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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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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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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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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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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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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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Sentence Reform is in McConnell’s Timid Hands – Update for February 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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SENTENCING REFORM AND CORRECTIONS ACT FACES UNCERTAIN FUTURE

The future of the Sentencing Reform and Corrections Act (S.1917), approved 16-5 by the Senate Judiciary Committee last Thursday, will depend on whether the bipartisan coalition backing it can persuade Senate Majority Leader Mitch McConnell (R- Kentucky) to allow a full Senate vote.

mcconnell180219The New York Times said last Friday those prospects appear dim. “Mr. McConnell, who controls the Senate floor, continues to see the issue as a loser for Republicans, despite a wave of similar overhauls embraced by states across the country,” the Times opined. “He has argued that the issue divides Republicans, many of whom remain averse to lessening criminal penalties of any kind, and could dampen enthusiasm at the polls.”

It will be up to Sen. Charles E. Grassley (R-Iowa), the influential chairman of the Judiciary Committee and the lead author of the bill, to change McConnell’s mind. Grassley thinks President Trump’s desire for legislative accomplishments could sway McConnell.

Majority Whip John Cornyn (R-Texas), who supported SRCA two years ago, opposed this year’s bill. Cornyn unsuccessfully urged his Judiciary Committee colleagues last week to focus on the alternate bill “that we can actually get a presidential signature [on] and pass it into law.” Four other Republicans voted against the bill as well. One conservative pundit, no fan of SRCA, said last Friday, “With committee Republicans this divided and the administration opposed to the bill, it seems certain that Majority Leader McConnell will not bring up the leniency legislation. I think it is dead this year…”

Grassley admits SRCA faces resistance McConnell, who “doesn’t want to bring it up.” During the last Congress, McConnell refused to give floor time to the criminal justice bill because of the number of Republican senators in tough reelection races. “He doesn’t have that problem now,” Grassley said. “We only have 10 Republican senators up [for reelection in November]. This bill can easily get 60 votes.”

sessions180215Attorney General Jefferson Beauregard Sessions III’s opposition to the bill may actually help its chances. may help the bill’s chances. Sessions has angered many senators with what they see as broken promises and personal attacks. Last week, as we reported, he infuriated Grassley, a long-time friend, with a letter opposing SRCA that Grassley found insulting. The Wall Street Journal reported, “Some experts said these fights could cost Mr. Sessions allies in the Senate at a time when he has few friends in the administration.” Being able to stick the Senatorial thumb in Sessions’ eye may spur McConnell to call the bill for a vote.

NY Times, Senate’s Renewed Push for Sentencing Overhaul Hits a Familiar Roadblock (Feb. 15, 2018)

Politico, Criminal justice overhaul advances amid Grassley-Sessions spat (Feb. 15, 2018)

Wall Street Journal, Attorney General Jeff Sessions Is Battling His Own GOP on Multiple Fronts (Feb. 15, 2018)

– Thomas L. Root

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