Sentencing Law and Policy

Some interesting snippets from the latest crime speech by Attorney General Holder

At the new Department of Justice website (which, personally, I do not find very aesthetically pleasing), one can now find the text of this new speech by Attorney General Eric Holder on crime issues.  This speech was today delivered to the International Association of Chiefs of Police Conference in Denver, and I found these passages especially notable:

But as important as it is to foster a stronger national dialogue between federal, state, and local law enforcement, talk alone is not enough.  Talk alone isn’t going to keep crime rates down.  Talk alone isn’t going to protect innocent victims.  Talk alone isn’t going to stop rival gangs from shooting up our streets, or drug dealers from peddling dope in our schools, or terrorists from attacking our cities.  Indeed, we all know that the best ideas in the world are worth little without the resources to implement them....

I want the Justice Department to be a partner with you as we develop the most up-to-date thinking about law enforcement strategies.  Therefore, I have directed our Office of Justice Programs to transform itself into an evidence-based agency that supports strong research, that shares scientifically-reliable findings that will ultimately help you do your jobs better and then provides the funds necessary to make sound theory into viable reality.  I am confident that this new direction will ultimately help you take advantage of new approaches that will greatly assist you in your efforts to further the cause of justice.

Important new NACDL report critical of modern drug court movement

As detailed in this news release, the National Association of Criminal Defense Lawyers has today released an important new report on drug courts.  The title of the press release. "Drug Courts Endanger Rights, Block Access To Needed Treatment for Drug Users: Defense Lawyers Call for Major Overhaul," highlights that the NACDL is not in favor of extant drug court models.  Here is the start of the press release, which provides a partial summary of the report:

Drug courts – first created 20 years ago as an emergency response to an epidemic of drug-related criminal cases that clogged courts and prisons – have in many places become an obstacle to making cost-efficient drug abuse therapy available to addicts and reducing criminal case loads, the nation’s largest association of criminal defense attorneys said today.

In too many places, access to treatment comes at the cost of a guilty plea for low-level drug offenses while hard cases are denied and offenders wind up in jail at great expense to taxpayers, a report by the National Association of Criminal Defense Lawyers found. The report flowed out of a two-year task force study of problem-solving courts.

Well-intended prosecutors and judges, generally with little input from the defense bar, often limit entry to treatment to offenders most likely to solve their own problems while insisting that “harder cases” go to jail, at considerable taxpayer expense, the study found. Minorities, immigrants and those with few financial resources are often under-represented in drug court programs.

The full report, which is titled "“America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform,” is available at this link.  This report strikes me as quite an important development in the drug court movement, and thus it is today's must-read for any and everyone who has tended to view drug courts and other problem-solving courts as a positive development and part of a healthy evolution away from unduly punitive tough-on-crime approaches.

This report also seems especially timely in light of President Obama's and Attorney General Holder's apparent affinity for drug courts (as noted in prior posts here and here and here).  Indeed, as evidence by many links below, there have been very few loud voices speaking up against modern drug courts until this new report by NACDL.

Some related posts about drug court programs and research:

• New report on drug courts from The Sentencing Project
• NJ commission endorsing expanding drug courts
• A religious pitch for drug courts
• Terrific NIJ drug court report
• Reexamining drug courts
• Judge Lay advocating drug courts again
• A Mississippi pitch for drug courts and getting smarter on crime and punishment
• Resources on drug courts

"Immigration Prosecutions at Record Levels in FY 2009"

The title of this post is the headline of this new data item from the folks at the Transactional Records Access Clearinghouse (TRAC). Here is how the report starts:

The latest available data from the Justice Department show that during the first nine months of FY 2009 the government reported 67,994 new immigration prosecutions. If this activity continues at the same pace, the annual total of prosecutions will be 90,659 for this fiscal year.  According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate is up 14.1 percent over the past fiscal year when the number of prosecutions totaled 79,431.

The comparisons of the number of defendants charged with immigration-related offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys.

These numbers ought to bring a smile to Lou Dobbs and others who are often calling for tougher enforcement of immigration laws.  Whether it amounts to change we can believe in is, of course, a distinct question.   

