTUS finally denied the cert petitions last July, with several justices saying they would wait for the Sentencing Commission to address the issue.

The acquitted conduct Guidelines amendment will redefine “relevant conduct” under USSG § 1B1.3 to exclude conduct for which a defendant was acquitted in federal court. Because judges must rely on “relevant conduct” to set the Guidelines sentencing range, the change is significant.

For example, if a defendant is convicted of distributing cocaine but acquitted of selling heroin, the amount of heroin that the government said he had sold currently be factored into his Guidelines range as long as the judge found it more likely than not that he had actually sold it. The proposed amendment would prohibit counting the heroin regardless of whether the judge thought the defendant had done it or not.

“Not guilty means not guilty,” Sentencing Commission Chairman Judge Carlton W. Reeves, who sits on the Southern District of Mississippi bench, said. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.”

reeves230706Commissioners were divided on whether to consider enforcing the acquitted conduct sentencing amendment retroactively. A majority voted to have the USSC staff prepare a retroactivity impact analysis, which is the initial step toward making an amendment retroactive.

Sen. Richard Durbin (D-IL), chairman of the Judiciary Committee, said in a press release, applauded the Commission’s vote, noting that it came after he and Sen Charles Grassley (R-IA) introduced the Prohibiting Punishment of Acquitted Conduct Act of 2023. The legislation would have prohibited judges from using conduct acquitted by a jury. The measure has not gained consideration the full Senate.

The Commission is allowed to grant retroactivity – which lets people already sentenced according to Guidelines that are now being amended go back to court to secure the benefit of the amendment in the form of a reduced sentence – on new defendant-friendly amendments. Ratroactivity on last fall’s criminal history amendments was vigorously opposed by some commissioners and the DOJ, which has an ex officio representative on the Commission. This time around, the Commission is considering whether to make multiple defendant-friendly changes retroactive:

• the acquitted conduct amendment;

• a change to juvenile sentences that eliminates adding 2 points for prior juvenile incarcerations of more than 60 days;

• a change to §2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number is “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in §2K2.4 to permit grouping of 922(g) gun count with drug trafficking count where the defendant has a separate 18 USC 924(c) conviction based on drug trafficking.

During the retroactivity vote, Commissioner Claire Murray – a former Trump administration DOJ official – made the obvious point that judges may also still rely on acquitted conduct at sentencing when considering the § 3553(a) sentencing factors, including the nature and circumstances of the offense and the history and characteristics of the defendant, which courts must consider at sentencing, regardless of the Guidelines advisory sentencing range.

The bad news in the amendments was pretty much expected. For economic crimes, the recommended sentence under the guidelines increases dramatically as the amount of loss resulting from the offense increases.

shakeitoff240423As it is now written, the loss is defined in the Guidelines commentary as the higher of actual loss or intended loss. If you try to steal the Hope Diamond from the Smithsonian (value $250 million) but only get a rhinestone imitation (value $250) because the real one had been rented out to Taylor Swift for the weekend, the Smithsonian’s actual loss would be just a few bucks, but the intended loss would be a quarter billion.

In 2022, the 3rd Circuit held in United States v. Banks that the Commentary expanded the definition of loss beyond the ordinary meaning of “actual loss,” and thus, “intended loss” could not be used to set a defendant’s Guidelines. The new loss amendment moves the commentary section into the actual guideline, making sure that intended loss is included in setting the Guideline sentencing range and allowing the use of gain from the offense as a substitute for loss.

Whether the changes will become retroactive depends in part on USSC data on how many prisoners would be eligible for a reduction. If the number is too high, the Commission becomes concerned that the courts will be overwhelmed with reduction motions.

Finally, unhappy that the Commission last year adopted a new compassionate release guideline and made the criminal history guidelines retroactive on a 4-3 vote, Sen John Kennedy (R-LA) last week introduced the Consensus in Sentencing Act to require that changes to the Guidelines get at least five votes out of the seven Commissioners.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said it “cannot be pure coincidence” that Kennedy introduced the bill the day before last week’s USSC meeting. The bill stands little chance of passing before Congress expires at the end of the year.

