Thursday, December 01, 2016

Lame (duck) Obama Administration announces series of "sweeping" reforms at the Federal Bureau of Prisons

Download (5)I suppose the cliche phrase "better late than never" should keep me calm when I see notable news these days from the Obama Administration concerning criminal justice reform.  But this DOJ press release from yesterday, which carries the heading "Justice Department Announces Reforms at Bureau of Prisons to Reduce Recidivism and Promote Inmate Rehabilitation," prompts frustration rather than calm because it announces reforms that seem so sound and yet so late.  Here are the substantive highlights:

Today, the Department of Justice announced a series of reforms at the Federal Bureau of Prisons (BOP) designed to reduce recidivism and increase the likelihood of inmates’ safe and successful return to the community. These efforts include building a semi-autonomous school district within the federal prison system, reforming federal halfway houses, covering the cost of obtaining state-issued photo IDs for federal inmates prior to their release from custody and providing additional services for female inmates.

“Helping incarcerated individuals prepare for life after prison is not just sound public policy; it is a moral imperative,” said Attorney General Loretta E. Lynch. “These critical reforms will help give federal inmates the tools and assistance they need to successfully return home as productive, law-abiding members of society. By putting returning citizens in a position to make the most of their second chance, we can create stronger communities, safer neighborhoods and brighter futures for all.”

“The sweeping changes that we are announcing today chart a new course for the Bureau of Prisons that will help make our prisons more effective, our communities safer and our families stronger," said Deputy Attorney General Sally Q. Yates. “One of the best ways to prevent crime is by reducing recidivism, and one of the best ways to reduce recidivism is by equipping inmates with the tools they need to successfully reenter society."

Last year, with the department’s support, BOP retained outside consultants to review the agency’s operations and recommend changes designed to reduce the likelihood of inmates re-offending after their release from prison. As part of today’s announcement, the department is launching a new website, www.justice.gov/prison-reform, that compiles current and ongoing reforms at BOP, and includes the final reports from the outside consultants.

The department announced additional details regarding these efforts:

Building a school district within the federal prison system....

Reforming federal halfway houses....

Covering the cost of state-issued IDs prior to inmates’ release....

Enhancing programs for female inmates....

These initiatives are part of the department’s deep commitment to a fair, effective criminal justice system that promotes public safety and prepare inmates for their return to the community, thereby reducing the likelihood that a cycle of crime will continue.  

I think it neither naive nor unfair to assert that seeking to reduce recidivism and promote inmate rehabilitation should be a very top criminal justice priority for any and every Administration as they take over the reins of the Department of Justice and its (very expensive) Federal Bureau of Prisons.  And I see nothing in these "sweeping" BOP reforms that could not have been effectively pioneered eight years ago in the first few months of the Obama Administration rather than only now in the last few (lame duck) months of the Obama Administration.  in other words, though I am pleased to see these late-in-the-day federal prison reform efforts, I cannot help but respond to these new developments with the frustrating feeling that DOJ and BOP during the most of the Obama years were mostly "asleep at the wheel" when it came to critical public safety prison reform priorities.  

Sigh and Grrr.

December 1, 2016 in Criminal justice in the Obama Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (7)

Tuesday, November 22, 2016

Prez Obama grants 79 move commutations, taking his total over 1000 for his administration

Download (22)As reported in this new Washington Post article, headlined "Obama grants 79 more commutations to federal inmates, pushing the total past 1,000," the outgoing President has decided to make some clemency news before turning torward Turkey Day festivities. Here are the basics from the start of this article:

President Obama granted commutations to another 79 federal drug offenders Tuesday, pushing the number of inmates he has granted clemency past 1,000.

Obama’s historic number of commutations was announced as administration officials are moving quickly to rule on all the pending clemency applications from inmates before the end of the year. The Trump administration is not expected to keep in place Obama’s initiative to provide relief to nonviolent drug offenders.

“The President’s gracious act of mercy today with his latest round of commutations is encouraging,” said Brittany Byrd, a Texas attorney who has represented several inmates who have received clemency since Obama’s initiative began in 2014. “He is taking historic steps under his groundbreaking clemency initiative to show the power of mercy and belief in redemption. Three hundred and forty two men and women were set to die in prison. The President literally saved their lives.”

The White House and the Justice Department were criticized by sentencing reform advocates earlier this year for moving too slowly in granting commutations to inmates serving harsh sentences who met the criteria for clemency. The administration has greatly picked up the pace, but advocates still want them to move faster before time runs out.

“At the risk of sounding ungrateful, we say, “thanks, but please hurry,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We know there are thousands more who received outdated and excessive mandatory sentences and we think they all deserve to have their petitions considered before the president leaves office. Petitioners are starting to get anxious because they know the president is, in prison parlance, a short-timer.”

On a press call this afternoon (which is available here), Deputy Attorney General Sally Q. Yates delivered remarks that included these sentiments:

As of this morning, President Obama has granted clemency to over 1,000 men and women who were incarcerated under outdated sentencing laws.

The number 1,000 is significant, but it’s important to remember that this is more than a statistic. There are 1,000 lives behind that number, 1,000 people who had been sentenced under unnecessarily harsh and outdated sentencing laws that sent them to prison for 20, 30, 40 years, even life, for nonviolent drug offenses. It's part of my job to review the petitions for each of these individuals, and I've been struck by the common threads woven through many of them — lack of access to education or real economic opportunity, absence of parents, drug addiction, hopelessness.  But in these petitions I've also seen something else — remarkable introspection, a real sense of responsibility for their conduct, and a dogged determination not to repeat the mistakes of the past and to ensure that they, and especially their children, chart another path.

The President has given these 1,000 individuals that opportunity. And while we are a nation of laws, and those who violate those laws must be held accountable, we are also a nation of second chances.  The mission of the Justice Department not only supports but demands that we do everything in our power to ensure that our criminal justice system operates fairly. In this case, that means reducing disproportionate sentences imposed under out-of-date laws. And we are privileged to serve a President who has not only taken on this responsibility himself, but who has given us the chance to fulfill our core charge to seek justice....

And a lot of work has gone into the clemency initiative to get us to this historic announcement today. Since the initiative was announced in 2014, thousands of petitions have been submitted and reviewed by the hard working attorneys in the Office of the Pardon Attorney, my office, the Office of the Deputy Attorney General, and the White House to identify nonviolent drug offenders whose sentences would be significantly lower if they were sentenced today.  While we are proud of the progress we’ve made so far, as I have said before, our work is still not done.  We will continue to make recommendations on clemency applications until the end of the Administration, fulfilling the goals we set more than two and a half years ago when we launched the clemency initiative.

November 22, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Wednesday, November 16, 2016

A few (of many, many, many) reasons I am rooting really, really, really hard for Ted Cruz to be our next Attorney General

CruzI am so excited by this developing news that Ted Cruz is perhaps going to be our nation's next Attorney General.  Let me report the basic news and then set out just a few reasons why I think all Americans who are committed to the rule of law — including the most ardent Trump supporters and especially the most ardent Trump haters — should want Prez-Elect Trump to be calling Cruz, rather than, "Lyin' Ted," Attorney General Rafael Edward Cruz:

President-elect Donald Trump is considering nominating Texas Senator Ted Cruz to serve as U.S. attorney general, according to a person familiar with the matter.

Cruz, 45, was at Trump Tower in New York on Tuesday. When approached by reporters on his way out, Cruz said the election was a mandate for change but didn’t say he was under consideration for a job.

Cruz unsuccessfully sought the Republican presidential nomination. He and Trump were at odds during the primary, viciously attacking one another. Trump nicknamed Cruz “Lyin’ Ted.” Cruz didn’t endorse Trump during a speech at the Republican National Convention in Cleveland. In September, relations between the two men seemed to improve when Cruz said he would vote for Trump.

I could likely write a hundred posts explain why everyone interested in criminal justice reform generally, or sentencing reform and marijuana reform in particular, should be much more excited about Ted Cruz as Attorney General than any of the other names that have been floated. For now, I will just start with the three main reasons I am so thrilled:

1. The profoundly personal: Like far too many people, I tend to assume people who have a similar background to me think a lot like me. Ergo, I must admit that my (unhealthy?) "man love" for Ted Cruz may have a lot to do with these aspects of his background (via Wikipedia):

Cruz graduated cum laude from Princeton University in 1992 with a Bachelor of Arts in Public Policy from the Woodrow Wilson School of Public and International Affairs.... Cruz's senior thesis at Princeton investigated the separation of powers; its title, Clipping the Wings of Angels, draws its inspiration from a passage attributed to US President James Madison: "If angels were to govern men, neither external nor internal controls on government would be necessary." Cruz argued that the drafters of the Constitution intended to protect the rights of their constituents, and that the last two items in the Bill of Rights offer an explicit stop against an all-powerful state.

After graduating from Princeton, Cruz attended Harvard Law School, graduating magna cum laude in 1995 with a Juris Doctor degree. While at Harvard Law, he was a primary editor of the Harvard Law Review...

Cruz married Heidi Nelson in 2001. The couple has two daughters, Caroline and Catherine.... She is currently taking leave from her position as head of the Southwest Region in the Investment Management Division of Goldman, Sachs & Co. and previously worked in the White House for Condoleezza Rice and in New York as an investment banker. Cruz has joked, "I'm Cuban, Irish, and Italian, and yet somehow I ended up Southern Baptist."

As some readers may know, I graduated from the same university and law school as Senator Cruz (two years earlier, so I never met him), and I also was extremely lucky to meet and marry a beautiful blonde woman who is a lot different than me (and smarter than me) and who has blessed me with two daughters.

2. The principled political: I have long been impressed with Cruz's willingness and eagerness to combine political acumen with principled commitments. Though I tend not to be a fan of the tactic of shutting down the government, I am a fan of anyone who will be driven even to the point of serious career risk to make a principled stand based on principled beliefs.  This Cruz character was on display throughout the 2016 campaign: at first, before the voting started, Cruz worked with Donald Trump because he say Trump as a voice for outsiders.  Once the voting started, Cruz treated Trump with respect and also tried to highlight how he was more principled and had more personal character than Trump.  Then, rather than avoid going to the Republican National Convention (as did Gov John Kasich and other establishment types that Trump defeated), Cruz went into the Trumpian lion's den and told all Republicans and all Americans to vote their conscience.

Now that Americans in key states have all voted their conscience and Trump is Prez-Elect, Cruz is not licking his wounds and plotting how to make Trump fail.  Instead, Cruz is apparently willing and perhaps eager to serve all Americans in the Executive Branch after a number of years in which he served only Texans in various ways as a state official and then as a US Senator.  Moreover, this past political history (not to mention his Princeton University senior thesis) would seem to ensure that Cruz would not serve as a Trump toady as Attorney General.  I make this point because I think the last two Presidents first selected (ground-breaking) accomplished lawyers to serve as attorney general (Alberto Gonzales and Eric Holder) who were, in my view, not-very-successful in part because they were perceived to be (and likely were) far too cozy personally and politically with the President.

3. Criminal justice reform:  There are dozens of reasons I think an Attorney General Cruz would be great for adding momentum to the criminal justice reform movement.  I will not try to list all those reasons here and will just instead link to prior posts on this blog highlighting some reasons I sincerely hope I get to talk about Attorney General Cruz on this blog in the coming months and years, with a few posts emphasized that I think everyone MUST read ASAP:

"On Criminal Justice Reform, Ted Cruz Is Smarter Than Hillary Clinton"

Are Senators Mike Lee and Ted Cruz now back on the same page with respect to sentencing reform?

Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?

"The Prison Reformer Who Champions Ted Cruz"

Shouldn't true fiscal conservatives question a federal program with 600% recent spending growth?

"Criminal Sentencing Reform: A Conversation among Conservatives"

Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform

November 16, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (22)

Tuesday, November 15, 2016

"Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"

The title of this post is the headline of this astute new BuzzFeed News article that flags some issues and raises various questions that I have been thinking a lot about ever since last Wednesday around 2am. Here are highlights:

In recent months, President Obama has stepped up the pace of federal clemency — issuing three large batches of commutations in the month before the presidential election. The White House has regularly pushed those numbers as evidence that Obama has done more than his predecessors to address unfairness he has criticized in criminal sentencing.

But now that he is due to be replaced by Donald Trump, who ran in part by saying he would be a “law and order” president, leading advocates of the clemency process say it is the time for Obama to step up and do more. “[I]f President Obama believes these sentences are unjust, it is his constitutional responsibility to fix them,” Rachel Barkow, a member of the United States Sentencing Commission and NYU law professor, told BuzzFeed News this week....

To that end, the group, co-founded by Van Jones, will be in Washington this week, holding a series of events — including a vigil in front of the White House on Monday evening — urging Obama to take “unprecedented” action on clemency in the coming months.

Mark Osler, a law professor at the University of St. Thomas School of Law, acknowledged that time is short. “I think there will be — and should be — a sense of urgency,” he said on Friday. “I think the clearest thing is to find efficiencies — find ways to look at more people over these last weeks in a way that’s consistent and effective, in terms of evaluation. And that means, probably, looking at categories of people and identifying them specifically.”

Specifically, he pointed to “people who did not get the benefit of the Fair Sentencing Act in 2010” — which addressed cocaine-to-crack sentencing disparities in federal law, but was not retroactive. As such, Osler explained, many people “were stuck with a life sentence or the 10-year mandatory [minimum]” who could not receive that sentence today....

There has, though, been an election — one that likely will reflect at least somewhat different values on criminal justice issues, Osler acknowledged. “It’s fair to say that those people within this administration are very aware that the amount of care that they give to criminal law — and the excesses of criminal law — probably won’t be reflected in the next administration,” he said. Nonetheless, Osler said that Obama’s two elections more than suffice as a rationale for why Obama should continue pressing forward with the Clemency Project in his final months in office. “He’s the elected president until January 20, 2017,” he said. “I don’t think you sit back and don’t make full use of every day that you have.”

Barkow put it in similarly broad terms — but with a historical context. “Clemency is critical to an effective federal criminal justice system,” Barkow noted, pointing out that Alexander Hamilton wrote in The Federal Papers about the important role clemency plays in the American system. “The President has only a couple months to reach everyone. The fate of these people and their loved ones rests in his hands, and one of his lasting legacies can be to reaffirm Hamilton’s view that both ‘humanity and good policy’ require the broad use of the pardon power.”

In addition to my adoration for Rachel Barkow's always-timely Hamilton reference (and how it made me think of one of my favorite songs), I especially like Mark Osler's discussion of both the challenges and justifications for Prez Obama going bold on clemency over the next two months. For reasons I have explained in this Veterans Day post, I would especially love to see Prez Obama go bold in granting clemency for any and all veterans serving distinctly long federal sentences or still burdened by a federal conviction long after any public safety rationales for continued punishment have been extinguished.

Sing along with me Prez Obama and fellow clemency fans (with apologies to Lin-Manuel Miranda):

Prez Washington:

I wanna talk about [clemency righting]
I want to warn against partisan fighting
Pick up a pen, start writing
I wanna talk about what I have learned
The hard-won wisdom I have earned...
The people will hear from me
One last time
And if we get this right
We’re gonna teach ‘em how to say Goodbye
You and I—

Sec. Hamilton:

Mr. President, they will say you’re weak

Prez Washington:

No, they will see we’re strong

Sec. Hamilton:

Your position is so unique

Prez Washington:

So I’ll use it to move them along

Sec. Hamilton:

Why do you have to say goodbye?

Prez Washington:

If I say goodbye, the nation learns to move on
It outlives me when I’m gone
Like the scripture says:
“Everyone shall sit under their own vine and fig tree
And no one shall make them afraid.”
They’ll be safe in the nation we’ve made
I wanna sit under my own vine and fig tree
A moment alone in the shade
At home in this nation we’ve made
One last time

November 15, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, November 12, 2016

A quick take on the Obama sentencing era and its 2016 ending

As I reflect on the emotions and uncertainty resulting from Donald Trump now being our Prez-Elect, my thoughts keep wandering back to this time eight years ago when Barack Obama had just been elected after campaigning on the slogans hope and change.  Due to my intense interest in sentencing reform changes of so many varieties, I was cautiously optimistic that the Obama era might usher in a profound new world order for the operation of federal and state criminal justice systems.  

But now I look back and have to conclude that the Obama sentencing era, generally speaking, was filled with way too much hope and not nearly enough change.  And it strikes me that for a lot of voters this past week who rejected Democratic candidates, the Obama era for them was perceived to be filled with way too much change and not nearly enough hope.

November 12, 2016 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (3)

Friday, November 11, 2016

How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?

Veterans-day-20131The question in the title of this post are inspired by today's national holiday, Veterans Day.  Here are some general data thoughts/realities as part of an effort to try to answer these questions:

1.  According to these latest BJS statistics, we can reasonably estimate that at least 5% of the current federal prison population are veterans.  The BJS report starts by noting that "In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."  But a variety of demographic realities would suggest that veterans are probably underrepresented among the types of prisoners serving time in federal prison. 

2. So, to answer my first question based on this working estimate of at least 5%, we should expect that nearly 50 of the 944 federal prisoner commutations by Prez Obama have been to veterans.  But this is really a statistical guess because there could be direct or indirect reasons why veteran status made a candidate more likely to garner Prez Obama's attention or why the pool of long-sentenced drug offenders now only getting clemency these days are less likely to include veterans. 

3. And, to answer my second question based on this working estimate of at least 5%, we should expect that nearly 10,000 veterans make up of current federal Bureau of Prisons population which totals over 191,000.  If we were to entertain the supposition that only 1 out of every 100 current veteran federal prisoners are likely to be good candidates for clemency, that would still mean 100 current federal prisoners would now be commutation-worthy.  (And, if we want to think about all veterans with a federal conviction who might seek or merit a pardon, there could well be thousands of good veteran clemency candidate worth thinking about on this Veterans Day.)  

