Monday, November 02, 2015

Prez Obama takes criminal justice reform tour to New Jersey, but Gov Christie not pleased by visit

This Reuters article, headlined "Obama pitches help to ex-criminals, draws N.J. governor's ire," details notable talk from notable officials about criminal justice reform today in the Garden State.  Here are the particulars:

President Barack Obama announced new measures to smooth the integration of former criminals into society but his visit to New Jersey on Monday irked the state's governor, a struggling Republican presidential candidate.

Obama, a Democrat who has made criminal justice reform a top priority of his final years in office, praised organizations in Newark for their efforts to help those who have served prison terms to reintegrate into civilian life. "We've got to make sure Americans who have paid their debt to society can earn their second chance," Obama said in a speech at Rutgers University in Newark, a city of about 280,000 that has grappled for decades with poverty and high rates of violent crime.

Obama said he was banning "the box" that applicants had to check about their criminal histories when applying for certain federal jobs. He praised companies such as Wal-Mart, Target, Koch Industries, and Home Depot for taking similar measures in the private sector. The president noted that Congress was considering similar measures.

But New Jersey Governor Chris Christie, who is failing to gain traction in his bid for the Republican Party's nomination to run for the White House in the November 2016 election, said Obama's policies had hurt police departments nationwide. "(Obama) does not support law enforcement. Simply doesn't. And he's going to come today to New Jersey in a place where, under my tenure, we have reduced crime 20 percent and reduced the prison population 10 percent," Christie said on MSNBC TV. "It's a disgrace that he's coming to New Jersey today to take credit for this stuff when he's been someone who's undercut it."

The new steps unveiled by the White House included up to $8 million in federal education grants over three years for former inmates as well as new guidance on the use of arrest records in determining eligibility for public and federally assisted housing....

White House spokesman Josh Earnest questioned the reasoning behind Christie's less friendly welcome on Monday. “Governor Christie’s comments in this regard have been particularly irresponsible, though not surprising for somebody whose poll numbers are closer to an asterisk than they are double digits. Clearly this is part of the strategy to turn that around,” Earnest said.

For more on the specific proposals annouced by President Obama today, this official White House Fact Sheet provides lots of details under the heading "President Obama Announces New Actions to Promote Rehabilitation and Reintegration for the Formerly- Incarcerated."  

Some analysis of the Prez's proposals can be found in this Atlantic piece with this lengthy headline: "Obama's Plan to Help Former Inmates Find Homes and Jobs: Between 40 and 60 percent of ex-offenders can’t find work. Will the president’s new initiative help?"

November 2, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

Wednesday, October 28, 2015

Prez Obama talking up (yet again) sentencing reform

As reported in this New York Times piece, "President Obama made his case on Tuesday for an overhaul of the nation’s sentencing laws, telling a gathering of top law enforcement officials here that putting large numbers of nonviolent drug offenders in prison was neither fair nor an effective way of combating crime." Here is more:

While insisting that he did not harbor a “bleeding­heart attitude toward crime and justice,” Mr. Obama said the country should face up to the fact that policing priorities needed to shift away from locking up millions of nonviolent drug offenders — especially young black and Latino men.  “That’s not a sustainable situation,” Mr. Obama said.  “It is possible for us to come up with strategies that effectively reduce the damage of the drug trade without relying solely on incarceration.”...

The president received a warm response from the law enforcement officials in the crowd, many of whom have said that more robust gun control measures would help keep police officers safe.  On Monday, many police leaders at the conference called on Congress to pass universal background checks for firearm purposes, one of many proposals that failed to pass after the mass school shooting in Newtown, Conn. “It’s too easy for criminals to buy guns, and that makes your already dangerous job far more dangerous than it should be,” Mr. Obama said. “And it makes the communities so fearful that it’s harder for them to be a good partner for you.”

October 28, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (4)

Friday, October 23, 2015

Perspectives on new law enforcement sentencing reform group and Prez Obama's engagement

In addition to the Senate's work on SRCA 2015 (basics here and here), the other big sentencing reform news this week has been the emergence of the new group Law Enforcement Leaders to Reduce Crime and Incarceration (basics here), and President Obama's re-engagement with criminal justice reform matters (basics here).  These developments connected on Thursday through events at the White House involving The Marshall Project and well-reported in these pieces:

Excitingly, among the persons involved in all this important activity is FOB (Friend Of Blog) Mark Osler, and Mark late yesterday provided this exclusive insider view for reporting here:

I am one of the 130 members of a new group Doug recently wrote about, the Law Enforcement Leaders to Reduce Crime and Incarceration. That said, I suspect that I am (once again) the admission department's mistake, as nearly all of the others involved were or are now the head of some sort of law enforcement agency. The group includes the current police chiefs for New York, Los Angeles, Chicago, Houston, Washington DC, Dallas, Denver, San Francisco, Seattle, San Diego, Salt Lake City, Milwaukee, Minneapolis, Miami, Fresno, and Richmond (both Virginia and California) along with dozens of other current and former police chiefs, District and U.S. Attorneys, and sheriffs. Each has signed on to a common mission: reducing incarceration while continuing to reduce crime.

At its core, this represents a rejection of what many assume: That more incarceration necessarily and uniformly operates to keep us safe. Those on the front lines of crime-fighting in America's cities now are beginning to reject that idea and move towards more creative and effective techniques such as community policing and mental health treatment.

The public launch of the group this week included discussion sessions and a meeting with President Obama at the White House, coordinated by the Brennan Center.

Over the course of the two days, I was struck by the general unanimity of the group on the core issues of incarceration and crime control. Certainly, there is a recognition among the members that different cities present distinct challenges, and that there is no "one-size-fits-all" solution, yet there is broad agreement that this is the moment to move away from incarceration as a primary metric for success. A man in jail does not always represent a problem solved.

In his remarks, President Obama was focused and surprisingly informed on the state of criminal law at both the state and federal level. It's no secret that these issues have increasingly captured his attention, and he seemed to relish talking about it with an audience partly composed of police chiefs in uniform. Much of what he said was of specific interest to this group; for example, he noted the importance of changing the incentives for prosecutors away from simply obtaining high sentences, and (in response to a question) noted that going forward the collection and use of data is going to only become more important. He also argued that long terms of incarceration offer diminishing returns, even with violent offenders.

He challenged the audience on racial issues, too, saying that the Black Lives Matter movement raises "a legitimate issue that we have to address."

What happens next for this group will be crucial. Its very existence, though, represents a shifting of tectonic plates on the landscape of criminal justice.

October 23, 2015 in Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, October 18, 2015

Prez Obama talking again about talking some more about criminal justice reform

As reported in this USA Today piece, headlined "Obama launches criminal justice tour: 'Something I’ll keep fighting for'," President Obama devoted his weekly radio address Saturday morning to talking about his plans to travel the nation and talk more about criminal justice reform. Here are the basics:

President Obama said Saturday that he'll launch a nationwide criminal justice tour next week, an effort that he says will "highlight some of the Americans who are doing their part to fix our criminal justice system."

"Much of our criminal justice system remains unfair," Obama said in his weekly radio address Saturday morning. "In recent years, more of our eyes have been opened to this truth. We can’t close them anymore. And good people, of all political persuasions, are eager to do something about it."

The first stop in the tour will be in Charleston, W.Va. next Wednesday, where he'll host a town-hall-style meeting on the prescription drug abuse and heroin epidemic.The White House says Obama will talk about local, state and federal efforts as well as private sector initiatives addressing the crisis. Obama said he'll also meet in coming weeks with police chiefs and former prisoners. Details on those tour stops are expected to be released next week.

In his radio address, Obama threw his support behind bipartisan proposals in Congress to shorten mandatory minimum sentences for low-level drug offenses and reward convicts who participate in prison programs with shorter sentences.

I am always pleased when the leader of our nation brings attention to the criminal justice reform issues that are the focus of my professional work. But I remain frustrated that Prez Obama seems to continue to be content to talk about the need for more action rather than actually take more action.

In addition to lots more clemency grants (especially because he remains way behind all modern presidents on pardons), Prez Obama could create more task forces to examine existing evidence on the most successful local and state-level reforms. In particular, with all the continuing local and state-level marijuana reform activity, I think it is long overdue for Prez Obama to show some leadership in this criminal justice reform space through some significant executive action.

October 18, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (2)

Wednesday, September 30, 2015

Education Secretary calls on state and local governments to "put a new emphasis on schools rather than jails"

Secretary of Education Arne Duncan today gave this notable speech at the National Press Club.  The lengthy speech covers a lot of ground, but it is especially focused on the "linkage between education, or a lack thereof, and incarceration" and calls upon government to reorient funding to prioritized education over criminalization. Here are excerpts from the speech, which merits a read in full:

I want to lay out an idea today that will strike some as improbable or impractical, but which I think is essential.  It's about setting a different direction as a society, a different priority — one that says we believe in great teaching early in our kids' lives, rather than courts, jails and prisons later....

The bet we're making now is clear.  In the last three decades, state and local correctional spending in this country has increased almost twice as fast as spending on elementary and secondary education.  Ask yourself, "What does that say about what we believe?"

Leaders at the state and local levels have the power to change that — to place a bet on getting it right with kids from the start, and on the power of great teaching in particular.

I'm not pretending for a second that schools can do this alone — that they can replace efforts to deal with poverty, hunger, homelessness, or other ills that affect our young people.  But the facts about the impact of great teaching are too powerful to ignore....

The linkage between education, or a lack thereof, and incarceration is powerful.  More than two-thirds of state prison inmates are high school dropouts.  And an African-American male between the ages of 20 and 24 without a high school diploma or GED has a higher chance of being imprisoned than of being employed.

Today, our schools suspend roughly three and a half million kids a year, and refer a quarter of a million children to the police each year.  And the patterns are even more troubling for children of color — particularly boys — and for students with disabilities.

We cannot lay our incarceration crisis at the door of our schools.  But we have to do our part to end the school to prison pipeline.  That's going to force us to have difficult conversations about race, which I'll get to in a moment.

But I want to start by talking about bold new steps our states and cities can take to get great teachers in front of our neediest kids.  It's hardly a secret that it's challenging to recruit and keep fantastic teachers in the schools where the needs are greatest.  The rewards of that work are extraordinary — but it's an incredibly hard job.

So here's an idea for how you put a new emphasis on schools rather than jails.  If our states and localities took just half the people convicted of nonviolent crimes and found paths for them other than incarceration, they would save upwards of $15 billion a year.

If they reinvested that money into paying the teachers who are working in our highest-need schools and communities — they could provide a 50 percent average salary increase to every single one of them.  Specifically, if you focused on the 20 percent of schools with the highest poverty rates in each state, that would give you 17,640 schools — and the money would go far enough to increase salaries by at least 50 percent.

I've long said great teachers deserve to be paid far more.  With a move like this, we'd not just make a bet on education over incarceration, we'd signal the beginning of a long-range effort to pay our nation's teachers what they are worth.  That sort of investment wouldn't just make teachers and struggling communities feel more valued.  It would have ripple effects on our economy and our civic life. ...

There are lots of ways to go about this, and ultimately, local leaders and educators will know what's best for their community.  But the bottom line is that we must do more to ensure that more strong teachers go to our toughest schools.

Right now, in far too many places, glaring and unconscionable funding gaps create all the wrong incentives.  To take just one example — and there are many — the Ferguson-Florissant school district in Missouri spends about $9,000 per student. Eleven miles away, in Clayton, funding is about double, at $18,000 per student. How is that a plan to give kids a fair start?...

Let's invest more in the adults who have dedicated their professional careers to helping young people reach their full potential.  And let's place a new emphasis on our young people as contributors to a stronger society, not inmates to pay for and warehouse.

I'm not naïve about doing all of this overnight.  And for those already in the system, we can't just walk away from them — we also have to invest in education, career training, treatment, and support programs that help young people who are already involved in the criminal justice system become contributing members of our society.  That's why we are starting the Second Chance Pell program, to give those who are incarcerated a better chance at going to college.

To be totally clear, I'll repeat that we are talking about savings that come from alternative paths that involve only nonviolent offenders.  This is not about being soft on dangerous criminals — this is about finding ways, consistent with wise criminal justice policies, to reapportion our resources so we prevent crime in the first place....

 I'm convinced that making a historic bet on getting it right from the start would pay massive returns for our families, our communities, our society and our nation's economy. According to a 2009 McKinsey report, the achievement gap between us and other top-performing nations is depriving the U.S. economy of more than $2 trillion in economic output every year.

A separate study found that a 10 percent increase in high school graduation rates would reduce murder and assault arrest rates by approximately 20 percent.  And a one percent increase in male graduation rates would save up to $1.4 billion in the social costs of incarceration.  So you don't have to be a liberal romantic to like the idea of investing up front in our kids.  A hard-nosed look at the bottom line will take you to the same place.

I recognize that what I've just laid before you is ambitious.  But, if we're serious about eliminating the "school to prison pipeline," a shift in funding is only part of what we need to do. In truth, there's a lot more we need to get right....

Taking the essential steps to expand what we know works in education should be a no-brainer.  But there's more to it than just budgets and policies.  Perhaps the hardest step of all is taking an unsparing look at our own attitudes and decisions, and the ways they are tied to race and class. In the wake of Ferguson, Baltimore and elsewhere, this has become a central discussion for many in America, and rightly so — if belatedly.  Those of us in education cannot afford to sit back.

Let's recognize, up front, that this is among the hardest conversations we can have in education.  People enter this field out of love for students and the genuine desire to see them excel and thrive.  Yet we also know that suspension, expulsion and expectations for learning track too closely with race and class.

As the author Ta-Nehisi Coates recently pointed out, our high rates of incarceration, our high numbers of high school dropouts, and our high rates of child poverty are not unrelated problems....

It's difficult work, challenging centuries of institutionalized racism and class inequality. But I firmly believe a hard look at ourselves is an essential part of becoming the nation we strive to be — one of liberty and opportunity, regardless of the circumstances of your birth.

September 30, 2015 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Monday, July 27, 2015

"Mr. Chairman, the president’s clemency power is beyond dispute"

The title of this post is the headline of this new commentary published in The Hill authored by Samuel Morison, who formerly served as a staff attorney in the Justice Department’s Office of the Pardon Attorney.  The piece responds to the curious letter sent by House Judiciary Committee Chair Bob Goodlatte and fellow Republican committee to AG Lynch (discussed here) expressing "deep concern" for how the President has (finally) started to make serious use of his constitutional clemency powers.  Here are excerpts (with links included):

Goodlatte and his colleagues are certainly entitled to take issue with Obama’s decision to grant a measure of relief to persons sentenced under a set of laws that are widely viewed to have been, in practice if not by design, racially discriminatory and unjust.  But their constitutional claims are so illiterate that it is difficult to tell whether they expect the attorney general to take them seriously. 

The chairman’s criticism ignores settled practice stretching back to the beginning of the Republic.  Throughout American history, presidents have granted executive clemency to “specific classes of offenders” on dozens of occasions, from George Washington’s pardon of the Whiskey Rebels in 1795 to George H.W. Bush’s pardon of the Iran-Contra defendants in 1992.  Perhaps more to the point, in the early 1960s, John F. Kennedy and Lyndon B. Johnson commuted the sentences of several hundred prisoners serving mandatory minimum sentences under the Narcotics Control Act of 1956, without objection by Congress.

The historical lack of controversy shouldn’t be surprising.  Under our tripartite system of government, an act of executive clemency in no sense “usurps” legislative or judicial authority.  Rather, in the words of Justice Oliver Wendell Holmes, it “is a part of the Constitutional scheme.  When granted it is the determination of the ultimate [executive] authority that the public welfare will be better served by inflicting less than what the judgment fixed.”  The president’s pardoning authority is therefore limited only by the text of the Constitution itself, not by the transitory terms of the criminal code.  Indeed, that was the Framers’ point in giving the power to the president in the first place, to act as a check on the other branches.

To be sure, the president’s systematic exercise of the pardon power to benefit “specific classes of offenders” has not gone entirely unchallenged by Congress.  But the Supreme Court long ago resolved this dispute in favor of Obama’s authority to redress the injustices entrenched by the current federal sentencing regime.  In the aftermath of the Civil War, President Andrew Johnson issued a series of amnesty proclamations that restored the civil rights of former Confederate sympathizers.  This was enormously controversial at the time, not least because it undermined the Radical Republican’s designs for the post-war reconstruction of Southern society.

In the ensuing legal battle, the Supreme Court repeatedly struck down Congress’s attempts to constrain the president’s pardoning authority.  In 1866, the Court held, without qualification, that “[t]his power of the President is not subject to legislative control.  Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.  The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” 

The Court also rejected the effort to draw a false distinction between pardons granted to specific individuals on a case-by-case basis and a pardon granted to a class of persons by means of an amnesty proclamation, precisely the claim that House Republicans are making against Obama.  The president is therefore authorized to grant a general amnesty without congressional sanction, protestations to the contrary notwithstanding.

Finally, there is no reason to doubt that the president can grant clemency because of his own policy judgment about a particular law.  As one conservative federal judge recently opined, it is a “settled, bedrock principle of constitutional law” that “the president may decline to prosecute or may pardon because of the president’s own constitutional concerns about a law or because of policy objections to the law.” 

The historical irony, of course, is that a presidential power forged in a bitter political dispute over the property rights of Confederate rebels is now being used to afford a measure of justice to federal drug offenders, who are disproportionately African-American.  Turnabout, I suppose, is fair play.  But the president’s power is beyond dispute.

A few prior recent related posts:

July 27, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, July 24, 2015

Many notable passages in recent sentencing reform speech by DAG Yates

Images (5)Earlier this week in this post, I noted that US Deputy Attorney General Sally Yates has been saying a lot of interest and import in support of federal sentencing reform efforts.  Of particular note, DAG Yates on Wednesday delivered these significant remarks at the Bipartisan Summit on Fair Justice.  The full speech should be read by all those interested in federal sentencing reform debates, and these passages struck me as worth highlighting:

[I]t’s because I’m a prosecutor that I believe so strongly in criminal justice reform.  I have seen firsthand the impact that our current system and particularly our federal drug sentencing laws, can have on communities, families, the public fisc and public confidence in our criminal justice system.  And it’s because of that I believe that we can and we must do better....

I’ve been a prosecutor for 26 years.  I believe in holding people accountable when they violate the law and I believe that some people are dangerous and need to go to prison, sometimes for a very long time.  But our system of justice must be capable of distinguishing between the individual that threatens our safety and needs to be imprisoned, versus the individual for whom alternatives to incarceration better serve not only that individual, but also make our communities safer....

