Sentencing Law and Policy

Latest issue of the Federal Sentencing Reporter covers "The 2018 Debate over Federal Statutory Reform Proposals"

I am still so full of ideas and thoughts about what's next after the Senate's passage of the FIRST STEP Act, and in some future posts I will link to writings about second and thirst steps and so on.  But, coincidentally, just today I got notice that the December 2018 issue of the Federal Sentencing Reporter has just been published on-line, and it is a must-read for those looking to fully understand the background and back-story of the FIRST STEP Act.  

This Issue of FSR is already a bit dated, as it went to press last month before anyone was sure if Congress would get some version of the bill to the desk of the President.  But it still effectively highlights, thought the work and words of a number of leading reform advocates, why the path toward passage was so challenging and so important.  Here is snippet of my short introduction, followed by links to all the the original commentary:

This Issue of FSR provides a snapshot of the discussion and debate over the direction and scope offederal statutory reform proposals through 2018.  As of this writing, in early November 2018, meaningful lawmaking in this area is still just a possibility rather than an achieved reality; the momentum for reform that built through the first part of the year was halted by campaign dynamics as members of Congress turned their attention to the 2018 midterm elections.  But with President Trump reportedly embracing(in August) a compromise proposal that would add some [sentencing reform] provisions to the FIRST STEP Act, and with Senate Majority Leader Mitch McConnell pledging to consider taking up criminal justice reform after the midterms, there remain reasons to be optimistic that all the big reform talk reflected in this Issue might yet produce big reform action before the end of 2018.

The materials in this Issue of FSR include both original commentary and primary documents that provide a flavor of the terms of the debate, in Congress and beyond, as political realities shifted from not believing any reform was possible during the Trump administration to strategizing just what kinds of reform should be prioritized. Georgetown Law Professor Shon Hopwood, a leading advocate for federal reforms, solicited original commentaries for this Issue that canvass the major provisions of key bills working their way through Congress in 2018.  Authored by some of the leading policy advocates involved on all sides of the conversation, these articles showcase why the scope and focus of statutory reform has engendered spirited debate.

• The 2018 Debate over Statutory Reforms to the Federal Criminal Justice System by Douglas A. Berman

• Criminal Justice Reform Must Start with Sentencing Reform by Ames Grawert and Priya Raghavan

• Threading the Needle: The FIRST STEP Act, Sentencing Reform, and the Future of Criminal Justice Reform Advocacy by Molly Gill

• Now Is the Time to Take the First Step by Joshua B. Hoe

• How the FIRST STEP Act Would Restore Dignity to Incarcerated Women by Jessica Jackson

• Beyond First Steps: Reforming the Federal Bureau of Prisons by Shon Hopwood

On cusp of enactment of FIRST STEP Act, a brief trip to the archives via the (not-so-)way back machine

I am so full of ideas and thoughts and ways to celebrate the Senate passage of the FIRST STEP Act, I am not sure what to blog first and in the immediate future.  So, rather than do too much looking forward to what the FIRST STEP Act means when it becomes law (especially because I do not want to jinx anything), I figured I would close out my blogging tonight by doing a little looking back.  Specially, I looked at some archives of posts after Prez Trump got elected, and found these interesting posts (among others) that talked about the possibility of federal criminal justice reform  despite Trump's tough-on-crime rhetoric and his appointment of reform for Jeff Sessions as Attorney General:

• Mapping out the Trumpian new world order with respect to federal sentencing reform (from Nov. 2017)

• "Why Congress May Bring Criminal Justice Reform Back to Life" (from Dec. 2016)

• "The Obama Legacy: Chipping Away at Mass Incarceration" ... but ... (from Dec. 2016)

• Prez Obama produces lengthy Harvard Law Review article titled "The President’s Role in Advancing Criminal Justice Reform" (from Jan. 2017)

• An optimistic accounting of many areas for bipartisan federal criminal justice reform ... and good lines of inquiry for AG nominee Jeff Sessions (from Jan. 2017)

• GOP Senate Judiciary Chair Chuck Grassley says federal sentencing reform a priority after Trump nominations completed (from Jan. 2017)

I was inspired to review this this interest bit of the recent past in part because the developments this week have has me especially thinking about this post by Bill Otis over at Crime & Consequences from almost exactly two years ago titled "Blowing Smoke on Sentencing Reform."  In that post, Bill Otis explained in his usual manner why he was not convinced by this Bill Keller commentary (also noted above titled) "Why Congress May Bring Criminal Justice Reform Back to Life."   Bill Otis was not entirely off-base to assert that sentencing reform was a uphill battle in this Congress, and he might even defend his analysis by noting that the FIRST STEP Act only includes a few very modest sentencing reforms.  But I bring this up because tonight's overwhelming vote for the FIRST STEP Act ultimately reinforces my belief that there is now a strong (and growing) group of GOP leaders who are very eager to take ownership of criminal justice reform.  And that reality bodes well for the prospects of second and third steps in the next Congress and beyond.

After rejection of contentious proposed amendments, FIRST STEP Act passed by Senate by vote of 87 to 12!!!!

In this post back in August I wondered "Could enhanced FIRST STEP Act get more than 90 votes in the Senate if even brought up for a vote?".  Well, it seems I was off by three votes, as tonight the the US Senate voted 87 to 12 to enact the FIRST STEP Act.  With a vote in the House scheduled for later this week, this bill should be on Prez Trump's  desk before the end of this week and law before Prez Trump heads down to Mar-a-Lago for the holidays.  This USA Today article, headlined "Senate passes First Step Act with push from criminal justice groups; bill goes to House," provides this account of today's historic developments:

Alex Gudich and the team from #cut50 weren’t taking any votes for granted. They spent Tuesday knocking on the doors of senators and urging them to support a criminal justice reform bill up for a vote, something they didn't know would happen that night.

"We knew that it would be a tough vote for many members on both sides," said Gudich, deputy director for the national advocacy group pushing to overhaul the nation’s criminal justice system. "We’re here at a very, very pivotal moment."

In a major step in that effort, the Senate voted 87 to 12 late Tuesday to approve the bipartisan "First Step Act" pushed by Sens. Chuck Grassley, R-Iowa, Dick Durbin, D-Ill., Mike Lee, R-Utah and Cory Booker, D-N.J. The bill must now go over to the House for a vote. President Donald Trump has supported the measure....

The Senate defeated amendments proposed by Republican Sens. Tom Cotton of Arkansas and John Kennedy of Louisiana that would have required the Bureau of Prisons to notify victims before a prisoner is released and tracked former offenders after they're released.

Several advocacy groups, including #cut50, and national civil rights groups, including the National Urban League, have been a part of a massive push to get the legislation passed. “It’s been a long time in raising the awareness of how the system of mass incarceration is so destructive and needs to be fixed and reformed,” said Marc Morial, president of the National Urban League. “There’s been a lot of groundwork that has been laid over the years.”

The groups have been working on criminal justice reforms for years, including under then-President Barack Obama, but supporters said the effort got a boost earlier this year with the help of Jared Kushner, President Donald Trump's son-in-law and senior adviser. “We were excited to see a breakthrough this year and a shift," Gudich said.

Gudich called the First Step Act “a compromise bill, but importantly it does not add any new mandatory minimum. There are no sentencing enhancements.” Some advocates, however, have complained the measure doesn’t go far enough. Morial said he would have wanted more provisions to deal with bail reforms and more support for reentry programs, but welcomes the effort. “If we could get a perfect comprehensive bill, we’d do it," he said. “This bill is also the product of some difficult political trade-offs. But it’s better to move this bill with all the things it does than to sit back and wait. We could end waiting another three to four years."

Lawmakers particularly praised the work and input of advocates and civil rights groups. “Formerly incarcerated individuals were incredibly important voices in urging the House to get something done meaningful on prison reform,’’ said New York Rep. Hakeem Jeffries, incoming House Democratic Caucus Chair, a key negotiator. “Nobody is more authoritative on the issue of the victimization that has taken place as a result of over criminalization as a result of the mass incarceration epidemic then those Americans who were directly impacted.”

Indeed, formerly incarcerated people from a host of groups, including #cut50, Prison Fellowship, the National Council for Incarcerated and Formerly Incarcerated Women and Girls, have lobbied Congress to support reforms. Civil and voting rights groups, including the NAACP and the ACLU, have also been key players along with a host of conservative groups. “We as conservatives share common goals,’’ Kevin Roberts, executive director of the Texas Public Policy Foundation, said during a press conference last week. “We want strong communities and institutions. We want those who have done wrong to be punished and then to seize their own redemption without state interference. Most of all we want safe neighborhoods.”

Morial applauded the passage of the First Step Act, but said more needs to be done. “This is something that we have to work on over time. This bill is a good bill, but this not going to be the last effort at criminal justice reform,’’ he said. “There’s already a lot of movement at the state level… This is a growing movement in America – the idea that we have to fix the system of mass incarceration.”

Some of the most recent of many prior related posts:

• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage
• Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act
• Four changes to the FIRST STEP Act sought by Senator Tom Cotton
• Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward 
• A notable debunking of "Three Myths From Critics of Criminal Justice Reform"
• FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote 
• Latest chapter of FIRST STEP Act massaging and messaging
• The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act 
• Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten 
• Senate leader Mitch McConnell says in floor speech that he will bring up FIRST STEP Act for a vote!! 
• Latest developments and discussions surrounding FIRST (baby) STEP Act
• Details on further carve-outs and amendments to FIRST STEP Act sought by Senators Tom Cotton and John Kennedy
• Making the case against amendments to the FIRST STEP Act proposed by Senators Cotton and Kennedy ... UPDATED with a response on 12/17 
• Some of Senator Cotton's suspect claims in his latest case for amendments to the FIRST STEP Act
• Cloture vote on FIRST STEP Act gets super-majority support in Senate

UPDATE: I just say that Prez Trump has already tweeted here about this significant legislative development, saying "This will keep our communities safer, and provide hope and a second chance, to those who earn it. In addition to everything else, billions of dollars will be saved. I look forward to signing this into law!"

Cloture vote on FIRST STEP Act gets super-majority support in Senate

As reported in this article from The Hill, the "Senate advanced a White House-backed criminal justice reform bill on Monday, paving the way for senators to try to pass the bill as early as Tuesday." Here is more on the vote and what comes next:

Senators voted 82-12 to end debate on the legislation, which merges a House-passed prison reform bill with a handful of changes to sentencing laws.

Twelve Republicans voted against advancing the legislation despite President Trump endorsing the measure in November: GOP Sens. John Barrasso (Wyo.), Richard Burr (N.C.), Tom Cotton (Ark.), Mike Enzi (Wyo.), John Kennedy (La.), Jon Kyl (Ariz.), Lisa Murkowski (Alaska), Jim Risch (Idaho), Ben Sasse (Neb.), Dan Sullivan (Alaska), Mike Rounds (S.D.) and Pat Toomey (Pa.).

The Senate is expected to vote on potential changes to the legislation as soon as Tuesday before taking a final vote on the bill. “There are a number of members with outstanding concerns that they feel are still unresolved. ... The Senate will be considering amendments before we vote on final passage later this week,” Senate Majority Leader Mitch McConnell (R-Ky.) said ahead of the vote.

Though supporters rolled out a final version of the bill last week to try to win over more GOP senators, conservatives, led by Cotton and Kennedy, are expected to get votes on three amendments. Cotton, in a National Review op-ed published Monday, said his potential changes would help "limit the damage" and conservatives who had already said they would support the bill "have jumped on the bandwagon too soon."...

Toomey said in a statement that he was still weighing supporting the bill but voted no on Monday because it will block senators from voting on an amendment that he wanted to offer. “The First Step Act contains worthwhile provisions that seek to improve the criminal justice system and reduce offender recidivism, which is why I am seriously considering supporting it. However, today’s procedural vote was designed to preclude amendments, including one I intended to offer to support victims of crime," Toomey said.

The amendment votes are expected to be held with a simple majority threshold, meaning at least a few GOP senators would need to join with all Democrats to block them from getting added to the bill. Sen. Dick Durbin (D-Ill.), who helped craft the deal along with Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah), warned that as currently drafted that he believes Cotton's amendments are "poison pills" meant to undercut the legislation as a whole.

I am pretty sure this all means that the FIRST STEP Act is going to be passed by the Senate in the next few days, though there is still uncertainty as to whether it will be with or without the Cotton-Kennedy Amendments. My understanding is that the House will vote on whatever the Senate passes in short order, so some version of the FIRST STEP Act could be on the desk of Prez Trump even before the end of this week.  Wowsa!

Some of Senator Cotton's suspect claims in his latest case for amendments to the FIRST STEP Act

As noted in an update to this prior post, Senator Tom Cotton has this new National Review commentary making the case for his proposed amendments to the latest version of the FIRST STEP Act under the headline "Fix the First Step Act and Keep Violent Criminals behind Bars."  This commentary closes with a passage that troubled me, especially when I looked up the facts of the case he discusses.  Here is how Senator Cotton concludes (with a few details emphasized by me for further commentary):

So far the debate over First Step has been clouded by euphemism and abstraction, which has prevented the public from understanding what the bill actually does. A concrete example will help clarify the stakes. Richard Crawford is a former NASCAR driver who was convicted in August of trying to force a twelve-year-old girl to have sex with him. Crawford was sentenced to nearly 11 years in federal prison, but the statute he was convicted under does not appear in First Step’s “ineligible prisoners” list.  If the bill passes, he will therefore be eligible for time credits that would reduce his time in prison by up to one-third, or nearly four years.  At the end of his prison sentence he would be moved into pre-release custody or supervised release.  He would essentially be a free man.

Crawford’s sex crime was not obscure, low-level, or “victimless.”  Quite the opposite.  His crime had the potential to shatter a child’s life.  It was punished accordingly by a judge and a jury of his peers.  That is how criminal justice ought to work in America.  Now a group of politicians and activists are in a position to overturn that public judgment with the First Step Act.  Conservatives should resist this revolution.

The last few sentences of this passage initially troubled me because nothing in the FIRST STEP Act serves to "overturn" a jury conviction or even a sentencing term.  Rather, the FSA creates additional incentives, through "time credits," for offenders to engage in recidivism-reducing programs.  I think the FSA is popular because the "public judgment" is that it would generally be better for Crawford to be released in 2025 after having successfully engaged in this programming than to be released in 2028 without having made any effort to better himself.

But even more irksome to me is how Senator Cotton portrays his poster child, Richard Crawford, because it seems a bit much to say he tried "to force a twelve-year-old girl to have sex with him" given that he was convicted based on law enforcement posing as a man soliciting people to have sex with a fictitious 12-year-old.  This article about the case explains:

Crawford was accused of agreeing to pay $50-$75 to have sex with a 12-year-old girl, making arrangements with a man named Mike on Craigslist.  Mike and the 12-year-old girl were fictitious and used by law enforcement to catch Crawford in the act.  He responded to an undercover federal agent via e-mail and text between Feb. 10 and Feb. 28. According to the agent, Crawford texted him, “Love for her to be naked and ready,” and asked for photos of the girl.  Crawford was arrested at a location at which he agreed to meet “Mike” on March 1 by the Seminole County Sheriff’s Office and was indicted March 30.

Crawford claimed he agreed to the scenario because he didn’t believe it really involved a child.  His defense was detailed in a recent court filing, arguing against a lengthy sentence.  "Mr. Crawford testified that he thought 'Mike,' the person he was corresponding with, was engaging in a fantasy and that he agreed to participate," the filing read. "Mr. Crawford did not believe there would be a minor present; instead, he thought there would be an adult woman, presumably 'Mike's' wife or girlfriend, and that he and this woman would act the roles in 'Mike's' fantasy."

"Mr. Crawford consistently maintained that he had no intent to have sex with a minor, and if a minor had been present, he would not have had sex with the minor.”

A jury rejected Crawford's claims of innocence and convicted him of "attempted enticement of a minor to engage in sexual activity."  But to say he tried to force a 12-year-old to have sex seems off since there never was an actual 12-year-old.  Indeed, I think it fair to call Crawford's crime "victimless," though the case really serves as a great indication of how hard it is to place accurate short-hand labels on various crimes (and how easy it is for Senator Cotton to make a crime sound worse than it was is using short-hand labels).  To allow Crawford, who is 60 years old and appears to have no criminal history, the chance to earn "time credits" by completing evidence-based programming to reduce his risk of recidivism seem to me sensible, not scary.  (And, as I understand matters, if a risk assessment procedure were to classify Crawford as "high-risk" he would not in fact get any sentence reductions.)

We will see in the coming days whether Senator Cotton gets his proposed amendments added to the FIRST STEP Act.  But if Richard Crawford is the worst version of Willie Horton that he can conjure up for the coming debate, I am not at all convinced there is any need to carve out still further exceptions to the prison reform provisions that seem well-conceived to try to reduce the recidivism risk of as many federal prisoners as possible.

Some of the most recent of many prior related posts:

• Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act
• Four changes to the FIRST STEP Act sought by Senator Tom Cotton
• Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward 
• A notable debunking of "Three Myths From Critics of Criminal Justice Reform"
• FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote 
• Latest chapter of FIRST STEP Act massaging and messaging
• The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act 
• Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten 
• Senate leader Mitch McConnell says in floor speech that he will bring up FIRST STEP Act for a vote!! 
• Latest developments and discussions surrounding FIRST (baby) STEP Act
• Details on further carve-outs and amendments to FIRST STEP Act sought by Senators Tom Cotton and John Kennedy
• Making the case against amendments to the FIRST STEP Act proposed by Senators Cotton and Kennedy ... UPDATED with a response on 12/17

Making the case against amendments to the FIRST STEP Act proposed by Senators Cotton and Kennedy ... UPDATED with a response on 12/17

In this post a few days ago, I provided details and links concerning three amendments that Senator Tom Cotton and Senator John Kennedy will seek to have made to the FIRST STEP Act this coming week.  Unsurprisingly, advocates of significant sentencing reform are not fans of the Senators' proposed changes.  The Brennan Center, for example, has this release explaining that it "strongly rejects attempts by Sens. Tom Cotton (R-Ark.) and John Kennedy (R-La.) to add a series of 'poison pill' amendments that would unacceptably weaken the FIRST STEP Act....  These amendments would stigmatize incarcerated people, block incentives that encourage those who need it most from participating in recidivism-reduction programming, and risk retraumatizing victims of crime."

FreedomWorks has this even longer posting on this front titled "The Senate Must Reject Poison Pill Amendments to the First Step Act."  Here are excerpts that provide a taste of the arguments being made against these amendments:

Aside from the fact that the Cotton-Kennedy amendments have been introduced to hurt the First Step Act’s prospects of passage, there are a number of problems with the amendments that we’ve identified. For these reasons, we encourage the Senate to reject the amendments when they are brought to the floor for a vote.

Amendment 1: Excluding serious felons from early release to prerelease custody and supervised release

This amendment seems to be more of the same type of objections raised by Sen. Cotton in the past regarding the exclusions list on the prison reform side of the bill. The exclusions list is already superfluous because of the risk and needs assessment, which in its operation ensures that those who have committed such heinous crimes as Sen. Cotton has identified, will not become low- or minimum-risk of recidivism in order to earn time credits....

Amendment 2: Notifying victims before a offender is allowed to transfer out of prison early

This amendment masquerades as a harmless addition to promote victims’ rights, which is certainly a sympathetic cause. However, the amendment is not only redundant to current law and policy but its approach is also counterproductive and harmful for victims....

Amendment 3: Tracking the effectiveness of the anti-recidivism programs

This amendment creates redundancy. The U.S. Sentencing Commission already provides detailed information on the recidivism rates of federal offenders. Although the measure of recidivism varies by report, the rates of rearrest, reconviction, and reincarceration are accounted for in many reports.

Although the rate of recidivism defined by rearrest is a common data point in U.S. Sentencing Commission reports, this is a poor measure. It is likely, though, that this measure is the one included in the amendment by its authors on purpose and for that very reason....

Additionally, the First Step Act as it stands already includes multiple mechanisms to ensure the effectiveness of the anti-recidivism programming and other aspects of the legislation as well. The First Step Act includes its own reporting requirements, establishes an Independent Review Committee to report on the system, and requires a Government Accountability Office report of the risk and needs assessment and the programming together.

