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Cotton’s Price is Too High – Update for November 20, 2018

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

COTTON SAID TO HAVE NAMED HIS PRICE FOR SUPPORTING FIRST STEP

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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Mitch Rains on FIRST STEP Parade – Update for November 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.

MCCONNELL KNEECAPITATES FIRST STEP ACT


kneecap181119After asking Democrats earlier this week to work more collaboratively with Republicans, Senate Majority Leader Mitch McConnell (R-Kentucky) last Thursday mugged the FIRST STEP Act, Congress’s best remaining chance to accomplish something bipartisan this year. McConnell told President Trump in a private meeting on Thursday that the Senate lacks the floor time to bring the FIRST STEP prison reform measure to a vote this year, regardless of how much support the measure has.

On Wednesday, shortly after Trump announced his support for the modified FIRST STEP Act, amended to add some sentencing reform provisions, McConnell cautioned (without outright spindling the Act), “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.”

A day later, McConnell said the measure would not get a vote, because he estimated he would need ten floor days to get FIRST STEP passed. There are only 15 legislative days left in the year, and other legislative priorities – such as passing bills related to government funding and farming – would get priority. The Senate is recesses for the year on December 14th.

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McConnell reluctantly promised in September that if FIRST STEP secured the support of at least 60 senators, he would be bring the bill to a vote. Earlier last week, McConnell hedged his bets, saying he would still assess the amount of support for the measure, but he cautioned that he would have to “see how it stacks up against our other priorities going into the end of our session.”

Every Congress is a two-year session that begins in January of an odd-numbered year and ends in December of the next even-numbered year. The last two years has been the 115th Congress, which ends next month. Whenever a session of Congress ends, any bill that has been introduced but not passed dies. This means that if FIRST STEP does not pass the Senate by mid-December, the measure will expire. It will have to start over again in House and Senate committees in January 2019.

As Senate Majority Leader, McConnell controls the Senate floor.

Lawmakers from both parties have been working feverishly to pass the compromise legislation. At the urging of son-in-law and White House advisor Jared Kushner, Trump enthusiastically endorsed FIRST STEP this week, and House Speaker Paul D. Ryan (R-Wisconsin), who controls the House of Representatives, pledged to move it across the finish line in the House “this term.” But McConnell’s refusal to schedule FIRST STEP for floor time all but drives a stake through prison reform’s heart.

If the bill had enough support, McConnell said, he would be willing to bring it up next year after the new Congress is seated. Because the measure would have to go through committees again, and due to the change in control of the House from the Republicans to the Democrats, some argue McConnell’s commitment is half-hearted at best. Supporters of the legislation believe that is being a less-than-neutral arbiter, saying that even if it could be brought to the floor quickly next session, Democrats in the House who favor farther-reaching retroactive sentencing reform could collapse the current compromise.

mcconnell180219McConnell’s slow-motion strangulation of FIRST STEP is not the first-time criminal justice reform has run into the Majority Leader. A similar coalition of legislators and interest groups made a higher-profile and more expansive attempt to pass the Sentencing Reform and Corrections Act of 2015 two years ago, a measure that had Ryan’s support as well as plenty of Senate backing. But McConnell, worried that passing the bill would hurt Republicans at the polls in the 2016 elections, refused to bring that bill to a vote.

Holly Harris, executive director of the nonprofit Justice Action Network said on Saturday that 70 to 80 senators already support the proposal. “Leader McConnell made a promise to us that if he had 60 votes, he would make time to move our bill,” Harris said. “I still believe he will keep that promise, especially now with President Trump’s endorsement.”

Delaying a vote on criminal justice reform would not be in McConnell’s best interest, Harris said. “If there is any sort of political concern,” Harris said. “it should be in not supporting this bill.”

In a statement to the Louisville Courier Journal, Sen. Rand Paul (R-Kentucky) said McConnell is “nothing if not a smart politician” and that he believes McConnell will allow a vote before the end of 2018.

Ohio State University law professor Doug Berman said last Friday in his Sentencing Law and Policy blog, “I am now inclined to fear that no significant form of federal criminal justice reform will be completed as long as Senator McConnell is the Senate’s majority leader.”