While the country’s population has grown by about a third since 1980, our federal prison population has grown by 800 percent, due in large part to the influx of drug defendants. And today, under the current sentencing regime, our mandatory minimum laws do not calibrate a defendant’s sentence to match the threat that he or she poses to our safety.  At its core, one of the basic problems with our mandatory minimum system is that it’s based almost exclusively on one factor — drug quantity.  And so we have a hard time distinguishing the cartel leader who needs to be in prison for a long time from the low level mope who doesn’t.  As a result, we have some defendants serving far more time in prison than necessary to punish and deter and instead, in the words of former Attorney General Holder, sometimes we warehouse and forget.  This comes with great costs.  Costs to operate our prison system, costs to our families and communities and costs to the public’s confidence in their system of justice.

From a dollars and cents standpoint, prisons and detention now account for roughly one-third of the department’s budget.  Every dollar that we spend incarcerating non-violent drug offenders is a dollar that we can’t spend investigating today’s emerging threats, from hackers to home-grown terrorists.  These costs are swallowing up funds that would otherwise be available for state and local law enforcement, victims of crime and prevention and reentry programs....

Some states have been great innovators in criminal justice reform.  I met just yesterday with the National District Attorneys Association and I learned of many programs, from drug courts to recidivism reduction programs going on across the country designed to shift from incarceration as the only answer to prevention as the first response.  And many states, red states and blue states, like Texas, Ohio, North Carolina and my home state of Georgia, faced with exploding prison costs, have enacted bold criminal justice reform not only reducing the size of their prison populations, but also and this is the important part, reducing crime rates as well.  In the 29 states that have enacted laws limiting mandatory minimum sentences, shifting funds from incarceration to prevention, virtually every state has experienced a reduction in violent crime as well.

Despite all of this, there are some who want to keep things as they are.  One of the most common concerns that I hear expressed about eliminating or reducing mandatory minimums is that long sentences for low level defendants is the only way to secure cooperation against the worst criminals.  Not only is this inconsistent with my personal experience as a prosecutor, it is inconsistent with the data we have gathered since the Department of Justice recalibrated our drug charging policy two years ago.  As I expect you know, under former Attorney General Holder’s smart on crime policy, prosecutors were directed not to charge mandatory minimums for lower level, non-violent drug offenders and our use of mandatory minimums decreased by 20 percent.  Although some feared that defendants would stop pleading guilty and stop cooperating, our experience has been just the opposite. In fact, defendants are pleading guilty at the same rates as they were before we instituted the new policy.  So the fear that not charging mandatory minimums would prevent us from being able to work our way up the chain just hasn’t been borne out....

I am here in part because I believe that sentencing reform will make prosecutors and law enforcement officers more effective, not less.  Our ability to do good in this world — to advocate for victims, to hold wrongdoers accountable, to seek justice in all its forms — depends on public confidence in the institutions we represent.  It’s based on a hard-earned reputation for fairness, impartiality and proportionality that has forever been the bedrock of our criminal justice system.

As prosecutors, it is our obligation to speak out against injustices and to correct them when we can.  That’s why the Department of Justice is so engaged on this issue and I why I look forward to working with members of both parties as we seek a more proportional system of justice. Our nation and its citizens deserve nothing less.

Related recent prior posts:

July 24, 2015 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, July 16, 2015

Prez Obama makes history, and reflects, as he visits federal prison in Oklahoma


This New York Times article, headlined "Obama, in Oklahoma, Takes Reform Message to the Prison Cell Block," provides a report on the President's historic visit to a federal corrections institute, FCI Reno:

They opened the door to Cell 123 and President Obama stared inside.  In the space of 9 feet by 10, he saw three bunks, a toilet with no seat, a small sink, metal cabinets, a little wooden night table with a dictionary and other books, and the life he might have had.

As it turns out, there is a fine line between president and prisoner.  As Mr. Obama became the first occupant of his high office to visit a federal correctional facility, he said he could not help reflecting on what might have been.  After all, as a young man, he had smoked marijuana and tried cocaine. But he did not end up with a prison term, let alone one lasting decades. “There but for the grace of God,” Mr. Obama said after his tour. “And that is something we all have to think about.” ...

Mr. Obama came here to showcase a bid to overhaul America’s criminal justice system in a way none of his predecessors have tried to do, at least not in modern times. Where other presidents worked to make life harder for criminals, Mr. Obama wants to make their conditions better.

With 18 months left in office, he has embarked on a new effort to reduce sentences for nonviolent offenders; to make it easier for former convicts to re-enter society; and to revamp prison life by easing overcrowding, cracking down on inmate rape and limiting solitary confinement.

What was once politically unthinkable has become a bipartisan venture.  Mr. Obama is making common cause with Republicans and Democrats who have come to the conclusion that the United States has given excessive sentences to too many nonviolent offenders, at an enormous moral and financial cost to the country.  This week, Mr. Obama commuted the sentences of 46 such prisoners and gave a speech calling for legislation to overhaul the criminal justice system by the end of the year.

He came to the El Reno Federal Correctional Institution on Thursday to get a firsthand look at what he is focused on.  Accompanied by aides, correctional officials and a phalanx of Secret Service agents, he crossed through multiple layers of metal gates and fences topped by concertina wire to tour the prison and talk with some of the nonviolent drug offenders he says should not be serving such long sentences.

The prison was locked down for his visit.  He was brought to Cell Block B, which had been emptied for the occasion.  Only security personnel were outside on the carefully trimmed grass yards.  The only inmates Mr. Obama saw were six nonviolent drug offenders who were selected to have a conversation with him recorded by the news organization Vice for a documentary on the criminal justice system that will air on HBO in the fall.

But those six made an impression.  “When they describe their youth and their childhood, these are young people who made mistakes that aren’t that different from the mistakes I made and the mistakes that a lot of you guys made,” Mr. Obama told reporters afterward.  “The difference is, they did not have the kind of support structures, the second chances, the resources that would allow them to survive those mistakes.”

He added that “we have a tendency sometimes to take for granted or think it’s normal” that so many young people have been locked up for drug crimes. “It’s not normal,” he said.  “It’s not what happens in other countries. What is normal is teenagers doing stupid things.  What is normal is young people who make mistakes.” If they had the same advantages he and others have had, Mr. Obama added, they “could be thriving in the way we are.”

Still, he made a distinction between nonviolent drug offenders like those he was introduced to here and other criminals guilty of crimes like murder, rape and assault. “There are people who need to be in prison,” Mr. Obama said. “I don’t have tolerance for violent criminals; many of them may have made mistakes, but we need to keep our communities safe.”

More than 2.2 million Americans are behind bars, and one study found that the size of the state and federal prison population is seven times what it was 40 years ago. Although the United States makes up less than 5 percent of the world’s population, it has more than 20 percent of its prison population. This has disproportionately affected young Hispanic and African-American men. And many more have been released but have convictions on their records that make it hard to find jobs or to vote.

In visiting El Reno, Mr. Obama got a look at a medium-security prison with a minimum-security satellite camp, housing a total of 1,300 inmates. He said the facility was an “outstanding institution” with job training, drug counseling and other programs, but had suffered from overcrowding. As many as three inmates have been kept in each of the tiny cells he saw.

“Three full-grown men in a 9-by-10 cell,” Mr. Obama said with a tone of astonishment. Lately, the situation has improved enough to get it down to two per cell. But, he said, “overcrowding like that is something that has to be addressed.”

Advocates said no president had ever highlighted the conditions of prisoners in such a fulsome way. “They’re out of sight and out of mind,” Cornell William Brooks, the president of the N.A.A.C.P., said in an interview. “To have a president say by his actions, by his speech, by his example, ‘You’re in sight and in mind of the American public and of this democracy,’ it’s critically important.”

But the president is not the only one these days. Republicans like Senators John Cornyn of Texas, Rand Paul of Kentucky, Charles E. Grassley of Iowa and Mike Lee of Utah have been working with their Democratic counterparts to develop legislation addressing such concerns.

Though I am not really expecting it, I would love for this kind of presidential visit to a prison to become a regular habit and something of a tradition. As President Obama stressed in his recent speech to the NAACP, most of the persons behind bars "are also Americans" and all presidents should be committed to serving all Americans, even those who are incarcerated.

July 16, 2015 in Criminal justice in the Obama Administration, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Monday, July 06, 2015

Did Justice Department during AG Eric Holder's tenure really do "as much as [they] could" on criminal justice reform?

The question in the title of this post is my (somewhat muted) reaction to a key quote from this newly published Q&A interview with former Attorney General Eric Holder.  Let me quote the Q&A passage of interest here and then provide a somewhat less muted reaction thereafter:

Q: Back to the criminal side, during your tenure, you made criminal justice reform a big priority. Are you frustrated with how far you got or didn't get, and is that something you can work on at Covington also?

A: I'm actually kind of satisfied with where we got.  The job's not done.  You know, I think we did as much as we could using executive branch discretion, but now it's up to Congress to put in place measures that will last beyond this administration.  We made a sea change from the policies that I inherited and consistent with kind of my own experience as just a line lawyer at the Justice Department for 12 years.  Put more discretion in the hands of those line lawyers, who I have great respect for.  But now Congress needs to act.

I am happy and eager to credit former AG Holder for doing significant criminal justice reform work while heading the Justice Department through "executive branch discretion" on topics ranging from mandatory minimum charging policies to marijuana enforcement to drug sentencing reform advocacy.  But the claim that DOJ under AG Holder did "as much as we could" genuinely leads me to wonder, if being a bit intemperate, "What the **%&$^# are you talking about or smoking, Eric!?!?!?!?."  On "executive branch discretion" fronts ranging from implementing the Fair Sentencing Act to DOJ clemency policies and practices to executive branch advocacy in other branches, Holder's Justice Department could have (and, in my view, should have) done so much more to transform the modern structures and systems that have produced modern mass incarceration.

I am inclined to agree with former AG Holder that a "sea change" on criminal justice policies has transpired, but I believe AG Holder and his Justice Department were, generally speaking, much more content to ride along with the changing tides rather than taking a leading role in directing this change.  Consequently, in my view, a more fitting and honest statement from former AG Holder would have had him saying something like: "Given the limited political capital I was willing to spend on significant criminal justice reforms, especially during Prez Obama's first Term, and my own disinclination to lead on this front until I decided exactly when I wanted to resign, I think we ended up getting more done than some people might have expected and we effectively avoided stirring up too much political backlash (except from folks like Bill Otis)."

July 6, 2015 in Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, June 26, 2015

Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders

SS-602x399As this report from The Hill details, a notable and significant group of Representatives are backing a notable and significant new federal criminal justice reform bill.  Here are the basics:

A bipartisan pair of lawmakers on Thursday unveiled a comprehensive criminal reform bill aimed at reducing the federal prison population.  The Safe, Accountable, Fair, and Effective (SAFE) Justice Act from Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) calls for new rehabilitation methods and sentencing reforms.  The bill is the result of the House Judiciary Committee's over-criminalization task force which examined ways to reform federal prisons....

Sensenbrenner said the bill was intended to reverse the staggering increase in the prison population, which has quadrupled in the last 30 years.  Despite increased incarceration and spending on prisons, recidivism still remains a problem, he also noted.  The bill applies mandatory minimums only to major crimes, and “expands recidivism reduction programming to incentivize and reward those who are working to make a change,” Sensenbrenner said....

Scott said the bill would encourage innovate approaches to criminal justice reform. “We were not interested in playing politics with crime policy,” said Scott.  He noted that 32 states had been able to reduce both crime and incarceration rates over the past five years. Calling those states "laboratories of democracy," he said the bill adopted many of those tested practices.

Scott lamented the high incarceration rate in the U.S. He said the bill aims to “direct non-violent low level, first time offenders from prison" and better acknowledge the conditions that lead to crime.  “If you address those underlying issues, you will have a better return rate than just from locking them up,” he said.

The bill also garnered support from major groups across the political spectrum. Leaders and representatives from Koch Industries, the ACLU, the NAACP, the Washington D.C. Police Foundation, Families Against Mandatory Minimums, and the Center for Criminal Justice Reform at the American Conservative Union have expressed support for the bill.

The bill is co-sponsored by Reps. Doug Collins (R-Ga.), Elijah Cummings (D-Md.), Raul Labrador (R-Idaho), Judy Chu (D-Calif.), Mia Love (R-Utah), and Scott Rigell (R-Va). “Too many of our children have gotten caught into a cycle that they can not get out of,” said Love, explaining the bill's appeal.

Rep. Rigell touted the broad coalition backing the bill, which includes Koch Industries, owned-by the Koch Brothers, who are major conservative donors. “If you think of those as two gate posts, “ he said, noting Koch Industries and the ACLU, “that’s an awfully wide gate.”

I am struggling to find on-line the full text of this important new federal sentencing reform proposal, but this summary from FAMM leads me to believe that this new SAFE Justice Act may go significantly farther (and be more politically viable) that the Smarter Sentencing Act and the Justice Safety Valve Act proposals that failed to move forward in the last Congress.  Indeed, these passages from this new Vox article, which provides the most detailed media account of the SAFE Justice bill's specifics, is prompting me to think all would-be federal reformers — including Prez Obama and his Justice Department, and especially Senators Cruz and Paul and other reform-minded GOP Prez candidates — should think seriously about giving up on the SSA and other reform bills now in the Senate in order to put all their advocacy efforts behind getting SAFE Justice passed through the House ASAP:

While Senate efforts at criminal justice reform have exposed a generational split in the Republican Party, in which young reformers like Senators Mike Lee and Rand Paul face off against old-school, tough-on-crime conservatives like Senators Chuck Grassley and Jeff Sessions, the House's bill was written by one of those old-school Republicans — Rep. James Sensenbrenner of Wisconsin — as well as Rep. Bobby Scott (D-VA).

Sensenbrenner and Scott think of the Safe Justice Act as a federal version of the criminal justice reform bills that have been taken up in state after state over the past several years, many of them under the mottos of "justice reinvestment" and "smart on crime." In their minds, they're building on what's worked in the states and are in line with reformers' emphasis on "data-driven" and "evidence-based" criminal justice policymaking.

The Safe Justice Act is a collection of dozens of different reforms. Most of them aren't terribly big on their own, but many of them overlap. That makes it really hard to estimate exactly how much the federal prison population would shrink if the bill became law. But its effect would be bigger than anything that's been introduced in Congress so far.

Many of the reforms would cut sentences for drug crimes — which reflects a growing consensus that nonviolent drug offenses aren't as bad as violent crimes. Drug prisoners are about half of all federal prisoners (unlike in states, where violent crime is the biggest cause of incarceration). That means that many of the Safe Justice Act's biggest reforms would target the largest slice of the federal population....

Most changes to prison sentences in Congress have focused on cutting mandatory minimum sentences, which force judges to sentence people to five, 10, or 20 years for certain drug crimes. But across-the-board cuts to mandatory minimums have been met with serious resistance from old-school Republicans, including Senate Judiciary Chair Chuck Grassley (R-IA). The House's solution, via the Safe Justice Act, isn't to reduce the mandatory minimums themselves — but to narrow the range of people who they apply to. Instead of someone who's convicted of trafficking a certain amount of cocaine being automatically sentenced to 10 years, for example, he'd only trigger the 10-year minimum if he were also a leader or organizer of an organization of five or more people. And even then, the bill says that judges can override the mandatory minimum if the defendant doesn't have much of a criminal history, or has a serious drug problem.

The bill would also make it possible for more people to be sentenced to probation instead of getting sent to prison. It would allow drug offenders to get probation if they'd been convicted of low-level drug crimes before. It would encourage judges to give probation to first-time low-level offenders. And it would encourage districts to start up drug courts and other "problem-solving courts"; some states have found these are better ways to treat some addicts than prison is....

Current prisoners whose sentences would have been affected by the bill's front-end reforms could apply to get their sentences reduced that way. But the Safe Justice Act would also give them another way to reduce their sentences: by getting time off for rehabilitation. Under the bill, every federal prisoner would get an individual case plan, based on what particular prison education, work, substance abuse, or other programs are the best fit for his needs. For every month a prisoner follows the case plan, he'd get 10 days off his prison sentence — meaning a prisoner with a perfect behavior record could get his sentence reduced by a third. (Prisoners serving time for homicide, terrorism, or sex crimes aren't eligible for time off, but that's a very small slice of the federal prison population.) The logic is that prisoners who want to rehabilitate themselves, and whose good behavior shows they're succeeding, shouldn't be forced to spend extra time in prison just for prison's sake.

The bill goes even further when it comes to probation — which affects many more people than prison. For every month of perfect behavior on probation, the offender would get 30 days off the end of his sentence — essentially cutting the probation term in half. If the offender violated probation, on the other hand, there would be a set of gradually escalating punishments, instead of an automatic ticket back to prison....

In the year 2015, it is extremely hard to get any sort of bill through Congress. And Sensenbrenner, Scott, and their fellow reformers have a narrow window before the presidential campaign saps Congress of any will to act it has left. So the barriers are pretty high. But this isn't, in itself, supposed to be a polarizing bill. The presence of Sensenbrenner and other old-school Republicans reflects that. And this is something that both houses of Congress have been debating for some time.

If House leadership decides to snatch up the Safe Justice Act and bring it to the floor quickly, it might give the Senate enough time to act. Maybe they'll be interested in the provisions that would make it a little harder for the federal government to treat regulatory violations as crimes; that's a pet cause of conservatives, even those who aren't otherwise committed to reforming criminal justice.

Still, House leadership might not be interested. But this is the broadest bill that's been introduced during the current wave of criminal justice reform, and it's a marker of just how much consensus there is among reformers in both parties when it comes to reducing federal incarceration.

June 26, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, June 25, 2015

Circa mid-2015, Clemency Project 2014 will go down as an abject failure if it does not submit more petitions before 2016

This notable new USA Today article, headlined "'The clock is running' on Obama clemency initiative," reports that the various administrative and practical difficulties encountered (and self-created?) by those trying to get Prez Obama more good clemency case are now seemingly at risk of completely "screwing the pooch" on the whole clemency push.  Here are the discouraging details:

The Obama administration is urging lawyers for federal inmates to move more quickly in filing petitions for presidential clemency, reminding them that "the clock is running" on the Obama presidency. The new urgency from the Justice Department comes more than a year into a program intended to shorten the sentences to federal inmates who would have gotten less time under current law.