Some of the most recent of many prior related posts:

• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage
• Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act
• Four changes to the FIRST STEP Act sought by Senator Tom Cotton
• Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward 
• A notable debunking of "Three Myths From Critics of Criminal Justice Reform"
• FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote 
• Latest chapter of FIRST STEP Act massaging and messaging
• The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act 
• Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten 
• Senate leader Mitch McConnell says in floor speech that he will bring up FIRST STEP Act for a vote!! 
• Latest developments and discussions surrounding FIRST (baby) STEP Act
• Details on further carve-outs and amendments to FIRST STEP Act sought by Senators Tom Cotton and John Kennedy

MORNING UPDATE on Dec. 17, 2018: I have receive a one-page response to the arguments linked above in a document titled "Myths vs. Facts on the Cotton-Kennedy-Toomey-Kyl-Barrasso amendments to First Step." Here it is for downloading: Download Final Cotton-Kennedy Myths v. Facts

In addition, Senator Cotton has this new commentary at the National Review making the case for his proposed amendments under the headline "Fix the First Step Act and Keep Violent Criminals behind Bars."    This commentary closes with a passage that I will be discussing in a subsequent post, but here I will reprint how it starts:

This week, the Senate will vote on the latest version of the First Step Act, a criminal-justice bill that would release thousands of dangerous criminals from federal prison earlier than under current law.  This effort is misguided and dangerous, as I have written before.  Thankfully, there is still time to limit the damage.

Along with Senator John Kennedy, I have introduced an amendment to categorically exclude violent felons and sex offenders from the bill’s time-credit program, which can be used for early release.  We also have amendments to notify victims before a prisoner is released early, and to monitor whether prisoners who are released early commit more crimes. If advocates of First Step want to protect public safety, they will support all three amendments.

Details on further carve-outs and amendments to FIRST STEP Act sought by Senators Tom Cotton and John Kennedy

I have been able to get copies of proposed FIRST STEP Act amendments that Senator Tom Cotton and Senator John Kennedy will seek votes on next week.  Specifically, I have posted for downloading below a one-page explanation, the text of the proposed amendments, and a letter of support from the National Association of Police Organizations.  Here is key text from the one-pager (with bolding in the original):

AMENDMENT 1: Excluding serious felons from early release to prerelease custody and supervised release

The First Step Act already excludes some classes of felons from using the bill’s early release time credits to transfer into prerelease custody or supervised release for up to one-third of their sentences.  This list has grown as we have identified dangerous crimes — but it is still inadequate. For example, according to career sex-crimes prosecutors, 18 U.S.C. § 2422(b) is a commonly used statute to prosecute attempted child molesters.  Prisoners convicted of this statute are still eligible for early release under the revised bill. This amendment adds nine serious, violent, or sex-related criminal statutes to the “ineligible prisoners” list, excluding them from early release.  These offenders will still receive anti-recidivism programming and are eligible to earn other incentives, but will not be granted early release compared with current law....

AMENDMENT 2: Notifying victims before a offender is allowed to transfer out of prison early

This amendment would require the warden to notify each victim, when applicable, before an offender is transferred early into prerelease custody or supervised release.  It would give the victim an option to make a statement to the warden before the offender is released.

AMENDMENT 3: Tracking the effectiveness of the anti-recidivism programs

This amendment would create transparency by requiring the Bureau of Prisons to track the rearrest data for each prisoner who is transferred out of prison early into supervised release or prerelease custody.  This will provide valuable data to measure the effectiveness of the evidence-based anti-recidivism programs in the bill.

All Three Amendments Are Supported by the National Association of Assistant U.S. Attorneys, the Federal Law Enforcement Officers Association, the National Association of Police Organizations, and victims rights groups Force 100 and Arizona Voices for Crime Victims.

Download Final Cotton Kennedy one-pager on First Step Act Amendment

Download Text Cotton Kennedy First Step Amendment

Download NAPO Supports Cotton-Kennedy Amdt1_S.3649%5b3%5d

I am not a fan of many of the existing 60+ carve-outs in the current draft of the FIRST STEP Act limiting who gets certain incentives for being involved in anti-recidivism programming. Among my worries with these carve-outs is that sophisticated federal prosecutors and defense attorneys may develop (hard-to-see) ways to plead around these carve-outs so that certain federal defendants will be able to avoid their impact while others will not.  This makes the entire sentencing system and the mechanisms being set up by the FIRST STEP Act less transparent and potentially less effective.  So, I hope the Senate will resist even more carve-outs.

The victim-notification provision seems to overlap with The Crime Victims' Rights Act, 18 USC § 3771, which provides that a crime victim has the "right to reasonable, accurate, and timely notice ... of any release ... of the accused."  I am not sure if the federal system consistently complies with this provision of the CVRA, and arguably this proposed amendment serves to expand and enhance the existing statutory right.  And, of course, a large number of federal prisoners, such as those convicted of various drug and immigration and gun possession offenses, did not commit crimes with tangible victims needing to be notified.

And, as regular readers should know, I always support provisions that seek to soundly enhance the requirement of governments to soundly collect and analyze and make public data about sentencing systems and prison programming.  

Some of the most recent of many prior related posts:

• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage
• Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act
• Four changes to the FIRST STEP Act sought by Senator Tom Cotton
• Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward 
• A notable debunking of "Three Myths From Critics of Criminal Justice Reform"
• FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote 
• Latest chapter of FIRST STEP Act massaging and messaging
• The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act 
• Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten 
• Senate leader Mitch McConnell says in floor speech that he will bring up FIRST STEP Act for a vote!! 
• Latest developments and discussions surrounding FIRST (baby) STEP Act

Latest developments and discussions surrounding FIRST (baby) STEP Act

Yesterday, the Senate Judiciary released this press statement titled "Senate & House Lawmakers Release Updated First Step Act."   Here are key passages and links from the release:

A bipartisan, bicameral group of lawmakers today released revised text of the First Step Act to continue building support for criminal justice reform. This update was brokered by the White House and a bipartisan group of lawmakers in both chambers of Congress. Majority Leader Mitch McConnell and Speaker Paul Ryan have pledged to take up the revised package before the end of the year....

The revised legislation further clarifies eligibility for earned time credits following successful completion of evidence-based recidivism reduction programs, and expands on the existing list of disqualifying offenses. The changes address points raised by some law enforcement groups and provides for additional transparency in the Bureau of Prisons’ risk assessment framework.  A summary of the update can be found HERE.  Text is available HERE.

The First Step Act is endorsed by President Trump and cosponsored by more than a third of the Senate, evenly balanced among Democrats and Republicans. The recent updates to the bill have garnered the support of additional senators in recent days, including Senators Thom Tillis, Ted Cruz, David Perdue and John Cornyn....

The First Step Act is backed by a number of law enforcement groups, including the nation’s largest police group. It’s also supported by 172 former federal prosecutors including two former Republican U.S. attorneys general, two former deputy attorneys general and a former director of the FBI along with sheriffs from 34 states across the country. The National Governor’s Association, which represents the governors of all 50 states, praised the bill. A broad coalition of conservative and progressive groups along with a host of business leaders and faith-based organizations also support the First Step Act.

As the title of this post indicates, I am tempted to rename the FIRST STEP Act the First Baby Step Act because all of the latest carve outs in the latest version of the bill have made an already watered-down reform effort even more watery. But, because even a baby step is still so much better than no step at all, I remain very excited about the FIRST STEP Act and hope to be able to officially celebrate its enactment in the coming weeks.

And, of course, Senator Tom Cotton is not eager to go down without a fight here, and the press is rightly talking about his prominent role in the debate over this bill.  Here is a sampling of recent coverage:

• "Cotton to demand vote in effort to further restrict criminal justice system overhaul"

• "Tom Cotton Pulls Out a Shank in Prison Reform Debate"

• "Is Tom Cotton’s winning streak about to end?"

Senate leader Mitch McConnell says in floor speech that he will bring up FIRST STEP Act for a vote!!

Most everything that happens inside the Beltway tends to make me sad and frustrated, but I was feeling especially sad and frustrated by report that the FIRST STEP Act would not even get a vote in the Senate this year.  But, providing a belated Hannukah gift and an early Christmas gift is this exciting news via the Washington Post: "McConnell to bring up criminal-justice bill for a Senate vote."  Here are the details:

Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday that the Senate will vote on a sweeping overhaul of the criminal justice system that has proven deeply controversial within the Senate Republican ranks. 

McConnell said in a floor speech Tuesday morning that the Senate will take up the legislation, written by Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), Sen. Richard J. Durbin (D-Ill.) and several other Democratic and Republican senators, in December, perhaps as early as the end of this week. 

He also warned that because of the decision to add the criminal justice bill to the Senate agenda, “members should now be prepared to work between Christmas and New Year’s.” He urged senators to “work together or prepare for a very, very long month.”

Since I am regularly working — usually grading, researching and blogging — between Christmas and New Year's, I am not at all troubled that Senators will also have to squeeze in a little extra work to earn their final 2018 paychecks.   

This report is certainly something to celebrate among everyone eager to see some — any — positive reforms to our federal criminal justice system.  But, of course, having a bill enacted and signed by the Prez is critical before a full celebration is appropriate. In addition, various reports of various carve outs in order to garner GOP support for various part of the bill suggest that the final legislation could prove especially modest in various particulars.  Still, as I see it, something is always better than nothing, and any version of the FIRST STEP Act is likely to be something.

Some of the most recent of many prior related posts:

• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage
• Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act
• Four changes to the FIRST STEP Act sought by Senator Tom Cotton
• Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward 
• A notable debunking of "Three Myths From Critics of Criminal Justice Reform"
• FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote 
• Despite push by Prez and VP and support of at least 70 senators, odds of a Senate vote on FIRST STEP Act still reportedly "less than 50/50" 
• Latest chapter of FIRST STEP Act massaging and messaging
• The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act 
• Yet one more round-up of news and notes as debate over the FIRST STEP Act rages on
• Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten 

Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten

The US stock market probably can lay claim to being the most volatile and unpredictable metric since last months election, but the ups and downs surrounding the possible enactment of the FIRST STEP Act during the lame duck Congress have certainly been knocking me for a loop.  As of yesterday evening, as reflected in this post, I was ready to put a folk in reform efforts and conclude they were done for now.  But a new day brings all sorts of new developments: (1) Senator Ted Cruz issued this press release reporting "the White House and the sponsors of this bill ... have decided to accept [his] amendment" to exclude violent offenders from being released early so that now he believes "the Senate should take up and pass this important legislation, and (2) Prez Donald Trump posted this tweet:

Hopefully Mitch McConnell will ask for a VOTE on Criminal Justice Reform. It is extremely popular and has strong bipartisan support. It will also help a lot of people, save taxpayer dollars, and keep our communities safe. Go for it Mitch!

— Donald J. Trump (@realDonaldTrump) December 7, 2018

This new Politico article, headlined "Trump leans on McConnell to vote on criminal justice reform," provides the latest full update, including these mostly encouraging details:

President Donald Trump pressured Senate Majority Leader Majority Leader Mitch McConnell on Friday to pass criminal justice reform, hoping to push a reluctant McConnell to put it on the floor during a crowded lame duck session. After going mostly silent on the bill for several weeks, Trump touted the bill at an event in Kansas City and then singled McConnell out on Friday on his Twitter feed....

A person familiar with the conversations between the two men said the president was using a light touch on the bill, but would call McConnell out if he felt the bill was drifting away. “McConnell said if we’ve got 65 votes then he would allow the bill to get on the floor. And we’ve far exceeded that. And now the president is pushing the president to get the floor time," the person said. "We need to figure out exactly how this fits in in the floor time. Until we can answer that question all the pressure in the world won’t make a difference. What [Trump has] done is he’s expressed very clearly to McConnell that he wants him to figure it out."

Senate Judiciary Chairman Chuck Grassley (R-Iowa) also talked to Trump on Friday and tweeted that "Trump told me he wants it done THIS CONGRESS."

The Trump tweet came on top of a day of rising public support for the bill, with Sen. Ted Cruz (R-Texas) endorsing a revised version of criminal justice reform. The legislation, which would relax some federal sentencing guidelines and reform the federal prison system, is being amended to “exclude violent offenders from being released early,” the Texas Republican said in a statement....

Four other senators endorsed the bill on Friday as it faces a time crunch on the Senate calendar. Sens. Thom Tillis (R-N.C.), Tina Smith (D-Minn.), Michael Bennet (D-Colo.) and Steve Daines (R-Mont.) backed the bill.  Those senators plus Cruz give the bill more than 30 official supporters in both parties, though almost the whole 49-member Democratic caucus is expected to back the bill if it comes up for a vote.

The real issue is on the Republican side, where advocates argue that about 30 of the 51 senators support it, but GOP leaders say the bill’s support is much lower.  Though conservatives like Tom Cotton (R-Ark.) have led the public charge against it, there are quieter opponents of the bill like Sen. Dan Sullivan (R-Alaska), who says his state is in the midst of a “crime wave” from similar legislation.  “It’s a very challenging time in Alaska to be focused on criminal justice reform,” Sullivan said in an interview. He said the bill should not come up this year.

The internal disagreements and opposition from the National Sheriffs’ Association have made McConnell reluctant to bring the bill to the floor, especially with just two weeks left to pass legislation to fund the government. McConnell has repeatedly indicated to the White House and his conference that finding a window to pass the criminal justice reform bill would be challenging. “Until we can kind of figure out how to get the sheriffs on board, we still have a lot of opposition in our ranks,” said Sen. John Thune of South Dakota, the No. 3 GOP leader. “Then, from a timing standpoint, how would we process that in the next two weeks?”...

Sen. Lindsey Graham (R-S.C.) said he spoke to President Donald Trump on Friday and that the president wants the bill to pass, potentially as part of the spending bill along with more money for the border wall. But that plan would surely draw broad Democratic opposition over funding for the wall. And McConnell has mentioned taking up the bill next year after Democrats take the House. But the bill's supporters say that's akin to starting all over after building a fragile compromise this year.

Some of the most recent of many prior related posts:

• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage
• Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act
• Four changes to the FIRST STEP Act sought by Senator Tom Cotton
• Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward 
• A notable debunking of "Three Myths From Critics of Criminal Justice Reform"
• FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote 
• Despite push by Prez and VP and support of at least 70 senators, odds of a Senate vote on FIRST STEP Act still reportedly "less than 50/50" 
• Latest chapter of FIRST STEP Act massaging and messaging
• The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act 
• Yet one more round-up of news and notes as debate over the FIRST STEP Act rages on 

Yet one more round-up of news and notes as debate over the FIRST STEP Act rages on

I sincerely wish Senate Leader Mitch McConnell would schedule a vote on the FIRST STEP Act so that I would not have to keep blogging round-ups of stories and commentary surrounding the prospects of the FIRST STEP Act. But since I have seen lots of notable developments and discussion even since I did this post this morning, here goes:

• From Fox News, "Charlie Kirk: The First Step Act prison reform bill deserves a Senate vote"

• From The Hill, "Fox issues statement in support of criminal justice reform package"

• From the Omaha World-Herald, "Midlands Voices: Senate must pass the First Step Act"

• From the New York Times, "1th-Hour Effort to Press McConnell to Allow a Criminal Justice Vote"

• From the Star-Telegram, "Ted Cruz rallies conservatives with changes to criminal justice reform plan"

• From The Week, "America has a rare chance at prison reform. We can't let it slip away"

UPDATE: Saving the worst for last, here are two more recent pieces suggesting the odds of enactment are growing ever bleaker:

• From Politico: "Trump’s criminal justice reform nears demise"

• From the Washington Post: "McConnell tells White House little chance of Senate vote on criminal justice bill"

I fear it is getting dangerously close to dust off the old Don Meredith saw, "Turn out the lights, the party's over...."

Latest seemingly encouraging news on debate over FIRST STEP Act

As lots and lots of folks keep discussing and debating the FIRST STEP Act in various fora, this new Washington Examiner article brings something close to new news about the prospects for the legislation.  The lengthy piece is headlined "Influential First Step Act opponent backs some key provisions, offering hope to supporters," and here are excerpts:

A leading opponent of President Trump's push for criminal justice reform has admitted that he supports key planks of the legislation, giving reformers hope it can pass by the end of the year.

Larry Leiser, president of the National Association of Assistant U.S. Attorneys, told the Washington Examiner he supports in principle three of four major sentencing reforms included in the Trump-backed First Step Act.

Provisions to reduce prison sentences were added last month to satisfy senators pushing for deeper reform after less-controversial prison reform and societal reentry measures passed the House of Representatives in May. Leiser opposes the underlying bill, but said there's merit to the additions.

"This is significant because Larry has been among the loudest and most persistent critics of criminal justice reform and the First Step Act," said Koch Industries general counsel Mark Holden, a supporter of the legislation. "Having him on board with these reforms should help ease any concerns some senators may have about making our sentencing laws more proportional and just."

The First Step Act faces a tight deadline before Democrats retake the House of Representatives in January. Reform advocates fear that a divided Congress will lead to an impasse that results in no reform. Republicans are split on the bill, and Senate Majority Leader Mitch McConnell, R-Ky., has not committed to a vote. Bill supporter Sen. Lindsey Graham, R-S.C., said last month that it would get 80 votes in the Senate, but that the push would likely die when Democrats retake the House and advocate for even farther-reaching changes.

As time dwindles, Holden shared with the Washington Examiner details about a private conversation he had with Leiser, a leader of the opposition, alongside Sen. Tom Cotton, R-Ark. Holden said that nearly a year ago, Leiser said he supported three of four major sentencing changes ultimately added to the bill. In a phone call Wednesday, Leiser confirmed the account, but said that he opposes the overall package, mainly due to concerns about process and provisions that passed the House.

"What Mark Holden is trying to do is pick off the things we agree on and say we support the overall bill, [but] there are parts of the bill that we think are adverse to public safety,” Leiser said. Leiser said he supports repeal of a three-strikes life sentence for drug crimes and an expanded sentencing “safety valve” to allow judges to deviate from harsh drug penalties, though he believes the Senate bill sets the bar too low.

Leiser said he opposes a fourth major sentencing addition to the First Step Act that would retroactively reduce sentences for crack cocaine convicts punished under a since-changed law. Many such sentences, however, already were cut by former President Barack Obama.

Although he supports some of the reforms, Leiser opposes seemingly less-contentious provisions in the bill that passed the House, notably allowing inmates who participate in anti-recidivism programs to transfer early to supervised release, such as living in a halfway house. He said there's no evidence programs reduce recidivism at the federal level and that he suspects reformers are downplaying the bill's potential effects.

The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act

A new week bring a new round of stories about the status of the debate over the FIRST STEP Act.  For example, this morning's Politico piece, headlined "Trump lays off McConnell as criminal justice reform stalls: Advocates fear the president isn’t fully invested in the fight for the bill," is focused on whether Prez Trump should be trying to do more to get the legislation through Congress.  Given that Prez Trump does not work in Congress, I would rather these days to see stories about whether he will ever make good on all his prior clemency talk, but that it a topic for a coming post.

Of course, I understand why Politico and others are inclined to focus on Prez Trump 's role in this process, but I have long been wondering why nobody is talking about whether Senate Judiciary Chair Charles Grassley would be willing to stall/block any and all votes on judicial nominees — not only now in lame duck, but also in the next Congress — until a Senate floor vote is scheduled on criminal justice reform bills.  As this AP story notes, outgoing GOP Senator Jeff Flake is using his judiciary power to block votes on judges to seek a floor vote on a bill to provide protections for the special counsel.  As a Beltway outsider, I do not see why Senator Grassley — or other big GOP reform supporters on the Judiciary Committee like Mike Lee — are not at least talking up a similar move to try to get Senator McConnell to schedule a vote on the FIRST STEP Act.

Meanwhile, this CNN article discussing the discussion of the FIRST STEP Act among GOP Senators provides this glimpse into the faulty and foul thinking that creates challenges for any and all criminal justice reform efforts:

Sens. John Cornyn of Texas and Dick Durbin of Illinois, the number-two ranking Republican and Democrat respectively, discussed in the Senate gym Thursday morning potential compromises that could get wary Republicans on board. "This is a once in a political lifetime opportunity," Durbin said.

In a separate interview, Cornyn said that addressing some of the concerns of one law enforcement group — the National Sheriffs' Association — would "guarantee" the support of some Republicans. Cornyn, the GOP Whip, said his job was to give McConnell "an accurate count of where the votes are," rather than arm-twisting members into voting for it.  He also noted that "our time is limited" in getting it done.

Many Democrats are in favor of the bill — Durbin, the Democratic whip, said his party's "support for this measure is solid." If the Senate can pass it, the House is expected to easily do so too.

This has left the fight to Republican members of the Senate.  Sen. Rand Paul, a Republican from Kentucky, told CNN that there's a generational divide within the party on the issue....  "We had one of the senators in the lunch saying, 'You know how you get no recidivism?  Don't ever let him out of jail.  Zero recidivism!'" added Paul, referring to a closed-door meeting GOP senators held this week.

