Wednesday, April 23, 2014

Round-up of some reactions to/reports on today's notable sentencing developments

My blogging cup runneth over today as I try to find time to read and process the Supreme Court's big child porn restitution in Paroline (basics here) and DOJ's new clemency guidelines (basics here).  Before I find time to share some of my reactions and perspectives (which may take a couple of days as I head on the road), I figured I can and should round-up here some of the reactions and perspectives of others of note:

Reactions to Paroline child porn restitution ruling:

Reactions to/reports on DOJ's new clemency guidelines:

April 23, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 21, 2014

Is Prez Obama likely to grant clemency to "hundreds, perhaps thousands" of imprisoned drug offenders?

The question in the title of this post is prompted by this notable new and lengthy Yahoo News article headlined "Obama plans clemency for hundreds of drug offenders: Barbara Scrivner's long quest for mercy tests a president's will — and her own faith." The article begins with focus on a woman deep into "serving a 30-year sentence in federal prison for selling a few ounces of methamphetamine," but goes on to discuss drug sentencing more generally. And these excerpts quoting a "serious administration official" really caught my attention:

Now, in his final years in office, Obama has trained his sights on prisoners like Scrivner, and wants to use his previously dormant pardon power as part of a larger strategy to restore fairness to the criminal-justice system. A senior administration official tells Yahoo News the president could grant clemency to "hundreds, perhaps thousands" of people locked up for nonviolent drug crimes by the time he leaves office — a stunning number that hasn't been seen since Gerald Ford extended amnesty to Vietnam draft dodgers in the 1970s.

The scope of the new clemency initiative is so large that administration officials are preparing a series of personnel and process changes to help them manage the influx of petitions they expect Obama to approve. Among the changes is reforming the recently censured office within the Justice Department responsible for processing pardon petitions. Yahoo News has learned that the pardon attorney, Ronald Rodgers, who was criticized in a 2012 Internal watchdog report for mishandling a high-profile clemency petition, is likely to step down as part of that overhaul. Additional procedures for handling large numbers of clemency petitions could be announced as soon as this week, a senior administration official said, though it could take longer....

When it came to using his only unfettered presidential power — to pardon felons and to reduce the sentences of prisoners — Obama was incredibly stingy in his first term. Vanita Gupta, deputy legal director of the American Civil Liberties Union, calls his record on mercy "abysmal." He pardoned just 22 people — fewer than any modern president — and commuted the sentence of just one. An applicant for commutation like Scrivner had just a 1-in-5,000 chance of getting a reduced sentence with Obama in his first term — compared with a 1-in-100 chance under Presidents Reagan and Clinton, according to an analysis by ProPublica.

According to former and current administration officials, the fault for this lay mostly at the feet of the Office of the Pardon Attorney, a small corner of the Justice Department that sifts through thousands of pardon and commutation petitions each year. The pardon attorney, former military judge Ronald Rodgers, sends his recommendations of whether or not to grant the petitions to the Deputy Attorney General’s office, which then sends them on to the White House. The pardon attorney was recommending that the president deny nearly every single petition for a pardon or a reduced sentence, according to one senior official in the Obama administration....

But even though the president was almost certainly aware that the pardon process was deeply flawed, he took no steps to fix it. In 2009, Obama’s top lawyer, Gregory Craig, drafted a proposal urging a more aggressive use of the presidential pardon and clemency power, and calling the current system broken. One of Craig's recommendations was to take the pardon attorney's office out of the Department of Justice entirely, so that the people vetting clemency petitions were not so close to the system that put prisoners away in the first place. "I was of the belief that the current system for making pardon decisions was broken and it needed to be reformed," Craig said. His suggested reforms weren't implemented, and he left the White House that year....

Near the end of his first term, Obama expressed his frustration with how few positive clemency petitions were landing on his desk. He began meeting with White House Counsel Kathy Ruemmler and Holder to discuss how his pardon power could fit into his larger strategy of making the criminal-justice system fairer. (In mid-December, Holder followed up with a memo to Obama laying out his priorities for a second term in which he endorsed a more robust use of the pardon power as part of a broader criminal-justice reform initiative.) Over a series of five or 10 discussions, the president said he wanted more recommendations for pardons and commutations getting to his desk. The president complained that the pardon attorney's office favored petitions from wealthy and connected people, who had good lawyers and knew how to game the system. The typical felon recommended for clemency by the pardon attorney was a hunter who wanted a pardon so that he could apply for a hunting license....

[In] February, the Justice Department announced a new push for clemency for nonviolent drug offenders — an initiative that came out of Obama's meetings with Ruemmler and Holder. Deputy Attorney General Jim Cole solicited private defense attorneys around the country for more petitions for mercy from prisoners serving lengthy sentences for drug crimes that would most likely be prosecuted differently today, due to changes in the law. A group of advocates have created "Clemency Project 2014" to organize the petitions and send them to the Justice Department — they expect thousands to pour in....

But questions still remain about whether the pardon attorney's office is actually capable of fairly and quickly processing Scrivner's and the thousands of other expected petitions. Holder has asked for seven additional staffers for the office in his 2015 budget request, but it's unclear when they would start.

Meanwhile, more than a year after pardon attorney Rodgers was called out by the Justice Department for misrepresenting Aaron's petition to the White House, the former prosecutor and military judge is likely to finally be pushed out and replaced, a senior administration official tells Yahoo News. Rodgers was not present in a March meeting of the Justice Department, White House officials and advocates about "Clemency Project 2014," suggesting that he was already being internally marginalized.

Advocates have long been skeptical that a significant number of clemency petitions will actually get processed quickly if the current pardon attorney remained in place, given the entrenched culture there. A former pardon attorney's office employee said he believes the office could try to run out the clock on the petitions, knowing full well that the president has only a few years left. New leadership could change that....

Last month, the president walked into the East Room to greet dozens of U.S. attorneys who traveled to the White House to discuss criminal-justice issues. The president told them he was expecting an influx of clemency applications for his new push, and warned that he wanted them to personally examine them all and not "reflexively" deny them. "I take my clemency authority very seriously," he told them.

With just a few years left of Obama's presidency, Scrivner, and others, will soon find out if he means it.

A few of many recent and older posts concerning federal clemency practices:

UPDATE: Though balky blogging software precluded adding comments and updating this post, I can finally now post this link to an official statement from the Justice Department and AG Holder about still-emerging clemency plans. here is how it starts:

In an important step to reduce sentencing disparities for drug offenders in the federal prison system, Attorney General Eric Holder on Monday announced that the Justice Department will soon detail new, more expansive criteria that the department will use in considering when to recommend clemency applications for President Obama’s review.

In anticipation of the increase of eligible petitioners, the Justice Department is preparing to assign lawyers -- with backgrounds in both prosecution and defense – to review the applications. “The White House has indicated it wants to consider additional clemency applications, to restore a degree of justice, fairness and proportionality for deserving individuals who do not pose a threat to public safety,” said Attorney General Holder in a video message posted on the department’s website. “The Justice Department is committed to recommending as many qualified applicants as possible for reduced sentences.”

Later this week, Deputy Attorney General James M. Cole is expected to announce more specific details about the expanded criteria the department will use and the logistical effort underway to ensure proper reviews of the anticipated wave of applications.

April 21, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, March 03, 2014

"Holder and Republicans Unite to Soften Sentencing Laws"

The title of this post is the headline of this notable new New York Times article, which includes these excerpts:

Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.

Mr. Paul, a Kentucky Republican, is one of the Obama administration’s most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory-minimum prison sentences for nonviolent drug offenders.

The Democratic attorney general and the possible Republican presidential candidate are unlikely allies. But their partnership is crucial to an alliance between the nation’s first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress’s most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.

Together, they could help bring about the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs. In 2010, Congress unanimously voted to abolish the 100-to-1 disparity between sentences for crack cocaine offenses and those for powdered cocaine, a vestige of the crack epidemic. Now, the Obama administration and its allies in Congress are pushing to go even further. Mr. Holder wants to make prisoners eligible for early release if they were sentenced under the now-abolished crack guidelines. And he wants judges to have more discretion when it comes to sentencing nonviolent drug offenders....

Libertarian-minded Republicans see long prison sentences as an ineffective and expensive way to address crime. “This is the definition of how you get bipartisan agreement,” Mr. Paul said in an interview. “It’s not splitting the difference. It’s finding areas of common interest.”

Mr. Paul is backing a sentencing overhaul bill, also supported by Mr. Holder and the Obama administration, that he predicts will pass the Senate with support from up to half of its Republicans. The bill’s sponsors include Democratic stalwarts such as Senator Richard J. Durbin of Illinois and Senator Patrick J. Leahy of Vermont, the Judiciary Committee chairman, as well as Republicans with strong Tea Party credentials like Senator Mike Lee of Utah and Senator Ted Cruz of Texas

Similar legislation is pending in the House, where libertarians and Tea Party conservatives will be crucial to determining its fate if it comes up for a vote. That is the same group that bucked the Obama administration and nearly succeeded in passing legislation prohibiting the National Security Agency from seizing the phone records of millions of Americans.

Some Republicans say that they are the ones being consistent on matters of protecting liberties, and that Mr. Holder’s push for changes to the sentencing laws is a step in their direction, not the other way around. “I would say Eric Holder supports me and my civil liberties bill,” said one of the House bill’s sponsors, Representative Raúl R. Labrador, an Idaho Republican who once demanded Mr. Holder’s resignation over the botched gun-trafficking case called Operation Fast and Furious....

