Tag Archives: trump

Draft Amended FIRST STEP Act Gives and Takes Away – Update for November 14, 2018

Leave a comment

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

LISAStatHeader2small

Senate Reconvenes with FIRST STEP Act on Its Plate – Update for November 13, 2018

Leave a comment

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

LISAStatHeader2small

FIRST STEP First Up After Mid-Terms? – Update for November 5, 2018

Leave a comment

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

LISAStatHeader2small

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

Leave a comment

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

LISAStatHeader2small

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
LISAStatHeader2small

After Making the Mess, Trump Tries to Clean It Up – Update for September 19, 2018

Leave a comment

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

LISAStatHeader2small

WHITE HOUSE TRYING TO BRING ORDER TO CHAOTIC CLEMENCY PROCESS

Since President Trump granted executive clemency to former federal inmate Alice Johnson, thousands of federal inmates have been trying to get their clemency petitions in front of President Trump through celebrities, sports figures, elected officials and raw appeals to his better nature.

chaos180920After the Johnson pardon, Trump himself put out a sort of cattle call for clemency applications – even inviting professional football players to send him names rather than protest the criminal justice system by kneeling during the national anthem. But, with the White House meeting two weeks ago, the White House has started an attempt to instill some discipline to the process as part of what Trump reportedly hopes will become a signature piece of his efforts at criminal justice reform.

“We were very critical of the process as it stands,” said attendee Brittany Barnett, a Dallas lawyer who heads pro-clemency Buried Alive Project. “We definitely can’t keep doing these one-offs and it can’t just be celebrity endorsements.”

Law professors Rachel Barkow and Mark Osler told the meeting the president should abolish the Dept. of Justice Office of the Pardon Attorney. Obama relied on that office to process more than 20,000 applications through his clemency initiative, ultimately cutting sentences for 1,715 people but leaving town with a record 11,355 petitions pending.

Clemency experts say bureaucracy and poor planning stifled the program’s ability to free many more. Out of 13,000 people denied between 2014 and 2017, thousands appeared to be worthy candidates—at least on paper, according to a 2017 analysis by the U.S. Sentencing Commission.

The independent analysis found that more than 2,500 of the inmates who were denied appeared to meet all of the guidelines for the types of cases the DOJ claimed to prioritize. The guidelines were supposed to prioritize nonviolent, low-level offenders who served at least ten years in prison, did not have significant criminal history, demonstrated good conduct in prison, and had no history of violence.

slot161208But in fact, the Commission found, only 3% of drug offenders who appeared to meet all of the DOJ’s criteria actually received clemency. Conversely, only 5%of the people who did receive clemency appeared to meet all of the criteria. Without much transparency in the review process, several critics now compare it to a “lottery system.”

DOJ control of the clemency process comes with a built-in conflict of interest: The same officials who prosecute offenders decide whether those same people are worthy of presidential mercy. Justice “shouldn’t be the gatekeeper because that means the gate never opens for far too many deserving people,” Barkow said.

USA Today, Kardashian effect: Trump White House tries to tame a chaotic, celebrity-driven approach to pardons (Sept. 10, 2018)

Cannabis Wire, The Prisoners Left Behind (Sept. 7, 2018)

– Thomas L. Root

LISAStatHeader2small

Reality TV Star Talks to Reality TV Star About Clemency – Update for September 12, 2018

Leave a comment

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

LISAStatHeader2small

KIM KARDASHIAN GOES TO WASHINGTON TO TALK CLEMENCY POLICY

kardashian180604Kim Kardashian was back at the White House last Wednesday to discuss prison reform with top Trump administration officials.

The reality television star, who successfully lobbied for the commutation of Alice Johnson in June, attended a listening session on clemency with a number of officials, Jared Kushner, President Trump’s son-in-law, and Ivanka Trump.

“The discussion is mainly focused on ways to improve that process to ensure deserving cases receive a fair review,” according to Hogan Gidley, White House deputy press secretary.

Others at the meeting included CNN commentator Van Jones, Georgetown law professor (and former federal inmate) Shon Hopwood, former U.S. District Court Judge Kevin Sharp, Mark Holden, the general counsel of Koch Industries, Jessica Jackson Sloan, a human rights attorney and prison reform advocate, law professors Rachel Barkow and Mark Osler, both of whom are sentencing and clemency specialists, and Leonard Leo of the Federalist Society.

trump170515
How many people have gotten clemency from President Trump?

