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After Partying Last Week, First Step Finally Gets Down to Business – Update for April 9, 2019

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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 CELEBRATED, BUT WORRIES OVER IMPLEMENTATION REMAIN

Amid questions by some critics about the Administration’s support for the First Step Act, the Dept. of Justice’s National Institute of Justice (NIJ) yesterday announced the selection of the Hudson Institute to host the Independent Review Committee mandated by the Act to develop and implement risk and needs assessment tools and evidence-based recidivism reduction programs for the Bureau of Prisons.

firststepB180814“The Department of Justice is committed to implementing the First Step Act,” a DOJ press release quoted Attorney General William Barr as saying. “The Independent Review Committee plays an important role in that effort by assisting in the development of a new risk and needs assessment system and improvements to our recidivism reduction programming.”

NIJ also announced that it is contracting with outside researchers, including Grant Duwe, Ph.D., Zachary Hamilton Ph.D., and Angela Hawken Ph.D., for  consultation on the DOJ’s development of the risk and needs assessment system under the Act.  Dr. Duwe is the Director of Research for the Minnesota Department of Corrections, and an expert on the development of recidivism risk assessment systems. Dr. Hamilton is an Associate Professor of Criminal Justice and Criminology and the Director of the Washington State Institute for Criminal Justice, and focuses on treatment matching through risk and needs assessment systems. Dr. Hawken is a Professor of Public Policy at the New York University Marron Institute, and is the founder and director of New York University’s Litmus/BetaGov program, which assists in the development and validation of data-driven policies.

The announcement comes on the heels of last week’s White House  “First Step Act Celebration,” which was intended to bring attention to a rare piece of bipartisan legislation President Trump passed last year, and which he plans to highlight on the campaign trail. He also announced plans for a “Second Step Act,” focused on easing employment barriers for formerly incarcerated people.

“We are proving we’re a nation that believes in redemption,” Trump said, describing the “second step” legislation as featuring a $88 million funding request for prisoner social reentry programs. “The ‘Second Step Act’ will be focused on successful reentry and reduced unemployment for Americans with past criminal records, and that’s what we’re starting right away.”

“As president, I pledged to work with both parties for the good of the whole nation,” Mr. Trump said at the East Room gathering, pointing to the legislation as an example of bipartisan work that he said was “so important to me.”

But even as they danced at the White House, several observers expressed skepticism that the now-passed bill will enjoy the Administration’s full support.

money160118The Administration’s budget, released last month, listed only $14 million to pay for the First Step Act’s programs. The law specifically asked for $75 million a year for five years, beginning in 2019. The Office of Management and Budget, however, noted that the bill passed after the budget had already been finalized, and that the White House intended to revisit First Step Act funding.

Ensuring that First Step is adequately funded is crucial to its effectiveness, said Nancy La Vigne of the Urban Institute. “We always recognized that without proper funding, the First Step Act is really nothing more than window dressing,” she said.

Mr. Trump said that “my administration intends to fully fund and implement this historic law.”  On Apr. 2, the White House announced Trump will ask Congress for $147 million to implement First Step, far above the $14 million in the original budget.

risky-business-4fea6b87b70a6First Step requires development of a risk and needs assessment tool to assess inmates and determine what types of programs reduce recidivism and the incentives they would receive. The Dept. of Justice missed the Jan. 21 deadline for forming the committee tasked with developing the risk assessment standard, instead starting the committee formation process only yesterday. The Crime Report said last Monday, “It’s not clear whether the government will meet the July deadline for developing the system.”

Kevin Ring, president of Families Against Mandatory Minimums, says there hasn’t been much clarity from the administration on the status of these measures.

“All the timelines were ambitious, so it’s not surprising that they haven’t met them all,” Ring said. “It’s just it seems to be a bit of a black box. We don’t know what’s taking so long.”

The New York Times today observed that

Putting the law into practice quickly became complicated. The government partly shut down one day after Congress passed the bill and sent it to President Trump to sign into law, and many of the Justice Department employees who would have worked to fulfill it went on furlough. The shutdown, the longest in history, lasted through the end of January.

That has given law enforcement officials just over two months to start carrying out a complicated piece of legislation, a senior Justice Department official said in defending their pace… The criminal justice overhaul was also passed during intense tumult at the top of the Justice Department, which oversees the Bureau of Prisons and would be responsible for carrying out much of the new legislation.