Mr. Holder noted that a third of the Justice Department’s budget is spent running prisons. That resonates with fiscal conservatives like Representative Jason Chaffetz, Republican of Utah. Mr. Chaffetz once suggested that Republicans might have Mr. Holder arrested for contempt. But Mr. Holder recently had him for breakfast at the Justice Department....

Mr. Chaffetz said his conversations with Mr. Holder represented “one of the few instances I can point to where we’re starting to make some kid steps forward” toward bipartisan collaboration.... “I think there’s a realization that we’re not actually solving the problem with some of these drug crimes,” Mr. Chaffetz added. “But on the other side of the coin, there’s no trust with the Obama administration. None.”...

Representative Trey Gowdy, a South Carolina Republican and a former federal prosecutor, joined Mr. Chaffetz for breakfast at the Justice Department and described Mr. Holder as a gracious host. “The fact that he’s taking the time to talk to two backbenchers, he certainly didn’t have to do that,” Mr. Gowdy said.

Mr. Gowdy said he was convinced that mandatory sentences made little sense for minor offenses. But he doubts that a sentencing bill can pass the House, in part because voters in Republican districts oppose so many of the Obama administration’s policies. Mr. Holder’s push for same-sex marriage does not make it easier, he said.

Mr. Paul was more optimistic. He said conservatives and liberals would join in support of changing sentencing laws, just as they have joined in opposition of the N.S.A.'s domestic surveillance programs.... As the meeting concluded, they agreed to work together and said their goodbyes. Then Mr. Paul wryly added, “I’ll see you in court.”

Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:

March 3, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack

Tuesday, February 25, 2014

Notable emphasis on CJ reform in AG Holder speech to National Association of Attorneys' General

In Washington DC this morning, Attorney General Eric Holder delivered these remarks at the National Association of Attorneys General Winter Meeting. Here are sections that should be of distinct interest to sentencing fans:

In recent years, no fewer than 17 states — supported by the Department’s Justice Reinvestment Initiative, and led by state officials from both parties — have directed significant funding away from prison construction and toward evidence-based programs and services, like supervision and drug treatment, that are proven to reduce recidivism while improving public safety.  Rather than increasing costs, a new report — funded by the Bureau of Justice Assistance — projects that these 17 states will save $4.6 billion over a 10-year period.  And although the full impact of our justice reinvestment policies remains to be seen, it’s clear that these efforts are bearing fruit — and showing significant promise across the country.

From Georgia, North Carolina, Texas, and Ohio — to Kentucky, Arkansas, Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources.  And I believe that the changes that have led to these remarkable results should be carefully studied — and emulated.

That’s why, last August — in a speech before the American Bar Association in San Francisco — I announced a new “Smart on Crime” initiative that’s allowing the Justice Department to expand on the innovations that so many states have led; to become both smarter and more efficient when battling crime, and the conditions and choices that breed it; and to develop and implement commonsense reforms to the federal criminal justice system.

Under this initiative, we’re ensuring that stringent mandatory minimum sentences for certain federal, drug-related crimes will now be reserved for the most serious criminals. We’re taking steps to advance proven reentry policies and diversion programs that can serve as alternatives to incarceration in some cases.  And as we look toward the future of this work, we’ll continue to rely on your leadership — and close engagement — to keep advancing the kinds of data-driven public safety solutions that many of you have championed for decades.

This also means making good on our commitment to provide formerly incarcerated people with fair opportunities to rejoin their communities — and become productive, law-abiding citizens — once their involvement with the criminal justice system is at an end.  With the Justice Department’s strong support, the ABA has done important work in this regard, cataloguing tens of thousands of statutes and regulations that impose unwise collateral consequences — related to housing, employment, and voting — that prevent individuals with past convictions from fully reintegrating into society.  As you know, in April 2011, I asked state attorneys general to undertake similar reviews in your own jurisdictions, and — wherever possible — to mitigate or eliminate unnecessary collateral consequences without decreasing public safety.  I’ve made the same request of high-ranking officials across the federal government.  And moving forward, I’ve directed every component of the Justice Department to lead by example on this issue — by considering whether any proposed rule, regulation, or guidance may present unnecessary barriers to successful reentry.

Two weeks ago, at Georgetown University Law Center, I called upon state leaders and other elected officials to take these efforts even further — by passing clear and consistent reforms to restore voting rights to those who have served their terms in prison or jail, completed their parole or probation, and paid their fines.  I renew this call today — because, like so many other collateral consequences, we’ve seen that the permanent disenfranchisement of those who have paid their debts to society serves no legitimate public safety purpose. It is purely punitive in nature.  It is counterproductive to our efforts to improve reentry and reduce recidivism.  And it’s well past time that we affirm — as a nation — that the free exercise of our citizens’ most fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.

I applaud those — like Senator Rand Paul, of Kentucky — who have already shown leadership in helping to address this issue.  And I encourage each of you to consider and take up this fight in your home states.

February 25, 2014 in Collateral consequences, Criminal justice in the Obama Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Curious racial politics omission in otherwise astute analysis of Prez Obama's criminal justice reform record

New York Times big-wig Bill Keller has this interesting final column headlined "Crime and Punishment and Obama," which discusses his transition to a notable new job in the context of a review of Prez Obama's criminal justice record.  Here are excerpts of a piece which should be read in full and which, as my post title suggests, does not discuss racial politics as much as I would expect: 

[W]hen the former community organizer took office, advocates of reform had high expectations.

In March I will give up the glorious platform of The Times to help launch something new: a nonprofit journalistic venture called The Marshall Project (after Thurgood Marshall, the great courtroom champion of civil rights) and devoted to the vast and urgent subject of our broken criminal justice system.  It seems fitting that my parting column should address the question of how this president has lived up to those high expectations so far....

In his first term Obama did not make this a signature issue; he rarely mentioned the subject....

In practice, the administration’s record has been more incremental than its rhetoric.

By the crudest metric, the population of our prisons, the Obama administration has been unimpressive.  The famously shocking numbers of Americans behind bars (the U.S., with 5 percent of the world’s people, incarcerates nearly a quarter of all prisoners on earth) have declined three years in a row.  However the overall downsizing is largely thanks to California and a handful of other states.  In overstuffed federal prisons, the population continues to grow, fed in no small part by Obama’s crackdown on immigration violators.

Obama is, we know, a cautious man, leery of getting ahead of public opinion and therefore sometimes far behind it.  And some reform advocates argue that it made sense for Obama to keep a low profile until a broad bipartisan consensus had gathered.  That time has come. Now that Obama-scorners like Senators Rand Paul and Mike Lee and even Ted Cruz are slicing off pieces of justice reform for their issue portfolios, now that red states like Texas, Georgia, South Carolina, Missouri and Kentucky have embraced alternatives to prison, criminal justice is one of those rare areas where there is common ground to be explored and tested.

The Obama presidency has almost three years to go, and there is reason to hope that he will feel less constrained, that the eight commutations were not just a pittance but, as he put it, “a first step,” that Holder’s mounting enthusiasm for saner sentencing is not just talk, but prelude, that the president will use his great pulpit to prick our conscience.

“This is something that matters to the president,” Holder assured me last week.  “This is, I think, going to be seen as a defining legacy for this administration.”  I’ll be watching, and hoping that Holder’s prediction is more than wishful thinking

This column covers a lot of modern criminal justice ground quite well, and gets me even more excited for Keller's forthcoming new journalistic venture called The Marshall Project. But I find curious and notable that this commentary does not directly address the racialized political dynamics that necessarily surrounds the first African-American Prez and AG if and whenever they prioritize criminal justice reform.

I have heard that Thurgood Marshall, when doing advocacy work with the NAACP before he became a judge, was disinclined to focus on criminal justice reform because he realized the politics of race made it hard enough for him to garner support for even law-abiding people of color. Consequently, while important federal elections in which Prez Obama is the key player still loom, I suspect the Prez and his team have made a very calculated decision to only move very slowly (and behind folks like Senator Rand Paul) on these matters.

And yet, just as Thurgood Marshall could and did make criminal justice reform a priority when he became a judge and Justice insulated from political pressure, so too am I expecting that Prez Obama will prioritize criminal justice issues once he in the last two lame-duck years of his time in the Oval Office. Two years is ample time for the Prez to make federal criminal justice reform a "defining legacy for this administration," and there is good reason to think political and social conditions for bold reform work will be in place come 2015 and 2016 (even with the inevitably racialized realities surrounding these issues).

February 25, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, February 19, 2014

Curious DOJ clemency campaign continues through meeting with defense groups

This notable NPR story, headlined "Justice Dept. Asks For Help Finding Prisoners Who Deserve Clemency," reports on the latest development concerning the curious (though encouraging) new DOJ push for clemency candidates.  Here are the details:

The second-in-command at the Justice Department met Tuesday with defense lawyers and interest groups to identify the cases of worthy prisoners who could qualify for clemency.

The initiative by Deputy Attorney General James Cole follows a speech he gave last month suggesting the White House intends to make more use of the president's power to shorten prison sentences for inmates who have clean records, no significant ties to gangs or violence, and who are serving decades behind bars for relatively low-level offenses.

Cole wants to enlist lawyers to help solicit and prepare clemency requests. It's part of a broader effort to stop spending so much money incarcerating people that it squeezes the public safety budget. A Justice Department spokesman says Cole "wants to ensure that individuals like the eight whose sentences the president commuted in December have access to attorneys to help them present their cases."