Though the day is still young, I am not expecting that Prez Obama will celebrate his last Veterans Day in the Oval Office by making a special effort to grant commutations or pardons to a special list of veterans.  But Prez-Elect Trump, who made taking care of the vets a consistent campaign theme, perhaps might be encouraged by sentencing reform advocates to plan to celebrate his future Veterans Days in the Oval Office by looking to use his clemency powers in this kind of special and distinctive way.  After all, a key slogan for this day is to "honor ALL who served," not just those who stayed out of trouble after serving.

Some very old prior related posts: 

November 11, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, November 10, 2016

"Revitalizing the Clemency Process"

The title of this post is the title of this recent lengthy article authored by Paul Larkin which is available via SSRN (and which I hope someone can now put on the required reading list for the Trump transition team).  Here is the abstract:

St. Anselm once asked how a perfectly just God could also be merciful, since perfect justice and almighty grace could not seemingly coexist.  Fortunately, the criminal justice system does not need to answer that question, one that has proven inscrutable for theologians and philosophers, because its assumptions do not apply to our system.  An earthly judicial system will never be able to administer justice perfectly and cannot disburse mercy even approaching the quality of the divine.  But the clemency power can try to achieve as much of an accommodation between those two goals as any human institution can.  Unfortunately, however, our recent span of presidents, attuned more to political than humanitarian considerations and fearing the electoral wrath of the voters for mistaken judgments, have largely abandoned their ability to grant clemency in order to husband their political capital for pedestrian undertakings.  Far worse, others have succumbed to the dark side of “the Force,” have used their power shamefully, and have left a stain on clemency that we have yet to remove.

We now have reached a point where that taint can be eliminated.  There is a consensus that the clemency process can and should be reformed.  The problem lies not in the power itself, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions.  The Office of the Pardon Attorney should be transferred from the Department of Justice to the Executive Office of the President, and the President should select someone to fill that position.  That revision to the clemency process should help us see a return of the necessary role that clemency can play in a system that strives to be both just and merciful.

November 10, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Wednesday, November 09, 2016

Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election

In my effort to make sense of the various Election 2016 realities, these early stories and data points caught my attention:

1. Popular vote realities in 2012 and 2016

Popular vote totals in 2012: Obama 65,915,795; Romeny 60,933,504; Johnson + Green 1,745,579  (total vote = 128.6 million)

Popular vote in 2016 (as of now): Trump 59,007,205; Clinton 59,132,664; Johnson + Green 5,195,998 (total vote = 123.3 million)

In other words, as of this writing, there were roughly 5 million fewer voters total in 2016 compared to 2012 and also roughly 3.5 million more of those who did vote in 2016 voted for one of the third party candidates.  

2.  Younger voters in 2016

As Nate Silver flagged here: "While the third-party vote wasn’t all that high tonight overall, an exception came among younger voters. According to the national exit poll, 9 percent of voters ages 18 to 29 went for third parties, as did 8 percent of voters ages 30 to 44." And until I see data to the contrary, I would guess that younger voters (especially younger minority voters) comprise a large portion of the roughly 5 million "missing" voters in 2016.

As the title of this post is meant to reveal, I already have my own (self-serving?) theories for why so many fewer folks showed up to vote in 2016 and for why so many younger progressive voters were much more eager to vote for third-party candidates.  Put simply, the tendency this cycle for Democrats (a) to nominate cautious insiders — like HRC for Prez and Ted Strickland for Senate in Ohio — and (b) to make cautious insider moves on a number of major high-salience law and policy issues — like Prez Obama nominating Merrick Garland for SCOTUS and HRC not taking up the populist cause of marijuana reform — led to a whole lot of folks not being excited enough to show up to vote and led to a whole lot of those folks showing up not being excited enough by Democrats to vote for their candidates.

In some prior posts in this space, I have highlighted some reasons why I considered the Merrick Garland nomination to be a big political mistake for Democrats:

And over at my Marijuana Law, Policy and Reform, here were my posts from last night detailing the remarkably large number of folks in a large number of states who rejected suggestions by all sorts of cautious insiders (of both parties) to slow down the rapidly-moving marijuana reform movement:

November 9, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Friday, November 04, 2016

Another week and another big batch of clemencies from Prez Obama

As this new USA Today article highlights, "President Obama's decision to grant 72 more commutations Friday — just before getting on Air Force One for a two-city campaign tour of North Carolina — shows how far he's gone in his efforts to "reinvigorate" the pardon process." Here is more:

Just a year ago, it might have been unthinkable for a president to use his constitutional power to shorten sentences so close to an election, regardless of who's on the ballot. "Commutations a week before an election? That's a wow factor of 10!" said P.S. Ruckman Jr., a political scientist who has studied, among other things, the timing of presidential clemency.

Obama has now granted 170 commutations in just the past eight days, bringing the total for his presidency to 944. It's the largest number of commutations in any single year in history, and represents an exceptional "surge" in the president's clemency power in his last year.

"What President Obama has done for commutations is unprecedented in the modern era." White House Counsel Neil Eggleston said in a statement. "The president is committed to reinvigorating the clemency authority, demonstrating that our nation is a nation of second chances, where mistakes from the past will not deprive deserving individuals of the opportunity to rejoin society and contribute to their families and communities."

Most of Obama's pardons have been through his clemency initiative, which seeks to reduce the long mandatory-minimum sentences meted out under sentencing guidelines from the late 1980s through the 2000s....

The frequency with which Obama is now granting commutations has encouraged some advocates who had been urging the president to "vastly increase the pace" of the effort. "The Obama administration has said it was committed to ever more grants, and it seems quite clear that the president’s actions are matching his words," said Cynthia Roseberry, the manager for Clemency Project 2014, a coalition of lawyers working on commutation cases to present to the president....

Of the 72 commutations granted Friday, 17 were for inmates serving life sentences.

November 4, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, November 01, 2016

Two new Washington Post commentaries making federal sentencin reform sound (way too) easy

The "In Theory" section of the Washington Post now has posted two notable new commentaries about prison reform.  Here are the authors, full titles and links:

Here is how the second of these two commentaries gets started:

When our next president enters the Oval Office, she or he will be faced with two questions: First, how to make a mark as president ? Second, how to break through gridlock in Congress?

Prioritizing reducing our prison population is one way to achieve both goals. Most Republicans and Democrats agree: Mass incarceration devastates communities of color and wastes money.  Even Hillary Clinton and Paul Ryan see eye-to-eye. Committing to such reform in the first 100 days would make a lasting and imperative change.

Regular readers will not be surprised to know I support the spirit and much of the substance of these two commentaries.  But the "can-do" talk and the direct or indirect suggestion that this kind of reform should be "easy for the next president" really seem to me to miss the mark.  After all, Prez Obama and House Speaker Paul Ryan and current Senate Judiciary Chair Chuck Grassley all right now largely "see eye-to-eye" on the importance of "reducing our prison population."  And yet, despite diligent work by lots and lots of folks on the federal reform front for more than two years now, Congress has so far been unable to get any kind of significant criminal justice reform bill to the desk of Prez Obama. 

Though I know the 2016 election is certain to disrupt the existing political status quo, I do not know if anything that happens at the voting booth next week can make it that much easier for the folks inside the Beltway to find their way to turn all sorts of talk into actual statutory reforms.  I sure hope advocates like those who authored these commentaries keep talking up the importance of making criminal justice reform a priority in 2017.  But, as I have been saying for too many years already, I am not counting any federal sentencing reform chickens until they are fully hatched.

November 1, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Monday, October 31, 2016

Terrifically timed Northwestern JCLC symposium to ask "The Death Penalty's Numbered Days?"

Sent_yearI am so very fortunate and pleased and excited that at the end of next week — and less than 100 hours after the most significant and consequential elections for the future of the American death penalty — I am going to have a chance to participate in this amazing symposium being put on by Notherwestern Law's Journal of Criminal Law and Criminology.  The title given to the event is "The Death Penalty's Numbered Days?", and this symposium page provides the schedule of panels and speakers.  Here is how the web coverage introduced the event while also providing this quote from a notable recent SCOTUS dissent:

The Journal of Criminal Law and Criminology, with the significant support of the Irving Gordon Symposia Fund, is proud to announce the upcoming symposium, entitled "The Death Penalty's Numbered Days?"  Since the 1970's, the existence and implementation of the death penalty has changed and evolved, as has the way the legal system and its various actors view and talk about the issue.  This symposium, which includes a diverse group of some of the foremost scholars on the death penalty, will explore recent developments and attempt to provide a prognosis on the future application of the death penalty in the United States.  Attendees will be eligible for up to 5 CLE credits, and no registration is necessary.  Please direct any questions to our Symposium Director, Erica Stern, who can be reached at ebstern@nlaw.northwestern.edu.

Friday, November 11, 2016, 9:00 a.m. - 5: 00 p.m.

Thorne Auditorium, Northwestern University School of Law, 375 E. Chicago Avenue, Chicago, IL 60611

“Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court's view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. . . . The circumstances and the evidence of the death penalty's application have changed radically since then. Given those changes, I believe that it is now time to reopen the question.” ~ Justice Stephen Breyer, Dissenting Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015).

Though I am not yet sure about exactly what I will have say at this event, one theme I will be eager to stress in my comments is my strong belief that modern "evidence" concerning "the death penalty's application" actually suggests that this punishment is being imposed much more reliably and much less arbitrarily since President William J. Clinton left office.

As this DPIC chart and data reveal, during the William J. Clinton years (from 1993 to 2001), the United States averaged over 280 death sentences annually nationwide.  Over the course of the next eight years (the George W. Bush years), the annual number of death sentences imposed throughout the United States declined by about 50% down to around 140 death sentences per year.  And, over the last eight years (the Barack H. Obama years), we have seen yet another 50% reduction in annual death sentences imposed as we approach a BHO-term average of around 70 death sentences per year.  The year 2015 hit a remarkable historic low of only 49 total death sentences imposed nationwide, and I believe 2016 is going to see a similar or even smaller number of total death sentence once the year's accounting gets completed.

For a bunch of reasons I hope to explain at this symposium, Justice Breyer's sincere concerns about death sentences being often imposed arbitrarily and unreliably seem to me to have been especially trenchant when he was first appointed to SCOTUS.  At that time, states throughout our nation were imposing, on average, five or six death sentences every week.  Fast forward more than two decades, and the evidence of death sentencing reveals that, circa 2016, states throughout the nation are now imposing less than a single death sentence every week.  I strongly believe our death sentencing systems have become much, much more reliable and much less arbitrary as we have gotten much, much more careful about how gets subject to capital prosecution and about who ultimately gets sent to death row.

October 31, 2016 in Criminal justice in the Obama Administration, Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, October 26, 2016

Has DOJ's "Smart on Crime" initiative had a big impact in federal white-collar sentencing outcomes in recent years?

It has now been more than full three years since then-Attorney General Eric Holder made his historic speech to the American Bar Association (reported here and here) about excessive use of incarceration in the United States.  In that speech, AG Holder announced the US Justice Department's "Smart on Crime" initiative while making the case that "too many Americans go to too many prisons for far too long and for no good law enforcement reason" and that "widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable." At the time, and subsequently as a result of officials' comments (including 2015 remarks by then AG Holder and 2016 statements by now AG Loretta Lynch and Deputy AG Sally Yates), much has been made about the impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of federal drug offenders.

But recently, as the question in the title of this post suggests, I have been thinking about, and wondering if there is a good way to assess, the possible impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of white-collar offenders.  Critically, as I have noted to a number of courts in a number of ways in a number of settings, DOJ's public "SMART on CRIME" materials uses a lot of language that applies to, and should impact, how non-violent white-collar offenders are sentenced.  For example, DOJ has stressed the importance of alternatives to incarceration for all non-violent offenders while advocating a "shifting away from our over-reliance on incarceration" to reflect the reality that "[f]or many non-violent, low-level offenses, prison may not be the most sensible method of punishment." And AG Holder's speech was not only focused on drug offenses or offenders when he emphasized excessive incarceration "comes with human and moral costs that are impossible to calculate," and when he stressed that "the judiciary [can] meet safety imperatives while avoiding incarceration in certain cases."

Notably, as some links above highlight, DOJ officials have in 2015 and 2016 documented and promoted how DOJ's "Smart on Crime" initiative has impacted the case processing and sentencing of federal drug offenders.  But, perhaps unsurprisingly in these political times, DOJ officials have not said a word (at least that I have seen) about how DOJ's "Smart on Crime" initiative might be impacting white-collar cases (or really any other non-drug cases).

Against that backdrop, I took another look this week at recent US Sentencing Commission data published through its great Quick Facts series on Theft, Property Destruction, & Fraud and Tax Fraud.  These two reports seem to cover, roughly speaking, the pools of white-collar cases I have in mind that might be readily impacted by "Smart on Crime" talk about reduced reliance on lengthy terms of imprisonment.  And, perhaps significantly, two notable parallel sentencing "trends" were reported in these USSC documents:

These two data notes are not, of course, conclusive qualitative proof that DOJ's "Smart on Crime" initiative has had a big impact on federal white-collar sentencing outcomes in recent years.  But it does suggest something is helping to "move the sentencing needle" in these kinds of cases in recent years.  Relatedly, I would love to hear in the comments or some other way any and all reports (dare I say "qualitative" evidence) from white-collar sentencing practitioners concerning whether they think what AG Holder said and DOJ did as part of its "Smart on Crime" initiative back in 2013 is having a continual tangible impact on case processing and sentencing in non-violent fraud and other white-collar cases.

October 26, 2016 in Criminal justice in the Obama Administration, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Monday, October 24, 2016

Is the death penalty in the United States really "nearing Its end"?

The question in the title of this post is prompted by this notable new New York Times editorial headlined "The Death Penalty, Nearing Its End."  Here is the full text of the editorial:

Although the death penalty is still considered constitutional by the Supreme Court, Americans’ appetite for this barbaric practice diminishes with each passing year.  The signs of capital punishment’s impending demise are all around.

For the first time in nearly half a century, less than half of Americans said they support the death penalty, according to a Pew Research poll released last month.  While that proportion has been going down for years, the loss of majority support is an important marker against state-sanctioned killing.

At the same time, executions and new death sentences are at historic lows, and each year they go lower. In 2015 only 49 new death sentences were handed down, the lowest one-year total since the Supreme Court reinstated capital punishment in 1976.

Since there were about 14,000 murders around the country last year, it’s easy to imagine that the small number of newly condemned people shows that the justice system is focusing on the “worst of the worst.”  But that’s wrong. In fact the crimes of the people sentenced to death are no worse than those of many others who escape that fate. Rather, nearly all of last year’s death sentences came from a tiny fraction of counties with three common features: overzealous prosecutors; inadequate public defenders; and a pattern of racial bias and exclusion. This was the key finding of a two-part report recently issued by the Fair Punishment Project at Harvard Law School.

Even in the most death-friendly counties, public support appears to be fading. In two of the worst — Duval County in Florida and Caddo Parish in Louisiana — local prosecutors lost elections at least partly due to voters’ concerns about their stance on the death penalty. In other counties around the country, prosecutors are finding that aggressive advocacy for death sentences isn’t the selling point with the public that it once was.

In some of the biggest states, death-penalty systems are defunct or collapsing. Earlier this month, the Florida Supreme Court struck down a terrible state law that allowed nonunanimous juries to impose death sentences — increasing the likelihood that innocent people and those with intellectual or mental disabilities would be condemned.  A large number of Florida’s 386 death-row inmates could now receive new sentencing trials, or have their sentences thrown out altogether.

In California, which hasn’t executed anyone since 2006 even though more than 740 inmates sit on death row, voters will decide in November whether to eliminate capital punishment for good. A similar ballot initiative in 2012 was narrowly defeated. In 2014, a federal judge ruled that the state’s decades-long delays in capital cases violated the Eighth Amendment’s ban on cruel and unusual punishment. (The decision was overturned by an appeals court on technical grounds the following year.)

While capital punishment is used rarely and only in some places, only a definitive ruling from the Supreme Court will ensure its total elimination. How close is the court to such a ruling? In recent dissenting opinions, three of the justices — Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor — have expressed deep misgivings about the death penalty’s repeated failure to meet the requirements of due process and equal protection. Justice Breyer has said it is “highly likely that the death penalty violates the Eighth Amendment,” and has called for the court to consider whether it is constitutional at all.

The death penalty has escaped abolition before, but there are no longer any excuses: The nation has evolved past it, and it is long past time for the court to send this morally abhorrent practice to its oblivion.

I wonder if anyone who is a strong supporter of capital punishment will write (and get published) a response to this editorial which might be headlined something like "The Death Penalty, Poised for a Big Comeback."  That response might highlight that, according to polls in deep blue California, voters there are seemingly going to provide "majority support" for making more efficient in California "state-sanctioned killing."  That response might highlight that, in swing state Ohio, executive officials have been working extra hard to get the state's machinery of death operative again and have execution dates scheduled for nearly two dozen condemned murderers in 2017 and 2018.  That response might highlight that, in swing state Florida, the state legislature has been quick and eager to retain and revise its death penalty statutes every time a court has found constitutional problems with its application.  That response might highlight that, in deep blue Massachusetts, a federal jury in 2015 wasted little time in deciding that “worst of the worst” capital defendant Dzhokhar Tsarnaev should be condemned to die for his crime.  And that response might highlight that, in the most liberal national criminal justice administration of my lifetime, federal prosecutors of the Obama Administration were seemingly eager to pursue capital charges against the Charleston Church shooter Dylann Roof.

I could go on and on (mentioning, inter alia, developments in Alabama, Oklahoma, Nebraska and elsewhere), but my main point here is highlight the critical reality that the description of "death-penalty systems [as] defunct or collapsing" is largely a product of effective litigation by abolitionists and the work of courts, not really a reflection of a sea-change in public opinion or radical changes in the work of most legislatures and prosecutors in key regions of the United States.  The NYTimes editorial board my be right that we may soon see litigation by abolitionists achieve the ultimate success in the courts by having the Justices of the Supreme Court declare the death penalty per se unconstitutional.  But, absent some surprising political and social developments over the next few years, would-be abolitionists ought to be careful about counting chickens too soon.