Will new US Attorneys have a big impact on federal sentencing law and policy?

The new Administration's approach to crack sentencing shows how new personnel in Main Justice is already impact some parts of federal sentencing law and policy.  But, on a case-by-case basis, who serves in local US Attorney offices may have an even bigger long-term impact on the shape and direction of the federal criminal justice system.  Thus, sentencing fans should be very interested in this new article from The National Law Journal, which is headlined the "U.S. Attorney Picks Are Under Way: Some Senate Republicans want a say in who gets selected."  Here are a few of the basics:

President Barack Obama began filling the nation's 93 U.S. Attorney positions on May 15, announcing his first wave of six nominees. The move touched off a closely guarded process freighted with symbolism in the wake of the Bush administration firings scandal.

President George W. Bush and President Bill Clinton made their first U.S. Attorney nominations days before Congress' summer recess in August. Each nominated more than two dozen in the first round.

U.S. Attorney nominations pose a potential hurdle for Obama, as he reconciles the nature of these plum political posts with his pledge of bipartisanship and Attorney General Eric Holder Jr.'s promise to rid the department of partisan meddling. Some Republicans have already signaled their intention to block candidates if they're left out of the process, including Sen. John Cornyn, R-Texas, whose membership on the Senate Judiciary Committee gives him an outsized role in nominations....

On May 15, Obama said he intended to nominate Preet Bharara for the Southern District of New York, Tristram Coffin for Vermont, Jenny Durkan for the Western District of Washington, Paul Fishman for New Jersey, John Kacavas for New Hampshire and Joyce Vance for the Northern District of Alabama.

Though just six have been named so far, about 20 candidates have come to Washington for interviews at the Justice Department in the past two months, according to a source familiar with the process. The meetings are one of the final steps before nomination.

Obama is announcing his picks for U.S. Attorneys in waves, replacing holdover Bush prosecutors once his nominees are confirmed or appointed on an interim basis while awaiting confirmation, Justice Department officials said. That breaks sharply with the system adopted by President Bill Clinton, who sacked nearly all holdover U.S. Attorneys at the start of his first term. The move angered many career Justice Department lawyers who say the turnover disrupted their work and left some prosecutors out on the street.

Some related posts:

• "Smart on Crime: Recommendations for the Next Administration and Congress"
• Why federal sentencing reformers must focus on the USSC and lower courts
• Are we on the verge of a new changed era concerning federal sentencing law and policy?
• Why I fear change will not come quickly to federal sentencing policy and practice
• Will AG Holder really lead a "new birth of freedom" in prison nation?

Revised discussion of criminal justice plans on White House website

Though perhaps this is old news, I just noticed that the discussion of criminal justice issues has changed over at the Civil Rights webpage on WhiteHouse.gov.  As detailed in this old post, this webpage used to take a bullet-point approach to describing agenda items, and the key bullet points were "Reduce Crime Recidivism by Providing Ex-Offender Support"; "Eliminate Sentencing Disparities"; "Expand Use of Drug Courts."  Now this page has just this paragraph with a single heading:

Lead Criminal Justice Reform

The President will lead the fight to build a more fair and equitable criminal justice system.  He will seek to strengthen federal hate crime legislation and will work to ensure that federal law enforcement agencies do not resort to racial profiling.  He supports funding for drug courts, giving first-time, non-violent offenders a chance to serve their sentence, if appropriate, in drug rehabilitation programs that have proven to work better than prison terms in changing behavior. President Obama will also improve ex-offender employment and job retention strategies, substance abuse treatment, and mental health counseling so ex-offenders can successfully re-join society.

I am not sure the changed text suggests any formal changes in policy plans.  However, the prior text stated expressly that President Obama and VP Biden favored completely eliminating the crack/powder sentencing disparity.  It is somewhat peculiar that the crack/powder discussion has now itself been completely eliminated from WhiteHouse.gov even though Obama's Justice Department has now urged Congress to completely eliminate the crack/powder disparity.

