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
TheFirst Step Act, now renamed theCriminal 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.
A 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.
At 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!”
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
Senate 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.
McConnell 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!”
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.
FIRST 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:
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.”
White 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.
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.”
Also, 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.
Despite 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.”
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.
President 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.”
The 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.”
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?
President 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.
First, 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.”
What’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.”
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
Republican 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?”
And 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.
Kushner 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.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
After 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.
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.
McConnell’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.”
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.
Several 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 STEPhappened. 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).
McConnell 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.
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.
The 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.
The 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.
CNN 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.
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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.
The 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 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.
Sen. 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.
Sen. 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.
A 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.
At 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).
CNN 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.