That clemency initiative was coupled with the Clemency Project 2014, an outside consortium of lawyers working on those cases. But the Clemency Project filed only 31 petitions in its first year, leading to criticism from some proponents of criminal justice reform that the process is moving too slowly.

"If there is one message I want you to take away today, it's this: Sooner is better," U.S. Pardon Attorney Deborah Leff told volunteer lawyers in a video seminar last week. "Delaying is not helpful." Leff is the Justice Department official who provides recommendations on commutations and pardons to the president, who under the Constitution has the power to shorten sentences for federal crimes and to restore other civil rights....

The Clemency Project has set a goal of Jan. 20, 2016, for all petitions to be filed, to give the Obama administration a full year to consider them and send them to the president's desk for a decision before his term ends. Leff said any petitions that come in after that date could be left to Obama's successor. "So if we receive an enormous number of petitions at the last minute, yes, they will be reviewed. But a lot of them will not be reviewed during this administration," she said.

She also suggested that attorneys were spending too much time on cases. "While I greatly admire your legal skills, this is not the time to prepare a treatise of hundreds of pages," she told the lawyers.

Another problem is paperwork. The Office of the Pardon Attorney requires the pre-sentence report for every inmate, but that can involve a complicated process of court approval. "It's been a real bottleneck to get these documents into the hands of the lawyers," said James Felman, a Tampa attorney who chairs the criminal defense committee of the American Bar Association. So the Clemency Project has now streamlined that process, allowing the Bureau of Prisons to supply that document unless a judge objects.

Felman said lawyers also need to understand that they're asking the president for mercy, and so need to be forthright about the strengths and weaknesses of the case. "Aggressive lawyering is not necessarily going to pay off," he said. The cases don't have to be perfect. Felman said the Justice Department has signaled a willingness to consider cases that don't meet all of the criteria. "Some of the criteria are less definite than others. Like, for example, a clean record in prison. Nobody has a perfect record in prison," he said.

And the Justice Department said that even cases that aren't appropriate for the clemency initiative — which is intended for people who have already served at least 10 years — will still get consideration. "In addition to the president's clemency initiative, he continues to consider commutations under the traditional criteria for clemency," said Justice Department spokeswoman Dena Iverson. "Every applicant for clemency receives an individual review."

Margaret Love, a Washington attorney who had Leff's job in the Clinton administration, said she worries that an emphasis on the volume and speed of cases could compromise the ability of attorneys to make the best argument for their clients. "What I heard was hurry up, hurry up, deliver as many cases as quickly as you possibly can," she said. "If it's true that there were only 31 cases submitted by the project by the end of May, that's surprising given the number of lawyers they have working on them."

Regular readers know that, ever since Prez Obama and his Aministration started talking up an effort to get serious about using the clemency power seriously, I have been regularly expressing concerns about how structurally peculiar and procedurally belabored this new (and now not-so-new) clemency push has been. My particular worry, which is exacerbated by articles like this one and other similar reports, has been that a robust effort by defense lawyer groups to (1) review the complete files of, and (2) provide trained lawyers for, and (3) present a complete and extensive argument/application for, any and every federal prisoner who might want to pursue a clemency application could create a whole lot of costly and time-consuming busy work with few real substantive benefits. This is especially so given that, as all serious federal clemency advocates should know, the Pardon Attorney's Office has historically always taken its sweet time to assemble and review the files of any clemency application and will always (and justifiably) be wary of relying on just the information and representations made by a clemency applicant and is lawyer.

That all said, I remain hopeful that all the hard work being done by all the groups and lawyers involved in Clemency Project 2014 will prove meaningful and valuable and will ultimately enable Prez Obama to live up to his promises to get serious about using the clemency power seriously before he leave office in January 2017. But that might now require those working on Clemency Project 2014 to get serious about getting their applications submitted ASAP rather than continuing to spend time letting the perfect be the enemy of the good enough in this arena.

Some prior related posts:

June 25, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 24, 2015

"I know there needs to be [sentencing] reform,” Sen. Chuck Grassley says. “We need this.”

Secondary_150623_chuck_grassley_gty_1160The title of this post is the (slightly modified) subheadline of this lengthy new Politico report, headlined "Riots spur Senate look at sentencing reform." Here are excerpts:

After the Baltimore and Ferguson riots ignited nationwide discussions of race and criminal justice, a bipartisan group of top Senators is making headway on a sentencing reform compromise to release well-behaved prisoners early and reduce some mandatory-minimums.

But the fledgling proposal — yet to be committed to paper — faces potential resistance from the wings of both parties: Liberals and libertarians who want it to go further, and tough-on-crime conservatives who fear that it lets convicts off the hook.

The group, led by Senate Judiciary Chairman Chuck Grassley (R-Iowa), is writing legislation to allow convicts with low risks of recidivism to earn time off their sentences. They’re also contemplating reductions to some nonviolent drug-related mandatory minimums — and maybe even increasing others on white-collar crime in the name of sentencing equality. Talks are ongoing.

The path forward is uncertain, however. Grassley must thread the needle between his colleagues like Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) — who say the war on drugs is dead and want to ditch mandatory minimums completely — and lawmakers like Sens. Marco Rubio (R-Fla.) and Jeff Sessions (R-Ala.), who are leery of ditching all such sentencing requirements and still back a tough-on-crime mindset that dominated the GOP in the 1980s and 1990s. It also marks a transition for Grassley, who’s never been a big advocate for reducing mandatory minimums and has been labelled an arch-nemesis of criminal justice reform by newspapers back home in Iowa.

“I have different views than Paul and those guys,” Grassley said in a short interview. “They’d make you believe [people are incarcerated] for smoking one pot or one ‘roach’ … But they’re not; they’re in for a lifetime of violent crime.” “But I know there needs to be reform,” he quickly added. “We need this.”

It’s a political gamble. On the one hand, the group risks being accused of writing a watered-down overhaul; on the other, lawmakers don’t want to be accused of letting convicts off too easily. Striking a balance between those two positions has been difficult in the past — and one of the reasons such legislation hasn’t been enacted in previous congresses.

“You’ve got to be very careful,” said Sessions, a former U.S. Attorney for the Southern District of Alabama who’s already skeptical of the burgeoning deal. He launched into a lecture: “Historic criminal justice reform in the early 1980s has led to this dramatic drop in the crime rate. I mean, the murder rate is less than half of what it was — and so [mandatory minimums were] a fundamental component… I don’t want us to go further than we should in reducing sentences.”

The new compromise package comes amidst heightened inter-racial tensions following the deaths of unarmed black men at the hands of police officers. And when a young white man murdered nine black churchgoers in Charleston, S.C., because of their skin color, the nation was again plunged into discussions of race relations. “My hope is that in light of what happened in South Carolina, we think beyond the symbolism of the [confederate] flag, to changes that really show we’re committed to fairness when it comes to racial equality,” said Democratic Minority Whip Dick Durbin (D-Ill.), who is part of the compromise group.

For supporters of sentencing reform, reform is needed in the name of equality. Many mandatory minimums disproportionately affect African Americans because they are used for sentencing drug-related crimes that plague predominately lower-income, urban populations. “We’re housing too many of our citizens who are committing nonviolent crimes,” said civil rights activist Rep. John Lewis (D-Ga.). “So many people, especially, low-income people who can’t hire lawyers — and it’s not fair.”...

Over the past few years, reform negotiations have been dominated by people like Paul and more libertarian-type Republicans, as well as Democrats such as Leahy. The pair have teamed up on legislation that effectively eliminates mandatory minimums by allowing judges to override them. But the idea of eliminating mandatory minimum makes people like Grassley and his co-Republican negotiator, Sen. John Cornyn, nervous.

“Having been a judge for 13 years and attorney general, my observation is we have to be careful,” Cornyn said during a Tuesday interview in his Senate office. “Even though people may be well intentioned, there could be very negative consequences.”

The package marries provisions of two bills that passed the Judiciary panel last Congress. The first, sponsored by Cornyn and Sen. Sheldon Whitehouse (D-R.I.), another member of the group, focuses on the back end of sentencing reform by letting inmates out early and giving them tools to assimilate back to normal life. The program would only be offered for prisoners considered to have a low risk of re-offending and who do not have prior convictions. Those who have committed more serious crimes such as rape, murder or terrorism wouldn’t be eligible.

“The people coming out of prison are better prepared to re-enter society and be productive as opposed to regressing back into their life of crime,” under the program, said Cornyn, who notes that states have found positive results by implementing these sorts of programs. In Texas, Cornyn’s home state, such reductions have allowed them to close three prisons, he says. The deal would also take a page out of a bipartisan bill called “Smarter Sentencing” that would reduce mandatory minimums for drug crimes.

The compromise would leave intact mandatory minimums on violent offences as well as convictions that involve the use of firearms (an important exception for Cornyn), importing heroin and cocaine (a requirement of Grassley’s), gang involvement and terrorism, among others. “It’s narrow category of drug sentencing… but it would have a dramatic impact on the population in our federal prisons,” Durbin said.

Critics like Leahy, however, are bound to have reservations because the bill likely won’t go far enough. “Passage of mandatory minimum sentencing laws has not made us safer, but it has driven our federal prison population to historic highs — a nearly 800 percent increase in 30 years,” the former Judiciary chairman said in late April, speaking to The Constitution Project. “I oppose all mandatory minimums.”

Leahy, one of the Democrats’ lead voices on this issue, also isn’t a fan of the Cornyn bill — ultimately abstaining from voting on the measure last year because he believes it will just exacerbate racial disparity with its “high risk,” “low” designations. Paul’s office would not weigh in on the package that’s still in the works.

Other lawmakers are taking the opposite tack. When asked about such a package, Sessions on Monday ranted about “safer streets … where children can be raised,” and likened the debate to a “pendulum that tends to swing.” Rubio has also written op-eds expressing reservations about getting rid of certain minimum sentence requirements. And Grassley, whose committee staff is taking the lead on the matter, is sympathetic to those worries. In fact, it’s ironic that Grassley — who was not invited to the White House when Obama hosted Republicans to discuss this issue — is taking the lead on the compromise. Back home, the Des Moines Register called him a “stumbling block remains stubbornly in place.”

But Grassley says he’s always favored reducing some minimum sentences. He also wants to increase others, however — placing him at odds with some Democrats he’s currently negotiating with. He’d like to increase mandatory minimums on white color crimes like fraud, he says.

While they applauded the idea of allowing prisoners to earn more time off their sentences, several Congressional Black Caucus members engaged in the criminal justice reform talks threw cold water on that particular pitch. “That’s not the way to do it,” said Rep. Hank Johnson (D-Ga.). “I would oppose that for the same reason I’m opposed to mandatory minimums on other crimes: They take discretion away from the judge and put too much discretion in the hands of the prosecution.” Rep. Keith Ellison (D-Minn.) said the idea would “clearly” addresses the question of equal treatment for black and white offenders, but he has “an objection to mandatory minimums beyond the equity question.”...

Other pieces of the package still up in the air include provisions limiting asset seizures, or funding police body cameras — but Grassley worries bringing those into the negotiations at this point may hinder talks.

Cornyn suggested the group would be open to changes in committee and on the floor — so long as they don’t take the bill too far off course from the direction it’s headed, he added. And despite potential pitfalls to come, Whitehouse seemed confident they could deliver: “There’s a sweet spot for people who support reconsideration of mandatory minimums… there is a sweet spot in the middle.”

June 24, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Monday, June 15, 2015

Perspectives on Clemency Project 2014 from federal prisoners and an advocate for them

Regular readers know I have given lots of space recently to coverage and criticism of federal clemency efforts.  I am pleased to continue now with a guest post via Beth Curtis, a prisoner advocate who runs the website Life for Pot.  Beth sent this extended commentary my way under the heading "Inspired by the Dialogue between Margaret Colgate Love here and Mark Osler here on Douglas Berman’s Blog Sentencing Law and Policy":

At the launch of Clemency Project 2014 [CP-14], Craig Cesal, a non-violent marijuana offender on the Life for Pot site and his cell mate Samuel Edmonson a non-violent cocaine offender were both talking about and working on petitions for commutation.  Both Craig and Samuel had sentences of life without parole and had nothing to lose.

The two cell mates had a discussion about whether or not they should file their own petitions just in case there were going to be commutations before attorneys from The Clemency Project 2014 could prepare one for them.  Craig argued that the project had said there was no reason for filing on your own, as the criteria was different and it would probably have to be done again.  Samuel on the other hand decided that he should be sure he had a petition in the Pardon Attorney’s office and in February of 2014, he filed a brief petition for commutation that he did himself.

Very early in the process both of these offenders were assigned pro bono attorneys from the same law firm.  Samuel and Craig had initial contacts with their pro bono attorneys, but after that contact they were not contacted again and did not know if any work was being done.  

In March of 2015 Samuel received a commutation for his life sentence from President Barack Obama based on the petition he filed himself.

We were interested in this because there were only three life for pot inmates that we knew of who had been assigned pro bono attorneys and they only had initial contacts.  We contacted inmates and suggested that they begin preparing their own Clemency Petitions and file them, we don’t know if CP-14 will be able to overcome the cumbersome procedure.

In March of 2015 Larry Duke, a 68 year old non-violent marijuana offender with a sentence of life without parole was released.  Larry’s immediate release was pursuant to 18 USC 3582(c)(1)(A)(i).  The “extraordinary and compelling reasons” for the release was Larry’s status as an elderly inmate.  Although Larry is over 65 he is also the healthiest of those on the Life for Pot site.  Larry had a contact from a pro bono attorney through Clemency Project 2014.  We called his attorney who did not know he had been released.

We started getting questions about the process for Reduction in Sentence [RIS] from non-violent marijuana offenders.  They wanted to know if they should file for sentencing relief even though they had filled out a survey to request an attorney through Clemency Project 2014.

These are not legal questions, but questions about procedure and we sought answers from an attorney with CP–14.  It was their considered opinion that the elder inmates should not file for RIS until CP–14 had completed the process as clemency might be held up until the (CR/RIS) was resolved.

Inmates found that BOP facilities were not aware of the elderly, over the age of 65, criteria for applying for RIS.  This remedy has seldom been used and “extraordinary and compelling reasons” were interpreted by the BOP as being almost lifeless chained to a hospital bed.

How much hope should we have for this process?  Was Larry Duke’s release singular, or will this be the beginning of an accelerated process?  We would like to know.

The hope and promise of Clemency Project 2014 is like a breath of air for these nonviolent inmates who will be behind bars till they die if no one exercises compassion, mercy and justice.  We’re listening carefully to the dialogue between Mark Osler and Margaret Love about the hope and promise for relief.

We are in the 18th month since the launch of the project and yet only two inmates have been released through this apparently clogged tunnel to freedom.  Much has been written in support of clemency and its use to address serious facility overcrowding and sentencing disparity.  Information about progress is scant and prisoners, their families and advocates worry about the progress and the will of the Administration.

Lately these public discussions by well-known clemency advocates pondering the most effective way to deal with the over incarceration gives us hope.  Margaret Colgate Love and Mark Osler’s point counter point about it on the blog Sentencing Law and Policy by Douglas Berman gave us insight. I believe these discussions are helpful but not a substitute for more transparency and concrete information given to the inmates, their families and advocates about procedure and progress.  We need to respect these vulnerable non-violent citizens.

It would be an insensitive travesty if this program that was announced with such fanfare and gave such hope to thousands of inmates, their family and friends and advocacy groups did not fulfill the promise of compassion and mercy.  These non-violent incarcerated people are accustomed to broken promises, but this one can be easily fulfilled by a bold administration with the courage of their stated convictions.  For years, nonviolent inmate advocates have felt that bi-partisan support would be the key to this realignment of positions and lead to fiscal responsibility and compassion.  Bipartisan support has arrived and we have the promise, it just needs to be fulfilled.

Some prior related posts:

June 15, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9)

Friday, June 05, 2015

Former Pardon Attorney: "A Modest Proposal to Expedite the Administration's Clemency Initiative"

Love_margaret_02_crop2_MA31053191-0003Regular readers know I have given lots of space this week to coverage and criticism of federal clemency efforts.  I am pleased to continue now with a guest post via former Pardon Attorney Margaret Love, which she sent my way under the title "A Modest Proposal to Expedite the Administration's Clemency Initiative":

Mark Osler’s post in this space on June 4 ("Another View on Clemency Project 2014") recounts his unsuccessful efforts several years ago to persuade the Administration to establish a presidential commission, similar to the one that handled cases of Vietnam draft evaders and deserters during the Ford Administration, to review and recommend clemency relief for the thousands of prisoners serving prison sentences imposed more than a decade ago that are now generally considered far too severe.  He suggests that the reason the Administration chose not to follow this path relates to its doubt that Congress would fund such an effort. Instead, the Justice Department chose to address the problem of excessive sentences by asking a consortium of private organizations to manage it through the volunteer efforts of the private bar.

We will never know whether Professor Osler’s commission idea would have worked, or whether lack of funding was the reason it was rejected.  But it does appear that the structure put in place instead to manage the Administration's clemency initiative has (in his words) “struggled with the overwhelming number of cases (over 30,000) referred to it.”

It did not help that the Administrative Office for U.S. Courts sharply limited the role that Federal Public Defender Organizations could play in the clemency initiative, by declaring that CJA funds could not be spent on clemency representations.  Many, including myself, believe that the sentencing expertise and advocacy of the Federal Defenders is critical to implementing the sort of large scale program of sentence reduction the Administration evidently had in mind.

But there is another approach that might have been taken by the Administration that would have ensured a central role for the Federal Defenders.  This approach, which might still be taken, would make extraordinary sentence reduction the responsibility of the federal courts as well as of the President.  Bringing cases back to court would not require new legislation or new funds, since there is already on the books a judicial sentence reduction authority that could achieve the same result as executive clemency, through court proceedings where CJA appointments are clearly authorized.  And, because a large scale sentence reduction program is already underway in the federal courts, economies of scale are possible.