Meanwhile, I cannot help but use this opportunity to spotlight, yet again, that President Obama has completely failed to make any use of his clemency power, even though a few strategic clemency grants would present an especially effective means to show he was genuinely committed to "lead[ing] the fight to build a more fair and equitable criminal justice system" and to "giving first-time, non-violent offenders a chance" to avoid excessive and ineffectual prison terms.  I stress this point again and again because, though President Obama has been very active in his first 100+ days on so many other issues, when it comes to hope and change for the federal criminal justice system, he can and should be assailed for being all talk and little action.

Some old and new related posts:

• "Smart on Crime: Recommendations for the Next Administration and Congress"
• Aspirations and realism about drug sentencing reform
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Washington Post urges Prez Obama to do better on clemency
• Another public and potent call to reinvigorate the pardon power
• Inaugural rhetoric about freedom and liberty in prison nation
• Why I fear change will not come quickly to federal sentencing policy and practice
• Will AG Holder really lead a "new birth of freedom" in prison nation?

How about some targeted clemency grants to save $100 million of federal tax dollars?

This new Politico piece, headlined "Obama to order $100 million in cuts," spotlights this latest news from the White House:

At the first Cabinet meeting of his presidency, President Obama on Monday will challenge the departments to collectively cut $100 million over the next three months, a senior administration official said.  The official said the exercise is “part of his commitment to go line by line through the budget to cut spending and reform government.”

“Agencies will be required to report back with their savings at the end of 90 days,” the official said.

Here is my suggestion for a simple way to cut $100 million of wasteful federal spending ASAP: commute the final year(s) of the prison sentences for a few non-violent offenders serving overly long federal prison terms due to mandatory sentencing statutes/guidelines.  There are now well over 200,000 federal inmates costing US taxpayers around $50,000 per year to keep incarcerated.  Commuting just the final year of the prison sentence for just the most deserving 1% of this population would, in one quick and easy step, cut $100 million in wasteful federal government spending.

Consider in this context that the retroactive application of the new reduced crack guidelines, according to the latest official USSC data, has cut over 25,000 years of scheduled federal imprisonment (over 12,500 crack offenders have received sentence reductions that have averaged 2 years in length) and thus saved federal taxpayers over $1 billion in scheduled federal incarceration costs.  I think we could and should try to save an addition $100 million by cutting some breaks to a few other federal offenders).

Some related (old and new) posts:

• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Washington Post urges Prez Obama to do better on clemency
• Another public and potent call to reinvigorate the pardon power
• Inaugural rhetoric about freedom and liberty in prison nation
• Will we invest in classrooms or cells in these tough times?
• The state of cost problems in the states of prison nation
• Why we need a re-entry czar and a task force on the prison economy
• Hoping someone in a town hall might ask Prez Obama about government spending for the drug war in prison nation
• Why is Senator Jim Webb the only national figure focused on the prison economy?
• What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"

Change comes to medical marijuana raids and to the federal death penalty

I have been awaiting not too patiently for all the hope and change that was promised by the new administration to find its way to the federal criminal justice system.  In recent days, Attorney General Eric Holder has started walking the walk rather than just talking the talk:

1.  As detailed in this MSNBC piece, late last week AG Holder officially stated that the Drug Enforcement Administration would end federal raids on state-approved medical marijuana dispensaries.  This is big news for supporters of medical marijuana, and could be the first step toward a strategic withdrawl from the worst battlefields in the war on drugs.

2.  As detailed in this new piece from The Recorder, just today AG Holder "has authorized a deal that could abruptly end a rare San Francisco death penalty trial only days after it began."  The piece rights notes the broad implications of this decision: "Not only does Holder's reversal likely spare defendant Emile Fort his life, but it may signal a less aggressive approach to the death penalty in federal court."

Will AG Holder really lead a "new birth of freedom" in prison nation?

In addition to all the interesting advocacy for frank conversations about racial issues (details here), Attorney General Eric Holder articulated this potent commitment to freedom in his first major speech:

Through its work and through its example this Department of Justice, as long as I am here, must — and will — lead the nation to the "new birth of freedom" so long ago promised by our greatest President. This is our duty and our solemn obligation.