Reuters, US panel prohibits judges from sentencing for ‘acquitted conduct’ (April 17, 2024)

Law360, Sentencing Commission Limits Acquitted Conduct Sentencing (April 17, 2024) 

Press release, Durbin Applauds Sentencing Commission’s Unanimous Vote To Prohibit Acquitted Conduct From Being Used In Sentencing Guidelines (April 18, 2024)

Sentencing Law and Policy, Senator Kennedy introduces “Consensus in Sentencing Act” to increase USSC votes needed for guideline amendments (April 16, 2024)

– Thomas L. Root

Peters May Be The One – Update for March 5, 2024

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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.

PETERS BLUNT WITH SENATORS ABOUT BOP TROUBLES

No one who’s ever had a beef with what I publish in this blog – and there surely are a lot of people who have complaints – has ever accused me of being an apologist for the Federal Bureau of Prisons. But here goes…

cucumber240305Watching BOP Director Colette Peters testify before the Senate Judiciary Committee last week was a refreshing departure from her previous appearances and a downright treat after enduring years of painful appearances by her clueless predecessor Michael Carvajal.

“The Feds survey says the Federal Bureau of Prisons is the worst place to work in federal government, so we have a lot of work to do,”  Peters candidly told the Committee last Wednesday during the hearing Committee Chairman Richard Durbin (D-IL) called in response to a DOJ Inspector General report on inmate deaths in federal prison.

That report, issued two weeks before, found that systemic and operational failures contributed to scores of prisoner deaths over the years. Durbin convened the hearing to underscore the report findings that – among others – suicide accounted for over half of the deaths reviewed by the IG.

Sharing the witness stand with DOJ IG Michael Horowitz, Peters was the target of most of the senators’ questions. But unlike her stumbling performances in prior Congressional hearings, Peters was confident, direct and armed with facts and numbers during the 2-hour session. And when Sen John Kennedy (R-LA) hectored her in one of the most bizarre barrage of questions in recent memory, she cooly stared him down while undoubtedly controlling the urge to ask him who tied his shoes for him every morning.

But back to the hearing.

Paters laid most of the blame for the issues raised in the report on BOP’s chronic staffing shortages. She told the senators that the data on BOP correctional officers are “startling,” rattling off the stats:

One in three have symptoms of PTSD. That means more anxiety, more depression, [and] that means more reliance on substance abuse and higher levels of divorce. Over 90% are obese or in the overweight category, over 90% have hypertension or pre-hypertension… What we’re finding across the country, in some places they can leave the [BOP] and work for state corrections and make two to three times more, let alone the bonuses that we’re battling against at fast food organizations. So it is incredibly difficult… I also want to remind the committee that the average onboarding for law enforcement in this country is 21 weeks [of training] and our officers receive about six. It’s truly unfortunate.

psy170427The IG report found that a shortage of psychiatric services employees “strained the ability of staff” in facilities where prisoners died “to provide adequate care to mentally ill inmates.” This has been a chronic BOP problem, where a dearth of mental health resources has led to many people being underdiagnosed, a 2018 Marshall Project investigation found. In the Senate hearing, Horowitz noted that over 60% of people who died by suicide in federal prisons had been on the Mental Health Care Level 1, meaning the BOP had determined that they did not need regular care mental health care.

Peters and Horowitz both pointed to staffing shortages as a key driver of the problems. A lack of clinical staff like psychologists and corrections officers has been an endemic challenge in many BOP facilities, the Marshall Project reported last weekend.

Horowitz also suggested that the BOP’s problems may be more than just staffing. Talking about contraband, he that “we’ve had a staff search policy recommendation open for years that has not been implemented, the basic search policy for staff coming into the facility, that hasn’t happened, either…” Several senators cited a GAO report last month that the BOP has failed to implement 58 of 87 recommendations on improving restrictive housing (also known as Special Housing Units, or SHUs) practices.