October 24, 2016 in Baze and Glossip lethal injection cases, Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, October 06, 2016

Prez Obama commutes 102 more federal prison sentences

I just saw via various news sources that President Obama issued 102 more commutations this afternoon.  This blog post by the White House counsel reports the basics, and here is how it gets started:

Today, President Obama granted commutations to another 102 individuals who have demonstrated that they are deserving of a second chance at freedom.  The vast majority of today’s grants were for individuals serving unduly harsh sentences for drug-related crimes under outdated sentencing laws. With today’s grants, the President has commuted 774 sentences, more than the previous 11 presidents combined.  With a total of 590 commutations this year, President Obama has now commuted the sentences of more individuals in one year than in any other single year in our nation’s history.

While he will continue to review cases on an individualized basis throughout the remainder of his term, these statistics make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process. Beyond the statistics, though, are stories of individuals who have overcome the longest of odds to earn this second chance.  The individuals receiving commutation today are mothers and fathers, sons and daughters, and in some cases grandparents.  Today, they and their loved ones share the joy of knowing that they will soon be reunited.

October 6, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Tuesday, September 27, 2016

"Why Nobody's Talking About the Supreme Court"

The title of this post is the headline of this timely and interesting post-debate Bloomberg View piece by Noah Feldman. Here are excerpts:

The U.S. Supreme Court didn’t come up Monday in the first presidential debate, and so far, it hasn’t been an important campaign issue. Given the unprecedented vacancy during an election season, that seems weird. But there is an explanation: The election’s consequences for the court are asymmetrical for the two political parties.

If the Democrat, Hillary Clinton, is elected, it will change the court’s balance, either through the confirmation of President Barack Obama’s nominee, Judge Merrick Garland, in the lame-duck session or with the appointment of Garland or another liberal after she takes office.  If the Republican, Donald Trump, is elected, all he can do is replace the late Justice Antonin Scalia with another conservative. That won’t change the court’s political balance.  For that to happen, Trump would need Justice Ruth Bader Ginsburg or Justice Stephen Breyer to be unable to serve, which won’t happen voluntarily for either in the first four years of a Trump presidency.

The result of this asymmetry is that neither candidate has much reason to put the Supreme Court front and center.  Clinton can try to appeal to her base by promising to reshape the Supreme Court, which is an inspiring vision for some liberals, to be sure.  But it isn’t good politics for her to trumpet a liberal transformation of the court when she’s trying to win over the median voter, who may well be skeptical of more judicial activism.

What’s more, Clinton lacks a signature constitutional issue that would make liberals excited about a progressive majority.  That’s because much of the liberal constitutional agenda has been achieved in the last two years, courtesy of Justice Anthony Kennedy.  He wrote the gay-marriage decision in 2015. In 2016, he delivered an opinion protecting affirmative action in higher education. He also provided the deciding vote in the Texas abortion case, safeguarding the abortion right for another generation.  With these decisions, Kennedy effectively took away the sense of constitutional fear and desperation that might otherwise be haunting liberals alongside the possibility of a Trump presidency....

For Trump, the calculus is a little different.  He can’t credibly promise to be a change agent when it comes to Supreme Court appointments. All he can do is say he will hold the line by appointing a conservative -- and indeed he has by releasing the names of 21 possible nominees.  That might have been enough to win over Texas Senator Ted Cruz, if you take Cruz’s word for his flip-flop on endorsing Trump.  But Trump doesn’t really like to depict himself as a movement conservative trying to preserve the status quo. His message is all about how things are broken.  Even if he chose to say that the Supreme Court got it wrong on gay marriage, abortion rights and affirmative action, he can’t say that he would be able to appoint justices who would change those results.

Furthermore, diehard conservatives who care about the Supreme Court are sophisticated enough to understand that they’ve lost on the big-ticket issues that have mattered most to them over the last 20 years. They know the court won’t immediately reverse itself.  Activist legal conservatives are focused mostly on preserving religious liberty in the aftermath of the gay-marriage decision, a position that is essentially defensive and operates on the (correct) background assumption that the culture war has already been lost.

The upshot is that for Trump, making the Supreme Court an election issue doesn’t hold much appeal as a way to energize the right or to capture new voters from the center. He can certainly criticize the courts when it’s convenient, or dismiss their holdings as “anti-police” the way he did during the debate.  So don’t expect much more on the Supreme Court during this election season.  When the dust has settled, however, the Supreme Court will return to the front pages very quickly indeed, and the question of who will succeed Scalia will be one of the most pressing issues facing the new president, whoever it is.

As long-time readers know, and as this prior post explains, I would add to this analysis the important fact that Prez Obama picked a nominee that is a relative political "yawner" for both parties.  As I have explained before, I thought back in March and continue to think today that the current politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick, and that would be especially so if he had selected the only woman of color who was seriously vetted for this open SCOTUS spot, US District Judge Ketanji Brown Jackson.  Though I dislike discussion that focus on "playing the race card" or "playing the gender card," I like to be honest when highlighting that it is the personnel and not just the politics at the heart of this "non-issue" reality. 

If the GOP Senate was blocking even a hearing for the first woman of color nominated to the Supreme Court, I am certain Clinton would now be seeking to appeal to her base (and also to moderates) by promising to not let the GOP Senate continue to push Judge Brown Jackson to the back of the bus.  Actually, I suspect Hillary Clinton may be much too cautious politically to actually try to play a race/gender card at the same time via a Rosa Parks reference, but I am certain some of her surrogates (as well as some Dems seeking to wins seats in the Senate) would not be afraid to make this kind of pitch.

Prior related posts on new SCOTUS nominee possibilities:

September 27, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (8)

Friday, September 16, 2016

Detailing interesting sentencing dynamics in the latest batches of "term" commutations by Prez Obama

091416-Obama-commutations-online_1USA Today has this great new article highlighting an especially interesting aspect of the most recent clemency work by President Obama.  The piece is headlined "For Obama, a shift in clemency strategy," and here are excerpts:

For 126 federal inmates who received presidential clemency last month, the good news might have come with a dose of disappointment. President Obama had granted their requests for commutations, using his constitutional pardon power to shorten their sentences for drug offenses. But instead of releasing them, he left them with years — and in some cases, more than a decade — left to serve on their sentences.

As Obama has begun to grant commutations to inmates convicted of more serious crimes, Obama has increasingly commuted their sentences without immediately releasing them. These are what are known as "term" commutations, as opposed to the more common "time served" commutations, and they represent a remarkable departure from recent past practice. Unlike a full pardon, commutations shorten sentences but leave other consequences of the conviction in place.

A USA TODAY analysis of Obama's 673 commutations shows a marked change in strategy on his clemency initiative, one of the key criminal justice reform efforts of his presidency. Before last month, almost all of the inmates whose sentences were commuted were released within four months, just long enough for the Bureau of Prisons to arrange for court-supervised monitoring and other re-entry programs. But in the last two rounds of presidential clemency in August, 39% of commutations come with a long string attached: a year or more left to serve on the sentence.

The strategy has also allowed Obama to commute the sentences of even more serious offenders. Before last month, 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy last month, it was 22%. Through lawyers in the Justice Department and the White House Counsel's Office, the president is effectively recalculating the sentences using the federal guidelines in effect today — as opposed to the harsher penalties mandated by Congress in the 1980s and '90s.

While previous presidents have granted term commutations on a case-by-case basis — President Bill Clinton required a Puerto Rican nationalist convicted of seditious conspiracy to serve five more years, and President Richard Nixon made a Washington, D.C. murderer serve another decade — Obama appears to be the first to employ them as a matter of policy. "There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented,” said former pardon attorney Margaret Love, who served under Presidents George H.W. Bush and Clinton. “That signals to me that the power is being used in a way it’s never been used before.”

There may also be a political calculation to the new clemency strategy, reflecting a general understanding that there's no guarantee that a President Hillary Clinton or Donald Trump would continue Obama's signature clemency initiative. While it's not entirely settled, most scholars believe a commutation warrant cannot be revoked by a future president once it's granted, delivered and accepted.

Explaining his philosophy on commutation power at a press conference last month — the day after he set a single-day clemency record by granting 214 commutations — Obama gave the example of an inmate who has already served a 25-year sentence but would have only served 20 if sentenced under today's laws. "What we try to do is to screen through and find those individuals who have paid their debt to society, that have behaved themselves and tried to reform themselves while incarcerated, and we think have a good chance of being able to use that second chance well," he said.

But increasingly, recipients of Obama's mercy are years away from paying their debt to society.

White House Counsel Neil Eggleston, who's the last stop for a clemency application before it goes to the president, acknowledged the change in strategy on Aug. 3, the day Obama issued 214 commutations. "While some commutation recipients will begin to process out of federal custody immediately, others will serve more time," he wrote in a blog post. "While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services."

Critics say Obama is no longer reserving his clemency power for extraordinary circumstances, but instead substituting his own judgment for that of Congress and the courts. "To impose these things, and to have the commutation take effect after he leaves office — and even after the presidency of someone who succeeds him — seems inappropriate to me," said Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee.

But Goodlatte also acknowledged that the power to "grant reprieves and pardons for offenses against the United States" is one of the Constitution's most ironclad powers, and amending the Constitution would be difficult....

"He has effectively set himself up as a judge, reviewing thousands of cases where they’ve been prosecuted, convicted, sentenced and appealed beyond the district court level. And he's undercut all that work by commuting their sentences," Goodlatte said. "I think the president is taking a misguided approach to this issue when he tries to set himself up as a super-judge who would oversee the actions of a separate branch of government."

Mary Price, who has represented drug offenders seeking presidential clemency, said the president is the only person who can act under present law. "In our system, there's a heavy emphasis on finality of judgment," said Price, chief counsel for Families Against Mandatory Minimums, which advocates for changes in drug laws. "The court has no jurisdiction to go back and change that sentence." For inmates with one or two years left on their Obama-shortened sentence, the president's clemency could motivating them to prepare for reentry into society, Price said. One drug treatment program gives inmates an additional year off their sentence if they complete it.

While Obama's re-sentencing strategy is a departure from recent practice, experts note that presidents have granted term commutations before. For example, any commutation of the death penalty to life imprisonment would fit the definition of that the Justice Department calls a "term commutation," as opposed to the more typical "time served" commutation.

And if recent presidents haven't done it that way, it's more because they've granted so few commutations to begin with. As the White House is quick to note, Obama has now commuted the sentences of more prisoners than the previous 10 presidents — that's Dwight Eisenhower through George W. Bush — combined. "Is Obama doing it at some unprecedented level? I don't know. Maybe," said P.S. Ruckman Jr., a political scientist who has analyzed data on presidential clemency back to George Washington. "But I am not so sure what to make of that either," he said. "That's what checks and balances are all about."

September 16, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, September 13, 2016

Does anyone want to speculate about SCOTUS politics if Prez Obama had nominated, say, Judge Ketanji Brown Jackson?

I am prompted to prompt the question in the title of this post after review of this interesting Washington Post article, headlined "Did Obama squander an opportunity by nominating Merrick Garland?". Here are a few notable excerpts from the lengthy piece:

No Democratic Senate candidates are talking about Garland in paid television ads.  No one mentioned Garland during the Democratic National Convention in July, including Barack Obama.

Hillary Clinton has not committed to re-nominate Garland if she’s elected. While she talks about the Supreme Court, she almost never talks about him.

Some Democrats privately fear that Obama blew an opportunity to help re-activate the coalition that elected him twice by not picking a more progressive nominee — especially a minority candidate — to replace the late Antonin Scalia. Had Obama nominated someone who really ginned up the Democratic base, perhaps Clinton and the party would have more whole-heartedly embraced him or her....

The National Organization for Women signed onto an open letter urging Obama to appoint an African American woman to the court after Scalia died. When Garland was announced, the group expressed concern that he is “more or less a blank slate” on core women’s issues like reproductive rights.

NOW President Terry O'Neill wants the Senate to confirm Garland but she also thinks about how different the dynamic might be right now had the president gone with a more progressive black woman instead of a 63-year-old moderate white man. “I’m not going to say there wasn’t some disappointment,” she said in an interview last night. “I am very positive that the progressive community would be extremely active in promoting a more left-leaning appointment.”

O’Neill posited that an African American woman might have provided a clearer contrast. “Suppose he had nominated an African American woman,” she said. “No matter how moderate she might be, Republicans would say she’s way too out there and way too radical. The same way they talked about President Obama. … I don’t think you can eliminate race from understanding what these senators are doing. There’s no white president that’s ever been treated so disrespectfully.”

She lamented the paucity of media coverage about the vacancy. “Any African American woman who might have been nominated would have been viciously attacked,” O’Neill added. “It’s possible, if those vicious attacks would have happened, then the American public would have been much better informed of the outrageousness of what the Republicans are doing.”

Many of the same progressives who are not enthusiastic about Clinton are also not enthusiastic about Garland. Bernie Sanders said this spring as he campaigned for the Democratic nomination that he would ask Obama to withdraw Garland if he got elected so he could pick someone more liberal.

“We saw some of the highest grassroots energy in our eight year history in the run up to the president's Supreme Court nomination, and when the choice was Merrick Garland that energy completely plummeted,” said Adam Green, co-founder of the Progressive Change Campaign Committee.

Leaders in the African American community have called for a vote on Garland, but a lot of the key groups were also less than thrilled with his selection. Other liberal organizations like Democracy for America, which was founded by Howard Dean, said when Garland was nominated that it was “deeply disappointing that President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court.”

As readers may recall, the only woman of color who was seriously vetted for this open SCOTUS spot was US District Judge Ketanji Brown Jackson. I thought back in March and continue to think today that the politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick. In addition, as I highlighted in this post in February, GOP House Speaker Paul Ryan spoke in glowing terms abut Ketanji Brown Jackson at her confirmation hearing to become a US District Judge: as he put it, "she is clearly qualified. But it bears repeating just how qualified she is.... Now, our politics may differ, but my praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."

I think it quite likely that, had Prez Obama nominated Judge Brown Jackson, we would be seeing Democratic Senate candidates talking about her in TV ads. I am certain that a number of folks would have mentioned her during the Democratic National Convention in July, and I suspect Hillary Clinton would commit to re-nominate her if she’s elected. Speculating even further, I imagine lots of Democratic senators and House members would be pressing Speaker Ryan to voice support for giving Judge Brown Jackson at least a hearing. And, to really go for it, I could even imagine Colin Kaepernick saying, when asked when he will stand again for the National Anthem, that he will get off his knee if the US Senate moves forward on the SCOTUS nomination of Judge Brown Jackson.

Prior related posts on new SCOTUS nominee possibilities:

September 13, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10)

Sunday, August 14, 2016

Former AG Eric Holder brags about his "too little, too late" approach to dealing with federal sentencing's myriad problems

Holder-covington-feature-heroEric Holder, who served as attorney general of the United States from 2009 to 2015, has this notable New York Times op-ed that I ultimately find more frustrating than encouraging. The article is headlined "Eric Holder: We Can Have Shorter Sentences and Less Crime," and here are excerpts that prompt my frustration (based on the dates I highlighed above, and related dates highlighted below, and a bit of inserted commentary):

The financial cost of our current incarceration policy is straining government budgets; the human and community costs are incalculable. Today, a rare bipartisan consensus in favor of changing drug-sentencing laws presents an opportunity to improve the fairness and efficiency of America’s criminal justice system. But to build on this coalition for reform, which includes senior law enforcement officials, we need action in Congress.

In February 2015, President Obama convened a group of lawmakers — including the Republican senators Chuck Grassley of Iowa and Rand Paul of Kentucky and the Democratic senators Dick Durbin of Illinois and Cory Booker of New Jersey — to build support for sweeping reforms. But the momentum has slowed thanks to opposition from a small group of Republican congressmen using language dredged from the past. One, Senator Tom Cotton of Arkansas, even claimed recently that “we have an under-incarceration problem.”

The Republican presidential nominee, Donald J. Trump, is now fanning fears about the level of crime in America, which is actually at historic lows [Ed Note: crime was at historic lows in 2014 and has recently been going up]. Such pandering is a reminder of how we got here in the first place....

Controlling for other factors, the United States Sentencing Commission found that between December 2007 and September 2011, black male defendants received sentences 20 percent longer than their white counterparts. From 1983 to 1997, the number of African-Americans sent to prison for drug offenses went up more than 26-fold, compared with a sevenfold increase for whites. By the early 2000s, more than twice as many African-Americans as whites were in state prisons for drug offenses....

The Justice Department has pioneered reform.  Three years ago, as attorney general, I established the Smart on Crime initiative to reduce draconian mandatory minimum sentencing for low-level drug offenses and encourage more investment in rehabilitation programs to tackle recidivism. The preliminary results are very encouraging. Over the last two years, federal prosecutors went from seeking a mandatory minimum penalty for drug trafficking in two-thirds of cases to doing so in less than half of them — the lowest rate on record. The initiative may not be solely responsible, but 2014 saw the first consecutive drop in the federal prison population in more than three decades, coinciding with a falling crime rate.

Those who argue that without the hammer of a mandatory minimum sentence defendants won’t cooperate are wrong — in fact, the rate of cooperation held steady under the initiative, and the rate of guilty pleas remained constant. The system remained effective and became fairer. Reform has not made us less safe....

Mandatory minimum sentences should be eliminated for many offenses, and where they are still applied, their length should be reduced. The legislative proposals necessarily reflect a compromise, but we must ensure that they go far enough: The judiciary needs greater discretion in imposing mandatory minimums, as do our prosecutors in seeking them. Given the absence of parole in the federal system, we should increase the amount of sentence-reduction credit available to inmates with records of good conduct. And all offenders, regardless of their designated risk level, should get credit for participating in rehabilitation programs....

There is still a disparity in sentencing for offenses relating to crack and powder cocaine, chemically identical substances. Given the policy’s differential racial impact, which erodes confidence in the justice system, this disparity must go. In the light of recent events, we can’t afford criminal justice policies that reduce the already fragile trust between minority communities and law enforcement agencies....