I am pleased to hear the new AG talking the talk of freedom.  But, especially with United States as the world's leader in incarceration, the big question with whether he will really walk the walk.  There are many ways that AG Holder could and should fulfill this duty and solemn obligation to usher in a new birth of freedom in prison nation, and I hope he will start trying to make criminal justice realities live up to his rhetoric.

Some recent related posts:

• Will we invest in classrooms or cells in these tough times?
• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• My latest (academic?) musings about progressive punishment perspectives
• After fast work on excessive pay, now how about similar work on excessive sentences?
• Am I crazy to dream about a "Liberty Recovery Advisory Board"?
• Inaugural rhetoric about freedom and liberty in prison nation
• What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....
• Terrific commentary and assessment of the war on drugs

The US Department of Justice's take of ARRA stimulus

This new press release from the US Department of Justice details the monies that will be going to crime-fighting programs as part of the American Recovery and Reinvestment Act of 2009.  Here is how the press release starts:

Today President Obama signed the American Recovery and Reinvestment Act of 2009 (H.R.1), which includes $4 billion in Department of Justice grant funding to enhance state, local, and tribal law enforcement efforts, including the hiring of new police officers, to combat violence against women, and to fight internet crimes against children, the Department of Justice announced.

“This funding is vital to keeping our communities strong,” said Attorney General Eric Holder. “As governors, mayors, and local law enforcement professionals struggle with the current economic crisis, we can’t afford to decrease our commitment to fighting crime and keeping our communities safe. These grants will help ensure states and localities can make the concerted efforts necessary to protect our most vulnerable communities and populations.”

Some recent related posts:

• Does the stimulus bill allow further prison growth in incarceration nation?
• Interesting reflections on Obama appointees from drug policy reformers
• The state of cost problems in the states of prison nation
• Will a commitment to "transparency and the rule of law" extend to DOJ in the new administration?
• The Obama Administration moves forward (on-line) with its "change" agenda for criminal justice
• Are we on the verge of a new changed era concerning federal sentencing law and policy?

What does Prez Obama's pick for drug czar suggest for possible drug policy reform?

As detailed in this Seattle Times article, "Seattle Police Chief Gil Kerlikowske has accepted a job as the nation's drug czar in the Obama administration, according to a source in Washington, D.C., who is familiar with the administration's plans."  This Seattle Post Intelligencer article, which is headlined "Kerlikowske seen as a progressive," suggests advocates for drug policy reform are relatively pleased with the decision: 

Many people, including those traditionally at odds with government policies, were "cautiously optimistic" about Kerlikowske, who became police chief in 2000.

"He's likely to be the best drug czar we've seen, but that's not saying much," said Ethan Nadelmann, executive director of the Drug Policy Alliance, a national nonprofit group focused on changing drug policies.

Nadelmann called Kerlikowske, 59, a "blank slate" because of his notable absence in drug-policy debates. But he was encouraged by the chief's ability to thrive in a city famous for its drug courts, needle exchanges, methadone vans and annual Hempfest celebration. "At least we know that when we talk about needle exchanges and decriminalizing marijuana arrests, it's not going to be the first time he's heard about them," he said.

Over at TalkLeft, Jeralyn in this post quotes some other reactions to the pick and expresses some faint praise.

Some recent related posts:

• Should we be worried or hopeful about the Obama Administration and the drug war?
• Terrific commentary and assessment of the war on drugs
• Interesting reflections on Obama appointees from drug policy reformers
• Will any Prez candidate promise to get us out of a failed war ... on drugs?
• The state of cost problems in the states of prison nation
• "Real commander needed for the war on drugs"
• "America's Forgotten War"
• What might 2009 have in store for . . . drug sentencing law and policy?

Hoping someone in a town hall might ask Prez Obama about government spending for the drug war in prison nation

This new entry at the White House blog reports that President Obama "is on his way to Elkhart, Indiana, for a town hall about the economic recovery plan. He'll talk for a bit, then take questions from the audience of about 1,700 people."