Kennedy tried to beat up Peters with a theatrical performance accusing her of using the First Step Act to release 30,000 criminals, 12% of whom have been recidivists (as though the decision when to release prisoners is her responsibility). Punctuating his questions with dramatic eye rolls and sighs of “Wow,” Kennedy sought to blame Peters for releasing thousands of violent criminals to prey on helpless civilians.

Kennedy: “How many criminals have you released under the First Step Act?”

Peters: “We have about 30,000 individuals that have been released since the passage of the First Step Act.”

Kennedy: “All right, so you’ve released 30,000 criminals under the First Step Act, okay? . . . Before you released them, did you contact any of their victims to say, ‘We’re about to let this guy out’?”

Peters: “Senator, it’s my understanding that that notification happens through the U.S. Attorney’s Office, but I will check into that and get back to you.”

Kennedy: “You don’t know?”

Peters: “Senator, I don’t.”

Kennedy: “Wow. Okay, of the 30,000 criminals you let free, how many of them have come back, have committed a crime again, hurt somebody else?”

Peters: “So, that number is one that we’re still looking at as it relates to the recidivism rate for those that were released on the First Step Act.”

Kennedy: “You don’t have any idea?”

Peters: “No, Senator.”

The implication that Peters and the BOP should be responsible for victim notification – a duty of the US Attorneys offices – or maintaining recidivism records is risable. It’s like asking the Veterans Administration how much ammo the Defense Dept has.

tieshoes240305Beyond that, suggesting that somehow Peters was releasing BOP prisoners on her whim, rather than in response to the court-ordered sentences ending or statutory mandates requires a special kind of ignorance of the law unbecoming of a man who was Phi Beta Kappa and with years of experience as a lawyer. That makes his embarrassing performance all the more puzzling.

He did not embarrass Peters, who was calmly unfazed by his attack. Committee Chairman Richard Durbin (D-IL) finally braced Kennedy: “Don’t put your head in a bag… The First Step Act was a constructive reform of the penal system and I think it was a good idea and I stand by it.”

Sen Cory Booker (D-NJ) said the BOP has simply not been provided enough resources. “I have a lot of frustrations obviously with what’s going on. But I’ve watched you now as a professional struggle mightily to meet the demands that are put on you in a moment where Congress is not giving you the resources necessary to do your job,” Booker said.

Sen Chris Coons (D-DE) told Peters that she has “inherited a deeply troubled institution and I suspect you some days feel like your job is more akin to trying to change the direction of an aircraft carrier than lead an agile and well-resourced organization because the BOP is frankly neither and I appreciate the determination, openness and vigor with which you’ve approached this task.”

Almost half of the suicides took place in a “restrictive housing setting,” the IG Report said. Durbin told Peters that “despite the decrease in Bureau of Prisons total population since you were sworn in as director in August of 2022 the percentage and total of number of individuals and restricted housing is actually higher than it was at that time…”

shucell240212Peters said that almost 40%t of those who lived in restrictive housing did so by their own choice. Nevertheless, she admitted that “everyone who is in restrictive housing has or will suffer from some form of mental or physical damage. I think even those that are agreeing or wanting to be in restrictive housing need to be educated on the fact that that isn’t where they belong and that we need to be able to safely house them in [general population]. Just because they’re volunteering to be there doesn’t mean that the physical and mental wear and tear isn’t happening for them as well.”

“It’s time for solutions and change,” Durbin agreed. “The lives of hundreds of Americans in Bureau of Prisons custody are at risk.”

Roll Call, Federal prison director tells senators about staffing ‘crisis’ (February 28, 2024)

Capital News Service, Deaths in federal prisons draw fire from Senate panel (February 29, 2024)

DOJ, Office of Inspector General, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

The Marshall Project, How Federal Prisons Are Getting Worse (March 2, 2024)

WHBF-TV, Senate Judiciary Committee grills Bureau of Prisons chief on staffing, inmate deaths (February 28, 2024)

Sen John Kennedy, Kennedy questions Bureau of Prisons on early release of criminals: “You don’t have the slightest idea how many of them committed another crime and came back?” (February 28, 2024)

– Thomas L. Root

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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Progress on FIRST STEP, or Just Generating Heat Without Light? – Update for December 10, 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 GETS KNOCKED DOWN, BUT IT GETS UP AGAIN, CAN MCCONNELL EVER KEEP IT DOWN?