Whatever the outcomes of the bills before Congress and the presidential election, the Justice Department existing reforms must be preserved. Important as they are, all these initiatives have a bearing only on the federal justice system, which houses about 10 percent of the prison population.  For the federal effort to be a template for reform in the states, where most prisoners are detained, Congress must lead.

The nation’s lawmakers must stiffen their spines, ignore divisive language and schedule votes in this congressional session on reform legislation.  An opportunity like this comes once in a generation. We must not miss it.  The over-reliance on mandatory minimum sentences must come to an end.

I have emphasized dates here because I consider former AG Eric Holder (and his boss President Obama) to be among those who really should bear much responsibility if federal policy-makers miss what Holder calls a "once in a generation" opportunity for federal sentencing reform.  Tellingly, much of the incarceration data Holder stresses were well known and widely discussed when he assumed office in early 2009. (For example, in this Harvard Law & Policy Review piece from Fall 2008, I stressed the problems of modern mass incarceration and urged progressives to "mine modern movements in Constitutional and political theory to make new kinds of attacks on mass incarceration and extreme prison punishments" and to "be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration.")  And yet, as Holder notes, he did not establish DOJ's Smart on Crime initiative until August 2013, and Prez Obama did not convene a group of lawmakers to push for reform in Congress until February 2015.

In other words, both Prez Obama and AG Holder fiddled while the federal sentencing system was still burning with tough-on-crime, mandatory-minimum "over-reliance" from 2009 to 2013 during the entire first Obama Administration Term.  And, critically, we should not lose sight of the important reality that Prez Obama's party controlled both houses of Congress until early 2011 and contolled the Senate until early 2015.  Moreover, the enduring and continued (misguided) opposition of Prez Obama and the Justice Department to mens rea reforms supported by the GOP establishment has arguably been the most critical roadblock to getting sweeping reform legislation enacted even now.

Last but not least, and as Holder reveals in this op-ed, federal prosecutors are still charging mandatory minimum drug sentencing provisions in near half of all drug cases (including in many crack cases where there is still a major, race-skewing sentencing disparity).  I suspect that when Holder says "mandatory minimum sentences should be eliminated for many offenses," he is largely referencing drug offenses in which no guns or violence were involved (where other mandatory minimums are applicable).  If Holder really believed that it would be sound and sensible to eliminate mandatory minimum sentences in such cases, he could have on his own included provisions in his Smart on Crime initiaitve to require line prosecutors to avoid charging under these statutes in all but the rarest drug cases rather than continuing to have these statutes still be applied in nearly half of all drug cases.

Sadly, I could go on and on and on about all the things former AG Holder could have and should have done while serving as U.S. Attorney General for six full years to deal with all the problems he now is quick to lament in the pages of the New York Times.  (Here it bears noting that he gets to write about these problems now from the safety of a corner office at a big DC firm where he is, according to this article, likely making more than $5,000,000/year, well over 20 times more than the hardest working federal prosecutors and federal defense attorneys make.)  Holder's closing sentiment urging federal lawmakers to "stiffen their spines" really gets my goat when his own spine struck me as so soft for his six years as Attorney General, and especially now that he gets to enjoy cashing in on the inside-the-Beltway privileges of allowing one's spine to blow back-and-forth with the prevailing political winds. 

August 14, 2016 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, August 11, 2016

If you really want to fully understand what DEA has done/what is changing and not changing about federal marijuana law and policy...

2000px-US-DrugEnforcementAdministration-Seal.svgyou have to check out these two new posts and materials linked therein from Marijuana Law, Policy & Reform for all the nuanced details:

If you do not have the time or inclination to read those posts, the DEA has this press release explaining these basics:

The Drug Enforcement Administration (DEA) announced several marijuana- related actions, including actions regarding scientific research and scheduling of marijuana, as well as principles on the cultivation of industrial hemp under the Agricultural Act of 2014....

DEA has denied two petitions to reschedule marijuana under the Controlled Substances Act (CSA). In response to the petitions, DEA requested a scientific and medical evaluation and scheduling recommendation from the Department of Health and Human Services (HHS), which was conducted by the U.S. Food and Drug Administration (FDA) in consultation with the National Institute on Drug Abuse (NIDA). Based on the legal standards in the CSA, marijuana remains a schedule I controlled substance because it does not meet the criteria for currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse.

In his letter to the petitioners, DEA Acting Administrator Chuck Rosenberg offered a detailed response outlining the factual and legal basis for the denial of the petitions.....

DEA announced a policy change designed to foster research by expanding the number of DEA- registered marijuana manufacturers. This change should provide researchers with a more varied and robust supply of marijuana. At present, there is only one entity authorized to produce marijuana to supply researchers in the United States: the University of Mississippi, operating under a contract with NIDA.  Consistent with the CSA and U.S. treaty obligations, DEA’s new policy will allow additional entities to apply to become registered with DEA so that they may grow and distribute marijuana for FDA-authorized research purposes.

August 11, 2016 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (10)

"The Obama Criminal Justice Reforms That Trump Could Undo"

The title of this post is the headline of this notable new Marshall Project piece by Eli Hager.  Here is how the piece sets up its "rundown of Obama’s efforts on criminal justice and how each of them could or could not be unraveled by a President Donald Trump":

Donald Trump has not said much about how he would handle matters of criminal justice if he is elected president.  Beyond a promise in his speech at last month’s Republican National Convention that “safety will be restored” in America — and a suggestion in December that he would seek the death penalty for anyone convicted of killing a police officer — the candidate has not articulated a policy agenda on issues such as the drug war, federal sentencing guidelines, community policing or clemency.

Yet Trump has made it clear what he will undo: the Obama administration’s executive actions and regulations, including those having to do with criminal justice.“You know, the great thing about executive orders is that I don’t have to go back to Congress,” he said at a campaign rally in Manassas, Va., on Dec. 2, according to the Daily Caller.

Experts on executive authority say the next president could absolutely — and immediately — rescind any and all executive orders made by President Obama during his eight years in office, including those tightening background checks, “banning the box” on federal job applications and banning the solitary confinement of juveniles in federal prisons.  “They can be overturned in one day, with the stroke of a pen,” said Susan Dudley, a professor of public policy at George Washington University and an expert on regulatory procedure.

Trump could also opt to slow-walk Obama’s policies — either by appointing cabinet officials who will not enforce them or by instructing his Justice Department to reprioritize which laws it will prosecute.  The department could also reach weakened, out-of-court settlements in the investigations that the Obama administration has launched into local police departments.

But other moves of Obama’s, from his pardons and commutations to his attempts to ease sentencing guidelines for drug offenders, will be harder to roll back.  “Trump could say he doesn’t want to pursue a certain policy anymore, but he can’t take away benefits and rights that have already gone out to people,” said Stephen Vladeck, a law professor at the University of Texas and an expert on constitutional law and the federal system.

August 11, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0)

Wednesday, August 10, 2016

Eager for practitioner views (and others) on how the "Obama judiciary" may be transforming sentencing jurisprudence and practice

The request for comments, particularly from federal court practitioners, appearing in the title of this post is prompted by this recent Politico article headlined "Did Obama win the judicial wars? Liberals say he shied away from too many battles and ran into GOP roadblocks. But the result is still a transformation of U.S. courts." Here is one excerpt from the article highlighting its themes:

It’s not yet clear whether Obama’s judicial legacy will include a Justice Garland, who could swing the direction of the highest court for decades.  But even if the Garland nomination stalls, Obama has already reshaped the judiciary, not only the Supreme Court but the lower courts that hear more than 400,000 federal cases every year.  And the unprecedented move by Senate Republicans to deny Garland a hearing is just the most intense skirmish in a larger battle over Obama’s nominees, a battle that has transformed the politics of the judiciary in ways that will reverberate long after his presidency.

Ultimately, most of those battles over judges have really been about Obama, a nasty front in the larger partisan war that has raged throughout his presidency.  And as with most of the foreign and domestic policy battles of the Obama era, the result, after a lot of bellicose rhetoric and political brinksmanship, has been a lot of change.  Obama has already appointed 329 judges to lifetime jobs, more than one third of the judiciary, and they’re already moving American jurisprudence in Obama’s direction.  He got two left-leaning women onto the Court: Sonia Sotomayor, the first Hispanic justice, and Elena Kagan, his former solicitor general.  He also flipped the partisan balance of the nation’s 13 courts of appeals; when he took office, only one had a majority of Democratic appointees, and now nine do.  Just last week, two Obama appointees to the Fourth Circuit Court of Appeals struck down some of North Carolina’s strict new election law, calling it a discriminatory effort to stop blacks from voting.

Obama is a political pragmatist and a public advocate of judicial restraint, so he hasn’t nominated the dream judges of the left.  But he certainly hasn’t appointed the kind of Federalist Society conservatives that George W. Bush favored, so liberal activists — who have indeed put aside their misgivings and supported Garland — have mostly approved of his impact on the justice system.  His appointees have already taken the progressive side in cases involving issues like gay marriage and transgender bathroom choices, as well as cases involving his own health reforms and carbon regulations.  And they really are diverse; 43 percent of Obama’s judges have been women, shattering the old record of 29 percent under Bill Clinton, and 36 percent have been non-white, surpassing Clinton’s record of 24 percent.  Obama has appointed 11 openly gay judges, when before him there was only one.

I have a lot of thoughts about a lot of aspects of Prez Obama's likely judicial legacy, but I am disinclined to discuss this legacy at length until we find out in the coming months if Merrick Garland becomes the next Justice. In the meantime, though, I would be eager to hear views from criminal justice practitioners who spend any time in the federal courts as to how big a different the 327 judges Obama has appointed to lower courts have impacted sentencing jurisprudence and practice. As the Politico article details, the federal judiciary looks a lot different thanks to the diversity of Prez Obama's appointment, and I am now eager to hear from informed persons whether it also feels a lot different when it comes to sentencing decision-making.

August 10, 2016 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0)

Monday, August 08, 2016

Broad perspectives on the narrowness of recent federal clemency and sentencing reform efforts

Two of my favorite lawprof colleagues, Erik Luna and Mark Olser, remind me why they are among my favorites through this new Cato commentary titled "Mercy in the Age of Mandatory Minimums." Here are excertps:

Recently, we stood in a backyard eating barbecue with a man named Weldon Angelos.  He was only a few weeks out of federal prison, having been freed some four decades early from a 55-year sentence for selling a small amount of marijuana while possessing firearms.  Weldon was not among the 562 inmates whose sentences were commuted by President Obama, including Wednesday’s historic grant of commutation for 214 nonviolent prisoners. Instead, Weldon’s release was made possible through a negotiated motion by the government that, alas, cannot be replicated in other cases.

For a dozen years, Weldon had been the poster boy of criminal justice reform for liberals and conservatives alike. His liberation is cause for celebration for those who believed the punishment did not fit the crime.  Nonetheless, the Angelos case remains a cautionary tale about both the inherent ruthlessness of “mandatory minimum” terms of imprisonment and the ineffectiveness of the Obama administration’s clemency initiative.

Mandatory minimum laws bar the consideration of facts upon which a sentencing judge would normally rely.  In Weldon’s case, the law compelled a 55-year sentence.  It didn’t matter that Weldon was a first-time offender with no adult record or that he was the father of three young children.  Nor did it matter that he never brandished or used the firearms and never caused or threatened any violence or injury....

Most of all, it did not matter that the sentencing judge — a conservative Bush appointee known for being tough on crime — believed that the punishment was “unjust, cruel, and irrational.”  Ultimately, the judge was bound not only by the mandatory minimum statute but also the Supreme Court’s jurisprudence, which largely acquiesces to prosecutors’ charging decisions while providing almost no check on excessive prison terms.

Absent a doctrinal reversal by the Supreme Court (don’t hold your breath), any meaningful safeguard against misapplication of mandatory minimums will have to come in the form of legislation from Congress or from the president through the application of the clemency power.  As for the former, lawmakers are considering several [reform] bills... [that] are entirely laudable, but they are also quite modest.  Indeed, the Senate bill passed in April expands some mandatory minimum provisions and adds a couple of new ones to the federal code....

The positive aspects of the reform bills should be supported all the same.  Sadly, legislative efforts appear to be mired in an intramural fight among Republicans, as well as hindered by Democratic intransigence toward another worthy reform, namely, a requirement that law enforcement prove a culpable mental state rather than holding defendants strictly liable.  Until lawmakers can agree on a means to prevent draconian sentences, clemency will remain the only remedy for such miscarriages of justice.

Unfortunately, the federal clemency system is also dysfunctional.  Weldon’s petition for clemency was filed in November 2012 — and it then sat, unresolved one way or another, for three-and-a-half years.  The support for the petition was unprecedented, spanning activists, academics and experts from every political camp imaginable.  While Weldon is not wealthy and could not afford high-priced lobbyists or attorneys, the facts of his case drove the story onto the pages of leading news outlets.  Yet nothing happened.  Even when the Obama administration launched the “Clemency Project 2014” and Weldon’s case was accepted into that program, he languished in prison as the petition slogged through the seven vertical levels of review any successful clemency case must navigate.

Clemency is meant for cases like Weldon’s, where the requirements of the law exceed the imperatives of justice.  The fact that a case like his cannot receive clemency from an administration dedicated to expanding the use of this presidential prerogative lays bare the root problem we face — too much process and bureaucracy coursing through a Department of Justice that bears a built-in conflict of interest....

It was thrilling to see Weldon free, eating off of a paper plate in the light of a Utah evening.  He is just one of many, though, and systemic reform of both mandatory minimums and the clemency process should be an imperative for this and the next administration.

August 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Clemency and Pardons, Criminal justice in the Obama Administration, Examples of "over-punishment", Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, August 07, 2016

Two midsummer New York Times editorials lamenting federal sentencing nightmares

In Act 1 of Scene 1 of The Bard's famous summer comedy, Lysalnder notes that "The course of true love never did run smooth."  And in Act 4 of Scene 1 of his play set in a watery city, Portia explains that "The quality of mercy is not strained."  These two literary references came to mind after I saw these two New York Times editorials, which might be headlined "The course of sentencing reform has not run smooth" and "The Justice Department has strained to show quality mercy."  Here are the editorial's true headlines and key passages:

"Holding Sentencing Reform Hostage"

An opportunity to pass the most significant federal criminal justice reform in a generation may be slipping away — despite the tireless efforts of many top Republicans and Democrats in Congress, as well as a rare exhortation from President Obama during last month’s State of the Union address....

The sentencing reform legislation is not perfect, but it represents remarkable progress in what is often a harsh, oversimplified debate about crime and punishment in America.  It should not be weakened, either by narrowing its reach or by sneaking in an unrelated mens rea provision.

Throughout all of this, red and blue states around the country continue to take big, bold steps to reduce state prison populations by shortening sentences and giving inmates returning to society a real chance to succeed.  Congress should be racing to catch up. 

"Mercy Is Far Too Slow at the Justice Department"

The country needs a variety of mechanisms for reducing unreasonably long sentences.  And the Justice Department, which has considerable latitude in these matters, needs to do more within the course of its regular operations to deal with the legacy of sentencing policies that have been recognized as destructively unfair....

The Sentencing Reform Act of 1984 authorizes the bureau to ask a federal judge to reduce an inmate’s sentence when there are “extraordinary and compelling” reasons for doing so.

That provision is typically used for elderly or gravely ill inmates. But the bureau has the ability to define the term as it sees fit, which means that the program could cover people who were unfairly sentenced as well. The agency has, however, done virtually nothing on this front.  The Justice Department’s Office of the Inspector General was sharply critical of the bureau in a 2013 report, noting that the agency did not “have clear standards on when compassionate release is warranted,” which led to ad hoc decisions.

The United States Sentencing Commission took up this issue in April, when it broadened compassionate-release criteria.  Under the amended policy, federal inmates may be eligible for compassionate release for reasons of age, medical condition, family circumstances or “other extraordinary and compelling reasons.”  The commission also urged the prison bureau to take cases back to court when the defendant meets the criteria laid out in the new policy.

A more broadly conceived compassionate-release mechanism would not by itself cure the problem of unfair sentencing.  But the Justice Department should be using every tool it has to mitigate unfair sentences.  A system that funnels this problem to the president’s office is not enough.

August 7, 2016 in Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, July 29, 2016

Is it lack of conviction, lack of courage, or just lack of cleverness that leads Dems to be so weak on criminal justice reform advocacy?

In this post on Monday, I predicted we would hear a lot more this week about criminal justice reform from leading Democrats during the DNC than we had heard last week from leading Republicans during the RNC.  I suppose that prediction was not entirely mistaken, as both Prez Obama on Wednesday and Prez candidate Clinton on Thursday each had a few lines about criminal justice reform in their speeches.  For those who missed the brief mentions of criminal justice in their two+ hours of speechification, here is what was said:

I suppose I was foolish for thinking and really hoping that Democratic leaders would have much more to say than this relative pablum about criminal justice reform circa 2016. And the deliberative decision to prioritize polite CJ reform pablum over actual CJ reform advocacy prompts the (frustration-filled) question in the title of this post.  Let me briefly unpack what I mean by this question, hoping to generate some serious and sober discussions on this front:

A lack of conviction?:  In light of Prez Bill Clinton's "tough-on-crime" legacy and Prez Obama's milquetoast efforts to reverse course, I am growing ever more convinced that leading Democrats are perhaps just not all that troubled by modern mass incarceration, the aggressive drug war, marijuana prohibition, private prisons, felon disenfranchisement, overcriminalization, inadequate defense funding, wrongful convictions, prosecutorial misconduct or a host of other persistent criminal justice problems that have nothing to do with the hot-button (dog-whistle?) topics of race or guns.

A lack of courage?:  I sincerely want to believe that leading Democrats (as well as leading Republicans and independents) really are troubled by modern mass incarceration, the aggressive drug war, marijuana prohibition, private prisons, felon disenfranchisement, overcriminalization, inadequate defense funding, wrongful convictions, prosecutorial misconduct and a host of other persistent criminal justice problems.  But if leading Dems do want to see real reform in these arenas, why do they lack the courage to encourage serious discussion of serious reforms?  Why thoughout the election season to date has (independent) Bernie Sanders been the only major candidate with the courage to keep talking forcefully about the probems of mass incarceration and to advocate for specific reforms like ending federal marijuana prohibition and the use of private prisons?