This contention of "Zero recidivism!" is most obviously faulty because it fails to acknowledge that prisoners can and do commit crimes while in prison, with the most common victims being prison guards and other prisons.  This contention is most obviously foul because it entirely disregards the humanity and social meaning of those persons who become federal prisoners (not to mention all their friends and families).  Fundamental ignorance about prisons and prisoners, along with a easy willingness to dehumanize and disregard the interests of those in our criminal justice system and those who care about those in our criminal justice system, help account for why it can be so very easy for all to many leaders to talk this way when seeking to thwart thoughtful and balanced criminal justice reform efforts.

Of course, though nobody is really serious about making all federal crimes subject to mandatory LWOP terms in the name of recidivism reduction, there is also a telling revelation in this faulty and foul comment imagining permanent imprisonment for everyone.  Opponents of the FIRST STEP Act are fundamentally making the claim that we should fear a bill intended and well-designed to seek to reduce recidivism rates among federal prisoners because the recidivism rates among federal prisoners are currently too high.  

Some of the most recent of many prior related posts:

• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage
• Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act
• Four changes to the FIRST STEP Act sought by Senator Tom Cotton
• Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward 
• A notable debunking of "Three Myths From Critics of Criminal Justice Reform"
• FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote 
• Despite push by Prez and VP and support of at least 70 senators, odds of a Senate vote on FIRST STEP Act still reportedly "less than 50/50" 
• Latest chapter of FIRST STEP Act massaging and messaging

Latest chapter of FIRST STEP Act massaging and messaging

Just about day now seems to bring a new development in the saga surrounding a possible Senate vote on some possible version of the FIRST STEP Act.  This new Politico article, headlined "Criminal justice reform bill still alive as McConnell deliberates," reports on the very latest of these developments, and here are excerpts:

Chuck Grassley and other advocates of criminal justice reform are desperately trying to sway Mitch McConnell to stay longer in December to finish their bill. And McConnell isn't ruling it out.

The Senate Judiciary chairman said he's still waiting on an official word from the majority leader on whether he will provide floor time to take up a measure that has drawn heated opposition from some Senate Republicans despite earning President Donald Trump's endorsement....

McConnell said the Senate GOP is still deliberating on whether to move forward, though he left the door open in a brief Thursday interview. “We’re trying to figure out how to proceed on it. We’re still trying to figure that out," the Kentucky Republican said....

Meanwhile, even as a bipartisan group of senators is still working on coming up with a new agreement to win more co-sponsors and the support of the National Sheriffs' Association, a Justice Department draft began circulating on Thursday that rewrites a number of key provisions.

The draft, obtained by POLITICO, would still allow many federal inmates to earn time credits and obtain supervised release but would bar people convicted of violent crimes and major drug trafficking crimes. It would also increase penalties for attacking police officers and fentanyl dealers, a key concern of law enforcement groups and senators from states wracked by the opioid crisis.

But the White House pushed back quickly against the draft, reiterating Trump's call for the criminal justice bill to get a vote this year. "The president has endorsed the Senate compromise on the First Step Act, and the White House is not circulating any other version,” White House deputy press secretary Hogan Gidley said. “All reporting to the contrary is false. The White House is committed to passing this legislation in the lame duck."

One person working in favor of criminal justice reform also slammed the draft as reflecting the efforts of a "rogue DOJ official who always hated the bill." Democrats and Republicans have been working to overcome objections from Republican senators, but "this is not what is being considered," the person said....

Senate Minority Whip Dick Durbin (D-Ill.) said supporters are considering excluding people from sentencing reforms that committed arson, certain drug crimes, and "taking care of the sheriffs' concerns" about sex crimes.

Despite push by Prez and VP and support of at least 70 senators, odds of a Senate vote on FIRST STEP Act still reportedly "less than 50/50"

Politico has this lengthy report, headlined "White House makes last-ditch push on criminal justice reform bill," on the state of debate among Senate Republicans concerning the FIRST STEP Act.  Here are details:

The Trump administration and a bloc of Republican senators are making a last-ditch attempt to pass a criminal justice reform bill in the lame duck session.

In a closed-door party lunch on Tuesday, Vice President Mike Pence made a strong endorsement of the bill to Senate Republicans, senators said, emphasizing that the GOP could take a clear win in the lame duck with passage.  And supporters said they picked up votes during the discussion; one supportive GOP senator said they’ve accrued more than 20 hard “yes” votes and that another dozen or so GOP senators are gettable, which would likely be enough to easily pass the bill — if leadership will bring it up.

Senate Majority Leader Mitch McConnell (R-Ky.) maintained his poker face at the meeting, other than to reiterate the Senate’s short calendar.  Asked to assess the prospect that McConnell will put the sentencing and prison reform bill on the floor, one attendee said: “Less than 50/50.”...

“A lot of people like me are still trying to understand what it does,” said Sen. Bob Corker (R-Tenn.), who characterized Tuesday’s critical meeting as a “higher level discussion of whether we should attempt to do it.”

As they assess the bill‘s prospects, GOP leaders are also asking senators whether they'd prefer to deal with the bill next year after Democrats take over the House, according to two sources familiar with the matter.  That would dismantle a fragile bipartisan agreement and require Republicans and Democrats alike to essentially start over.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) is still trying to garner more support for the bill, which would lower mandatory minimum sentences for some drug-related felonies, expand a program for early release, promote training programs in prison and require inmates be placed in prisons closer to their homes. He and other advocates say they are open to changing the bill’s treatment of some criminals in order to win new supporters.

“We’re still working on getting additional yeses or additional cosponsors,” Grassley said, noting that the only way to overcome opposition from Sen. Tom Cotton (R-Ark.) and others was to increase co-sponsorship. He added that “we’re talking about no announcement before a couple days.”

McConnell is loath to take up the bill on the floor to prevent a circular firing squad among Republicans. But that’s already happening both in public and private: After trading blows on Twitter in recent days, Sen. Mike Lee (R-Utah) and Cotton each gave opposing speeches about the bill in the lunch.

But supporters said they have the momentum and estimated only a half-dozen Republicans will be difficult to convince: Cotton, Sen. John Kennedy (R-La.), Ben Sasse (R-Neb.), Jim Risch (R-Idaho) and Deb Fischer (R-Neb.).  “Over half of the Republicans are for it, and maybe 80 percent, 90 percent, maybe all of the Democrats support it,” Sen. Rand Paul (R-Ky) said. “Things are all moving in the right direction.”

Still, Sen. Marco Rubio said that he is skeptical of the bill, particularly when it comes to classification of crimes and said he is “not sure there is anything” that could win him over. And a small bloc of Republicans, led by Cotton and Kennedy, are vocally going after the bill.  Kennedy called it “ass backwards” in an interview and said he had “serious philosophical problems with the criminal justice bill.” It “takes all our authority and gives it to a bunch of bureaucrats,” he said.

The Senate also needs to pass a spending bill by Dec. 7 to avoid a partial government shutdown, and lawmakers are trying to wrap up negotiations around the Farm Bill. The criminal justice bill is regarded as a “maybe” that could potentially wait until next year. A version of the bill has already passed the House.

Senate Majority Whip John Cornyn (R-Texas) said that the bill “is still being evaluated and people are still trying to figure out where they stand.” He said McConnell has made no final decision....

But no matter what, there will be detractors.  Cotton told reporters Tuesday that while the House’s version of the bill was “fixable,” the Senate’s draft of the legislation has “gone consistently to the left.” 

If only a handful of Republicans supported this bill, I could understand why (but would still be frustrated) the Senate Majority Leader would not want to bring forward a bill favored more by his opposing party than by his own party.  But this Politico report reinforces my sense that a majority of GOP Senators would vote for the FIRST STEP Act and that a super-majority of all Senators (representing a super-super majority of the nation's population) want this legislation enacted.  That a few Senators from a few states can, in essence, exercise a heckler's veto highlights why thoughtful federal criminal justice reform has been so very hard.  Sigh.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Prez Trump pledges to sign prison reform that will be "best in the world"
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage
• Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act
• Four changes to the FIRST STEP Act sought by Senator Tom Cotton
• Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward 
• A notable debunking of "Three Myths From Critics of Criminal Justice Reform"
• FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote 

FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote

The Washington Post is reporting in this new article, headlined "Senate Republicans mull changes to controversial criminal justice bill," that there is talk of further gutting the few sentencing reform provisions in the latest version of the FIRST STEP Act and creating still further prison reform carve outs.  Here are the details:

Senate Republicans are actively discussing changes to a controversial overhaul of the criminal justice system in a bid to win more GOP support that could nonetheless shatter a delicate bipartisan compromise on one of President Trump’s top legislative priorities left for this year.

The changes being mulled, confirmed by senators and others familiar with the talks, reflect in part proposals put forward by the National Sheriffs’ Association, which is opposed to the legislation as written.  Though a slew of law enforcement groups already support the bill, getting more of them on board is almost certain to improve its prospects among Republicans.

One change that has been discussed privately is tightening the “safety valve” provision, which provides more discretion to judges when they issue sentences.  Though the most recent public draft of the bill would allow judges to take advantage of those “safety valves” in more types of cases, Sen. David Perdue (R-Ga.) said senators are talking about reducing the types of convictions that would qualify for the “safety valve” provision.  Perdue also said senators are considering narrowing the kinds of fentanyl-related crimes that would be eligible under the legislation, which broadly is meant to loosen some mandatory minimum sentences and help rehabilitate prisoners.

“I’m probably going to be supportive of it,” said Perdue, who was a vocal opponent of a more expansive version of the legislation two years ago. “It does some things that we’ve been talking about that Georgia and North Carolina and Texas have done, with good results.”

A provision that gets rid of the “stacking” regulation — which is used to add more penalties against those who commit a drug-related crime while possessing a gun, even if the firearm wasn’t used — is also ripe for potential changes to win over Senate Republicans.

The changes under negotiation reflect the messy, closed-door horse-trading that will only grow as Senate leaders begin gauging support for the bill this week, even if attempts to change the legislation are ultimately unsuccessful.  Senate Democrats, who believe they have already made significant concessions, aren’t eager for more changes that would push the bill further to the right, considering it already has Trump’s endorsement and appears it could easily pass the House.

“I’m aware of the discussions, but we have a strong commitment on both sides of the aisle, including the White House, that the bill is what it is,” Sen. Cory Booker (N.J.), one of the main Democratic authors of the bill, said Monday evening of the changes being discussed. “I believe we should all be standing pat and firm.”

The bill’s supporters — both Republicans and Democrats — are also rushing against the clock, scrambling to get the measure signed into law this year before Democrats gain control of the House.  The new majority, particularly the generation of lawmakers partly elected on a message of racial justice, could be more emboldened to push for more sweeping changes than the limited overhaul, upsetting the compromise.

Another change that has been floated privately is including additional categories of sex offenders in the group of inmates who would be ineligible for early release, according to one Senate official....

While the discussions continue, the ranks of publicly opposed senators are growing. Sen. Marco Rubio (R-Fla.) has been privately speaking with Sen. Mike Lee (R-Utah) and Sen. Tim Scott (R-S.C.) — two of his closest allies — but stressed Monday that while he is on board with the overhaul to the prison systems and recidivism programs, he is concerned about the proposed changes to sentencing laws. “Now that we’re getting to the guts of it, I need to have a better understanding,” Rubio said. But “as of now, I can’t support it, given my understanding of it.”

Trump, meanwhile, has not wavered from his public commitment to the First Step Act and overhauling the criminal justice system — the subject of a Monday roundtable in Mississippi that was sandwiched between two campaign rallies. After endorsing the bill with much fanfare at a White House ceremony this month, Trump again pushed Senate Majority Leader Mitch McConnell (R-Ky.) for a floor vote in a private phone call last Tuesday, according to people briefed on the conversation.

“Well, we’re talking to him, and we’re doing a count,” Trump said Monday in Mississippi of his discussions with McConnell. “We want to make sure that we have the votes because we don’t want to bring it if we don’t have the votes, but another thing we’re looking at right now is that we have more than enough. So at a certain point, we’ll have a talk. But we have the votes, and I’m sure that we’ll be voting soon.”

Especially in light of this new reporting, it is worth watching how Prez Trump talked up the FIRST STEP Act again at this Mississippi roundtable event Monday night, and also worth noting how VP Mike Pence and Senator Lindsay Graham also talked up the bill.  Because of how much Prez Trump seems to be leaning into this legislation, I now think it would be a big loss for him if there isn't a vote on the bill (and Prez Trump himself said at the roundtable event the bill could get 80 votes in the Senate).  So, based on all of this buzz, I am now thinking a Senate vote is going to happen, but that Senator Cotton and perhaps a few other hardliners will find various ways to continue watering down the bill up until a vote finally goes forward.

As I have said repeatedly in this space, any positive reform is better than no reform.  So I am continuing to hope we see a bill become law in the weeks ahead.  But I also hope everyone supporting of real reforms takes to heart that this bill will be, as it name connotes, just a small first step in a very long path toward needed federal criminal justice reforms.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Prez Trump pledges to sign prison reform that will be "best in the world"
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reiterates support for prison reform and says AG Jeff Sessions "gets overruled by me"
• Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage
• Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act
• Four changes to the FIRST STEP Act sought by Senator Tom Cotton
• Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward 
• A notable debunking of "Three Myths From Critics of Criminal Justice Reform"

UPDATE: The White House has provided here the full transcript of "Remarks by President Trump at FIRST STEP Act Roundtable with Governor Bryant and Law Enforcement Leaders." They start substantively this way:

We’re here today to discuss a landmark prison reform bill called the FIRST STEP Act — so important.  This legislation will help former inmates reenter society as productive law-abiding citizens and it has tremendous support no matter where we go. Tremendous support.  Beyond anything I would’ve expected.

Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward

Senator Tom Cotton continues to work with all his might to halt Congress from taking any reform steps via the FIRST STEP Act, and his latest efforts involve this new National Review commentary and what is reported here by Politico under the headline "Cotton wields sex offender report to tank prisons bill."  Here is how Senator Cotton himself gets started at NR:

It remains to be seen whether the lame-duck 115th Congress will debate a sweeping overhaul of our federal criminal-justice system before we adjourn for the year. You may have heard about the legislation at hand, the FIRST STEP Act. I oppose it. I urge my fellow conservatives to take the time to read and understand the bill before signing on in support of this flawed legislation.

The 103-page bill that was released the Friday before Thanksgiving has some good parts, and I don’t question the intentions of the bill’s proponents. But you may have noticed that they talk more about their intentions than about the consequences of the bill. As conservatives, we know that good intentions say little about actual consequences. And to paraphrase Thomas Sowell, intellectuals who generate ideas with good intentions rarely have to face the consequences of those ideas personally.

When proponents of the bill discuss the substance, they claim that “nothing in the FIRST STEP Act gives inmates early release.” Instead of early release, proponents say, it merely provides incentives for inmates to participate in programs. This is nothing but a euphemism. Let there be no doubt: If the bill is passed, thousands of federal offenders, including violent felons and sex offenders, will be released earlier than they would be under current law. Whatever word games the bill’s proponents use will make no difference to the future victims of these felons.

Here is what Politico is reporting:

GOP Sen. Tom Cotton is locked in an awkward fight with fellow Republicans over their push to change federal prison sentencing guidelines. And now he has a new attack line intended to make his rivals squirm: Warnings that sex offenders could get off easy.

A new Justice Department analysis — conducted at Cotton‘s request — found that the Senate’s bipartisan sentencing and prison reform bill could make people convicted of some sex crimes eligible for early release. And though President Donald Trump supports the bill, Cotton says the DOJ confirmation underpins his argument that convicts of certain sex-related crimes could accrue credits making them eligible for supervised release or “pre-release” to a halfway house.

While GOP leaders are beginning to assess the prospects of the bill on the Senate floor, the Arkansas Republican argues that the latest version of the bill has been rushed and contains significant flaws and is hoping to sway undecided Republicans to join him. Cotton and Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah) have been battling over the specifics of the bill since it was released in mid-November, exactly the type of intraparty firefight Senate Majority Leader Mitch McConnell (R-Ky.) has been hoping to avoid.

The argument over the bill's treatment of sex offenders took center stage on Monday, drawing the latest public shots between the warring Republican senators. “Now that the Department of Justice has confirmed that the Senate FIRST STEP Act offers early release to multiple categories of sex offenders in several provisions of the bill, Congress should fix these problems instead of ramming this bill through. There is no such thing as a ‘low-risk violent sex offender’ who deserves earlier release than under current law," Cotton said in an emailed statement.

A spokesman for Lee defended the legislation in response to the DOJ analysis on Monday and accused the bill’s opponents of “spreading fake news” about the bill. “Just because a federal offense is not on the specific list of ineligible offenses doesn’t mean inmates who committed non-specified offense will earn early release. All inmates must first pass a DOJ risk assessment before they can even begin earning good time credits. And then they must secure certification from their warden that they are not a threat to safety before they can be released,” said Conn Carroll, a Lee spokesman. Carroll added that Lee is open to revising the bill if it turns opponents into supporters: “If adding to the list of specifically forbidden offenses would get some senators to yes, we would love to help them do that on the Senate floor.”

Their colleagues are watching closely. Sen. Marco Rubio (R-Fla.) said that a Cotton op-ed panning the bill made a "compelling argument" and indicated his vote is in play. A number of Trump's allies, from Grassley to Sen. Rand Paul (R-Ky.) to Lindsey Graham (R-S.C.) are behind the bill, but in the Senate even a small band of opposed senators can make a floor debate stretch out for a week — all while lobbing attacks at fellow Republicans for being soft on crime.

"I'd like to get it through but we still have a few problems that we ought to work out," said Sen. Orrin Hatch (R-Utah). "I'm for doing it if we can. We have a shot at it but we're going to have a lot of cooperation."

Senior Senate Republicans said on Monday they could not predict what McConnell will do. The president has lobbied McConnell to bring up the bill, but the GOP leader has told Trump the Senate's schedule is crowded over the next month. McConnell has emphasized that funding the federal government by the Dec. 7 deadline and finishing a farm bill are his top priorities. And the House would probably have to vote on whatever the Senate passes on criminal justice reform, and ousted House Republicans may want to head home as soon as the funding bill is finished.

An notable debunking of "Three Myths From Critics of Criminal Justice Reform"

Ken Cuccinelli, the former Attorney General of Virginia, has this lengthy new commentary at The American Spectator headlined "Three Myths From Critics of Criminal Justice Reform: They need to be knocked down." I recommend the piece in full, and here are some excerpts:

Criminal justice reform — thanks, in part, to an overwhelming 360-59 vote in the House on the FIRST STEP Act — has quickly gained momentum, championed by conservatives as a down payment towards ensuring that prisoners re-entering society do so with the tools they need to succeed. President Trump, who campaigned on restoring law and order, has been a vocal supporter of prison reform since earlier this year, and has recently signaled support for various sentencing proposals, as well.

But not everyone agrees. Senator Tom Cotton, a long-time skeptic of criminal justice reform, penned an article in the Wall Street Journal this summer in which he generally praised rehabilitation efforts in federal prisons but took sentencing reform to task, calling it a “foolish approach” that would “endanger communities.”  Meanwhile, now-former Attorney General Jeff Sessions has been critical of reform efforts as well, claiming that changes in drug sentencing risks allowing violent crime to run amok.  Research and, most importantly, experience — particularly in southern red states — inform us that both arguments lie on shaky, outdated foundations.  As the Senate appended modest sentencing proposals to the FIRST STEP Act, it is worthwhile to separate facts from fiction.

Myth #1: Drug crimes are inherently violent.

Among the subtler tactics that critics of federal sentencing reform employ is a simple progression: begin with discussion of America’s real, ongoing problem with drugs; immediately shift the focus to violent crime, as if the two issues are self-evidently identical; and then argue that the reason for America’s historical reduction in violent crime can be traced to the adoption of lengthy mandatory sentences for drug dealing.

This may make for a neatly packaged argument, but reality spins a far more complicated tale. First, plain observation of drug overdoses and violent-crime trends simply doesn’t lend itself to correlation. Between 1999 and 2016, drug overdose death rates increased by over 200 percent, while violent crime rates fell by over 26 percent. These skyrocketing overdose deaths occurred despite an entire bevy of mandatory sentencing tools available to federal authorities that were ostensibly enacted to curb the worst consequences of drug crimes. Instead, such sentences have had no discernible effect on deaths caused by drugs....

Myth #2: Longer prison sentences equals less crime....

While a simple fact is that research has yet to pinpoint the factor(s) most responsible for our historic reduction in crime, the weight of evidence is clearly against those theories which emphasize imprisonment — particularly imprisonment meant to discourage drug use.