The lyrics from “Tubthumping,” Chumbawamba’s 1997 hit, describe the FIRST STEP Act’s week. The bill got knocked down early in the week by inaction and demagoguery, to the point that pundits were writing the bill’s obituary last Thursday. But the prison and sentencing reform act stumbled back up again on Friday, with three surprisingly positive developments.

chumba181210FIRST STEP is still far from being passed, but the pressure (for a change) is on Senate Majority Leader Mitch McConnell (R-Kentucky) instead of on the bill’s supporters. Sen. John Thune (R-South Dakota) seemed to signal that McConnell may yield to pressure. On Face the Nation yesterday, Sen. Thune said of FIRST STEP, “There are timing issues associated with it but there – at the moment at least there are still some substantive issues that are being resolved. I think if they get that worked out, if they can attract the support of more Republican Senators, there – there’s still an opportunity I think for that to be finished this year, but if not obviously it – it will be taken up again next year-”

The big news of the week came late on Friday, when President Trump decided to check back in on the bill, and pressured McConnell to bring FIRST STEP to a vote during the crowded lame duck session. After going mostly silent on the bill for several weeks, Trump singled McConnell out on Friday on his Twitter feed:

tweet181210

Trump’s public demands do not guarantee McConnell will bring the bill to a vote. He has told Trump several times that the Senate calendar is too cluttered in December to take up a bill that divides Republicans. As late as Thursday, McConnell had not mentioned the bill at either of two GOP senator meeting, and he has reportedly told senators there’s almost no window to take up the bill this year, according to multiple GOP sources.

One McConnell adviser said the senator does not intend to have a vote on the legislation because he does not have enough time and is more focused on other things — like funding the government and confirming judges. “He doesn’t like the bill,” the Washington Post reported Republican donor Doug Deason, a key White House ally, said of McConnell’s view of FIRST STEP. “He’s a Jeff Sessions-style, lock-them-up-and-throw-away-the-key kind of guy.”

mcconnell180219White House officials say McConnell doesn’t want a vote unless the overwhelming majority of Republicans will vote for it — although both Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Sen. Mike Lee (R-Utah) said that 28 or 30 GOP senators support the bill. There are 51 Senate Republicans, and nearly all of the 49 Senate Democrats are expected to back it.

McConnell complained at a Wall Street Journal event last week that such a bill requires a week or ten days to consider, while there are only two weeks left before the planned holiday recess and budget bills that must be passed. FIRST STEP advocates argue that it would only take a few days, with a cloture vote capping debate at 30 hours. McConnell acknowledged support on both sides of the aisle but called the legislation “extremely divisive inside the Senate Republican conference,” with more members undecided or opposed than in favor.

“That’s his calling card, protecting his conference,” said Kevin Ring, president of FAMM. The Atlantic suggested yesterday that while past majority leaders like Lyndon Johnson might have strong-armed their members, McConnell waits for near-unanimity among Senate Republicans. “I think he’s not just looking for 60 votes,” said Brett Tolman, a former U.S. Attorney in Utah who also worked as a GOP Senate staffer and now advocates for criminal-justice reform. “He’s looking for a majority of Republicans.”

But it's not a bad thing.
                   But it’s not a bad thing.

Earlier in the week, FIRST STEP opponents Sen. Tom Cotton (R-Arkansas), John Kennedy (R-Louisiana) and Ted Cruz (R-Texas) seemed to be on a roll, denouncing FIRST STEP as giving immediate release to sexual predators, drug kingpins and gun-toting gangbangers. But Friday, just before Trump’s renewed support,     Sen. Cruz flipped, issuing a press release pledging support:

“I have long supported criminal justice reform. I believe in reducing mandatory minimum sentences for non-violent drug offenders, and providing greater opportunities for offenders to be rehabilitated. At the same time, I do not believe we should be granting early release to violent offenders.

