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What you need to know about the criminal justice reform bill that might, just might, pass Congress

Supporters expect the First Step Act could pass the Senate with something like 80 votes — if Majority Leader Mitch McConnell allows it to come up for a vote.

photo of interior of a prison
According to the federal Bureau of Justice Statistics, roughly 2.2 million Americans are currently in prison, some of whom are serving lengthy sentences for drug crimes committed decades ago.
REUTERS/Stephen Lam

It’s rare that President Donald Trump, both of Minnesota’s Democratic U.S. senators, Rep. Jason Lewis, and a constellation of political groups, from the Koch brothers’ right-wing advocacy network to the American Civil Liberties Union, give their stamp of approval to legislation addressing a controversial topic.

The bill in question: the so-called First Step Act, which aims to begin overhauling the criminal justice system by making sentencing fairer for those who have committed nonviolent offenses, and implementing reforms to reduce criminal recidivism and tackle the country’s overincarceration problem.

The legislation is the product of a years-long process of compromise involving people across the political spectrum, which is a big departure from historical dynamics on the issue: It used to be the case that one thing Democrats and Republicans could agree on was a “tough on crime” approach that championed harsh, punitive punishments for drug offenses as the best way to tackle the problems of drug addiction and crime. Now, with a wealth of evidence indicating that this approach not only failed to solve those problems but made them worse, members of both parties are pushing for reforms.

The election of Donald Trump — and his appointment of Jeff Sessions, a zealous proponent of hard-line criminal justice policy, as the nation’s top law enforcement official — seemed to doom the cause, which picked up momentum during Barack Obama’s presidency. Yet, Trump has emerged as something of an unlikely, and sometimes inconsistent, advocate for criminal justice reform, spurred on by his son-in-law Jared Kushner, who has pushed the issue in the White House.

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But with just weeks to go until the close of this session of Congress — and with the U.S. House of Representatives already having passed the First Step Act overwhelmingly — a few crime hardliners in the GOP are holding up the legislation in the U.S. Senate, sparking fiery public debate within the party. Wary of inflaming divisions and eyeing other legislative priorities, Majority Leader Mitch McConnell hasn’t signaled an eagerness to move the bill forward.

What McConnell decides to do in the next few weeks will determine whether bipartisan criminal justice reform gets a much-needed first step — and thousands of people facing long prison sentences get a reprieve — or if advocates are forced to go back to the drawing board.

Loosening decades of strict sentencing

Critics of the legislation, particularly Sen. Tom Cotton, an Arkansas Republican, have tried to paint the First Step Act as a “jailbreak” bill that would unleash criminals, even violent ones, back into American society.

The reality is that the legislation proposes a slate of fairly modest reforms — agreed upon by a broad spectrum of Democrats and Republicans — that would result in the release of a small number of incarcerated people, provide ways for prisoners to reduce their sentences slightly through participating in vocational and educational programs, and loosen existing standards for punishment of nonviolent offenders.

The part of the bill that excites reform advocates the most is one that gives federal judges more room to ease mandatory minimum sentences, which require those convicted of certain drug offenses to face a minimum amount of prison time. Those minimums can often be lengthy: Someone convicted by a federal court of selling 28 grams of crack cocaine, for instance, faces at least five years in prison.

The First Step Act’s so-called “safety valve” language permits federal judges to skirt mandatory minimums and offer more lenient sentences to drug offenders with limited criminal records. Other automatic sentencing punishments would get weaker: The federal “three strikes” standard, for example, mandates life in prison for someone convicted of three or more violent or drug trafficking offenses. The legislation would reduce that to a 25-year sentence.

Mandatory minimums and other automatic sentences, in the eyes of criminal justice reform advocates, have been a top contributor to the incarceration crisis in the U.S. According to the federal Bureau of Justice Statistics, roughly 2.2 million Americans are currently in prison, some of whom are serving lengthy sentences for drug crimes committed decades ago.

According to Ames Grawert, senior counsel at the Brennan Center for Justice at New York University, which has long pushed for reforms to the system, the provision about the “safety valve” is “the most interesting if you’re interested in reducing incarceration.”

Also included in the legislation is a provision to mitigate the punitive effects of what’s called “stacking,” a mechanism that can result in extremely long prison sentences if someone possesses a firearm while committing a drug crime, even if that firearm was not used. The bill also retroactively applies the government’s termination of the sentencing disparity between crack cocaine and powder cocaine-related offenses — which disproportionately affected people of color — to those currently serving long sentences as a result of that law.

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The bill also has an eye toward ensuring that people currently in prison don’t go back — another big problem facing the U.S. prison system. A 2011 report from the Pew Research Center found the national average recidivism rate — the share of released prisoners who were arrested again later — was 43 percent. For Minnesota state prisons in 2015-2016, that rate was 34 percent.

Rehabilitation programs for prisoners, like ones that teach vocational skills, have been shown to reduce the likelihood that they will go back to prison. The First Step Act establishes a credit system that lets prisoners translate participation in those programs into reduced sentences, allowing them to earn as much as seven days off their sentence per year.

The big picture of the bill, Grawert says, is that it helps nearly all federal prisoners at least a little. “And it helps a few people a lot,” he said.

A compromise of a compromise

The changes outlined in the bill only apply to the federal prison system, which houses just over 180,000 people, or about 12 percent of the total population of incarcerated people in the U.S.

Keith Humphreys, a professor at Stanford University, estimated how many federal prisoners might go free if the bill passed: around 5,000 in the first year after the law’s passage, and far fewer after that. To put that number in further context, Humphreys notes that around 1,700 people leave prisons in the U.S. each day. The First Step Act, then, would amount to an extra three or four days of prison releases, and a small fraction of the current federal prison population.

