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May 9, 2018

Mapping out the politics for the path forward for federal prison (and sentencing?) reform

I am unsure how big a deal to make out of the passage of the FIRST STEP Act out of the House Judiciary Committee today (discussed here) because I am not sure it create much more confidence about the chance of the Senate moving forward with a form of federal criminal justice reform that can actually become law.  This new Politico article discusses the political uncertainty that is now the reality:

Congress on Wednesday edged closer to a rare bipartisan achievement during a hotly contested election year after a House panel voted overwhelmingly to send a prison reform plan to the floor — despite persistent internal GOP tensions in the Senate over the White House-backed bill.

The prison legislation, a key priority of Jared Kushner, won easy approval in the House Judiciary Committee.  It was a striking turnabout after backers scrapped a vote on an earlier version two weeks ago amid waning support.  But the bill’s lopsided 25-5 vote masked ongoing disputes among Senate Republicans and House Democrats over its omission of sentencing reforms opposed by President Donald Trump. Critics of the measure say those sentencing reforms are crucial to any deal.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has allied with Democratic supporters of a broader criminal justice package that includes both sentencing and prison reform provisions. GOP leaders in both chambers want to instead move the narrower prison bill, which would authorize training for prisoners that’s aimed at reducing recidivism rates.

As the House panel moved to okay the bill, Senate Majority Whip John Cornyn (R-Texas) — a previous backer of the broader criminal justice overhaul who has narrowed his sights to prison reform — said he hoped to negotiate with Grassley on a path forward....

Grassley and Senate Minority Whip Dick Durbin of Illinois, his lead Democratic partner on the Senate criminal justice package, said Wednesday that they were “encouraged” by the House’s progress but giving no ground on their position. “For any criminal justice reform proposal to win approval in the Senate, it must include these sentencing reforms,” Grassley and Durbin said in a statement.

Lobbying on the House prison bill also has become contentious in recent weeks, pitting one of the legislation’s lead cosponsors, Rep. Hakeem Jeffries (D-N.Y.), against the top Democrat on the Judiciary panel, fellow New York Rep. Jerry Nadler. Jeffries has worked for months with Rep. Doug Collins (R-Ga.) on the bill, omitting the sentencing provisions that are a nonstarter with the White House in part because of longstanding opposition from Attorney General Jeff Sessions.

Nadler took part in a Tuesday meeting with opponents of the legislation and made an impassioned plea to delay consideration of the bill during the markup. Jeffries, however, downplayed the tension after the bill sailed through the judiciary panel. He said everyone involved in the bill supports addressing sentencing laws; the disagreement is over when that should happen. “Mass incarceration has been with us for almost 40 years. It’s going to take more than one singular legislative magic wand to eradicate it,” Jeffries said in an interview.

“We all agree that sentencing reform should be a part of any broad criminal justice reform effort that takes place. The First Step Act represents the beginning of the end of overcriminalization in America.”

A House floor vote on the bill is possible before the Memorial Day recess, according to multiple sources. But the proposal still faces formidable foes, from powerful civil rights groups like the ACLU and key senators such as Grassley and Durbin. Dozens of advocacy groups, including the NAACP, sent another letter opposing the prison bill to House members on Tuesday.

Sen. Cory Booker (D-N.J.), another supporter of the broader criminal justice package, reiterated in a Tuesday interview that “I want to see sentencing reform and prison reform move together, and I worry that this bill doesn’t” make that happen. Booker met Monday night to discuss strategy on the bill with Durbin, Jeffries, Nadler, Rep. Cedric Richmond (D-La.) and Sen. Kamala Harris (D-Calif.). But supporters of the broader and narrower approaches to criminal justice left entrenched in their positions, according to a source with knowledge of the meeting.... The bill, if successful, would likely be the last major bipartisan effort to clear Congress before the election. And it would be a major victory for Kushner, who has failed to score any significant wins in the White House, despite a disparate policy portfolio that has included everything from bringing peace to the Middle East to tackling the nation’s opioid crisis.

“The key for this is a realization that perfect doesn’t exist on the Hill,” Collins said in an interview. “Although we want to have done some more, this is a very valid first step.” The White House "look[s] forward to a vote in the full House" on the legislation, deputy press secretary Hogan Gidley said by email.

The bill would authorize $50 million annually for five years for educational and vocational programs for prisoners with the goal of equipping inmates for life after incarceration and reducing repeat offenses.

In a major win for progressives, the bill also includes a technical tweak to current law that would increase “good time” credit for prisoners from 47 days to 54 days per year. The change, which would be applied retroactively, would lead to the immediate release of 4,000 prisoners, according to the bill’s supporters.

Some of many prior related posts:

May 9, 2018 at 06:25 PM | Permalink


I would think that one argument Democrats should be making, in an appeal to their Republican colleagues, is that the federal government has become too involved in criminal law, which was traditionally left to the states. The 1790 Crimes Act listed roughly 23 federal statutory crimes, all of which were connected to constitutional limits, such as murder on the high seas and piracy. The Federal Judicial Center has some interesting graphs showing the increase in federal criminal cases over the past 250 years. A large number of federal criminal laws today seem to be premised on the same broad interpretation of the commerce clause that conservatives are often opposed to. The pickle seems to arise from the fact that the "tough on crime" issue position is an electoral winner and as such the federalization of criminal law provides Republican legislators with a source from which to draw electoral support. From a political strategy perspective, I think liberal Democrats in Congress would benefit from tying together criminal reform with states' rights and a and federalism, arguing that it is hypocritical to want a smaller federal government and yet support a broader federal role in the area of criminal law.

I recently reread Ex Parte United States (1916), which I had forgotten even existed, and chuckled at the fact that none of this judiciary-congress struggle over crime and sentencing is in any way new. Even that case was just dealing with a tension that can be traced back to English judges struggling with parliament. Maybe bring back the benefit of clergy?

Posted by: Anonuser879 | May 9, 2018 11:15:53 PM

The modern state is going to be more complicated than 1790, or even 1915 so that sort of thing can be taken too far. There is room for local option here but Republicans aren't going to stop at this issue. Next up: well, fine, let's have local laws allowing GLBT discrimination and overturn PPACA.

Posted by: Joe | May 10, 2018 1:29:28 PM

These proposals are all lawyer quackery, for the purpose of displaying false piety. None will have any effect on the explosion in the number of crimes in our nation.

Posted by: David Behar | May 10, 2018 3:51:55 PM

The "tweak" referred to at the end of this post is significant. In addition, it should be pointed out that the law does not change the number of days credit per year, but rather (I assume) changes how the credit is calculated. The statute, 18 U.S.C. Section 3624(b)(1), has long provided for up to 54 days of good time credit per year. However, the Bureau of Prisons has taken the view that "54" actually means 46 or 47 days per year, because otherwise the inmate would be getting good time credit on time not actually served. (On a 10-year sentence you would think you would get 540 days off at the outset, but wait! That's a year and a half when you won't be in custody, why should you get good conduct credit for time you have not actually served? So reasoned the BOP.) In short, the BOP's policies have consistently required that the inmate be given credit for the time actually served, rather than subtracting 54 days from every year of the sentence imposed. Applying Chevron deference, the Court, in Barber v.Thomas, 560 U.S. 474 (2010), held that the regulation was a reasonable implementation of the statute. Presumably this law reverses that interpretation.

Posted by: Late Inning Relief | May 10, 2018 4:38:39 PM

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