A lack of cleverness?:  I am never sure if I am comforted or further depressed when thinking that leading Dems genuinely care about criminal justice reform but ultimately lack the ability to speak about these issues in clever and politically shrwed ways to build on (now bipartisan) political interest in significant reforms.  For example, Prez Obama could have (and I think should have) added to his statement that he has been pleased to see many more "mayors and sheriffs and state's attorneys and state legislators" in red states as well as blue states committed to innovative justice programming seeking to reduce our nation's over-reliance on incarceration.  Similarly, Prez candidate Clinton could have (and I think should have) added to her statement that she would be eager to draw on the work and wisdom of both Republican and Democratic Governors and Attorneys General to identify state-level reforms that have proved most effective at rebuilding needed "trust between law enforcement and the communities they serve."

Sigh.....

July 29, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (18)

Thursday, July 07, 2016

"Can Obama Pardon Millions of Immigrants?"

The question in the title of this post is the headline of this notable New York Times commentary authored by Peter Markowitz. Here are excerpts:

When the history of President Obama’s legacy on immigration is written, he will not go down as the president who boldly acted to protect millions of families from the brutality of our nation’s unforgiving immigration laws. The Supreme Court made sure of that last month, when it deadlocked on the legality of his program to defer the deportation of parents of American citizens and residents. Instead, he will be judged on what he actually did: deport more immigrants than any other president in American history, earning him the moniker “deporter in chief.”

However, President Obama can still act to bring humanity and justice to an immigration system notoriously lacking in both. He can do so by using the power the Constitution grants him — and only him — to pardon individuals for “offenses against the United States.”

The debate over the deportation deferral program has been framed as a question of the division of powers. Both sides agree that Congress is the only entity that gets to define offenses against the United States.... There is one area, however, where the president’s unilateral ability to forgo punishment is uncontested and supported by over a hundred years of Supreme Court precedent: the pardon power. It has been consistently interpreted to include the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest....

It’s a common assumption that pardons can be used only for criminal offenses, and it’s true that they have not been used before for civil immigration violations. However, the Constitution extends the power to all “offenses against the United States,” which can be interpreted more broadly than just criminal offenses.

A pardon could not achieve everything the deferred deportation program aspired to — notably, it could not deliver work permits. However, it has a certain operational elegance to it that would avoid many of the political battles surrounding the deferral program....

President Obama has plenty of time left to issue such a pardon. There is solid historical and legal precedent for him to do so. And although it would probably bring about legal challenges, opponents could not use the legal system to simply run out the clock, as they have with his deferred deportation program. A deferred deportation program could be undone by a President Trump. Unconditional pardons, in contrast, are irrevocable.

Finally, some would surely argue that a pardon protecting a large category of immigrants from deportation would, just like the deportation deferral program, effectively amount to a repeal of laws enacted by Congress. However, pardons do nothing to alter the law. They protect certain past offenders from punishment and prosecution, but leave the law unchanged as applied to any future violators.

President Obama has deported around 2.5 million people. That is about the same number as were deported in the entire 20th century. His apparent strategy was to demonstrate his bona fides on enforcement in order to persuade recalcitrant Republicans to work with him on immigration reform. It didn’t work. It turns out that you don’t convince people to be more humane on immigration by deporting immigrants hand over fist. We are left with a brutal legacy of millions of families torn apart, many simply for doing what they needed to do to protect and feed their children. President Obama will not be judged on his intentions or his attempts on immigration, but rather on his real impact. This is his last chance to establish a legacy of pragmatic compassion.

July 7, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Saturday, July 02, 2016

Can and will big data help reduce mass incarceration?

The question in the title of this post is prompted by this intriging Wired piece headlined "The White House Is on a Mission to Shrink US Prisons With Data." Here are excerpts:

The Obama administration believes better data within the criminal justice system could [help address mass incarceration. Last week,] the White House announced its new Data-Driven Justice Initiative, through which 67 cities and states will work with each other, as well as with leading tech companies like Amazon and Palantir, to find new ways to use data to shrink the size of their local prison populations.

“What we’ve seen as we’ve engaged with state and local leaders across the country is that there are people who simply do not need to be in our jails,” Valerie Jarrett, senior advisor to the President, said on a call with journalists today.  Taking a closer look at the data, she said, can help identify who those people are.  In some cities, that’s already starting to happen. The White House pointed to one example in Mecklenburg County, North Carolina, which began diving into its own data back in 2014 to find low-risk people in jail who could be released early.  That intervention led to a 40 percent reduction in the county jail population.  “That’s 40 percent, and they have had no increase in reported crime,” Jarrett said. “Pretty amazing.”

Of course, data mining is not the forte of most local law enforcement, which is why the White House is also asking for the tech industry’s help.  As part of the announcement, Amazon is convening a consortium on data interventions in criminal justice that will be attended by companies like Palantir and organizations like Code for America.  The goal of the summit, according to Lynn Overmann, senior policy advisor to the U.S. Chief Technology Officer, is to convene the country’s top data scientists, technologists, and developers together with local governments to figure out “the solutions most likely to work as broadly as possible.”

Some tech companies are donating their existing tools to the member cities and states. For instance, RapidSOS, a company that allows people to submit their exact location data to emergency personnel, is offering its product to five cities for free for the next 10 years. Several research institutions like New York University and the University of Chicago are also partnering with cities and states to research their data strategies.

In a time when Republicans and Democrats can’t seem to agree on anything, prison reform has become an unlikely unifier.  Recently, House speaker Paul Ryan has become an outspoken advocate for sentencing reform. That type of across-the-aisle support could help these data efforts spread more quickly.  Already, among the seven states that signed on to the Data-Driven Justice Initiative, three have Republican governors.  As part of the commitment, they promise to merge criminal justice and health system data to identify people who are most at risk, create new protocols for first responders dealing with mental health issues, and inform pre-trial release decisions.

Of course, using technology to decide whether someone stays behind bars or not is sure to be fraught with controversy as these programs roll out all over the country.  After all, if people are concerned about algorithms deciding the news they see, what happens when algorithms decide a person’s freedom?

July 2, 2016 in Criminal justice in the Obama Administration, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, July 01, 2016

With SRCA now "officially" dead ... send your "thanks" to (failings of) Prez Obama and bipartisan bungling

This Real Clear Politics article, headlined "Hopes Fade for Criminal Justice Reform This Year," serves essentially as an obituary for the effort to get significant statutory federal sentencing reform done before the end of the Obama Administration. Unsuprisingly, Bill Otis is dancing on the grave of these efforts via this post at Crime & Consequences titled simple "Victory." And Scott Shackford at Reason.com has this helpful post mortem titled "Federal Criminal Justice Reform May Fail, and Everybody’s Blaming Everybody Else," highlighting all the finger-pointing now taking place:

The Sentencing and Reform Act modestly updates federal mandatory minimum sentences to make them less brutal in non-violent drug cases and allows federal judges to invoke "safety valve" exceptions to sentence less than the mandatory minimum in certain cases. Probably the most important component of the law is that it would make the Fair Sentencing Act, which lowered the mandatory minimums for crack cocaine-related crimes to those of powder cocaine, retroactive. According to Families Against Mandatory Minimums (FAMM) this could help somewhere around 5,800 people currently serving sentences in federal prison. You can read FAMM's analysis of what's good and bad about the current incarnation of the Sentencing and Reform Act here.

 So thousands of prisoners could be stuck serving outdated sentences for cocaine crimes that no longer even apply if this law is not passed. In response to frustration that the bill isn't going anywhere there's a chain of blaming that weaves throughout RealClearPoltics' report:

  • Grassley merely says he's "disappointed" because he worked hard to get more Republicans on board supporting the law.

  • Sen. Dick Durbin (D-Ill.), who wrote the bill, blames Republicans, particularly Senate Majority Leader Mitch McConnell (R-Ky.) for offering him "little to no hope" that the legislation would move forward. (He is undoubtedly also referring to conservatives like Arkansas Sen. Tom Cotton.)

  • Sen. John Corbyn (R-Texas) blames the House of Representatives for not moving more quickly, which he said would have created "momentum" in the Senate for passing the law.

  • Sen. Orrin Hatch (R-Utah) says the refusal to add reform to mens rea is holding back the legislation. "Mens rea" is the legal concept that convicting a person of a crime should require proving that they had criminal intent to do so. Not all federal laws have this mens rea requirement, and some Republicans want to add it. This has angered some Democrats and the Department of Justice because they believe it would make it harder to convict people (or more accurately, to force settlements) in white-collar criminal cases or cases of corporate misconduct.

  • Sen. Sheldon Whitehouse (D-R.I.) blames the Koch brothers for helping push the mens rea reform, calling it a "fatal poison pill." Cornyn, however, pointed out that the current Senate bill does not even contain this reform. There are concerns that it will be attached later on.

As the title of this post is meant to suggest, I think the main individual who should be blamed here is President Barack Obama, although lots of other blame can and should be spread around to all the folks who failed to fully appreciate that a series of small "smart on crime" bills would have been far superior and far more likely to become law than the mega-reform bill that was too complicated with too many controversial parts to make passage ever likely.

I will now likely use the long weekend (which I am about to start by going off-line for a while) to reflect on the current federal sentencing reform "big picture" circa mid-2016. I also think this news provides an approrpriate opportunity to begin a series of commentary posts about criminal justice reform during the Obama era, which I will be calling "Missed Opportunities: The Failure of Prez Obama to bring real Hope and Change to Federal Sentencing." Stay tuned.

July 1, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Campaign 2008 and sentencing issues, Campaign 2012 and sentencing issues , Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (11)

Tuesday, June 21, 2016

Open letter from large group of reform advocates urges Prez Obama to "accelerate the process" for granting clemency

As reported in this new USA Today piece, headlined "Experts warn White House that time is running out for clemency initiative," an impressive group signed on to this open letter to Prez Obama discussing his clemency activities.  Here are excerpts from the USA Today reporting providing some pf the leteer's context and content:

Thousands of federal inmates could be eligible to have their sentences reduced under the Obama administration's initiative to free non-violent offenders from prison, but experts are warning the White House that time is running out for the president to take action.

A record-setting number of clemency petitions, lack of resources and a confusion over eligibility have hampered President Obama's plan to use his constitutional pardon power to shorten sentences, particularly for low-level drug offenders serving mandatory minimum sentences.  If those inmates are going to have any hope, President Obama needs to personally intervene in the process, a group of advocates, law professors and attorneys said in a letter to the president Tuesday.

"The initiative has been plagued by bureaucratic inefficiencies that have kept petitions that meet all of your stated criteria from reaching your desk," the letter said.  "We are concerned that as your days in office diminish, the clemency initiative is moving too slowly to meet the goals you set when you announced it in 2014."

The letter was signed by 41 people, led by Julie Stewart of Families Against Mandatory Minimums and including and law professors from Harvard, Yale, Georgetown, Berkeley, Columbia, Northwestern, New York University and others. Also notable: former White House special adviser Van Jones and former U.S. District Judge Nancy Gertner.

In response, the White House said Obama "has demonstrated a commitment to the commutations process not seen by any other president in the modern era."  He's issued more commutations than the past seven presidents combined, written personal letters to clemency recipients and met with recipients to urge society to give them second chances.

"As we have said, the president will continue to issue additional commutations throughout the remainder of his time in office," said Assistant White House Press Secretary Brandi Hoffine.  "The clemency process alone, however, will not address the vast injustices in the criminal justice system resulting from years of unduly harsh and outdated sentencing policies."

Obama has stepped up the pace of commutations in his last year in office, no longer waiting until the end of the year to announce clemency decisions. Obama granted 61 commutations in March, 58 in May and 42 this month — part of what White House Counsel Neil Eggleston said was a deliberate attempt to grant clemency on a more regular basis. In all, Obama has commuted the sentences of 348 people, more than any president since Franklin Roosevelt.  (He's also granted just 70 pardons, fewer than any full-term president since 1800.)

But according to the Office of Pardon Attorney, 11,861 commutation petitions were still pending as of June 6, fueled largely by the Judtice Department's call for more applications from volunteer defense attorneys in 2014. And this isn't the first time there have been warnings of a backlog in the process.  A year ago, former Pardon Attorney Deborah Leff told defense lawyers that "the clock is running," and that petitions weren't coming in quickly enough.  There were questions about the eligibility criteria, and many cases required a complete re-examination of court and prison records.  Then in January, Leff resigned, citing a lack of resources and interference from Deputy Attorney General Sally Quillian Yates that prevented her recommendations from reaching the president's desk.

I had the honor of being asked to sign on to this open letter, and I agree with nearly all of its sentiments.  But, as I stressed in this post a few months ago, I have been clamoring for clemency reform since Prez Obama's first day on the job, and I remain deeply disappointed and troubled that there seems to have been no serious interest or commitment to any kind of structural/institutional reform in this space.  As a result, I did not feel I could comfortable sign this letter because it includes a sentence stating that, in th clemency arena, the signers "believe [Prez Obama's] leadership will bring lasting change to the country and set the table for further reforms in future administrations."

I certainly do not want to unduly criticize Prez Obama's (still very important) efforts in this arena, and I am especially pleased to see this open letter getting press attention.  But, unless Prez Obama does something more than just grant a few hundred more commutations (which is what I am expecting to see in the coming months), I am still going to view his Presidency in terms of a unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.

June 21, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, June 03, 2016

"Conservatives should celebrate Obama’s commutations"

Institute_for_Policy_Innovation_1313374The title of this post is the headline of this new Dallas Morning News commatary.  The piece is authored by Tom Giovanetti, president of the Institute for Policy Innovation, a group that explains its focus to be "on approaches to governing that harness the strengths of individual liberty, limited government, and free markets." Here are excerpts:

The White House recently announced that 58 federal inmates, mostly non-violent drug offenders, would have their sentences shortened through commutation.  This brings the total number of commutations during the Barack Obama years to 306, more than any recent administration.  And word out of the White House is that there will be more to come during President Obama’s final months in office.

Many conservatives will be initially inclined to see Obama’s commutations as the act of a liberal who is soft on crime.  But conservatives should celebrate President Obama’s commutations. In fact, as people who prize liberty and individual rights, and who are skeptical about government power, conservatives need to do a rethink on criminal justice.

It’s becoming clear that something has gone very wrong with the justice system in the United States.  Today, the U.S. has the highest incarceration rate in the world.  Too many crimes have been federalized, as opposed to being handled more locally by state and local courts.  Excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements.  And it’s dawning on people that the justice system is plagued by the same careerism and corruption that characterize other branches of government....

Taking reasonable discretion away from judges was a mistake, and it caused a shift in power from judges to prosecutors, who can select and “stack” charges involving mandatory minimums.  While judges are appointed or elected to consider both sides of a case, prosecutors are hired to convict.  It should trouble conservatives that the government side of the equation has been awarded such disproportionate power, which has clearly led to abuses.

Consider the case of Weldon Angelos, who at age 24 was arrested in Utah for selling marijuana and possessing a firearm.  Because of stacked charges with mandatory minimums, Federal Judge Paul Cassell had no choice but to sentence him to 55 years in prison.  Judge Cassell has ever since been pleading for a commutation to Angelos’ sentence, pointing out that far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences.  But the judge, who clerked for Antonin Scalia, was appointed by President George W. Bush, and who favors the death penalty, was powerless in the face of a prosecutor armed with federal mandatory minimum sentences.

Yes, our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption.  Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.”

Social conservatives should understand the need for criminal justice reform, since we believe that every human life has inherent dignity and value, and we believe in the possibility of redemption.  Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive.  Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities.  And libertarians — well, libertarians already get it.

There are many pieces to the justice reform movement, including giving judges more sentencing leeway, eliminating civil asset forfeiture, and prioritizing drug treatment and in-home monitoring of incarceration.  But commuting sentences for non-violent offenders that are far in excess of the crime is a great place to start.

June 3, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, May 05, 2016

Prez Obama commutes 58 more federal drug sentences

As detailed via this terse White House press release, "On May 5, 2016, President Barack Obama granted commutation of sentence to 58 individuals." The release lists the 58 new recepients of executive clemency, and a quick scan reveals that all appear to be drug defendants and most involving cocaine and/or crack.

This press release from NACDL adds these notable particulars: "In his second set of clemency grants in under six weeks, President Barack Obama commuted the sentences of 58 prisoners today, 28 of whom were applicants whose petitions were supported by Clemency Project 2014."

UPDATE:  I just saw that Prez Obama now has this new Medium entry headlined "A Nation of Second Chances." Here are excerpts:

Earlier this spring, I met with a group of individuals whose sentences were commuted either by President Bush, President Clinton, or myself. They were all at different stages of a new chapter in their lives, but each of their stories was extraordinary.

Take Phillip Emmert. When he was 27, Phillip made a mistake. He was arrested and convicted for distributing methamphetamines and received a 27-year sentence. So, by the time he was released, he’d have spent half his life behind bars. Unfortunately, while in prison, his wife was paralyzed in an accident. So while he was in prison, Phil learned everything he could about fixing heating and air conditioning systems — so he could support his wife when he got out. And after his sentence was commuted by President Bush, he was able to do just that. Today, he’s gainfully employed. He’s a caregiver for his wife, an active father, and a leader in his community.

Like so many nonviolent offenders serving unduly harsh sentences, Phillip is not a hardened criminal. He’s taken responsibility for his mistakes. And he’s worked hard to earn a second chance.

Today, I commuted the sentences of an additional 58 individuals just as deserving as Phillip — individuals who can look to him as inspiration for what is possible in their lives.

As President, I’ve been working to bring about a more effective approach to our criminal justice system, particularly when it comes to drug crimes. Part of that effort has been to reinvigorate our commutations process, and highlight the individuals like Philip who are doing extraordinary things with their second chances. To date, I will have commuted 306 individual sentences, which is more than the previous six presidents combined....

