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

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

SENATE POISED TO CONSIDER AMENDED FIRST STEP ACT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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

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

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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

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

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KUSHNER PUTS PRESSURE ON SENATE TO PASS REFORM BILL

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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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

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

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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

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

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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.

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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

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What Will A Blended FIRST STEP Bill Contain? – Update for August 15, 2018

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WHAT WILL BE ADDED TO FIRST STEP IN THE WHITE HOUSE DEAL?

As we have reported, the Trump Administration is brokering a deal to amend the FIRST STEP Act to include some of the sentencing reform provisions of the Sentencing Reform and Corrections Act. The compromise, intended to appease SRCA co-sponsors Sen. Charles Grassley (R-Iowa) and Sen. Richard Durbin (D-Illinois), should clear the way for a Senate vote on FIRST STEP, and passage of some badly needed prison reform.

grassley180604Not everything in SRCA will get dropped into the Senate version of the FIRST STEP Act. Nevertheless, what is proposed is significant to a lot of people.

The SRCA additions to FIRST STEP will probably include:

• Reductions in some drug mandatory minimums, reducing penalty from life to 25 years for a third drug conviction, and from 20 to 15 years for a second drug conviction.

Sentencestack170404•   Ending 18 USC 924(c) “stacking” charges. This provision would prohibit the doubling up of mandatory sentences for carrying a gun during drug or violent crime offenses. The way 924(c) is written now, a defendant who carries a gun while selling pot three days in a row commits three separate 924(c) offenses. The first one carries a consecutive 5 years, and the second and third each carry a consecutive 25 years, meaning the defendant gets 55 years plus the pot sale guidelines. The change in the law makes clear that the increased penalty for a second or third 924(c) offense applies only after conviction for the first one.

• Increase “safety valve” application. This provision would give judges more discretion in giving less than the mandatory minimum for certain low-level crimes, including people with Criminal History II in the safety valve provisions of 18 USC 3553(f).

• Retroactivity for the 2010 Fair Sentencing Act. This provision would make the FSA, which changed sentencing guidelines to treat offenses involving crack and powder cocaine more equally, retroactive to people sentenced before the law went into effect.

"Just the facts, FAMM."
                          “Just the facts, FAMM.”

Last Friday, FAMM released an extended series of fact sheets reviewing which SRCA sentencing provisions are in play. The document, written as a memo to Congress members and staff, is entitled “Fact sheets explaining potential sentencing additions to FIRST STEP Act.” It explains in detail the provisions possibly being added to FIRST STEP, and describes cost savings and justice issues surrounding each.

Also last week, Marc Holden, general counsel to Koch Industries and point man for the Koch initiatives on criminal justice reform, wrote, “By supporting these smart-on-crime, soft-on-taxpayers reforms, President Trump is demonstrating exemplary leadership. If Congress is able to pass the FIRST STEP Act with these sentencing provisions included, it would give the president a lasting, landmark achievement on criminal justice reform that has eluded previous administrations.”

FAMM, Facts sheets explaining potential sentencing additions to FIRST STEP Act (Aug. 10, 2018)

Freedom Partners, President Trump is Leading on Criminal Justice Reform; Senate Should Send Him a Bill (Aug. 9, 2018)

– Thomas L. Root

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Trump Hits the Throttle on Reform Bills – Update for August 13, 2018

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WHITE HOUSE, SENATE CUTTING A DEAL ON AMENDING FIRST STEP

The FIRST STEP Act, which has stalled in the Senate because of opposition from top Republicans who want more sentencing relief than the bill offers, got a jump start in the last week, and, according to White House sources, may be set for a vote in the Senate before the end of the month.

firststepB180814Behind the scenes, the administration and legislators are hammering out an agreement that would add significant changes in the nation’s mandatory sentencing laws to the widely popular prison reform bill that passed the House earlier this year, the Washington Post said, crediting officials familiar with the discussions.

President Trump met with a number of state governors during  his golf course vacation at Bedminster, New Jersey, last week, holding a “roundtable” that was intended to signal the important to the President of getting a Senate vote on FIRST STEP.

During Thursday’s meeting, Trump said the administration was working to “refine” the House-backed measure in the Senate. “I have to say, we have tremendous political support. It surprises me. I thought that when we started this journey about a year ago, I thought we would not have a lot of political support,” Trump said, flanked by state officials and top aides. “People I would least suspect are behind it, 100 percent.”

deal180723The deal being discussed would add four sentence reform measures from the Sentencing Reform and Corrections Act (legislation sponsored by Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Sen. Richard J. Durbin (D-Illinois) and backed by a broad coalition of Senate Democrats and Republicans) to the House bill. Ohio State law professor Doug Berman said last week in his Sentencing Law and Policy blog that he believed the revised measure will breeze its way to passage in the Senate, with a vote of in favor of 80% or more.

“We are trying to get a Senate vote in the next two weeks,” an administration said. White House officials hope that Trump’s meeting with governors will spark action in the Senate and prompt leaders to put legislation on the summer calendar. Senate Majority Leader Mitch McConnell has kept the Senate in session. 

“There can’t be any doubt that by having this as the only major event on the president’s schedule that he is laser focused on this,” said a Trump aide. “We think that with this momentum and with the coalition behind it, that this can actually happen.”

firststep180814At the session with governors, Trump said, “Our first duty is to our citizens, including those who have taken the wrong path but are seeking redemption and a new beginning.  That’s people that have been in prison, and they come out and they’re having a hard time… We’ve passed the FIRST STEP Act through the House, and we’re working very hard in the Senate to refine it and pass it into law.  We think we’ll be successful in that regard.  The bill expands vocational educational programs to eligible federal inmates so that more of them can learn a trade.  And that’s what we’re doing.  We’re teaching them trades.  We’re teaching them different things that they can put into good use, and put into use to get jobs.”

ABC News reported last Thursday that “the Senate is now expected to move forward with a modified version of the House bill that will reduce the current mandatory life sentence for certain drug offenses from a life sentence to 25 years, prohibit the doubling of mandatory sentences for certain gun and drug offenses, broaden judicial discretion, and make retroactive the 2010 Fair Sentencing Act that narrowed the discrepancy in sentencing guidelines for crack versus powdered cocaine.”

Jon Ponder, an associate minister at a Las Vegas church who has two priors for robbery, was one of the ministers who met with the President at the White House in late July. Ponder, founder of HOPE for Prisoners, a program that helps more former inmates adjust to life after prison by providing financial advice, personal mentoring and connections to employers, said he believes Trump supports inmate re-entry programs as much as he does.

sincerity180814“I think that something would really have to be wrong with that man to sit down in that room and have the conversation with the (ministers) that he did, if he was not being sincere about this,” Ponder said. “I believe that he spoke from his heart. He shared in that room that he was very compassionate about this, and about the importance of people who are fighting for a second chance.”


Washington Post, Trump huddles with governors, other officials on prison overhaul (Aug. 9, 2018)

McClatchy Newspapers, Trump, Congress try to breathe life into long-delayed criminal justice reform package (Aug. 8, 2018)

Washington Examiner, Jared Kushner helps Trump pave rare bipartisan path to big win (Aug. 9, 2018)

ABC News, Trump has privately expressed openness to broad criminal justice reform (Aug. 9, 2018)

– Thomas L. Root

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