Hard Decisions Loom In Lame-Duck Push For Sentencing Reform

By Michael Macagnone | November 4, 2018, 8:02 PM EST

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, questions Supreme Court nominee Brett Kavanaugh as he testifies before the Senate Judiciary Committee on Sept. 27. (AP)

Over the next two months, Republican lawmakers have a chance to pass the most comprehensive criminal justice reforms in a generation, a combination of prison and sentencing reforms that stand to improve the lives of more than 180,000 federal inmates.

The changes are incremental but significant: Increases in compassionate release of terminally ill inmates. Bans on restraints for pregnant inmates during childbirth. Cuts to mandatory minimum sentences. Greater leeway for judges imposing sentences.

For Shon Hopwood, a former bank robber turned attorney who has been fighting for such reforms since his release from prison, the nascent compromise bill represents "the best criminal justice reform bill of my lifetime."

But some tough decisions and hard bargaining lie ahead. The bill, backed by Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, is hotly debated and opposed by many conservatives who worry it may release dangerous people prone to reoffend and overburden local police.

There is also fear the inclusion of sentencing reform with prison reforms, which have generally had more support among lawmakers, will threaten the already-precarious chances of passing a criminal justice bill this year before having to start all over again with a new Congress.

Hopwood, now a Georgetown University Law School professor, thinks they've found a compromise that can pass Congress and be signed into law. And while he's intimately aware of how many of his friends it won't help, he still thinks the reforms would bring about concrete changes in the lives of many federal inmates.

That includes giving them the opportunity to serve out their time in a prison within 500 miles of their families, or allowing them to earn another seven days per year of "good time" for earlier release.

It might not sound like a lot to those who have never been in the system, but for Hopwood, it would have been 77 days off of his 12-year sentence.

"Seventy-seven days of being in custody versus 77 days of being in freedom is an enormous amount of time," Hopwood said.

A Precarious Landscape

Speaking with Law360 in October, Grassley said he thinks the plan to combine a House-passed bill on prison reform with elements of a sentencing reform bill can get through the upper chamber.

"We've already worked out what I think is something that can move in the Senate if we can get it up, and it would be both sentencing reform and prison reform," Grassley said.

But Grassley and his supporters face a tough fight. Rep. Doug Collins, R-Ga., one of the House prison reform bill's sponsors, told Law360 that there's an opportunity to pass prison reform, but "it comes down to folks being willing to put aside the improbable for what is possible."


A bipartisan group of senators have pushed for the Sentencing Reform and Corrections Act for years, which would make a series of major changes to how the federal government sentences many defendants, mostly nonviolent ones.

The bill has been opposed by a number of conservatives who claim its measures would reduce sentences for too many offenders. The measure would:

  • Eliminate "three strikes" mandatory life sentences for some offenses and reduce enhanced penalties for certain repeat drug offenders.

  • Give judges greater discretion to sentence defendants to less than the 10-year mandatory minimum for certain drug offenses.

  • Apply previous reforms, like the Fair Sentencing Act, retroactively to allow some prisoners still in the system to petition for shorter sentences.
"We've got folks in the Senate who want to do stuff that I agree with, but we just don't have the support from the president and we don't have the support over here," for sentencing reform, Collins said.

Grassley said he couldn't characterize the nature of the agreement, but he's been in talks to get a new compromise piece of legislation moving in the so-called lame-duck session between November's elections and the end of the current Congress in January.

Grassley's plan would add elements of his own sentencing reform bill, the Sentencing Reform and Corrections Act, to the House-passed prison reform bill, according to a committee aide. Grassley, who declined to elaborate on how much of the sentencing reform elements would be in the compromise bill, has pushed for the measure as chairman since taking over the panel in 2015, but has yet to get a floor vote on the bill.

According to a committee aide, the in-the-works deal would roll in several elements of the SRCA, including reductions in mandatory minimums, increased flexibility for judges to set lower sentences, change to how weapons enhancements for drug crimes are calculated and the Fair Sentencing Act retroactivity. Negotiators are also talking about including provisions from the SRCA that would create a National Criminal Justice Commission and language that would reinvest savings from the bill in crime-reduction efforts.

Still, the plan puts Grassley at odds with members of his own party, ranging from conservatives to leadership in both chambers to Attorney General Jeff Sessions, who have already balked at the prison reforms in the House bill, the First Step Act. The bill, an acronym for the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, passed the House on a 360-59 margin in May, with opposition from mostly Democrats who think the bill does not go far enough.

The more controversial elements of prison reform, such as a proposal to increase the amount of "good time" days off prisoners can earn from 47 to 54 days per year, could fall by the wayside in order to mollify some conservative concerns with the existing legislation, Collins said.

But not including sentencing reform in the package could alienate Democrats needed to ensure the compromise legislation passes both chambers. Longtime sentencing reform advocate Sen. Dick Durbin, D-Ill., and other Democrats like New Jersey Sen. Cory Booker and California Sen. Kamala Harris have even actively worked against the First Step Act.

The trio have instead pushed for Grassley's bill, although they and other backers of the SRCA don't appear to have been involved in crafting the Senate Judiciary Committee chairman's compromise legislation.

Where such a bill — which would divide Republicans in both chambers — may fit in the post-election calendar is a mystery.

Sen. John Cornyn, R-Texas, the majority whip and main sponsor of the Senate version of the First Step Act, told Law360 that Senate Majority Leader Mitch McConnell will have a tight schedule to fill, between confirming the backlog of two dozen judges and keeping the government open ahead of a Dec. 7 funding deadline.