Though I seriously doubt any crime and justice issues will arise in this event or other such town halls, I am hoping someone in Indiana or elsewhere might have the courage to ask about the costs of the drug war and mass incarceration.  Specifically, I want President Obama pressed on whether his team, in its development of an "American Recovery and Reinvestment Plan," has given any attention at all to the apparent harms and ineffectiveness of investing so much federal and state taxpayer money in the never-ending war on drugs and in the still-growing US prison population.

Some recent related posts:

• Will we invest in classrooms or cells in these tough times?
• Terrific commentary and assessment of the war on drugs
• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• My latest (academic?) musings about progressive punishment perspectives
• After fast work on excessive pay, now how about similar work on excessive sentences?
• Am I crazy to dream about a "Liberty Recovery Advisory Board"?
• Inaugural rhetoric about freedom and liberty in prison nation
• What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....
• "Real commander needed for the war on drugs"
• "America's Forgotten War"
• Will any Prez candidate promise to get us out of a failed war ... on drugs?

After fast work on excessive pay, now how about similar work on excessive sentences?

As detailed in this CNN piece, President Obama and his administration is responding quickly to last week's news that corporate executives handed out $18 billion in bonuses in 2008.  While I am disinclined to opine on the specifics of such matters, I am pleased the new folks in DC are concerned about how my tax dollars are being spent on Wall Street.  Now, with the new Attorney General in place, the new administration should start showing similar concern for how taxpayer dollars are being spent on Main Street.

Specifically, as highlighted in many prior posts (examples here and here), states are struggling with tight budgets and are having to make hard choices about the prison economy.  Along the way, many states are asking for taxpayer dollars from the federal government (here is a piece about Ohio's eagerness for stimulus dollars).  Just as President Obama is seeking to limit excessive corporate pay for any company requesting monies from the feds, how about also seeking limits on excessive and costly imprisonment terms for any state requesting monies from the feds?

There is significant precedent for tying federal aid to state sentencing reform efforts: during the Clinton years, the feds required states to eliminate parole in order to get certain funds; during the Bush years, the feds required states to change sex offender registration laws to get certain funds.  For so many reasons, the feds ought to try this method again, but do so in ways that encourage states to make more sensible choices concerning short and long-term corrections spending. 

Sadly, other than perhaps Senator Jim Webb, I doubt any other politician inside DC has the insight and the courage to even consider such a bold idea to these festering prison economy problems.  Still, this kind of prison economy reform would not have to have a legislative push to get started.  President Obama could jump-start cost-oriented sentencing reforms by just granting a few clemencies to non-violent first offenders while stressing the savings from no longer having to use federal tax-payer dollars to continue housing and feeding offenders who clearly pose no threat to public safety.

Some recent related posts:

• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• My latest (academic?) musings about progressive punishment perspectives
• Will we invest in classrooms or cells in these tough times?
• Making an economic case for cost-oriented sentencing and prison reforms
• Is it too early to start demanding President Obama use his clemency power?
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Inaugural rhetoric about freedom and liberty in prison nation

Eric Holder confirmed as Attorney General

This AP article has the news about the confirmation of the nation's new top cop:

Eric Holder won Senate confirmation Monday as the nation's first African-American attorney general, after supporters from both parties touted his dream resume and easily overcame Republican concerns over his commitment to fight terrorism and his willingness to back the right to keep and bear arms. The vote was 75-21.

Some posts on the Holder pick for Attorney General and related issues:

• President-Elect Obama officially names Eric Holder as his AG pick
• Real headaches or just hiccups on nominee Holder's path to AG?
• Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?
• Three late afternoon thoughts on the Holder pick: race, tough and tech
• Interesting reflections on Obama appointees from drug policy reformers
• Why federal sentencing reformers must focus on the USSC and lower courts
• Are we on the verge of a new changed era concerning federal sentencing law and policy?