Longtime followers of the pardon power have criticized President Obama's relatively stingy approach over five years in office.  They also suggest that backlogs in the Justice Department's Office of Pardon Attorney might get worse if the call for more prisoner petitions takes hold. But the Justice spokesman says Cole has made this effort a top priority and that he's instructed the pardon attorney to do the same, taking some steps to handle any influx of clemency requests in the months ahead.

Representatives from the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the Federal public defender program and Families Against Mandatory Minimums had been scheduled to attend the meeting at Justice Department headquarters.  Mary Price of FAMM, one of the attendees, says she came away feeling "really encouraged."

"We look forward to working together with them and others to help identify potential commutation cases and ensure prisoners have trained pro bono counsel to submit focused petitions for the meaningful consideration the Deputy Attorney General has pledged they will receive," Price says.

Some recent and older posts concerning federal clemency practices:

February 19, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, February 11, 2014

"Eric Holder makes case for felons to get voting rights back"

The title of this post is the headline of this new Washington Post report on the latest policy advocacy by the US Attorney General concerning criminal justice reform. Here are the notable details:

Attorney General Eric H. Holder Jr. on Tuesday called on states to repeal laws that prohibit ex-felons from voting after their release from prison, urging reforms that could allow millions more former convicts across the country to cast ballots.

In a speech at Georgetown University Law Center, Holder said: “It is time to fundamentally reconsider laws that permanently disenfranchise people who are no longer under federal or state supervision.” Current laws forbidding felons from voting make it harder for them to reintegrate into society, he said.

Holder said that current laws forbidding felons from voting make it harder for them to reintegrate into society. He pointed to a recent study, which showed that felons in Florida who were granted the right to vote again had a lower recidivism rate. “These restrictions are not only unnecessary and unjust, they are also counterproductive,” Holder said. “By perpetuating the stigma and isolation imposed on formerly incarcerated individuals, these laws increase the likelihood they will commit future crimes.”

Holder does not have the authority to force states to change their laws, but his request could influence the debate to restore voting rights. His appeal is part of a broader effort currently underway by the Justice Department to reform the criminal justice system, which U.S. officials say often treats minority groups unfairly.

The attorney general said that after the Civil War, laws that prohibit ex-felons from voting were a way for post-Reconstruction states to keep blacks from casting ballots. Today, an estimated 5.8 million Americans are not allowed to vote because of current or previous felony convictions. Of those, nearly 38 percent are black.

The Justice Department said that 23 states since 1997 have enacted voting-rights reforms. They include Nebraska, Nevada, Texas and Washington state.

The Justice Department said that 11 states, including Florida and Kentucky, restrict voting rights for ex-felons. Holder said that 10 percent of Florida’s population is disenfranchised.

Voting-rights activists are trying to change the law in that state to make it easier for “returning citizens” to vote. The push could become a campaign issue in Florida’s gubernatorial election this year. In Kentucky, a bill to restore felon voting rights to those not convicted of certain lascivious or violent crimes gained momentum last month in the state legislature. “These laws deserve to be not only reconsidered, but repealed,” Holder said.

There is even more of note in the full speech given today by AG Eric Holder at Georgetown University Law Center, the text of which is available here. I now have to go teach, so I will not be able to comment further until late tonight, but here are parts of the discussion of voting rights referenced above:

These laws deserve to be not only reconsidered, but repealed. And so today, I call upon state leaders and other elected officials across the country to pass clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines. I call upon experts and legislators to stand together in overturning an unfortunate and outdated status quo.

And I call upon the American people – who overwhelmingly oppose felony disenfranchisement – to join us in bringing about the end of misguided policies that unjustly restrict what’s been called the “most basic right” of American citizenship.

I applaud those who have already shown leadership in raising awareness and helping to address this issue. Later today, this conference will hear from Senator Rand Paul, who has been a leader on this matter. His vocal support for restoring voting rights for former inmates shows that this issue need not break down along partisan lines.

Bipartisan support will be critical going forward because, even in states where reforms are currently taking hold, we need to do even more. And we need to make sure these positive changes are expanded upon – and made permanent.

Some prior related posts:

February 11, 2014 in Collateral consequences, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (34) | TrackBack

Tuesday, February 04, 2014

Reflecting on Obama Administration's latest "half-way" approach to clemency

Mark Osler authored this effective commentary concerning the recent comments coming from the Department of Justice concerning a new focus on granting clemency.  The piece carries the headline "Only half-way there on mercy," and here are excerpts:

In an extraordinary speech to the New York State Bar Association earlier this week, Deputy Attorney General James Cole did two significant things.

First, he announced that when President Obama used the pardon power in December to commute eight lengthy federal sentences for narcotics trafficking, this was only a “first step,” and that there is “more to be done.”  Second, he outlined how a much more extensive round of commutations might happen.  The first of these was historic, remarkable, and right. The second part is more problematic.

The good news is that this administration, unlike its most recent predecessors, intends to use the pardon power in a vigorous and principled way....

The method Cole outlined to produce more commutations is where the problem lies.  The administration intends to have the Bureau of Prisons spur inmates to seek commutations and then encourage state bar associations to direct their members to prepare petitions for those inmates.

Cole made this appeal to deputize lawyers in a very direct way during his New York speech  — telling the bar association there that “this is where you can help.”  The hope is that, in the end, this will produce a wave of good candidates for commutation.

Unfortunately, this solution doesn’t address the actual problem with federal clemency. No one has suggested that what is broken with the pardon power is that there aren’t enough petitions in the system — to the contrary, there is a backlog of some 3,500 clemency petitions awaiting a decision.

The problem is that the process doesn’t work.  The pipeline is clogged, and the solution can’t be simply to jam more things into it.  The present structure for consideration of these often-complicated petitions has done a terrible job handling the workload it has now; it’s unclear how giving the pardon attorney and the others who consider these petitions even more work is supposed to solve the problem. Increasing the size of the clog does nothing to clear out a pipe....

Critics hailing from such diverse corners as the Heritage Foundation and the American Constitution Society have called for wide-ranging reform of the pardon process.  This might be the time to implement significant changes, such as removing many levels of review and giving the person or committee charged with making recommendations on clemency much more frequent and direct access to the president.

Even if systemic reform of the process isn’t undertaken or doesn’t take immediate effect, a shorter-term solution is available.  Obama could empanel a presidential clemency board for a period of 12 to 18 months to consider the mass of petitions that may be generated through the process Cole described.

This pop-up agency would push through the egg in the snake, make its recommendations, and disband.  Their efforts would be revenue-positive (because of savings in incarceration costs), further an important policy goal that has been embraced by members of both parties and all three branches of government, and avoid the dangers presented when a new, permanent bureaucracy is established. What’s not to like about that?

Some recent and older posts concerning federal clemency practices:

February 4, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, January 31, 2014

Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?

The very serious question and inquiry in the title of this post is prompted by this notable recent post by Bill Otis that I just saw over at Crime & Consequences.  Bill's post is titled "Hundreds of Career Prosecutors Revolt Against Holder," and here is how the post gets started and its main points:

I spent 25 years [at DOJ], split between Main Justice in Washington and the US Attorney's Office.  Today something happened that, in my experience, is unprecedented.  Hundreds of career lawyers broke into open revolt against the Attorney General on a matter of prepossessing importance to federal sentencing.   If something like that had happened in the Bush Administration, I guarantee you it would be a Page One story. Whether it gets any coverage at all in the present Administration remains to be seen.

The Attorney General announced last week that he would support the Durbin-Lee bill pending in the Senate. That legislation would drastically cut back on mandatory minimum sentences for drug pushers -- not just for pot, but for all drug offenses, including major and repeat trafficking in heroin, meth, PCP and other extremely dangerous, and often lethal, drugs....

When the Attorney General decided to join the effort to kneecap mandatory minimums, career attorneys could remain silent no longer... [and] a letter [was sent by] the National Association of Assistant United States Attorneys [to] Mr. Holder three days ago....

[T]he fact that hundreds of career prosecutors -- not political appointees, but the men and women in US Attorney's Offices across the country hired on merit -- have revolted against the Attorney General is a development whose importance is difficult to overstate.

Career prosecutors, I can tell you from experience, are uncomfortable taking any role in what could be portrayed as a political issue. They are Republicans, Democrats and Independents, and generally have all the differences of opinion one would expect from a group so large and diverse. They view divorcing themselves from politics as essential. That they have spoken up here, and done so publicly, is a testament to how dreadfully damaging they know the Durbin-Lee bill would be.

I concur completely with Bill's claim in this post that it would be huge "Page One" news if, in fact, there were hundreds of federal prosecutors who "broke into open revolt against the Attorney General."  But I must question whether the mere fact that a letter signed by Robert Gay Guthrie, the President of the National Association of Assistant United States Attorneys, and sent to Attorney General Holder concerning these matters really is evidence of an "open revolt" by hundreds of federal prosecutors.

I believe the letter referenced by Bill Otis above is available at this link via the website of the National Association of Assistant United States Attorneys.  The only "open" name on the letter that I see is Robert Gay Guthrie.  The letter does use the term "we" consistently, so I surmise this letter represents the views of more than just Mr. Guthrie.  But, unless and until I see the names of other Assistant United States Attorneys who openly signed onto this letter (or unless we hear other public reports of public complaints coming from AUSAs), I have a hard time seeing this two-page letter as proof of an on-going open revolt.  Indeed, the tone and text of the letter does not even strike me as a "revolt" as much as an expression of a viewpoint.