New York Times, McConnell Tells Trump a Criminal Justice Bill Is Not Likely This Year (Nov. 16, 2018)

Louisville Courier-Journal, Mitch McConnell tells Trump prison reform vote unlikely (Nov. 17, 2018)

– Thomas L. Root

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Trump Backs FIRST STEP, but Future Remains Uncertain – Update for November 15, 2018

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

PRESIDENT BACKS FIRST STEP

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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Draft Amended FIRST STEP Act Gives and Takes Away – Update for November 14, 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.

THE NEW YORK TIMES OBTAINS DRAFT AMENDED FIRST STEP ACT

The New York Times has released what it reports is a draft of the amended FIRST STEP Act obtained by its reporters.

firststepB180814The amended version shows the effects of a lot of behind-the- scenes deal-making. It contains good news, so-so news and bad news for current inmates.

The bad news first:

• While the amended bill draft retains the changes in 18 USC 924(c) stacking rules (for people who get charged with more than one 924(c) count), it drops the retroactivity proposed in the Sentencing Reform and Corrections Act.

• While the amended bill draft retain the reduction in mandatory drug life sentences to 25 years and 20-year sentences to 15 years, where the enhancements came because of prior drug convictions, the retroactivity proposed in the SRCA has been dropped.

The so-so news:

• The amended bill draft retains the changes in the 18 USC 3553(f) “safety valve” for drug defendants – which lets some lesser offenders escape mandatory minimum sentences – to include people with more criminal history than the near-virgins who once were the only ones to benefit from the provision. The change is not retroactive, but the SRCA never proposed that it would be, so nothing was lost.

•  The amended bill draft retains the reduction in the mandatory 10-year drug sentence to five years under certain circumstances, as originally proposed in the SRCA. The change is not retroactive, but again, the SRCA never proposed that it would be, so nothing was lost to people already serving sentences.

• The amended bill draft retains expanded “good conduct credit” to 54 days for each year of sentence (this has the effect of awarding an extra seven days a year). Currently, a federal prisoner with good conduct serves 87.1% of the sentence. Under the change, it will be 85.2%. It is not clear from the legislation whether the “good time” change will apply to current prisoners retroactive to their first day of the sentence, or only to time remaining after the law becomes effective.

The good news:

• The Fair Sentencing Act retroactivity, which applies the crack reduction to people who received crack cocaine mandatory minimum sentences before July 2010, remains.

• There is no change in the prior FIRST STEP‘s proposed expansion of the elderly offender or elderly terminally ill offender release to home confinement proposals .

• There is no change in the in the prior FIRST STEP‘s proposed expansion of the compassionate release, to let defendants apply directly to the courts if the BOP refuses to do so.

good-bad-news-400pxThe really good news:

• Every prior version of FIRST STEP let prisoners earn time for programs the BOP holds reduce recidivism, on the order of 10 days a month (or 15 for minimum-risk people). But the time credit was not “good time” that would reduce a sentence. Instead, the “program credit” only got the prisoner more halfway house or home confinement time. We were skeptical that the BOP could find the halfway house capacity to honor the change in the law.

The amended bill draft adds this kicker:

“Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.”

In other words, the time earned from qualified programming would be like additional good conduct time, and would shorten the prisoner’s sentence. Theoretically, a prisoner could reduce his or her sentence from 85% (normal good time) down to 56% (if he or she completed back-to-back qualified programs, and earned 10 days a month). (If the prisoner were minimum-risk – which is NOT the same thing as minimum-security – he or she could get up to 15 days per month of successful programs, and drive the total sentence to between 40 and 50%.)

• The draft directs the BOP to have enough halfway house and home confinement capacity, but because the Act says the BOP shall honor the extra days earned under the programs, it seems that a shortfall in halfway house or home confinement capability would simply require that the program credit reduce sentence length. In fact, the BOP may use the shortened sentence award as the default, because the agency will save the most money that way.

The draft gives the Attorney General six months to develop a risk assessment system with which to classify inmates, at which time the expanded “good conduct time” and the program credits become effective.

There is, of course, no assurance the bill will pass, and if it does, that it will not undergo further amendments.  However, CNN reported last night that two sources close to the FIRST STEP Act legislative process said President Trump is scheduled to announce today that he is supporting the amended FIRST STEP Act. The President will be joined by supporters of the legislation during the White House event, the sources said.

trumplogjam180806CNN said supporters of the measure expect that Trump’s explicit backing will help propel the prison and sentencing overhaul bill through Congress, a push White House officials hope to accomplish during the lame duck session of Congress.
 