Why I fear change will not come quickly to federal sentencing policy and practice

The headline of this new article in the New York Times, "Justice Dept. Under Obama Is Preparing for Doctrinal Shift in Policies of Bush Years," might make sentencing fans hopeful that change may be coming soon to federal sentencing policy and practice as new personnel and new philosophies take over the top positions at the Justice Department.  But, as these snippets highlight, issues other than traditional federal criminal justice enforcement top the new DOJ's agenda:

Eric H. Holder Jr., whom the Senate is expected to confirm on Monday as the nation’s 82nd attorney general, plans to take the oath of office that evening to demonstrate a quick start, which will include overseeing the creation of a new detention policy for terrorism suspects.

Mr. Holder will have to contend with that and other issues rapidly. Lawyers inside and outside the department say he will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future....

“I can’t imagine a more challenging time to come in as attorney general,” said Walter Dellinger, a legal scholar who was an acting solicitor general in the Clinton administration. “The number of legal issues left behind to be resolved is really staggering.”

In the Justice Department, there is considerable restiveness as employees await new direction. The civil rights division, which had been reshaped in a conservative direction under President George W. Bush, is ripe for sharp change, administration officials said. “Many of us cannot wait for the changes,” said one career lawyer in the division, who spoke on the condition of anonymity to describe the atmosphere.

As this article documents, the triage plan for change at DOJ starts with terrorism policies and then turns to civil rights issues.  And though I view many ugly aspects of federal criminal justice law and policy to be the most pressing of civil rights issues, I doubt that the new personnel making key decision in the Obama Administration are focused first and foremost on acquitted conduct enhancements or inconsistent application of mandatory minimum sentencing statutes.

In other words, with so much else to do under extraordinary conditions, I fear that the status quo of federal sentencing policy and practice will seem good enough for the time being even to the most change-oriented of the new DOJ decison-makers.  And, even if new DOJ appointees might be eager to change course on various federal criminal justice policies, I fear that advisors will formally assert or informally suggest that the Obama Administration ought not risk spending political capital on any potentially hot-button criminal justice reforms when so many other issues are vying for attention.

The fact that we have not seen any clemency action in the first two weeks of the Obama presidency (which, as noted here, puts him behind the historical pace of presidential pardoning) confirms my instinct that change will not come quickly to federal sentencing policy and practice.  Though this comes as no surprise, my deeper concern is whether change will come at all in this arene of justice.

Some recent related posts:

• Is it too early to start demanding President Obama use his clemency power?
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• Inaugural rhetoric about freedom and liberty in prison nation
• Are the Border Agents the only federal offenders for whom President Bush feels compassion?
• A request for a commutation for Weldon Angelos 
• What might 2009 have in store for . . . executive clemency?  
• What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....
• Will a commitment to "transparency and the rule of law" extend to DOJ in the new administration?
• Why federal sentencing reformers must focus on the USSC and lower courts
• Are we on the verge of a new changed era concerning federal sentencing law and policy?

Eric Holder on track to be next U.S. Attorney General

This AP story provides the latest news on the path toward a new U.S. Attorney General:

Senate Republicans, who acted like lions in challenging Eric Holder, turned into lambs Wednesday as they joined Democrats in recommending President Barack Obama's choice for attorney general.

The Judiciary Committee voted 17-2 to endorse Holder, with two Republicans opposing the nomination — John Cornyn of Texas and Tom Coburn of Oklahoma.  The Senate could vote as early as Thursday to confirm Holder as the first African-American to lead the Justice Department.

Some posts on the Holder pick for Attorney General:

• President-Elect Obama officially names Eric Holder as his AG pick
• Real headaches or just hiccups on nominee Holder's path to AG?
• Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?
• Three late afternoon thoughts on the Holder pick: race, tough and tech
• Interesting reflections on Obama appointees from drug policy reformers

What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....

lots of other distinctive aspects of the modern American criminal justice system?  I ask this question because I keep thinking about these two sections of President Obama's Inaugural Address:

On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord.  On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics.  We remain a young nation.  But in the words of Scripture, the time has come to set aside childish things.  The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness....

As for our common defense, we reject as false the choice between our safety and our ideals.  Our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man -- a charter expanded by the blood of generations.  Those ideals still light the world, and we will not give them up for expedience sake. 