According to a comprehensive analysis of the dramatic rise of incarceration rates and its affects by the National Research Council, there is an outward “plausibility to the belief that putting many more convicted felons behind bars would reduce crime.” However, the authors explain that even a cursory examination of the data reveals the “complexity” of drawing meaningful correlations between crime and incarceration rates:

Violent crime rates have been declining steadily over the past two decades, which suggests a crime prevention effect of rising incarceration rates. For the first two decades of rising incarceration rates, however, there was no clear trend in the violent crime rate — it rose, then fell, and then rose again. While incapacitation effects may be effective when targeted towards “very-high rate or extremely dangerous offenders,” the authors conclude that the “incremental deterrent effect of increases in lengthy prison sentences is modest at best.”...

Criminal justice reform is engineered to incentivize participation in substance-abuse treatment and other recidivism-reduction programs, or otherwise to curb overly-punitive sentences which may extract their pound of flesh but also rapidly lose their effectiveness as one moves down the offense severity ladder.

To summarize, weightier factors besides simply “locking up” criminals must be at play to account for crime reduction. Ascribing that reduction solely to lengthy sentences is a theory that doesn’t play well with the data — especially given the fact that thirty states have recently experienced crime rate reductions while simultaneously reducing their prison populations.

Myth #3: No one goes to federal prison for “low-level, non-violent” drug offenses.

It is easy to produce a statistic that there are relatively few people incarcerated for federal drug possession offenses and then brush one’s hands together with satisfaction, believing that the “we overincarcerate” canard has just been dispelled. But while this immediate fact is indeed true, putting it into context makes this line of argument less salient.

First, consider the composition of all federal drug offenders. In 2017, about 48 percent of drug offenders sentenced at the federal level — a majority of whom are trafficking offenders — were in the lowest criminal-history category, having been previously sentenced for, at most, one low-level offense.  Roughly 60 percent were in the lowest two categories.  To be sure, drug trafficking, which includes street-level dealing, involve more serious offenses.  Even so, there are still tens of thousands of federal inmates being incarcerated — for historically longer periods of time — for lower-level drug offenses.  Recidivism is a real problem, but federal prison is a big stick, and shouldn’t be the front-line corrective for every offense. Too often it is, even for simple possessors (over 80 percent of whom receive a term of imprisonment)....

We must begin shifting the paradigm away from using mandatory sentences as the obvious tool against lawbreaking — as states such as Florida, South Carolina, and Texas have done. Crimes should be punished, but the law loses its legitimacy when it punishes disproportionately.  The FIRST STEP Act — along with modest sentencing reforms — will help regain the law’s moral force and make us safer at the same time.

Another round of news and notes from the front lines of the debate over the FIRST STEP Act

I am not sure I will need to do regular round-ups of stories and commentary surrounding the prospects of the FIRST STEP Act. But I am sure that there have been lots of notable developments and discussion since I did this last round-up of stories just a few days ago. So, from various sources and various authors (including Jared Kushner):

• "Trump-backed prison reform bill to overhaul controversial 'three strikes' rule"

• "A bipartisan criminal justice reform bill faces an uphill battle in Congress, even as Trump promises to sign it"

• "Bucking McConnell, Sens. Graham And Paul Call For Vote On Criminal Justice Bill"

• "Conservatives Aren't Giving Up on Criminal Justice Reform Just Yet"

• "Criminal Justice reform: We can improve expensive, ineffective system by lowering recidivism"

• "GOP senator accuses fellow Republican of spreading ‘fake news’ about criminal justice reform bill"

• "Prison reform is on the horizon -- Now the Senate must pass it"

• "Bipartisan criminal-justice reform could happen soon — if the 1990s wing of the GOP gets out of the way"

• "Authoritarian Sen. Tom Cotton wants more nonviolent criminals to needlessly rot in jail"

Four changes to the FIRST STEP Act sought by Senator Tom Cotton

As regular readers know, Senator Tom Cotton has been the leading vocal advocate against significant statutory federal criminal justice reform in recent years (see, e.g., Cotton commentary covered here in 2016 regarding the SRCA and more recently here and here on the FIRST STEP front.)  I have recently been informed by knowledgeable authority that Senator Cotton's office made the following offer to the bill's proponents concerning modifications to the House-passed version of the FIRST STEP Act that would lead Senator Cotton to be supportive or neutral rather than in opposition to the bill.  It is my understanding that these suggested modifications were generally rejected (though I think #1 may have been partially adopted in the latest version of the bill now being discussed in the Senate).

1.  Add an exclusion from the early-release credits for heroin and fentanyl traffickers.  The rationale is that there are already 57 exclusions based on the severity of the crime or the likelihood that the offender could engage in that conduct from home, and trafficking those particular drugs fits both those criteria.  It's consistent with what the President has called for.  These offenders would still be eligible for expanded good time credits, and for an expanded home confinement allowance under other sections of the bill (which TC doesn't like, but he's moderated his ask.)

2.  For changing the good-time credits from 47 days per year to 54 days per year: make that change prospective, instead of retroactive. It's not a huge difference in time — likely a few weeks or a couple months — but if the change is prospective, then we would avoid releasing ~4,000 offenders the day the bill is passed before they have gone through any of the anti-recidivism training.

3.  Add Senator Cotton, Graham, and Kennedy's bill to adjust the weight for applying section 841 punishments to fentanyl trafficking to reflect fentanyl's potency.  Right now, the weights are grossly skewed and do not treat fentanyl with the same level of harshness as heroin (proportionately), even though fentanyl is far more deadly.  The President endorsed this bill when we introduced it, or he at least spoke favorably about it.

4.  Add Senator Cotton & Hatch's fix to the Armed Career Criminal Act.  This fix would impact about 300 three-time + repeat offenders per year; it would revert back to the status quo when the ACCA passed unanimously, after being [supported] by Ron Wyden; and [a fix has] been called for by even Elena Kagan [recently] at SCOTUS.  It's also a huge priority for federal prosecutors because dealing with Johnson's fallout has been a massive time-suck to their ability to do their jobs.

He has other concerns with the bill, but recognizes that he can't get everything he wants.... To give you a sense of how modest #3 and #4 are, 267 traffickers were charged with fentanyl trafficking in FY 2017, and #4 would likely affect about 300 offenders per year.

That's 567 of the most dangerous and repeat offenders who could face harsher sentences under this compromise, while the vast majority of other federal offenders and the ~180,000 federal prisoners would be newly eligible for at least some relief.

We think this would be better policy, better politics, and could pass easily without forcing Republican Senators to choose between supporting the criminal justice bill or supporting law enforcement and their voters who do not favor a criminal justice bill that solely reduces punishments.

As regular readers know, I already think the FIRST STEP Act falls far short of needed reforms to the federal criminal justice system, and so I am not especially keen on additional carve outs.  But if additional carve outs are needed to get a bill to the desk of the President, I am so very eager to see a deal get done.  There has been significant talk of significant bipartisan support for reform now for the better part of a decade, and yet no consequential statutory reform has made its way through Congress.  it seems we are really close, but it has seemed that way before, too.  And if Prez Trump really wants to see this get done, and if he is really the great deal-maker he claims to be, there surely has to be a viable path forward to legislation completion (or so I want to believe). 

Senate Majority Leader McConnell tells Prez Trump that FIRST STEP Act will not get done this year

According to this new New York Times piece, "Senator Mitch McConnell told President Trump in a private meeting on Thursday that there is not likely to be enough time to bring a bipartisan criminal justice bill up for a vote this year, regardless of the support it has in the Senate and the White House, according to people familiar with the meeting." here is more:

Mr. McConnell, who as majority leader controls the Senate floor, delivered the news in a previously scheduled meeting at the White House convened to discuss the chamber’s legislative agenda for the remaining weeks of the term.

Lawmakers from both parties have been working furiously to build support for the compromise legislation that would begin to reverse some of the tough-on-crime federal policies of the 1980s and 1990s that incarcerated African-American offenders at much higher rates than white offenders.

Mr. Trump enthusiastically endorsed the proposal this week, and Speaker Paul D. Ryan, Republican of Wisconsin, pledged to move it across the finish line in the House “this term.” But Mr. McConnell’s conclusion could all but foreclose the possibility that Congress will vote on the bill this year.

Publicly, Mr. McConnell has avoided putting his thumb on the scale for or against the legislation. He told reporters on Wednesday that if proponents secured the support of at least 60 senators, he would be willing to push the bill forward, but cautioned that he would have to “see how it stacks up against our other priorities going into the end of our session.”

Congress must also come to an agreement on how to fund a handful of federal departments, including Homeland Security, and resolve an impasse over a major farm bill, among other smaller issues. Don Stewart, a spokesman for Mr. McConnell, reiterated those points in a statement on Friday, adding, “The support for, and length of time needed to move the new bill is not knowable at this moment.”

But Mr. McConnell told the president that the bill would most likely eat up about 10 days on the Senate floor — time that he did not have between now and the scheduled end of the legislative session on Dec. 14, according to the people familiar with the remarks, who were granted anonymity to describe the private meeting. They were not connected to Mr. McConnell. If the bill had enough support, Mr. McConnell said, he would be willing to bring it up next year, after the new Congress is seated.

Supporters of the legislation, which includes anti-recidivism programs, and the expansion of early release credits and sentencing changes, worry that Mr. McConnell is being a less-than-neutral arbiter. They believe that if consideration slips into January, when Democrats who favor more expansive sentencing changes take control of the House, the current compromise could collapse....

At the Senate Republicans’ weekly caucus luncheon at the Capitol, Mr. McConnell acknowledged that the changes had influential supporters who had worked hard on the issue, but also invited two of its chief critics, Senators Tom Cotton of Arkansas and John Kennedy of Louisiana, to deliver remarks, two Republican congressional officials said.

Mr. Cotton, who has been perhaps the loudest critic of the bill’s sentencing changes in the Senate, urged colleagues to slow down the process, saying that the bill’s impact and implications were too expensive to push through without hearings, according to another official familiar with his remarks. He stressed opposition by some law enforcement groups and warned that a draft version of the bill he had seen would lead to the immediate release of thousands of felons onto the streets.

Senator Mike Lee, a Utah Republican who helped write the legislation, pushed back against Mr. Cotton’s characterization. So did Senator Charles E. Grassley, the Iowa Republican who is chairman of the Judiciary Committee and led the compromise effort. Mr. Grassley said that Mr. Cotton’s remarks made him sound like “some sort of pinko commie.”...

The delay in bringing up the legislation described to Mr. Trump is not the first time that proponents of changes in the sentencing and prison systems have bumped up against Mr. McConnell. A similar coalition of lawmakers and outside groups made a higher-profile and more expansive attempt to overhaul the criminal justice system during the final years of the Obama administration, and had support from Mr. Ryan and other Republicans. But Mr. McConnell did not allow a vote on the bill before the 2016 elections, worried about sowing divisions among Republicans.

This is quite disappointing, but not surprising, and I am now inclined to fear that no significant form of federal criminal justice reform will be completed as long as Senator McConnell is the Senate's majority leader.

News and notes from the front lines of the debate over the FIRST STEP Act

The decision by President Donald Trump to support the FIRST STEP Act, discussed here and here, was a critical necessary development for the law to have a chance to passage.  But it was not alone sufficient to ensure the bill even gets a vote, especially as there is talk of Senate Majority Leader Mitch McConnell still being less than eager to advance the bill to the Senate floor.  Various political players and possible ups-and-downs surrounding the bill are well covered in these new articles from the New York Times, Politico and the Washington Post:

• "They Battled Over the Supreme Court, but Stuck Together on Criminal Justice Reform"

• "Booker throws his weight behind Trump-backed criminal justice deal"

• "Cotton, Trump at odds on criminal justice overhaul"

• "Whitaker told Trump he has concerns over sentencing reform bill"

I want so very, very badly to be optimistic about the prospects for the FIRST STEP Act, in any form, to become law very, very soon.  But the pessimistic bet has been a winning one on the federal statutory criminal justice reform front for the last eight years, as politics and gridlock have trumped effective policy advancement.  One would hope that, in a properly functioning democracy, a bill with the support of the President and probably close to 90% of all members of Congress could and would become law.  But I am fearful that these reality may still not be enough to get the FIRST STEP Act into law.  Time will tell (and likely in the next few weeks).

UPDATE:  Here are some more discouraging headlines and stories for those who may have become unduly optimistic after Prez Trump's endorsement:

• "Prison Reform Bill ‘First Step Act’ Faces Uphill Battle to Passage Before Year’s End"

• "Trump’s backing may not be enough on criminal justice reform"

Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act

Senator Tom Cotton, who has been the main and most vocal opponents of federal criminal justice reform, has this notable new USA Today commentary.  I was expecting the piece to argue against the FIRST STEP Act that has been endorse by Prez Trump and has wide bipartisan support.  But, as these excerpts highlight, Senator Cotton in this piece primarily articulates what further statutory reforms are needed to fix a broken federal criminal justice system:

Here’s what genuine criminal-justice reform would do: reduce arbitrary government power over lives and protect us from the drug epidemic ravaging our community. Congress can take three simple steps to achieve these goals.

First, we need to clean out the federal criminal code. Today, no one even knows for sure how many federal crimes are on the books. One estimate found between 10,000 and 300,000 regulations that can be enforced criminally, in addition to the more than 5,000 federal criminal laws.

Many of those federal crimes would be funny, if they weren’t so dangerous to our liberty. For example, there’s a federal law against selling “Turkey Ham” as “Ham Turkey.” Think such laws are never enforced? Think again. Gibson Guitars was prosecuted under a century-old law at a cost of millions of dollars to the taxpayers and the company because it allegedly transported wood in a way that may have violated laws of India. We should scrub the federal criminal code and remove such outdated and arbitrary laws. And we should create a transparent database of this shorter, more concise criminal code.

Second, many federal crimes do not require mens rea, or a “guilty mind.” Mens rea, a common element of most state crimes, means that the offender must have a certain state of mental culpability to be charged with the crime. Coupled with the vast and confusing criminal code, the lack of mens rea leaves Americans at risk of arbitrary prosecution for trivial conduct. Senator Orrin Hatch has been a champion for mens rea reform to ensure that, at a minimum, a defendant should have known his conduct was wrong before facing criminal charges. Congress should incorporate these concepts into criminal-justice legislation.

Third, the federal criminal code hasn’t kept up with the opioid crisis, allowing the epidemic to spread across the country.  For example, current law doesn’t reflect the potency of fentanyl, a highly lethal opioid responsible for killing tens of thousands of Americans each year. A trafficker can carry enough fentanyl to kill 5,000 Americans before the lowest mandatory minimum sentence applies, and these traffickers receive a mere five-year sentence for distributing enough poison to kill more Americans than died on 9/11.

Unfortunately, the legislation moving through Congress includes no mens rea reform, no reduction in the criminal code, and no crackdown on deadly drug traffickers. Astonishingly, the bill goes soft on some of the worst crimes — trafficking heroin and fentanyl — by allowing most traffickers to spend up to a third of their sentence at home, where many of them will no doubt return to dealing drugs.

At this point, it’s best for Congress to pause on criminal-justice legislation and take the time to reform our criminal code, include mens rea as an element of most crimes, and strengthen the sentences for dangerous drug crimes. Congress can also focus on how to rehabilitate felons to help them get off on the right foot after serving their sentence. What Congress ought not do is rush through flawed legislation in a lame-duck session.

I agree with Senator Cotton that we need to reduce the number of federal crimes, include strict mens rea protections in all federal criminal provisions, and better respond to the opioid crisis (although I think history has shown that increased federal mandatory minimums are an ineffective way to respond to drug problems). For that reason, I sincerely hope Senator Cotton is busy drafting bills to address these matters that Congress can and should consider swiftly after the passage of the FIRST STEP Act.  But, as the name suggests, the FIRST STEP Act does not claim to fix all the myriad problems of federal criminal law, and so Congress can and should address Senator Cotton's (second step) concerns right after they take a critical first step.

Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage

This new CNN article, headlined "President Trump to announce support for criminal justice overhaul proposal," reports on encouraging news regarding efforts to get major federal criminal justice reform enacted in coming weeks. Here are the details:

President Donald Trump is expected to throw his support behind bipartisan criminal justice legislation during an event at the White House on Wednesday, two sources close to the process said.

Trump is scheduled to announce on Wednesday that he is supporting the latest iteration of the First Step Act, a bill that his son-in-law and senior adviser, Jared Kushner, has been working to craft and build support for alongside a bipartisan group of senators, the sources said.  The President will be joined by supporters of the legislation during the White House event, the sources said.

Supporters of the measure expect that Trump's explicit backing will help propel the prison and sentencing overhaul bill through Congress.  The President has wavered on whether to throw his support behind the bill in recent months, but the sources said he was swayed to back the bill on Tuesday after meeting with Kushner.

Trump's support came after several law enforcement associations announced their backing for the legislation.  The National District Attorneys Association, which represents 2,500 district attorneys and 40,000 assistant district attorneys, became the latest law enforcement organization to support the bill, according to a letter the group's president addressed to Trump....

The prosecutors' association's support for the legislation came on the heels of backing from several other law enforcement organizations, including the Fraternal Order of Police, International Association of Chiefs of Police, Law Enforcement Leaders to Reduce Crime and Incarceration and the National Organization of Black Law Enforcement Executives, which also penned a letter of support to Trump.

The Major Cities Chiefs Association and Major County Sheriffs of America also withdrew their opposition to the legislation, writing in a letter to Kushner dated Tuesday that they "endorse the objectives of the First Step Act" and the legislation "strengthens how Federal prisoners may be integrated into the community and set on a path to live positive and productive lives."  Less than two weeks ago, the groups wrote to Kushner to say they could not back the bill.

Opposition from since-ousted Attorney General Jeff Sessions and Republican Sen. Tom Cotton of Arkansas, in particular, served as key stumbling blocks to advancing the legislation, with both touting opposition within law enforcement circles -- an argument that is quickly fading as groups back the proposal.  Sources close to the process said the support from law enforcement associations is key to advancing the measure and securing the President's full-throated support.

Proponents of the bill made several changes to it to win backing from law enforcement groups, including stiffer sentencing guidelines for fentanyl-related offenses and a compromise provision to modestly expand the definition of a serious violent crime.

Now the question is whether enough Democrats will rally to support the compromise package or hold out for a more ambitious overhaul of the nation's sentencing laws. Sen. Cory Booker of New Jersey, who had announced his opposition to a previous version of the bill because he felt it did not go far enough, said Tuesday that he is still looking to get more changes to the bill.

Though I am not going to count any sentencing reform chickens until they are hatched and have been signed into law, I am inclined to start predicting that we are on the verge of a remarkable federal criminal justice reform achievement that will be the most consequential statutory reform in nearly 35 years.  (I am also inclined to recall pieces from late 2016, like the one blogged here, that astutely suggested federal criminal justice reform might still be a real possibility in the Trump era.)  I am not quite yet ready to start patting a whole lot of folks on the back, but I am getting close to wanting to start celebrating the culmination of five years of very hard work by lots of folks inside and outside the Beltway.  Fingers crossed.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Prez Trump pledges to sign prison reform that will be "best in the world"
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• An interesting political pitch for the FIRST STEP Act 
• Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reiterates support for prison reform and says AG Jeff Sessions "gets overruled by me"
• Could the FIRST STEP Act, with sentencing reforms added, get through Congress in just a matter of weeks?
• Latest push for passage of FIRST STEP Act with sentencing reforms now afoot

UPDATE: A few other recent press reports reinforce my sense and concern that nothing here is a done deal yet:

From the Washington Post, "Trump receptive to compromise criminal justice overhaul backed by Kushner"

From The Hill, "Criminal justice reform faces a make-or-break moment"

Latest push for passage of FIRST STEP Act with sentencing reforms now afoot

The New York Times and CNN are reporting this evening on the latest chapter in efforts to enact significant federal criminal justice reforms.  This lengthy New York Times piece is headlined "Bipartisan Sentencing Overhaul Moves Forward, but Rests on Trump," and here are excerpts:

A bipartisan group of senators has reached a tentative deal on the most substantial rewrite of the nation’s sentencing and prison laws in a generation, giving judges more latitude to sidestep mandatory minimum sentences and easing drug sentences that have incarcerated African-Americans at much higher rates than white offenders.  The lawmakers believe they can get the measure to President Trump during the final weeks of the year, if the president embraces it.