Specifically, 18 U.S.C. § 3582(c)(1)(A)(i) provides that a court may at any time reduce a sentence upon motion of the Bureau of Prisons for “extraordinary and compelling reasons.” The Sentencing Commission is authorized under 28 U.S.C. § 994(t) to establish policy for courts considering BOP motions under § 3582(c)(1)(A)(i), which it has done under USSG ¶ 1B1.13.  Under this policy guideline, “extraordinary and compelling reasons” that may justify sentence reduction include terminal illness, a physical or medical condition that diminishes a person’s ability to provide self-care in a prison environment, the death or incapacitation of a child’s only caregiver, and any other reason that may be determined to be “extraordinary and compelling” by the Director of BOP. It is noteworthy that several of the organizations represented on the Clemency Project 2014 steering committee are on record with the Sentencing Commission as favoring a more expansive menu of “extraordinary and compelling reasons” warranting sentence reduction, including one that now seems prescient: “the defendant would have received a significantly lower sentence under a subsequent change in applicable law that has not been made retroactive.”

Less than two years ago BOP issued a new policy statement with a list of circumstances in which it may seek a sentence reduction, a list that is evidently not intended to be exhaustive. See Program Statement 5050.46, as amended (August 12, 2013).  Accordingly, there is no reason why BOP could not determine, with or without an amendment to ¶ 1B1.13, that “extraordinary and compelling reasons” exist in any case meeting the criteria set forth by the Deputy Attorney General as warranting a grant of clemency. The coincidence of the standards in the two contexts would be particularly fitting in light of the fact that the judicial sentence reduction authority in § 3582(c)(1)(A)(i) was originally enacted in 1976, at the Justice Department’s instance, to expedite sentence reductions that previously had required a clemency application to be submitted to the President through the Office of the Pardon Attorney.

There are in addition other reasons why it would be appropriate to supplement the clemency initiative with a statutory sentence reduction initiative implemented through the courts, including a general preference for a judicial decision-maker under federal sentencing law and policy, and for a congressionally authorized approach over an extra-legal use of executive power. Most scholars agree that clemency ought always to be a second choice where the law provides a remedy for sentencing unfairness or undue severity, as it does in this case.  See, e.g., Daniel J. Freed & Steven L. Chanenson, Pardon Power and Sentencing Policy, 13 Fed. Sent. Rptr. 119, 124 (2001) (“Wherever a rule can be structured to guide the discretion of judges or administrative agencies in determining – with reasons – whether to mitigate the sentences of similarly situated offenders, we think such a system should ordinarily be accorded priority over one that relies exclusively upon the unstructured, unexplained discretion of a president to grant or deny individual pardons or commutations.”)

Traditionally, the Federal Defenders have played a central role in proceedings involving judicial consideration of sentence reduction under § 3582(c)(2) where guideline ranges have been lowered, even though there is no constitutional right to counsel in such proceedings.  They are key players in the massive effort to reduce sentences now underway under the so-called “Drugs Minus Two” guidelines amendment. There is no reason why the Defenders should not play a similar role in judicial sentence reduction proceedings under § 3582(c)(1).  There does not appear to be any relevant difference between the two types of proceedings as far as the discretionary appointment power in 18 U.S.C. § 3006A(a)(2) is concerned. In the interests of judicial economy, these proceedings might even be combined.

All it would take to make this happen would be a resolve on the part of the Department of Justice to use this statute for the purpose it was originally intended.

Augmenting the Administration’s sentence reduction program through broader use of a judicial sentence reduction mechanism, which the Justice Department’s own Inspector General has repeatedly criticized as underutilized (most recently for aging prisoners), would accomplish the Administration’s goals in reducing unduly severe sentences, while at the same time regularizing sentence reduction through the courts pursuant to statute.  It would put sentence reduction on a sounder long-term footing that is more consistent with the principles of determinate sentencing, be more predictable and accountable as a practical matter, and respond to any concerns about the unaccountable use of executive power.

Many years ago, when I was serving as Pardon Attorney, then-Deputy Attorney General Philip Heymann asked me why we should ask the President to commute the sentence of an elderly prisoner when (he said) "we can do the job ourselves."  Now I would ask the new DAG the same question.

Some prior related posts:

June 5, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, June 01, 2015

Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?

Download (10)The depressing question in the title of this post is prompted by this depressing new USA Today article headlined "Obama administration clemency push gets slow start."  I have long tried to avoid being too pessimistic about what has been unfolding on the federal clemency front over the last 18 months, in part because I sincerely believed it would be nearly impossible to make the modern federal clemency process and products even worse. But this USA Today piece has me fearing that my own pessimistic instincts perhaps should now turn even darker (based on the statements and data points I have highlighted below):

A Justice Department push to shorten long drug sentences through President Obama's clemency powers has gotten off to a slow start: Obama has commuted the sentences of just two of the tens of thousands of federal inmates who have applied through the program.  Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.

The result is a system that appears even more backlogged than it was before the initiative began.  "The criteria basically suggest that a whole bunch of good citizens who committed one little mistake got significantly more than 10 years in prison, and fortunately that's pretty rare," said Johanna Markind, a former attorney-adviser in the Office of Pardon Attorney who left in March.  "I think they've kind of belatedly realized that people are doing their jobs, and those perfect cases they think are there don't really exist," she said.  "For all the sound and fury about the commutations, the clemency initiative has only come up with a handful of cases that fit" the criteria.

The clemency initiative was intended to help federal inmates who would have received shorter prison terms had they been sentenced today.  That applies mostly to drug offenders after Congress shortened sentences for crack cocaine in 2010.  To be eligible, inmates must have already served 10 years of their sentence.

Last year, a record 6,561 federal prisoners — three times the usual number — filed petitions with the Justice Department's Office of Pardon Attorney, which advises the president on all requests for clemency.  Under the constitution, the president has the absolute power to grant pardons and commute sentences.

More than 30,000 federal inmates applied for representation through the Clemency Project 2014, a consortium of lawyers who have volunteered to help eligible inmates through the often complicated and time-consuming process of seeking a commutation. But 13 months later, those lawyers have submitted just 31 petitions. And while Obama has used his pardon power to shorten the sentences of 43, most of those cases predate the clemency initiative.  Over six years, Obama has granted just 0.2% of the commutation petitions submitted.

The Justice Department says it expects to recommend more commutations to Obama as it reviews the petitions.  But that could take a while: In its 2016 budget request to Congress, the department said the deluge of clemency applications is too much for the current staff to manage.  "As OPA's existing staff has discovered, expending the substantial resources required simply to manage such a volume of clemency requests significantly decreases those available for analyzing and evaluating the merits of individual applications and preparing the appropriate letters of advice to inform the president," the Justice Department said in its congressional budget justification.

Obama has proposed a 66% budget increase for the Office of Pardon Attorney in 2016, and is seeking twice as many lawyers to process all the paperwork.  And that paperwork can be daunting, requiring an examination of trial transcripts, the pre-sentence report (which is often sealed) and Bureau of Prisons files.

To be eligible under the program, inmates must be low-level offenders with no ties to gangs or cartels.  They must have demonstrated good conduct in prison, have no significant criminal history and no history of violence.  "There are gray areas, What is 'demonstrated good conduct in prison,' for example? Is that a pristine record?" said Cynthia Roseberry, a career public defender who now manages the Clemency Project 2014.


Without knowing how the Obama administration will apply those vague criteria, it's impossible to know how many could be eligible.  "My hope is that thousands of those will meet the criteria, but I just can't speculate." Roseberry said.  She said she expects the numbers to increase as the Clemency Project continues to screen for likely candidates for commutation.  A Clemency Project screening committee has already notified more than 3,000 inmates it won't be accepting their cases.  Once a case is accepted, it's parceled out to a volunteer attorney such as Mary Davis.

Davis represents Byron McDade, a Washington man sentenced to 27 years for cocaine trafficking even as his co-conspirators — who testified against him — got no more than seven. In 2009, after McDade had served his first seven years, the judge who sentenced him urged Obama to commute his sentence.  "While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the president is not," U.S. District Judge Paul Friedman wrote in another opinion last year,

So Davis assembled a 168-page petition with the help of two West Virginia University law students — Laura Hoffman and Amanda Camplesi — who spent a combined 122 hours on the case, collecting paperwork and visiting McDade at a federal prison in Pennsylvania. Davis said the work was complicated, even as a veteran federal defense attorney specializing in sentencing appeals.  "I know there were attorneys signing up for this who don't do criminal defense work, and I would think it would be extremely difficult," she said.

McDade is an unusual case: Before being convicted in 2002, his only offense was a minor misdemeanor with a $10 fine.  Markind, who worked on commutation cases as a Justice Department lawyer, said the clemency initiative did not relax Obama's "three strikes" policy making anyone with three or more criminal convictions ineligible for clemency. "Criminals with a record do not make the most appealing poster children," she said....

Mark Osler, a law professor at the University of St. Thomas in Minneapolis and a former prosecutor ... said the clemency process is already too bureaucratic and too distant from the ultimate decision-maker: the president.  The Clemency Project hopes to cut through the process by helping to provide the Justice Department with better, more complete case files to review.  But that solution has also led to criticism from Capitol Hill, where Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, says that the administration is outsourcing a government responsibility.

"We've failed the same way through different kinds of administrations, and the problem isn't the administration, it's the process," Osler said. "The sad thing is, every president recently has gotten to the end of their term and said, 'Hey, where are all the good clemency cases?' I sure hope that will change, but it's going to be a furious last year as these things start to come in even greater numbers."

It is hard to fault, and I am very disinclined to criticize excessively, all of the well-meaning and dedicated lawyers and administrators operating now in a system taking on Rube-Goldberg-quality with seemingly too many elements, criteria and moving parts.  Still, by now having so many more people applying for clemency, along with so many more lawyers trying to figure out the meaning and importance of so many vague criteria, it is not surprising that the clemency push/project has been most successful in producing a lot more paperwork and so many more questions about what this system is seeking to achieve.

I have long believed that President Obama could and should create an independent commission or task force or working group that would be tasked with making federal clemency reform a priority in a very short period of time.  Notably, as highlighted here, such a proactive approach to policing reform achieved a whole lot in just a matter of months:

On December 18, 2014, President Barack Obama signed an Executive Order establishing the President's Task Force on 21st Century Policing.  The Task Force Members sought expertise from stakeholders and input from the public as they worked to identify best practices and make recommendations to the President.  The Task Force submitted an initial report to the President on March 2, 2015 and released the final report on May 18, 2015.

Especially in light of all the new troubles and costs that the current approach is generating, I would urge the President to sign an Executive Order ASAP establishing the President's Task Force on 21st Century Clemency.  The Task Force Members could seek expertise from stakeholders and input from the public as they worked to identify best clemency practices and make recommendations to the President no later than December 1, 2015. That would still give Prez Obama a full year to implement an improved clemency process and would leave truly helpful legacy and structure in place from whomever becomes his successor.

Some prior related posts:

June 1, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, May 05, 2015

Could new DEA chief significantly change realities of federal war on drugs?

The question in the title of this post is prompted by this Huffington Post article, headlined "Lawmakers Encourage Obama To Select A Progressive New DEA Chief," reporting on this recent letter sent by a group of Representatives to Prez Obama. Here are the details: 

In a letter sent Friday, a group of lawmakers are urging President Barack Obama to select a more progressive head of the Drug Enforcement Administration, following the Department of Justice's announcement that the embattled current chief will resign in May. "We encourage you to use this as an opportunity to reshape the DEA's direction to reflect your administration's enforcement priorities," the letter reads.  The letter was signed by Reps. Jared Polis (D-Colo.), Steve Cohen (D-Tenn.), Earl Blumenauer (D-Ore.) and Democratic California Reps. Barbara Lee, Sam Farr, Zoe Lofgren and Eric Swalwell.

While the lawmakers say they appreciate the Obama administration's efforts to allow states to forge their own marijuana policies, they said that current DEA Administrator Michele Leonhart "leaves behind a legacy of strident opposition to efforts to reform our nation's drug policy."  The letter urges the president to nominate a new DEA chief who will be willing to work with state and federal officials to craft more flexible marijuana policies....

With just a little more than two weeks before Leonhart steps down, it remains unclear who the Obama administration could nominate who would both be approved by a Republican-controlled Senate and be a good fit for the DEA.

Leonhart came to head the DEA as acting administrator in 2007, under President George W. Bush.  She was made administrator in 2010 during Obama's first term, but has long seemed out of step on drug policy, clashing with the administration over the legalization of recreational marijuana in Colorado and Washington and with efforts to lower the mandatory minimum sentences for those convicted of federal drug crimes.

In their letter, the lawmakers argue that under Leonhart the DEA placed "far too great an emphasis on prosecuting state-legal marijuana activity, as opposed to prioritizing more dangerous drug-related activity," adding that her "misplaced priorities" exacerbated problems with the criminal justice system and put a strain on "legitimate marijuana businesses operating under state law."

May 5, 2015 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, April 30, 2015

Timely (but incomplete) report on political debates as de facto moratorium on federal executions continues

The New York Times this morning has this new front-page article discussing a remarkable national death penalty story that seems never to get nearly as much attention it merits.  The article is headlined "Obama Adminintration Steps Back From Effort to End Federal Death Penalty," and here are excerpts:

For a moment last year, it looked as if the Obama administration was moving toward a history­-making end to the federal death penalty.  A botched execution in Oklahoma brought national attention to the issue, public opinion polls began to shift and President Obama, declaring that it was time to “ask ourselves some difficult and profound questions,” directed Attorney General Eric H. Holder Jr. to review capital punishment.

At the Justice Department, a proposal soon began to take shape among Mr. Holder and senior officials: The administration could declare a formal moratorium on the federal death penalty because medical experts could not guarantee that the lethal drugs used did not cause terrible suffering.  Such a declaration would have pressured states to do the same, the officials reasoned, and would bolster the legal argument that the death penalty is unconstitutionally cruel punishment.

But the idea never gained traction, and Mr. Obama has seldom mentioned the death penalty review since.  Now, as the Supreme Court considered arguments Wednesday over whether lethal injection, as currently administered, was unconstitutional, the obstacles the Obama administration faced provide vivid examples of just how politically difficult the debate remains.

“It was a step in the right direction, but not enough of a step,” said Charles J. Ogletree Jr., a Harvard professor and a death penalty opponent who met with administration officials as part of the review.  The Justice Department, he added, has been refusing to say what he thinks senior officials there believe: “We’ve had too many executions that didn’t work and killing somebody’s not the answer.”

In remarks last May after a prisoner in Oklahoma regained consciousness and writhed and moaned during a lethal injection, Mr. Obama, who has supported the death penalty, seemed to raise expectations for a policy change.  He lamented its racial disparities and the risk of executing innocent people.  He referred the matter to Mr. Holder, a liberal stalwart who opposed capital punishment. But privately the White House was cautious, sending word to the Justice Department to keep its focus narrow, administration officials said.    

Mr. Obama called for the review at a time when there had not been a federal execution since 2003, when Louis Jones Jr. was killed for raping and murdering a 19-­year-­old female soldier. Since 2010, the federal government has effectively had a moratorium on executions — all are carried out by lethal injection — because manufacturers in Europe and the United States refused to sell the government the barbiturates used to render prisoners unconscious. States, however, found alternatives, including the sedative midazolam, which was used in the gruesome execution of Clayton D. Lockett in Oklahoma last year.

As the Justice Department sought advice from experts on both sides of the issue, opposition to the idea came from unexpected corners.  Some of the most outspoken voices against the death penalty also urged the most caution, fearful that a federal announcement would actually do more harm than good. “From my view, we’re better off with things bubbling up in the states,” said Henderson Hill, the executive director of the Eighth Amendment Project and one of several people consulted by the administration last year....

Advocates in particular worried that having Mr. Obama and Mr. Holder as the faces of the anti-­death penalty movement would stoke conservative support for capital punishment at a time when some libertarian­-minded Republicans, Christian conservatives and liberal Democrats appeared to be finding common ground in opposition to it. “I’m not sure that what the administration would have to say would be inherently influential in Nebraska,” Mr. Hill said.

Opposition to the death penalty was growing in Nebraska last year and lawmakers voted overwhelmingly this month to replace it with life in prison, setting up a veto fight with Gov. Pete Ricketts, a Republican.

Advocates were further worried that if lethal injections were eliminated, states would bring back older methods of execution, a concern borne out in Utah, where officials said they would bring back firing squads if lethal drugs were not available.  Other states are reviving plans to use the electric chair or gas chambers.

Inside the Justice Department, some officials opposed a formal moratorium because it would eliminate the option for the death penalty in terrorism cases like the one against Dzhokhar Tsarnaev, who faces a possible death sentence for the 2013 bombings at the Boston Marathon.  Others worried that eliminating the death penalty would make it harder to persuade Congress to move terrorist suspects from the island prison at Guantánamo Bay to the United States for trial. There were also logistical hurdles.

Advocates and administration officials asked what would happen to the roughly five dozen people on federal death row. Would Mr. Obama, who has said the death penalty was appropriate in some cases, commute the sentences of men who raped and murdered people? There were no clear answers.

In the end, the question never made it to Mr. Obama’s desk. Last fall, Mr. Holder announced plans to resign, and officials said it would be inappropriate to recommend a major policy change on his way out of office, then leave it up to his successor to carry it out. In January, the Supreme Court agreed to hear the case of three convicted murderers who challenged the lethal injection drugs. Now with the issue before the justices, the review at the Justice Department has come to a halt because any administration action could be seen as trying to influence the court.

Attorney General Loretta E. Lynch, who was sworn in this week, told senators during her confirmation hearing that the death penalty “is an effective penalty.” But she did not elaborate. Emily Pierce, a Justice Department spokeswoman, said the review continued. “And we have, in effect, a moratorium in place on federal executions in the meantime.” 

The last line in this excerpt highlights for me the federal death penalty story that continue to fail to get nearly as much coverage, legally, politically and practically, as I think it should. The feds have, I believe, a significant number of capital murderers on federal death row who have completed all their appeals but who have been escaping their imposed punishment since 2007 because of all the state lethal injection litigation that resulted in the Supreme Court's Baze ruling and all the subsequent uncertainty that has followed.  

I have long been troubled that the Bush Administration starting in 2007, and the Obama Administration in the years that have followed, have made no apparent effort to try to carry out existing federal death sentences.  Whatever the reasons for a nearly-decade-long de facto executive moratorium on the federal death penalty, I believe federal prosecutors should feel some obligation to defendants, victims and the general public to provide some public explanation about what the heck is going on with the actual administration of the federal death penalty.