I strongly believe that the most disturbing aspects of modern criminal justice systems reflect choices by many in government to choose fear over hope and to readily give up "our ideals" concerning freedom and liberty because doing so seems expedient in light of "false promises" and "worn-out dogmas" of purported perils that threaten "our safety." 

Ironically, some of our ideals concerning freedom and liberty still light the world even though they have been given up at home.  No other country in the world incarcerates nearly as many people as does the US, and many nations in Western Europe take pride in their low imprisonment rates.  Many countries reject as inhumane the punishment of life without parole for any offender, while the US continues to condemn even juvenile offenders to never having a chance to live outside a cage.  Sadly, I could go on and on, but let me here just encourage readers to add more examples of criminal justice choices that seem to sacrifice our ideals in the name of safety.

Valuably, we have already seen President Obama's commitment to give meaning to his words through his executive orders that, as described in this article, will "close the Guantanamo Bay detention camp within a year, permanently shut the CIA's network of secret overseas prisons and end the agency's use of interrogation techniques that critics describe as torture."  But, now that the President and his Administration have showcased a commitment to our ideals in the face of foreign threats, I hope he will turn at least some attention toward what our ideals and "our better history" means for domestic crime and punishment.

As I have suggested before, President Obama could give effect and impact to his inspiring words about "out ideals" through a few clemency grants or an executive order calling for a review of the massive increase in the size and costs of the federal criminal caseload (which, as discussed here, was recently documented by the US Sentencing Commission).  A little action to back up his rhetoric on the home front would go a long way toward giving me hope that false promises,  worn-out dogmas and fear are among the childish things that the new President is truly prepared to put away.

Some related recent posts:

• Is it too early to start demanding President Obama use his clemency power?
• Inaugural rhetoric about freedom and liberty in prison nation
• Will a commitment to "transparency and the rule of law" extend to DOJ in the new administration?
• Why federal sentencing reformers must focus on the USSC and lower courts
• Are we on the verge of a new changed era concerning federal sentencing law and policy?

Republicans force delay of confirmation of Eric Holder to be Attorney General

CNN has this new report on the political wrangling that surrounds the now-delayed confirmation of Eric Holder as the next Attorney General:

The initial confirmation vote for Eric Holder, President Barack Obama's pick for attorney general, was postponed for a week Wednesday after a rancorous meeting of the Senate Judiciary Committee.

Republicans, who want to question Holder about his role in a controversial presidential pardon when he worked in the Clinton administration, used a procedure that allows them to put off the vote. Senate rules allow for a one-week delay if a panel member requests it.  In this case, all the Republicans wanted the delay, according to their ranking member.

A clearly agitated Sen. Patrick Leahy, a Democrat and chairman of the committee, slammed his gavel and walked out after acknowledging that Republicans had the right to ask for the delay.... 

The balking Republican lawmakers indicated that they want additional answers from Holder, who appeared before the panel Thursday. That prompted a strong reaction from Leahy. "It would look like a horrible double standard for those who enthusiastically voted unanimously for Alberto Gonzales to turn down the first African-American or hold up the first African-American to be attorney general," he said....

Meanwhile, acting Attorney General Mark Filip, who served as deputy attorney general under President George W. Bush, has taken the reins at the Justice Department pending Holder's confirmation. Filip and a cadre of career lawyers kept a low profile as they ran the wide-ranging functions of the dozens of Justice Department divisions and offices Wednesday.

The Obama Administration moves forward (on-line) with its "change" agenda for criminal justice

A helpful reader suggested I take note of the fact that the criminal justice issues previously identified as part of the Obama-Biden agenda on the old change.gov website (noted here in November 2008 with what are now "dead" links) has now migrated to the new WhiteHouse.gov website.  Specifically, under the Agenda section and in this civil rights subdivision of WhiteHouse.gov, one now finds these commitments:

• Reduce Crime Recidivism by Providing Ex-Offender Support: President Obama and Vice President Biden will provide job training, substance abuse and mental health counseling to ex-offenders, so that they are successfully re-integrated into society. Obama and Biden will also create a prison-to-work incentive program to improve ex-offender employment and job retention rates.
• Eliminate Sentencing Disparities: President Obama and Vice President Biden believe the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated.
• Expand Use of Drug Courts: President Obama and Vice President Biden will give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior.