The compromise would eliminate the so-called stacking regulation that makes it a federal crime to possess a firearm while committing another crime, like a drug offense; expand the “drug safety valve” allowing judges to sidestep mandatory minimums for nonviolent drug offenders; and shorten mandatory minimum sentences for nonviolent drug offenders, according to draft text of the bill obtained by The New York Times.

It would also retroactively extend a reduction in the sentencing disparity between crack and powder cocaine signed into law in 2010, potentially affecting thousands of drug offenders serving lengthy sentences....

The support of the famously mercurial Mr. Trump is by no means guaranteed.  But if they can secure an endorsement, senators say they can move quickly on the kind of bipartisan achievement that has eluded Mr. Trump — and bedeviled senators and outside advocates of the overhaul for years....

If Mr. Trump supports the package, senators will still be up against a rapidly closing legislative window — Congress is set to break in mid-December — and certain opposition from conservative Republicans in both the Senate and the House. Democrats could also throw up roadblocks if liberals think they could get a better deal once Democrats take control of the House....

Lawmakers may have also gotten a boost with the departure of Jeff Sessions as attorney general last week. Mr. Sessions had used his post to order federal prosecutors to pursue the toughest possible charges and sentences for crime suspects, reversing Obama-era efforts to ease such penalties for some nonviolent drug offenders.  And he vigorously opposed legislative compromise, going head-to-head not only with Mr. Grassley but also with Mr. Kushner.

Mr. Kushner has had several meetings with Matthew G. Whitaker, the new acting attorney general, who has signaled that he is open to the changes.  The effort could be revived in the next Congress if he and allies are unable to succeed in the short term. Mr. Kushner has also traveled with Vice President Mike Pence in recent days to brief the vice president on the latest developments, the administration official said.

This CNN report is headlined "Senators, Kushner prepare to launch sentencing overhaul push in lame duck session," and starts and ends this way:

White House officials and a bipartisan group of senators are mounting an ambitious effort to push criminal justice legislation through Congress by the end of the year, four sources close to the process told CNN.

But first, Jared Kushner, President Donald Trump's son-in-law and senior adviser, who has been leading the White House's prison and sentencing overhaul push, must ensure the President is on board with the latest version of the measure.  Kushner is slated to meet with Trump on Tuesday to press him to back the legislation, a senior administration official said....

One person close to the matter said that while the prospects for the measure several weeks ago seemed glum, its odds of passing now are above 50%.  The White House and Republican leaders on Capitol Hill agreed in August to postpone the legislation until after the midterm elections.

One source close to the process said that after the midterms -- which will bring shifting partisan dynamics to Congress in January -- White House officials working on the effort recognized they needed to move forward now.  "It's the lame duck or never strategy," one source close to the process said.

Fraternal Order of Police now supporting FIRST STEP Act with some sentencing reform provisions

Roughly nine months ago, the President of the Fraternal Order of Police (FOP) wrote this three-page letter to the President of the United States expressing opposition to the Sentencing Reform and Corrections Act.  But yesterday, in what seems to me to be a important and encouraging development, the FOP released this one-page statement headed "FOP Partners with President Trump on Criminal Justice Reform."

The new FOP release should be read in full, as it indicates support for adding modest sentencing reforms to the FIRST STEP Act bill that was passed by the House earlier this year.  In addition, the sub-heading of the press release says "Revised and amended First Step Act to be introduced next week." This strongly suggests that "Beltway insiders" are prepared and planning to try to get big federal statutory sentencing reform done in a matter of weeks.

Brennan Center wasting no time advocating for sentencing reforms after election and ouster of AG Jeff Sessions

The folks over at the Brennan Center already have two short pieces up making the case for Congress to move forward with federal sentencing reforms and for the Senate Judiciary Committee to seek to ensure the next Attorney General cares about criminal justice reform.  Here are links to the pieces with some excerpts:

"Sentencing Reform Should Be a Top Post-Election Priority for Congress" 

As Congress prepares to enter a lame-duck session following yesterday’s midterm elections, it has a rare opportunity to pass bipartisan legislation that will help reform our criminal justice system and end mass incarceration. And sentencing reform must be included in any meaningful effort to reduce the number of people entering the federal prison system....

Criminal justice reform is a rare point of bipartisan consensus in today’s polarized climate. In fact, 71 percent of Americans surveyed – including a majority of Trump voters – agree that it’s important to reduce the country’s prison population. And there’s substantial support from key members of Congress – both Republican and Democrat – for comprehensive reform. In fact, Senate Majority Leader Mitch McConnell has signaled he would call a vote after the midterm election if more than 60 senators support the bill.

With that momentum, one of Congress’s first agenda items for this year’s “lame-duck” session should be to pass legislation that will help reduce mass incarceration. And any successful effort will start with sentencing reform.

"With Sessions Gone, the GOP Can Show It Cares About Criminal Justice Reform"

Sen. Chuck Grassley (R-Iowa) is a reliable and trusted ally for criminal justice reform advocates, both right and left.  So when President Trump nominated Jeff Sessions to lead the Justice Department, it came as something of a surprise that Grassley, as chair of the Senate Judiciary Committee, cleared the deck for him, ensuring a quick and easy Senate confirmation.

If Grassley later came to regret that — and there’s reason to believe he did — today offers a chance to correct it.  Against the backdrop of our looming, slow-burning constitutional crisis, Grassley can and should make support for criminal justice reform a litmus test for the next attorney general.  He has that power.  Now is the time to use it....

[I]f Trump is serious about criminal justice reform, he should simply refuse to nominate someone who doesn’t support sentencing reform.  And whether or not he follows through, Grassley should refuse to confirm anyone who will oppose or sabotage similar reform efforts.

Realistically, though, the best chance for guaranteeing a supportive attorney general rests with Grassley and other supporters of criminal justice reform on the Judiciary Committee, like Mike Lee (R-Utah), Dick Durbin (D-Ill.), and even, sometimes, Lindsey Graham (R-S.C.).  By demanding an attorney general who will back their words with action — and faithfully implement rather than sabotage any reform package they pass — Grassley and his committee could effect a major reset, giving the country a chance to move on from at least one aspect of the last two years.

Could the FIRST STEP Act, with sentencing reforms added, get through Congress in just a matter of weeks?

The question in the title of this post is prompted by this new Washington Examiner article headlined "Prison reform bill to include sentencing, setting up post-election fight." Here are excerpts:

Criminal justice reform advocates say sentencing reform provisions will be included in legislation unveiled shortly after midterm elections Tuesday, triggering an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill.

The First Step Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms, at the behest of Republican opponents.  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 tell 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, allowing a firearm sentencing enhancement to run concurrently with the underlying penalty, and allowing retroactive sentencing for crack cocaine cases judged under tougher historical laws.

“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,” Holden said. Holden said it’s his understanding that the sentencing language will also expand a “safety valve” option for judges to use discretion.

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. The second person said the provision is being finalized, but there will be “a clarification saying this does not change existing statutes relating to undocumented individuals in the federal system.”

A spokeswoman for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, an influential advocate of the reforms, did not respond to requests for comment.

Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill.  Last month, Trump said in a Fox News interview that Attorney General Jeff Sessions’ longstanding opposition to reforms did not represent him. "If he doesn't [support reform], then he gets overruled by me.  Because I make the decision, he doesn't," Trump said Oct. 11....

It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell, R-Ky., has promised a whip count after the election, and advocates believe it will make it clear with overwhelming support....

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.  Povah hopes that Congress passes the legislation, and that Trump will supplement the reform with generous use of his constitutional pardon powers. Last month, Trump said "a lot of people" are jailed for year 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.  "He sent a lot of hope in that humans may be in line, maybe for the first time included in the Thanksgiving pardon."...

Trump has spoken repeatedly about his desire to release inmates from prison after commuting the life sentence of drug crime convict Alice Johnson in June at the request of celebrity Kim Kardashian West.  At a second Trump-Kardashian meeting, the TV star urged freedom for Chris Young, who was arrested at 22 and sentenced to life in prison for drug dealing. She brought with her former federal judge Kevin Sharp, who had imposed the sentence due to rigid federal laws he argued made little sense.  On his own, Trump mentioned another inmate, Matthew Charles, who returned to prison this year after a court found his drug sentence was reduced in error.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Prez Trump pledges to sign prison reform that will be "best in the world"
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• An interesting political pitch for the FIRST STEP Act 
• Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reiterates support for prison reform and says AG Jeff Sessions "gets overruled by me"

UPDATE: I just saw that Law360 also has a new article on this front under the headline "Hard Decisions Loom In Lame-Duck Push For Sentencing Reform."  This lengthy piece starts with this sentence: "Over the next two months, Republican lawmakers have a chance to pass the most comprehensive criminal justice reforms in a generation, a combination of prison and sentencing reforms that stand to improve the lives of more than 180,000 federal inmates."

Two notable commentaries in support of FIRST STEP Act from inside the Beltway

The Washington Examiner and The Washington Times are both right-leaning papers, which only adds to the import of these two recent commentaries in these publications:

"Our cruel and inhumane prison system is so close to reform" by Mark Vargas.  An excerpt:

Thanks to former President Bill Clinton, the 1994 crime bill created an America that was less compassionate, less forgiving, at times inhumane, and sent many nonviolent, first-time offenders away to prison for a very long time.

At the time, supporters of the Clinton crime bill argued that such measures would reduce crimes and keep our streets and neighborhoods safer. But in the end, the legislation only accelerated mass incarceration, stripped inmates of their dignity, and created the false narrative that everyone in prison was evil and a danger to society. It is why the NAACP in 1993 referred to the legislation as a “crime against the American people.”

But thanks to the leadership of President Trump, the discussion about prison and sentencing reform is back on the table. In a recent poll conducted by the University of Maryland, a majority of the country support the idea of criminal justice reform as well.

For Attorney General Jeff Sessions and others to make the argument that prison reform will make our country less safe exposes their ignorance and how out of touch they are. As creatures of the swamp, they care more about maintaining power than making a difference. Sessions' comments show just how political the Justice Department has become under his leadership.

"Justice demands passage of First Step bill to rehabilitate lives" by Rebecca Hagelin.  An excerpt:

I’ll never forget the heart-wrenching scene from my visit to the women’s prison. I sat in silence. For the first time, I pondered the unintended consequences of lengthy mandatory prison sentences for drug offenses. Don’t get me wrong: I’m a conservative, and I’m “tough on crime.” I just realize that locking up moms and dads for years for nonviolent drug offenses has an unending ripple effect, doing more damage to society than good.

Under current federal laws, many nonviolent drug offenses have mandatory sentences of two decades. The full scope of the consequences of such lengthy sentences unfolds every day in families across the country. The tiny girl who threw her arms around her mommy is an adult by now, and I often wonder if her mom has returned home yet.

Sadly — incredibly — our federal prison system treats such inmates as the forgotten men and women. In so doing, their children have become forgotten too. With little or no vocational training, drug rehabilitation programs or opportunities to receive education, these inmates eventually return to society estranged from their families and devoid of hope.

The result? Within just three years 40 percent will commit another crime, many falling victim to their untreated addiction, and end up back behind bars. It’s a vicious cycle that wreaks personal and societal havoc in neighborhoods and families across the country. We must face the fact that our federal prison system is failing our citizens, and come to grips with the reality that the opioid epidemic will not be solved by maintaining the status quo.

Thank God, President Trump is committed to effective prison reform and combatting the drug crisis. Through his leadership and the hard work of Jared Kushner, the prison reform First Step Act passed the House of Representatives in May with overwhelming bipartisan support. This much-needed legislation now contains modest, commonsense sentencing reform initiatives added by crime reduction advocates on the Senate Judiciary Committee.

New poll indicates strong public support for various provisions of FIRST STEP ACT

I noted in this prior post a poll commissioned by a prosecutor group showing significant opposition to proposals to reduce sentences for serious drug traffickers.  But, as detailed in this Reason piece headlined "Poll Shows Wide Support For Criminal Justice Reform Bill In Congress: Prosecutor groups and criminal justice reform advocates are putting out dueling polls on a major bill in Congress," this week brings a new poll with very different results:

A new survey shows wide support among registered voters for provisions in a major criminal justice bill in Congress, in sharp contrast to a survey promoted by a group of federal prosecutors released last week showing opposition to the bill.  According to a national survey of 1,234 registered voters conducted online between Oct. 11-12, 82 percent of respondents approved of the specific provisions in the FIRST STEP Act, a prison reform bill that passed the House by a wide bipartisan margin this May.

Additionally, 82 percent supported allowing non-violent offenders to finish their sentences in home confinement in order to ease their integration back into society, and 76 percent of respondents agreed with the FIRST STEP Act's "good behavior" provision that would expand the number of days non-violent offenders can have removed from their sentence.  The survey was conducted by In Pursuit Of, LLC, a communications firm connected with the Koch network of conservative advocacy groups, for the organization Freedom Partners....

The Foundation for Safeguarding Justice, a group aligned with the National Association of Assistant U.S. Attorneys (NAAUSA), which represents federal prosecutors, released its own poll last week showing what it says is widespread opposition to reducing federal penalties for drug traffickers....

"We're looking at what this group and what they're putting out and just shaking our heads," says Mark Holden, the chairman of Freedom Partners and general counsel of Koch Industries. "We're not sure how they're coming up with their numbers.  The home confinement stuff they're polling on, our polling shows a completely different outcome.  There's immense support for all the provisions in the bill, and anyone who says otherwise is obviously motivated by an agenda."

The NAAUSA has consistently opposed efforts to reduce federal mandatory minimum sentencing laws, expand judges' discretion, or in any way reduce the leverage federal prosecutors enjoy over defendants — a result of which is that 97 percent of federal prosecutions end in plea deals.

Of course, the language of the surveys might be the culprit here. The same respondent might, on different days and with no internal contradiction, say when asked that fentanyl dealers deserve harsher sentences and that nonviolent offenders should have better preparation and more opportunities to reintegrate back into society.

Other supporters of the FIRST STEP Act also say they've seen consistent public support for the measures in the bill.  "Virtually every poll we've seen shows support for prison reform and sentencing reform," says Jason Pye, vice president of legislative affairs at FreedomWorks, a grassroots conservative advocacy group. "After all, people are seeing the successes of state level efforts."

Some prosecutors and some conservatives push back on momentum for federal criminal justice reforms

As highlighted via recent posts here and here, momentum seems to be picking up again for the passage of a version of the federal FIRST STEP Act that would reform federal prison practices and tweak federal sentencing rules.  Perhaps prompted by these realities, a new poll and new letter has emerged to push back on reform efforts. 

The poll comes from ORC International and was commissioned by the Foundation for Safeguarding Justice, a group which represents the National Association of Assistant U.S. Attorneys.  This press release reports on the heart of the poll:

A new survey of American adults, commissioned by the Foundation for Safeguarding Justice (FSJ), confirms that Americans overwhelmingly oppose sentencing and prison and “reforms” that would reduce federal criminal penalties for drug traffickers and allow the early release of prisoners to “home confinement.” Three out of four Americans surveyed (74 percent) said that they oppose proposals that reduce penalties for criminals involved in the trafficking of heroin, fentanyl, and similar drugs....

Public opposition to criminal leniency is deep across the American population and holds true regardless of race, gender, or party affiliation, the FSJ survey results (detailed below) show. The survey results represent an objective barometer of public opposition to criminal leniency for drug traffickers, in sharp contrast to the skewed results of a recent Kentucky poll touted by criminal leniency advocates....

The survey, conducted from September 13-16, 2018, interviewed 1,004 American adults, and was administered by ORC International, a nationwide polling firm. Full study results and methodology are available here.

Employing similar rhetoric and expressing similar concerns(and citing this poll), an assortment of conservative leaders have sent this letter to Prez Trump urging him to oppose FIRST STEP Act. Here is part of the letter:

Now, a leniency-industrial complex is urging you to support a bill that would reduce the sentences for federal drug traffickers, and allow large numbers of those same traffickers to “serve” their sentences outside prison in “home confinement.”

Mr. President, don’t do it. Trust your instincts. America seems, to many of us, to be plagued with different applications of justice. The public is losing faith in the rule of law and reforms are needed. But, here [we present] just four of many reasons why you should oppose this emerging new bill....

But this bill is not prison reform — it’s prison release. It’s not sentencing reform — it’s sentencing reductions. Contrary to what jailbreak supporters tell you, these policies are far from popular.  Proponents inadvertently acknowledge how unpopular their proposals are by disguising what they’re doing with buzzwords and abstract concepts.

Given how momentum for federal reform has built, slowly but surely, over much of 2018, I would be surprised if this new poll and letter significantly changes how important political players' are dancing with the FIRST STEP Act. But they both show that seemingly ever-growing consensus in support of federal reforms does not include everyone, and they also help highlight why even relatively modest reforms like the FIRST STEP Act can be a challenging political lift.

Prez Trump reiterates support for prison reform and says AG Jeff Sessions "gets overruled by me"

As detailed in this Hill article, headlined "Trump: I'll overrule Sessions on criminal justice reform," Prez Donald Trump stated yet again today his support for significant federal prison and sentencing reform provisions working through Congress. Here are the details:

President Trump on Thursday said he would overrule Attorney General Jeff Sessions if he tries to stymie efforts to overhaul the criminal justice system.

“If he doesn't, then he gets overruled by me,” Trump said when asked during an interview with “Fox & Friends” about Sessions's opposition to the effort.

“There has to be a reform because it's very unfair right now,” the president added. “It's very unfair to African-Americans. It's very unfair to everybody. And it's also very costly.”

Sessions, a law-and-order candidate who became estranged from Trump over the Russia probe, played a role in successfully urging the president to put off action on criminal justice reform before the midterm elections.

Trump's comments come hours before he's scheduled to have lunch with the rapper Kanye West and former NFL star Jim Brown, who are expected to urge Trump to move forward with sentencing and prison reforms. The president heaped praise on West and Brown, saying the support from the rapper caused his approval among African-Americans to shoot up "like 25 percent" because "he's got a big following in the African-American community."

Some of many prior related posts:

• Prez Trump pledges to sign prison reform that will be "best in the world"
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
• An interesting political pitch for the FIRST STEP Act 
• White House emails "startling facts about America’s prison system"
• Could a version of the FIRST STEP Act with sentencing reforms pass the Senate in a matter of weeks?
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Will Trump White House soon "deploy its assets ... to stump" for federal criminal justice reform? It may be critical.
• Prez Trump reportedly has decided he will not support federal criminal justice bill before mid-term election
• Can Kanye West help jump-start now dormant clemency and criminal justice reform activity in White House? 

Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward

This short piece from The Hill, headlined "McConnell looking at criminal justice reform after midterms," provides an encouraging update on the prospects for federal criminal justice reform after next month's  election:

Senate Majority Leader Mitch McConnell (R-Ky.) says he will move a criminal justice reform compromise after the Nov. 6 election if it has 60 votes.

The Senate GOP conference is divided on the package, which merged a House-passed prison-reform bill with bipartisan sentencing reform provisions crafted by the Senate....

“Criminal justice has been much discussed,” McConnell told reporters Wednesday. “What we’ll do after the election is take a whip count and if there are more than 60 senators who want to move forward on that bill, we’ll find time to address it.”

It’s a significant commitment from McConnell who has resisted bringing criminal justice reform legislation up for a vote because it divides his conference.

I blogged here a prior Hill article from a couple of months ago during Senate negotiations over the FIRST STEP Act which indicated that the White House back then had secured "30 to 32 ... 'yes' votes among Republican senators [and hoped] that the number of GOP supporters could eventually grow as many as 40 to 46."  That article led me to speculate in August that a version of the FIRST STEP Act could perhaps garner up to 90 votes in the Senate, and I do not think this head-counting is likely to change all that dramatically after the election (though one never knows).  Even if "only" 30 GOP Senators favor moving forward on the FIRST STEP Act, that will be more than enough for Senator McConnell to move ahead unless a whole lot of Democratic Senators decide they want to hold out for a more ambitious bill (which I think is unlikely). 

In other words, I am starting to think that the prospect of the FIRST STEP Act becoming law before the end of the year might be pretty darn good.  I am never inclined to count on Congress on get anything done, but on this front it does seem we are getting closer and closer.

Some of many prior recent related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• Prez Trump pledges to sign prison reform that will be "best in the world"
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
• An interesting political pitch for the FIRST STEP Act 
• Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Will Trump White House soon "deploy its assets ... to stump" for federal criminal justice reform? It may be critical.
• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if even brought up for a vote?

