Wednesday, January 28, 2015

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

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

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

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

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

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

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

Prior related posts:

January 28, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, January 25, 2015

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Tuesday, January 20, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, January 13, 2015

Senator Grassley queries DOJ concerning its work with Clemency Project 2014

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, January 06, 2015

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

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

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

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

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

Monday, January 05, 2015

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

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

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

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

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

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

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

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

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

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

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

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

Monday, December 22, 2014

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 11, 2014

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

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

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

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

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

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

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

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

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

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

A few recent related posts:

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

Thursday, November 06, 2014

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

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

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

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

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

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

Wednesday, November 05, 2014

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

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

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

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

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

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

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

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

A few recent related posts:

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

Monday, November 03, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, August 21, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, July 27, 2014

Defender hiccup or major headache for Clemency Project 2014?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, May 29, 2014

AG Holder urges fellow prosecutors to back his sentencing reform advocacy

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

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

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

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

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

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

Friday, May 02, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 29, 2014

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

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

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

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

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

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

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

Download McDade opinion

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

Monday, April 28, 2014

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

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

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

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

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

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

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

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

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

Saturday, April 26, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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