As a country, we have to make sure that those who take responsibility for their mistakes are able to transition back to their communities. It’s the right thing to do. It’s the smart thing to do. And it’s something I will keep working to do as long as I hold this office.

May 5, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23)

Tuesday, April 26, 2016

"Roadmap to Reentry: Reducing Recidivism Through Reentry Reforms at the Federal Bureau of Prisons"

Roadmap_to_reentry_slide-2The title of this post is the title of this new programming publication from the US Department of Justice.  Here is part of its "Overview":

Each year, more than 600,000 citizens return to neighborhoods across America after serving time in federal and state prisons.  Another 11.4 million individuals cycle through local jails.  And nearly one in three Americans of working age have had an encounter with the criminal justice system — mostly for relatively minor, non-violent offenses, and sometimes from decades in the past.  Federal prisoners are held at the Bureau of Prisons (BOP), a law enforcement agency of the U.S. Department of Justice and the country’s largest and most complex prison system — housing nearly 200,000 prisoners in 122 federally-operated correctional institutions, 13 privately-operated secure correctional facilities, and a network of more than 175 community-based centers around the country....

The long-term impact of a criminal record prevents many people from obtaining employment, housing, higher education, and credit — and these barriers affect returning individuals even if they have turned their lives around and are unlikely to reoffend.  These often-crippling barriers can contribute to a cycle of incarceration that makes it difficult for even the most wellintentioned individuals to stay on the right path and stay out of the criminal justice system.  This cycle of criminality increases victimization, squanders our precious public safety resources, and wastes the potential of people who could be supporting their families, contributing to the economy, and helping to move our country forward.

Under the Obama Administration, the Department of Justice has already taken major steps to make our criminal justice system more fair, more efficient, and more effective at reducing recidivism and helping formerly incarcerated individuals return to their communities.  In 2011, the Department established the Federal Interagency Reentry Council, a unique Cabinet-level effort to remove barriers to successful reentry.  The Reentry Council, which now includes more than 20 federal departments and agencies, has developed significant policies and initiatives that aim not only to reduce recidivism, but also to improve public health, child welfare, employment, education, housing, and other key reintegration outcomes.

To ensure that all justice-involved individuals are able to fulfill their potential when they come home, Attorney General Lynch has launched a major effort to support and strengthen reentry programs and resources at BOP. These principles of reform — known as the Roadmap to Reentry — will be implemented throughout BOP, deepening and further institutionalizing the Department’s commitment to reentry.  These efforts will help those who have paid their debt to society prepare for substantive opportunities beyond the prison gates; promoting family unity, contributing to the health of our economy, and sustaining the strength of our nation.

The Department has also established full-time positions to promote reentry work at BOP, the Executive Office for United States Attorneys, and the Office of Justice Programs; this includes hiring the first-ever Second Chance Fellow — a formerly incarcerated individual with deep expertise in the reentry field — to assist in development of reentry policy initiatives. BOP established a new Reentry Services Division to better equip inmates with the tools needed for success outside the prison walls, including expanded mental health and substance abuse treatment programs and improved work and educational opportunities.  Through the community of U.S. Attorneys, the Department participates in reentry and diversion courts in more than 50 judicial districts nationwide. And the Department supports state, local, and tribal reentry efforts by providing resources under the Second Chance Act of 2007: the Department’s Office of Justice Programs has made nearly 750 Second Chance Act grants totaling more than $400 million, and established a National Reentry Resource Center that serves as a one-stop resource for returning citizens, advocates, and stakeholders.

April 26, 2016 in Collateral consequences, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Friday, April 22, 2016

"Department of Justice to Launch Inaugural National Reentry Week"

The title of this post is the title of this official US Department of Justice press release.  Here are excerpts from the release and details on a few of the planned events of the week that I am especially interested in:

As part of the Obama Administration’s commitment to strengthening the criminal justice system, the Department of Justice designated the week of April 24-30, 2016, as National Reentry Week. Attorney General Loretta E. Lynch and U.S. Department of Housing and Urban Development Secretary Julián Castro will travel to Philadelphia on MONDAY, APRIL 25, 2016, to hold events as part of National Reentry Week with public housing advocates, legal services providers and community leaders where they will announce new efforts to improve outcomes for justice-involved individuals including youth.

Later in the week, the Attorney General will visit a Federal Bureau of Prisons (BOP) facility in Talladega, Alabama, to highlight reentry programs in prison. Similarly, Deputy Attorney General Sally Q. Yates will visit a federal women’s prison in Texas and will later hold a media availability at Santa Maria Hostel, a specialized residential substance abuse, mental health and trauma facility. Acting Director Thomas Kane of the Bureau of Prisons will accompany both Attorney General Lynch and Deputy Attorney General Yates on their visits....

The Obama Administration has taken major steps to make our criminal justice system fairer, more efficient and more effective at reducing recidivism and helping formerly incarcerated individuals contribute to their communities. Removing barriers to successful reentry helps formerly incarcerated individuals compete for jobs, attain stable housing, and support their families. An important part of that commitment is preparing those who have paid their debt to society for substantive opportunities beyond the prison gates, and addressing collateral consequences to successful reentry that too many returning citizens encounter.

Leadership from across the Administration are traveling during National Reentry Week in support of these many events and are encouraging federal partners and grantees to work closely with stakeholders like federal defenders, legal aid providers and other partners across the country to increase the impact of this effort. National Reentry Week events are being planned in all 50 states, the District of Columbia, Puerto Rico and the Virgin Islands. U.S. Attorney’s Offices alone are hosting over 200 events and BOP facilities are holding over 370 events....

• On Monday, April 25, 2016, the White House will hold an event with the Brennan Center on the costs of incarceration.

• On Monday, April 25, 2016, Deputy Attorney General Sally Q. Yates will deliver remarks before a screening of “Pull of Gravity” a documentary that follows returning inmates as they encounter reentry obstacles, hosted by the Justice Department as part of National Reentry Week. Assistant Attorney General Leslie R. Caldwell of the Criminal Division will also participate....

• On Wednesday, April 27, 2016, the White House will host the Fair Chance Opportunities Champions of Change event in South Court Auditorium. Attorney General Loretta E. Lynch will deliver remarks and Deputy Attorney General Sally Q. Yates will moderate a panel at the event....

• On Thursday, April 28, 2016, the head of the Civil Rights Division, Principal Deputy Assistant Attorney General Vanita Gupta of the Civil Rights Division will deliver remarks at a reentry event at Mickey Leland Transitional Housing Facility, sponsored by the U.S. Attorney’s Office for the District of Columbia....

April 22, 2016 in Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Thursday, April 07, 2016

Disconcerting report on the (declining?) state of federal statutory sentencing reform efforts in Congress

This new New York Times report on the status and fate of federal statutory sentencing reform has me getting ever closer to asserting that the Sentencing Reform and Corrections Act will not get to President Obama's desk before election day.  The piece is headlined "Garland Fight Overshadows Effort to Overhaul Sentencing Laws On Washington," and here are excerpts:

A bipartisan overhaul of criminal justice laws was supposed to be a defining issue of this Congress, a rare unifying moment for Republicans, Democrats and President Obama. Instead, the members of the Judiciary Committee who wrote the criminal justice package are at war over whether to consider Mr. Obama’s nominee to the Supreme Court, Judge Merrick B. Garland.

This feud over the nomination has overshadowed the effort to reduce mandatory minimum sentences and ease the transition from prison. Now supporters of an overhaul are worried about its fate, especially with the Senate about to turn to a series of time­consuming spending bills and the electionyear calendar approaching a point where little gets done that is not absolutely necessary.

“If this is going to happen along with 12 appropriations bills, we are going to have to elbow our way into the queue,” said Senator Richard J. Durbin of Illinois, one of the chief Democratic authors of the bill. “The ball is now on the Republican side of the net.”

Before the death of Antonin Scalia in February created a Supreme Court vacancy, the criminal justice measure had already run into trouble from skeptical Senate Republicans, notably Tom Cotton of Arkansas. He contended that the proposed sentencing changes would result in the premature release of violent felons. And there were whispers about Willie Horton, the furloughed inmate who committed a rape while on release from a state prison in Massachusetts, a case that Republicans used in 1988 to portray Michael S. Dukakis, then the state’s governor and the Democratic nominee for president, as soft on crime.

The internal turbulence led Senator Mitch McConnell of Kentucky, the majority leader, to urge Republican authors of the measure to consider changes to win over some doubters and ease party divisions. They have retooled the legislation, decreasing the chances of felons who carried guns in their crimes qualifying for lighter sentences, among other expected revisions. The changes have won the backing of at least one Republican senator, Thad Cochran of Mississippi, whose aides say will support the reworked bill.

One of its top Republican supporters says they are making progress. “We continue to do work on criminal justice reform, to try to meet some of the concerns that have been previously stated and to shore up support and show additional support both inside and outside the Capitol for those important reforms,” Senator John Cornyn of Texas, the No. 2 Senate Republican, said Tuesday.

One problem backers of the bill have run into is that senators are questioning the political risk of supporting it when the measure might not go anywhere before the November elections. At the same time, some on the left contend that the measure has been too watered down.

Hoping to restore momentum, leaders of the U.S. Justice Action Network, a coalition of conservative and liberal groups behind the legislative effort, plan to bring leading advocates from around the country to Washington next week. They will meet with undecided senators and House members to make the case for the measure. The group has also scheduled a briefing for Senate staff members on Friday with former senior law enforcement officials to try to build support and ease doubts among Senate Republicans....Other backers of the measure, including some in the Senate, are expected to step up their push for the legislation next week as well, and new endorsements could be coming.

In the House, Speaker Paul D. Ryan of Wisconsin recently reaffirmed his support for a criminal justice overhaul, calling himself a late convert to the cause and promising to move forward with legislation. “We’re going to bring criminal justice reform bills, which are now out of the Judiciary Committee, to the House floor and advance this,” he said in a recent question-­and-­answer session....

Some see a potential upside in the Supreme Court fight. Mr. McConnell could be more motivated to bring the criminal justice measure to the Senate floor to show that Republicans, who are under withering criticism from Democrats on a daily basis over the Garland nomination, can work in a bipartisan way and produce some accomplishments.

“Senator McConnell has one of the bigger incentives to work on this particular bill because it is one of the few, if not the only, things that the left and right agree on,” said Inimai M. Chettiar, director of the justice program at the Brennan Center for Justice, a nonpartisan policy institute affiliated with the New York University School of Law.

What happens in the next few weeks will determine if the criminal justice effort has a chance this year.  Failure to find consensus would represent a major defeat not just for President Obama and congressional backers of the legislation, but also for the unusual coalition of disparate political forces that united behind it as an overdue course correction from the tough­-on-­crime approach of the 1990s.

I am starting now to worry that more than a few folks on the left may be disinclined to encourage Democratic Senators like Dick Durban to elbow the SRCA into the queue based on the hope that a big Democratic victory in November would enable a push for a more robust and far-reaching reform bill.  Moreover, as every day passes, it seem to me increasingly easy given various 2016 election timelines for any and every fence-sitting Senator to urge leadership to postpone a vote on federal sentencing reform at least until the 2016 lame duck sesssion or in the next Congress.

A few 2016 related posts:

 

UPDATE: I just came across this recent Roll Call piece striking similar themes and headlines "White House Eager to Rekindle Criminal Justice Effort: Cornyn 'optimistic' but GOP fissures, floor time posing problems."

April 7, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (7)

Wednesday, March 30, 2016

Prez Obama commutes the sentence of 61 more federal drug offenders

As reported in this Washington Post piece, "President Obama commuted the sentences of 61 inmates Wednesday, part of his ongoing effort to give relief to prisoners who were harshly sentenced in the nation’s war on drugs." Here is more on this notable clemency news:

More than one-third of the inmates were serving life sentences. Obama has granted clemency to 248 federal inmates, including Wednesday's commutations.  White House officials said that Obama will continue granting clemency to inmates who meet certain criteria set out by the Justice Department throughout his last year....  Since the Obama administration launched a high-profile clemency initiative, thousands more inmates have applied.  Another 9,115 clemency petitions from prisoners are still pending....

But sentencing reform advocates said that many more prisoners are disappointed they have not yet heard from the president about their petitions. “Sixty-one grants, with over 10,000 petitions pending, is not an accomplishment to brag about,” said Mark Osler, a law professor at the University of St. Thomas in Minnesota and an advocate for inmates petitioning for clemency.  “I know some of those still waiting, men who were grievously over-sentenced, who have reformed themselves, and never had a record of violence.  My heart breaks for them, as their hope for freedom — a hope created by the members of this administration — slips away.”

The White House has argued that broader criminal justice reform is needed beyond the clemency program. “Despite the progress we have made, it is important to remember that clemency is nearly always a tool of last resort that can help specific individuals, but does nothing to make our criminal justice system on the whole more fair and just,” said White House counsel W. Neil Eggleston. “Clemency of individual cases alone cannot fix decades of overly punitive sentencing policies.  So, while we continue to work to resolve as many clemency applications as possible — and make no mistake, we are working hard at this — only broader criminal justice reform can truly bring justice to the many thousands of people behind bars serving unduly harsh and outdated sentences.”

Among those granted clemency on Wednesday was Byron Lamont McDade, who had an unusual advocate in his corner.  The judge who sent McDade to prison for more than two decades for his role in a Washington-area cocaine conspiracy personally pleaded McDade’s case for early release. U.S. District Judge Paul L. Friedman said McDade’s 27-year punishment was “disproportionate” to his crime, but that he had no choice but to impose the harsh prison term in 2002 because of then-mandatory sentencing guidelines. Over the years, the judge had urged the Bureau of Prisons and the White House to reduce McDade’s sentence to 15 years.  He received no response until now....

On Thursday, the White House will hold an event called Life after Clemency that will include former inmates and their attorneys, along with some prison reform advocates. The president’s senior adviser, Valerie Jarrett, is meeting with advocates, former inmates and family members of prisoners Wednesday at the White House for an event about women and the criminal justice system.

This White House Press release provides basic details on the full list of 61 offenders who today learned that they now have a "prison sentence commuted to expire on July 28, 2016." Many of those listed appear to have been involved in a crack offense, though other drug cases sentenced both before and after Booker can be found in the group.  Notably, this NACDL press release reports that "25 of [these 61 offenders] were applicants whose petitions were supported by Clemency Project 2014."  This White House blog post authored by White House counsel W. Neil Eggleston provides more details and context concerning these grants:

Today, the President announced 61 new grants of commutation to individuals serving years in prison under outdated and unduly harsh sentencing laws.  More than one-third of them were serving life sentences.  To date, the President has now commuted the sentences of 248 individuals more than the previous six Presidents combined. And, in total, he has commuted 92 life sentences.

Underscoring his commitment not just to clemency, but to helping those who earn their freedom make the most of their second chance, the President will meet today with commutation recipients from both his Administration and the previous administrations of Presidents George W. Bush and Bill Clinton.  During the meeting, the commutation recipients will discuss their firsthand experiences with the reentry process and ways that the process can be strengthened to give every individual the resources he or she needs to transition from prison and lead a fulfilling, productive life. 
 
Building on this conversation, tomorrow the White House will host a briefing titled Life After Clemency with advocates, academics, and Administration officials to discuss and share ideas on the President’s clemency initiative and ways to improve paths to reentry. In addition to officials from the White House and the Department of Justice, experts, academics, and commutation recipients will share their expertise and insights on returning to society after years behind bars.  To watch the briefing live, tune in tomorrow, Thursday, March 31, at 2:00 PM EDT at www.whitehouse.gov/live.

March 30, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Wednesday, March 16, 2016

After a month, Prez Obama makes ("consensus"?) pick of DC Circuit Chief Judge Merrick Garland for SCOTUS opening

Still0316_00037_1458141169766_1031097_ver1.0Color me deeply disappointed by this big SCOTUS news.  A president who campaigned on a promise of hope and change and who indisputably was elected to the Oval Office twice thanks to the strong support of minority and younger Americans has now decided to nominate to the Supreme Court to replace Justice Antonin Scalia, an old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit, none other than Chief DC Circuit Judge Merrick Garland, another old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit. 

In this prior post, I (apparently foolishly) suggested that Prez Obama might be leaning to appointing a former federal defense lawyer to the Supreme Court given his comments about looking for a nominee with "a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook [but who has] life experience earned outside the classroom and the courtroom."   But Chief Judge Garland, like far too many of the current Justices in my view, is a career "inside-the-Beltway" lawyer having served in the Justice Department during the Clinton Administration and having spent the last two decades serving on the most insulated and isolated of all the US Circuit Courts.  Notably, at a time when American voters on both sides of the aisle have shown an interest in changing "politics as usual" in Washington DC, the President has decided to nominate the most "old-school" SCOTUS candidate I could imagine.

Readers will not be surprised to hear that what really has me irked about this SCOTUS choice is that it provides yet more proof that President Barack Obama is never actually willing to "walk the walk" on criminal justice reform when he has a real opportunity to use his power and platform to engineer real change.  Appointing someone with a public defender background would be a powerful statement that lawyers who defend those accused of crimes have a critically important perspective on the operation and application of the rule of law.  Instead, Prez Obama has nominated a former Criminal Division DOJ lawyer who supervised the Oklahoma City bombing case and the case against the Unabomber.  Tellingly, in his announcement this morning, Prez Obama stressed Chief Judge Garland's "sterling record as a prosecutor" and expressed admiration for his prosecutorial efforts to avoid the possibility that the  Oklahoma City bomber "might go free on a technicality."

On the criminal justice front, here is part of what SCOTUSblog had to say about Judge Garland back in 2010 when he was on a prior short-list concerning a replacement for Justice Stevens:

On a number of issues, particularly those related to criminal law, Judge Garland is the least likely to adopt a liberal position....

The most significant area of the law in which Judge Garland's views obviously differ materially from those of Justice Stevens is criminal law. Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions....