CNN said sources expect Senate Majority Leader Mitch McConnell (R-Kentucky)  to order a whip count later this week, and has pledged to bring the bill to the floor for a vote if the count shows 60 votes in favor of the bill.

Draft Amended FIRST STEP Act (S.2795)

The New York Times, Bipartisan Sentencing Overhaul Moves Forward, but Rests on Trump (Nov. 12, 2018)

CNN, President Trump to announce support for criminal justice overhaul proposal (Nov. 12, 2018)

– Thomas L. Root

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Senate Reconvenes with FIRST STEP Act on Its Plate – Update for November 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.

IT’S THE WITCHING HOUR FOR FIRST STEP

The Senate reconvenes today for what promises to be a busy lame-duck session, one that may be easier for Republicans to manage because they retained control of the Senate after last week’s bruising mid-term election.

firststep180814The biggest task facing the Senate is to address the budget ahead of a December 7th deadline. But equally important to 5,000 of our readers who happen to be guests of Uncle Sam’s Bureau of Prisons, the Senate has a final chance before the end of the year to pass a bill that combines prison and sentencing reforms calculated to improve the lives of more than 180,000 federal inmates while increasing the odds that they will never be inmates again.

The FIRST STEP Act (S. 2795), a pronounceable acronym for the “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act,” offers prison programs in an attempt to reduce inmates’ likelihood to re-offend after they’ve been released. The House approved the bill in May. In August, the White House brokered a compromise among several senators, including Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois), to include some sentence reform provisions from the Sentencing Reform and Corrections Act of 2017 (S.1917), which the Senate Judiciary Committee approved last winter. 

The amended Act will reportedly be introduced in the Senate today.


The changes that would flow from passage of FIRST STEP are incremental but significant: Increases in compassionate release of terminally ill inmates: bans on restraints for pregnant inmates during childbirth, cuts to some mandatory minimum sentences, greater leeway for judges imposing sentences, more good time, elderly inmate home confinement, and programs that let inmates earn more time in halfway house and home confinement.


But some tough decisions and hard bargaining lie ahead. The bill is hotly debated and opposed by some conservatives who worry it may release dangerous people prone to reoffend and overburden local police. There is also fear that mixing sentencing reform with prison reforms, which have generally had more support among lawmakers, will threaten chances of passing a criminal justice bill this year before having to start all over again with a new Congress.

Georgetown University law professor Shon Hopwood said he thinks legislators have found a compromise that can pass Congress and be signed into law. FIRST STEP will not bring retroactive relief to that many inmates, but Hopwood still says the reforms would bring about concrete changes in the lives of many federal inmates.


grassley180604Sen. Grassley said last month he thinks the plan to combine the FIRST STEP with his own SRCA can get through the Senate. “We’ve already worked out what I think is something that can move in the Senate if we can get it up, and it would be both sentencing reform and prison reform,” Grassley said. While he did not elaborate on the nature of the agreement, he said he’s been in talks to get the compromise legislation moving in the lame-duck session between November’s elections and the end of the current Congress in January.

A committee aide said the in-the-works deal rolls in several elements of the SRCA, including reductions in mandatory minimums, increased flexibility for judges to set lower sentences, change to how 924(c) enhancements for drug crimes are calculated and Fair Sentencing Act of 2010 retroactivity.

Conservative Republicans who oppose FIRST STEP lost traction last week with the forced resignation of Attorney General Jefferson Beauregard Sessions III, who had previously infuriated Grassley with his unsubtle lobbying to kill SRCA in Committee. Last week, the Fraternal Order of Police, a vigorous opponent of SRCA last March, issued a press release supporting the amended FIRST STEP.

What’s more, some influential conservative voices favor the amended FIRST STEP Act. The National Review said last Friday that “by a 360–59 vote, the House adopted prison reform via the FIRST STEP Act. The Senate should add sentencing-reform language before full adoption.”

