The House of Representatives recently passed the so-called “First Step Act,” which is very different from the “Sentencing Reform and Corrections Act” that is still bouncing around the Senate.
I discussed in a previous article, the many details of the House’s “First Step Act” (First Step). Let’s take a closer look at the debate.
Some Senators Oppose First Step
The recent passage of First Step seemed to be a big win for supporters of federal criminal justice reform and even for the current administration occupying the White House. Indeed, First Step flew through the House of Representatives on an impressive bipartisan vote. However, the devil, as they say, is in the details.
While at first blush, First Step looks like a criminal justice overhaul with bipartisan support, First Step still needs to pass in the Senate. That is where the problem begins.
Since 2015, Senators Dick Durbin (D. Illinois) and Chuck Grassley (R. Iowa) have been pushing for a broader, more comprehensive criminal justice reform package called the Sentencing Reform and Corrections Act. It actually took some time for Sen. Grassley to get behind the notion of criminal justice reform. Yet, once Sen. Grassley came around, he has been a committed, staunch supporter of the Sentencing Reform and Corrections Act (SRCA). Sen. Grassley once stated about criminal justice reform, simply “It’s the right thing to do.” Not surprisingly, the half-measure of First Step is an alternative that senior Senators cannot support.
The First Step/Sentencing Reform and Corrections Act Debate – Against First Step
On the one side, supporters of the Sentencing Reform and Corrections Act, like Sen. Grassley, seek a much more comprehensive criminal justice package. It makes substantive changes to both prison programs and federal sentencing laws. That is why it has the title Sentencing Reform and Corrections Act. (Emphasis added).
Quite simply, the senior senators who authored the Sentencing Reform and Corrections Act understand that making changes for inmates already in prison, or who are planning to exit, is all well and good, but it does nothing to address the mandatory minimum sentences that are responsible for flooding the prison entrances with inmates in the first place. Stated differently, mandatory minimums, which are largely responsible for the mass incarceration in this country need to be addressed. The Sentencing Reform and Corrections Act does address mandatory minimums, and shortens them in several key ways. First Step, by contrast, does nothing to ease mandatory minimums.
Sen. Dick Durbin, the chief author of the Sentencing Reform and Corrections Act, recognizes “You don’t get many opportunities around here to do anything meaningful or substantive. . . . Let’s not waste this one. Let’s get this right.”
In sum, the Senators are essentially saying that real substantive criminal justice reform is finally on the table. This is an opportunity to do what needs to be done for the criminal justice system, rather than go with some non-substantive half-measure that kicks the can down the road for another generation.
Those who opposed First Step include several prominent Democratic and Republican senators; more than 100 civil rights organizations, including the American Civil Liberties Union; and former Attorney General Eric Holder, who stated “Momentum for sentencing reform is being derailed by an effort that is misguided, ideological and outdated. . . . The narrow ‘prison reform’ bill won’t deliver the transformative change we need.”
The First Step/Sentencing Reform and Corrections Act Debate – For First Step
On the other side, supporters of First Step say that putting sentencing provisions (most importantly mandatory minimums) into the mix will kill First Step or any criminal justice reform entirely. Conservative Republicans still believe in the antiquated notion that giving any ground on mandatory minimums will make them look “soft on crime.”
Representative Hakeem Jeffries (D. New York) who authored First Step says that the prison bill is not the end, but rather “the end of the beginning on a journey undertaken to eradicate our mass incarceration epidemic in America.” Stripped to its essence, First Step supporters are saying that ‘something is better than nothing.’
More than 100 former federal prosecutors support First Step. Conservative groups and faith-based groups support the bill.
What is the Next Step?
The ball is in the Senate’s court. That means that Senate Majority Leader McConnell (R. Kentucky) must be part of the process. Sen. McConnell has not been a trustworthy or helpful senator regarding criminal justice reform in the past, so it remains to be seen whether he will allow negotiation on First Step.
SRCA supporters certainly hope that there will be time and room to find compromise and put some sentencing reform into First Step. Sen. McConnell, however, could try to push First Step, as is, through the Senate. While that would not be an uncharacteristic move (he had been responsible for killing the Sentencing Reform and Corrections Act in the past), Sen. Grassley, who opposes First Step, is close to Sen. McConnell. Not having Sen. Grassley on his side might give Sen. McConnell pause.
We all now must pause to see what happens next.
For sentencing advice, representation, and advocacy, contact Brandon Sample, Esq. Call 802-444-HELP for a free consultation today.