Kelley Ashby Paul, Senator Rand Paul's spouse, makes the Kentucky case for criminal justice reform

Long-time readers know I have been singing the praises of Senator Rand Paul since he began making the case for consequential federal sentencing reforms more than half a decade ago.  Now I am pleased to see that Senator Paul's spouse, Kelley Ashby Paul, is adding her voice to the call for reform through this new op-ed headlined "Kelley Paul: We must focus on recovery, not incarceration."  Here are excerpts:

As a community, as a state and as a nation, we must speak out in favor of expanded rehabilitation opportunities for those struggling with addiction. Because of the Hope Center’s expansion, even more women ... will have the tools to overcome addiction and begin a new path forward in life.

It is recovery, not incarceration, which allows people to become productive members of society — citizens with jobs and families who can contribute and make our communities better places to work, grow and live. It is recovery, not incarceration, which brings hope and peace into the lives of thousands of Americans and their families struggling with addiction.

The Hope Center expansion comes on the heels of the enactment of the first ever Dignity Bill in the nation, right here in Kentucky.  Because of Sen. Julie Raque Adams’ sponsorship of the bill, and the tenacity of women leaders on both sides of the aisle, pregnant women accused of minor, non-violent crimes now have the option to enter into a recovery program. They can get the treatment they need, instead of languishing behind bars because they are unable to make bail.

Criminal-justice reform is something my husband, U.S. Sen. Rand Paul, has been fighting for since he arrived in Washington. He is a lead co-sponsor of bipartisan bail reform legislation with Sen. Kamala Harris, and with the recent introduction of the First Step Act, a major bipartisan prison reform bill that includes expanded treatment opportunities, I am hopeful we can continue our efforts to fix a broken system.  I am proud to assure the people of this commonwealth that my family will do everything we can to ensure that the First Step Act will get a vote.

Criminal-justice reform goes hand in hand with reducing homelessness, alcoholism and drug addiction.  We have learned that locking people up who are in need of treatment is not the answer.

The U.S. is the most heavily incarcerated country in the developed world, and many of those incarcerated have suffered a trauma, such as sexual or physical abuse, which led to addiction, and ultimately led them to our justice system. Instead of treating these individuals, we toss them behind bars, where their problems only get worse.  This cycle of failure results in staggering financial costs to the taxpayer, but more importantly a devastating cost to families and children.

I suspect that most folks in the Commonwealth of Kentucky are in support of the kinds of criminal justice reforms here promoted by Kelley Paul, and the state's Governor has been an outspoken reform advocate. But when it comes to getting votes on significant federal criminal justice bills, the most important person from Kentucky is Senate Majority Leader Mitchell McConnell Jr. He decides whether any bill gets a full Senate vote and he has not allowed a floor vote on any significant criminal justice reform bill during his leadership. I hope that changes soon, and maybe Kelley Paul can have more influence on this front than seemingly her spouse has so far.

A notable (and curious?) call for criminal justice reform that serves as another sign of new political times

The passing of John McCain this weekend led me to review some of my long ago postings in the blog topic archive labelled Campaign 2008 and sentencing issues.  The main theme I kept returning to is how little discussion there was of criminal justice issues during that election cycle.  Here are links to a few of the 2008 posts on that theme: 

• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• Boston Globe noticing crime dogs not barking in 2008 campaign
• Another reminder of the crime dog that did not bark in the 2008 election season

Other posts in that archive that might still be considered notable a decade later include Rudy Giuliani doing robocalls accusing Senator Obama of being soft on crime and Is Senator Clinton to the right of Justice Scalia on sentencing issues?.  (This last post has me thinking again about the fact that Hillary Clinton's criminal justice history makes her seem much more like a member of the "tough and tougher" crowd than many (most?) members of the current GOP.   Hillary Clinton in 2007 (in)famously opposed making retroactive the first small crack guideline amendments passed by the US Sentencing Commission, most of the GOP seemingly now supports making the 2010 Fair Sentencing Act fully retroactive.)

Of course, circa 2018, there is a heck of a lot more talk about criminal justice reform from an array of political candidates in all parties.  And I noticed this morning this interesting (and somewhat curious) commentary by Beto O'Rourke, a Texas congressman taking on Ted Cruz for election to the US Senate, under the headline "O’Rourke: Texas should lead the way on true criminal justice reform." I recommend the piece in full, and here are excerpts:

On Wednesday, I toured the Harris County Jail with Sheriff Ed Gonzalez and met men from this community who have made a mistake from which they may or may not recover. Men who don’t have the resources to post bail.  Some of whom got arrested on purpose to get the treatment and care they need, care they won’t be able to afford or access on the outside.  In fact, the Harris County Jail is the largest provider of mental health services in our state, a state that is the least insured in the nation. Of the 10,000 inmates in the Harris County Jail, one quarter of them are being prescribed at least one psychotropic medication.  The jail has more people receiving psychiatric treatment every day than the nine state mental hospitals in Texas combined.

But beyond those who need health care, there are many more languishing behind bars for nonviolent crimes — sixty percent yet to even be convicted. Unable to work, to pay taxes, to raise their kids, to contribute to our society, to realize their full potential.  And it’s happening at the average cost of $87 per person, per day, and more than $400 per person, per day for prisoners requiring medication or medical treatment.  That tab is ultimately picked up by the taxpayers of Harris County.

The jail I visited is not an outlier.  Rather, it is part of the world’s largest prison population.  One that is disproportionately comprised of people of color, though we know that people of all races use illegal drugs at roughly the same rate. Many have called this the New Jim Crow, and for good reason.  One in four black children have had a parent in the criminal justice system, compared to just four percent of white children. That rate is nearly two times what it was in the 1980s.  And it begins with a school-to-prison pipeline that starts as early as kindergarten, where a black child is four to five times as likely to be suspended or expelled as a white child.

Following my visit, I am more convinced than ever that Texas can and must take the lead in building a criminal justice system that is more fair and that urgently puts our country closer to the words written above the highest court in our land: equal justice under law.  This is how I propose we do it.

First, we should eliminate private, for-profit prisons from our justice system.  Locking someone up is a power that should be reserved for our government, not outsourced to corporations that have the perverse incentive of getting more people behind bars so that there are more profits for their shareholders.

Second, we need to end the failed war on drugs that has long been a war on people, waged on some people over other people.  Who is going to be the last man — more likely than not a black man — to languish behind bars for possessing or using marijuana when it is legal in more than half of the states in this country?  We should end the federal prohibition on marijuana and expunge the records of those who were locked away for possessing it, ensuring that they can get work, finish their education, contribute to their full potential and to the greatness of this country.

Third, we must stop using mandatory minimum sentencing for non-violent drug offenses — a practice that costs taxpayers dearly and destroys lives in the process by locking up people who could safely re-enter society. And we replace this practice with policies that begin treating addiction like the public health concern it is.

Fourth, we can end the current use of bail bonds that punish people for being poor.  This is a tactic that wastes resources on incarcerating those who are not a threat to anyone, not a flight risk, not likely to be repeat offenders. In the Harris County Jail, it’s estimated that 500 to 600 of the inmates at any given time fit this description — in for misdemeanors but without the resources to post bail as I did more than twenty years ago.

Finally, we should provide meaningful reentry to help cut down on recidivism for those who committed non-violent crimes. That starts with strong rehabilitation services, counseling and access to preventative health care. It continues by banning the box on job applications so those formerly incarcerated can work and pay taxes, returning drivers licenses so they can get to that place of employment, allowing them to apply for loans that can unlock skills trainings, and ensuring their constitutional right to participate in civic life by voting is protected....

Giving low-level offenders a second chance no matter the color of their skin or the economic status they hold can create opportunity for all of us. It will help build a future that is more just, more fair, and more prosperous for every single person in this state and this country. It is time for Texas to lead the way.

I call this commentary "curious: because O'Rourke is talking about his experience touring a local jail while running for federal office, and he makes no mention of current federal proposals like the FIRST STEP Act. Senator Ted Cruz has been resistant to some federal sentencing reforms proposed even by the GOP, and I would think candidate O'Rourke could and should seek to clearly distinguish his position from that of his opponent. Moveover, as students of modern criminal justice know, it is a bit curious to call for "Texas to lead the way" in criminal justice reform because, to a large extent, Texas already has starting the the mid 2000s when the state turned away from building more prisons and invested in more alternatives to incarceration.

Curious particulars notwithstanding, it is still heartening that our modern political times have evolved to the point that prominent candidates in the Lone Star State are eager to talk at length about improving Texas justice (even when a candidate is seeking a federal office).

A true insider's reaction to Senator Cotton's commentary about federal criminal justice reform efforts

In prior posts here and here and here, I noted the commentary from Senator Tom Cotton attacking the federal criminal justice reform bills moving through Congress and some responses it has engendered.  Today I receive an email from the son of a federal prisoner who maintains this interesting blog with postings from his father.   The blog is worth checking out and it is titled "Blue Collar Criminal: 60-something small business owner.  Screwed by the DOJ.  Now I'm in prison.  These are my thoughts."

In addition to pointing me to this blog, the prisoner's son shared his father's response to the piece Senator Cotton wrote in the Wall Street Journal and gave me permission to reprint his father's writings here:

I write this response to Sen. Tom Cotton's editorial ("Reform the Prisons Without Going Soft on Crime") from within my 8 X 10' federal prison cell I share with another medicare-eligible inmate.  We agree that Cotton's essay should have been entitled - Reform the Prisons Without Doing a Damn Thing.

Cotton bases a lot of his assertions on statistics. In lieu of rebutting them, which would be a bit hard given my current lack of access to the internet, I have to settle on "inferior" data, which is the actual experience of actual prisoners whom I know, and find every bit as credible as anyone I knew on the "outside".  The specific ones I'm bouncing Cotton's preposterous claims off of, are guys with 10+ years of incarceration, and who have experienced a wide variety of federal prisons before working themselves down to the federal camp.  Though I've only been "down" one year, I find my bullsh*t detector is pretty reliable, and comes in handy when evaluating prison stories and reading editorials such as Cotton's.  Based on these findings, I not only doubt the factuality of the statistics he uses, I gravely mistrust the motives behind them.

I came here a big fan of Sen. Cotton's.  I first knew of him when he was a soldier, serving in Iraq, who was thought for awhile to be fictitious, due to the cognitive dissonance produced by the idea of a Harvard Univ./Harvard Law School grad being an infantry officer. I was very attuned to him, since my son was also in Iraq at the same time.  He also put his pen to good use in rebutting anti-war propaganda.  I was shocked, when my "adventure" with the DOJ brought me here, to find that Cotton, along with another of my conservative heroes - Sen. Jeff Sessions - were regarded as the mortal enemies of federal inmates, at least those who followed the progress of issues related to prison reform.  My move away from fanhood has been sealed by this editorial, which has impressed me that he's traded the tools of war for the tools of sophistry.

For starters, in Cotton's mind, we are all "criminals", a word he loves to repeat. One-size-fits-all.  Excuse my sensitivity, and I leave it to friends and family to defend my name, but many of these guys are as fine individuals as any I know, and were "productive, law-abiding citizens" until the feds came after them.  (If you find that hard to swallow, you might care to read Harvey Silverglate's 'Three Felonies A Day'.)

He calls the House bill "flawed", and to the extent that it tampers with mandatory minimum sentences, or gives judges more discretion, a prescription for a "jailbreak". Why is lengthening a sentence wise, but shortening some foolish?  Why is Cotton incapable of recognizing that prison populations are comprised of both truly dangerous, bad-guy criminals, and nonviolent, non-dangerous law-transgressors (including some who are truly and factually innocent)? Many of the guys I know in here would probably only "endanger communities" by cutting their neighbors lawn while they're on vacation.  (And I'm not here making a distinction between "white-collar" and "drug offenders".  I've learned that 'drug offender' is also not a one-size-fits-all category).

In his paragraph on the current "drug epidemic", he cites a number of statistics to justify mandatory minimum sentencing, but ends by essentially admitting those statistics might not be significant or prove his point.

His statements about how very little of recidivism is attributable to parole violation, does not purport with what I've seen nor the experience of my "experts".  Most of the guys in my unit who have prior convictions are here now because their parole officer caught them 'high'.  One guy here, a farm boy, had a prior drug felony, and "caught" an 8 year sentence for a felony firearms crime.  He was deer hunting in a tree stand, having lost his right to bear arms by virtue of being a drug felon. Cotton's statistic to prove that drug convictions lead to rearrests for murder and rape 77% of the time, strikes my fellow inmates as not only false, but weird, crazy scare tactics.

Cotton's cherry-picked example of a drug dealer, Wendell Callahan, who murdered his girlfriend and her daughters, is great for demagogic purposes, but irrelevant to the debate of shortening the eligible sentences of nonviolent felons.  This has to be weighed in a context that looks objectively at good outcomes as well as negative.  Keeping families apart, and depriving children of their fathers, when its not necessary for the public good, is a social evil; and this is what mandatory minimum sentences often do.  It leads to and insures that the next generation will likely repeat the mistakes of their parents.

Cotton attacks even the term "mass incarceration" on the strange basis that it couldn't possibly be big, since it could be bigger.  I would say simply, that whichever country incarcerates the highest percentage of it's citizenry deserves the title of "mass incarcerator".  This would be the United States.  One book I've read states that the U.S. incarcerates 6 to 12 times more than the following countries: Canada, U.K., France, Germany, Italy or Australia.  Yet Cotton thinks we don't lock up enough.

But it gets worse. Cotton writes that "virtually no one goes to federal prison for "low-level, nonviolent" drug offenses.  Even I, a relative newbie, know guys who are not only here for that, but have sentences exceeding 10 years.  He says those that are here for just that have only pleaded to that, though they actually committed more serious offenses. Baloney.  Here's how that goes - they commit a crime deserving 1 year (for example) and plead "down" to a 4 year sentence, because they're being threatened with a 12 year sentence.  My friends here can't believe that Cotton doesn't know this.

It's not unusual for the feds to concoct 20 charges, and settle for 2. It happens to everyone.  It happened to me.  They are extremely creative in their use of enhancements.  (If the real crime were so heinous, why would they settle for a much lighter sentence?)

And then this - "Presidential pardons are a much better instrument of justice than broad sentencing reductions." Puh-leeze! (I think this ridiculous statement was just a set-up for his snarky shot at Trump.)

Cotton dismisses fiscal conservatives who would hope to reduce the cost of the American prison system. "The costs," he says, "of crime ... far outweigh the downsides of putting serious criminals behind bars."  That all depends on what you consider to be "serious" criminals, and how you calculate the "downsides".  At my camp, the common consensus is that the average age here is 50+.  That includes quite a few in their 70s, and about 3 or 4 in their 80s. Maybe a dozen use canes.  The financial distress on families and the negative economic impact on communities would certainly be part of the calculation of the "downsides", as would unquantifiable costs such as the loss of adult children to care for aged and debilitated parents.  Certainly also there's a tremendous cost to communities who have lost key employees and employers, volunteers to non-profits, etc.  There's a 80 yr old oncologist/researcher who's here due to a financial transgression of a side company he was a partner to.

As to his closing assertion that "mandatory minimums .... work", there is a great body of research that would show otherwise.  I, for one, would love to see a poll taken of federal judges as to the truth of that statement.

Sen. Cotton ends his diatribe against prison reform, the kind that might actually reduce the prison population, with an affirmation of "faith-based and other antirecidivism programs".  I heartily concur, in fact, I wish everyone would embrace the teaching of the Bible. In it we read this great truth - "For judgment will be without mercy to anyone who has shown no mercy; mercy triumph over judgment." (James 2.13)

If that is deemed as soft on crime, we need to deeply consider where we are heading.

Prez Trump reportedly has decided he will not support federal criminal justice bill before mid-term election

This new Axios piece has a depressing headline: "Scoop: Trump won't endorse criminal justice bill before midterms."  Here are all the reported details:

President Trump has stymied a plan to push prison and sentencing reform before the midterms, according to an administration source with direct knowledge. In a White House meeting on Thursday afternoon, Trump decided that the compromise package that Jared Kushner, Sen. Chuck Grassley and others have been advocating for is too politically difficult to endorse before the elections, the source told Axios.

Why it matters: Without the president backing the bill, which might have reduced some mandatory minimum sentences for certain drug crimes and sent around 4,000 prisoners home, it has zero chance of getting a vote before the midterms. Senate leadership was already reluctant to bring it up for a vote. The collapse of the bill is a win for opponents of the package, including law-and-order hardliners Sen. Tom Cotton and Attorney General Jeff Sessions.

As noted in this prior post, Politico has already been reporting that the Senate was not going to vote on any criminal justice reform bill until after the election.  But I suppose it was possible Prez Trump might want to push forward; indeed, some commentators, as noted here and here, have suggested it would be politically wise for Trump to campaign for reform in the run-up to the election.  Ultimately, this decision by Trump provides even more basis to worry that it will continue to be a heavy slog to get sentencing reform as well as prison reform to the President's desk.

Some of many prior recent related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• Prez Trump pledges to sign prison reform that will be "best in the world"
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
• An interesting political pitch for the FIRST STEP Act 
• Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
• White House emails "startling facts about America’s prison system"
• Could a version of the FIRST STEP Act with sentencing reforms pass the Senate in a matter of weeks?
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Will Trump White House soon "deploy its assets ... to stump" for federal criminal justice reform? It may be critical.
• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if even brought up for a vote?
• Still more on Senator Cotton's efforts to thwart significant federal criminal justice reforms and responses there to 

UPDATE: This new Washington Post article reports on today's White House meeting on criminal justice reform efforts under the headline "GOP senator: Trump backs tenets of compromise on criminal-justice reform." The report suggests that both proponents and opponents of reform think Prez Trump is on their side.  The article seems to confirm that reform is not going to get done before the mid-term election.  

Lots more news and notes and commentary about federal criminal justice reform efforts ... including report of no Senate vote until after election

Here in no particular order is a too-quick round-up of some of the notable stories and commentaries I have seen this week as the debate over federal prison and sentencing reform continues to heat up:

• From Ed Kilgore, "Criminal-Justice Reform Deal Facing Opposition From Left and Right"

• From Alexander Bolton, "Democratic leader gives boost to criminal justice reform compromise"

• "Survey Finds Overwhelming Bipartisan Majorities Support Bill Giving Judges Discretion to Moderate Prison Sentencing"

• From Paul Mirengoff, "In Defense Of Tom Cotton’s Critique Of Leniency-For-Criminals Legislation"

• From Jeffrey Bellin, "A first step toward sentencing reform"

UPDATE: Here are a few more pieces on this front worth checking out, including perhaps the most tangibly significant in the form of the Politico piece that the Senate will not move forward on a vote until after the November election:

• "Conservatives send letter to President Trump in support of FIRST STEP Act"

• "Brennan Center Responds to Senator; Urges Congress Not to Abandon Criminal Justice Reform"

• From Emily Mooney and Arthur Rizer, "Dear AG Sessions: The White House and math agree — crime isn’t surging but reform should be"

• From Politico, "Senate won't take up prison overhaul before midterms"

Still more on Senator Cotton's efforts to thwart significant federal criminal justice reforms and responses there to

In posts late last week here and here, I noted the commentary from Senator Tom Cotton attacking the federal criminal justice reform bills moving through Congress and some responses it has already engendered.  Now Politico has this new article on this beat headlined "Sentencing reform tests Cotton’s sway with Trump."  Here are a few highlights from a lengthy article:

Tom Cotton is going all out to defeat a last-ditch effort to pass sentencing reform before this year’s midterm elections, hoping to win a high-stakes influence campaign over President Donald Trump on the issue.

Cotton is lambasting the proposal as a “jailbreak” that would “let serious felons back on the streets,” taking on a daunting coalition fighting for the package that includes the Koch political operation, White House adviser Jared Kushner and a number of powerful GOP senators. But Cotton believes that, in the end, President Trump and Senate Majority Leader Mitch McConnell (R-Ky.) will side with him.

“The president went to Singapore and agreed with the Singaporeans that we should give the death penalty to drug dealers. I can’t imagine the president wants to reduce mandatory minimum sentences for drug dealers,” the Arkansas Republican said in an interview. “I believe Sen. McConnell shares my view that we should not let serious felons out of jail and we should not shorten the sentences for drug dealers.”

Even opponents of sentencing reform will privately admit it would likely pass if McConnell brings it up. But Cotton’s loud opposition may determine whether or not McConnell even allows a vote given his reluctance to summon up legislation that divides the conference — right before the election, no less....

The conflict is pitting some of Trump’s closest allies against each other. On one side are Cotton and Sen. David Perdue (R-Ga.), who calls the sentencing component “troubling” and wants to concentrate on prison reform. On the other are Sen. Rand Paul (R-Ky.), who wants to go even further on criminal justice reform but would be willing to accept the slimmed-down proposal, and Sen. Lindsey Graham (R-S.C.), who supports it....