Since it is now only four hours since he took office, I suppose I cannot and should not yet expect action on all these fronts today.  But these (relatively tepid) promises really can and should become priorities in the first 100 days of the new Administration (and just a few symbolic and strategic clemencies in the next few days might go a long way toward energizing all the public policy groups working these important areas).

Is it too early to start demanding President Obama use his clemency power?

Barack Obama has been President of the United States for barely an hour, but he has already issued his first official proclamation.  Here are some notable snippets:

On this Inauguration Day, we are reminded that we are heirs to over two centuries of American democracy, and that this legacy is not simply a birthright -- it is a glorious burden. Now it falls to us to come together as a people to carry it forward once more.

So in the words of President Abraham Lincoln, let us remember that: "The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature."

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by the authority vested in me by the Constitution and laws of the United States, do hereby proclaim January 20, 2009, a National Day of Renewal and Reconciliation, and call upon all of our citizens to serve one another and the common purpose of remaking this Nation for our new century.

Sounds good to me.  And if the new President really is committed to renewal and reconciliation, if he is really committed to the belief in the ability of everyone, even those who have committed crimes in the past, to be "again touched ... by the better angels of our nature," he ought to celebrate today by using his clemency power aggressively to help many of the offenders who got an undeserved cold shoulder from former President George W. Bush.

"Katyal Tapped as Principal Deputy in SG's Office"

The BLT Blog has this report on the significant news concerning who will be second banana in the Office of the Solicitor General.  Here are the details:

Legal Times has confirmed that Georgetown law professor Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, will serve as principal deputy solicitor general, the office’s No. 2 spot, starting Tuesday.

Katyal's appointment is another strong signal of President-elect Barack Obama's intentions to depart sharply from the terrorist detention and interrogation policies of the Bush administration....

The pick also means the Justice Department's Office of the Solicitor General could be led by two lawyers who have argued a combined two cases before the Supreme Court. Earlier this month, Obama announced the nomination of Elena Kagan, the dean of Harvard law School, to be solicitor general. Kagan, who has never argued before the high court, has received broad support in the legal community. A date for Kagan's confirmation hearings has not been set....

The principal deputy is also known as the the "political deputy," though, as Legal Times pointed out in this 2005 story, the exact nature of the job is a matter of dispute.  Some principal deputies have been pegged for White House moles, while others have defended the office's positions when they were at odds with the administration's.

So, if it is now clear that the new Administration through the SG's office  is going to depart sharply from the Bush Administration terrorism policies, can or should I be hopeful that they might also depart sharply from the Bush Administration on other criminal justice policies with constitutional dimensions?  Might there be a real chance that the SG's views on acquitted conduct enhancements or the application of Booker or mandatory minimums might change in the months and years ahead?  One can only hope, though one also should fear the impact of status quo biases even as a new set of lawyers take over the reins of power.

UPDATE:  Over here at LSI, I suggest that this appointment of another prominent academic in a key SG position provides yet another indication that the disjunction between the legal academy and the practicing bar is likely to shrink in the new Obama Administration.  (Regular readers may recall that, in the wake of his work in Hamdan, Neal wrote a terrifically interesting Harvard Law Review comment encouraging the legal academy to go practice.)

Some recent related posts:

• HLS Dean Elena Kagan to be nominated for US Solicitor General
• How much can and will the "tenth justice" influence sentencing jurisprudence?
• Any new thoughts about criminal justice as Prez-elect Obama fills out his Justice league?
• Why federal sentencing reformers must focus on the USSC and lower courts
• How a new administration is likely to impact federal sentencing practice
• The revised make-up of the US Sentencing Commission
• Are we on the verge of a new changed era concerning federal sentencing law and policy?
• Senator Jim Webb continues his important campaign for serious sentencing and prison reforms
• A criminal justice blueprint for the new Prez that I hope gets followed
• My latest (academic?) musings about progressive punishment perspectives
• Why we need a re-entry czar and a task force on the prison economy