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December 06, 2018

New bipartisan prison reform bill emerges during lame duck

Congress is racing against time during the lame duck session to take up bipartisan prison and sentencing reform legislation introduced Nov. 15 that has garnered the support of the president.

S. 3649 was sponsored by Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), Sen. Richard Durbin (D-Ill.), and 22 other senators. The prison reform provisions in S. 3649 are similar to those in H.R. 5682, legislation sponsored by Reps. Doug Collins (R-Ga.), Hakeem Jeffries (D-N.Y.)  and 17 cosponsors that overwhelmingly passed the House in May. While both bills include various prison reforms, the Senate version also includes some provisions based on sentencing reforms that were included in S. 1917, comprehensive legislation approved in February by the Senate Judiciary Committee.

Known as the First Step Act, both S. 3649 and H.R. 5682 would require the Bureau of Prisons to implement a recidivism-reduction program that would allow eligible prisoners to earn credits toward alternative custody arrangements as they approach the end of their sentences. This would include halfway houses or home confinement.

Programs would include vocational training, educational support, substance abuse treatment, mental health care, anger management courses, and other resources to help prevent recidivism.  In addition, prisoners would have more employment opportunities available to them in prison as well as training programs for youth mentorship and the training and therapy of rescue dogs.

Prisoners serving time for certain crimes – including murder, sexual exploitation of children, child pornography, espionage, or trafficking of Fentanyl − would be ineligible to participate in the programs.

Sentencing provisions included in S. 3649 would prospectively narrow the scope of mandatory minimum sentences to focus on the most serious drug offenders and violent criminals and expand the existing “safety valve” that allows judges to use discretion in sentencing lower-level nonviolent offenders. The bill also would ensure retroactive application of provisions in the Fair Sentencing Act of 2010, which reduced disparity in sentencing between crack and powder cocaine offenses.

Both S. 3649 and H.R. 5682  include provisions to increase the use and transparency of compassionate release for elderly and terminally ill prisoners.

Other provisions would prevent the use of restraints on prisoners throughout pregnancy and postpartum recovery and would impose limits on the use of solitary confinement for juveniles.

Although President Trump signaled strong support for the First Step Act, the legislation’s future is in doubt. Opponents of the bill have expressed concerns about the mandatory minimum sentencing provisions, and Senate Majority Leader Mitch McConnell (R-Ky.) has stated that more pressing matters need to be addressed during the brief lame duck session.

During the 115th Congress, the ABA has supported the more comprehensive sentencing/corrections approach taken by the earlier Senate bill, S. 1917, but the association has policies supporting many of the prison reform provisions in the new version of the legislation.