There is a chance some controversial elements of prison reform, such as increased “good time,” could still fall by the wayside in order to mollify some conservative concerns with the existing legislation, according to Rep. Doug Collins (R-Georgia), the House FIRST STEP Act (H.R. 5682) sponsor. But not including sentencing reform in the package could alienate Democrats needed to ensure the compromise legislation passes both chambers. Longtime sentencing reform advocate Sen. Durbin and other Democrats like Sen. Cory Booker (D-New Jersey) and Sen. Kamala Harris (D-California) had previously opposed FIRST STEP because it did not include sentencing reform. The three instead pushed for the Grassley/Durbin-sponsored SRCA, although they don’t appear to have been involved in crafting the Senate Judiciary Committee chairman’s compromise legislation.


cornyn181113Sen. John Cornyn, R-Texas, the majority whip and main sponsor of the Senate version of FIRST STEP, said last month that Senate Majority Leader Mitch McConnell (R-Kentucky) will have a tight schedule to fill, between confirming the backlog of two dozen judges and keeping the government open ahead of a Dec. 7 funding deadline. “Certainly Sen. McConnell is going to prioritize federal judicial nominations, but if there is the will to move on legislation, that would be included,” Cornyn said. However, with Republicans not just retaining, but building on their majority in the Senate for the next Congress, the pressure may be off McConnell to push through judicial appointments before next term.

Those advocating for reform have an ally in the White House: President Donald Trump’s son-in-law Jared Kushner has championed passage of FIRST STEP for months, and Trump himself has continued to say he would support the Act.

A CNN report last week suggested continuing White House interest in FIRST STEP. CNN said that former New Jersey governor Chris Christie, whom CNN says is a front-runner to be President Trump’s new attorney general, attended a “law enforcement roundtable on prison reform efforts at the White House on Thursday morning.” Christie then met privately with the President’s son-in-law and senior adviser Jared Kushner to further discuss prison reform issues. An administration official said Kushner and Christie have “a really close and good working relationship, particularly as it relates to prison reform.”


Some reform advocates worry that pushing too hard to add too much to a reform package could jeopardize the progress made by FIRST STEP. Kevin Ring, president for FAMM, said there are real people who will have their lives improved by the bill, and they could easily end up with no legislation at all. “We’d greatly prefer having the sentencing be a part of it, but we don’t want to hold out for everything and end up with nothing,” he said.


For Hopwood, the next two months presents a choice between trying to help as many people as possible now and going for the long haul. “What you’re saying when you hold out for systemic reform is, ‘We don’t want to help the lives of people who are in the system for 20 years,’ because it might be that long,” Hopwood said.

Law360, Hard Decisions Loom In Lame-Duck Push For Sentencing Reform (Nov. 4, 2018)

CNN, Trump considering Christie, Bondi, Acosta for attorney general (Nov. 8)

National Review, The Lame-Duck Session Should Sprain Trump’s Wrist (Nov. 9)

– Thomas L. Root

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FIRST STEP First Up After Mid-Terms? – Update for November 5, 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.

SENATE POISED TO CONSIDER AMENDED FIRST STEP ACT

Criminal justice reform advocates confirmed to the Washington Examiner last week that sentencing reform provisions will be included in the FIRST STEP Act (S.2795), to be unveiled shortly after tomorrow’s mid-term elections, amendments which are likely to trigger an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill. 

firststep180814The FIRST STEP Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms. Reform advocates expect rapid legislative action after a pre-election pause, and believe there will be enough votes to pass the expanded legislative package. Two people close to the process told the Washington Examiner that a bipartisan group of senators has agreed to attach a set of sentencing reforms to the House-passed bill. 

The additions include shortening federal three-strike drug penalties from life in prison to 25 years, reducing two-strike drug penalties from 20 years to 15, unstacking 18 USC 924(c) sentencing enhancements to require a conviction on the first 924(c) charge before 25-year minimum mandatory sentences apply, making the 2010 Fair Sentencing Act (that cut crack penalties) retroactive, and expanding the 18 USC 3553(f) “safety valve.”

“We are very excited about it. We think that the four reforms that are in the bill are ones that make sense,” said Mark Holden, the general counsel of Koch Industries and an influential conservative reform advocate. “From what we understand, there are enough votes — plenty — for it to happen.”

Both Holden and another person close to the legislation drafting process, who asked not to be identified, said there is wording to reduce concern about illegal immigrants benefiting from sentencing reform. 