In addition, I cannot help but notice that a lot of the concepts (and even some phrases) in the NAAUSA letter sound like comments often made by Bill Otis here and in other writings he has done in support of the existing system of federal mandatory minimums.  I have heard rumors that Bill serves as a lobbyist for the National Association of Assistant United States Attorneys, and thus I must wonder aloud whether the only person really in "open revolt" right now against AG Holder is Bill Otis.  That said, if Bill helped ghost-write this letter for the National Association of Assistant United States Attorneys and Robert Gay Guthrie, even Bill's own efforts to revolt is not really all that "open."

I raise these matters not because I am troubled that Bill Otis and Robert Gay Guthrie and other past and present federal prosecutors might weigh in on this important on-going federal sentencing reform debate.  But I am truly puzzled by Bill's assertion that there is now an "open revolt against the Attorney General" involving hundreds of federal prosecutors and by his surprise that a simple two-page letter from NAAUSA has not become a "Page One story."

I hope that Bill will use the comments here to explain just why he sees this letter as evidence of an "open revolt" and perhaps he can also name some of the "hundreds" of federal prosecutors who he may know to be a formal part of this "open revolt."  I also hope, if in fact there is now an on-going "open revolt against the Attorney General on a matter of prepossessing importance to federal sentencing" as Bill Otis asserts, that some current federal prosecutors (1) will openly state here or elsewhere that they signed off on this letter and did so as part of an effort to revolt against AG Holder, and (2) will openly discuss any other activities planned as part of this revolt.

I know Bill Otis feels very strongly that the current federal mandatory minimum sentencing provisions should not be reformed.  But, until reading Bill's post, I was not aware that "hundreds" of current federal prosecutors shared his perspective.  And, of course, yesterday 13 of 18 Senators on the Senate Judiciary Committee voted in favor of drug sentencing reform, and I now wonder if they were fully aware of what Bill calls an "open revolt against the Attorney General."  Finally, my own assessment of the prospects of the Smarter Sentencing Act becoming enacted law is sure to be impacted by the nature and dynamics of any on-going  "open revolt against the Attorney General" by hundreds of federal prosecutors.

A few recent related posts:

January 31, 2014 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (45) | TrackBack

Professor/practitioner perspective on DAG Cole's puzzling clemency conversation

Nearly everyone I know invested in the modern debate over federal clemency policies and practice have been intrigued and puzzled by the clemency comments made by Deputy Attorney General James Cole yesterday at the New York State Bar Association Annual Meeting (basis here and here). Helpfully, Professor Mark Osler agreed to write up his thoughts for posting here in order to provide a thoughtful perspective on that DAG Cole's comments might mean and portend:

Since starting a federal commutations clinic a few years ago, I’ve become fascinated by the clemency process. For those of us who care deeply about the constitutional pardon power, the speech by Deputy Attorney General Jim Cole in New York was a bombshell. In short, Cole announced that President Obama’s grant of eight commutations in December was just a “first step,” and that “there was more to be done.”  This isn’t subtle signaling; it is a bold and admirable announcement that the administration plans to use the pardon power systemically to address over-incarceration in narcotics cases. This is great news for those serving such sentences, sure, but it also is a remarkable moment for the pardon power itself, which has not played such an important and principled role in the justice system for decades.

There are some open questions, though. Cole said the December commutations were a “first step,” and outlined generally what the second step will be — an apparent move to funnel many more cases through the existing process. Cole described three parts of this process. First, the Bureau of Prisons will advise inmates of their right to petition for clemency and then direct inmates who respond to bar associations that are willing to help prepare petitions. Second, bar associations will then coordinate the preparation of these petitions. Third, a member of Cole’s staff will coordinate all of this.

If it works, this will result in a flood of petitions being sent to the federal pardon attorney, a DOJ functionary. Therein lies the rub. The pardon attorney, and the rest of the process between the pardon attorney and the President, has hardly been a model of efficiency. In December, those eight commutations and thirteen pardons that were granted were dwarfed by what currently clogs the pipeline — over 3,500 petitions for clemency are currently unresolved. Presumably, these new petitions will take their place at the bottom of that large pile.

At best, this will all work out somehow — there might be a plan to improve the process that we don’t know about. At worst, Cole is waving more traffic onto a jammed freeway, without first clearing the wrecks and opening the exit ramps.

Generating more clemency petitions is a good thing, but it needs to be accompanied by an administration plan to process and grant more petitions. Gerald Ford did this efficiently by creating a Presidential Clemency Board, which evaluated thousands of clemency petitions from Vietnam-era draft evaders and Army deserters. Ford’s Board did this in exactly one year, at low cost. That model should be used here. If the freeway isn’t moving, adding more cars won’t help much.

January 31, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, January 29, 2014

Though Prez Obama ignores sentencing reform in State of the Union, AG Holder talks it up to Senate Judiciary Committee

I was disappointed, but not at all surprised, that during last night's State of the Union address, President Obama showed his distinct unwillingness to be a real leader in the arena of federal sentencing reform.  I had heard rumors that some mention of sentencing reform was possible in SOTU, but I surmise that Prez Obama cares too little about this issue to give it even a brief mention in an hour-long speech about his vision and priorities for the nation.  (In sharp contrast, as highlighted here, President George W. Bush made some quite progressive criminal justice reform comments in both his 2004 and 2005 State of the Union address.)

But while Prez Obama apparently is disinterested in these matters (or thinks they make for bad politics), his Attorney General seems to remain committed to move forward with needed federal sentencing reforms.  Specifically, consider these closing paragraphs in this prepared statement delivered today by AG Eric Holder to the US Senate Committee on the Judiciary:

[O]ur commitment to integrity and equal justice in every case, in every circumstance, and in every community ... is also reflected in the new “Smart on Crime” initiative I announced this past August — to strengthen our federal criminal justice system; to increase our emphasis on proven diversion, rehabilitation, and reentry programs; and to reduce unnecessary collateral consequences for those seeking to rejoin their communities. As part of the “Smart on Crime” approach, I mandated a significant change to the Justice Department’s charging policies to ensure that people accused of certain low-level federal drug crimes will face sentences appropriate to their individual conduct — and that stringent mandatory minimum sentences will be reserved for the most serious criminals.  Alongside other important reforms, this change will make our criminal justice system not only fairer, but also more efficient.  And it will complement proposals like the bipartisan Smarter Sentencing Act — introduced by Senators Dick Durbin and Mike Lee — which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes.

I look forward to working with Chairman Leahy, distinguished members of this Committee, and other leaders who have shown a commitment to common-sense sentencing reform – like Senator Rand Paul — to help advance this and other legislation.  I thank you all, once again, for your continued support of the Department of Justice.  And I would be happy to answer any questions you may have.

A few recent related posts:

January 29, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, December 19, 2013

Clemency christmas miracle?: Prez Obama communiting 8 pre-FSA crack sentences and granting 13 pardons

ALittleChristmasMiracleAs reported in this new article from the New York Times, "President Obama, expanding his push to curtail severe penalties for drug offenses, is expected on Thursday to commute the sentences of eight federal inmates who were convicted of crack cocaine offenses. Each inmate has been imprisoned for at least 15 years, and six were sentenced to life in prison."  Here is more about this interesting and exciting news:

It would be the first time retroactive relief was provided to a group of inmates who most likely would have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules and charging policies. Most of the eight would be released in 120 days.

In a statement prepared for release when the commutations are announced, Mr. Obama said that each of the eight men and women had been sentenced under what is now recognized as an “unfair system,” including under a 100-to-1 sentencing disparity between crack and powder cocaine offenses that was significantly reduced by the Fair Sentencing Act of 2011.

“If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society,” Mr. Obama said. “Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.”

The recipients include several high-profile inmates who have received news media attention as examples of the effects of earlier tough-on-crime drug sentencing policies, in which the quantities of crack involved sometimes resulted in severe punishments. Many of them were young at the time of their offense and were not accused of violence.

Clarence Aaron of Mobile, Ala., for example, was sentenced to three life terms in prison for his role in a 1993 drug deal, when he was 22. Mr. Aaron’s case has been taken up by congressional critics of draconian sentencing and by civil rights groups, and has received significant media attention. Last year, the Justice Department’s inspector general issued a report criticizing the department’s pardon office for mishandling his clemency petition.

Margaret Love, a former Justice Department pardon lawyer who represents Mr. Aaron, said she received a call informing her of the decision on Thursday morning and called her client, who along with his family was “very grateful.”

“He was absolutely overcome,” she said. “Actually, I was, too. He was in tears. This has been a long haul for him, 20 years. He just was speechless, and it’s very exciting.”

Mr. Obama, who has made relatively little use of his constitutional clemency powers to forgive offenses or reduce sentences, is also expected to pardon 13 people who completed their sentences long ago. Those cases involved mostly minor offenses that resulted in little or no prison time, in line with previous pardons he has issued.

But the eight commutations opened a major new front in the administration’s criminal justice policy intended to curb soaring taxpayer spending on prisons and to help correct what the administration has portrayed as unfairness in the justice system. Recipients also include Reynolds Wintersmith, of Rockford, Ill., who was sentenced in 1994 to life in prison for dealing crack when he was 17, and Stephanie George of Pensacola, Fla., who received a life sentence in 1997, when she was 27, for hiding a boyfriend’s stash of crack in a box in her house. In both cases, the sentencing judges criticized the mandatory sentences they were required to impose by federal law at the time, calling them unjust.

