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Analysis

Pressure Builds for Senate to Pass Criminal Justice Reform

Both Republicans and Democrats are pushing Mitch McConnell to hold a vote on the FIRST STEP Act.

December 5, 2018

A bipar­tisan group of senat­ors is on the cusp of passing a mean­ing­ful crim­inal justice reform bill. Known as the FIRST STEP Act, the bill would shorten some unne­ces­sar­ily long prison sentences and enforce rules that will improve condi­tions for people currently in prison. Pres­id­ent Trump announced his support for the bill last month.

Before the midterms, Senate Major­ity Leader Mitch McCon­nell indic­ated he would consider call­ing a vote before the end of the year during Congress’s lame-duck session if the bill earned the support of more than 60 senat­ors. But the bill has since stalled in the Senate. McCon­nell, in partic­u­lar, has enabled the delay, hint­ing that there would not be enough time to bring it up for a vote. And a faction of Repub­lican senat­ors led by Senator Tom Cotton (R-Ark.) has contin­ued to voice oppos­i­tion to the meas­ure.

However, back­ers of the FIRST STEP Act say that at least 70 senat­ors would vote in favor of the bill if a vote were called today. That includes more than half of the Repub­lic­ans in the Senate, includ­ing key lead­ers such as Senat­ors Chuck Grass­ley (R-Iowa) and Lind­sey Graham (R-S.C.). Grass­ley, who helped write the legis­la­tion, has said that the bill could pass in as little as three or four days, arguing that there is “plenty of time to pass” it in Decem­ber.

The current draft of the FIRST STEP Act includes several key provi­sions on senten­cing reform, includ­ing short­en­ing mandat­ory minimum sentences for nonvi­ol­ent drug offenses. It would, for example, ease the federal “three strikes” rule — which currently imposes a life sentence for three or more convic­tions — and instead issue a 25-year sentence. The bill expands the “drug safety-valve,” which would allow judges more discre­tion to devi­ate from mandat­ory minim­ums when senten­cing for nonvi­ol­ent drug offenses.

The amended FIRST STEP Act would also make the Fair Senten­cing Act of 2010 retro­act­ive. The Fair Senten­cing Act helped reduced the senten­cing dispar­ity between crack and powder cocaine offenses — a dispar­ity that has largely fallen along racial lines. The FIRST STEP Act would apply the Fair Senten­cing Act to 3,000 people who were convicted of crack offenses before the law went into effect.

The FIRST STEP Act isn’t perfect. It will leave signi­fic­ant mandat­ory minimum sentences in place. In addi­tion, two of its key senten­cing provi­sions are not retro­act­ive, which minim­izes their over­all impact.

Nonethe­less, the senten­cing reforms in the bill are an import­ant step in address­ing unne­ces­sar­ily harsh prison sentences, which propelled the increase of mass incar­cer­a­tion in the United States. That first step could happen soon — if the Senate Major­ity Leader stops putting off the vote.

(Image: Win McNamee/Getty)