Sentencing Reform

Here Are the 'Improvements' That Won a Senate Vote on Sentencing Reform

The last-minute changes show how hard it is to make the criminal justice system more proportionate and discriminating.


Bill Clark / CQ Roll Call / Newscom

When he finally agreed to schedule a vote on the prison and sentencing reform bill known as the FIRST STEP Act, Senate Majority Leader Mitch McConnell (R-Ky.) cited "improvements to the legislation that have been secured by several members." Whether these changes actually count as improvements depends on your perspective, but they were crucial to gaining the support of Ted Cruz (R-Texas) and a few other Republican senators who were initially opposed to the bill, which according to New York Times reporter Carl Hulse "seemed to be the clincher" in swaying McConnell.

The votes of Cruz et al. were by no means necessary to pass the FIRST STEP Act, which already had the support of Democrats, most Republicans, the president, and several law enforcement groups that are ordinarily leery of sentencing reform. The bill, which may get a Senate vote as soon as today, is expected to pass by a margin of more than 2 to 1. But McConnell, ever wary of intraparty division, "wanted every conceivable guarantee that the criminal justice measure would not blow up on him politically," Hulse notes. The cost of reassuring McConnell was further dilution of a bill that was already pretty weak tea, the result of compromises on top of compromises. Here are some of the concessions that were necessary to get McConnell to honor his promise of a vote:

Less judicial discretion in applying the "safety valve." The latest Senate version of the FIRST STEP Act, like the earlier version, widens the "safety valve" that exempts certain low-level, nonviolent drug offenders from mandatory minimum sentences by increasing the maximum number of criminal history points allowed from one to four. But the new version eliminates a provision that would have allowed judges to waive that requirement when a defendant's score "substantially overrepresents" the seriousness of his criminal history or the danger he poses.

More exclusions for earned time credits. Although there is no parole for federal offenders, "good behavior" can earn prisoners up to 54 days off their sentences for each year they serve. The FIRST STEP Act builds on that incentive system by offering prisoners 10 days of time credits for every 30 days of "successful participation in evidence-based recidivism reduction programming or productive activities." Both the House version of the bill, which was overwhelmingly approved in May, and the initial Senate version included a long list of conviction offenses that disqualify prisoners from earning these credits. The new Senate bill makes that list even longer, adding offenses such as heroin distribution (if the prisoner "was an organizer, leader, manager, or supervisor of others"), helping aliens convicted of aggravated felonies (including drug dealing) enter the United States, and failure to register as a sex offender.

Stricter rules for prerelease custody and supervised release. Prisoners who are subject to supervised release after completing their prison terms can get to the stage earlier if they earn the newly authorized time credits. The new Senate bill limits the early start of supervised release to no more than 12 months. It also requires revocation of prerelease custody (home confinement or placement in a "residential reentry center") and return to prison for any "nontechnical" violation, a penalty the earlier version of the bill merely authorized.

These changes leave the bill's sentencing reforms, which were added in the Senate and could benefit as many as 2,700 currently incarcerated crack offenders, along with another 2,200 or so newly convicted drug offenders each year, mostly intact. At the same time, it is doubtful that the changes will have significant public safety benefits.

"I fully support reducing mandatory minimum prison sentences for nonviolent drug offenders," Cruz said before agreeing to support the bill. "My central concern is that we should not be releasing violent criminals….I'm working with the bill sponsors to make sure that violent criminals are not included."

Some of the additions to the list of offenses that make prisoners ineligible for the new time credits, such as various kinds of assault, do involve violence. But all of these prisoners will be released eventually. Cruz is simply arguing that they should not get out a few months early by participating in programs aimed at reducing recidivism, which you might think would be especially important for violent offenders.

On the whole, the FIRST STEP Act still represents a significant improvement. But the changes are quite modest in the context of a federal system that imprisons more than 180,000 people and state systems that hold another 2 million. The difficulty of passing these incremental reforms, which took years notwithstanding broad bipartisan support, does not bode well for further progress anytime soon.