In December 2012, The New York Times published an article about Ms. George’s case and the larger rethinking of the social and economic costs of long prison terms for nonviolent offenders. Mr. Obama mentioned the article in an interview with Time magazine later that day and said he was considering asking officials about ways to do things “smarter.”

Around that time, a senior White House official said, Mr. Obama directed Kathryn Ruemmler, his White House counsel, to ask the Justice Department to examine pending clemency petitions to assess whether there were any in which current inmates serving long sentences would have benefited from subsequent changes to sentencing laws and policy. The deputy attorney general, James M. Cole, returned the eight cases with positive recommendations from the department about six weeks ago, the official said....

Legislation pending in Congress, including a bill co-sponsored by Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, would make the Fair Sentencing Act retroactive for some offenders, and it would build into the system a process for inmates to apply to a judge for case-by-case review of whether a reduced sentence would be appropriate. The Obama administration supports that bill, the White House said, as a more orderly and regular way to ensure individualized analysis in addressing the broader inmate population.

According to the group Families Against Mandatory Minimums, about 8,800 federal inmates sentenced for crack offenses before the Fair Sentencing Act would be eligible to apply for a reduced sentence were the bill to become law. “Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness,” Mr. Obama said. “But it must not be the last. In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress. Together, we must ensure that our taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all.”

I am quite pleased Prez Obama is finally, finally, finally using his constitutional clemency powers in a truly consequential and meaningful way, and I am especially pleased that there are now eight more defendants (and families) who get some relief from the unfair 100-1 pre-FSA crack sentences that nobody ever seeks to defend substantively. However, the numbers reported above highlight that for every new bit of post-FSA fairness achieved by these commutations, a thousand other defendants (and families) must continue to live with the consequences of a reform that has been interpreted only to prevent future injustices and not fix past ones.

More broadly, though I do not want to turn a praiseworthy act by Prez Obama into an excuse for more criticism, there is a cynical voice in my head that is not only eager to fault the limited reach of this new round of clemency, but also its timing. Perhaps intentionally, these grants could (and perhaps should) be marginalized as just a holiday tradition, not as a bold statement of executive priorities. Even more worrisomely, as there is on-going talk of statutory sentencing reforms in Congress, these grants might provide some basis for opponents of broader reforms to contend that truly troublesome cases can and should be just handled and remedied by the executive branch.

Better summing up my cynicism is a response to this news from Professor Mark Osler: "Good news... But just one lifeboat off the titanic. With no structural change, the ship is still sinking."

December 19, 2013 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (12) | TrackBack

Wednesday, November 27, 2013

"20% Of Obama’s Pardons Have Gone To Turkeys"

Presidential-pardonsThe title of this post is the fitting headline devised by Andrew Sullivan for this post from The Dish. The post links to this longer lament of the entire turkey pardon ritual by Brad Plummer, which winds down this way:

It's a mockery of the presidential pardon, which is an all-too neglected issue. Maybe this isn't surprising, since the turkey pardon was basically invented as a way of mocking presidential pardons. Still, it's worth mentioning.

After tomorrow, Obama will have "pardoned" 10 turkeys in all (turkeys that, as best we can tell, haven't actually committed any crimes). By contrast, he will have only pardoned or commuted the sentences of 40 actual living human beings.

The latter is a record low for modern-day presidents.  At the same point in his presidency, Ronald Reagan had pardoned 313 people.  Harry Truman had pardoned 1,537 people.

Last year, Sam Morrison, an official who spent 13 years in the Justice Department's Office of the Pardon Attorney before retiring in 2010, described the prevailing attitude toward pardons this way: "They tend to view any grant of clemency not as a good thing, as a criminal justice success story, but almost as a defeat — that you're taking away something from what some good prosecutor achieved." (The Justice Department disputed this characterization.)

Over at National Journal, Ron Fournier pointed out that, at the bare minimum, Obama could grant clemency to all the people still serving extra time in prison under the old crack-sentencing guidelines — guidelines that Obama himself opposed as excessive and which Congress reduced for all new prisoners in 2010.  So far, however, there's no sign that the White House will do this.

Of course, comparing Prez Obama's pitiful clemency record to the records of prior presidents like Ronald Reagan or Harry Truman is quite unfair — to Reagan and Truman. The federal criminal justice system and the federal prison population (not to mention the negative consequences of a federal record) were all much, much smaller when Reagan and Truman were President, and thus the number of federal offenders and prisoners formally seeking clemency was much lower. Indeed, these official clemency statistics reveal that Prez Obama gets about 10 times as many formal commutation requests than Prez Reagan got each year (which, is not so surprising given that the federal prison population is nearly 10 times larger now than it was when Reagan first became President).

Indeed, if we focus on only commutations, President Obama's record looks even more revolting.  As Jacob Sullum notes here at Forbes, Obama has only commuted a single federal prison sentence.  Thus, as the Forbes headline states, "Judging From His Clemency Record, Obama Likes Turkeys 10 Times As Much As People."

November 27, 2013 in Clemency and Pardons, Criminal justice in the Obama Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, September 11, 2013

Could GOP Senator John Cornyn be the next big advocate for reducing federal prison terms?

The question in the title of this post is prompted by this very interesting new piece by Greg Sargent via the Washington Post under the headline "Where are Republicans on sentencing reform?." Here are excerpts:

When Eric Holder announced recently that he is pursuing an ambitious package of sentencing reforms, including proposals to reduce “mandatory minimum” sentences, there was a widespread sense it could attract broad bipartisan support. The thinking was that agreement cuts across party lines that our decades-long experiment in mass incarceration has been a huge policy failure.

Now Dem Congressional aides are asking: Will leading Republicans step forward and support reform?...

I can report a new development on this front. I’m told GOP Senator John Cornyn is working on a separate but related package of prison-reform legislation that could help bring more attention to the overall debate.  According to his office, Cornyn is developing proposals designed to reduce recidivism rates and time served in prison. The ideas are not sentencing reform and would not reduce the sentences themselves — as would Holder’s proposals — but instead would give prisoners ways to reduce already-doled-out sentences.

The policies, which are modeled on similar reforms in Texas, would allow certain types of non-violent prisoners to do various programs — such as recidivism reduction programming, work programs, or other productive activities.  Prisoners at low risk of recidivism could trade in the time they do in such programs to convert their remaining time in prison into time in halfway houses or home confinement.

While these ideas don’t attack the problem in precisely the same way the ideas pushed by Holder and Dems do, there is overlap. As Cornyn’s office notes, their goal would be to reduce the amount of time people spend in prison, reduce recidivisim, and reduce costs. Cornyn’s office says he will try to round up Republican and Democratic support for them and possibly introduce them this fall.  If that happens, it could help ignite a conversation on the broader set of issues here....

But we have yet to hear from leading Republicans whose support would be required to push this debate forward, such as Senators Orrin Hatch and Jeff Sessions, both of whom are on the Judiciary Committee and (to my knowledge) have not seriously weighed in on Holder’s push.  The question is whether establishment Republicans are going to have a real voice on this issue this fall.  Let’s hope so.

I am pretty sure there are more than a few folks within the Justice Department who have advocated (both formally and behind the scenes) for expanding "good time" credits and creating "earned time" credits in order to make it much easier for nonviolent federal prisoners "to reduce already-doled-out sentences."  Consequently, it is not so much the specifics of Senator Cornyn's working plan that are such a big deal, but rather that someone without a obvious Tea Party history is working on a federal prison reduction plan at all.  Kudos to Senator Cornyn, and I hope joins the ever-growing chorus of GOP voices calling for federal criminal justice reforms.

Some old and newer related posts about AG Holder's speech and the "new politics" of sentencing reform:

September 11, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, September 03, 2013

Bill and Doug's excellent adventure ... debating mandatory minimums in Federalist Society Teleforum

Bill and tedFor anyone who especially enjoys the verbal sparring between me and Bill Otis in the comments to this blog, you may want to quickly become a member of the Federalist Society so you can hear us go at in for a full hour as part of this exciting event being put on this afternoon by the FedSoc folks:

Is Eric Holder Right About Mandatory Minimums?

Criminal Law & Procedure Practice Group

Douglas Berman, William G. Otis

Start : Tuesday, September 3, 2013 2:00 PM

Location:  Federalist Society Teleforum Conference Call

On August 12, U.S. Attorney General Eric Holder announced that the Justice Department will no longer pursue mandatory minimum sentences for what he described as certain low-level, nonviolent drug offenders.  Our experts will discuss Holder’s announcement and approach.  In addition, they will address a variety of other issues related to mandatory minimum sentencing, including the question whether or not mandatory minimums are conceptually sound.

Featuring:

  • Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center
  • Prof. Douglas A. Berman, Robert J. Watkins/Procter & Gamble Professor of Law, Moritz College of Law, The Ohio State University

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Post-forum UPDATE: As you might have expected, Bill and I had a grand time talking past each other in an effort to highlight the pros and cons of mandatory minumum sentencing statutes. In all seriousness, I share Bill's perspective appearing in the comments below that "listeners got a full airing of the most persuasive points on both sides." And, valuably, you can still hear for yourself as a podcast of the hour-long discussion is now available from The Federalist Society via this link.

September 3, 2013 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, August 26, 2013

Could "momentum for sentencing reform [now] be unstoppable" in the federal system?