April 30, 2015 in Baze and Glossip lethal injection cases, Criminal justice in the Obama Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, February 27, 2015

AG nominee Loretta Lynch one step closer to confirmation

As reported in this Politico piece, "Loretta Lynch cleared a key vote in the Senate Judiciary Committee on Thursday in her bid to become the nation’s next attorney general, picking up support from three Republicans on the panel in favor of her confirmation." Here are the details:

The vote was 12-8. The three Republicans who backed her nomination, along with all committee Democrats, were Orrin Hatch of Utah, Lindsey Graham of South Carolina and Jeff Flake of Arizona.

The next battle is on the Senate floor, where the federal prosecutor from Brooklyn is still expected to have enough GOP backing to be confirmed. But the controversy over President Barack Obama’s executive actions on immigration have overshadowed her nomination — particularly after her confirmation hearing last month, where she testified that those unilateral moves are legal.

Most GOP senators on the committee stressed that they could not support someone to be the nation’s chief law enforcement official who believes that the executive actions — which Republicans uniformly oppose and say are unconstitutional — are legal....

The committee’s chairman, Sen. Chuck Grassley (R-Iowa), announced Thursday that he would oppose Lynch because he believes she would not be sufficiently independent from Obama and the administration’s policies. “I remain unconvinced she will lead the [Department of Justice] in a different direction,” he said. “Now, I’m confident that if she had demonstrated a little more independence from the president, she would’ve garnered a lot of support today.”

Democrats, meanwhile, have long demanded that the controversy over Obama’s executive actions — which could stop deportations for more than 4 million immigrants here illegally and grant them work permits — stay out of the attorney general battle. “Loretta Lynch, a supremely qualified nominee for a vital national security and law enforcement post, should never have been pulled into the fray” over immigration, Sen. Chuck Schumer (D-N.Y.) said....

Sen. Dick Durbin (D-Ill.) invoked the issue of race and gender in regard to the nomination of Lynch, who would be the first black female attorney general if confirmed. He noted that near the 50th anniversary of the civil rights march in Selma, Alabama, it was “fundamentally unfair” to reject Lynch because she agrees with Obama’s immigration policies.

That drew the ire of Republicans. Hatch, who has said for weeks that he would support Lynch, said Democrats’ insinuation of a so-called double standard on her nomination was an “offensive and patently false innuendo.”

February 27, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 25, 2015

Prez Obama talks about criminal justice reform with members of Congress and...

This piece from The Hill, headlined "Obama meets with lawmakers on criminal justice reform," reports that talk about federal criminal justice reform is continuing among most (but not all) key federal policy-makers:

The bipartisan group of 16 lawmakers included Sen. Rand Paul (R-Ky.) and Rep. Jason Chaffetz (R-Utah), two rising Republican stars who have backed reforms meant to reduce the number of adults in prison. They were joined by Sens. Mike Lee (R-Utah) and Dick Durbin (D-Ill.), who have proposed moderate changes to the mandatory minimum sentences for some nonviolent drug crimes.

Sen. Sheldon Whitehouse (D-R.I.), the Democrat sponsoring a significant update to the nation's primary law dictating how to treat minors in custody, was also in attendance.

Notably absent from the meeting was Sen. John Cornyn (R-Texas), who along with Whitehouse is the sponsor of a major prison reform bill, and Sen. Chuck Grassley (R-Iowa), who chairs the Senate Judiciary Committee and who is backing the juvenile justice bill.

Grassley was the only top member of either the House or Senate judiciary committees not to attend. House Judiciary Committee Chair Bob Goodlatte (R-Va.) and ranking member Rep. John Conyers (D-Mich.) attended the meeting, as did Senate Judiciary Committee Ranking Member Patrick Leahy (D-Vt.).

At a time when congressional Republicans and the White House are at loggerheads over several issues, the meeting was another sign that there is some level of bipartisan agreement that changes must be made to federal criminal justice policies. But what form those reforms might takes remains in question. Some in Congress want reforms made to the mandatory minimums, while others — like Cornyn and Grassley — have expressed a preference for other prison reforms that do not change the drug sentences.

The administration has indicated that it would be open to a range of possibilities. 

As long-time readers know, what I think the Obama Administration has truly "indicated" through its work on these matters for six years is that it is always eager to talk about the need for reform and never eager to spend and serious political capital on actually moving needed reforms forward. There has been serious and significant "bipartisan agreement that changes must be made to federal criminal justice policies" for nearly a decade now going back at least to when the Booker ruling invalidated important aspects of the bipartisan Sentencing Reform Act (and even before that if we focus on the crack-powder sentencing disparities).

I had long hoped that Prez Obama and others in his administration, who at least (tepidly) helped secure passage of the (tepid) Fair Sentencing Act in 2010, could and would get bolder and more proactive on criminal justice reforms once reelected. But it is now painfully clear that Prez Obama and his administration has decided that its political and policy energies and capital should always be focused much more on other (more controversial and divisive) issues like gay marriage, immigration and health care.

February 25, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, February 12, 2015

Cato director explains why "2015 Can be the Year of Criminal Justice Reform"

The quoted portion of the title of this post is the title of this extended commentary by Tim Lynch, who directs the Cato Institute’s Project on Criminal Justice. Here are excerpts from the start and end of the piece along with its major headings: 

Criminal justice reform appears to be one of the hot topics this year. Unlike most other policy areas, where President Obama and Republicans remain at loggerheads, criminal justice reform holds much greater promise since both political parties seem to agree that there are festering problems that need to be addressed.

Let’s explore some of the most pressing topics.

Militarized policing....

Marijuana legalization....

Sentencing reform....

Civil asset forfeiture....

Indigent defense reform....

The political climate for criminal justice reform is superb. Present low crime rates provide space for policymakers who are inclined to address this compelling need. If there is no movement on reform now, we will all look back on 2015 as a lost opportunity.

February 12, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates | Permalink | Comments (2) | TrackBack

Friday, February 06, 2015

Highlighting President Obama's pitiful pardon record

ZZoTyPLThis lengthy USA Today piece, headlined "The 50-year-old pardon: Obama picks safe clemency cases," provides yet another review of the now-too-familiar story of President Obama awful record on his use of his clemency authority. Here are excerpts:

Of the 64 pardons President Obama has granted over six years, half are for offenses that happened before 1989. Six are from the 1960s. On average, 23 years have elapsed between the sentencing date and the day Obama has granted a pardon or commutation — an all-time high. A century ago, three or four years was the norm.

It's part of a decades-long trend toward presidents being more cautious in their pardon power, picking older and safer cases for clemency. But Obama has been the most cautious of all, and some critics say he is shirking his constitutional power — some say duty — to "grant reprieves and pardons for offenses against the United States."

"'Safe' is being nice. I would almost say irrelevant. The people who are being pardoned are people on Social Security," said P.S. Ruckman Jr., a political scientist who studies pardons. "The people who need pardons are young and need to establish themselves and get a job, get a Pell grant and go to college."...

Many of Obama's pardons are for old, obscure and sometimes trivial crimes:

• Ronald Lee Foster, of Beaver Falls, Pa., was convicted of mutilating coins in 1963. He had shaved the edges off pennies to fool vending machines into thinking they were dimes. He was pardoned in 2010 at the age of 66.

• David Neil Mercer of Grand Junction, Colo., was convicted in 1997 of violating the Archaeological Resources Protection Act by disturbing Indian artifacts in Utah. He now owns an automotive business and was pardoned last year at the age of 56.

• Bobby Gerald Wilson, of Summerton, S.C., was convicted in 1985 of aiding and abetting in the possession and sale of illegal American alligator hides. He was pardoned in 2011 at the age of 61.

Obama has issued fewer pardons than any president since James Garfield, who served just 199 days in office, and fewer than any two-term president since George Washington, according to Ruckman, a Rock Valley College professor who tracks clemency trends on the blog Pardon Power.

The few pardons Obama is granting often come late in life — sometimes to people on their deathbeds. Albert Byron Stork, a defense attorney from Delta, Colo., was convicted of tax evasion in 1987, when he took money from his fugitive brother for the down payment of a house. He received a pardon the same day as Auvil — and died of brain cancer two weeks later.

The White House said the president has an "ongoing commitment" to granting clemency. "The president believes strongly that a critical component of our criminal justice system is for deserving and qualified applicants to have the ability to petition for clemency," said White House spokeswoman Brandi Hoffine. She said Obama "looks forward to reviewing additional requests for clemency in the coming months."

The Office of the Pardon Attorney, in the Justice Department, is responsible for sifting through the hundreds of applications received each year.... Pardon Attorney Deborah Leff's recommendations go to Deputy Attorney General James Cole, then to White House Counsel Neil Eggleston, and ultimately to the president. That's how it works in principle. But in practice, the Justice Department is run by career prosecutors who are often hostile to those seeking pardons, defense attorneys say.

"They churn out a steady stream of no," said Sam Morison, a lawyer specializing in pardon cases who worked in the Office of the Pardon Attorney in the Clinton, Bush and early Obama administrations. "That doesn't mean that the president has to do what they say. But the president almost always does what the Justice Department recommends, even when he doesn't agree with what the Justice Department recommends." But the Justice Department has to recommend some favorable applications, and they tend to be older, easier cases, he said....

Delegating the decisions to the Justice Department helps to depoliticize the pardon power, but it's also led to its own problems. An internal Justice Department investigation found that President George W. Bush's pardon attorney withheld information from the White House about a commutation he opposed. And in 2010, the nonprofit news organization Pro Publica published an investigation in the Washington Post revealing that, under Bush and Obama, white criminals were four times more likely to get a pardon than black offenders.

Last year, the Justice Department announced a clemency initiative in an attempt to rectify some of the inequities in the system. Inmates who would have gotten lighter sentences under current federal guidelines were encouraged to apply to have their sentences commuted, or reduced.  But the Justice Department says that's a separate issue from pardons. 

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

February 6, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, January 31, 2015

Imagining a SuperBowl party with the Koch brothers, Al Franken, Rob Portman, David Keene, Piper Kerman and Van Jones

The silly idea reflected in the title of this post is my effort to put a timely spin on what is becoming an old story: lots of folks from lots of different perspectives are coming together to talk about the need for criminal justice reforms. And, as detailed in this press piece, many of these folks got together this past week at an event. Here are the details:

Only one issue in Washington right now could bring together the Koch brothers’ top lawyer, an environmental activist, the former head of the NRA and Sen. Al Franken.  Criminal justice reform.  In a city best known for dysfunction and discord, the issue has stood out as a rare area of common ground between Democrats and Republicans.

And at a panel on reforming the criminal justice system hosted by the Constitution Project advocacy group on Capitol Hill on Wednesday, the bipartisan array of speakers seemed genuinely nonplussed by the harmony across an otherwise gaping political divide.

Van Jones, the former Obama administration official and liberal commentator, was seated next to Mark Holden, Koch Industries’ general counsel and the face of the conservative mega-donors’ efforts to lower incarceration rates in the country. (The Koch brothers are planning to spend a reported $889 million during the 2016 election cycle, a figure that puts their operation in the same financial ballpark as the two political parties themselves.)

“That should be a headline in itself,” Jones said of he and Holden sitting at the same table. “Cats and dogs sleeping together,” Holden chimed in. “I don’t know about sleeping together,” Jones quipped.

Jones said he hoped politicians would seize on this moment — when crime is down and interest is high — to reform the U.S. penal system so that the country no longer imprisons a higher percentage of its citizens than any other nation.  “This is a time for real comprehensive change,” Jones said. “It’s very, very rare that we have a moment where the stars are aligned in this way.”  He later warmly embraced the Kochs' lawyer.

Lawmakers lined up to promote their criminal justice reform bills at the event, which also included remarks from Piper Kerman, the author whose memoir about her experience in federal prison inspired the Netflix series “Orange Is the New Black.”

Sens. Rob Portman, a Republican, and Al Franken, a Democrat, spoke about a bill they’re reintroducing this year to provide more mental health services to prisoners and to fund special mental health courts that emphasize treatment over doing time. Rep. Jim Sensenbrenner (R-Wis.) said he believes lawmakers should review every federal regulation or law that carries prison time to decide if it’s merited or not. Sen. Cory Booker (D-N.J.), who introduced a bill to expunge nonviolent criminal records of juvenile offenders that he’s co-sponsored with Sen. Rand Paul (R-Ky.), sat with audience members, saying he wanted to listen and learn.

Holden told the crowd that the Koch brothers have been involved in criminal justice reform for more than 10 years, after a few of their employees were prosecuted for violating environmental regulations in Texas in the 1990s.  (The charges against the employees were later dropped, and Koch Industries settled with the government.)  The Kochs have since invested in providing defense lawyers for poor people and other reform efforts, and have signaled it will be a major policy priority this year.  Their support could lend momentum to the bipartisan reform bills that have already been introduced. “What we should be using the prison system for is people we’re afraid of,” Holden said, not for nonviolent offenders.

I am always pleased to see talk of significant criminal justice reform making headlines. But as I have often said before (and as I likely will say again a lot in the months ahead), "talking the talk" about criminal justice reform is always much easier than "walking the walk" especially at the federal level.  So, if you come upon this notable cast of characters at your SuperBowl party this weekend, you should find it much easier to talk about criminal justice reform than to predict when all this talk will result in significant legislative action.

We are coming on five years since the libertarian/small-government wing of the GOP began talking a lot about significant sentencing reforms (right after the 2010 election cycle).  And yet, circa 2015, we still have not yet seen any proposals for "real comprehensive change" making the rounds on Capitol Hill.  Indeed, even (much-too) small proposed changes reflected in bills like the Smarter Sentencing Act have gained precious little momentum.

I am cautiously hopeful that the involvement of major capitalists like the Kochs will help fuel the work of major activists to turn all the talk into real action. But, ever the realistic (though optimistic) cynic, I am not expecting Congress to enact any truly landmark criminal justice reform legislation anytime soon.

January 31, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, January 28, 2015

"Lynch to Cast Herself as Departure From Holder in Bid to Be Attorney General"

The title of this post is the headline of this New York Times article previewing the start today of hearings concerning President Obama's nomination for Eric Holder's replacement as Attorney General. Here is how the article starts:

Loretta E. Lynch on Wednesday will cast herself as an apolitical career prosecutor who is a departure from Eric H. Holder Jr. when she faces a new Republican-­controlled Judiciary Committee that includes some of the administration’s fiercest critics in Congress.

“I look forward to fostering a new and improved relationship with this committee, the United States Senate, and the entire United States Congress — a relationship based on mutual respect and constitutional balance,” Ms. Lynch said in testimony prepared for the confirmation hearing.  “Ultimately, I know we all share the same goal and commitment: to protect and serve the American people.”

If she is confirmed, Ms. Lynch would be the nation’s first African-American woman to serve as attorney general.  Her allies have sought to differentiate her from Mr. Holder, an outspoken liberal voice in the administration who clashed frequently with Republicans who accused him of politicizing the office.

In particular, Ms. Lynch is expected to face tough questioning about her opinion of the president’s decision to unilaterally ease the threat of deportation for millions of unauthorized immigrants.  Mr. Holder approved the legal justification for that action, enraging some Republicans.

In these hearings, I am expecting some Senators to ask some questions about sentencing reform and federal marijuana policy. I hope to be able to provide some coverage and commentary about what gets asked and what nominee-Lynch says in future posts.

Prior related posts:

January 28, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, January 25, 2015

Will this week's confirmation hearings for AG nominee Loretta Lynch produce any fireworks?

This new National Law Journal article suggests the answer to the question in the title of this post may actually be no. The piece is headlined "Nominee Isn't Drawing a Crowd: Loretta Lynch hasn't inspired the passions that Eric Holder Jr. did — but that might be by design." Here are excertps:

Since Loretta Lynch's nomination on Nov. 8 for attorney general, the Senate Judiciary Committee has received about a dozen letters supporting her — a volume that starkly contrasts with the outpouring Eric Holder Jr. inspired six years ago.

That may not be a bad start for a nominee whose Senate hearings are scheduled to begin on Jan. 28. But by the time Holder's confirmation hearings began on Jan. 15, 2009, the committee had received more than 100 letters from law enforcement, victims' rights and civil rights organizations — among other groups and individuals — weighing in on Holder's fitness for the job.

A former White House lawyer who worked on previous Obama administration nominations told the NLJ that the dearth of formal submissions concerning Lynch is less about a lack of enthusiasm for her than the fact her work in the law hasn't generated sharp, easily defined divisions on Capitol Hill.

Lynch's critics so far haven't pointed to any particular moment in her career that raises questions about her fitness to serve as the nation's top law enforcement officer. Indeed, some Republicans intend to challenge Lynch as a proxy for the Obama administration at large — with a focus on the president's executive action on immigration....

As of press time, the Judiciary Committee had posted 13 letters addressing Lynch's nomination. Lynch's public support, so far, represents a cross-section of federal prosecutors, district attorneys, in-house corporate attorneys, African-American lawmakers and law enforcement officers. She has the formal support of general counsel at Alcoa Inc. and Estée Lauder Cos. Inc., the National Organization of Black Law Enforcement Officers, the Federal Bar Council, the Congressional Black Caucus and the National District Attorneys Association....

From almost as soon as Obama nominated Lynch, some Senate Republicans signaled they wouldn't stand in her way. In November, for example, Sen. Orrin Hatch, R-Utah, said Lynch "looks good to me." Sen. Lindsey Graham, R-S.C., called her a "solid choice." That does not mean there won't be opposition. The difference between 2009 and 2015 in the political climate and the Senate's composition — now with the Republicans in control — may mean Lynch will be confirmed by a narrower margin than Holder's 75-21 tally, which included 19 Republican "yea" votes. "The pattern of recent confirmations has been that nominees will get just enough to get through," Gorelick said.

Gun Owners of America intends to voice its concerns to the judiciary committee for those senators looking for reasons to vote "no" against Lynch. In a proposed letter, the group said Lynch has "no real paper trail." The letter tied her to justices Elena Kagan and Sonia Sotomayor, as well as to Holder, each of whom the Gun Owners of America calls "a committed anti-gun radical." "She's kind of like Eric Holder in a skirt," organization president Larry Pratt told the NLJ. Although Lynch has made her name as a longtime prosecutor, Pratt's letter highlights sustained criticism of Holder as an activist attorney general.

