Criminal justice reform advocates say sentencing reform provisions will be included in legislation unveiled shortly after midterm elections Tuesday, triggering an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill.
The First Step Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms, at the behest of Republican opponents.
Reform advocates expect rapid legislative action after a pre-election pause, and believe there will be enough votes to pass the expanded legislative package.
Two people close to the process tell the Washington Examiner that a bipartisan group of senators has agreed to attach a set of sentencing reforms to the House-passed bill.
The additions include shortening federal three-strike drug penalties from life in prison to 25 years, reducing two-strike drug penalties from 20 years to 15, allowing a firearm sentencing enhancement to run concurrently with the underlying penalty, and allowing retroactive sentencing for crack cocaine cases judged under tougher historical laws.
“We are very excited about it. We think that the four reforms that are in the bill are ones that make sense,” said Mark Holden, the general counsel of Koch Industries and an influential conservative reform advocate.
“From what we understand, there are enough votes — plenty — for it to happen,” Holden said.
Holden said it’s his understanding that the sentencing language will also expand a “safety valve” option for judges to use discretion.
Both Holden and another person close to the legislation drafting process, who asked not to be identified, said there is wording to reduce concern about illegal immigrants benefiting from sentencing reform.
The second person said the provision is being finalized, but there will be “a clarification saying this does not change existing statutes relating to undocumented individuals in the federal system.”
A spokeswoman for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, an influential advocate of the reforms, did not respond to requests for comment.
Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill. Last month, Trump said in a Fox News interview that Attorney General Jeff Sessions’ longstanding opposition to reforms did not represent him.
“If he doesn’t [support reform], then he gets overruled by me. Because I make the decision, he doesn’t,” Trump said Oct. 11.
“I think President Trump is doing a really good job on these sentencing reform measures,” Holden said. “He’s right, he’s the president, he makes the call, and we’re glad he said it.”
It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell, R-Ky., has promised a whip count after the election, and advocates believe it will make it clear with overwhelming support.
The advocates stress that the sentencing reforms are modest, and that prospective sentences remain lengthy.
“Time is not on our side here,” said Jessica Sloan, a supporter of reform efforts with the group #Cut50. But Sloan is optimistic, noting that “the president has spoken many times on this issue, even during an election,” calling it “a recurring talking point.”
The prison-reform components of the First Step Act aim to make it easier for prisoners to re-enter society. The bill would bar pregnant women from being shackled, expand good-time credit, and mandate that inmates be placed near family.
The reform efforts have received significant White House support, and in turn, policy advocates have sought to build bridges with Trump-supporting activists.
Last month, clemency advocates including Amy Povah of CAN-DO Clemency and Alveda King, the anti-abortion evangelical leader, hosted a panel at a Women for Trump event at Trump International Hotel in Washington.
Povah hopes that Congress passes the legislation, and that Trump will supplement the reform with generous use of his constitutional pardon powers. Last month, Trump said “a lot of people” are jailed for year for “no reason” and that he was actively looking to release some.
Povah said clemency would be particularly appreciated around the holidays, including Thanksgiving, when presidents pardon turkeys, disillusioning people in prison.
“I think Trump said it best, he said that he’s going to release a lot of people and I think a lot of people in prison took that seriously and literally,” Povah said. “He sent a lot of hope in that humans may be in line, maybe for the first time included in the Thanksgiving pardon.”
Michael Montalvo, a jailed 72-year-old veteran who has served more than 30 years of a drug-dealing life sentence, told the Washington Examiner in an emailed message that “President Trump has ignited a tidal wave of hope for people like myself that some might receive clemency from a life sentence.”
“I have missed 31 years of Thanksgiving and Christmas holidays with my family. I’ve watched myself age in the mirror and my greatest fear is that the gatekeeper to my freedom will never see me as the man I am today instead of the man who engaged in a 1980 nonviolent drug offense,” he said.
Another inmate advocated for by Povah, Lavonne Roach, who is 21 years into a 30-year methamphetamine sentence, said that she hopes Trump will be moved to release her as well. Her daughter is raising children on her own because her husband is deployed to Afghanistan.
“Every day I pray that a miracle will enable me to help her with the kids. Just to be there for her and the babies would be a dream come true and the end of a very long nightmare,” Roach said.
Trump has spoken repeatedly about his desire to release inmates from prison after commuting the life sentence of drug crime convict Alice Johnson in June at the request of celebrity Kim Kardashian West.
At a second Trump-Kardashian meeting, the TV star urged freedom for Chris Young, who was arrested at 22 and sentenced to life in prison for drug dealing. She brought with her former federal judge Kevin Sharp, who had imposed the sentence due to rigid federal laws he argued made little sense. On his own, Trump mentioned another inmate, Matthew Charles, who returned to prison this year after a court found his drug sentence was reduced in error.
Povah said she’s particularly grateful for the role of Kushner in pushing both legislation and clemency cases, particularly after the ascension of Sessions — who Trump now openly regrets nominating, creating doubt about his post-election employment.
“Jared is a beacon of hope for so many prisoners. They had lost hope for any leniency or reform when Jeff Sessions was sworn in as attorney general. If felt like a nail in the coffin,” she said.