Most striking, in ten criminal cases, Judge Garland has disagreed with his more-liberal colleagues; in each, he adopted the position that was more favorable to the government or declined to reach a question on which the majority of the court had adopted a position favorable to a defendant. Because disagreement among panel members on the D.C. Circuit is relatively rare, this substantial body of cases is noteworthy.

In the end, and perhaps ironically, I suspect that Prez Obama has made this selection because he does not believe the Senate will move forward with any nominee, and because Chief Judge Garland at age 63 may be uniquely willing now to be the focal point of the already on-going battle royale over the current empty SCOTUS seat.  Also, Prez Obama is sure to have fun making much of the fact in 2010 Senator Orrin Hatch had urged Prez Obama to nominate Judge Garland as "a consensus nominee" who would "be very well supported by all sides."  (Of course, left out of this analysis is that critical Senators Mitch McConnell and Charles Grassley voted against confirmation of Judge Garland back in the 1990s and that Judge Garland's record on gun control seems very likely to be a focal point of criticism from many GOP officials and advocacy groups.)  

Maybe it was true in 2010 that Chief Judge Garland would be "very well supported by all sides," but I seriosuly doubt this will prove true in 2016.   Moreover, in light of both Chief Judge Garland's judicial record and the unique opportunity and open SCOTUS seat presents to diversify perspectives and backgrounds on this Court, I am now thinking I will be rooting for the Senate to refuse to move forward with his nomination. 

Prior related posts on new SCOTUS nominee possibilities:

March 16, 2016 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (31)

Monday, February 22, 2016

Highlighting that, despite lots of talk and a little action, Prez Obama remains a clemency grinch

Over at his blog Pardon Power, political scientist PS Ruckman does a terrific job tracking and placing in historical context the latest date concerning the use of presidential clemency powers.  And these three recent posts highlight effectively that, despite lots of talk from the Obama Administration about a big clemency initiative, the current President the most notable story to date concerning Obama's clemency record is how stingy it is:

As long-time readers know, I have been urging Prez Obama to live up to his hope and change rhetoric in this arena since the day he was inaugurated seven year ago, as highlighted by these two posts from January 20, 2009: Inaugural rhetoric about freedom and liberty in prison nation and Is it too early to start demanding President Obama use his clemency power?.  (The extensive comments to the second of these posts are especially interesting to review with the benefit of seven years of political hindsight.)  In addition, way back in 2010, I authored this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders," which closed with this recommendation:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, my vision and goals here are meant to be fairly basic.  The idea is for President Obama to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice.

The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice.  In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems.  It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.

I have reprinted this suggestion here because, though I made the pitch in print more than half a decade ago, it still strikes me as timely and relevant to the on-going discussions about federal criminal justice reform.  Indeed, given this latest data marshalled by PS Ruckman and the seemingly limited success and limited basis for optimism as of February 2016 surrounding "Clemency Project 2014," I think Prez Obama and the rest of the federal criminal justice reform discussion might benefit now more than ever from the creation of some form of a "Clemency Commission" headed by a "clemency czar."  And, especially with US District Judge John Gleeson now only a few weeks away from stepping off the federal bench, there is an obvious candidate for the ideal first clemency czar.

As regular readers (and my students know), I could go on and on and on about this subject and especially about President Obama's unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.  But rather than repeat myself, I will just link to just a few of my prior Obama-era posts while starting to wonder in the wake of recent election results whether President Hillary Clinton or President Donald Trump might have the interest and ability to really bring hope and change to a very sorry modern federal clemency history.

Just a few of many recent and older posts concerning the modern ugly realities of federal clemency:

February 22, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Tuesday, January 26, 2016

"Why we must rethink solitary confinement"

The title of this post is the headline of this new Washington Post commentary authored by the President of the United States Barack Obama.  Here are excerpts from the piece, which concludes with a pitch for broader sentencing reforms:

Solitary confinement gained popularity in the United States in the early 1800s, and the rationale for its use has varied over time.  Today, it’s increasingly overused ... with heartbreaking results — which is why my administration is taking steps to address this problem.

There are as many as 100,000 people held in solitary confinement in U.S. prisons — including juveniles and people with mental illnesses.  As many as 25,000 inmates are serving months, even years of their sentences alone in a tiny cell, with almost no human contact.

Research suggests that solitary confinement has the potential to lead to devastating, lasting psychological consequences.  It has been linked to depression, alienation, withdrawal, a reduced ability to interact with others and the potential for violent behavior.  Some studies indicate that it can worsen existing mental illnesses and even trigger new ones.  Prisoners in solitary are more likely to commit suicide, especially juveniles and people with mental illnesses.

The United States is a nation of second chances, but the experience of solitary confinement too often undercuts that second chance.  Those who do make it out often have trouble holding down jobs, reuniting with family and becoming productive members of society.  Imagine having served your time and then being unable to hand change over to a customer or look your wife in the eye or hug your children.

As president, my most important job is to keep the American people safe.  And since I took office, overall crime rates have decreased by more than 15 percent.  In our criminal justice system, the punishment should fit the crime — and those who have served their time should leave prison ready to become productive members of society.  How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer.  It’s an affront to our common humanity....

The Justice Department has completed its review [on the use of solitary], and I am adopting its recommendations to reform the federal prison system.  These include banning solitary confinement for juveniles and as a response to low-level infractions, expanding treatment for the mentally ill and increasing the amount of time inmates in solitary can spend outside of their cells.  These steps will affect some 10,000 federal prisoners held in solitary confinement — and hopefully serve as a model for state and local corrections systems.  And I will direct all relevant federal agencies to review these principles and report back to me with a plan to address their use of solitary confinement.

Reforming solitary confinement is just one part of a broader bipartisan push for criminal justice reform.  Every year, we spend $80 billion to keep 2.2 million people incarcerated.  Many criminals belong behind bars.  But too many others, especially nonviolent drug offenders, are serving unnecessarily long sentences.  That’s why members of Congress in both parties are pushing for change, from reforming sentencing laws to expanding reentry programs to give those who have paid their debt to society the tools they need to become productive members of their communities.  And I hope they will send me legislation as soon as possible that makes our criminal justice system smarter, fairer, less expensive and more effective.

In America, we believe in redemption.  We believe, in the words of Pope Francis, that “every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.”  We believe that when people make mistakes, they deserve the opportunity to remake their lives.  And if we can give them the hope of a better future, and a way to get back on their feet, then we will leave our children with a country that is safer, stronger and worthy of our highest ideals.

January 26, 2016 in Criminal justice in the Obama Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, January 20, 2016

Disconcerting backstory apparently explains quick departure of DOJ's Pardon Attorney

I had seen news late last week that the Justice Department’s relatively new pardon attorney had announced she was resigning her post, and this new Washington Post article about the departure provides some of the backstory. The piece is headlined "Attorney overseeing clemency initiative leaving in frustration," and here are excerpts:

The Justice Department’s pardon attorney — charged with overseeing the review of clemency petitions from federal inmates — is stepping down at the end of January because she is frustrated by a lack of resources for one of the president’s centerpiece criminal-justice initiatives, according to people close to her.

The departure of Deborah Leff, who has been in her role since 2014, comes as the Obama administration struggles to process a backlog of more than 9,000 pending clemency petitions. As the president approaches the end of his second term, time is running out for his high-profile effort to offer clemency to certain nonviolent federal drug offenders harshly sentenced in the nation’s war on drugs.  

The Justice Department said it is confident that Leff’s departure will not delay the administration’s clemency initiative, and it hopes to find a replacement quickly.  Justice spokeswoman Emily Pierce also said the department is asking Congress to more than double the number of lawyers assigned to the pardon office, from 22 to 46.

Leff could not be reached for comment but released a statement saying that she has known President Obama for more than 20 years and that she thinks “his commitment to reinvigorating the clemency process — and the promise that holds for justice — can change the lives of a great many deserving people.” But Leff added: “It is essential that this groundbreaking effort move ahead expeditiously and expand.”

A former trial lawyer, senior television producer and president of the Public Welfare Foundation, Leff was highly respected by sentencing reform advocates. “She never got the staffing she needed,” said one friend. “She was very frustrated.” Other people close to Leff said that she was passionate about making the clemency initiative work but had been unhappy for quite some time about not having enough resources.

Obama has commuted the sentences of 184 federal inmates. White House Counsel Neil Eg­gleston said in December that Obama has commuted the sentences of more individuals than the past five presidents combined and that the president will grant more commutations and pardons this year. But advocates of sentencing reform are disappointed that the clemency process has not moved more quickly and that more of the thousands who have submitted clemency petitions have not had their sentences commuted....

A senior Justice Department official said that the clemency initiative is of the highest priority for the department and that those involved have been working tirelessly to move petitions along as quickly as they can with a limited budget and legal restrictions....

“To lose the head of the office that’s running the clemency initiative is concerning,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We hope she is replaced by someone who is as dedicated, smart, passionate and committed as she was to getting these petitions through.”

Pierce said the department has been constrained by law in terms of how many resources and how much of its budget it can devote to the clemency initiative. Pierce said the department has “provided additional funds to the pardon office within the confines of our budget and has detailed dozens of additional full- and part-time attorneys over the course of the clemency initiative.” Despite the constraints, a Justice official said that lawyers are reading each of the thousands of clemency petitions that have been submitted and have prioritized the ones that best meet the new criteria set out by the administration....

Justice officials said that they expect to name a replacement before Leff leaves Jan. 31. “A new pardon attorney will be named in the near future and we expect the work of the pardon attorney’s office to continue apace as we identify and vet potential candidates for the president’s clemency priorities,” Pierce said. “The Justice Department is dedicated to the goals of the clemency initiative and is steadfastly committed to doing all it can to ensure fairness in the criminal-justice system.”

I find this story disconcerting because it seems to me just another manifestation of the problems Prez Obama has himself created by having ignored his clemency powers during his first six years in office and then deciding he should try to make up for lost time on his way out of the Oval Office.  I had (foolishly?) hoped Prez Obama would have been a lot smarter in this important space in the wake of the ugly last-day clemency doings of Prez Clinton back in 2001 and especially with out-going Prez Bush telling in-coming Prez Obama on Inauguration Day 2009 that clemency matters should garner his attention.  But here we are seeing, yet again, that by ignoring these matters until essentially the last minute, Prez Obama's record in this space will be marked by various missteps and frustrations (although I remain hopeful that even his "last-minute" efforts will still result in a notable improvement on the work of many of his recent predecessors in the clemency arena).

January 20, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Justified criticisms of Prez Obama's not-so-justified criticisms of proposed mens rea reform

This new National Review commentary authored by James Copland and Rafael Mangual, headlined "On Criminal-Justice Reform, Obama Should Practice What He Preaches — Civility," levels complaints at the Obama Administration for complaining about mens rea reform efforts in Congress.  Here are excerpts:

In his final State of the Union address, President Obama expressed his hope to reach across the aisle on what he described as a “priority” issue: criminal-justice reform. Although we strongly agree with the president that reforming the federal approach to criminal justice should be a priority, he has unfortunately jeopardized such reforms with an uncompromising hostility to Republicans’ — and other Democrats’ — reform ideas....

Following the lead of left-wing advocacy groups including Public Citizen and Think Progress, the White House and the Justice Department almost instantly came out against both criminal-intent bills [introduced in the House and Senate]. A White House official told the Huffington Post that these bills would “enable defendants charged with a range of offenses — including violent crimes, terrorism, and sexual offenses — to potentially escape liability for egregious and harmful conduct.”

These claims are pure poppycock and completely at odds with the president’s State of the Union call for a “rational, constructive,” and “more elevated debate.”  To be sure, there might be reasonable critiques of the draft legislation and possible amendments that could create different definitions or standards — just as the sentencing reforms supported by President Obama ought to be vetted to make sure that they are not releasing violent criminals back onto the streets.  But by drawing a line in the sand against Republican priority reforms — and by suggesting that Republican and Democratic legislators who support criminal-intent standards are somehow soft on terrorism or sexual assault — the president is hardly being constructive or elevating the debate on criminal-justice reform.

In essence, the bill so vehemently opposed by the White House would merely require Congress to be explicit whenever it wishes to criminalize conduct without regard to the intent of the actor.  It would prevent courts from assuming from congressional silence that Congress meant to send unknowing violators of a law or regulation to jail, as opposed to merely hitting them with an often-hefty civil fine or penalty.

Democrat stalwarts on the House Judiciary Committee, including John Conyers (D., Mich.) and Shelia Jackson Lee (D., Texas), are supporting this reform because they understand it’s a matter of fundamental fairness. They also understand that it is small businesses and individuals, disproportionately minorities and those less well off, that tend to get unknowingly entangled in the labyrinthine federal code; big businesses and their executives have teams of lawyers to advise them.

The fact is that 15 states have explicit “default” standards for criminal intent like those in the bipartisan task force’s bill. Michigan enacted such a reform most recently, in December 2015. The Michigan ACLU spoke in favor of the law, and it passed both houses of the legislature unanimously.

If President Obama really does care about getting something done on the issue of criminal-justice reform, he ought to heed his own advice and take a more civil tone in his own contributions to that debate. It’s hardly “constructive” to demonize others’ positions and adopt a “my way or the highway” negotiating stance. With Republicans enjoying majorities in both chambers, the criminal-intent piece of the reform effort — a product of more than two years’ effort by a bipartisan task force — is especially important if the president truly hopes to achieve meaningful progress toward criminal-justice reform in his remaining year in office.

Some recent and older related posts:

January 20, 2016 in Criminal justice in the Obama Administration, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, January 13, 2016

Might misguided mens rea reform concerns derail federal sentencing reform's momentum?

The question in the title of this post is prompted by this new Atlantic piece headlined "A New Hurdle in the Push for Criminal-Justice Reform: A disagreement between a House Republican and the Obama administration creates a challenge."  Here is how the article starts:

The stars seem to have aligned.  An unlikely coalition of liberals and conservatives has coalesced around criminal-justice reform, as the public appears to be paying more attention to fatal police shootings and mass incarceration. President Obama has worked to gin up momentum for reform, and is expected to press for action during his final State of the Union address Tuesday evening.

Even with that common ground, however, tensions are bubbling up.  A debate over the burden of proof for criminal convictions now threatens to throw a wrench into the effort to overhaul the nation’s criminal-justice system.  That debate was on full display Tuesday during a conversation between House Judiciary Committee Chairman Bob Goodlatte and The Atlantic’s Washington Editor-at-Large Steve Clemons at an Atlantic Exchange event.  The Republican chairman suggested that the House of Representatives won’t approve a criminal-justice deal without changes to the way the U.S. criminal code determines criminal intent, despite the fact that the White House opposes the changes.

“A deal that does not address this issue is not going anywhere in the House of Representatives,” Goodlatte said when asked if he would oppose a deal that did not include such a provision.  “It has to be overcome.  This is a critical element to doing justice in this country.”

The disagreement points to the possibility that negotiations will break down.  It highlights the challenges, and potential pitfalls, of assembling a left-right coalition, and raises the question of how much various interests at play will be willing to compromise.  The dispute also threatens to stall sentencing reform, an issue that the president has elevated as a top priority in his second-term.

At stake is a question of fairness.  Goodlatte, along with conservative and libertarian organizations, support legal changes that they say would protect citizens from being unfairly charged with crimes they unknowingly committed. The White House, along with liberal organizations, believe that altering the burden of proof could make it more difficult to prosecute criminal activity.  Critics also fear the proposal could let big business off the hook for illicit activities that lawyers could claim a company didn’t know were illegal.

That conflict could derail sentencing reform.  Goodlatte indicated Tuesday that he would not support an effort to deal with criminal-intent and sentencing reform separately as a way of bolstering the odds of passing legislation to cut down on mandatory minimums for certain offenses.

As the question in the title of this post suggests, I think Rep. Goodlate is 100% right that a provision clarifying that nobody should face serious federal criminal charges without federal prosecutors having to prove the accused had a significantly culpable mens rea is "a critical element to doing justice in this country."  Indeed, one of the reasons I stopped considering myself a "liberal" as that term is now understood is because of these kinds of issues where so-called "liberals" seem eager to deny a premise I consider fundamental in a liberal society, namely that one should not be treated like and branded a serious criminal by the government unless and until that government can prove an individual has acted and thought like a serious criminal.

Notably, I know that at least one serious criminal justice reform group, the National Association of Criminal Defense Lawyers is supportive of mens rea reform.  Consequently, I suspect and fear the "liberal organizations" against this kind of reform are the same type that were cheerleading the laws contributing to mass incarceration passed during the Clinton era when Democrats were eagerly trying to earn political points by being even tougher on crime than their political adversaries.  Blah. 

Some recent and older related posts:

January 13, 2016 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5)

Tuesday, January 12, 2016

Unless Prez Obama goes off script, do not expect much SOTU talk about criminal justice reform

The White House has now released here the "Remarks of President Barack Obama – As Prepared for Delivery State of the Union Address." And, despite much early buzz that criminal justice reform was going to get some serious attention, it seems that the only part of the speech that even gets close to mentioning this topic comes at the very outset:

Tonight marks the eighth year I’ve come here to report on the State of the Union.  And for this final one, I’m going to try to make it shorter.  I know some of you are antsy to get back to Iowa.

I also understand that because it’s an election season, expectations for what we’ll achieve this year are low.  Still, Mr. Speaker, I appreciate the constructive approach you and the other leaders took at the end of last year to pass a budget and make tax cuts permanent for working families.  So I hope we can work together this year on bipartisan priorities like criminal justice reform, and helping people who are battling prescription drug abuse.  We just might surprise the cynics again.

Given Prez Obama's so far uninspired record in this space, I suppose I should not be too surprised or disappointed that all the criminal justice buzz leading up to this speech was just more smoke and mirrors. And, if Prez Obama ends up walking the walk on what some have called "mass clemency," I will not be troubled that he did not talk the talk about criminal justice issues in this final SOTU. Still, I am now far less excited to hear him deliver the speech.