Though the president supports the standalone prison reform effort, no one is quite sure where exactly Trump is going to come down on the sentencing piece that’s being added by Senate Judiciary Chairman Chuck Grassley (R-Iowa). Advocates for sentencing reform are hoping the president will offer a crucial endorsement to get the legislation across the finish line after commuting the sentence of Alice Johnson for drug offenses, while opponents say he’s unlikely to undercut his law-and-order persona....

“There is not a constituency, certainly among Republican voters, to let serious felons out of prison or slash their prison sentences,” Cotton said in the interview. “It’s ill-advised policy and even more ill-advised timing.” Countered Paul, another close Trump ally with opposing views: “We have a lot of non-violent criminals in our prison and they’re taking up space that could be better put to use for violent criminals."

Cotton also has strong allies, including Attorney General Jeff Sessions, who has long opposed sweeping sentencing reforms. The two have frustrated people working on the bill.

Yet many on the law enforcement side, a key Trump constituency, are working with Cotton. Jonathan Thompson, the National Sheriff Association's executive director, has spoken to the president twice about sentencing reform in the past year and half: “The president knows we’re concerned.” “We think what he’s doing is terrific. Sen. Cotton recognizes that it’s a very flawed bill,” said Larry Leiser, president of the National Association of Assistant U.S. Attorneys. “We’re hopeful the president won’t [endorse it].”

Unless Trump makes a major push for the legislation and takes on his critics like Cotton, there are many reasons for McConnell not to bring up the bill before the election. It would likely take at least a week for the Senate to process, time that McConnell might think is better spent processing lifetime judicial appointments ahead of an uncertain midterm outcome. Plus it would invoke an ugly intraparty foodfight, squaring Cotton off with proponents of sentencing reform like Grassley, who has been tweeting that the president “wants something done on prison/crim justice reform. So do I.”

“The consensus is the prison reform stuff,” said Senate Majority Whip John Cornyn (R-Texas). “There are people who want to do more, but it’s the usual issue: Do you want try and do more and fail, or do you want to do what’s possible?”

Despite the long odds, the battle is raging behind the scenes. Internal discussions of the subject at Senate lunches have been heated, according to Republican sources, a preview of what might happen on the Senate floor if the chamber takes it up. It’s the same dynamic that kept McConnell from bringing up a larger criminal justice reform package in 2016 as Cotton railed against it and declared the United States has an "under-incarceration problem.”

Trump’s “for prison reform, I’m for prison reform. What I don’t support is sentencing reductions under the guise of prison reforms, and that’s unfortunately what many senators are moving towards,” Cotton said in the interview. A number of conservative senators have quietly expressed their opposition to the sentencing reform component, according to groups working to defeat it. But Cotton's taken a bigger gamble by getting out front to stop a bill that hasn’t even produced yet.

Meanwhile, over here at the Daily Signal, John G. Malcolm and Brett Tolman have this lengthy new commentary under the headline "Why It’s Not ‘Soft On Crime’ to Support Criminal Justice Reform." Here is a snippet focused on mandatory minimums:

Cotton and others argue that mandatory minimum charges are reserved for kingpins and other major drug dealers, and low-level dealers are rarely subjected to mandatory minimum penalties. However, the U.S. Sentencing Commission, a bipartisan independent agency that collects and analyzes federal sentencing data, found that a surprisingly large number of low-level drug couriers are subjected to mandatory minimum penalties.

It is easy to see how that happens. Under federal law, a defendant charged as part of a drug conspiracy—even a low-level courier, who may be acting solely to support his own addiction—can be charged and sentenced based on the total amount of drugs sold by everyone who participated in that conspiracy. That’s true even if the courier never knew who these people were or what quantity of drugs they sold.

Of course, the courier should be punished. But how badly? Remember, we are talking about mandatory minimum penalties. A judge can always impose a higher sentence, up to the statutory maximum, for deserving drug traffickers and violent criminals. The proposed reductions are, in truth, quite modest.

Senators are currently debating the possibility of reducing the mandatory minimum penalties for second-time drug offenders from 20 years to 15 years, and for third-time drug offenders from life in prison without the possibility of parole to 25 years. Does anyone really think that minimum penalties of 15 and 25 years are not serious? 

Some of many prior recent related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• Prez Trump pledges to sign prison reform that will be "best in the world"
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
• An interesting political pitch for the FIRST STEP Act 
• Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
• White House emails "startling facts about America’s prison system"
• Could a version of the FIRST STEP Act with sentencing reforms pass the Senate in a matter of weeks?
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Will Trump White House soon "deploy its assets ... to stump" for federal criminal justice reform? It may be critical.
• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if even brought up for a vote?

Could enhanced FIRST STEP Act get more than 90 votes in the Senate if even brought up for a vote?

The question in the title of this post is prompted by this Hill piece from late Friday headlined "Sentencing reform deal heats up, pitting Trump against reliable allies." Here are excerpts (with emphasis added):

Negotiations on a criminal justice reform bill are pitting President Trump against some of his closest allies on Capitol Hill.

Sen. Tom Cotton (R-Ark.) sent a public warning shot to the White House this week, writing in a Wall Street Journal op-ed that Trump should not support a “jailbreak” by reducing mandatory minimum sentences. “That foolish approach is not criminal justice reform. … [It would] undercut President Trump’s campaign promise to restore law and order,” Cotton wrote.

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 a House-passed prison reform bill with changes to sentencing and mandatory minimums that have wide, bipartisan support in the Senate.

Supporters say completing the bill would give the administration a needed win heading into November's midterm elections. Cotton argues it would make Trump and the GOP look weak on crime.

White House officials and supporters of a deal have been talking with Republican holdouts to try to convince them to back the proposed compromise, which they say would add roughly four sentencing reform provisions into the House bill, which currently focuses on recidivism and not sentencing laws. The pending agreement is expected to add into the House bill lower mandatory minimum sentences for nonviolent drug convictions and more exceptions for judges on applying mandatory minimums. It would also let judges avoid doubling up on convictions for drug offenders facing simultaneous charges, and retroactively apply the 2010 Fair Sentencing Act, which is aimed at reducing the disparity between cocaine- and crack-related offenses.

A senior White House official said they had received largely positive feedback and have 30 to 32 locked down “yes” votes among Republican senators. The official offered hope that the number of GOP supporters could eventually grow as many as 40 to 46. “We're hopeful that we'll be able to bring everybody together to get this to a place where we have ... most of the Republicans ready to vote for it,” the official said...

Supporters are moving forward and trying to build support within the GOP conference, signaling they view Cotton as a surmountable outlier. “I view it like the handful of people who are trying to obstruct are kind of giving it their best shot and, again, at the end of the day, I think facts usually overcome scare tactics,” the senior White House official said.

If Cotton’s op-ed was meant to build opposition to the potential deal within the Senate Republican Conference, officials suggested it appeared to have backfired. The senior White House official said that nearly a dozen Republican senators had reached out in wake of the Wall Street Journal article to say they didn’t agree with Cotton. A second White House official confirmed the outreach.

But opposition from a small, but vocal, group of critics has been a years-long roadblock for criminal justice reform in the Senate, where GOP leadership has been reluctant to put a spotlight on intra-caucus fights.

In addition to Cotton, Sen. David Perdue (R-Ga.), Sen. Orrin Hatch (R-Utah) and then-Sen. Jeff Sessions (R-Ala.) threatened to do everything within their power to block a 2015 criminal justice reform bill, which had the support of the White House. Hatch has since come on board with criminal justice legislation, and Sessions is now attorney general. Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) has warned him to “stay out” of the negotiations....

Republicans won’t be able to pass a criminal justice deal on their own. A separate Senate bill, spearheaded by Grassley and Durbin, has the support of 32 senators, including Democrats like Sens. Kamala Harris (Calif.) and Cory Booker (N.J.). The White House is hoping electoral politics won’t get in the way of them supporting the pending agreement. “[If] people vote against it, I think it would just be really bad vote for them because this bill does a lot of good things,” the senior White House official said of potential Democratic opposition....

Trump held an event on prison reform last week, and at a White House meeting earlier this month signaled support for criminal justice reform. The senior White House official said that while negotiations are ongoing and no final decision has been made, “there is a very strong chance” the president will support the final package.

“[That] means that a lot of the people will want to be with him on it,” the official said. “And again, they know that the president's very tough on crime and if he's supporting something then they know it's not going to be a soft on crime bill.”

But Cornyn appeared skeptical that Trump, despite his deep popularity with GOP voters, would be able to change the dynamics in the Senate. “I don’t think people are going to change their strongly held positions on the sentencing reform part,” he said. “So my goal is to achieve what’s possible."

Riffing on the quote from Senator Cornyn, it seems quite possible that 45 Senators or more from both parties will be inclined to support whatever version of the FIRST STEP Act gets to the floor of the Senate with the President's support.  As I said in a recent post here, and as this article confirms, the problem now is not getting enough votes in support of reform but rather on getting congressional leadership to settle on the particulars of a bill and finally allowing a vote on the Senate floor.

As the GOP heads into a challenging mid-term election, I think and hope that many members would see the FIRST STEP Act as an opportunity to demonstrate bipartisan leadership. And maybe, as he headline of this interesting Bustle article suggest, Prez Trump could have another one of his kids involved in advocacy efforts here: "Tiffany Trump's Georgetown Work Shows She Has An Interest In Criminal Justice Reform Too."  

Some of many prior recent related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• Prez Trump pledges to sign prison reform that will be "best in the world"
• An (encouraging?) update on the state of federal criminal justice reform in US Senate
• Disconcerting update on Senate's (lack of) progress on federal statutory criminal justice reforms
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
• An interesting political pitch for the FIRST STEP Act 
• Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
• White House emails "startling facts about America’s prison system"
• Could a version of the FIRST STEP Act with sentencing reforms pass the Senate in a matter of weeks?
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Will Trump White House soon "deploy its assets ... to stump" for federal criminal justice reform? It may be critical.

Will Trump White House soon "deploy its assets ... to stump" for federal criminal justice reform? It may be critical.

The question in the title of this post is prompted by this new Hill commentary authored by Holly Harris headlined "Connect Beltway to America to get federal criminal justice reform done." Here are excerpts:

When it comes to excuses to pass over federal criminal justice reform, I have heard them all, from “it takes at least 10 years to pass legislation like this” to “there is no way move a criminal justice bill in an election year.” But the one that really burns me is “you cannot point to state success because the federal system is much more complicated.”

The arrogance of the Beltway is incredible.  Of the more than 2.3 million people serving time behind bars in this country, more than 1.3 million are housed in state prisons, and about 615,000 sit in local jails.  Only 225,000 are housed in a federal facility. The Texas prison system alone holds more inmates.  State prison systems deal with overcrowding, stifling budget cuts, and drug epidemics that show no signs of abating.  Because they can see and experience this crisis first hand, governors on the left and the right are passing strong criminal justice reforms that offer alternatives to incarceration such as drug treatment programs, provide opportunities that put people back to work, and save millions of taxpayer dollars.

Now these governors are invading the federal reform effort, seeking to finally connect Beltway leaders to what is happening in their own backyards.  President Trump, in a savvy move, convened a criminal justice roundtable at his resort in New Jersey and invited Republican and Democratic governors from states like Louisiana, Mississippi, Kentucky and Georgia, all of which have passed strong criminal justice reforms with bipartisan support that decrease incarcerated populations, improve reentry programs, and ultimately lower crime and recidivism.  This is all part of a strategy to take the fight to pass a federal bill straight to the people and away from the status quo in Washington....

Keenly aware that red states like Georgia, Oklahoma, Mississippi and Kentucky have made aggressive changes to their justice systems, including sentencing reforms and felony expungement laws, [Jared] Kushner has showed the president these success stories.  In this latest roundtable, Trump included the Democratic governor of Louisiana, John Bel Edwards, who shared that reforms implemented in his state led to a 20 percent decrease in the number of people imprisoned for nonviolent crimes, which frees up valuable resources to fight dangerous crimes and reduce recidivism.

While the public safety benefits of reform are undoubtedly impressive to a “tough on crime” president, the overwhelming public support for these issues must be equally attractive.  Voters across the country are looking to Congress to act. Polling from earlier this year shows that 75 percent of voters, a clear supermajority crossing all partisan, geographic, education, income, racial and ethnic boundaries, believe the criminal justice system needs to be reformed and support changes such as fixing our cash bail system and replacing mandatory minimum sentencing laws.

In the final stretch to a Senate vote, do not be surprised to see this White House deploy its assets to the states to stump for a bill they know the American people want.  There will be folks from every walk of life lining up behind them, from business leaders and military veterans to civil rights advocates and faith leaders.  Just this week, people from 50 organizations of all political stripes and bipartisan senior legislative staff met to talk details. When the phone lines light up in offices all over Capitol Hill demanding a vote, Washington may well be out of excuses.

Candidly, I will be quite surprised if this White House were to deploy its assets to stump for reform, but I certainly hope this will happen.  I am fairly confident that if Prez Trump were to do a series of tweets in support of a federal criminal justice reform bill, that bill would have a much greater chance of getting to his desk.  And Prez Trump does not have to change minds about pending reforms: there is already overwhelming bipartisan support for the basic substance of nearly every serious sentencing and prison reform bill. 

The current challenge is  getting congressional leadership to settle on which version of which bill will be brought up for a vote. Senate leadership has been the bottleneck lately, and the White House surely could and should focus, publicly and privately, on advocacy toward leadership to settle on a bill and finally allow a vote.  (Notably, the FIRST STEP Act got 86% approval when it got to a vote in the House of Representatives, so it seems informed legislators are even more supportive of federal reform than the poll numbers.) 

This piece by Holly Harris highlights just why passage of federal criminal justice reform could be a huge win for this Administration, and I hope Prez Trump sees the potential political value to pushing reform over the finish-line.  Presidents always have unique powers and unique opportunities to grease the legislative process, and a congressional reform discussion that has been going strong for now five years with no tangible results can certainly uses as much grease as it can get. 

Some of many prior recent related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• Prez Trump pledges to sign prison reform that will be "best in the world"
• An (encouraging?) update on the state of federal criminal justice reform in US Senate
• Disconcerting update on Senate's (lack of) progress on federal statutory criminal justice reforms
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
• An interesting political pitch for the FIRST STEP Act 
• Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
• White House emails "startling facts about America’s prison system"
• Could a version of the FIRST STEP Act with sentencing reforms pass the Senate in a matter of weeks?
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system

UPDATE: I have just added to the title of this post after seeing this new Politico piece headlined "Criminal justice deal faces steep Senate hurdles despite Trump’s push."  Here is an excerpts that has me thinking reform does not get done unless and until the Trump White House puts all its might behind the effort:

Trump has stepped up his own calls for a deal on the prisons overhaul that the House passed earlier this year, holding two events so far this month.  And groups off the Hill say they're closing in on a path to pass the legislation through the Senate by adding some of the sentencing changes Judiciary Chairman Chuck Grassley (R-Iowa) spent years negotiating with Democrats.

But interviews with a dozen GOP senators show that those talks remain in a precarious state.  That’s because the handful of Republicans who have long protested reducing mandatory-minimum sentences leave Majority Leader Mitch McConnell (R-Ky.) without any incentive to call up legislation that would split his conference.

One of those longtime critics of adding sentencing to the House-passed prisons bill bluntly predicted Thursday that McConnell would not “bring the bill to the floor any time soon.”

“I’m not sure that we can put together a deal,” Sen. John Kennedy (R-La.) said in an interview. “I’m not sure we should.”...

Close involvement from Trump will likely be required for the GOP to get past its internal schism over reducing mandatory minimum sentences as part of a prisons package. Grassley's bipartisan package of sentencing and prison reforms boasts 15 Republican cosponsors, but Attorney General Jeff Sessions opposes even the narrower prisons-only approach the House has passed.

FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act

As noted in this recent post, the latest buzz from inside the Beltway is that four sentencing reform provisions from the Sentencing Reform and Corrections Act might get added to the FIRST STEP Act in the Senate to produce a final federal criminal justice reform bill that will finally get voted on in both houses of Congress. Helpfully, the folks at FAMM have produced this extended document reviewing which SRCA sentencing provisions are seemingly in play.  The document is styled as a memo to Congress members and staff under the heading "Facts sheets explaining potential sentencing additions to FIRST STEP Act."  Here is part of its introduction:

In May, the U.S. House passed the FIRST STEP Act (H.R. 5682) by a vote of 360 to 59. Some Senate leaders have argued that any criminal justice reform bill considered by the Senate must include sentencing reform. Earlier this month, President Trump expressed a willingness to consider adding four sentencing reform provisions to the FIRST STEP Act.

As Members of Congress consider adding some commonsense sentencing provisions from the Senate Judiciary Committee-approved Sentencing Reform and Corrections Act (SRCA, S. 1917), we thought it would be useful to provide some background on the four sentencing provisions under consideration. In the four factsheets that follow, we explain the problem that current sentencing law is creating, provide an example of how it is harming real people, share the proposed reform found in SRCA, and relay the potential financial impact based on studies conducted by the Congressional Budget Office and the U.S. Sentencing Commission. We recognize that the reforms included in SRCA might change during negotiations and that the impact of these reforms will change accordingly.

For those interested in a detailed (pro-reform) accounting of what sentencing reform provisions now seem to have a real chance of passage, this FAMM document is very much worth checking out. Also, here is a list of just some of the (too) many prior posts I have done about the policy and political debates over federal reforms just this year:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• An (encouraging?) update on the state of federal criminal justice reform in US Senate
• Disconcerting update on Senate's (lack of) progress on federal statutory criminal justice reforms
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
• An interesting political pitch for the FIRST STEP Act 
• Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
• White House emails "startling facts about America’s prison system"
• Could a version of the FIRST STEP Act with sentencing reforms pass the Senate in a matter of weeks?

Could a version of the FIRST STEP Act with sentencing reforms pass the Senate in a matter of weeks?

The question in the title of this post is prompted by this encouraging Thursday Washington Examiner piece headlined "Jared Kushner helps Trump pave rare bipartisan path to big win." Here are excerpts with a few lines emphasized:

Thursday’s roundtable at President Trump’s summer White House in New Jersey to address prison and sentencing reform with governor’s is the latest bid by top aide Jared Kushner to give his father-in-law a rare bipartisan victory on a once controversial issue.

In getting Trump to carve out part of his working vacation at his golf club in Bedminster, N.J., Kushner and other officials are hoping to demonstrate how important the issues are to the president as he works to get a Senate vote in the next month.

Trump’s meeting this afternoon with governors, state attorneys general, and top aides is the latest in which he will endorse prison reform and he is also expected to open the door to sentencing reform, a sign to key senators that he is ready for a deal.

Just last week he met with Trump met with Republican Sens. Mike Lee, Lindsey Graham, Tim Scott and Chuck Grassley who are working legislation on sentencing and prison reform.

“We are trying to get a vote in the next two weeks,” said an administration official of the broad prison reform bill known as the First Step Act that passed the House overwhelmingly.

As he has on Middle East peace and other projects his father-in-law has given him, Kushner has worked overtime -- and always behind the scenes -- to build an unusual coalition in support of the reforms....

“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 one associate, who added, “We think that with this momentum and with the coalition behind it, that this can actually happen.”

Importantly, as I understand matters, the Senate would be voting on not just the prison reforms in the House version of the FIRST STEP Act, but also some sentencing reforms. Those reform are limited, but still quite significant, and they are outlined in this recent piece by Mark Holden.  And if this is brought up for a vote in the Senate, I do not think there is any real likelihood it would not pass.  Indeed, the question would be probably whether it might get even more than 80 votes.

If this really gets completely done in the coming weeks, I do think it will be right to give Prez Trump and his Administration a considerable amount of credit.  But that credit comes only if and when a bill is signed and the law is changed.  Remarkably, I am starting to get optimistic that this could happen pretty soon.

Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018

Though I am a very long way from DC right now (much closer to Russia, in fact, somewhere on this route), I had to find a way on-line to be sure to note the exciting federal criminal justice reform news reported here in The Hill under the headline "Trump gives thumbs up to prison sentencing reform bill at pivotal meeting."  Here are the details:

President Trump has told Republican senators that he’s open to a new proposal on prison and sentencing reform, giving new life to an issue that seemed hopelessly stalled on Capitol Hill.

The compromise presented to Trump by Republican senators at a White House meeting on Wednesday would combine the prison reform bill passed by the House in May — the First Step Act — with four sentencing reform provisions that have bipartisan Senate backing, according to a source familiar with the meeting.

A senior White House official described the president as “positively inclined” toward the compromise proposal. The source said Trump told GOP senators to “do some work with your colleagues” and “let's see where the Senate is and then come back to me with it.”...

