Failure to pass First Step Act would be a step backward

The federal First Step Act this week dominated national #cjreform news, with President Donald Trump endorsing the bipartisan #cjreform legislation. But Majority Leader Mitch McConnell appears ready to renege on his promise to hold a vote during the lame-duck session. Here in Texas, John Cornyn is one of the bill sponsors, while our D.C. allies presently consider junior Senator Ted Cruz as "leans no."

Here's a summary of the bill from Families Against Mandatory Minimums, and here's law prof Mark Osler giving a run down on the bill's contents. Learn what the bill is about, then go here to contact Ted Cruz's office to ask him to support the legislation.

Earlier this year, the Perfect-Is-The-Enemy-Of-The-Good Caucus on the Democratic side were complaining that the legislation did not go far enough. But mercifully, those voices have STFU here in the homestretch. (Thank heavens! Grits was really starting to get annoyed at some folks whom I otherwise respect.) Sen. Dick Durbin (D-IL), who has been the best D reform champion in the US Senate, gave an excellent speech this week explaining why Democrats should hold their nose at voting with the President and support bipartisan justice reforms on the table.

Certainly, this bill doesn't go as far as your correspondent might like. But there's an unspoken benefit to passing the legislation beyond its contents. Getting to a vote on reform legislation in Congress provides a template to work from when pursuing future legislation. Without it, most senators won't have to take a stance, and the politics of the issue remains mushy and difficult to assess.

Texas has received much praise for its 2007 probation reforms, which have been hailed as a national model and a precedent for this federal bill. But what's less well known is that earlier reform votes at the Texas Lege in 2001 and 2003 - related to corroborating testimony of drug informants and mandating probation for the first offense on user-level drug-possession charges - provided the vote template upon which advocates built the '07 coalition. The latter couldn't have happened without the former.

In that sense, the First Step legislation is aptly named. Once it passes, other #cjreform legislation may well be possible. But if it fails, momentum will die and it could be years before the opportunity arises again. Failure to close, when the legislation is SO close to its denouement, would be a harsh disappointment and a bitter pill to swallow.

FIRST-STEP opposition shows why partisanship is the bane of criminal-justice reform

Just Liberty this week will launch a new action alert asking Texas Sen. Ted Cruz to support the federal FIRST-STEP Act, which regrettably puts us at odds with some national reform groups like the ACLU and the Leadership Conference (now headed by our old pal Vanita Gupta, lately of Obama-Administration fame).

Other #cjreformers like Families Against Mandatory Minimums, the #Cut50 campaign, and Right on Crime support the measure.

Decision Time
As Just Liberty's Policy Director, I had to make my own assessment. And from a #cjreform perspective, it's impossible not to conclude that FAMM and #Cut50 are right on this one and ACLU and the Leadership Conference are letting partisanship impede doing what's best for prisoners.

The main criticism of the FIRST-STEP Act is that it doesn't go far enough, failing to embrace sentencing reform measures which would more fundamentally confront federal mass incarceration trends. Here's how a San Antonio Express-News editorial described those complaints:

Progressives are sharply divided on the measure, mostly because of what it doesn’t do. The bill — sponsored by Reps. Hakeem Jeffries, D-N.Y., and Doug Collins, R-Ga., and strongly pushed by President Trump’s son-in-law and adviser, Jared Kushner — does nothing to address the main problem, which is that this nation sends far too many people to prison and keeps them locked up far too long. 

Truly meaningful change would involve sentencing reform, for which there is some bipartisan support in Congress — but not enough to get such legislation through both chambers. It is hard to imagine that Trump, who tries so hard to project a tougher-than-thou image, would sign a bill significantly reducing sentences. And Attorney General Jeff Sessions, who believes in throwing away the key, would have a conniption fit. 

The First Step Act ignores the “front end” of the problem — sentencing — and focuses exclusively on the “back end.” It would provide $50 million a year for five years in new funding for education and rehabilitation programs in federal prisons, encourage inmates to participate in those programs by giving them credits for early release, and allow some prisoners to serve the balance of their sentences in halfway houses or home confinement.

Good > Perfect
So our liberal friends don't oppose the things in the bill so much as they think OTHER things should be in there. In other words, they're allowing the Perfect to become the enemy of the Good. Grits supports sentencing reform, too, and I wish it were included in the bill passed by the House. Those national groups are not wrong to insist that it's needed.

But this is not a sentencing reform bill. OTOH, on the issues it does address, most of them are modest improvements over the status quo.

In Texas, that's always been my threshold for whether to embrace reform. "Is it an improvement over current law?" If yes, don't oppose it unless it harms somebody. By that standard, supporting the FIRST-STEP Act is a no-brainer.

Indeed, thanks to changes in how good time is calculated, there are 4,000 people who would be released immediately if the law is enacted. Without the bill, they stay locked up.

That, to me, is where Grits parts ways with Gupta and Company: I'm not willing to tell an incarcerated person - much less 4,000 of them - that they should spend more time in prison because IMO some bill doesn't go far enough. These liberal critics aren't the ones doing the extra time!

How incrementalism works
Partisans ensconced in D.C. gridlock fail to understand some of the lessons on bipartisanship we've of necessity learned in Texas: Getting folks from both parties to support a modest reform today can help persuade legislators to do more later once they see the public reaction and find that there's no backlash, or at least that it's survivable.

