Last night, the Republican-controlled United States Senate passed an amended bill that built upon a piece of legislation that was overwhelmingly approved (360-59) by the House earlier this year. If signed into law, as is all but assured, it would represent a major step forward in reforming America's flawed criminal justice system. The proposal is backed by President Trump, and recently gained key support from Senate Majority Leader Mitch McConnell, who ended up voting in the affirmative. In a key test vote on Monday, the bill cleared a major hurdle by a wide margin:
Legislation that would ease federal sentencing laws for some offenders cleared its first major test vote Monday, garnering overwhelming support in both parties even as some conservatives portrayed the bill as soft on crime. The Senate voted 82-12 to advance the bill. A vote on final passage would come later in the week, but not until the chamber has debated and voted on a series of amendments from opponents that will be brought up Tuesday...The bill would give judges more discretion when sentencing drug offenders and allow about 2,600 federal prisoners sentenced for crack cocaine offenses before August 2010 the opportunity to petition for a reduced penalty. The bill also encourages prisoners to participate in programs designed to reduce the risk of recidivism, with the reward being the accumulation of credits that can be used to gain an earlier release to a halfway house or home confinement to finish out their sentence. To win over wary senators, sponsors tweaked the bill to prevent those convicted of violent firearm offenses, sexual exploitation of children and high-level fentanyl and heroin dealing from participating in the supervised release program — but Senator Tom Cotton, R-Ark., and others want to expand that list.
Tuesday evening's final tally was a lopsided 87-12. All twelve votes against advancing the legislation came from Republicans:
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Senators who voted no:
— Igor Bobic (@igorbobic) December 18, 2018
Burr
Cotton
Enzi
Kyl
Sasse
Risch
Kennedy
Barrasso
Sullivan
Toomey
Rounds
Murkowski
On the final passage vote, Senators Burr and Toomey flipped to yeas, while Senators Shelby and Rubio (who voted to green-light debate earlier in the week) voted nay. Several previously-wavering Senators were won over by compromises and concessions, but these dozen holdouts said they wanted to grow the list of offenders who are ineligible for early release consideration. Ben Sasse of Nebraska, for instance, explained his opposition to the bill prior to the amendment process: "Everyone should want two things -- to keep families together by reducing sentences for certain nonviolent offenders; and to keep our communities safe from violent criminals who rightly belong behind bars. How we meet these two goals matters, because many of the people in federal prison are seriously violent. The current draft fails. While this Sentencing Reduction Bill does some good things for nonviolent inmates, as written it will also release thousands of violent felons very early. That’s a grave mistake that will hurt innocent Americans. Good intentions are not enough." Sasse introduced amendments that would exclude offenders who were convicted of serious crimes such as carjacking and sex trafficking. Meanwhile, the Wall Street Journal's editorial board endorsed the underlying measure, arguing that some additional tweaks and accommodations could be constructive -- even while chiding leading critic Tom Cotton for needlessly alienating colleagues:
Endorsing criminal-justice bill, WSJ also endorses some Cotton amendments while criticizing his handling of the debate. https://t.co/R1m4WrYrtu
— Ramesh Ponnuru (@RameshPonnuru) December 17, 2018
The thrust is that maybe prisoners would be less likely to return to crime if they spend more of their time in prison on education or vocational training. Current federal law allows prisoners who aren’t serving a life sentence to earn early release for good behavior, a low standard that basically means not stabbing anyone. These are called “good time credits.” The First Step Act would add “earned time credits,” which work as follows: Prisoners undergo a risk assessment, which is used in Texas and Georgia and considers factors like criminal history or behavioral tendencies. Only those deemed low or minimum risk to society can apply these credits toward spending more of the sentence in home confinement or a halfway house. This doesn’t reduce a sentence, only where it’s served. Some 95% of prisoners aren’t there for life, and the point is to help rehabilitate at least some.
The original Senate bill excluded prisoners convicted of some 50 serious crimes from applying credits toward time in a halfway house, even if prisoners are low risk. This list of crimes was created to assuage skeptics that the many violent and highly dangerous criminals in federal prison won’t benefit from the bill. Yet the exclusions list turned into a political nightmare, as critics like Tom Cotton of Arkansas focused on dangerous crimes that didn’t make the roster. The reality is that prisoners who aren’t excluded from earning credits aren’t automatically entitled to them. Inmates must first be deemed low risk. The Senate and White House also added sentencing reforms, most of which aren’t controversial, such as retroactive reductions for those sentenced unfairly for crack cocaine. Yet some on the right didn’t like expanding the legal “safety valve” that allows relief from mandatory minimum sentences if a defendant is cooperating with law enforcement, among other conditions.
The bolded portions are important: Though critics of this policy warn that some violent offenders could unjustly obtain early release, it's crucial to note that just because a "class" of convict isn't specifically carved out of eligibility doesn't, that mean that such convicts will be entitled to the law's early release provisions. As the piece stipulates, "inmates must first be deemed low risk" before the individual merits of their case are considered further. Nevertheless, the amendments being put forward by Cotton (which have some overlap with Sasse's ideas) seemed fair and merited serious debate: "Mr. Cotton is offering three amendments, including further expansions of the list that bans certain offenders from earning time on supervised release. His colleagues will be hard-pressed to vote down adding carjacking and assault to the list. Ditto for amendments that would require victims to be notified if an inmate is moving into a halfway house, which offers victims a chance to tell the warden if, say, the person has contacted or threatened them while in prison. The third amendment would require data on rearrests for those who are part of the program. The public has the right to know how prisoners act once they’re released under this bill."
All three Cotton-Kennedy amendments failed last night in the run-up to final passage. I likely would have supported a number of the amendments, and I like and respect a number of the members who voted against the final version. Overall, however, this was an important and worthy proposal. If and when the president signs it, it will mark a major bipartisan achievement in the waning days of the fully GOP-held Congress, and will hand the president a significant win that he could and should tout to moderate and independent voters in advance of his re-election campaign. It also improves upon existing status quo policies, which too often institutionalize dysfunction and paralyze progress that could help improve and rebuild lives, make our overall justice system smarter, and reduce recidivism. I'll leave you with Sen. Mike Lee -- a conservative and former prosecutor -- making the case for these reforms a few months ago. Lee has been an ardent advocate for policy changes on this front for years, so last night's outcome was certainly very gratifying to the Utah conservative and his allies in this battle:
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