Prison Reform Bill ‘First Step Act’ Faces Uphill Battle to Passage Before Year’s End

November 15, 2018 Updated: November 15, 2018

Sen. Chuck Grassley (R-Iowa) is pressuring Senate leadership Nov. 15 to support a prison reform bill called the First Step Act, a version of which passed overwhelmingly in the House in May.

Following on President Donald Trump’s appeals to the leadership in both chambers the day before, Grassley called for members on both sides of the aisle to support what he called “the most significant criminal justice reforms in a generation or more.”

And it will be significant if Congress can get it passed in time.

Part of the reason why the legislation was held up in the Senate before is that legislators couldn’t agree on the sentencing-reform aspect of it.

“Under no circumstances should Congress cut mandatory minimum sentences for serious crimes or give judges more discretion to reduce those sentences,” wrote Sen. Tom Cotton (R-Ark.) in a Wall Street Journal op-ed in August. “That foolish approach is not criminal-justice reform—it’s a jailbreak.”

Some Democratic senators were equally adamant that the measure would do little in helping reform the criminal justice system if it didn’t include sentencing reform.

“We have supported prison-reform legislation with some of the deficiencies outlined above as part of a broader criminal justice reform legislation that includes critical reforms to federal sentencing laws,” a letter signed by five Senate Democrats in May says. “However, we are unwilling to support a flawed prison reform legislation that does not include sentencing reform.”

The White House said in a press release that the leadership in both chambers has worked with the White House to hammer out a sentencing-reform compromise, which it says has been added to the legislation.

But what legislation that is isn’t exactly clear. At a press briefing on Nov. 14, Senate Majority Leader Mitch McConnell (R-Ky.) said, “There have been a lot of different versions floating around.”

The White House didn’t respond to an emailed request for clarification by the time of publication.

McConnell said the first step is to get something finalized, then see what support it has before putting it to a vote. He wants at least 60 senators to support it before he brings it to the floor. Grassley said “this version” of the First Step Act could “easily earn that support,” considering the House version passed 360–59.

Cotton has asked for the Senate version of the legislation to be made public.

“Please release bill text to allow for full public discussion. @SenJudiciary hearing would be helpful too,” Cotton wrote in a tweet on Nov. 15.

The other obstacle the bill faces is a short three weeks until Congress is out of session, after which a new class of Congress members will come in.

“A single senator, by withholding consent, can require us to go through a laborious and time-consuming process,” said Sen. John Cornyn (R-Texas), the sponsor of the original Senate First Step Act, during a Nov. 15 Judiciary Committee meeting. “I do think that it would be good to make sure that everybody in the Senate gets to contribute in some way or another. I just know the complexity of doing it in a lame-duck session.”

Based on the negotiations that he was aware of, Cornyn said that some of the more controversial aspects of the legislation had been “left by the wayside.”

Even if it does get enough support, McConnell, who controls what bills go to the floor, said he had to “see how it stacks up” against other priorities such as funding the government and passing a farm bill. Assuming a First Step Act does pass in the Senate, it also will need approval in the House.

Follow Holly on Twitter: @HollyGailK