"Certainly Sen. McConnell is going to prioritize federal judicial nominations, but if there is the will to move on legislation, that would be included," Cornyn said.

Republicans Divided

The proposal has been a flashpoint for the Sessions-led U.S. Department of Justice, which has pushed back against even the prison reform legislation. In a July letter to the White House, the DOJ said the proposed changes would "allow serious criminals to bypass a substantial portion of the consequences associated with their actions."

The DOJ's letter to the administration said that aspects of the First Step Act could "exacerbate, rather than mitigate" the country's drug crisis and a claimed increase in the national violent crime rate.

Joining the DOJ is a whole constellation of other law enforcement and conservative organizations, including the Federal Law Enforcement Officers Association, American Federation of Government Employees and National Sheriffs' Association. Outside think tanks like the conservative Center for Immigration Studies have stepped up their opposition as well, concerned that undocumented immigrants could be let off easy under the legislation.

Those organizations have allies in the Senate like Sen. Tom Cotton, R-Ark., who has spoken out against sentencing reform and, according to a Politico story, worked behind the scenes to orchestrate some of the public opposition to the bill. Cotton declined to comment.


In May, the U.S. House of Representatives passed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, or First Step Act, with substantial bipartisan support.

While a number of conservatives have been unhappy with how the bill changes prison releases, liberal advocates have pushed for the bill to address sentencing reform. The bill aims to change how the federal government treats current prisoners and help reduce recidivism. The measure would:

  • Require prisoners be held within 500 miles of their families.

  • Increase releases for prisoners who are terminally ill.

  • Allow a greater accumulation of "good time" credits per each year of incarceration.

  • Expand existing anti-recidivism programs that could allow for earlier release to alternative incarceration facilities such as halfway houses.
Jonathan Thompson, executive director for the National Sheriffs' Association, said "it is no secret that law enforcement and sheriffs have problems with SRCA and the First Step Act," and said he feels like many of the provisions in the bills would "let off easy" drug dealers and those who commit crimes with a weapon.

"What I am worried about, though, is that there is a mad rush to do something that I always think results in bad legislation rather than good legislation," Thompson said.

That isn't to say that Thompson doesn't see problems in the current system — he pointed to a lack of anti-recidivism programs in the federal system that puts pressure on local police departments when federal inmates commit new offenses later. The current approach "is basically hope, and hope is not a strategy in my book," Thompson said.

"I think there are a number of things in the federal prison system that are woefully short and we want to find solutions," Thompson said, but thinks the latest proposals go too far.

Still, those advocating for reform have an ally in the White House in the form of President Donald Trump's son-in-law Jared Kushner, who has reportedly pushed for the passage of the bill for months, and Trump himself has continued to say he would support the First Step Act.

"We're gonna make certain categories tougher when it comes to drug dealing and other things. There has to be a reform. It's very unfair to African-Americans, it's very unfair to everybody and it's also very costly," Trump said in a call to "Fox and Friends" in October.

He also emphasized that he, not Sessions, makes the final call about what legislation to support and ultimately sign.

"If he doesn't [agree], then he gets overruled by me because I make the decision. He doesn't," Trump said.

Hold Out for Everything, End Up With Nothing?

Many reform advocates worry that pushing too hard to add too much to a reform package could jeopardize the progress in the First Step Act.

Kevin Ring, the vice president for Families Against Mandatory Minimums, said that there are real people who will have their lives improved by the bill, and they could easily end up with no legislation at all. Ring himself served a 15-month sentence starting in 2014 for his role in the Jack Abramoff lobbying scandal.

"We'd greatly prefer having the sentencing be a part of it, but we don't want to hold out for everything and end up with nothing," he said.

Still, Ring and other reform advocates don't feel like the First Step bill is perfect. He said that the way the anti-recidivism programs are targeted may not do so much good. When he served his sentence, he was eligible for GED and other programs that he as a college graduate didn't need, while other inmates who would need much more help to reintegrate into society couldn't take advantage of them.

"The system is not working like it should, and we are wasting a lot of money on not-dangerous people," Ring said.

Derek Cohen, director of Right on Crime, a national campaign of the Texas Public Policy Foundation, said the bill is "trying to make folks who are incarcerated have an easier path to re-entry and a more effective path to re-entry," and lessen the likelihood of committing more crimes.

"It is really heartening to see legislation that has moved as much as this has," Cohen said, but "I don't think any criminal justice policy wonk would say in their mind it is the perfect bill."

Other advocacy groups, like Demand Justice, have pushed hard to include sentencing reform elements in any prison reform bill. Sakira Cook, senior counsel for the group, said that a number of conservatives, including Cornyn and Sen. Ted Cruz, R-Texas, have embraced sentencing reform of some kind in the past.

She also pointed out that even if both chambers of Congress change political hands this fall, and Democrats amenable to sentencing reform take over, they would still have to marshall bipartisan support to pass legislation through the Senate.

"Even if the House changes, the Senate still is what it is," she said. "In order for there to be some movement on this issue, you have to find the sweet spot."

For Hopwood, the next two months presents a choice between trying to help as many people as possible now and going for the long haul. He's had to make his own choices — deciding to focus on advocating for policy reform, rather than taking on more clients from the hundreds of federal inmates who have turned to him for help.

For them, he's willing to accept a compromise to make incremental reforms.

"What you're saying when you hold out for systemic reform is, 'We don't want to help the lives of people who are in the system for 20 years,' because it might be that long," Hopwood said.

Michael Macagnone is a reporter for Law360's Washington, D.C., bureau. Follow him on Twitter. Editing by Katherine Rautenberg.

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