Sentencestack170404Many of the proposed changes to the FIRST STEP Act are included in the Sentencing Reform and Corrections Act (S.1917), which passed the Senate Judiciary Committee last February but has not been brought to the floor for a vote. While the physical text of the new sentencing reforms is still being written, the SRCA provides a good example of what might be in the final bill text. “The sentencing reforms that could be included in the First Step Act… do not eliminate any mandatory minimum sentences,” wrote FreedomWorks vice president Jason Pye in The Hill last week. “But these proposed reforms would apply a measure of common sense to federal sentencing law.”

Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill. Last month, President Trump said in a Fox News interview that while Attorney General Jefferson Beauregard Sessions III opposed sentencing reform, Trump was in favor. “”If he doesn’t support reform, then he gets overruled by me,” the President said. “Because I make the decision, he doesn’t,” Trump said Oct. 11. 

“I think President Trump is doing a really good job on these sentencing reform measures,” Holden said. “He’s right, he’s the president, he makes the call, and we’re glad he said it.”

cotton171204It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell (R-Kentucky), will be the ultimate decision-maker in whether the bill gets a floor vote. A Louisville Courier-Journal writer said last week that with prison and sentencing reforms polling off the charts in Kentucky, and Sen. Rand Paul (R-Kentucky) leading the charge, there is little doubt McConnell will find enough votes during the promised whip count (he needs 60) to send the bill to the floor.

The reform efforts have received significant White House support, and in turn, policy advocates have sought to build bridges with Trump-supporting activists. Last month, clemency advocates including Amy Povah of CAN-DO Clemency and Alveda King, the anti-abortion evangelical leader, hosted a panel at a Women for Trump event at Trump International Hotel in Washington. 

pardon171128Povah wants Trump to supplement FIRST STEP passage with generous use of his constitutional pardon powers. Last month, Trump said “a lot of people” are jailed for years for “no reason” and that he was actively looking to release some. Povah said clemency would be particularly appreciated around the holiday, including Thanksgiving, when presidents pardon turkeys, disillusioning people who are looking for one. 

“I think Trump said it best, he said that he’s going to release a lot of people and I think a lot of people in prison took that seriously and literally,” Povah said.

Povah said she’s particularly grateful for Kushner’s role in pushing both legislation and clemency cases, particularly after Sessions’ appointment as attorney general (an appointment Trump openly regrets making and who is likely to resign or be fired after tomorrow’s election). “Jared is a beacon of hope for so many prisoners. They had lost hope for any leniency or reform when Jeff Sessions was sworn in as attorney general. If felt like a nail in the coffin,” she said.

Washington Examiner, Prison reform bill to include sentencing, setting up post-election fight (Nov. 4, 2018)

Americans for Tax Relief, The US Needs Sentencing Reform and the First Step Act (Nov. 2, 2018)

Louisville Courier Journal, Rand Paul and Mitch McConnell play key roles in justice reform (Nov. 1, 2018)

The Hill, Congress must make sentencing reform priority for public safety (Nov. 2)

– Thomas L. Root

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Trump’s Way or the Highway on Sentencing Reform – Update for October 17, 2018

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TRUMP SAYS HE’LL OVERRULE SESSIONS ON SUPPORTING FIRST STEP
Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root
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Senate Will Take Up Compromise FIRST STEP Act After Mid-Terms – Update for October 15, 2018

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MCCONNELL WILL BRING FIRST STEP TO SENATE VOTE NEXT MONTH IF SUPPORT IS THERE

A chance for criminal justice reform returned to the Senate last week, when Senate Majority Leader Mitch McConnell (R-Kentucky) told reporters that he intends to bring the compromise FIRST STEP Act up for a Senate vote after the Nov. 6th election, if he determines there are at least 60 votes in favor of passage.

wereback170921The bill merges some of the most important mandatory sentence and 924(c) stacking provisions of the Sentencing Reform and Corrections Act with the House-passed FIRST STEP Act, that offers increased halfway house or home detention for programming, corrects good time and makes favorable changes to compassionate release, the elderly offender home detention program and other aspects of prison life.

“Criminal justice has been much discussed,” McConnell told reporters Wednesday. “What we’ll do after the election is take a whip count and if there are more than 60 senators who want to go forward on that bill, we’ll find time to address it.” 

It’s a significant commitment from McConnell who has resisted bringing criminal justice reform legislation to the floor because support for it divides the Republican conference. As a result, a bill that easily cleared the House with bipartisan support last May has languished in the Senate, where McConnell controls what comes up for a vote.

Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog last week that President Trump said last August he had secured 30 to 32 ‘yes’ votes among Republican senators and hoped that “the number of GOP supporters could eventually grow as many as 40 to 46.” Berman predicted in August that the compromise FIRST STEP Act could “perhaps garner up to 90 votes in the Senate, and I do not think this head-counting is likely to change all that dramatically after the election (though one never knows).” He predicts that the prospect of the FIRST STEP Act becoming law before the end of the year “might be pretty darn good.”

firststepB180814Former South Carolina Sen. Jim DeMint, who leads a conservative coalition favoring FIRST STEP passage, said last week that the Senate’s lame duck session (after the November mid-term elections) is the best chance for reformers to actually get something done. “We’ve got the votes to do it,” DeMint said, “and the normal characters who sometimes Mitch McConnell has to protect from taking a tough vote would, I think, be very comfortable with it.” 

A sign of how this will play out showed up late last week. A poll, commissioned by a group representing the National Association of Assistant United States Attorneys found that 66% of Americans opposed FIRST STEP’s provision that let prisoners earn extra halfway house and home confinement by completing programming. The poll misrepresented FIRST STEP, falsely asserting the programming would award good time (which it does not):

“FIRST STEP’s primary effect, if implemented, would be to reduce the number of federal prisoners by altering the system’s “good time” credit rules, making it easier for convicts to be released early if they completed certain education, training, and other reformatory programs”

liar151213That is the kind of misrepresentation for which members of NAAUSA (pronounced like “nausea,” we think) love to prosecute people. In truth, all FIRST STEP awards is a chance for prisoners completing such programs to spend more of the end of their sentence in halfway house or on home confinement, still within the custody of the Federal BOP and confined except for well-monitored activities such as job searches, church services and medical appointments.

The poll and reporting on it leave little doubt, however, that the lobbying by NAAUSA and other people whose livelihoods may be threatened by FIRST STEP will be intense.

Curiously, an independent study sponsored by the National Institute of Justice released last Thursday found that half of Americans favored community-based sentences for drug and property crimes.

Sentencing Law and Policy, Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward (Oct. 10, 2018)

The Hill, McConnell looking at criminal justice reform after midterms (Oct. 10, 2018)

Louisville Courier-Journal, Conservatives want prison reform, and they’re making moves in McConnell’s Louisville (Oct. 11, 2018)

Washington Examiner, Jim DeMint: This is how criminal justice reform gets done this year (Oct. 11, 2018)

Washington Free Beacon, Poll: Three-Fourths of Americans Oppose Central Plank of FIRST STEP Act (Oct. 11, 2018)

The Conversation, Reduced sentencing for nonviolent criminals: What does the public think? (Oct. 11, 2018)

– Thomas L. Root
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Senate Quibbles Over Kavanaugh While FIRST STEP Molders – Update for October 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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FIRST STEP ACT STANDING STILL

It’s no surprise to anyone that the Senate’s version of the FIRST STEP Act, which reportedly will be amended to include some mandatory minimum sentence patches contained in the Senate Reform and Corrections Act of 2017, has been standing still since the White House deal brokered in late August.

mcconnell180219Recall that the White House convinced warring Republicans, led by Sen. Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee, to accept FIRST STEP as the vehicle to push prison and sentence reform through Congress. The irony was that Sen. Grassley and others did not think that FIRST STEP gave inmates too much. Instead, they complained that FIRST STEP gave inmates too little, because they see reform of drug mandatory minimums, Fair Sentencing Act retroactivity, and unstacking multiple 18 USC 924(c) sentences as essential.

Senate Majority Leader Mitch McConnell (R-Kentucky) fecklessly announced a month ago that he would not bring FIRST STEP to a floor vote until after the November mid-term elections, because he did not want to put Republican senators running for re-election in the position of having to take a stand on prison or sentencing reform. It hardly seems to be fraught with electoral peril: a recent University of Maryland poll found that over 70% of Americans favor reducing drug mandatory minimums and making the change retroactive.