NEXT: Federal Judge Upholds Maine's Ranked-Choice Voting

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  1. “You’ll take your crumbs of reform and you’ll like them!”

    1. Crumbs are better than no crumbs.

  2. Is there any picture of McConnell where it doesn’t look like he’s enjoying an anal probe?

    1. Don’t judge. Cocaine Mitch is just trying to hold back the sort of wicked nosebleed that happens when you powder your nose.

  3. Senate Majority Leader Mitch McConnell (R-Ky.) cited “improvements to the legislation that have been secured by several members.”

    From the look on his face, I’m guessing one of the improvements was a rider granting the Senate Majority Leader a big juicy lettuce leaf.

  4. There should be no prison reform.
    America has the largest prison population in the world, and if we start reasonable, logical and humane prison reform, we’ll stop being number one.
    Who wants to live in a country where we’re number two?

    1. Hey now, don’t be going number two on us already……

    2. Damn, we might save millions of taxpayer dollars too, who in the hell would want that?

  5. Looks like a bunch of overcompensating from Ted Cruz, Zodiac killer.

  6. The shorter the sentence, the better chance the “offender” will do better when released. Prison is an experience in learning offensive behavior and in developing a deeper loss of self esteem. Prisons don’t teach people better life skills.

    Politicians inflict horrible suffering but never feel the pain.

    1. Sadly, this is less than half the story. You can learn new criminal tricks on the outside too.

      “evidence-based recidivism reduction programming” is essentially mythological. Some offenders reform, some don’t. We’re pretty much random at guessing which is going to be which (for any given level of previous offending.)

      The only statistically reliable recidivism reduction program is Father Time. Age reduces recidivism. Consequently keeping younger offenders in jail till they’re 28 or so is the best known means of reducing offending. Unless you’re up for castration ? Lower testosterone helps too.

      None of which is to say that “evidence-based recidivism reduction programming” in the form of intervention, education, victim encountering etc wouldn’t be great if we could find some. But so far, the odds are better on finding a unicorn.

      1. Though there is quite good evidence that “recidivism reduction programming” can work on aggressive males, so long as it is attempted between the ages of 2 and 4, by socialising them properly with rough and tumble play, and by not indulging whiny narcissicism in preference to learning to play games with other kids by the rules.

        But this probably isn’t a job for the prison regime. More of a Dad thing.

        1. Many in prison would say ” what’s a Dad?.

          1. Wash your mouth out. The nuclear family is the central pillar of patriarchal oppression.

  7. Another Libertarian Moment brought to you by Orange Man and the Deplorables, over the pants shitting opposition of Reason.

    You’re welcome.

  8. Perhaps the bill is imperfect, and perhaps even a bit more so after the final amendments. But it appears to be a meaningful improvement over the current state. This is a rare thing from Washington. So kudos to the President, the Senate, and the House. I can’t believe I just wrote that.

    1. It tickles me that Literal Hitler is the man in office during sentencing reform, the death of NN and so many other positive things. If it weren’t for the trade war he’d be an almost perfect executive. Liberals will be furiously rewriting the history on this reform for years to come.

      1. I think you’ll find, when you look at the history books, that pretty much all of this was down to Obama, including the job growth. Trump just hasn’t been able to prevent the good things from the Obama era from bubbling to the surface.

        1. With historians like Doris Kearns Goodwin, Michael Besloss, and Nancy McClean all leftists, liars, and scum, it is no wonder history is down from 5% of majors to between 1 and 2%. But with them writing the history, you know Obama will be the hero

  9. Until REAL restitution is part of the criminal justice system, no amount of this sort of “improvements” will reduce the prison population, recidivism, or crime.
    When a man harms another (the REAL basis of every crime: harm done to another who is undeserving of it) then IS FORCED to repay the damage/harm done, that acts as a strong deterrent to first time offenders, and a much harsher deterrent to re-offending..

    The biblical punishment for stealing is, if one confesses and turns himself in, twice what was taken/destroyed. If NOT self-admitted, instead waiting until exposed and caught, it is FOUR times the damage or loss.

    1. So, punk steals someone’s purse that has a handgun and a thousand bucks inside it, and is later caught with it, owes FOUR grand and four times the price of the handgun. PLUS four times the cost and other losses incurred by the victim having to replace all the cards, identifications, etc. So if he cadges a decent heater, and victim incurs $300 in costs/losses to replace what was in the purse, perp could easily owe $6500 or so. Plus interest until paid. Government should add administrative costs for the trial, conviction, sentencing, collection and disbursement.

      And if the lout can’t pay, he should go off to debtor’s prison where he becomes an indentured servant until the last penny is paid from the proceeds of his work projects.

      THAT system works. And its cheap. Warehousing costs are repaid as part of costs resulting from his theft. A low skilled layabout could be shovelling at roadsice constructiion projects for ten years…. high price for putting grand in his pocket and securing decent handgun. Those smart enough to work the maths will realise crime is no way of life.

  10. I think Dennis Farina said it best as Ray “Bones” Barboni in Get Shorty when he said:

    What a bunch of fucking bullshit.

  11. They want to reduce recidivism? The best way to do that is allow prior convicts to live a law-abiding and, dare I say, productive life after release. This bill is a complete joke and does not accomplish anything! What good is giving all the job training in the world if they continue to be denied jobs and housing due to their record? No, there is only one way to fix the mass incarceration problem in America; remove the provision in the FCRA that exempts criminal background information from being restricted to a time frame. This would ensure that background checks will not be produced past 10 years at the most. After a period of time, former convicts should be able to be completely free Americans again. This trend of keeping them in the system is what is causing them to continue coming back.

    1. Ah, the sweet smell of liberal fascism in the morning ! On Reason, naturally. Former convicts, “freed” from public knowledge of their past offending in this way, would not be “completely free Americans” again. They, like all other Americans, would now be laboring under the burden of government restrictions on what ordinarily public information they could learn about their fellow Americans, and use in their associations.

      Some folk may just not feel comfortable about renting their apartment to a felon. Or a particular type of felon. Other folk may be OK with it. The market will sort it out. In particular the market will sort out which jobs are safe to offer to people whose trustworthiness is more doubtful than average, and which jobs are better suited to trusties.

      1984 is not a “How To” guide. If you rewrite the past to try to make it more convenient for current needs you simply ensure that the present is built on lies. If you tell a convict that it’s OK to lie about whether he’s got past convictions, because the employer isn’t allowed to check whether that’s true, or take it into account if he finds out, what does that teach the convict about the value of truthfulness ?

      The government is just telling him “it’s Ok to lie about your past.” To which the natural response is “Well, OK then.”

  12. Aha





  13. the only way these criminals should be able to use these sentencing shortenings is that the bill MUST include a requirement that the criminal serve 5 times the remaining period of his earlier conviction if ARRESTED for another offense. these guidelines have only one purpose and that is to save the various government agencies money. if they want to save money take away TVs, gyms, health care and “nutritious” meals. Aspirins and bologna sandwiches and hard labor is all that is needed. That WILL stop recidivism quickly.

  14. Better too little changes than too many.

  15. The saturnine man over there talking with a lovely French emigree is already a Nazi. Mr. C is a brilliant and embittered intellectual. He was a poor white-trash Southern boy, a scholarship student at two universities where he took all the scholastic honors but was never invited to join a fraternity. His brilliant gifts won for him successively government positions, partnership in a prominent law firm, and eventually a highly paid job as a Wall Street adviser. He has always moved among important people and always been socially on the periphery. His colleagues have admired his brains and exploited them, but they have seldom invited him?or his wife?to dinner.
    ysl camera bag….._12cf8e33e

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