Following the round-table discussion Wednesday, Sharp visited the Oval Office with Kushner, Ivanka Trump, Kardashian and a few others to brief the President. “We talked about criminal justice reform in general and the need for it, (and) for a change in the clemency and pardon process,” Sharp said, who noted the President seemed receptive during the roughly 20-minute meeting. “My sense was, he cares and he was listening to us. Sitting in that room, you would not have known it’s been a busy week – it was very relaxed. You wouldn’t know there was anything else going on.”

Wall Street Journal, Kim Kardashian Visits White House to Discuss Prison Reform (Sept. 5, 2018)

Chicago Tribune, Kim Kardashian meeting with President Trump on prison reform (Sept. 5, 2018)

Nashville Tennessean, Former Nashville judge speaks with Donald Trump about clemency, criminal justice reform (Sept. 7, 2018)

– Thomas L. Root

LISAStatHeader2small

Kushner Unrelenting On Criminal Justice Reform – Update for September 4, 2018

Leave a comment

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

LISAStatHeader2small

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

LISAStatHeader2small

Could It Be ‘Sayonara, Sessions?’ – Update for August 29, 2018

Leave a comment

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

LISAStatHeader2small

TRUMP BLASTS SESSIONS AGAIN, FUELING SPECULATION THE AG WILL BE FIRED
Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

Reports that Trump promised Attorney General Jefferson Beauregard Sessions III last Thursday that the President would oppose the compromise criminal justice bill are puzzling, because of the simmering rift between Trump and Sessions that exploded again into public view late last week.

Trump complained in a Fox & Friends interview that Sessions “never took control of the Justice Department” and that he was disloyal. Sessions, whom Trump called a moron last year, finally had enough, issuing a statement saying he and the DOJ “will not be improperly influenced by political considerations.”

Trump has been furious at Sessions ever since he recused himself from the Trump Russia investigation. Trump said he considered Sessions’ decision to be a sign of disloyalty, and the two have an unusually cold relationship for a president and the nation’s top law-enforcement official.

White House spokesman Hogan Gidley said last week that Trump has made clear he supports the prison reform legislation “that will ultimately make American communities safer and save taxpayers money. The president recognizes there are some injustices in the system that should be fixed.”

Sen. Tim Scott (R-South Carolina) said it ultimately won’t matter whether they have Sessions’ support or not. “Listen,” Scott said, “[Sessions] doesn’t have a vote on this one.”

The notion that Trump mollified Sessions by agreeing to oppose the compromise package, only several weeks after Trump said he would sign anything Congress sent him on criminal justice reform, is suspect. The fact that he told White House advisor Jared Kushner and Sen. Charles Grassley (R-Iowa) the next day that he was willing to take up reform after the November elections and that White House officials continue to state his support for criminal justice reform, makes the alleged Sessions promise even harder to believe.

A Bloomberg article last Thursday provides the starkest evidence that Trump has little to gain by agreeing to kill criminal justice reform to please his AG. Bloomberg reported that Trump “may have received a crucial go-ahead signal from two Republican senators” to fire Sessions “with a key condition attached: wait until after the November elections.”

Confronted with the Manafort conviction and the Cohen guilty plea last week, Bloomberg said, Trump has reaffirmed his open resentment that Sessions recused himself from what’s become a wide-ranging investigation led by Special Counsel Robert Mueller.

kick-em-out
Beauregard, we hardly knew ye.

The pivotal message to Trump came from Sen. Lindsey Graham (R-South Carolina). “The president’s entitled to an attorney general he has faith in, somebody that’s qualified for the job, and I think there will come a time, sooner rather than later, where it will be time to have a new face and a fresh voice at the Department of Justice,” Graham said. However, he added, forcing out Sessions before November “would create havoc” with efforts to confirm Trump’s Supreme Court nominee Brett Kavanaugh, as well as with the midterm elections on Nov. 6 that will determine whether Republicans keep control of Congress.

Grassley, the Judiciary Committee’s chairman, also changed his position on Thursday, saying in an interview that he’d be able to make time for hearings for a new attorney general after saying in the past that the committee was too busy.

Some senior Republican senators still strongly rejected Graham’s seemingly impromptu fire-him-later idea.