The Brett Kavanaugh nomination fight could affect the chances of FIRST STEP passage, but what is going on in the nomination process is so unprecedented that no one can assess what that change will be. After one of the most bitter Senate battles in modern history, both parties might be eager to show the nation that the Senate can pass a measure with bipartisan support. As one commentator noted about the FIRST STEP Act last week, “The prison population is a lot smaller than the entirety of the American people and the ‘everyone wants this’ rationale doesn’t always work. In this case, however, bipartisanship is the truth.”

done160530On the other hand, the Republicans could be too bitter over Kavanaugh or even suffer a loss of the Senate. Right now, the Real Clear Politics poll predicts 47 solid Republican seats, 44 solid Democrat seats, and nine that are too close to call. It is entirely possible that the November election will cause Sen. McConnell to use the remaining few weeks of the 115th Congress to do things he will not be able to do in 2019. If that is the case, the FIRST STEP Act could become a casualty of political forces that have nothing to do with animosity toward federal inmates.

Last week, BOP inmate and former Illinois Governor Rod Blagojevich published a commentary in the Washington Examiner supporting prison reform, arguing that the government’s 97% conviction rate are strong arguments for reform. He wrote, “shouldn’t that fact raise an alarm bell to all freedom loving people? Michael Jordan, as great as he was, only made half the shots he attempted. And knowing what I now know through my experience, this almost perfect success rate is convincing proof that the federal criminal justice system works against the accused. It is neither a place to expect a fair trial nor is it a place where the promise of justice for all is a promise kept.”

Although you can be sure that there are good practical reasons for Congress to pass FIRST STEP, there is no guarantee that it will Another thing you can be sure of is that very little about the FIRST STEP Act will be heard in the next five weeks.

Civilcandor.com, Sentencing Reform Bills Won’t Help the Guilty by Accusation (Sept. 29, 2018)

Real Clear Politics, Election 2018 – Senate (Sept. 30, 2018)

fiWashington Examiner, Rod Blagojevich: My plea for prison reform (Sept. 28, 2018)

– Thomas L. Root

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Kushner Unrelenting On Criminal Justice Reform – Update for September 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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KUSHNER PUTS PRESSURE ON SENATE TO PASS REFORM BILL

kushner180622Jared Kushner, son-in-law and senior advisor to the President, told reporters last week that the White House is “very close” to finalizing a criminal-justice-reform package that combines the Sentencing Reform and Corrections Act (S.1917) and the FIRST STEP Act (S.2795), to break a Senate logjam due to internal Republican Party divisions. The House passed a pared-down criminal-justice bill earlier this year with significant bipartisan margins.

Kushner has worked for months with key House lawmakers and senators to shepherd through a legislative package that reforms federal prison policy and mandatory-minimum sentencing laws. The measure is still far from being signed into law and otherwise allies of the White House, such as Sen. Tom Cotton (R-Ark.), are determined to kill it.

Ten days ago, Kushner turned up the pressure on Majority Leader Mitch McConnell (R-Kentucky) to bring the revised FIRST STEP Act to a vote. Kushner is touting a Kentucky poll showing that 70% of those surveyed support FIRST STEP to convince McConnell to bring the issue to a vote. Kushner told the media he has spoken several times with Trump about FIRST STEP, which passed the House in May on a 360 to 9 vote.

The legislation has been met with divisions in the Senate where critics, including Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois) say it does not address the “front end” problem of longer prison sentences which have fueled decades of growth in the federal prison population. 

A recent White House-driven compromise to the Senate version of FIRST STEP would loosen mandatory minimum sentences for repeat non-violent drug offenders and scrap the “three-strike” mandatory life in prison provision. A spokesman for McConnell said he discussed the hybrid bill 10 days ago week with Kushner, Grassley, and Sens. John Cornyn (R-Texas) and Mike Lee (R-Utah).

mcconnell180219McConnell “made it clear” after the meeting that the hybrid FIRST STEP/SRCA won’t come up for a vote before the November election. McConnell’s spokesman. said that although McConnell did not commit to holding a vote, “proponents of the legislation will continue to discuss the issue with their colleagues followed by a whip count after the October session to accurately assess the Conference’s view on the issue.”

The Washington Post, Jared Kushner ramps up push for criminal justice reform (Aug. 30, 2018)

Lexington, Kentucky, Herald-Leader, Jared Kushner joins campaign to press McConnell on criminal justice reform (Aug. 30, 2018)

– Thomas L. Root

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