Senate Passes White House-Backed Criminal Justice Bill by Wide Margin

UPDATE: The Senate passed the FIRST STEP Act by a vote of 87-12. The bill will now go back to the House, which passed a different version of the legislation in May.

The Senate rejected amendments by Sens. Tom Cotton (R–Ark.) and John Kennedy (R–La.) to the FIRST STEP Act today that supporters said would have gutted the legislation—part of Cotton’s continuing efforts to derail the bill.

With the defeat of the amendments, the White House-backed bill is poised for passage, and a final vote could come as early as today. The Senate voted yesterday 82-12 to advance it, and the amount of dissent within Republican ranks does not appear strong enough to stop it.

The FIRST STEP Act would expand reentry and job training opportunities for federal inmates, ban the shackling of pregnant inmates, and require inmates to be housed within 500 miles of their families, when possible. It also includes four modest changes to federal sentencing law that would reduce some mandatory minimum sentences and expand judges’ discretion under the so-called safety valve.

Cotton, a staunch supporter of mandatory minimum sentences, and Kennedy introduced three amendments to the bill that they said would strengthen the legislation, but which fellow Republicans, Democrats, and advocacy groups said were “poison pills.”

A coalition of criminal justice, civil liberties, and conservative groups—such as Freedom Works, American For Prosperity, the American Civil Liberties Union, and Families Against Mandatory Minimums—went on a lobbying blitz Monday to urge senators to vote down the Cotton and Kennedy amendments.

The amendments would have excluded far more federal inmates from being eligible for early release under the bill’s provisions to expand opportunities for them to serve the tail-end of their sentences in halfway houses.

“A number of serious felonies, including violent crimes, are still eligible for early release in the version of the bill the Senate will vote on in a matter of days,” Cotton wrote in a National Review op-ed Monday. “In short, the First Step Act flunks their basic test to protect public safety.”

If the Senate thought the sentences at issue were unjust, Kennedy argued on the Senate floor, then the bill should address those.

“Rather than try and fix [laws] we’re going to give almost unfettered discretion to the bureaucrats and the Bureau of Prisons to fix our mistakes,” Kennedy said. “It’s like putting paint on rotten wood.”

Another amendment introduced by Kennedy, who, like Cotton, opposes the bill, would have required wardens to notify crime victims when an inmate received credit toward an earlier release under the bill’s provisions.

However, Sen. Dick Durbin (D–Ill.) noted that the amendment was in fact opposed by crime victim organizations, who said it went against standard practices by making notification mandatory, rather than allowing victims to opt out of being notified.

“This proposed amendment would notify all survivors, whether they choose to be notified or not,” the group Fairness, Dignity & Respect for Crime Victims & Survivors Project said in a statement. “This takes away the victim’s autonomy to choose to remain informed and notified, and autonomy is a key tenet of trauma-informed victim/survivor assistance.”

Durbin also said the U.S. Sentencing Commission told him that Cotton’s amendments would exclude roughly 30,000 inmates from the bill’s provisions.

Senate Judiciary Committee chairman Chuck Grassley (R-Iowa)—who’s worked for most of this year to get a criminal justice bill to the Senate floor—called Cotton and Kennedy’s amendments unnecessary and urged his colleagues to reject them.

“Let’s if we can keep our bipartisan coalition together to pass a bill that the president said he would sign,” Grassley said, growing animated. “Will you vote against the amendment please?”

Prior to the bill being brought to the Senate floor, Cotton had insisted on, and received, several more carve-outs to the bill to exclude various offenders from the expanded opportunities for earlier release. To secure the support of law enforcement groups, the bill’s authors had already put in significant exceptions, most notably making changes to mandatory minimum sentences not apply retroactively.

Cotton’s insistence on introducing an amendment to further water down the language of the bill angered criminal justice advocacy groups, who have repeatedly accused Cotton of negotiating in bad faith to kill the bill.

Ames Grawert, senior counsel in the Brennan Center’s Justice Program, said in a statement that Cotton and Kennedy’s amendments were “meant to sabotage the bipartisan compromise FIRST STEP represents.”

“Senators Cotton and Kennedy are hardline opponents of any criminal justice reform, and they are not bargaining in good faith,” he continued. “The Senate should in no way capitulate to their extremist position.”

The headline of this article has been updated to note the passage of the FIRST STEP Act.