November 2018: A Senate Deal Adds Sentencing Reform to the First Step Act

A tentative deal in the Senate may finally clear the way for the most substantial rewrite of the nation's criminal justice laws in a generation. It adds sentencing reform to the prison reform bill the House passed in May, and the only real question left is whether the Senate makes time for a vote.

Update (October 2026): This is a news post from November 2018. The Senate deal described below passed. The First Step Act became law on December 21, 2018 (Pub. L. 115-391). For what the final law does, see our section-by-section summary.

We just made it through a blistering midterm election season, and there is little question that the country is divided. Starting in January 2019, Congress will be divided too, with Republicans controlling the Senate and Democrats the House.

With all the polarization inside and outside of Washington, D.C., it is hard to think of any issue that would bring the two parties together, except one: criminal justice reform. The one thing Democrats and Republicans seem to agree on is that our criminal justice system is broken, terribly broken. A few statistics make the point.

The original article said the United States incarcerates more people per capita than anywhere else on Earth. It also said the U.S. incarceration rate is about five times Canada's, seven times Germany's, and ten times Japan's. Yet the U.S. is not five times safer than Canada or ten times safer than Japan.

Prison and sentencing reform bills have bounced around Congress for years. Now, after a bipartisan deal among members of the Senate Judiciary Committee, the First Step Act could actually pass.

Here is how we got here.

The House version, May 2018

In May 2018, the House passed the FIRST STEP Act. The name stands for "Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person" (boy, House members sure do like their acronyms). It was a prison reform bill only, focused on "back-end" issues, meaning changes that help people already in prison.

The House bill included:

• A "risk and needs assessment" system to rate each prisoner's risk of committing new crimes after release
• Funding for job training and rehabilitation programs
• A fix so prisoners get the full 54 days a year of good time credit
• Health reforms for women in prison

A big criticism was that the Senate had a much broader bill that covered both prison reform and sentencing ("front-end") reform. It was called the Sentencing Reform and Corrections Act (SRCA).

The Sentencing Reform and Corrections Act (SRCA)

The SRCA had been stuck in the Senate for years. It focused mostly on sentencing.

"Front-end" reform deals with what happens before someone goes to prison, like mandatory minimum sentences. A mandatory minimum is the lowest sentence a judge is allowed to give for a crime. "Back-end" reform helps people who are already in prison.

Mass incarceration in the United States is mainly due to harsh mandatory minimum sentences put in place many years ago. That is why many in Congress saw the SRCA as more important than the House bill. Supporters of the House bill answered that reform had to start somewhere.

The SRCA had bipartisan support from Republican Chuck Grassley and Democrat Dick Durbin. But Majority Leader Mitch McConnell would not bring it to a vote. Jeff Sessions, as a Senator and later as Attorney General, worked against it.

The new bill that could pass both chambers

When the House bill went to the Senate, many expected it to go nowhere because it lacked sentencing reform. Now, after some compromise, the Senate version will add some sentencing changes that Grassley and Durbin wanted. Sessions left office as Attorney General on November 7, 2018, removing one major opponent. Acting Attorney General Matthew G. Whitaker's support for the bill should also make reform easier.

The combined bill includes:

• More room for judges to avoid harsh mandatory minimum sentences
• Retroactive relief under the Fair Sentencing Act of 2010, which reduced crack cocaine penalties that fell hardest on Black Americans
• An end to "stacking" of gun charges under 18 U.S.C. § 924(c), where a first-time offender could get decades in prison for multiple gun counts in one case
• A wider "safety valve," which lets judges go below a mandatory minimum in some drug cases, plus shorter mandatory minimums for some repeat drug offenders

Waiting on the White House

The Senate bill has broad support from people and groups ranging from the ACLU to the Koch brothers. Law enforcement groups back it, as does White House insider Jared Kushner.

The President recently made a public statement supporting the reforms. If that backing holds, the most sweeping change in criminal justice policy in a generation could become law, if it gets floor time in the Senate.

McConnell and the problem of time

The bill seems to have support in both chambers and from the White House. The problem is time.

According to the New York Times, McConnell met at the White House to discuss the agenda for the last weeks of the session. Insiders said he told the group the bill would take 10 days of Senate floor debate. With the session set to end December 14, that is a real problem.

McConnell said he is open to moving the bill, but needs to "see how it stacks up against our other priorities going into the end of our session." His spokesman, Don Stewart, agreed: "The support for, and length of time needed to move this bill is not knowable at this moment."

So McConnell publicly says he will move the bill if the votes are there, this session or next year. But the session is coming to a close. No one knows what will happen, but it looks to us like criminal justice reform will happen sooner rather than later. The big question is whether it happens this term or next.

Since McConnell's comments, Senate Judiciary Chairman Chuck Grassley has been tweeting nonstop about the First Step Act. In some tweets, he essentially called McConnell out, pointing to his own work helping confirm two Supreme Court justices and many other federal judges. Grassley suggested it was time for McConnell to return the favor.

We should know more within the next ten days. There is no formal whip count yet, but there is tremendous pressure on McConnell to give the bill floor time. So do not count the First Step Act out yet.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.