Prior related posts:

January 25, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, January 20, 2015

A (too) brief 2015 State of the Union mention of criminal justice issues

At the tail end of a lengthy speech mostly focused on economic issues and foreign affairs, President Barack Obama in his 2015 State of the Union Address mentioned a few matters that should intrigue those focused on federal criminal justice issues.  Here are the passages from this CNN text of the SotU speech that caught my attention:  

As Americans, we have a profound commitment to justice -- so it makes no sense to spend three million dollars per prisoner to keep open a prison that the world condemns and terrorists use to recruit.  Since I've been President, we've worked responsibly to cut the population of GTMO in half.  Now it's time to finish the job. And I will not relent in my determination to shut it down. It's not who we are....

We may have different takes on the events of Ferguson and New York. But surely we can understand a father who fears his son can't walk home without being harassed. Surely we can understand the wife who won't rest until the police officer she married walks through the front door at the end of his shift. Surely we can agree it's a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down together, and use that as a starting point for Democrats and Republicans, community leaders and law enforcement, to reform America's criminal justice system so that it protects and serves us all.

The absence of anything more substantive or substantial about federal criminal justice reform confirms my sense and fear that President Obama is more content simply to support criminal justice reforms pushed by others from behind rather than committed seriously to leading reform efforts from the bully pulpit.

January 20, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (1) | TrackBack

"End of an Era? The Impact of Drug Law Reform in New York City"

The title of this post is the title of this notable new report released today by the The Vera Institute of Justice.  Here is a description of the report I received today via an e-mail from The Vera Institute of Justice:

Enacted in 1973, New York State’s Rockefeller Drug Laws mandated lengthy prison sentences for people convicted of a range of felony drug offenses.  This heralded a wave of mandatory sentencing statutes that swept the nation, contributing to dramatic increases in state prison populations and fueling the racial disparities that have come to characterize the U.S. criminal justice system.  In 2009, however, the Rockefeller Drug Laws were essentially dismantled by the latest in a series of reforms that eliminated mandatory minimum sentences for the possession, use, or small-scale sale of illegal drugs and increased eligibility for diversion treatment.

In End of an Era? The Impact of Drug Law Reform in New York City, researchers from the Vera Institute of Justice, John Jay College of Criminal Justice, and the School of Criminal Justice at Rutgers University examine the impact of reform soon after implementation and suggest mid-course corrections.  The research team compared cases pre and post-reform to assess changes in the use of jail and prison, rates of diversion to treatment, recidivism, and cost. Researchers also interviewed 35 criminal justice stakeholders to assess their perceptions of the impact of drug law reform.  The National Institute of Justice-funded study, which focused on New York City where the majority of the state’s prison population is from, found that drug law reform, as it functioned in the city soon after the laws were passed, led to a 35 percent rise in the rate of diversion among eligible defendants. Although the use of diversion varied significantly among the city’s five boroughs, it was associated with reduced recidivism rates, and cut racial disparities in half.

January 20, 2015 in Criminal justice in the Obama Administration, Drug Offense Sentencing, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Hoping for (but not expecting) some mention of sentencing reform in 2015 State of the Union

For criminal justice and especially sentencing fans, the most notable aspects of President Obama's State of the Union addresses have been the absence of any discussion of anything having to do with sentencing or criminal justice.  Notably, the Obama era SOTU silence on sentencing issues contrasts with President George Bush's discussion of reentry and capital defense in his 2004 and 2005 SOTU speeches.  

Calling America "the land of second chance," President Bush in his 2004 State of the Union Address spotlighted prisoner re-entry issues and proposed "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups."  And asserting that in America "we must make doubly sure no person is held to account for a crime he or she did not commit," President Bush in his 2005 State of the Union Address said he was going to send "to Congress a proposal to fund special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side." 

I am expecting that President Obama in his 2015 State of the Union Address scheduled for tonight may finally say something about criminal justice issues, in part because I think he will want to say something about race and policing issues in the wake of Ferguson and his creation of a Task Force on 21st Century Policing.  But, as the title of this post reveals, I am not really expecting to hear tonight any discussion of sentencing law and policy  issues even though many in Congress and throughout the nation are concerned about the modern status quo and prospects for federal reforms.

On this front, Andrew Cohen at The Marshall project put together this terrific new piece headlined "‘My Fellow Americans …’: Reimagining the president's State of the Union speech," in which he got "a group of people who think deeply and regularly about criminal justice to share what they would like President Obama to say."   I was honored to be one of the people who Andrew Cohen asked to share my thoughts, though I find most notable what Senator Patrick Leahy, (D-Vt.) had to say:

The biggest issue facing our justice system today is our mass incarceration problem. The president has said before that we should enact laws that ensure “our crime policy is not only tough, but also smart.”  But tonight, while he has the attention of every member of Congress and the American people, I want to hear the president say that he supports an end to all mandatory minimum sentences, as I do.  Mandatory minimums are costly, unfair, and do not make our country safer.  For too long they have served as an easy way to score cheap political points: Want to prove you're tough on crime? Just add another mandatory minimum to the law. No need to bother with evidence that they do not make us safer; they make a nice talking point. That policy fallacy is one of the reasons we have the largest prison population in the world. And why $7 billion – nearly a third of the Justice Department’s budget – goes to the Bureau of Prisons instead of to community policing, victims services, or prison diversion programs that would make us safer and save taxpayers money.

Reagular readers will not be surprised to hear that I support the substance of what Senator Leahy is saying here.  But I am personally a bit surprised that the a ranking member (and former Chair) of the Senate Judiciary Committee is saying he think it is important for an executive branch official to say he opposes a legislative sentencing problem that Congress itself created and seems unable or unwilling to address dynamically. 

January 20, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, January 13, 2015

Senator Grassley queries DOJ concerning its work with Clemency Project 2014

Josh Gerstein has this notable new piece up at Politico headlined "Grassley questions Obama commutation drive," about a notable new inquiry directed to Attorney General Holder concerning the Obama Administration's (quirky?) efforts to ramp up its clemency activities. Here are excerpts:

New Senate Judiciary Committee Chairman Sen. Chuck Grassley is questioning the arrangements surrounding President Barack Obama's drive to shorten the sentences of some drug convicts.

In a letter sent Tuesday to Attorney General Eric Holder, the Iowa Republican asks for information about the relationship between the Justice Department and "Clemency Project 2014" — a consortium of outside groups formed in response to calls from administration officials to help federal prisoners prepare applications for the clemency effort.

"I am unaware of any time in history in which the Department of Justice has delegated any of these core attributes of presidential power to private parties beholden to no one, and who have their own agendas that may not coincide with the President's," Grassley wrote in the letter (posted here). "When private parties are wrongly given the ability to exercise any role in that public trust, then both the fairness of the pardon process and the appearance of its fairness are jeopardized."

Grassley's letter draws in large part on a POLITICO story last week which said that the new effort is struggling with more than 25,000 requests from inmates and that lawyers involved in the project have suggested applicants which route their clemency petitions through the project will stand a better or faster chance of favorable action than those who submit applications independently. The project—run by the American Civil Liberties Union, the American Bar Association, Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers— is also screening applications and weeding out those it considers unmeritorious under criteria the Justice Department set forth last April.

"Please tell me what formal arrangements exist between the Department and the Clemency Project 2014 to coordinate the processing of pardon applications, including what direction Clemency Project lawyers are given, what actions they take for the Department, and, how, if at all, Department of Justice lawyers consider the work product provided by these organizations or follow their recommendations," Grassley wrote. The senator also asks if anyone in the Justice Department is aware of statements suggesting those who submit applications through the project will have "superior access to the Department's pardon process."...

Grassley's letter refers to "pardon applicants," but the petitions prisoners are submitting are actually requests for commutations — a form of executive clemency that serves to shorten a prisoner's sentence.

The president can grant a commutation to anyone for virtually any reason. However, such applications are traditionally routed through the Justice Department's Office of the Pardon Attorney, which prepares recommendations and sends them to the department's No. 2 official, who forwards them to the White House.

The new commutation drive the Justice Department announced last year is aimed largely at paring back the sentences of convicts sent to prison for long terms relating to trafficking in crack cocaine. Those prisoners tend to be disproportionately minority as compared to those convicted of handling powdered cocaine. A law Obama signed in 2010 reduced that disparity for defendants sentenced after that time, but it was not retroactive.

The full Grassley letter is quite interesting, and not just because it gives some grief to Obama Administration about how it appears to be approaching its latest clemency push.  The letter asked a host of hard questions about what exactly DOJ and Clemency Project 2014 are up to, while also asserting in a final paragraph that "[j]ustice in the award of presidential pardons requires a transparent, fair process." And, unsurprisingly, the letter does not mention the sad reality that presidential clemency actions of the last two presidents have involved nothing resembling a "transparent, fair process."    

Among other notable aspects of this letter, Senator Grassley's obvious interest in these matter suggests that clemency issues are likely to be raised in some way during the upcoming confirmation hearings for AG Holder's replacement.  

January 13, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, January 06, 2015

GOP apparently eager to have Eric Holder as AG for at least one more month

The (slightly) tongue-in-cheek title of this post is my reaction to the news reported in "this notable NPR report, titled "Senate Slow To Schedule Hearings For Attorney General Nominee."  In the piece, Carrie Johnson reports that Democrats have been pushing for confirmation hearings ASAP for Attorney General nominee Lorreta Lynch, but new GOP Judiciary Chair Charles Grassley has indicated that these hearings will not take place before the last week in January  at the earliest.

I am very eager for the Lynch hearings because they should provide an important window into what both the GOP-controlled Congress and the Obama Administration are thinking about on federal criminal justice issues for the next two years.  But I suspect the GOP is feeling a bit forced to take a go slow approach on how to best approach (and attack) nominee Lynch and Prez Obama on these fronts, in part because the GOP has real internal divisions on these issues and in part because racial issues and divides are especially salient in criminal justice reform discussions these days.  

So, because AG Eric Holder remains in his position until his successor is confirmed, the GOP Senate is right now functionally extending his term as the nation's top prosecutor and lawyer. 

January 6, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, January 05, 2015

Former District Judge Paul Cassell at center of two big new victim-rights stories

ImageLong-time readers of this blog are surely familiar with the name Paul Cassell, perhaps primarily for his notable sentencing rulings back when he was a federal district judge concerning mandatory minimums and the impact of Blakely on the federal sentencing guidelines.  Long-time criminal justice academics are familiar with his long-ago scholarly work on Miranda and related police-practices jurisprudence and modern victim-rights advocates know Paul as one of the leading modern (court-focused) advocates for the interests of crime victims.  

With all that background (and the disclaimer that I have worked with Paul on various issues over the last decade and greatly respect his talents, energies and perspectives), I am now fascinating to see Paul Cassell's name at the forefront of two big new victim-rights stories.  Here are links and the start of articles about these stories:

From the Washington Times here, "Loretta Lynch questioned over secret deal depriving fraud victims of $40M":

More than a year before President Obama nominated federal prosecutor Loretta Lynch to be attorney general, a former federal judge quietly called on Congress to investigate her U.S. attorney’s office for trampling on victims’ rights.

Paul Cassell, a law professor at the University of Utah, said Ms. Lynch’s office, the U.S. Attorney for the Eastern District of New York, never told victims in a major stock fraud case that a culprit had been sentenced — denying them a chance to seek restitution of some $40 million in losses. Mr. Cassell, in written remarks to a House Judiciary Committee panel in 2013, said if prosecutors were using secretive sentencing procedures to reward criminals for cooperating with them, it could violate the Crime Victims Restitution Act.

From the Salt Lake Tribune here, "Utah law professor claims British prince, well-known attorney had sex with teen ‘sex slave’":

University of Utah law professor Paul Cassell has come under fire for filing a motion in a victims’ right suit that claims a client was forced as a girl to be a "sex slave" who allegedly was made available to a well-known attorney and a member of the British royal family.

The motion filed Friday in a federal court in Florida alleges that a woman identified as Jane Doe #3 was sexually exploited beginning at age 15 by billionaire financier Jeffrey Epstein, who also loaned her for sex to politically connected and powerful people — including Harvard Law School professor emeritus Alan Dershowitz and Prince Andrew, a son of Queen Elizabeth II.

Both men have denied the allegations, and Dershowitz is threatening to initiate disbarment proceedings against Cassell and Bradley Edwards, a Florida attorney who also represents Jane Doe #3, according to The Wall Street Journal.

For lawyers and politicians, the story about criticisms of the Attorney-General-nominee is much more important and consequential.  But the teen sex slave story is sure to get a whole lot more attention — and that story could, I think, end up making it difficult for Paul Cassell to be called to testify or otherwise be a visible voice in AG-nominee Lynch's upcoming confirmation hearings.

January 5, 2015 in Criminal justice in the Obama Administration, Current Affairs, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, December 22, 2014

Prez Obama to nominate Atlanta US Attorney Sally Yates to Deputy AG position

As reported in this Wall Street Journal article, President Obama is apparently going to make some more history with his nominee to take over the number two position at the US Department of Justice.  The headline and subheadline of the article explains: "Obama to Nominate Atlanta U.S. Attorney Yates to No. 2 Justice Department Job: Justice Set to Be Led by Two Women Elevated Directly From U.S. Attorneys’ Offices." Here is more on this notable news:

The expected nomination of Ms. Yates, 54 years old, to serve as deputy attorney general means the Justice Department is set to be led by two women who came straight from running powerful federal prosecutors’ offices outside of Washington. Mr. Obama has already nominated Brooklyn U.S. Attorney Loretta Lynch to succeed Attorney General Eric Holder, and the Senate is expected to consider her early next year.

Ms. Yates, who must also be confirmed by the Senate, would succeed Deputy Attorney General James Cole, who has said he plans to leave the department after having served in the No. 2 role for most of the Obama administration. An official announcement of Ms. Yates’s nomination could come as soon as this week....

If Ms. Lynch and Ms. Yates are confirmed, the Justice Department would for the first time in history be run by two people elevated directly from U.S. attorneys’ offices. And though both were nominated by Mr. Obama to serve as U.S. attorney, neither is particularly close to the president. That marks a departure from Mr. Holder, a confidant of the president who worked on his 2008 campaign.

But like Ms. Lynch, Ms. Yates isn’t a stranger to Washington. Both held leadership positions on a committee of U.S. attorneys that advises Mr. Holder and have overseen major prosecutions that drew attention from the Justice Department. And both have won convictions of Democrats in high-profile public corruption cases. Ms. Yates led the prosecution of former Atlanta Mayor Bill Campbell on charges related to corruption. He was acquitted of some of the charges, but convicted of tax evasion.

A graduate of the University of Georgia law school, Ms. Yates has 2½ decades of experience as a federal prosecutor. Her career includes the prosecution of Eric Rudolph, who pleaded guilty in 2005 to bombing the 1996 Atlanta Olympics....

But Ms. Yates’s career as a prosecutor could help her win confirmation in the Republican-controlled Senate. ”I know Sally Yates well and she has been an outstanding U.S. Attorney,” said Sen. Johnny Isakson, a Republican from Ms. Yates’s home state of Georgia. “She will have my full support.”

Ever the federal sentencing reform optimist, I am eager to assert that this nomination could provide still further help for getting serious sentencing reform moving forward in the final years of the Obama Administration. Assuming that nominees Lynch and Yates have been supporters of AG Holder's reform efforts to date, I expect that will (if confirmed) look to continue and expand upon his initiatives designed to reduce the federal system's reliance on lengthy terms of incarceration for most offenses.

UPDATE:  I just noticed this post at Crime & Consequences by Kent Scheidegger about this nomination, which adds this interesting point:

There is an important diversity aspect to this nomination.  Ms. Yates is breaking the "glass ceiling" that irrationally tends to keep people who went to non-big-name law schools from being considered top-tier lawyers throughout their career.  There is no rational basis for considering long-ago school attendance to be even a significant criterion, much less a primary one, once lawyers have a decade or more of performance in the profession to be judged on, yet people still do it.

December 22, 2014 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, November 11, 2014

Notable past remarks by AG-nominee Lynch on criminal justice reform to the Convention on the Elimination of Racial Discrimination

DownloadI just came across these remarks delivered by Attorney General nominee Loretta Lynch in August 2014 to the Convention on the Elimination of Racial Discrimination in Switzerland as part of the US delegation. These remarks were intended to share with the Convention "some of the highlights of the Department of Justice’s efforts to eliminate racial discrimination and uphold human rights in the area of criminal justice."

The remarks are largely just a summary of many of the criminal justice reforms championed by Attorney General Eric Holder, but it will be interesting to see if the remarks garner special scrutiny as part of the Senate's confirmation process. Here are excerpts:

[T]he department has made great progress in reforming America’s criminal justice system. Our focus is not just on the prosecution of crime, but on eradicating its root causes as well as providing support for those re-entering society after having paid their debt to it.

There is, of course, much work still to be done. Currently our country imprisons approximately 2.2 million people, disproportionately people of color. This situation is a drain on both precious resources and human capital. The Attorney General is committed to reform of this aspect of our criminal justice system.

Last August the Attorney General announced the “Smart on Crime” initiative. Under this initiative, we’re ensuring that stringent mandatory minimum sentences for certain federal drug crimes will now be reserved for the most serious criminals. This is not an abandonment of prison as a means to reduce crime, but rather a recognition that, quite often, less prison can also work to reduce crime. We’re advancing alternative programs in place of incarceration in appropriate cases. And we’re committed to providing formerly incarcerated people with fair opportunities to rejoin their communities and become productive, law-abiding citizens.

As part of this effort, the Attorney General has directed every component of the Justice Department to review proposed rules, regulations or guidance with an eye to whether they may impose collateral consequences that may prevent reintegration into society. He has called upon state leaders to do the same, with a particular focus on enacting reforms to restore voting rights to those who have served their debt to society, thus ending the chain of permanent disenfranchisement that visits many of them.

To further ensure that the elimination of discrimination is an ongoing priority, the Attorney General has created a Racial Disparities Working Group, led by the U.S. Attorney community, to identify policies that result in unwarranted disparities within criminal justice and to eliminate those disparities as quickly as possible.

From the reduction of the use of solitary confinement, to the expansion of the federal clemency program, to our support for the retroactive reduction of penalties for non-violent drug offenders to the reduction in the sentencing disparity between crack and powder cocaine, we have worked to improve our criminal justice system in furtherance of our human rights treaty obligations. We look forward to the future and the opportunity to do even more.

Obviously, if Loretta Lynch become the next US Attorney General, she will be in a great position to seize "the opportunity to do even more" with respect to criminal justice reform. I wonder what she might have in mind.

A few recent related posts:

November 11, 2014 in Criminal justice in the Obama Administration, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, November 06, 2014

How might election results (and subsequent sparring) impact Prez Obama's clemency plans?