The compromise offer was presented to Trump at a meeting with Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Sens. Mike Lee (R-Utah), Lindsey Graham (R-S.C.) and Tim Scott (R-S.C.). Jared Kushner, a senior White House adviser and Trump’s son-in-law; Shahira Knight, the new White House legislative affairs director; and White House chief of staff John Kelly also attended the White House meeting.

Attendees described Trump’s support for the initiative as a positive development for the effort to reduce mandatory-minimum prison sentences for nonviolent drug offenders. While getting a final bill to Trump would require a Senate vote and then winning House approval for the new package, a second source familiar with the meeting described it as “very successful.” “It’s not done until it’s done, but we made a lot of progress,” the source said.

Grassley said afterward that he believes prison reform and sentencing reform can be moved in tandem. “I think we made great progress so it doesn’t have to be broken up,” Grassley told reporters Thursday. “There seems to be an interest on the part of the White House now to keeping the bills together.”

Negotiators now think there’s a possibility of moving legislation through the Senate as soon as this month, though it’s more likely to wait until the lame-duck session after the midterm elections....

The emergent compromise proposal would make several technical changes to the House-passed First Step Act and merge it with four sentencing reforms from the Senate’s Sentencing Reform and Corrections Act, which has a large number of co-sponsors from both parties.

“The question is how little sentencing reform we can put in there without losing the Democrats and how much we can put in there without losing more than a handful of Republicans, and we think we’ve about cracked that formula,” said a person familiar with the internal talks who briefed The Hill.

The proposed compromise would lower lifetime mandatory minimum sentences for people with prior nonviolent drug felony convictions to 25 years and reduce 20-year mandatory minimum sentences for similar offenders to 15 years. But in an effort to reach common ground, that reform would only apply to new sentences and not to people already in jail.

Another reform would free judges from having to ratchet up sentences for drug offenders convicted on simultaneous charges. A requirement known as the “stacking enhancement” forced judges to treat convictions on multiple charges as prior offenses and mandated harshly long punishments for nonviolent drug offenders. In another bid to broaden political support, this reform would not apply retroactively.

A third reform would apply the Fair Sentencing Act, which Congress passed in 2010 and reduced the disparity between cocaine- and crack-related offenses, retroactively. That law reduced the disparity between cocaine- and crack-related crimes prospectively but only applied to new sentences. The reform now being discussed would retroactively reduce the disparity of old sentences.

The final reform would expand exceptions to the application of mandatory-minimum sentences to more people with criminal histories.

I am not counting any sentencing reform chickens before they hatch, but this description of the compromise combo FIRST STEP Act and SRCA would seem to make a lot of sense in light of various positions staked out on both sides of the aisle. And if Prez Trump signals support for such a reform package and is willing to make it a priority, I would now be inclined to predict this will get done this year. But because Prez Trump has never seemed a serious advocate for sentencing reform, and because his Attorney General likely dislikes all of this, and because the run-up and aftermath of an election can disrupt lots in DC, I am inclined to remain pessimistic about all of this until votes are being scheduled and taken.

Poll suggests huge public support for FIRST STEP Act with lots of other interesting findings

Over the weekend I noticed this Hill piece reporting in its headline "Poll finds broad support for House-passed prison reform bill." Here are the details via :

The poll, conducted for Freedom Partners by the Charles Koch-backed group In Pursuit Of and provided exclusively to The Hill, found that 70 percent of likely voters approve of the First Step Act, which cleared the House by a 360-59 margin earlier this year. Only 14 percent said the Senate should not pass it, according to the poll that sampled Republicans, Democrats and voters who did not affiliate with either party.

Freedom Partners has put six-figures behind an ad campaign urging senators from both parties to support the legislation. They hope the poll results will prod Senate Republicans to take the bill up.

Passing prison reform is a top priority for the Kochs. There is frustration among the network of conservative donors and activists that the Senate has not moved to take up the bill, which aims to incentivize inmates to complete prison programs that might reduce their likelihood to commit crimes again when they are released.

“Voters broadly support the FIRST STEP Act and will hold senators accountable for failing to pass the bill,” said Freedom Partners Chairman Mark Holden. “It’s time for the Senate to do its job and send this bipartisan legislation to President Trump’s desk.”

The bill has 60 percent support among registered Republicans, according to the poll. Nearly half of likely voters – 47 percent – said they would have a more negative view of Senate Republicans if they don’t move to pass the bill....

The Freedom Partners survey of 1,759 likely voters was conducted online between July 18 and July 20 and has a 2.3 percent margin of error.

This press release provides a few more details about this poll as well as this link to a summary of key findings from the poll. These findings, in particular, should be encouraging to those hoping criminal justice reform will be a salient political issue this fall:

How important is it to reduce the number of people who are in prison in America today?

72% TOTAL IMPORTANT    28% TOTAL NOT IMPORTANT

28% Very important    44% Somewhat important

19% Not very important    9% Not at all important...

 

Thinking ahead to the midterm elections this November – how important to you is the issue of criminal justice reform as you decide who you’ll be voting for?

75% TOTAL IMPORTANT    25% TOTAL NOT IMPORTANT

25% Very important    50% Somewhat important

20% Not very important    5% Not at all important...

 

Would you be more or less likely to vote for a political candidate if you knew he or she supported criminal justice reform?

60% More likely to support candidate    32% No difference in support    8% Less likely to support candidate

"Those in Federal Prison and Their Families Can’t Wait for the Ideal Reform Bill"

The title of this post is the title of Shon Hopwood's new entry over at Prison Professors.   This piece is styled as a response to the this lengthy Hill commentary by DeAnna Hoskins, the president and CEO of JustLeadershipUSA, which assailed the FIRST STEP Act as "a step backward [that] invites a scary future" (which I discussed critically here).  I recommend folks read everything in full, and I will here reprint how Shon's piece concludes:

I speak to and receive emails from thousands of families with someone in federal prison.  These families almost invariably support First Step.  At the Reform Now rally outside Capitol Hill in early July, many of these families explained how First Step will significantly improve their family’s lives — whether by forcing the Federal Bureau of Prisons to provide meaningful rehabilitation programs or housing their loved one closer to home.  The reform groups who oppose First Step weren’t present for the rally.  I wish they were. They’d have a better understanding of what makes the federal prison system uniquely harmful to those who are inside it, and how First Step will alleviate some of those harms.

The families who aren’t supportive of First Step are mostly those with loved ones serving really long sentences or life in prison, and this won’t help them get out of prison — even as it is likely to improve the federal prison system overall.  I empathize with their pain and frustration.  But retroactively applicable sentencing provisions has no chance of passing this year.  Not even the Fair Sentencing Act of 2010 was made retroactive when Democrats had a supermajority in Congress and the Presidency.  It is hard to imagine the current Congress somehow doing better.

First Step along with some sentencing additions is the best bill we can get now in the current political climate.  If we don’t take First Step now, we will be waiting at least another two years for any possibility of federal prison reform.  If the past thirty years is a guide, we are probably waiting much, much longer.  Given the stakes, there should be an urgency on all sides to get this done.

I understand that many people have strong feelings against the current President, and that undoubtedly drives some of the angst against First Step.  Yet there can be fights about every other issue without simultaneously rejecting a federal prison reform bill that provides meaningful help to those currently in prison and their families.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing" 
• Disconcerting update on Senate's (lack of) progress on federal statutory criminal justice reforms
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
• Another attack on the FIRST STEP Act failing to acknowledge modern political realities 
• An interesting political pitch for the FIRST STEP Act 

An interesting political pitch for the FIRST STEP Act

Star Parker, a conservative commentator who is founder and president of the Center for Urban Renewal and Education (CURE), has this notable new Townhall commentary under the headline "Senate Should Pass the First Step Act." In addition to praising the substantive provisions of the FIRST STEP Act, the commentary makes some interesting political points in an effort to convince GOP leaders in the Senate to move forward with the bill. Here are excerpts:

You would think that Senate Republicans would be rolling out the red carpet for the First Step Act, particularly given that it's an initiative that started in the White House. Unfortunately, that's not happening. Senate Judiciary Committee Chairman Chuck Grassley is not moving to embrace this bill because it doesn't including sentencing reform.

With all due respect to Senator Grassley, he's making a mistake. And as a result he's hurting his party and his country.

In all my years working in public policy, one lesson I have learned is that it is an invitation for failure to try to deal with a complex issue, one having a number of separate components, in a single huge, complicated piece of legislation. The result is either no action or a sweeping -- and bad -- law....

Everyone agrees we have a criminal justice problem. But like so many other areas, there is a woeful lack of agreement about what is causing the problem and how to solve it. And this brings us back to the incredible bipartisan passage of the First Step Act.

Senate Majority Leader McConnell and Senator Grassley should see this as an opportunity for the Republican-controlled Congress to show it can act decisively on a major national problem. Holding up prison reform to add on the complex issue of sentencing reform will result in what I said above: either nothing will happen or we'll get one big unworkable bill.

Furthermore, prison reform has major racial implications. Blacks, who constitute 12 percent of the population, make up 33 percent of the prison population. Hispanics, who constitute 16 percent of the general population, make up 23 percent of the prison population.

It's no accident that the NAACP opposes the bill. Or that Obama administration Attorney General Eric Holder wrote in The Washington Post against it. Or that two very politically ambitious black Democratic Senators, Kamala Harris and Cory Booker, oppose it.

Passage of the First Step Act would show that Republicans care and can help a large part of minority America in distress. Black Democrats don't want this to happen.

Senate Republicans must keep an eye on retaining control in November. They should get on the same page with the White House and the House and pass the First Step Act.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal 
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing" 
• An (encouraging?) update on the state of federal criminal justice reform in US Senate 
• Disconcerting update on Senate's (lack of) progress on federal statutory criminal justice reforms
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
• Another attack on the FIRST STEP Act failing to acknowledge modern political realities 

Another attack on the FIRST STEP Act failing to acknowledge modern political realities

DeAnna Hoskins, the president and CEO of JustLeadershipUSA, has this lengthy Hill commentary assailing the FIRST STEP Act as "a step backward [that] invites a scary future." I find the claims in this commentary a bit scary, and here are excerpts with a few comments to follow:

By limiting “prison reform” to a combination of half-hearted credit time — which would leave people on home confinement or in halfway houses, rather than shorten sentences — and a reliance on risk assessment instruments that are steeped in racial bias, the FIRST STEP Act could hit the brakes on a nationwide movement to reform and redefine the justice system.

One of the most deceptive parts of this bill is that it creates the impression that people can earn time off of their sentence via new “credit time.” This is simply not true. This bill will keep people who earn credit time under the Bureau of Prisons’ control by replacing one form of incarceration with another.  The FIRST STEP Act does not offer a real path toward release and redemption.  Instead, it has the potential to increase the reach of the federal prison system via electronic monitoring and expanded home confinement, which is consistent with this administration’s efforts to increase the size of the federal prison population.

For those released from prison on credit time, an electronic shackle awaits, branding people with a tool that tracks their every movement, expands the carceral state into our neighborhoods and significantly lowers the threshold for reincarceration.  As with any for-profit industry, once privatization enters the market an agreement is made for the company to be guaranteed a certain level of profit margin. In order to profit from the FIRST STEP Act, these companies will be guaranteed a certain number of individuals to remain on electronic monitoring or home confinement, creating a bodies-for-sale system.

What’s more, this bill ensures that many people are excluded from eligibility to earn credit time.  The FIRST STEP Act calls for the creation and implementation of a risk assessment instrument to determine who is worthy.  Such assessments have been shown to perpetuate or exacerbate racial biases and institutionalize structural racism by relying on data such as “zip code” and “age at first arrest” — both signal over-policing of black people and communities of color, rather than risk of actual behavior....

There are some good aspects of this bill, including the prohibition of the abhorrent practice of shackling pregnant women in prison and the retroactive application of an increase in good-time credit from 47 to 54 days per year.  Even with these positive provisions, the rest of this bill widens the net of systemic harm.  The fact that this bill could move us a few inches forward is not nearly enough to mitigate the reality that the FIRST STEP Act is only a first step toward a devastating future.

We do not have a binary choice between the status quo and the FIRST STEP Act.  To the contrary, the very real possibility of overhauling and wholly transforming our criminal justice system exists, and needs to be pursued with unmitigated and tireless vigor of the movements we are seeing in cities, counties and states across the country.

The need and demand for reform are real.  The FIRST STEP Act is not only a step backward; it invites a scary future. We need good proposals that address the structural racism baked into our justice system.  We can pursue good proposals at all levels of government — proposals that are human-centered, values-driven, and that truly have an impact on decarcerating and decriminalizing communities across the country.

Though I think it reasonable to express concern about how elements of the FIRST STEP Act might be implemented, stating that this bill would bring a "devastating future" is disturbing hyperbole.  Moreover, as a number of former federal prisoners have stated, it is deeply misguided to suggest electronic monitoring and home confinement is functionally equivalent to continued confinement in federal prison.  Most fundamentally, the claim that there is "the very real possibility of overhauling and wholly transforming our criminal justice system" seems entirely disconnected from the reality that there has been prominent advocacy for federal criminal justice reforms for the last half-decade without a single bit of legislation getting through Congress.

Like the author here, I would like to see reform that goes beyond the FIRST STEP Act.  But broader reforms have be stalled by leaders in DC who are likely to be in place at least until 2020 if not later.  Hoping and waiting for something better leaves current prisoners and their families waiting and waiting and waiting.  And if the politics are really behind "overhauling and wholly transforming our criminal justice system" now or later, passage of the FIRST STEP Act seems very unlikely to change those politics.  But rather than seeing a politic consensus for "transforming our criminal justice system," I just see a lot of political division among advocates for reform that seems to be making achieving any reform that much harder. 

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal 
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing" 
• An (encouraging?) update on the state of federal criminal justice reform in US Senate 
• Disconcerting update on Senate's (lack of) progress on federal statutory criminal justice reforms
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts

Notable GOP Senators talk up mens rea reform while FIRST STEP Act and SRCA languish in their chamber

Senators Chuck Grassley and Orrin Hatch have this notable new commentary in the Washington Examiner under the headline "Mens rea reform and the criminal justice reform constellation." Here are excerpts:

A growing chorus of voices from across the country and political spectrum are calling out for reforms to our nation’s criminal justice system, and rightfully so.  Our criminal justice system should be tough but fair.  Criminal behavior should be punished, but the punishment should fit the crime. And those we send to prison should be afforded opportunities to participate in programs that prepare them to rejoin society when they complete their sentences.

As Congress works on bills to improve fairness in sentencing and bolster programs to better prepare inmates for life after prison, we should not ignore the root problem of overcriminalization.  There are more than 4,500 criminal laws on the books and more regulatory crimes than the Congressional Research Service was able to count.  And when many of these crimes are drafted without clear criminal intent requirements, it becomes increasingly easy for unsuspecting Americans to be sent to jail for conduct they had no idea was against the law.

Mens rea reform, in addition to sentencing and prison reform, is an essential part of the criminal justice reform constellation.  We can do only so much to improve fairness in our nation’s criminal justice system if we continue to allow individuals to be sent to prison for conduct they did not know was unlawful, even when Congress has not specified that their crimes should be strict liability offenses.

Fairness and justice demand that we clarify our criminal laws.  Statutes and regulations that impose criminal penalties should be clearly written so they prevent and punish criminal conduct even as they the safeguard the liberty of the innocent.  That’s why it is important that Congress take up and pass the Mens Rea Reform Act of 2018, which we’ve introduced, to improve clarity in existing criminal laws and regulations and encourage greater care when crafting future ones.

Our bill recognizes that the mens rea standard that works for one crime might not be appropriate for another.  It improves on past proposals to impose a one-size-fits-all mens rea standard to all laws and regulations that lack such clarity.  Instead, it empowers Congress and federal agencies to fill in the gaps with the appropriate level of intent required to constitute a crime.  The bill calls on the federal government to identify the criminal statutes and regulations that lack a mens rea requirement.  This will allow Congress to clarify the mens rea standard in criminal statutes through the legislative process.  The bill then directs federal agencies to put in place a clear mens rea standard for all regulatory crimes through a transparent process that invites public input on what the appropriate mens rea standard should be. Under our bill, agencies have six years to issue new rules to clarify the required level of intent. If the agencies don’t offer this clarification, they won’t be able to enforce the regulation....

We firmly believe that mens rea reform is an important piece of the broader criminal justice reform landscape.  Together with the bipartisan Sentencing Reform and Corrections Act, which we both support, the Mens Rea Reform Act will improve fairness and clarity in our criminal justice system.

While I share the Senators affinity for mens rea reform, at this point I am eager to hear any news about any movement in the Senate with respect to the FIRST STEP Act or the Sentencing Reform and Corrections Act.  One would hope that the current chair of the Senate Judiciary Committee (Grassley) and a powerful former chair (Hatch) could actually help get some legislation enacted, but the mysteries of government continue to mysterious prevent the passage of legislation that has widespread support in both houses of Congress.

It has now been nearly two months since the FIRST STEP passed the House by a huge margin (details here) and it has now been more than five months since the SRCA passed the Senate Judiciary Committee by a significant margin (details here). Prez Trump has suggested he will sign whatever bill gets delivered to his desk.  But as the summer marches on, I am struggling to remain optimistic that the full Senate will get to vote on any of these reform proposals anytime soon. Sigh.

Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts

The Marshall Project has this notable new Q&A under the full headlined "Van Jones Answers His Critics: The CNN host defends his involvement with a controversial prison reform bill and the Trump White House." I recommend the piece in full, and here are snippets reflecting intriguing parts of Jones's thoughtful perspective on the politics and people impacting federal criminal justice reform efforts:

[W]e need a stable bipartisan consensus to undo mass incarceration. In order to get there, we have to break this logjam that existed under President Barack Obama and in Congress. When we had Obama in the White House and [former U.S. Attorneys] Eric Holder and Loretta Lynch in the Department of Justice, we had a pretty robust bill that I fought tooth and nail to try to get passed. It had sentencing reform, prison reform, and every other kind of reform in there. In the fall of 2016, a bunch of people said, “Well, let's not pass this right now. The Democrats are going to have an epic victory. We'll have Hillary Clinton, more Democrats, and we can get an even better bill.” You see what happened. The lesson I learned from that was take the reform you can get when you can get it and keep going....

[Debates over which bill to support] became more of a split between some of the inside-the-Beltway organizations that have a particular worldview that is important, versus a lot of the grassroots groups who are really dealing on a daily basis with incarcerated people looking at the actual content of the bill. There were black people and white people on all sides of that. So as somebody who has been frontline 25 years on criminal justice, you would want people to give you the benefit of the doubt. But if folks choose not to, that's just called democracy.

I get outraged when people like Topeka Sam, an African American woman who was incarcerated, brings a dozen formerly incarcerated women to the White House to advocate for reform and is attacked. I get outraged when Shaka Senghor, who did 19 years in prison and almost 10 years in solitary confinement, speaks up for the bill and gets attacked. On Facebook they were called sellouts, Uncle Toms. I don't think it's appropriate when formerly incarcerated African Americans are vilified this way....

Where is this strong bipartisan coalition for sentencing reform [that some claim exists]? I know that they were able to get the Sentencing Reform and Corrections Act out of committee in judiciary, which is good on the Senate side, but there is zero chance that that bill is going to be brought for a vote by Senate Majority Leader Mitch McConnell in its present form, and there’s not even a strategy to get McConnell to check it out, that I can tell. A lot of the Republicans do want sentencing reform, but they can't start there with a critical mass of their other colleagues.

I think that because this is one of the very few areas of bipartisan agreement, there will be multiple opportunities to come back again on criminal justice reform and to make progress.... I would love to see sentencing reform. Fought for it my whole life. Fought for it before it was popular. I just didn't understand why some people in the Senate want us to try to carry a camel through a keyhole in the House. If they have the votes to get sentencing reform in the Senate, God bless them. We couldn't find those votes in the House. We had to carry through the House what we could carry through the House. Nobody would be happier than me to see sentencing reform taken up by either chamber. But we had to get through the House what we could get through the House.

Here's the irony: If sentencing reform does now get taken up, or it's introduced as a part of the First Step Act, or there's some amalgamation between the two and something does get passed with sentencing reform in it, it will only get passed because we got something more modest through the House first.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal 
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
• The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum 
• Prez Trump pledges to sign prison reform that will be "best in the world"
• On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing" 
• An (encouraging?) update on the state of federal criminal justice reform in US Senate 
• Disconcerting update on Senate's (lack of) progress on federal statutory criminal justice reforms
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act