The New York Times, Justice Dept. Works on Applying Sentencing Law as Critics Point to Delays (Apr. 9)

Hudson Institute, Hudson Institute To Host First Step Act’s Independent Review Committee (Apr. 8)

Washington Examiner, Trump announces Second Step Act to help ex-prisoners find work (Apr. 1)

The Crime Report, As White House Celebrates First Step Act, Inmate Risk-Assessment Tool Lags (Apr. 1)

The New York Times, Trump Celebrates Criminal Justice Overhaul Amid Doubts It Will Be Fully Funded (Apr. 1)

NPR, 3 Months Into New Criminal Justice Law, Success For Some And Snafus For Others (Apr. 1)

– Thomas L. Root

Time to Restart the Clemency Machine? – Update for January 23, 2019

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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.

A RENEWED CRY FOR CLEMENCY

pardonme190123Focus on the First Step Act over the past six months has left President Trump’s push to reform clemency in the dark. Last week, however, The Atlantic published a proposal written by three prominent clemency advocates to revamp the process.

The two clemency processes now in use, law professors Mark Osler and Rachel Barkow, and Koch Industries general counsel Mark Holder argued, are the formal Dept. of Justice Pardon Attorney process and Trump’s much more informal celebrity-studded personal recommendation process.

Trump’s is informal: The president evaluates individual cases based on personal recommendations. The problem with the President’s system, the authors complain, is that it does not scale. Instead, it is a one-celebrated-case-at-a-time celebrity-driven approach, in which people with access to Trump lobby him in the Oval Office until he signs off.

But the DOJ process, the article contends, “isn’t any better. It courses through seven levels of review, much of it through a hostile… bureaucracy that tends to defer to local prosecutors who are, in turn, loath to undo the harsh sentences they sought in the first place. Indeed,” the authors observe, “the First Step Act passed in spite of DOJ opposition because those same prosecutors objected to lowering the mandatory minimum sentences that give them so much bargaining power.”

The articles cites some states as having better systems, including Arkansas, Connecticut, Georgia, and South Carolina. In those systems, an expert board – with people from criminal justice, social work, and psychology backgrounds, former judges, defense lawyers, prosecutors, and community activists – identify and evaluate clemency candidates.

obtaining-clemencyThe authors suggest that the President create a similar board of bipartisan clemency advisers who would work with a professional staff to identify cases for White House action. In 1975, President Gerald Ford impaneled an 18-member clemency board to help him with pardon requests from applicants charged with crimes related to avoiding the draft during the Vietnam War. That board was diverse and bipartisan, and ultimately recommended more than 13,000 pardons.

Trump convened a conference on revamp the clemency last summer, but nothing has come of it so far.

The Atlantic, The Clemency Process Is Broken. Trump Can Fix It (Jan. 15)

– Thomas L. Root

First Step Passes Senate Without Cotton’s Killer Amendment – Update for December 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.

SENATE SHOOTS DOWN COTTON, ADOPTS CRUZ AMENDMENT, PASSES FIRST STEP

The First Step Act, now renamed the Criminal Justice Reform Act, S.756, passed the Senate last night by a vote of 87 – 12, making adoption of federal criminal justice reform virtually a done deal.

firststep1800509A different version passed the House (H.R.5682) earlier this year, so all that remains is to have the House either pass the Senate version, or hold a quick conference committee to work out a compromise before the bill comes to President Trump for a signature. House Speaker Paul Ryan (R-Wisconsin) previously promised quick action on anything the Senate sent over on First Step.

Before passing the measure, the Senate shot down the “poison pill” amendment offered by Sens. Tom Cotton (R-Arkansas) and John Kennedy (R-Louisiana). That amendment would have disqualified anyone with a crime of violence (applying the very restrictive 18 USC 924(c) definition, which is of dubious constitutionality when applied in this setting) from using program credits for early release, required victim notification whenever anyone got early release, and required DOJ to track rearrests of people who got early release. The Senate broke the amendment into three pieces, all of which were defeated by close to 2-1 votes.

As well, the Senate rejected efforts by Sen. Cory Gardner (R-Colorado) to add legalization of marijuana to the measure.

cotton181219At the same time, the Senate adopted two amendments, one from Sen. James Lankford (R-Oklahoma), which permits faith-based groups participate in providing the recidivism-reducing programs envisioned by the bill, and another by Sen. Ted Cruz (R-Texas), which added a few specific offenses to the list of offenses excluded from early release  and stripped judges of the right to make people with more than four Guidelines criminal history points eligible for the “safety valve” under 18 USC 3553(f).

The Cotton-Kennedy amendment only needed a majority to pass, but none of the three sections even came close.

Trump last night issued a statement hailing the passage of the bill. “America is the greatest Country in the world and my job is to fight for ALL citizens, even those who have made mistakes,” Trump tweeted moments after the Senate vote. “This will keep our communities safer, and provide hope and a second chance, to those who earn it. In addition to everything else, billions of dollars will be saved. I look forward to signing this into law!”