For example, in Texas, former House Corrections Committee Chairman Ray Allen passed legislation in 2003 mandating probation on the first offense for low-level drug possession cases, diverting a few thousand people from Texas prisons. He was challenged in 2004, called "soft on crime" by his chief political opponent, but won anyway. After that, and really, because of that, legislators felt comfortable embracing bolder decarceration reforms in 2005 (vetoed), paving the way to pass the ambitious 2007 probation reforms championed by Sen. John Whitmire and Rep. Jerry Madden. Members needed Chairman Allen's electoral example to see that, if they stuck their necks out, they wouldn't get them cut off! (For more background, David Dagan and Steven Teles described these episodes in their book, Prison Break.)

While there's still far to go, over time this approach has made a significant dent in mass incarceration in Texas, symbolized most prominently by the closure of eight prison units, including four closed during the most recent legislative session.

Similarly, if Congress were to pass the FIRST-STEP Act and Republican legislators were to discover in November that they received credit for its passage instead of blame, that will make them more likely to vote for sentencing reform in the future. That truly would be a "first step." Big ships turn slowly, and the slowest to turn of all vessels are ships of state.

It took decades to build America's carceral state, there aren't going to be any quick, one-bill fixes. And future fixes become less likely if liberals blow up efforts at #cjreform bipartisanship.

Why multi-issue groups are the bane of #cjreform
But maybe the real issue is Democratic partisans who don't want Republicans to get credit for something good while they see those same Republicans on the opposite side on other debates that they care about. To that extent, splits on the left over the FIRST-STEP Act point to another problem that's plagued justice reformers since your correspondent got into the game back in the 1990s: Multi-issue groups will always sell out a #cjreform agenda when it conflicts with other liberal goals, in particular on pro-choice, gay-rights, environmental issues, and increasingly in the Trump era, immigration.

Many Democrats oppose the FIRST-STEP Act simply because they don't want to give President Trump " a win." To me, that's flat-out unpatriotic, no less so than all the Republicans in Congress who considered it their mission in life to see President Obama fail. (It may sound corny, but I want America to succeed, even under President Trump.)

It's also politically inept. Politics is the art of the possible, and while Republicans control Congress and the presidency, this is what's possible. In poker terms, take the chips on the table and live to play another hand.

If Democrats want US policy to go further, win some damn elections. But if this bill was proposed under a Democratic administration and Congress, these same groups would all support it. It's hypocritical and counter-productive to oppose it now.

RELATED: Washington Examiner, "Time for bipartisan deal making on criminal justice reform."

Texas pols provided swing votes to keep NSA metadata collection going

The US House of Representatives this week voted down an amendment to eliminate funding for the National Security Agency's collection of metadata from domestic phone calls. Looking at the vote count, one can make the argument that Texas' congressional delegation, particularly Democrats, were the swing faction killing the amendment, allowing the NSA to continue its massive domestic surveillance program. The final vote was 205 Ayes and 217 Nays, with 12 not voting. So if seven members had voted differently, it would have passed.

As it happens, although 57% of Democrats in Congress supported the amendment (111-83),  two-thirds of Texas Democrats (eight members) voted to kill it, including several Grits thinks should know better: The no votes from that group were Sheila Jackson Lee, Eddie Bernice Johnson, Ruben Hinojosa, Joaquin Castro, Marc Veasey, Al Green, Henry Cuellar and Pete Gallego. If those eight votes go the other way, the amendment would have passed.

Texas' GOP delegation was similarly split, with 10 members voting for the amendment and 14 against. Republicans voting against the amendment were Michael McCaul, Sam Johnson, Jeb Hensarling, John Culberson, Kevin Brady, Mike Conaway, Kay Granger, Mac Thornberry, Bill Flores, Randy Neugbauer, Lamar Smith, Pete Olson, John  Carter, and Pete Sessions. Overall, 94 Republicans voted for the amendment, and 134 against it.

One wonders whether some of the Republicans on the list might find themselves defending this vote in next year's primary against Tea-Party oriented challengers. I doubt any of the Democrats will face electoral consequences for the vote, but they still should be ashamed of themselves. Texas pols aren't the only reason the amendment failed, but had they shown a little more backbone, they could have been the reason it succeeded.

Note: The original story misstated the Texas GOP vote count and has been corrected.

US House should eliminate crack/powder disparities for cocaine sentencing

It's been a while since I've written to my Congressman under my own steam, as opposed to in response to some organization's action alert showing up in my email box, but the chance to reduce or eliminate the federal crack-powder cocaine sentencing disparity (discussed by Doug Berman at Sentencing Law & Policy here, here, and here) inspired me to send this brief message over Rep. Lloyd Doggett's constituent contact form:

Please work as hard as you can to pass the legislation just over from the Senate to reduce the crack-powder sentencing disparities over what amount triggers mandatory sentence enhancements. S. 1789 would change the disparity from 100-1 to 18-1, which is better but still unjustifiable. I'm hoping to see/hear my Congressman pushing strongly to reduce that ratio to 1-1 in the House.

On this issue, my own views are being represented most closely by the group FAMM, or Families Against Mandatory Minimums, and I'd encourage you to work with them and support their efforts on this legislation.

For more background, see http://sentencing.typepad.com/sentencing_law_and_policy/2010/03/full-senate-passes-bill-to-reduce-but-not-eliminate-crackpowder-disparity.html

Feel free to copy, modify and send your own version to your own representative, if the inspiration strikes you. You never know: Maybe for once Congress won't screw the pooch as badly as they have on healthcare. This is long overdue.

MORE: From Drug War Chronicle.