“That is why I drafted an amendment that would exclude violent offenders from being released early. I’m happy to report that, after working closely with the White House and the sponsors of this bill, they have decided to accept my amendment. This new version of the bill resolves my concerns, and is one that I wholeheartedly support and cosponsor.”

firststep180814Also, last Friday a leading FIRST STEP opponent announced his support of key planks of the legislation. Larry Leiser, president of the National Association of Assistant U.S. Attorneys, told the Washington Examiner he supports in principle three of four major sentencing reforms included in FIRST STEP.

The possible turning of the tide seems to have little effect on McConnell’s reluctance to hold a vote. He has angered some GOP senators and created an unusual rift with Sen. Grassley, a longtime McConnell ally. Grassley has spent years building a coalition around FIRST STEP and is pushing hard for a vote this year. “We’ve done what needs to be done,” Grassley said about the overwhelming support for the bill. “So what’s holding it up?”

On Friday, Sen. Lindsey Graham (R-South Carolina) intervened, talking directly to President Trump about attaching the criminal justice legislation to the must-pass year-end spending bill, which is already tangled in a separate fight over funds for the border wall with Mexico. “Just talked with President,” Graham tweeted. “He strongly believes criminal justice reform bill must pass now. He also indicated he supports putting criminal justice reform bill on year-end spending bill which must include MORE wall funding.”

The spending bill will need approval by Dec. 21 to avoid a funding lapse days before Christmas.

On Thursday, Sen. Lee said there were 28 hard “yes” Republican votes plus 49 Democrats for the bill. “It’s rock-solid,” he said. But Sen. John Cornyn (R-Texas), the Senate Republican whip, said more Republicans needed to be convinced. “Right now we have a majority of the Republican conference either undecided or no,” he told reporters. He also continued to call for some changes to the bill.

reefer181210Despite Sen. Lee’s assurance that he has 49 Democrat votes in favor of FIRST STEP, The Hill reported Wednesday Democrats who are mulling 2020 presidential bids have split over whether to support FIRST STEP. The decision to support or oppose the bill is a significant policy decision for 2020 Democrat candidates.

Among Republican senators, Sen. Rand Paul (R-Kentucky) told CNN that there’s a generational divide within the party on the issue. “I think there are people who were teenagers in 1937 watching ‘Reefer Madness’ and they’re still concerned that Reefer Madness is going to take over and everybody is going to become zombies, hacking and killing everyone if they smoke pot,” said Sen. Paul, a FIRST STEP supporter. “And then there are a couple of generations after 1937 of people who don’t see it with the same degree of evil.”

The Atlantic, Mitch McConnell Appears to Be Killing Bipartisan Sentencing Reform (Dec. 9)

Politico, Trump leans on McConnell to vote on criminal justice reform (Dec. 7)

The Hill, Criminal justice reform splits 2020 Democrats (Dec. 5)

Washington Examiner, Trump pushes Congress to pass floundering sentencing reform bill (Dec. 7)

Washington Post, McConnell tells White House little chance of Senate vote on criminal justice bill (Dec. 6)

Pittsburgh Tribune, McConnell blocks sentencing bill, upsetting Grassley, GOP (Dec. 7)

– Thomas L. Root

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Still Some Life Left in FIRST STEP? – Update for November 26, 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.

FELLOW REPUBLICANS URGE MCCONNELL TO PUT FIRST STEP TO A VOTE

intimidation181126Republican senators last week put a full-court press on Senate Majority Leader Mitch McConnell (R-Kentucky) to bring the modified FIRST STEP Act to the Senate floor before Congress adjourns for the year on Dec. 14. 

[Update: The Senate Judiciary Committee reported the modified FIRST STEP Act, now S.3649, to the floor on Monday, November 26, 2018].

McConnell has been coy about the bill’s prospects, even with the backing of President Donald Trump and his son-in-law and senior adviser, Jared Kushner. McConnell’s intransigence in the face of Trump’s urging and the demands of his own party could open a new divide between McConnell and Trump weeks after they worked together to widen the Senate majority in the midterm elections.