Despite the political hell-storm that Trump’s dismissal of Sessions would create, it is clear that criminal justice reform would only benefit from Sessions being run out of town. 

McClatchy News, Trump, Sessions feud spills over into dispute over policy on criminal justice reform (Aug. 21, 2018)

Politico, Senators Signal Sessions’ Ouster (Aug. 24, 2018)

Bloomberg, Key Republicans Give Trump a Path to Fire Sessions After the Election (Aug. 23, 2018)

– Thomas L. Root

LISAStatHeader2small

After Wild Week, Criminal Justice Reform Postponed Until November, If Then – Update for August 27, 2018

Leave a comment

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

LISAStatHeader2small

TOPSY-TURVY WEEK IN WASHINGTON FOR CRIMINAL JUSTICE REFORM

Last week, the editor of this newsletter took a vacation away from the Internet and cellphone coverage for the first time in years. After all, the last weeks of August are always quiet in the courts and halls of Congress.

scotus170627
The Supreme Court may be gone for the summer, but no one else in Washington seems to be…

What a mistake leaving town turned out to be…

The week started out well. Senate Minority Whip Richard Durbin (D-Illinois), the No. 2 Senate Democrat, said he could support the compromise criminal justice reform bill that Republican colleagues presented to President Trump and senior White House officials three weeks ago. That bill, which combined four sentencing changes with FIRST STEP Act, is a compromise pushed by senior White House adviser Jared Kushner in order to win the support of Senate Judiciary Committee Chairman Charles Grassley (R-Iowa). Grassley, co-sponsor of the Sentencing Reform and Corrections Act of 2017 (which was approved by the Committee last February), has opposed FIRST STEP because of the absence of sentencing reform provisions that change some mandatory minimums.

oddcouple180702Durbin’s announcement made him the first Democratic senator to support the legislation, which is key to assuring Senate passage.

Two days later, the news site Axios reported that Senate Majority Leader Mitch McConnell (R-Kentucky) agreed in a meeting with Kushner, Grassley, Sen. John Cornyn (R-Texas) and Sen. Mike Lee (R-Utah) to bring the compromise bill to a vote if an informal review showed that the measure had at least 60 votes in support. Axios admitted that McConnell’s spokesperson said a commitment to a vote had not been made, but asserted that another source said the Majority Leader came just shy of promising a vote.

Axios also reported President Trump had said earlier on Thursday that while he will not endorse the bill before the midterms, he was open to the compromise currently being negotiated, according to a senior administration official and Sen. Lee. The White House said in a statement “the President remains committed to meaningful prison reform and will continue working with the Senate on their proposed additions to the bill.”

While many, including Lee, wish the vote would occur today, McConnell’s willingness to bring it to a vote if the support is there (and earlier reports are that the compromise would collect 80 votes or more) is encouraging. The delay is entirely political: “I think the sentencing reforms are still controversial and divide Republicans,” Cornyn said. “I just don’t see the wisdom of dividing Republicans on a contentious matter like that before the election.

sessions180322Then, on Friday, the Washington Free Beacon reported that Trump told Attorney General Jefferson Beauregard Sessions III and Kushner the day before that he was opposed the FIRST STEP compromise, in large part due to an exception he believes it carves out that may release convicted drug traffickers early. A statement released by the Dept. of Justice seemed to confirm that. DOJ said: “We’re pleased the president agreed that we shouldn’t support criminal justice reform that would reduce sentences, put drug traffickers back on our streets, and undermine our law enforcement officers who are working night and day to reduce violent crime and drug trafficking in the middle of an opioid crisis.”

The Free Beacon story, however, said that Trump had later walked back his opposition, and told Grassley and Kushner that he was “willing to take up prison/sentencing reform” after the election.

The Free Beacon said “McConnell is famously skittish about dividing his caucus, and so is still unlikely to bring a bill to the floor if it does not have Republican caucus support. Trump’s backing—once held out, and now withdrawn—would almost certainly be vital to getting more Republicans on board.”

dontknow180828So the compromise may be voted on after the mid-term elections the first week of November. Or it may not. Trump may support it. Or he may not. The Democrats may support the compromise. Or they may not.