In this prior post, I wondered aloud "How might election results impact replacing Eric Holder as Attorney General?."  Since then, I have turned to thinking about, as the title of this post highlights, whether and how the Republican electorial success this election cycle might impact the President's thinking and plans about finally making some real use of his clemency powers.

As regular readers know, I consider President Obama's clemency record to date to be not merely disappointing, but truly disgraceful.  That said, earlier this year, Deputy AG Cole and others talked up a new DOJ effort to identify worthy clemency candidates so that the President might start to do better.  From the get-go, I have been concerned that all the talk of new clemency developments might prove to be just another example of the Obama Administration being real good at "talking the talk" and not nearly so good at really "walking the walk."  Indeed, until President Obama starts seriously and consistently using his clemency power, I remain deeply fearful that the so-called Clemency Project 2014 could prove to be much ado about nothing (or about very little relief for very few).

With these realities as backdrop, I have no sense at all whether the consequential political developments of the last few days will have little, some or much impact on whatever Prez Obama had in mind with respect to clemency.  Does anyone else have any insights or even wild speculations on this front?

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

November 6, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, November 05, 2014

How might election results impact replacing Eric Holder as Attorney General?

The question in the title of this post is fraught with all sorts of political and practical uncertainty in light of the various folks thought to be front-runners for replacing Eric Holder in the most important criminal justice policy position in the nation.  This new posting from Constitution Daily highlights some of the lurking issues:  

There were signs this week that the Obama administration may not use the Senate lame-duck session between November and January to put through Holder’s replacement while it enjoyed the advantage of a filibuster-free nomination process.  But other reports indicated President Obama would make an announcement about Holder’s replacement in the days following the mid-term elections.

Through its constitutional advice and consent powers, the Senate needs to approve a new Attorney General in a simple majority vote, after the Obama administration presents a nominee and the appropriate committees question the nominee.

Given the short time frame and the timing of the November election, a public process that gives the President’s opponents a chance to speak about Holder and Holder’s replacement could prove problematic for the Obama administration.  But given the short time frame of lame duck session between November 2014 and January 2015, a troublesome confirmation hearing now would certainly be shorter than a drawn-out process in early 2015.

Three candidates are rumored to be on Obama’s short list: Labor Secretary Tom Perez, Solicitor General Donald Verrilli and U.S. Attorney Loretta Lynch.

Perez would enjoy the advantage of appearing before the Senate in July 2013 during his nomination to head the Labor Department, which could shorten his hearing process now. Ironically, Perez was approved by a 54-46 vote when Democrats and Republicans had agreed to stop fighting, at least temporarily, about filibuster rules.  But if Perez is the Attorney General pick, President Obama would need to get a new Labor Secretary approved by a GOP-controlled Senate.

Even if one were to exclude all political concerns and calculations, there are practical challenges for a nomination and a confirmation process moving forward relatively expeditiously. And, of course, inside the Beltway, political concerns and calculations often eclipse all others when it comes to headline-grabbing presidential appointments. Moreover, all these dynamics should take on an extra level of interest for sentencing fans given that federal sentencing reforms, federal marijuana policy and maybe even the death penalty could be big issues of interest and concerns for the new Republican-controlled Senate. Interesting times.

A few recent related posts:

November 5, 2014 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, November 03, 2014

Why I believe criminal justice reform is on the ballot this year ... and reflected in anti-Obama sentitments

The title of this post is designed as something of a retort to this interesting new Daily Beast commentary by Inimai Chettiar and Abigail Finkelman.  The piece is headlined "Why Isn’t Prison Justice on the Ballot This Tuesday?," and here are excerpts (with my emphasis added):

Whichever party wins control of the U.S. Senate, voters can wince at the prospect of continued polarization and gridlock.  But one issue, intriguingly, seems ripe for genuine bipartisan cooperation: criminal justice reform.  Yet, partly because it has become less controversial, discussions about criminal justice policy have been absent from the campaign trail.  This silence creates the risk that a moment of promise will become a missed opportunity for change.

The fact that criminal justice policy is not a campaign issue is, itself, noteworthy. Consider it Sherlock Holmes’ dog that didn’t bark.  For decades, politicians vied to be the most punitive, from the 1977 New York City mayoral race, which improbably turned on the issue of the death penalty (over which a mayor has no power) to the 1994 referendum that passed “three-strikes-and-you’re-out” in California.  The 1988 presidential race is rightly remembered for its focus on demagogic and racially coded appeals....

But times have changed, and “tough on crime” has been replaced with “smart on crime.”  In the last decade, states as disparate as Texas, New York, Kentucky, and California have instituted reforms to reduce their prison populations and ease up their harsh sentencing laws.  The White House just launched a major initiative to implement a more modern, sensible drug policy.  Even Congress passed a law reducing the disparity between crack and powder cocaine sentences.  And Americans overwhelmingly support eliminating mandatory minimum sentences for nonviolent drug offenders.

Yet, by and large, candidates have steered clear of criminal justice reform this election cycle.  Perhaps they’re fearful of being painted as soft on crime.  Or perhaps they simply don’t care enough about the issue to take a position.

Check out the issues pages of the websites of Senate candidates in the hottest races. Neither Michelle Nunn nor David Perdue, the two major Senate candidates in Georgia, talk about criminal justice reform.  Neither do Mark Udall and Cory Gardner in Colorado. Or Joni Ernst and Bruce Braley in Iowa.  In fact, you’d have to look far to find a candidate who makes even the most pro forma nod to the issue.

And that’s too bad, because not only is criminal justice important on its own, but because it impacts so many other important issues.  Voters consistently list the economy and inequality as top concerns.  The current system of mass incarceration costs governments around $260 billion annually; that’s about half the 2014 federal deficit.  In fact, it’s among the largest drivers of economic inequality in the United States.  Finding employment or housing can be nearly impossible with a criminal record.  Locking up the primary breadwinner can push a family from working-class to impoverished. And children growing up with incarcerated parents too often get pulled into the system themselves....

Politicians and candidates cannot be allowed to remain silent on one of the largest human rights issues on American soil.  But they also can’t be allowed to limit themselves to bromides about wanting reform without laying out next steps, and taking them.  After all, some officeholders still resist needed changes, even as others link arms for reform.

Sens. Rand Paul (R-KY) and Cory Booker (D-NJ) may have drawn wide attention and praise for their REDEEM Act. But the Smarter Sentencing Act of 2014, which went further and was cosponsored by Ted Cruz and Elizabeth Warren, among others, was blocked by a bipartisan group of senators.  Similar battles are unfolding in state legislatures.  But, as always, there’s a way to get legislators to change their actions: threaten to kick them out.

We’ve missed the chance to make mass incarceration an issue in 2014.  But a few weeks ago, Bill Clinton predicted the issue would play prominently in the 2016 presidential election.  Let’s hope he’s right.  But such a drastic change in election politics won’t happen unless we demand to know where candidates stand on criminal justice.  We must ask why they’re holding up bills, and if they’re only paying lip service to reform.

We need to know what they will do — or why they’re not doing anything — so that the United States no longer wears the scarlet letter of being the largest jailor in the world.  And if they can’t answer, hold them accountable.

I have emphasized key phrases above which I believe serve as justifiable criticisms of one particular politician this election cycle: President Barack Obama.  As regular readers know, I have long been talking about what I think President Obama could and should be doing in response to mass incarceration.  On Inauguration Day 2009, in this post, I asked "Is it too early to start demanding President Obama use his clemency power?".  Similarly, in post after post and post, I have highlighted that Prez Obama and others in his administration have been much more willing and eager to "talk the talk" than to "walk the walk" when it comes to criminal justice reform.

In other words, in my view President Obama is the politician who should be getting the most criticism for, in the words of this commentary, being content to spew "bromides about wanting reform without laying out next steps, and taking them," for missing "the chance to make mass incarceration an issue in 2014," and for helping to ensure the United States still "wears the scarlet letter of being the largest jailor in the world."  And, like Inimai Chettiar and Abigail Finkelman, I want this politician to be held accountable.  And, if polling and predictions about a Republican surge on election day tomorrow are accurate, it does appear that President Obama and his party are going to be held accountable for their failings in this regard.

(Side note:  I also think Prop 47 in California as well as the marijuana initiatives on the ballot in a number of states and localities serve as another way that "prison justice" can be seen as being on the ballot this year.)

November 3, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates | Permalink | Comments (1) | TrackBack

Thursday, August 21, 2014

After Ferguson, can and should marijuana legalization and drug war reform become a unifying civil rights movement?

The-New-Jim-CrowThe question in the title of this post is prompted in part by my own uncertainty concerning the fitting public policy responses to the events in Feguson this month and in part by this potent and provocative new Huffington Post piece by Jelani Hayes headlined "Ending Marijuana Prohibition Must Take a Historical Perspective."  Here are excerpts from the commentary (with links from the original):  

Underlying marijuana prohibition is a familiar philosophy: to preserve social order and white supremacy and secure profits for an influential few, it is permissible, even advisable, to construct profit-bearing institutions of social control.  Historically, this philosophy has been advanced by governmental action, guided by special interests. The traditional tactics: manufacturing mass fear, criminalizing the target or demoting them to a sub-citizen status, and profiting from their subjugation.

Cannabis prohibition did all three.  The [New York] Times editorial board dedicated an entire article to explaining this phenomenon.  Part 3 of the series begins, "The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria in the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time. This racially freighted history lives on in current federal policy, which is so driven by myth and propaganda that it is almost impervious to reason."...

Additionally, business interests play a part in keeping cannabis illegal.  Some pharmaceutical companies, drug-prevention nonprofits, law enforcement agencies, and the private prison industry have an economic interest in criminalization, what is known as the drug control industrial complex. It pays big to help fight the war on drugs, and marijuana prohibition is a crucial facet of that effort. The Nation has recently called these interests "The Real Reason Pot is Still Illegal."

The United States should legalize marijuana. It should also end the drug war, which would be a tremendous and beautiful accomplishment, but it would not be enough.

The war on drugs is a mechanism of social control — not unlike African slavery, Jim Crow, alcohol Prohibition, or the systematic relegation of immigrants to an illegal status or substandard existence.  Different in their nature and severity, all of these institutions were tools used to control and profit from the criminalization, regulation, and dehumanization of minority communities.  Legalizing marijuana will not alone rid society of the tendency to turn fear into hatred, hatred into regulation, and regulation into profit. To address this cycle, we must put cannabis prohibition (and the drug war) in its historical context and connect the dots where appropriate.

Already we have seen that the reality of legalization does not alone ensure justice or equality. As law professor and best selling author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness Michelle Alexander points out, thousands of black men remain in jail or prison in Colorado (where licit weed has been on the market since January) while white men make money from the now legal marijuana market -- selling the drug just as the incarcerated men had done.  She warns that legalization without reparation is not sufficient, drawing the parallel to what happened to black Americans post-Reconstruction.  "And after a brief period of reconstruction a new caste system was imposed — Jim Crow — and another extraordinary movement arose and brought the old Jim Crow to its knees...Americans said, OK, we'll stop now. We'll take down the whites-only signs, we'll stop doing that," she said.  "But there were not reparations for slavery, not for Jim Crow, and scarcely an acknowledgement of the harm done except for Martin Luther King Day, one day out of the year.  And I feel like, here we go again."

Alexander's historical perspective is warranted because despite the size and intensity of marijuana prohibition, of the drug war in its entirety, its purpose is not unlike that of Jim Crow or other structural forms of social control and oppression. The drug war was never about drugs.  Therefore, our solution to it can't be either.

We must frame the campaigns for cannabis legalization across the states as civil rights movements — as institutional reform efforts — so that the public might demand justice oriented outcomes from the campaigns....

In order to undue the damage — to the extent that that is possible — that the criminalization of marijuana specifically and the war on drugs more broadly have caused, we must pay reparations and retroactively apply reformed drug laws. More importantly, we must undermine the philosophies that allow for the construction of institutional harm, and we must be able to identity them when they creep up again and be ready to take action against them, to arm our minds and our bodies against the next wave of social oppression  — whatever and wherever it may be and to whomever it may be applied. This is my plea to make history matter so that it doesn't repeat itself — again, and again, and again.

Regular readers likely know that I see marijuana and drug sentencing reform efforts as tied to a broader civil rights movement (and not just for people of color). But, especially in the wake of what has transpired this month in Ferguson, I am getting especially drawn to the idea that appropriate public policy response is to connect criminal justice reform efforts to civil rights messages and history as this HuffPo commentary urges.

A few (of many) recent and older related posts (some from Marijuana Law, Policy & Reform):

August 21, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Sunday, July 27, 2014

Defender hiccup or major headache for Clemency Project 2014?

The question in the title of this post is prompted by this new article from Al Jazeera America headlined "Federal defenders potentially excluded from historic clemency drive." Here are excerpts:

Six months after the Justice Department called on defense lawyers to help it identify and vet candidates for its clemency drive, there is concern that the federal defenders — whom the DOJ invited in as key partners — might never have been authorized to participate in the first place. This could leave the initiative without the manpower it needs.

A high portion of the potential pool of inmates is represented by the federal defenders, and they have been critical in the formation and operation of Clemency Project 2014, a coalition of defense lawyers and advocates created in the wake of the DOJ’s call. (The vast majority of those prosecuted in federal courts receive court-appointed lawyers; in districts where there is a federal defenders’ office, they generally handle 60 percent of those cases.)

"Federal defenders include some of the best courtroom and appellate advocates in the United States. Having them work with the Clemency Project 2014 has been important to the work we are doing,” said Mark Osler, director of the Federal Commutations Clinic at the University of St. Thomas in Minnesota, who has been training lawyers for the Clemency Project. “Losing them as a part of the coalition would be a significant challenge.”

The courts appoint federal defenders — under the Criminal Justice Act — to represent indigent defendants in federal judicial proceedings, a service paid for by the public. Now the courts’ highest authority is considering whether those appointments can extend to representing clients in their petitions to the president for mercy, a process conducted wholly in the executive branch....

In February, the Justice Department invited representatives from a select group of its traditional rivals — the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, Families Against Mandatory Minimums and the federal defenders — to a series of meetings to discuss how the process might be structured. (A conservative organization, Judicial Watch, is currently suing the Justice Department to make those discussions public.)

The criteria that eventually emerged called for inmates who were nonviolent, low-level drug offenders without significant ties to large-scale criminal organizations. They would also have to have served at least 10 years of their prison sentences, not have a significant history of crime or violence and have demonstrated good conduct in prison.

While the Justice Department will ultimately decide which inmates to recommend to the president for clemency, it is the defense bar that has been tasked by the government with most of the upfront work, including identifying worthy candidates, recruiting and training the vast numbers of pro bono attorneys needed to assist the effort, preparing the petitions and vetting which petitions reach the Justice Department’s Office of the Pardon Attorney....

Cynthia W. Roseberry, the newly appointed head of the Clemency Project 2014, a former federal defender herself, said that “we look forward to continuing our collaboration with the federal defenders,” and that she remained confident that the project has the resources to identify all prisoners who meet the criteria for clemency and to ensure they have access to counsel at no cost....

The federal defenders declined to comment on internal discussions relating to when, if ever, consideration was given to whether they were statutorily authorized to participate in such a broad clemency effort. Kathy Nester, the federal public defender for the district of Utah and the defenders’ representative on the Clemency Project 2014 steering committee, referred to standing orders by judges in six districts already appointing defenders, saying it was evidence that the work logically falls to them. (At the time of publication, the administrative office of the courts was only able to confirm that there were four such standing orders.)

“It was a federal public defender's office that submitted the successful clemency petition in the case of Ezell Gilbert late last year,” said Nester, referring to one of the eight inmates whose sentences President Barack Obama commuted in December 2013. “This was done at the urging of [the Justice Department] and federal judges who had reviewed the case. Defenders have approached the clemency project with a good faith belief that we are supposed to take positions that are in the best interest of our clients, and that this historical opportunity for relief from unreasonable sentences would certainly fall within that mission.”

Similarly, in June, a federal defender motion in Cleveland asked for a court appointment to do clemency petitions, noting that it was the deputy attorney general, not the inmates themselves, who had requested that the defense bar seek clemency for qualified inmates. In response, the DOJ asked the court to defer appointing the defenders until the administrative office of the U.S. courts makes its decision as to whether the defenders are authorized to do such work. Neither the department nor the U.S. Attorney’s office in Cleveland would say whether this was now a department-wide position....

The more than 20,000 federal inmates who have taken up the DOJ on its invitation and asked Clemency Project 2014 to review their cases now await those who set these wheels in motion to sort it all out.

I sincerely hope there does not end up being major difficulties with federal defenders working on clemency petitions for federal inmates. And however these administrative issues get worked out, it will remain the case that there are just far too many federal prisoners who could benefit from experienced defense lawyers and far too few lawyers able to provide all the legal help needed.

July 27, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, May 29, 2014

AG Holder urges fellow prosecutors to back his sentencing reform advocacy

This new NPR piece reports that "Attorney General Eric Holder took his case for overhauling the criminal justice system to an unlikely location on Wednesday — a closed-door conference of prosecutors, who were meeting at their national training center in Columbia, South Carolina." Here is more:

According to a person familiar with Holder's unpublicized remarks, Holder urged an audience of criminal division chiefs from U.S. Attorney's offices to support Smart on Crime initiatives that would reduce some drug sentences and to open up the clemency process to hundreds of inmates with clean records in prison.

Earlier this year, the Senate Judiciary Committee approved a bill that would cut some mandatory minimum penalties for non-violent drug offenders.  But in recent weeks at least three prominent groups have attacked the legislation, including nearly 30 former Justice Department officials who served under Republican administrations; longtime Sens. John Cornyn, R-TX, Charles Grassley, R-IA, and Jeff Sessions, R-AL; and even Holder's own DEA administrator.

The attorney general addressed those concerns by pointing out that the bill, known as the Smarter Sentencing Act, would leave in place tough mandatory minimum sentences for most drug traffickers, with add-ons for people who possess weapons, are repeat offenders, or those who are considered leaders of an ongoing criminal racket.

"These changes represent anything but a softening of our stance against crime and those who perpetrate it, or a relaxing of our unwavering commitment to combat the drug-fueled violence that plagues far too many communities," Holder said, according to a law enforcement source in the audience.  "On the contrary: in all our activities, we remain committed to the robust enforcement of federal anti-drug laws, and to focusing federal resources on the most significant threats to our communities," he said, according to the source.