January 12, 2016 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (9)

Sunday, January 10, 2016

Expecting (too?) much crime and punishment talk at Prez Obama's last State of the Union

DownloadLong-time readers know that I am always hopeful that the annual State of the Union events will address criminal justice issues, and also that Prez Obama has been consistently disappointing in this respect with his prior SOTUs.  But this year, for lots of reasons, I am expecting crime and punishment to play a big role in the final SOTU to be delivered by Prez Obama.  One reason is because of a notable guest who will be there as reported in this BuzzFeed News piece headlined  "Meet The Ex-Convict President Obama Will Host At The State Of The Union." Here is how the article gets started (with links from original):

On Tuesday, President Obama may include a renewed promise to change the way the criminal justice system deals with suspects, offenders, and convicts in his final State of the Union address.  In the audience will be woman who has seen all sides of the justice system — and all after her 57th birthday.  Sue Ellen Allen, who spent nearly seven years as an Arizona inmate in the state’s women’s prison near Goodyear will be among the president’s guests at the speech. Allen was raised middle class, lived wealthy, and lost it all on her way to being convicted in absentia of securities fraud while an international fugitive on the run with her husband who also served time for the crime.

After she got out of prison, in 2009, Allen did everything she could to get back in and offer resources to women still behind bars that she believes will help them escape the recidivism cycle that traps many inmates in the justice system for years.  Now she regularly returns to the prison that held her to run education and jobs programs for the women there.  She says the experience of seeing another side of America was “a blessing” and that her new calling is part of making good on the lessons she learned behind bars.  “I was well educated, I was privileged because I have white skin — I’m a white woman and that’s a privilege,” Allen told BuzzFeed News. “If you had told me what I was going to see and experience in prison, I would have said, ‘Not in my country. We don’t treat people that way.’ I was wrong.”

When Obama delivers the State of the Union speech, Allen will be there, seated in the House chamber in the Capitol. Presidents regularly use their guest list to highlight issues and policy goals, and Obama’s seventh address will be no different. (Obama is breaking the mold a little next week — one of his “guests” will be a seat intentionally left empty to highlight the Americans lost during his presidency to gun violence.)

But White House aides say the focus of the speech is different than other State of the Union speeches. Instead of the standard list of policy ideas and applause lines, senior administration officials say this State of the Union will be about the broad changes Obama promised in his first campaign and how they play into his presidential legacy.

Criminal justice is set to be a huge part of that legacy, and get a prominent place in the speech.  The Obama administration has linked up with conservatives and liberals to push changes to the justice system aimed at reducing the number of people put in prison, the length of time nonviolent offenders spend there, and reducing the costs associated with a system that houses more inmates than any other country on earth.  The Obama administration has attempted to address longstanding goals of criminal justice advocates at the highest levels — the administration has supported dramatic changes in the war on drugs and called for an end to many mandatory minimum prison sentences — and the lowest.  Obama has taken interest in prison life, becoming the first president to visit a federal prison last July. He’s called for new anti-recidivism programs and more efforts to offer education and other assistance to people behind bars.  Changing the way prisons work, the president has said, can reduce the number of people who go in, out and back into the system.

In addition to expecting Prez Obama to talk about criminal reform during his SOTU speech, perhaps we could hear mention of crime and punishment in the GOP response.  At the very least, folks at FreedomWorks are suggested it should via this recent commentary headlined "Republicans Should Promote Justice Reform in State of the Union Response."

January 10, 2016 in Criminal justice in the Obama Administration, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Thursday, December 17, 2015

Curious Cato commentary attacks Obama Administration for failing to change prosecutorial charging policies that have been changed

As regular readers know, I have often bashed the Obama Administration for too much talk and too little action in the arena of criminal justice reform.  But because I always try to ground my criticisms in facts and to give credit to the Administration for its actions, I must call out as misinformed and misguided this new Cato commentary by  Nat Hentoff headlined "Obama Ignores Judge’s Plea for Justice Reform."

The Hentoff commentary properly notes that the "charging policies that federal prosecutors are forced to follow are the one area of criminal justice reform that the president of the United States has the authority to impose unilaterally." But the commentary suggests, wrongly in my view, that through the 2010 Holder memorandum (first discussed here) the Obama Administration failed to change federal charging policy for the better.  

In addition, and even more troublesome, the Hentoff commentary completely fails to mention the important 2013 Holder memorandum (first discussed here) and a 2014 Holder follow-up memo (discussed here) concerning charging of mandatory minimums and recidivist enhancements in federal drug cases.  Also, and not to be overlooked in the context of federal charging policies, the Obama Administration has been quite bold when issuing a series of major charging directives that encourage federal prosecutors largely to keep their noses out of state-level marijuana reform efforts.  Collectively, these major charging directives from the Obama Administration's Department of Justice to line prosecutors have marked a significant shift in charging policies, and various federal sentencing statistics suggest these changed DOJ charging policies have been having a significant impact on federal criminal justice outcomes. 

This all said, though I am troubled by the particulars in this Cato commentary, I see much merit in Hentoff's final critical sentence: "Obama continues to pay lip service to criminal justice reform by enacting half-hearted half-measures."  Though I believe the Obama Administration has actually been quite effective and astute in the modification of federal prosecutorial charging policies, I also believe that it has been far less effective and astute in moving forward with an array of other badly needed federal criminal justice reform efforts.

December 17, 2015 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Monday, December 14, 2015

Will Senate leader ever bring latest federal sentencing reform bill up for a full Senate vote?

The question in the title of this post is prompted by this notable inside-the-Beltway report from the New York Times headlined "Mitch McConnell Demurs on Prospects of Criminal Justice Overhaul."  Here are excerpts:

Despite a concerted push from a broad right-left coalition, Senator Mitch McConnell said he had not determined whether he would bring a bipartisan criminal justice overhaul to the Senate floor next year.  “I haven’t decided yet,” Mr. McConnell, the Kentucky Republican and majority leader, said in an interview on Thursday as he began looking toward 2016.

The Senate leader definitely seemed open to the idea.  He said the proposal, which would reduce some mandatory minimum sentences, lead to early release for thousands of nonviolent offenders and set up new programs to help them adjust to life after prison, seemed to meet his criteria for allocating precious Senate floor time.

“It seems to have pretty broad bipartisan support,” Mr. McConnell said of the criminal justice legislation approved by the Judiciary Committee in October.  “This is the kind of thing, when you look at it, you have principals on both sides who are interested in it.  That makes it worthy of floor time.”

However, the legislation, while endorsed by both conservative and progressive interest groups, could present a sticky election-year vote for some Republicans who typically see themselves as law-and-order politicians.  And the issue could get very complicated should Senator Ted Cruz of Texas become the Republican presidential nominee.  Mr. Cruz voted against the plan in the Judiciary Committee and was outspoken in his criticism.  So if the Republican-led Senate moved forward, it could conceivably be pushing legislation opposed by its candidate for the White House.

It is critical to recall that just a few years ago when Democrats still controlled the Senate, then-Senate leader Harry Reid never brought the Smarter Sentencing Act up for a full Senate vote ever after the SSA passed through the Senate Judiciary Committee with bipartisan support and even though there was good reason to believe the SSA would have garnered majority support from the full Senate.  Thus, as this article spotlights, the passage of the Sentencing and Correction Reform Act through the Senate Judiciary Committee provides no certainty that even the full Senate will get a chance to vote of this reform bill.

As reported earlier, it is clear that the first few months of 2016 now constitute the next critical period for federal statutory sentencing reform.  I remain cautiously optimistic that the broader political and social forces that have so far propelled bipartisan support for reform to this point will help carry some bill through both houses of Congress in some form in 2016.  But I am not counting any sentencing reform chickens anytime before they completely hatch out of Congress and find their way to the desk of the President.

December 14, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Monday, December 07, 2015

Extended account of much Obama executive ado so far still amounting to nearly nothing

Images (6)This past weekend, the Washington Post had this extended account of how and how long Prez Obama and former Attorney General Eric Holder have been talking about working toward significant criminal justice reform.  I recommend the entire piece, and here are some extended excerpts:

Thee summer after President Obama began his second term in office, he and then-Attorney General Eric H. Holder Jr. were relaxing and watching fireworks from a porch on Martha’s Vineyard. Holder was about to interrupt his family vacation to fly to San Francisco and deliver a speech unveiling their plans to make the most significant changes in the country’s criminal justice system in decades.

“I’m the only one who hasn’t seen your speech,” Obama said teasingly to Holder... But the president really already knew what Holder planned to say.

The text was the culmination of countless conversations over the years between Holder and Obama about how this country prosecutes and incarcerates its citizens. Obama had seen the racial disparities of the decades-long war on drugs close up as a community organizer on the South Side of Chicago; Holder experienced them as a former D.C. judge and prosecutor.  The two men met in 2004 at a small Washington dinner party shortly after Obama was elected to the Senate, and there was an instant connection. “We share a world view,” Holder said recently. “We kind of feel each other.”

Now, they were finally ready to act....

Laying out a three-part plan he called “Smart on Crime,” Holder said that he was directing his prosecutors nationwide to stop bringing charges that would impose harsh mandatory minimum sentences, except in the most egregious cases.  He called for more compassionate release of aging and ill inmates, more drug diversion programs as alternatives to prison and spoke of “shameful” sentencing disparities, a hint of Obama’s plans to use his clemency power to correct the disparities and release certain drug offenders early....

Nearly 2-1/2 years later, the administration’s major criminal justice overhaul has yielded mixed results.  Obama and Holder helped launch a national conversation about mass incarceration.  Last year, federal prosecutors pursued mandatory minimum sentences at the lowest rate on record — and sentencing reform legislation with bipartisan support has been introduced in Congress.

But some prosecutors are continuing to resist changes to mandatory minimum sentencing.  The initiative has also not yet made a significant dent in the number of inmates crowded into federal prisons.  Only 25 of the 531 elderly inmates who have applied for compassionate release under the new policy have received it.

And in the key executive action that Obama can take to undo unfair sentences, he has only granted clemency to 89 inmates of the thousands of federal drug offenders who have applied.  The president is expected to grant clemency to about another 100 prisoners in the coming weeks.

But Holder said he initially thought that as many as 10,000 of the federal prison’s nearly 200,000 inmates “were potentially going to be released” under the new clemency initiative.  Other Justice officials say the number is closer to 1,000 or 2,000. Criminal justice reform advocates are criticizing the president for moving too slowly and are calling on him to speed up the clemency process before his administration runs out of time.

“Given the president’s repeated concern about the numbers of people in prison serving excessive sentences, he has done little to alleviate the problem through clemency,” said Julie Stewart, president and founder of Families Against Mandatory Minimums.  “The president has all the constitutional authority he needs to do the right thing. Failure here cannot be blamed on partisanship in Congress.  If the president wants to correct past injustices, he can.”...

The real planning for how to unwind the country’s war on drugs began the summer before Holder’s speech. He and Obama anticipated a successful second-term election....  “Let’s go big,” Holder recalls Obama saying that August, again on the Vineyard.  “It’s gutsy.  It’s risky.  But it’s something we ought to do.”

A few months later, in January 2013, Holder directed his senior Justice officials to break into groups and bring him recommendations.  Holder and Obama were concerned about the backlash.  Could they pull off this huge reversal of drug policy and sentencing?  Would they be accused by Republicans of being soft on crime?

The pushback did come — but it was from within Holder’s own department.  In U.S. attorneys’ offices around the country, some prosecutors were supportive of the new policy, but others grumbled that Holder was taking away their most effective tool to get cooperation from drug offenders.  The organization representing line prosecutors wrote a letter to Holder and then went over his head and sent letters to top congressional leaders, urging them not to change the sentencing rules.

Regular readers know that I have been a persistent supporter of the Obama Administration's efforts to refocus criminal justice energies away from the war on drugs, and both Prez Obama and former AG Holder merit credit for helping to change the modern criminal justice reform conversation in the US. But I find quite frustrating and aggravating to hear that Obama and Holder were interested in doing something "big" and "gutsy" concerning the drug war given how little they have done so far that would merit the label big or gutsy.

Big and gutsy would involve granting thousands of commutations, not just dozens; big and gutsy would involve pushing hard on Congress and the Sentencng Commission to move away from drug quantities as the basis for long prison sentences; big and gutsy would involve advocating for bringing back parole eligibility for at least nonviolent drug offenders; big and gutsy would involve creating executive task forces with mandates to lower the federal prison population by at least 25% and to study how best to reform federal marijuana prohibtion; big and gutsy would involve tasking past and present GOP Govs who have championed state sentencing reform to propose possible reforms for the federal system.

Especially because Prez Obama still has a final year to make good on his desire to do something "big" and "gutsy," I am disinclined to give up hope that he can still bring more significant change to the most troublesome part of the nation's criminal justice systems.  In addition, when thinking of Prez Obama's likely sentencing legacy, he surely merits credit for appointing SCOTUS Justices and USSC Commissioners that have been pushing forward significant jurisprudential and doctrinal changes.  But as of this writing, the size, scope and operation of the federal criminal justice system in late Fall 2015 is practically speaking not very much different at all from what the system looked like in late Fall 2008.  Prez Obama has a lot of work ahead if he really wants things to truly be different in this space when he leaves the Oval Office.

December 7, 2015 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0)

Thursday, December 03, 2015

Federal statutory sentencing reform not going to happen until 2016 ... if at all

This TPM DC report, headlined "Criminal Justice Reform Is Quickly Running Out Of Time," provides a Capitol Hill update that confirms what I had heard from another source: the full Congress is unlikely this year to get to the criminal justice reform bills that have made it through the House and Senate Judiciary committees. And, as the TPC article goes on to explain, the enduring GOP uncertainty on this front combine with a Prez campaign to perhaps diminish the prospects that any reform gets done anytime soon:

It was supposed to be the rare bipartisan bright spot in the Senate, but a crowded legislative calendar and the looming election year are endangering the last best hope for criminal justice reform while President Obama is still in office. With roughly three weeks left until the holidays, the Senate is prioritizing passing a tax extenders bill, a reconciliation package to defund Obamacare and Planned Parenthood, a transportation bill, and legislation to fund the government. That means time has run out for criminal justice reform in this calendar year.

"No chance it can be done between now and Christmas," Judiciary Chairman Chuck Grassley (R-IA) said Monday evening as he darted off the Senate floor clutching his list of the Republican senators he still intended to convince to sign onto his bill, his handwritten notes scrawled underneath each of their names.

Advocates and outside observers have long anticipated that the best chance for passage of criminal justice reform would be before the practical realities of electoral politics intruded in 2016. With the remainder of the year taken up by other matters, reformers will have to wait until the Senate gavels back in in the new year, in the midst of presidential primary season.

The prospects of pushing forward with the Senate bill just as the Republican presidential primary in particular is in full swing -- with the expected tough-on-crime appeals to the conservative base -- is daunting. Primary season is hardly the time for the Republicans back in Washington to be giving up on the well-honed GOP attack lines on crime and pushing forward a progressive new position on incarceration....

Grassley and supporters are now running short on time to get their bill on the floor especially if Republican frontrunner Donald Trump stays on top. Trump's attempts to tie illegal immigration and criminality have prompted fellow Republican presidential candidates to follow suite. In a race to out-flank one another, the GOP contenders have backed away from the new wave of conservative thinking on criminal justice reform and reverted to echoing the talking points that were cornerstones of the party in the 1980s and 1990s. Sen. Ted Cruz (R-TX) voted against the criminal justice reform bill in committee in October even as he once billed himself as a pro-reform Republican....

While momentum had been building for the Senate's criminal justice reform bill, there are still deep divisions in the Republican Party to contend with. The tug of war is between traditional tough-on-crime Republicans who believe reductions in sentences would lead to a spike in crime and a new generation of conservatives who see an economic argument for reducing mandatory minimums and slashing the costs associated with incarceration.

Grassley and other sponsors like Sen. Mike Lee (R-UT) are working to convince senators like Cory Gardner (R-CO), Shelley Moore-Capito (R-WV) and Steve Daines (R-MT) to sign on, but there are some outspoken opponents who may prove to be immovable. “I think the bill needs more work. I think it needs to be connected with the reality of criminal justice and crime in America," said Jeff Sessions (R-AL) "I would not favor bringing it up and just zipping it through. A number of members in our conference, I think share those concerns.” Freshman Sen. Tom Cotton (R-AR) replied "no comment" when TPM asked him about his position. Former Judiciary Committee Chairman Orrin Hatch (R-UT) said he was concerned the bill would "let out a lot of people who don’t deserve to be let out [of prison.]"

While Democratic sponsors of the bill are publicly optimistic that the legislation can get a vote on the floor even in an election year, Sen. Sheldon Whitehouse (D-RI) admits the lack of GOP unity does put the legislation in some jeopardy. Republican leadership will want to ensure they have buy in from most of their conference if they are going to risk bringing the bill up in an election year and giving President Barack Obama a domestic legislative victory. “I think this is an issue that needs to be wrangled out on the Republican side so the Republicans on the bill need their own leadership to get it some votes," Whitehouse says. "It's not unanimous so the Jeff Sessions and people like that would be out of the floor pushing back the same way they did on the committee."

Sen. Thom Tillis (R-NC) says he's familiar with the process of selling criminal justice reform to a skeptical audience. Tillis was speaker of the North Carolina House when the legislature passed the Justice Reinvestment Act, which made back-end reforms to reduce recidivism. "I know that a lot of people get concerned with it," Tillis said. “It’s not really a soft on crime bill. It is the typical arguments that get used for these sorts of things, but I think the more that we educate people, the broader base of support we will get for it."

Tillis recognizes, however, that the problem is that on the campaign trail, candidates don't have time to explain complicated or new policy proposals. “If candidates on either side of the aisle exploits it for what it is not, yeah it could slow things down," Tillis said." You only get to operate in 15 and 30 second soundbites, and you cannot explain the merits of this bill in that time frame so yeah going on into the early primaries, it could be difficult and they have to stake themselves out.”

I am not yet giving up all hope that Prez Obama could get to sign a federal sentencing reform bill before he leaves office. But, as I have long been saying, an array of political, policy and practical challenges lead me always to be mostly pessimistic about the prospects of significant congressional action on this front.

December 3, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

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)