The question in the title of this post is prompted by a comment in the final paragraph of this lengthy new piece by Juan Williams appearing in The Hill. The piece is headlined "Amid gridlock, a surprising accord on drug-law sentencing," and here are excerpts (including the final paragraph):

Reporters missed a story earlier this month when Attorney General Eric Holder announced new guidelines for his federal prosecutors in handling non-violent drug crimes.   Holder said President Obama plans to “reach out to members of Congress from both parties” to begin work on legislation to revise federal mandatory sentencing rules for people convicted of non-violent drug crimes....

In this era of deep political paralysis on Capitol Hill it should have been headline news that legislation revising sentencing guidelines for drug convicts is miraculously bringing together conservatives and liberals, even Tea Party conservatives and Obama....

Conservatives, including Republicans such as Texas Gov. Rick Perry, who regularly use tough rhetoric about punishing criminals, have already signed on to the essence of what Holder and Obama want to see in congressional legislation.  Even hardline conservative lobbying groups seem to be on board: “It’s a step in the right direction, though about five years too late,” said Grover Norquist, president of Americans for Tax Reform, in an interview with Time magazine.

My Fox News colleague, former Arkansas Gov. Mike Huckabee, a strong conservative Republican, proclaimed on Twitter: “Finally found something I can agree with Eric Holder on — sentencing too many people to prison for non-violent drug crimes.”

The goal is to reduce the nation’s record prison population, now 40 percent over capacity. Conservatives as well as the president and attorney general are amazingly close to agreeing on the need to permanently revise thinking born during the crack epidemic of the 1980s that still has federal prosecutors asking for heavy mandatory sentences in 60 percent of cases involving any kind of illegal drugs....

Durbin and Lee, Democrat and Republican, have introduced a bill — “The Smarter Sentencing Act” — to revise the fixed sentencing guidelines for non-violent drug offenders.  Leahy and Paul, another pairing across political lines, have introduced a similar bill — the “Justice Safety Valve Act of 2013” — which gives judges more discretion to break away from the current mandatory sentencing guidelines.  This bill has already won bipartisan House endorsements.

After Holder’s speech, Paul seemed to indicate the administration is following his conservative, libertarian lead in wrapping its arms around the idea of reducing prison sentences and cutting the cost that comes with housing so many prisoners.  “I am encouraged that the president and the attorney general agree with me that mandatory minimum sentences for non-violent offenders promote injustice and do not serve public safety,” Paul said.

In fact, Paul’s home state, Kentucky, as well as other GOP strongholds, including Arkansas and Texas, have already put in place programs to explore the impact of lesser drug sentences.  In Kentucky, as Holder told the ABA, the prison population is being reduced by an estimated 3,000 inmates over the next decade, which will net savings of $400 million. Texas, Holder said, has reduced its prison population by 5,000 in the last year with new approaches to drug treatment and parole. Arkansas cut 1400 prisoners with a similar plan. “Clearly these strategies work,” Holder said.  “They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’  And it is past time for others to take notice.”

Jennifer Palmieri, the White House communications director, confirmed to me Holder’s announcement that the president’s fall agenda will include meeting “with folks in Congress who are pursuing legislation as well as governors and mayors who have done innovative work on this issue.”

The president’s personal attention to the issue could spark some conservative opposition because of their personal antipathy to him.  But with existing support for the idea among Republicans on the Hill and in statehouses nationwide there is also a chance that a White House push on sentencing reform will raise public awareness, generate public support and gain the votes in Congress needed to enact potentially historic changes to 1980s sentencing laws that came out of the “War on Drugs.”

With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency — a bipartisan success in passing new laws to reduce the nation’s prison population.

Gosh knows I sure hope there might now be unstoppable momentum to get the Smarter Sentencing Act and/or the Justice Safety Valve Act passed in the next few months.  Indeed, right after AG Holder's big speech (which did, I think, make a few headlines), I advocated in this op-ed for the Los Angeles Times that AG Holder and his boss do everything possible ASAP to turn this reform talk and momentum into legal changes.  But the history of advocacy for federal crack sentencing reform, as well as the aftermath of the FSA, always bring me back to the real-world reality that big talk about sentencing reform is always a lot easier and a lot more common than big action.

Some old and newer related posts about AG Holder's speech and the "new politics" of sentencing reform:

August 26, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, August 20, 2013

Sequester now requiring still more foolish cuts to federal criminal justice services

As reported in this USA Today piece, headlined "Public defenders, probation services to have cutbacks," another fiscal shoe is dropping as a result of sequester in a manner that seems likely to harm both the federal justice process and crime control efforts. Here are the details:

The federal judiciary for the first time is cutting the fees of court appointed defense lawyers, including those representing death penalty defendants, to deal with the "dire consequences'' of required government budget reductions known as sequestration.

The reductions, outlined in a notice to U.S. District Judge Catherine Blake, chairwoman of the Federal Judicial Conference Committee on Defender Services, are part of an unprecedented criminal justice cost-cutting effort that also will scale back operations of federal probation services at a time when authorities are planning to rely more heavily on programs like probation to help reduce the rising federal prison population.

The cuts in attorneys' fees will be implemented next month with payments dropping from $125 per hour to $110 in non-death penalty cases and from $179 per hour to $164 in cases where capital punishment is being sought.

The reductions are aimed at saving $50 million during the next 13 months to avoid further cuts into the full-time staff of the federal defenders service. The defender program consists of both full-time public defenders, who have been targeted for furloughs and layoffs, and private court-appointed lawyers who assist in the representation of the indigent. In addition to the fee cuts, millions of dollars in fees to the outside court-appointed counsels, scheduled for payment in fiscal year 2014 (beginning in October), would be deferred into fiscal year 2015.

In the letter to Blake made public Monday, William Traxler Jr., chairman of the Judicial Conference's Executive Committee, warned that the fee cuts "may impact the delivery of justice, but are necessary to avoid permanent damage to the federal defender program."

"Measures of this kind, however, are not sustainable in the long term and certainly would not be required if the judiciary were receiving an appropriate level of funding in this account," Traxler said....

Notice of the fee reductions come less than a week after the chief judges of 87 federal districts warned congressional leaders and Vice President Biden that funding reductions to the judiciary have "put public safety at risk."

Although the number of convicted offenders supervised by probation officers is expected to increase from a record 187,311 in 2012 to 191,000 by 2014, the number of probation and pre-trial services officers employed by the judiciary to supervise those offenders has been reduced by 7% since 2011 to a staff of about 6,000....

"Cuts to officer staffing levels have forced cutbacks in these activities to crisis levels," the judges said in the letter last week. "Particularly troublesome is the 20% cut that had to be made to the … allotments that fund drug, mental health and sex offender treatment and testing services for offenders and electronic GPS monitoring."

U.S. District Judge Loretta Preska, chief judge of New York's Southern District and one of the two main authors of the judges' letter, said the appeal to Congress is the first she can remember in more than two decades on the bench. In her own district, forced budget reductions have hit the probation and treatment programs especially hard, Preska said in an interview, requiring a 43% cut in substance abuse treatment for offenders, a 7% drop in mental health treatment and a 24% cut in special location monitoring programs, including GPS monitoring of those on supervised release.

She said the reduction in attorneys' fees is "very dangerous" in regions of the country like New York, where legal fees are especially high. "Fees of $125 per hour is virtually charity work in New York," she said. "We want to make sure we can attract competent lawyers to join the panel" of court appointed attorneys. "We are very concerned," she said.

These cuts, though seemingly necessary because of the failure of Congress to act on funding issues, are hard to even consider "penny wise" and they are certainly "pound foolish."  Less funding for evidence-based treatment programs are very likely to lead to increased recidivism and its associated long-term costs.  And poor funding of defense services are very likely to lead to inadequate representation in some cases which likewise creates long-term costs due to future appeals and/or the imposition of excessive prison sentences.

I am pleased that the district judges are taking steps to alert Congress to the crisis that these budget issues are now producing, but I am disappointed that others in the federal judiciary are not also making a bigger deal about these issues.  In particular, I believe both the US Sentencing Commission and the Justices of the Supreme Court could and should be saying a lot about these issues given that they both have unique institutional insights and responsibilities concerning the functioning and fairness of the federal criminal justice system.

Recent related posts:

August 20, 2013 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, August 19, 2013

Notable inside-the-Beltway discussion of modern sentencing politics

The Washington Post has this notable new piece with lots of notable quotes and notes about the modern politics of sentencing reform.  The piece is headlined "Cuccinelli says sentencing policy should be judged, in part, on cost," but it covers both federal and state sentencing politics.  Here is how the article starts:

Five days after he announced his candidacy for governor of Virginia, Republican Ken Cuccinelli II showed a side of himself seemingly at odds with his reputation as a tough law-and-order conservative.

The Virginia attorney general stood proudly at a news conference in late 2011 announcing the exoneration of a Richmond man who had spent 27 years in prison after being falsely convicted of rape. Cuccinelli had personally championed the man’s innocence, a sign of the broad evolution in Cuccinelli’s views on crime and punishment that would also lead him to argue that a frugal government should be more discerning about whom it puts behind bars.

“There is an expectation that the generic Republican position is tough on crime,” Cuccinelli said in an interview Thursday. “But even that has budget limits, particularly on the prison side."

Two decades after Republican George Allen charged into the Virginia governorship by vowing to eliminate parole for violent offenders, a rhetorical shift among the state’s leading conservatives reflects changing attitudes toward criminal justice nationwide.