May 29, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, May 02, 2014

Family of medical marijuana patients in Washington turn down plea and set up notable federal trial

HarveysThis lengthy new Huffington Post article, headlined "This Entire Family Of Medical Marijuana Patients Could Go To Prison For Growing Pot," spotlights a developing federal criminal case that seems likely to provide a notable criminal justice setting for the on-going national debate over marijuana law, policy and reform. Here are the basics:

Four family members and a close family friend in a rural town in northeastern Washington are facing years in federal prison for growing marijuana for their personal medical use.

Larry Harvey, 70, his wife Rhonda Firestack-Harvey, 55, their son Rolland Gregg, 33, and Rolland's wife Michelle, 35, as well as close family friend Jason Zucker, 38, claim they were individually growing 74 marijuana plants for their own medical use at the Harveys' rural home near Kettle Falls, Washington, as is their right under state law.

"There is no hidden agenda here," Rhonda said Thursday in a statement to the media. "My husband and I are retired, but work hard to live a peaceful, sustainable life in the northeast Washington wilderness.  We both have serious health issues and were told by our doctors that medical marijuana could help. All five of us have qualifying conditions, actually, and the garden was below the limit of 15 plants per patient."

"It's outrageous that the federal government is wasting money prosecuting five patients who were in total compliance with state law," Rhonda added.  The Harvey home was first raided by state authorities in August 2012 after two flybys from Washington state's Civil Air Patrol -- the official civilian auxiliary of the United States Air Force -- reported an apparent marijuana grow near the Harvey residence.

On August 9, according to a motion filed by the Washington state U.S. attorney's office, state law enforcers raided the Harvey property and found 74 plants growing near the home. Under the presumption that the family was growing this cannabis as a collective, rather than individually, officers seized 29 cannabis plants so that the family would be compliant with state law, which limits collective crops to no more than 45 plants. The authorities did not press charges or seize any other assets.

However, days later, on August 16, federal authorities showed up with a new warrant and conducted a more comprehensive raid.  At the time, authorities were enacting a widespread crackdown on medical marijuana providers -- an effort that extended into states like California and Colorado -- at the directive of the Obama administration. During the Aug. 16 raid, Drug Enforcement Administration agents seized the Harveys' remaining marijuana plants, as well as about five pounds of raw cannabis and some marijuana-infused edibles from the freezer.  The feds also seized a 2007 Saturn Vue, $700 in cash, a computer, a motorcycle and an ATV, along with the family's legally owned firearms.

"This is not the kind of spectacular haul that the DEA is typically called in for," the family's attorneys wrote in a letter to Attorney General Eric Holder this February urging him to reconsider the charges. "Just the opposite, the evidence seized is consistent with the type of strict medical dosage that occurs with a doctor's supervision."

In 2013, the five patients were indicted by the Eastern Washington attorney general's office. According to the defendants' attorneys, all of them were growing cannabis in compliance with state law. Still, the federal government has charged each of them with six felonies apiece, including manufacturing, possession and distribution of marijuana, as well as the possession of a firearm in furtherance of drug trafficking, according to the indictment.

Because their trial is being held in federal court, it may not be enough of a defense for the family to argue that they were compliant with state law. In a motion filed Wednesday, Michael Ormsby, the U.S. attorney in eastern Washington state involved in the case, requested that "any evidence of medical purposes as well as the defendants' belief that they were lawfully engaged in marijuana cultivation" be inadmissible in court. Ormsby argued that the family's purpose for growing the marijuana is not the issue. Rather, he said, the "knowing or intentional manufacturing of marijuana" is all that matters in this case....

During pre-trial hearings for the case this week, the family unanimously rejected the plea deals offered by the prosecuting attorneys that would have reduced their maximum sentences to just three years behind bars. Without the plea deal, their maximum sentences range from up to 40 years to life in federal prison.

Washington state law allows for licensed medical marijuana patients to grow up to 15 plants and be in possession of up to 24 ounces of usable cannabis. The law also says that no more than 10 qualified patients can participate in a single collective garden. The patients can grow up to 15 plants each, but the garden cannot exceed 45 plants.

Federal authorities are charging the Harvey family with growing "100 or more" marijuana plants -- a charge that dramatically increases related fines and prison sentencing -- alleging that the family had grown a crop in 2011 similar in size to the one seized in the raids the following year. The charge is based on "numerous" photos, found on a seized computer from the residence, that allegedly depict the defendants in the grow at the same location in 2011, according to the motion filed by the U.S. attorney's office....

In their letter to Holder, the defendants' attorneys argued that there is no proof these five people are "perceived to be violent in any way," and say that the firearms had "absolutely nothing to do with the cultivation of cannabis." "This is a mom and pop on a family homestead near a National Wildlife Refuge in the Northeastern corner of Washington, where the nearest town is 10 miles in any direction," the attorneys wrote.

The family's attorneys argue that there is an "equal justice disparity" created by federal drug laws that directly contradict state laws in Washington, where medical marijuana has been legal for well over a decade. "In the very city where the Harvey family is set to stand trial, an ordinance was recently passed to establish groundbreaking licensing requirements for aspiring entrepreneurs in the existing medical marijuana field, as well as those planning to enter the emerging [recreational] marketplace," the attorneys wrote in their letter to Holder. "These conflicting realities cannot co-exist."...

Now that all five defendants have rejected the plea deals, their federal trial is expected to begin later this month. An official from the U.S. attorney's office in eastern Washington familiar with the matter said that the office cannot comment on ongoing cases.

For individuals and groups concerning about excessive federal government involvement in the activities of individuals out West, the Harvey family would seem to be a much more sympathetic cause célèbre than Cliven Bundy. But I have a feeling Sean Hannity and some of the folks quick to back Bundy in his stand-off with the feds are not likely to be championing family values and states' rights in this setting. And, sadly, that seems too bad and a telling indication that political principles may only go so far once pot is involved.

May 2, 2014 in Criminal justice in the Obama Administration, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, April 29, 2014

Judge Paul Friedman identifies drug defendant who should benefit from Clemency Project 2014

I am intrigued and pleased to have learned that this afternoon District Court Judge Paul Friedman issued an opinion in US v. McDade, No. 13-1066 (D.D.C. Apr. 29, 2014) (available for download below), which in part responds to the Justice Department's recent announcements about its new clemency initiative.  I urge all those wondering about the types of defendants and cases that the new clemency initiative might help to read Judge Friedman's new McDade opinion in full; here is a snippet that provides a sense for why:

On February 25, 2002, after a ten-day trial, a jury found defendant Byron Lamont McDade guilty of conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine. Most of the witnesses at trial were his former co-defendants or others involved in the conspiracy who had negotiated pleas with the government involving cooperation and testimony. In fact, McDade was the only one of those charged in this multi-defendant case to have proceeded to trial.  Regrettably, pursuant to the then-mandatory pre-Booker sentencing guidelines, the Court was required to sentence McDade to 324 months in prison, a sentence which the Court described at the time as “much more than sufficiently punitive.”...

At the time the Court sentenced Mr. McDade nearly twelve years ago, on May 31, 2002, he was a 34-year old married man with two young children, one of whom is disabled.  He was a high school graduate who had been employed more or less steadily as a loader for United Parcel Service, as an apprentice for a plumbing company, as a self-employed operator of a company that provided transportation to the handicapped, and as a sanitation truck driver.  He was described by his wife, a hair stylist who suffers from a heart murmur, as a good father to their children and to her son by a prior relationship.   Before his current conviction, Mr. McDade had one prior misdemeanor conviction for which he was ordered to pay a ten-dollar fine. Id. at 10-11. For the instant offense, he faced a ten-year mandatory minimum sentence and, at Offense Level 41, Criminal History Category I, a pre-Booker guideline sentence of 324 months to life.....

In denying Mr. McDade’s first motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, the Court [noted that] ... had Mr. McDade not exercised his constitutional right to a jury trial and instead pled guilty, the likely sentence under even a mandatory Guideline regime would have been approximately 168 months, approximately half the sentence the Court was required to impose after Mr. McDade was found guilty at trial.  [This Court also then noted that] had the Sentencing Guidelines been advisory in 2002, or if Booker were retroactive now, the Court would vary substantially from the Guideline sentence of 324 months....

Earlier this year, Deputy Attorney General James M. Cole previewed a new effort on the part of the Department of Justice to identify individuals who are potential candidates for executive clemency and sentence commutations and whom he hoped, with the help of volunteer lawyers and bar associations, would be encouraged to prepare clemency petitions to the Department of Justice.  He said at the time: “For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair. These older, stringent punishments, that are out of line with sentences imposed under today’s laws, erode people’s confidence in our criminal justice system.”  Then, just last week, Deputy Attorney General Cole formally announced a new initiative to encourage qualified federal inmates to petition to have their sentences commuted or reduced by the President, an initiative that will have the assistance of numerous volunteer attorneys and groups under the umbrella Clemency Project 2014.  He noted that the initiative is not limited to crack offenders, but to “worthy candidates” who meet six specific criteria.  He stated that this clemency initiative “will go far to promote the most fundamental of American ideals – equal justice under law.” 

The Court continues to believe that Byron McDade is a prime candidate for executive clemency.  The sentence this Court was required to impose on Mr. McDade was unjust at the time and is “out of line” with and disproportionate to those that would be imposed under similar facts today.  While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the President is not.  The Court urges Mr. McDade’s appointed counsel to pursue executive clemency on Mr. McDade’s behalf so that justice may be done in this case.

Download McDade opinion

April 29, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, April 28, 2014

Is change at top of The Office of the Pardon Attorney the biggest part of DOJ's new clemency initiative?

The question in the title of this post is prompted by the subheadline of this effective article by Abby Rapoport at The American Prospect. The piece carries the main headline "Pardon Me, Mr. President?", and its subheadline makes this astute observation: "By appointing an advocate for defendants' rights as the new pardon attorney, the Obama administration has signaled it is serious about commuting drug offenses." Here is a snippet from the piece (with a few links preserved, which merits a full read:

The Department of Justice (DOJ) announced the start of a new initiative on clemency, encouraging thousands of inmates — particularly those convicted during the Drug War crackdown of the 1990s — to send in petitions to have their sentences commuted.  The new initiative offers six new criteria by which petitioners will be judged, including the following: prisoners must have served 10 years of their sentence, must not have lengthy criminal records or gang convictions, and show that they would have gotten off with a lighter sentence had they been tried today. In his more than five years in office, Obama has been the stingiest president in history when it comes to granting pardons; the new program could make him one of the most generous.

But the biggest news for criminal-justice reformers has been the administration’s appointment of a new pardon attorney to oversee the program: Deborah Leff, who spent her years at DOJ working on the Access to Justice Initiative, an agency meant to help low-income defendants get a fair hearing in court.  “Poor people often do not have access to counsel, and when they do get an attorney, that lawyer is often overworked, undertrained, undercompensated, and placed in a system that encourages a quick plea bargain and discourages carefully listening to the needs of clients,”  she wrote in an article with Melanca Clark for the American Bar Association. Those who come from the prosecutorial side of things — which is most everyone at the Department of Justice — tend to be more skeptical of the idea that convicted criminals can be reformed. But Leff's background makes her more likely to be sympathetic to requests for clemency.

“One thing about law and particularly this kind of law is that almost always people are more important than rules,” says Mark Osler, a law professor at St. Thomas University and founder of the nation’s first federal clemency clinic (I recently profiled his story in our most recent print issue). “Leff’s work within the DOJ has largely been about making sure that people who have a petition or grievance have a way to have it heard fairly.” For those hoping to see a robust clemency push, her background bodes well. The administration’s clemency criteria have plenty of wiggle room, which makes the selection of a new pardon attorney all the more significant.  The department wants petitions from applicants who are “non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels.”  Depending on how the U.S. pardon attorney exercises her discretion, an offender who grew up with gangs and was loosely affiliated with them could either be an ideal candidate for clemency or excluded altogether. Similarly, petitioners must have “demonstrated good conduct in prison”—a criterion that could include or exclude prisoners with one or two black marks on their records depending on the pardon attorney’s views....

Ron Rodgers, the U.S. pardon attorney until this week, was known for his opposition to clemency requests. Rodgers and David Margolis, the Department of Justice assistant deputy attorney general, both got blasted in a 2012 report for the dramatic mishandling of one particular petition during the Bush regime: Clarence Aaron, who received a triple life sentence for his role a drug conspiracy.

Leff’s appointment helps send a clear signal that this new initiative isn’t just lip service to the reform community, which until now hasn’t seen much action from the Obama administration.  Despite rhetoric in the 2008 election about the casualties of America’s War on Drugs, in his tenure the president had done little to help those still serving decades-long sentences.

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

April 28, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, April 26, 2014

"Not just clemency, but smarter sentencing: Congress must act to make criminal justice more just"

The title of this post is the headline of this recent Washington Times op-ed authored by Craig DeRoche who is president of Justice Fellowship. Here are excerpts:

President Obama’s decision to grant clemency to a large number of nonviolent offenders in federal prison has ignited a much-needed national discussion on criminal justice reform, but voices on both sides are missing some key underlining problems.

Over the past several decades, Congress has passed disproportionate mandatory-minimum sentences for nonviolent offenses that infringe upon the moral and constitutional duties of judges to ensure fair and equitable justice.  As the head of a faith-based organization guided by the Christian values of redemption and transformation, I am called to advocate for a system that values compassion and mercy as necessary policy counterweights to justice.

Justice is giving someone what they deserve, based on the harm they have caused, whereas mercy is extending leniency that is undeserved.  Clemency was designed to be an instrument of mercy, while lawmaking is an exercise of justice.

If the aim of Mr. Obama’s clemency initiative is to correct unjust policy rather than extend mercy in specific cases, then it does nothing to address systematic problem plaguing America’s burgeoning criminal justice system; namely, the disproportionate and ineffective sentencing laws for nonviolent crimes that have led to a federal prison system at 38 percent above capacity.

This unacceptably high level of overcrowding is dangerous for both prison guards and prisoners.  It also diminishes the capacity for faith-based nonprofits such as ours to provide effective programming that helps transform prisoners into law-abiding citizens when they return to our communities.  Not to mention that paying for the skyrocketing federal prison population is essentially accomplished by theft from budgets that formerly went toward victims’ services, prosecutors, investigations and crime-prevention tools.

Some on the political right, in particular members of Congress, object to what Mr. Obama is proposing on the grounds that this is yet another executive action by an imperial president who they think is interfering with the constitutional prerogatives of lawmakers to make policy.

While there is no doubt that both the current and previous occupants of 1600 Pennsylvania Avenue have governed — sometimes questionably — through executive action, the Constitution clearly assigns the power of both clemency and pardons to the chief executive.  This is, in fact, a presidential prerogative inherited by way of ancient English constitutional law, which has always held the head of state to be the lead in executing prosecution, punishment and mercy.

The issue is not whether the president has the power to grant clemency, but rather whether Mr. Obama will overreach with that power in a way that undermines the long-term policy changes that can only be established through Congress’ lawmaking power.  Instead of using clemency as a blunt instrument to fix the broken policies and laws governing the criminal justice system, all three branches of government must work together to rebalance the scales of justice and restore a system that is no longer working for anyone....

Congress and the president have the opportunity to fulfill their constitutional obligations with two pieces of pending legislation that have attracted strong bipartisan support and affirm the growing consensus in support of reforming the criminal justice system.

One of the bills is the Smarter Sentencing Act, which has attracted the co-sponsorship of two polar opposites in the Senate: Mike Lee, a Tea Party Republican from Utah, and Richard J. Durbin, a liberal Illinois Democrat. The other is the Recidivism Reduction and Public Safety Act, co-sponsored by Sen. Sheldon Whitehouse, an unabashed liberal Democrat from Rhode Island, and John Cornyn, a Texas Republican conservative, which passed out of the Senate Judiciary Committee on a 15-2 vote.

This rare consensus should not be taken for granted. Discussions and hearings alone are lip service. If Congress wants to avoid an executive-dominated approach to the challenges facing our criminal justice system, it must take the lead in not only proposing, but passing, long-term solutions. All three branches of government working as our Founding Fathers envisioned will not only show the American public that our democracy still works, but that our society has become a more just one.

April 26, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, April 24, 2014

How many of current federal prisoners satisfy all six of the new DOJ clemency guidelines?

As reported here, yesterday the US Department of Justice announced more formally its plans and criteria for its Clemency Initiative, and this memo by Deputy AG Cole there set forth "six criteria the department will consider when reviewing and expediting clemency applications from federal inmates":

Under the new initiative, the department will prioritize clemency applications from inmates who meet all of the following factors [numbering added]:

  • [1] They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • [2] They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • [3] They have served at least 10 years of their prison sentence;
  • [4] They do not have a significant criminal history;
  • [5] They have demonstrated good conduct in prison; and
  • [6] They have no history of violence prior to or during their current term of imprisonment.

This BOP page indicates that, as of April 24, 2014, there are 216,614 total federal prisoners, and this BOP accounting of sentences imposed indicates that the majority of federal prisoners are serving sentences of less than 10 years. Moreover, I suspect that less than half of the roughly 45,000 federal inmates current serving prison terms of 15 years or more have already served at least 10 years of their prison sentence. In other words, clemency criteria #3 above alone probably cuts the number of possible "priority clemency applicants" down to around 20,000.

In a sound and cautious sentencing system (and likely in most state sentencing systems), there would be relatively few among the group of inmates serving over 10 years in prison who were "non-violent, low-level offenders" who lacked a "significant criminal history" and also have "no history of violence prior to or during their current term of imprisonment."  Nevertheless I fear that in the federal sentencing system under old-mandatory guidelines, there may be thousands of crack offenders and many other drug offenders (and perhaps even some white-collar offenders?), who have been imprisoned for a decade for non-violent, low-level offenses.  

Thanks to the Fair Sentencing Act, many of the crack offenders should be able to state that "by operation of law, [they] likely would have received a substantially lower sentence."  But can any lower-level non-violent drug offender also reasonably make this claim if she was sentenced before Booker? Could these drug defendants point to the now pending drug guideline amendments (as well as Booker) to claim they meet clemency criteria #1?

Long story short, I suspect there may well be perhaps 5000 or more federal prisoner who can make a plausible claim that they meet all six of clemency criteria.

April 24, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (22) | TrackBack

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 (3) | 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 (35) | TrackBack