The Brennan Center’s Grawert calls the legislation a “compromise of a compromise of a compromise,” and said that it’s at the edge of what groups like his, which favor more sweeping reforms, feel comfortable supporting.

But the middle-of-the-road nature of the bill has helped to woo people who have been slower to embrace criminal justice reform. The bill has managed to earn the support of law enforcement groups — typically the most resistant to these kinds of measures — such as the Fraternal Order of Police. The Senate version of the legislation counts not only liberal Democrats and libertarian-leaning Republicans as co-sponsors, but also several notable right-of-center establishment conservatives.

The bill also has the public support of Trump: Last week, the president tweeted that “Really good Criminal Justice Reform has a true shot at major bipartisan support,” adding that McConnell and Democratic leader Chuck Schumer have a “real chance to do something so badly needed in our country.”

Advocates are hopeful that this broader coalition will help push the legislation to the president’s desk. They are mindful of what happened in 2016, when a widely supported reform bill, the Sentencing Reform and Corrections Act, advanced out of committee and was hailed as a landmark achievement, but ultimately never got a vote on the Senate floor.

The bill has already passed a hurdle in the House, passing in May by a margin of 360 to 59. Proponents of the legislation expect that the bill would get a large share of votes in the Senate, perhaps as many as 80. Sen. Tina Smith said in a statement that she plans to support the legislation, calling it an “opportunity for Congress to work towards justice.” Sen. Amy Klobuchar is one of 19 co-sponsors of the legislation.

Most of the elements for a bipartisan success — a rarity on Capitol Hill — are present with the First Step Act. But the bill could be tanked by a group of dogged opponents to reforming the criminal justice system, led by Sen. Cotton of Arkansas. Cotton is arguing to his colleagues that the legislation was rushed and needs to be scrutinized in additional hearings. The senator has also waved around a report from the Department of Justice, conducted at his request according to Politico, that suggests the legislation would lead to early release for people convicted of sex crimes. (Critics have argued that is a misleading interpretation of the law, and that judges would have discretion to ensure that possibly dangerous people aren’t released early.)

Cotton’s strident opposition has appeared to sway some key GOP senators, such as Marco Rubio and Ted Cruz, who have sounded pessimistic about the bill. The debate has sparked a rare public spat between two senators of the same party: Cotton and Utah Sen. Mike Lee, a conservative Republican, went at each other on Twitter over their disagreements over the bill, with Lee going so far as to deem his colleague’s comments “fake news.”

A ‘unique’ political moment

The brewing fight within his ranks is giving McConnell pause in bringing the First Step Act to the Senate floor, where the promise of further debate and amendment would certainly put pressure on a Senate GOP that is already showing cracks over the bill.

The majority leader has said that his priorities in the lame-duck session are funding the government — funding is currently slated to run out on Dec. 7 — and passing a federal Farm Bill, which has been tied up in negotiations for months. In a tweet outlining end-of-year priorities, the Republican leader did not mention criminal justice reform.

But McConnell is being urged by members of his party to put the legislation on the floor before the 115th Congress comes to an end at the close of the year. Iowa Sen. Chuck Grassley, chair of the Senate Judiciary Committee, was a lead author of the 2016 criminal justice bill and has made the issue a legislative priority for years. Grassley has privately needled McConnell to put the bill on the floor, reportedly saying the majority leader owes him after Grassley oversaw the successful confirmations of Supreme Court justices Neil Gorsuch and Brett Kavanaugh, along with scores of lower-court judges.

President Trump has put pressure on McConnell to advance the bill, too, reportedly pushing him on it during a private call. (The New York Times reported the GOP leader told Trump that there would not be enough time to move on it.) Beyond Trump, Vice President Mike Pence visited Capitol Hill on Tuesday and urged Republicans at their weekly lunch to move forward on criminal justice reform.

Jason Flohrs, executive director for the Minnesota chapter of Americans for Prosperity, an advocacy organization backed by the Koch brothers network that has been a key voice from the right on the issue, said that the First Step Act is a rare chance to get something important done in a lame-duck session.

“You’ve got a couple of loud voices in the Senate stuck on this idea of, we can only be tough on crime as opposed to being smart on crime,” Flohrs told MinnPost. “If this kind of legislation falls victim to those partisan, end-of-session type games that go on, that’s really a disservice.”

Proponents of the bill on the GOP side are reportedly mulling changes to get on-the-fence Republican lawmakers on board. One possible change, backed by some law enforcement groups, would weaken the “safety valve” sentencing provision that has many reform advocates excited. “I think that would be a line in the sand,” the Brennan Center’s Grawert says of that possibility.

Supporters of the bill are worried that, without movement on it by the end of the year, Washington will have missed an exceptional opportunity to make changes to the criminal justice system — and that another one may not come for a while.

If the clock runs out on the bill, Grawert explains, it would reset the legislative process, meaning the legislation would have to be re-introduced and considered in both chambers of Congress next year. With Democrats taking the majority in the House in January, Grawert is concerned they might push for a bolder criminal justice bill that would likely be a nonstarter in the Senate.

“Democrats can do better than this bill,” he said. “But I think this is probably the best bill that can pass the Senate, and I’m worried House Democrats would push for more and we’d end up back at gridlock.”

Grawert also said that criminal justice reform has typically fallen flat in charged political environments, and observers are expecting an amplification of political pressure next year, with Democrats and Republicans squaring off in a divided Congress, and Trump and a pack of would-be Democratic rivals gearing up for the 2020 presidential election. “Given the political environment and 2020,” Flohrs said, “I hesitate to reset any process.”

“This,” Grawert said, “is a unique political moment.”