New York Times, Senate Passes Bipartisan Criminal Justice Bill (Dec. 19)

Fox News, Senate passes criminal justice reform bill, sends to House (Dec. 18)

– Thomas L. Root

 

McConnell Blinks! FIRST STEP Will Be Voted on This Month – Update for December 12, 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 TO BRING FIRST STEP TO A VOTE

firststep180814Senate Majority Leader Mitch McConnell (R-Kentucky) folded yesterday, announcing during a floor speech that the Senate will vote this month on the FIRST STEP Act, S.3649.

McConnell said the Senate will take up the legislation, written by Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), Sen. Richard J. Durbin (D-Illinois) and several other Democratic and GOP senators, despite the controversial nature of the bill within the Senate Republican ranks. The bill could be debated as early as the end of this week.

Proponents of the bill believe the changes could receive as many as 85 votes in the Senate. House Speaker Paul Ryan (R-Wisconsin), who also privately pressured McConnell to take up the bill, has pledged swift action before the House leaves town for the year-end holidays.

The decision to put the bill to a vote comes “at the request of the president and following improvements to the legislation” secured by several senators, McConnell said.

At this time, no one knows what FIRST STEP’s sponsors had to give away, but Sen. Ted Cruz (R-Texas) said last Friday that he was supporting the measure now because it would be amended to prevent those convicted of crimes of violence from benefitting from earning earlier release for completing programs that reduce recidivism.

novacation181212McConnell warned that because of the decision to add the criminal justice bill to the Senate agenda, “members should now be prepared to work between Christmas and New Year’s.” He urged senators to “work together or prepare for a very, very long month.” On the Senate’s to-do list is passing a farm bill, averting a partial government shutdown and clearing the deck of judicial and executive branch nominations.

The legislation has the strong support of Trump and his adviser and son-in-law Jared Kushner. Responding to McConnell’s announcement, Trump’s daughter Ivanka tweeted, “It’s official . . . the #FIRSTStepAct is headed to the floor for a vote. This historic legislation will reform our prison system and lift millions of Americans!”

Washington Post, McConnell to bring up criminal-justice bill for a Senate vote (Dec. 11)

The New York Times, Criminal Justice Bill Will Go Up for a Vote, McConnell Says (Dec. 11)

– Thomas L. RootLISAStatHeader2small

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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FIRST STEP Going Nowhere Fast – Update for December 3, 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 EQUIVOCATES AS COTTON YELLS “SEX OFFENDER!” IN BID TO TANK FIRST STEP ACT

Sen. Charles Grassley (R-Iowa), chairman of Judiciary Committee, introduced the long-awaited hybrid FIRST STEP Act (S.3649) last Monday, and moved it out of Committee to the floor of the Senate the same day. That’s pretty much good news of the week.

whipping181203President Trump is still pressing the Senate to take action this year, and the ACLU is running ads in Kentucky demanding that Senate Majority Leader Mitch McConnell (R-Kentucky) schedule a floor vote. McConnell said last Tuesday that he will go where the votes are within the Republican Party. “We will be whipping that to see whether — what the consensus is — if there is a consensus in our conference about not only the substance, but the timing of moving forward with that particular piece of legislation,” McConnell told reporters.

Sen. Roy Blunt (R-Missouri) said last Friday that at least half of the Republican conference supported the bill. “If we get to it this year, it’ll be largely because of White House pressure,” said Blunt, a member of the GOP Senate leadership. “My guess is that at least half of our members are for it and most of the Democrats.”

As of yesterday, McConnell was declining to talk about his plans for FIRST STEP. An unnamed attendee at a White House meeting last Tuesday, which McConnell attended as well, assessed the prospect that McConnell will put FIRST STEP on the floor at “less than 50/50.”

nothappen181016The Washington Post reported last Tuesday that Republicans are actively discussing changes to FIRST STEP in order to win more GOP support. One change being discussed privately is tightening the “safety valve” provision. Although the most recent draft of the bill broadens the people eligible for “safety valve” treatment, Sen. David Perdue (R-Georgia) said senators are talking about reducing the people who would qualify for the “safety valve” provision.

Breitbart.com reported Saturday that a Senate document circulating among FIRST STEP opponents lists 20 violent crimes it says would be eligible for early release under the bill. The letter lists crimes including failing to register as a sex offender, drug trafficking, assaulting law enforcement, and making death threats against U.S. lawmakers, asks, among other things, whether the Senate can “trust the BOP to correctly categorize who is high vs. low risk?”