U.S. Attorney General Eric H. Holder Jr. underscored the new dynamic last week when he announced reforms aimed at reducing sentences for some low-level offenders and slowing massive growth in the nation’s prison population. Republicans, who have targeted Holder on other issues, were generally supportive. The attorney general urged passage of legislation that has been introduced in Congress with bipartisan support that would give ­judges more discretion in applying stiff sentences to some drug crimes.

One person who discussed the plans with Holder said that the Obama administration felt like the political terrain was safe to make those kinds of policy ­changes because of the “conservative cover." The person spoke on the condition of anonymity because the discussion was private.

Amid fiscal problems caused in part by massive prison populations and research showing that mass incarceration causes social harm, some leading conservatives have been pushing for reforms.

A generation ago, Republicans savaged Democrats as soft on crime, until former President Bill Clinton and others joined the GOP in a crackdown that continued even as the nation’s violent crime rate plummeted to historic lows. “This is a fundamental shift in how we see criminal justice," said David A. Harris, a University of Pittsburgh professor who studies crime and police. “There is a growing awareness of the fiscal and social costs of our great experiment in mass incarceration, and the balance has shifted from trying to look unrelentingly tough to asking what works best."

In a 1994 Gallup poll, 52 percent of Americans called crime the nation’s most pressing problem. Last month, that number was 2 percent. Other surveys show that fewer Americans support mandatory prison terms for offenders than in the mid-1990s, and fewer believe courts are too lenient with criminals.

August 19, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, August 12, 2013

Some sentencing-related highlights from AG Holder's remarks today to the ABA

HolderI am back on line, and now able to link to and provide some extensive excerpts from Attorney General Eric Holder's high-profile remarks earlier today at the Annual Meeting of the American Bar Association's House of Delegates.  Everyone should make time to read AG Holder's remarks in full, but below I will try to excerpt those portions likely to be of greatest interest and import for sentencing fans.  Here goes (with apologies at how much text is excerpted, and with some of my very favorite text in bold and even italics):

In so many ways, today’s ABA is reminding us that, although our laws must be continually updated, our shared dedication to the cause of justice — and the ideals set forth by our Constitution — must remain constant. It is this sense of dedication that brings me to San Francisco today — to enlist your partnership in forging a more just society. To ask for your leadership in reclaiming, once more, the values we hold dear.  And to draw upon the ABA’s legacy of achievement in calling on every member of our profession to question that which is accepted truth; to challenge that which is unjust; to break free of a tired status quo; and to take bold steps to reform and strengthen America’s criminal justice system – in concrete and fundamental ways.

It’s time — in fact, it’s well past time – to address persistent needs and unwarranted disparities by considering a fundamentally new approach. As a prosecutor; a judge; an attorney in private practice; and now, as our nation’s Attorney General, I’ve seen the criminal justice system firsthand, from nearly every angle. While I have the utmost faith in — and dedication to — America’s legal system, we must face the reality that, as it stands, our system is in too many respects broken. The course we are on is far from sustainable. And it is our time — and our duty — to identify those areas we can improve in order to better advance the cause of justice for all Americans.

Even as most crime rates decline, we need to examine new law enforcement strategies —and better allocate resources — to keep pace with today’s continuing threats as violence spikes in some of our greatest cities.  As studies show that six in ten American children are exposed to violence at some point in their lives — and nearly one in four college women experience some form of sexual assault by their senior year — we need fresh solutions for assisting victims and empowering survivors. As the so-called “war on drugs” enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective — and build on the Administration’s efforts, led by the Office of National Drug Control Policy, to usher in a new approach.  And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate — not merely to warehouse and forget.

Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities.  And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.

It’s clear — as we come together today — that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.  It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges.  And it is well past time to implement common sense changes that will foster safer communities from coast to coast.

These are issues the President and I have been talking about for as long as I’ve known him — issues he’s felt strongly about ever since his days as a community organizer on the South Side of Chicago.  He’s worked hard over the years to protect our communities, to keep violent criminals off our streets, and to make sure those who break the law are held accountable.  And he’s also made it part of his mission to reduce the disparities in our criminal justice system.  In Illinois, he passed legislation that addressed racial profiling and trained police departments on how they could avoid racial bias.  And in 2010, this Administration successfully advocated for the reduction of the unjust 100-to-1 sentencing disparity between crack and powder cocaine....

Over the next several months, the President will continue to reach out to Members of Congress from both parties — as well as governors, mayors, and other leaders — to build on the great work being done across the country to reduce violent crime and reform our criminal justice system.  We need to keep taking steps to make sure people feel safe and secure in their homes and communities.  And part of that means doing something about the lives being harmed, not helped, by a criminal justice system that doesn’t serve the American people as well as it should.

At the beginning of this year, I launched a targeted Justice Department review of the federal system — to identify obstacles, inefficiencies, and inequities, and to address ineffective policies.  Today, I am pleased to announce the results of this review — which include a series of significant actions that the Department has undertaken to better protect the American people from crime; to increase support for those who become victims; and to ensure public safety by improving our criminal justice system as a whole. We have studied state systems and been impressed by the policy shifts some have made. I hope other state systems will follow our lead and implement changes as well. The changes I announce today underscore this Administration’s strong commitment to common sense criminal justice reform.  And our efforts must begin with law enforcement.

Particularly in these challenging times — when budgets are tight, federal sequestration has imposed untenable and irresponsible cuts, and leaders across government are being asked to do more with less — coordination between America’s federal, state, local, and tribal law enforcement agencies has never been more important. It’s imperative that we maximize our resources by focusing on protecting national security; combating violent crime; fighting against financial fraud; and safeguarding the most vulnerable members of our society.

This means that federal prosecutors cannot — and should not —bring every case or charge every defendant who stands accused of violating federal law.  Some issues are best handled at the state or local level.  And that’s why I have today directed the United States Attorney community to develop specific, locally-tailored guidelines — consistent with our national priorities — for determining when federal charges should be filed, and when they should not.

I’ve also issued guidance to ensure that every case we bring serves a substantial federal interest and complements the work of our law enforcement partners.  I have directed all U.S. Attorneys to create — and to update — comprehensive anti-violence strategies for badly-afflicted areas within their districts.  And I’ve encouraged them to convene regular law enforcement forums with state and local partners to refine these plans, foster greater efficiency, and facilitate more open communication and cooperation.

By targeting the most serious offenses, prosecuting the most dangerous criminals, directing assistance to crime “hot spots,” and pursuing new ways to promote public safety, deterrence, efficiency, and fairness — we in the federal government can become both smarter and tougher on crime.  By providing leadership to all levels of law enforcement — and bringing intelligence-driven strategies to bear — we can bolster the efforts of local leaders, U.S. Attorneys, and others in the fight against violent crime....

Fifty years ago last March, this landmark ruling [in Gideon] affirmed that every defendant charged with a serious crime has the right to an attorney, even if he or she cannot afford one.  Yet America’s indigent defense systems continue to exist in a state of crisis, and the promise of Gideon is not being met.  To address this crisis, Congress must not only end the forced budget cuts that have decimated public defenders nationwide — they must expand existing indigent defense programs, provide access to counsel for more juvenile defendants, and increase funding for federal public defender offices.  And every legal professional, every member of this audience, must answer the ABA’s call to contribute to this cause through pro bono service — and help realize the promise of equal justice for all.

As we come together this morning, this same promise must lead us all to acknowledge that — although incarceration has a significant role to play in our justice system —widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable.  It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.

As a nation, we are coldly efficient in our incarceration efforts. While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown at an astonishing rate — by almost 800 percent. It’s still growing – despite the fact that federal prisons are operating at nearly 40 percent above capacity. Even though this country comprises just 5 percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.  More than 219,000 federal inmates are currently behind bars.  Almost half of them are serving time for drug-related crimes, and many have substance use disorders.  Nine to 10 million more people cycle through America’s local jails each year. And roughly 40 percent of former federal prisoners — and more than 60 percent of former state prisoners — are rearrested or have their supervision revoked within three years after their release, at great cost to American taxpayers and often for technical or minor violations of the terms of their release.

As a society, we pay much too high a price whenever our system fails to deliver outcomes that deter and punish crime, keep us safe, and ensure that those who have paid their debts have the chance to become productive citizens.  Right now, unwarranted disparities are far too common.  As President Obama said last month, it’s time to ask tough questions about how we can strengthen our communities, support young people, and address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system — as victims as well as perpetrators.

We also must confront the reality that — once they’re in that system — people of color often face harsher punishments than their peers.  One deeply troubling report, released in February, indicates that – in recent years – black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes.  This isn’t just unacceptable — it is shameful. It’s unworthy of our great country, and our great legal tradition.  And in response, I have today directed a group of U.S. Attorneys to examine sentencing disparities, and to develop recommendations on how we can address them.

In this area and many others — in ways both large and small — we, as a country, must resolve to do better.  The President and I agree that it’s time to take a pragmatic approach.  And that’s why I am proud to announce today that the Justice Department will take a series of significant actions to recalibrate America’s federal criminal justice system.

We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes.  Some statutes that mandate inflexible sentences — regardless of the individual conduct at issue in a particular case — reduce the discretion available to prosecutors, judges, and juries.  Because they oftentimes generate unfairly long sentences, they breed disrespect for the system.  When applied indiscriminately, they do not serve public safety.  They — and some of the enforcement priorities we have set —have had a destabilizing effect on particular communities, largely poor and of color.  And, applied inappropriately, they are ultimately counterproductive.

