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On December 15

Sentencing Reform: With Time Running Out, Revised First Step Act Emerges

On December 15, as the 115th Congress entered its final days, backers of sentencing reform released a revised version of the First Step Act.

You might recall that back in May the House of Representatives back handily passed, by a 360-59 margin, H.R. 5628, the “First Step Act” – an acronym for the “Formerly Incarcerated Re-enter Society Transformed Safely Transitioning Every Person” Act. Unlike farther-reaching proposals during the Obama administration, which went nowhere in a Republican-controlled Congress, this House bill avoided major changes to federal sentencing law, instead concentrating on federal correctional operations and policies, such as greater emphasis on rehabilitation programs.

But that bill stalled in the Senate, where Judiciary Committee chairman Charles Grassley (R-IA) wanted to make sentencing policy changes as well, for which he saw fairly broad bipartisan support, even though some Republican senators seemed firmly opposed, claiming it meant early release for too many federal inmates. (One leading opponent, Sen. Tom Cotton, R-AR, likened Grassley’s proposal to a “jailbreak.”) Majority Leader Sen. Mitch McConnell (R-KY) voiced concern that a bill with major sentencing reform provisions would divide his party, adding there might not be enough time for such a contentious measure.

So for most of the rest of this year, things sat at an impasse: Part of the Senate wanted sentencing reform provisions added to the generally non-controversial House bill, while some Senators were strongly opposed and Senate leadership was unenthusiastic.

But a breakthrough of sorts came on December 12, as the 115th Congress entered its final days. Backers of sentencing reform released a revised version of the First Step Act in a drive to push it through both chambers of Congress in the scant time remaining. With backing from the Trump White House and extensive talks involving leaders in both chambers of Congress and some former opponents, both on Capitol Hill and among interest groups, House and Senate leaders said they’d bring it up for floor votes by year’s end.

It’s still far from a sure bet, but chances for enacting a sentencing reform bill this year are much improved from where they were months or even weeks earlier. Why? First, the backers persevered in pressing for a deal they could pass. The president, formerly somewhat cryptic on the broader bill, came solidly onboard, publicly calling for McConnell to bring it to a vote. (It didn’t hurt that Senate nose-counters recently estimated there are between 75 and 80 Senate “yes” votes, enough to break a potential filibuster.)

Backers also shrewdly drew support by hearing out and addressing concerns of some legislators and groups that had been holding back. The National Fraternal Order of Police, the nation’s largest law enforcement union, signed on when most of the sentencing changes were made prospective only, not retroactive. (One exception: The Fair Sentencing Act’s reductions in sentencing disparities between powder and crack cocaine will be made retroactive.) Similarly, carving out more offenders from expanded “good time” credit helped convert some “maybe” votes to “ayes.” The revised bill has 34 co-sponsors, evenly split between the two parties.

A legislative session’s final days can be unpredictable, and the revised First Step Act still has some hardline opponents. But with more states, including some generally conservative ones, adopting their own sentencing reform bills, it looks increasingly likely Congress will do something similar for federal crimes in 2018.

Christopher Zoukis, author of Federal Prison Handbook, Prison Education Guide, and College for Convicts, is the Marketing Director of Brandon Sample PLC. He can be found online at https://sentencing.net, https://compassionaterelease.com, and https://clemency.com.

About Christopher Zoukis

Christopher Zoukis is the Marketing Director for the Law Offices of Brandon Sample. He can be found online at https://sentencing.net.

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