If the Senate does not pass FIRST STEP in the next two weeks, the bill would have to be reintroduced in January, and would a Democrat-controlled House that would probably include a lot of sentencing reform provisions that would be non-starters in the Senate.

“This really does need to get done this year,” Sen. Mike Lee (R – Utah) said in an interview. “Saying that we’ll do it next year is tantamount to saying this just isn’t going to get done.”

In general, McConnell doesn’t like voting on legislation that divides Senate Republicans. FIRST STEP has been controversial among a few conservative Republicans for months, even sparking a Twitter argument between Lee and Sen. Tom Cotton (R – Arkansas), last Monday.

“Unaccountable politicians and those who live behind armed guards may be willing to gamble with your life,”  Cotton wrote in a USA Today op-ed piece Nov. 15. “But why should you?”

cotton171226And Sen. John Kennedy (R-Louisiana) argued earlier this month, “A dangerous person who is properly incarcerated can’t mug your sister. If we’re not careful with this, somebody is going to get killed.”

In the past three years, Sen. Charles E. Grassley (R-Iowa), chairman of the Judiciary Committee, blocked a Democratic Supreme Court nominee, pushed through an army of conservative judges and secured confirmation two Trump nominees.

Grassley had some chits to call in when he spoke to McConnell last Monday morning about FIRST STEP. I have been there for you, Grassley told McConnell, and I would hope this is something that you would help me make happen, the New York Times reported that three people familiar with the call said.

Meanwhile, Sen. Lindsey Graham (R-South Carolina) told NBC a week ago that he’s confident FIRST STEP would receive 80 votes in the Senate, and would be a positive first step for the government in the wake of a contentious midterm election cycle. “Let’s start 2019 on a positive note,” Graham said. “I’m urging Sen. McConnell to bring the bill to the floor of the Senate. It would get 80 votes. Mr. President, pick up the phone and push the Republican leadership… The Republicans are the problem here, not the Democrats.”

FIRST STEP proponents fear McConnell will let the short window for consideration this year slide shut rather let a vote go forward on a complicated issue that divides Republicans. Republican senators allied with Grassley, including Lee, Graham and Tim Scott of South Carolina, began last week to contact wavering colleagues by phone. Kushner convened a call with business groups to praise the changes, and the White House circulated a USA Today op-ed that Kushner wrote with Tomas J. Philipson, a member of the White House Council of Economic Advisers. Donald Trump Jr. and Ivanka Trump, the president’s eldest son and daughter, blasted supportive messages to their millions of Twitter followers urging Congress to move quickly.

firststepslamduck181126Kushner reportedly plans to ask Trump to lobby McConnell directly by phone, but is waiting to line up more Republican support first, according to two people familiar with his thinking. Trump is not waiting for Kushner’s request, already using Twitter last Friday to urge McConnell and Minority Leader Chuck Schumer to pass the “badly needed” criminal justice reform bill.

McConnell has not yet budged. In a statement Friday, a spokesman for McConnell told The New York Times: “The support for, and length of time needed to move the new bill is not knowable at this moment.”

Earlier this month, McConnell told the Louisville Courier Journal, “We don’t have a whole lot of time left, but the first step is to finalize what proponents are actually for. There have been a lot of different versions floating around. And then we’ll whip it and see where the vote count is.”

Wall Street Journal, McConnell Controls Fate of Criminal-Justice Overhaul Bill (Nov. 20, 2018)

CNBC, Trump pushes Mitch McConnell and Chuck Schumer to pass ‘badly needed’ bipartisan criminal justice reform bill that’s stalled in the Senate (Nov. 23, 2018)


The New York Times, McConnell Feels the Heat From the Right to Bring Criminal Justice Bill to a Vote (Nov. 20, 2018)

The Hill, Graham urges GOP leadership to bring vote on criminal justice reform (Nov. 18, 2018)

– Thomas L. Root

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