This is why I have today mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences.  They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins.  By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation — while making our expenditures smarter and more productive.  We’ve seen that this approach has bipartisan support in Congress — where a number of leaders, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders.  Such legislation will ultimately save our country billions of dollars while keeping us safe.  And the President and I look forward to working with members of both parties to refine and advance these proposals.

Secondly, the Department has now updated its framework for considering compassionate release for inmates facing extraordinary or compelling circumstances — and who pose no threat to the public.  In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons.  Today, I can announce additional expansions to our policy — including revised criteria for elderly inmates who did not commit violent crimes and who have served significant portions of their sentences.  Of course, as our primary responsibility, we must ensure that the American public is protected from anyone who may pose a danger to the community.  But considering the applications of nonviolent offenders — through a careful review process that ultimately allows judges to consider whether release is warranted — is the fair thing to do.  And it is the smart thing to do as well, because it will enable us to use our limited resources to house those who pose the greatest threat.

Finally, my colleagues and I are taking steps to identify and share best practices for enhancing the use of diversion programs — such as drug treatment and community service initiatives — that can serve as effective alternatives to incarceration.

Our U.S. Attorneys are leading the way in this regard — working alongside the judiciary to meet safety imperatives while avoiding incarceration in certain cases.  In South Dakota, a joint federal-tribal program has helped to prevent at-risk young people from getting involved in the federal prison system —thereby improving lives, saving taxpayer resources, and keeping communities safer. This is exactly the kind of proven innovation that federal policymakers, and state and tribal leaders, should emulate.  And it’s why the Justice Department is working — through a program called the Justice Reinvestment Initiative — to bring state leaders, local stakeholders, private partners, and federal officials together to comprehensively reform corrections and criminal justice practices.

In recent years, no fewer than 17 states — supported by the Department, and led by governors and legislators of both parties — have directed funding away from prison construction and toward evidence-based programs and services, like treatment and supervision, that are designed to reduce recidivism.  In Kentucky, for example, new legislation has reserved prison beds for the most serious offenders and re-focused resources on community supervision and evidence-based alternative programs.  As a result, the state is projected to reduce its prison population by more than 3,000 over the next 10 years — saving more than $400 million.

In Texas, investments in drug treatment for nonviolent offenders and changes to parole policies brought about a reduction in the prison population of more than 5,000 inmates last year alone.  The same year, similar efforts helped Arkansas reduce its prison population by more than 1,400. From Georgia, North Carolina, and Ohio, to Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources. Let me be clear: these measures have not compromised public safety.  In fact, many states have seen drops in recidivism rates at the same time their prison populations were declining. The policy changes that have led to these welcome results must be studied and emulated.  While our federal prison system has continued to slowly expand, significant state-level reductions have led to three consecutive years of decline in America’s overall prison population — including, in 2012, the largest drop ever experienced in a single year.

Clearly, these strategies can work.  They’ve attracted overwhelming, bipartisan support in “red states” as well as “blue states.” And it’s past time for others to take notice.

I am also announcing today that I have directed every U.S. Attorney to designate a Prevention and Reentry Coordinator in his or her district — to ensure that this work is, and will remain, a top priority throughout the country.  And my colleagues and I will keep working closely with state leaders, agency partners, including members of the Federal Interagency Reentry Council – and groups like the American Bar Association — to extend these efforts.

In recent years, with the Department’s support, the ABA has catalogued tens of thousands of statutes and regulations that impose unwise and counterproductive collateral consequences — with regard to housing or employment, for example — on people who have been convicted of crimes.  I have asked state attorneys general and a variety of federal leaders to review their own agencies’ regulations.  And today I can announce that I’ve directed all Department of Justice components, going forward, to consider whether any proposed regulation or guidance may impose unnecessary collateral consequences on those seeking to rejoin their communities.

The bottom line is that, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation. To be effective, federal efforts must also focus on prevention and reentry. We must never stop being tough on crime.  But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it.

Ultimately, this is about much more than fairness for those who are released from prison. It’s a matter of public safety and public good.  It makes plain economic sense. It’s about who we are as a people.  And it has the potential to positively impact the lives of every man, woman, and child — in every neighborhood and city — in the United States.  After all, whenever a recidivist crime is committed, innocent people are victimized.  Communities are less safe. Burdens on law enforcement are increased.  And already-strained resources are depleted even further.

Today — together — we must declare that we will no longer settle for such an unjust and unsustainable status quoTo do so would be to betray our history, our shared commitment to justice, and the founding principles of our nation. Instead, we must recommit ourselves — as a country — to tackling the most difficult questions, and the most costly problems, no matter how complex or intractable they may appear.  We must pledge — as legal professionals — to lend our talents, our training, and our diverse perspectives to advancing this critical work.  And we must resolve — as a people — to take a firm stand against violence; against victimization; against inequality — and for justice.

This is our chance — to bring America’s criminal justice system in line with our most sacred values. This is our opportunity — to define this time, our time, as one of progress and innovation. This is our promise —to forge a more just society.

And this is our solemn obligation, as stewards of the law, and servants of those whom it protects and empowers: to open a frank and constructive dialogue about the need to reform a broken system.  To fight for the sweeping, systemic changes we need. And to uphold our dearest values, as the ABA always has, by calling on our peers and colleagues not merely to serve their clients, or win their cases — but to ensure that —in every case, in every circumstance, and in every community — justice is done.

August 12, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (24) | TrackBack

More reporting on (and now seeking reactions to) AG Holder's big sentencing speech

I am about to head off-line for the next few hours, and the conspiracy theorist in me lead me to think that DOJ has been reading my e-mail and that AG Eric Holder specifically decided to give his big sentencing speech to the ABA exactly when he knew I would be unable to blog about it.  Man, those socialist-fascists running this administration sure our sneaky! 

Jokes aside, today's Holder speech is clearly a big deal for a bunch of reasons, and I am pleased to see that the New York Times already has up this new lengthy story based on its text, now running under the headline "Justice Dept. Seeks to Curtail Stiff Drug Sentences." Here are some more details:

Attorney General Eric H. Holder Jr., in a speech at the American Bar Association’s annual meeting in San Francisco on Monday, is expected to announce the new policy as one of several steps intended to curb soaring taxpayer spending on prisons and help correct what he regards as unfairness in the justice system, according to his prepared remarks.

Saying that “too many Americans go to too many prisons for far too long and for no good law enforcement reason,” Mr. Holder is planning to justify his policy push in both moral and economic terms.

“Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable,” Mr. Holder’s speech says. “It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.”

Mr. Holder will also introduce a related set of Justice Department policies that would leave more crimes to state courts to handle, increase the use of drug-treatment programs as alternatives to incarceration, and expand a program of “compassionate release” for “elderly inmates who did not commit violent crimes and have served significant portions of their sentences.”

The policy changes appear to be part of Mr. Holder’s effort, before he eventually steps down, to bolster his image and legacy. Turmoil over the Congressional investigation into the botched Operation Fast and Furious gun trafficking case ensnared him in the Obama administration’s first term, and more recently, controversy has flared over the department’s aggressive tactics in leak investigations....

Mr. Holder’s speech on Monday deplores the moral impact of the United States’ high incarceration rate: although it has only 5 percent of the world’s population, it has 25 percent of its prisoners, he notes. But he also attempts to pre-empt political controversy by painting his effort as following the lead of prison reform efforts in primarily conservative-led Southern states.

Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.

For example, in the case of a defendant accused of conspiring to sell five kilograms of cocaine — an amount that would set off a 10-year mandatory minimum sentence — the prosecutor would write that “the defendant conspired to distribute cocaine” without saying how much. The quantity would still factor in when prosecutors and judges consult sentencing guidelines, but depending on the circumstances, the result could be a sentence of less than the 10 years called for by the mandatory minimum law, the official said.

It is not clear whether current cases that have not yet been adjudicated would be recharged because of the new policy....

“While the federal prison system has continued to slowly expand, significant state-level reductions have led to three consecutive years of decline in America’s overall prison population — including, in 2012, the largest drop ever experienced in a single year,” Mr. Holder’s speech says. “Clearly, these strategies can work. They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’ And it’s past time for others to take notice.”...

Mr. Holder’s speech marches through a litany of statistics about incarceration in the United States. The American population has grown by about a third since 1980, he said, but its prison rate has increased nearly 800 percent. At the federal level, more than 219,000 inmates are currently behind bars — nearly half for drug-related crimes — and the prisons are operating at nearly 40 percent above their official capacity.

 

Of course, the devil (and the real impact of all this) will be in the details. When I have the opportunity later tonight, I will be sure to post a link to the full copy of the Holder speech, and I also will try to get posted a copy of this important new policy memorandum being sent to all United States attorney offices on Monday. (I am hopeful that DOJ will post both item on this official web page shortly, as there seems to be a lot of justified media interest in these topics, and not just among sentencing addled blogges.)

As I have already said to a few reporters, what may prove most important for the impact of what Holder does may be how other important persons inside and outside the Beltway react to this speech and its various policy elements. Will members of Congress, for example, publically praise Holder for what he says and will they say additional legislation is needed (or no longer needed) in response? Will federal judges make sure to allow defense attorneys to "enforce" this new policy in some way? Will the US Sentencing Commission alter is planned priorities for the coming year for guideline reforms based on both the themes and specifics in the Holder speech?

Exciting times! (Perhaps too exciting, and perhaps it is a good thing I will be off line until late tonight!)

Some recent and older related posts about AG Holder's speech the new federal politics of sentencing:

August 12, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack