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.

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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.