Of course, last week also brought the conviction of Paul Manafort, Trump’s former campaign chairman, on fraud charges unrelated to the Trump campaign, and the guilty plea (and probable cooperation agreement with the Feds) of Trump’s former lawyer, Michael Cohen. That is bad news for the defendants and for Trump, but to the extent it makes Trump angrier and more fearful of the Justice Department, it probably increases the chances Trump will support criminal justice reform.

The Hill, Democratic leader gives boost to criminal justice reform compromise (Aug. 21, 2018)

Axios, McConnell commits to moving forward on criminal justice bill after midterms (Aug. 23, 2018)

Washington Free Beacon, Trump Strongly Opposed to FIRST STEP (Aug. 24, 2018)

– Thomas L. Root

LISAStatHeader2small

Rough Road Ahead in the Senate for Criminal Justice Reform? – Update for August 20, 2018

Leave a comment

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

LISAStatHeader2small

CRIMINAL JUSTICE REFORM: TRUMP WANTED TO LEAD, NOW IT’S TIME TO DO IT

Now that the Senate has resumed sessions after a shorter-than-normal August break, criminal justice reform advocates are escalating pressure on Majority Leader Sen. Mitch McConnell (R-Kentucky). They want him to schedule a vote on the revised FIRST STEP Act bill, which will include mandatory minimum relief, a bill backed by President Donald Trump.

trumplogjam180806

But there are worrisome signs that a long-running GOP rift on the issue has not healed. Politico reports that interviews with a dozen GOP senators show that the future of FIRST STEP, either amended or in its original form, remains precarious. That’s because the handful of Republicans who have long protested reducing mandatory-minimum sentences leave McConnell without any incentive to call up legislation that would split his conference.

One of the critics of adding sentencing reform to the House-passed FIRST STEP Act, Sen. John Kennedy (R-Louisiana) predicted last week that McConnell would not bring the bill to the floor any time soon. “I’m not sure that we can put together a deal,” Kennedy said in an interview. “I’m not sure we should.” 

White House officials and FIRST STEP supporters have been talking with Republican holdouts to convince them to back the compromise, which adds four sentencing reform provisions to the House bill. Trump senior adviser and son-in-law Jared Kushner “will be making the rounds on the Hill,” according to a veteran Kentucky Republican strategist who now leads the nonprofit Justice Action Network. “And once we have the requisite number of Republican votes, I think his father-in-law is going to lean in hard.”

sessions180215A lot of involvement from the President will be required for the GOP to unify over reducing mandatory minimum sentences as part of a prisons package. Sen. Charles Grassley (R-Iowa) has 15 Republican cosponsors on the Sentencing Reform and Corrections Act, which contains mandatory minimum reductions, but Attorney General Jefferson Beauregard Sessions III opposes SRCA, and is even against FIRST STEP. Another conservative who is vocal in opposing either bill, let alone a blend of them, is Sen. Tom Cotton (R-Arkansas). Cotton wrote an op-ed piece last week that was breathtaking in its falsehoods and shibboleths, calling FIRST STEP a “jailbreak” sentencing bill that would flood the streets with stone-killer ex-cons. Cotton’s opinion piece was roundly condemned, but McConnell is hypersensitive to any dissention in the Republican caucus. There is little doubt that Cotton’s intemperate complaints concern McConnell a lot.cotton171226

Besides Cotton, other reliable allies of the White House, including Senate Majority Whip John Cornyn (R-Texas), are opposing the administration’s approach, which would combine FIRST STEP with changes to some of SRCA’s sentencing and mandatory minimums. The proposal nevertheless has wide, bipartisan support in the Senate.

Supporters say completing the bill would give the administration a needed win heading into November’s midterm elections. Opponents say it would make Trump look soft on crime.

A senior White House official said the Administration has 30 to 32 locked down “yes” votes among Republican senators. He offered hope that the number of Republican supporters could eventually grow as many as 40 to 46.

Trump and McConnell, once implacable foes, have forged something of a partnership these days. That arrangement will be tested in the coming days.

The Hill, Sentencing reform heats up, pitting Trump against reliable allies (Aug. 17, 2018)

CBS News, Trump, McConnell forge partnership as mid-terms approach (Aug. 17, 2018)

Politico, Criminal justice deal faces steep Senate hurdles despite Trump’s push (Aug. 17, 2018)

– Thomas L. Root

LISAStatHeader2small