There appears to be enough bipartisan backing to pass some modest reforms to federal prison conditions and mandatory minimums. Even the Fox Broadcasting Company has put out a statement of support for the FIRST STEP Act. Yet the bill is still stuck in the Senate, and the future of federal criminal justice reform legislation remains unsettlingly cloudy.
President Donald Trump formally announced his support for the law in November, and it has already passed the House. But Sen. Majority Leader Mitch McConnell (R–Ky.) says it might not get a floor vote until January. McConnell is being pressured by fellow conservatives who back the bill and say they know they have the votes to pass it, but a group of Republicans is apparently trying to remove some "safety valve" provisions that permit judges to deviate from mandatory minimum sentence guidelines in some cases. That safety valve has the potential to reduce the sentences of more than 2,000 defendants a year.
Trump reportedly has a plan to get the law passed. According to Sen. Lindsey Graham (R–S.C.), the president wants to shove the FIRST STEP Act into a year-end must-pass spending bill. Lawmakers just passed a stop-gap bill to continue funding the federal government for a couple more weeks. But that runs out right before Christmas.
Just talked with President @realdonaldTrump. He strongly believes criminal justice reform bill must pass now.
He also indicated he supports putting criminal justice reform bill on year-end spending bill which must include MORE wall funding.
I agree with both.
— Lindsey Graham (@LindseyGrahamSC) December 7, 2018
In other words, Trump is trying to tie the FIRST STEP Act to funding for his border wall. He wants $5 billion to start the wall. Senate Democrats have said that they're willing to fund $1.6 billion for more border security but that they're not going to give Trump all the money he wants. And obviously, once the Democrats take over the House they're not going to give him the funds.
Republican Senators have introduced legislation to give Trump $25 billion for the wall, but that bill has no chance of going anywhere at all.
Trump's tactic here is not terribly unusual. Year-end "must pass" omnibus spending bills have become a depository for unrelated legislation when congressional leaders are struggling to pull together votes. Some of these bills wouldn't survive public scrutiny. Back in 2016, Reason explored several of the unrelated pieces of legislation that got dropped into a $1.1 trillion spending bill passed before the end of 2015.
So the big question here is whether the two demands can be separated. Could the FIRST STEP Act get tossed in the spending bill even if Democrats refuse any consideration of more border wall spending? And will Trump still support it in that case? If he's stubborn, could that actually cause politically ambitious Democratic senators like Kamala Harris of California and Elizabeth Warren of Massachusetts to turn against the FIRST STEP Act so they can use it as a bludgeon against Trump?
More on the contents of the FIRST STEP Act from Jacob Sullum here.
UPDATE: Sen. Ted Cruz (R-Texas) who had been opposing the FIRST STEP Act (after previously supporting it) says he's back on board after an amendment was added to "exclude violent offenders from being released early." His statement is here.
UPDATE: This afternoon Trump (who promoted the FIRST STEP Act in a speech in St. Louis today) also tweeted his hopes that there'd be a Senate vote:
Hopefully Mitch McConnell will ask for a VOTE on Criminal Justice Reform. It is extremely popular and has strong bipartisan support. It will also help a lot of people, save taxpayer dollars, and keep our communities safe. Go for it Mitch!
— Donald J. Trump (@realDonaldTrump) December 7, 2018