This is consistent with vocal complaints last week from Sen. Tom Cotton (R-Arkansas), FIRST STEP’s biggest opponent, that sex offenders could get off easy. He based his claim on a Dept. of Justice report that the bill could make people convicted of some sex crimes eligible for early release.

Ohio State University law professor Doug Berman lamented last week in his Sentencing Law and Policy blog that, while it seems “a super-majority of all Senators (representing a super-super majority of the nation’s population) want this legislation enacted… that a few Senators from a few states can, in essence, exercise a heckler’s veto highlights why thoughtful federal criminal justice reform has been so very hard.”

CNN, Mitch McConnell faces tough choice on criminal justice proposal (Dec. 2, 2018)

Politico, White House makes last-ditch push on criminal justice reform bill (Nov. 27, 2018)

Washington Post, Senate Republicans mull changes to controversial criminal justice bill (Nov. 26, 2018)

Breitbart.com, Exclusive — GOP Senate document lists 20 violent crimes eligible for early release under criminal justice reform bill (Dec. 1, 2018)

– Thomas L. Root

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Time for the Turkey to Pardon People? – Update for November 28, 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.

TURKEYS PARDONED, NOW HOW ABOUT PEOPLE?

turkey181128President Trump “pardoned” two turkeys at the annual White House ceremony held last week, but told reporters afterwards that he hadn’t considered  giving any people clemency for Thanksgiving.

Speaking to reporters, Trump side-stepped a question about whether he would issue holiday pardons. “I love the pardons for the turkey,” Trump said. Asked if he would pardon any people, Trump said: “I haven’t thought of it — it’s not a bad thing.”

Behind bars, Trump has generated enormous hope for presidential clemency. Two weeks ago, he endorsed the FIRST STEP Act, after saying in October that “a lot of people” are jailed for “no reason” and that he was “actively looking” for inmates to release.

There are signs that the White House and the Dept. of Justice Office of Pardon Attorney are processing commutation requests from prisoners and pardon requests from already released inmates, making clemency advocates hopeful for near-term reprieves. Trump already has been more generous than recent predecessors early in his first term, issuing nine pardons and prison commutations. He hasn’t given any clemency grants in four months, however, in an apparent pause for the midterm elections.

Last week, New York University law professor and former federal prosecutor Mark Osler wrote that “the process used to choose which turkey might be pardoned is far more rational, efficient and effective than the one used to evaluate clemency for humans.

obtaining-clemencyFirst, he said, the pardons occur regularly, every year, not just in the last days of an administration. Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation responsible for managing a thorough selection process. Third, there are defined criteria. The finalists are selected based on their willingness to be handled, their health and their natural good looks. Fourth, attention is paid to making sure they thrive after their grant of clemency. After the ceremony, they are sent to Virginia Tech’s “Gobbler’s Rest” exhibit, where they are well cared for.

By contrast, Osler said, the clemency process “is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release.”

Osler said the DOJ Pardon Attorney is part of the problem. The DOJ, “after all, is the entity that prosecutes these individuals in the first place. Within that office, staff members evaluate cases and provide a report to the pardon attorney, who decides on a recommendation after seeking out the opinion of the very US attorney’s office that prosecuted the case.

But then, instead of going to the President, the Pardon Attorney’s recommendation is routed to an aide to the deputy attorney general, who makes a recommendation to the DAG, the same DAG who is “the direct supervisor of and closely allied with the United States attorneys in the field, whose offices chose to pursue the challenged convictions and sentences in the first place.”

If the recommendation has survived this far, it goes to the White House, where some assistant to the White House counsel evaluates it and makes yet another recommendation to the boss. And, of course, that boss, who has many other duties, also has a conflict: “this time, the tendency to protect the President from risk, something that is inherent in any use of the pardon power.”

presidential_pardon_thanksgiving_tile_coasterWhat’s missing, Osler argued, is “all the things that make the turkey process work. It’s irregular, as inattention by any one of the numerous sequential evaluators stops the whole thing. And instead of objective specialists, we have decisions being made by the deputy attorney general, who is neither objective nor a specialist. The criteria are poorly articulated and currently issued by the stiflingly conflicted DOJ. And finally, there is little to no connection between the process and what comes after, as prison gives way to freedom.”

Osler suggested that the process be taken from DOJ altogether and be given to an independent clemency board, as most states do. “If we did that,” Osler claimed, “the clemency process would finally be at least as functional as the one that informs a silly holiday tradition.”

Washington Examiner, Trump pardons turkeys, says he hasn’t considered human clemency for Thanksgiving (Nov. 20, 2018)

CNN, The process to pardon turkeys is more rational than the one used for humans (Nov. 19, 2018)

– 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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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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