Sunday, January 18, 2009

"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:

January 18, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (6) | TrackBack

Saturday, January 17, 2009

Did anything truly notable (or worth discussing) happen during the Holder hearings?

I was on the road for the last two days and thus had no opportunity to watch or even follow indirectly the Senate hearings for AG-nominee Eric Holder.  Based on press reports (collected here by How Appealing), it seems there was not much of great interest for sentencing fans beyond all the pedantic pardon talk.  But I would be eager and grateful if readers would use the comments to spotlight if anything really notable or worth discussing came up during the hearings.

Some posts on the Holder pick for Attorney General:

January 17, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack

Thursday, January 15, 2009

Will there be any federal sentencing or mass incarceration talk at the Holder hearings?

I will be on the road and off-line for much of today, but the President-elect and the Senate were kind enough to ensure sentencing fans will have something else to follow while this blog is quiet.  Specifically, the Senate confirmation hearings for Eric Holder, whom Barack Obama has nominated to be the next Attorney General of the United States, are scheduled to begin this morning at 9:30 am.  The hearings can be followed via webcast through this official webpage of the Senate Judiciary Committee, where one can also find lots and lots of documents and letters concerning AG-nominee Holder's background and professional history.

As regular readers know, I have done a lot of Holder-related posts in recent weeks (some of which are linked below).  These posts spotlight some of the sentencing-related issues that may (or may not) arise during the confirmation hearings.  I will be grateful to any readers who use the comments to note and discuss any sentencing topics that arise during the Holder hearings.

Some posts on the Holder pick for Attorney General:

January 15, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (1) | TrackBack

Tuesday, January 13, 2009

How much will guns and drugs come up during the Holder hearings?

Confirmation hearings for Attorney-General nominee Eric Holder are scheduled to start this Thursday, and there is reason to believe these hearings will be worth watching.  This new Politico piece, headined "GOP setting up roadblocks for Holder," indicates that topics other than the ugly Clinton clemencies will be on the agenda:

Senate Republicans have invited the son of man killed in a 1975 Puerto Rican nationalist bombing as well as a former FBI agent who investigated two violent groups supporting Puerto Rican independence to appear at Eric Holder’s confirmation hearings. A third GOP witness is a pro-gun rights attorney from Virginia....

Holder’s commitment -- or lack thereof -- to the rights of gun owners and the Second Amendment has also become a talking point for Republicans opposing his confirmation. On that issue, they’ve arranged for the committee to hear from Stephen P. Halbrook, an attorney in Alexandria who specializes in gun-rights cases. He has made numerous appearances before congressional panels to argue an expansive view of the Second Amendment right to bear arms.

In addition to the interesting possibility of post-Heller gun talk, this TalkLeft post also highlights that some groups are eager to have Holder questioned on drug policy issues, including medical marijuana.  But, Holder fans should not fret: as this CNN entry details, the Senator Patrick Leahy, who will preside over the Holder hearings, is continuing "his public campaign on Holder's behalf Tuesday by producing two prominent Republicans who back his confirmation."

Some prior posts on the Obama transition and the Holder pick:

January 13, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (0) | TrackBack

Thursday, January 08, 2009

Does Cass Sunstein really think capital punishment may be morally required?

The Washington Post reports here on another prominent law professor about to go from a faculty salary to a government salary:

President-elect Barack Obama will name Cass R. Sunstein, a close friend and one of the nation's top constitutional lawyers, to a senior-level post in charge of government regulation, a transition official said. Sunstein, a Harvard University law professor who grew close to Obama during their years at the University of Chicago, will become the administrator of the Office of Information and Regulatory Affairs.

Obama talked on the campaign trail about the need to revamp the nation's regulatory structure, especially in housing and finance, areas in which lapses contributed to the current economic crisis. In his new position, Sunstein will oversee reform of regulations, seeking to find smarter approaches and better results in health, environment and other domestic areas, a transition source said.

The office Sunstein will head is part of the Office of Management and Budget and is responsible for reviewing draft regulations and overseeing the implementation of government-wide policies aimed at making federal agencies more efficient, according to the mission statement on its Web site.

As first noted here, Sunstein has recently argued (along with Adrian Vermeule), in an article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs," that governments may have an obligationto use the death penalty if it can deter killings and save innocent lives.  I have a feeling that Sunstein considered this article to be academic musings not a policy paper for the management of the federal criminal justice system.  Nevertheless, since I would like to see the feds take over the administration of capital punishment (and take it away from the states), I am strangely hopeful that Sunstein might be seriously committed to trying to do something new and bold in the arena of capital punishment.

Some related posts on Sunstein's paper and death penalty deterrence:

January 8, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (12) | TrackBack

Wednesday, January 07, 2009

Senator Specter refines the case against AG-nominee Holder

As detailed in this New York Times article and this BLT post, Senator Arlen Specter has started to define the terms of the debate for next week's confirmation hearing for Attorney General Nominee Eric Holder.  Here are the basics from The BLT:

Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, has begun laying out the questions he plans to ask Eric Holder Jr. next week during Holder’s confirmation hearing to be attorney general.

In a speech on the Senate floor Tuesday, Specter (R-Pa.) said he plans to focus his inquiry on three areas: the pardon of fugitive commodities trader Marc Rich; the decision by Holder’s then-boss Attorney General Janet Reno not to appoint a special prosecutor to look into Vice President Al Gore’s 1996 fundraising activities; and the clemency granted to a group of Puerto Rican nationalists.

“All of these matters relate to judgment,” Specter said. “They relate to whether Mr. Holder had the kind of resoluteness displayed by Attorney General Griffin Bell, by Attorney General Elliot Richardson, to say ‘no’ to their superiors.” Specter also said he plans to ask Holder his views on journalists’ privilege, the Bush administration’s surveillance policies, and the Justice Department’s evolving view of corporations’ attorney-client privilege.

The fact that two of the three top-shelf concerns involve clemency issues perhaps provides more support for my view that the entire US Pardon Office ought to be completely removed from the Department of Justice.  (Specifically, I would like to see the Pardon Office relocated as a department in the US Sentencing Commission.) 

Also, it is telling and disappointing that Senator Specter does not have on his question list a number of other critical practical questions about the federal criminal justices system.  Indeed, I wonder if Holder will get any questions on, e.g., the post-Booker sentencing system or sex offender prosecutions in light of the new federal Adam Walsh Act or crime victims rights in light of the new federal Crime Victims Rights orfederal habeas a decade after the AEDPA or the federal death penalty in light of increased capital prosecutions during the Bush Administration or federal reentry efforts in light of the new Second Chance Act.

Some prior posts on the Obama transition and the Holder pick:

January 7, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (18) | TrackBack

Monday, January 05, 2009

What might 2009 have in store for . . . drug sentencing law and policy?

Continuing the 2009 "what's in store" series, let's turn to drug sentencing law and policy.  In this area, the social attitudes and legal approaches adopted by the new Obama Administration are likely to be critical.  Even though the majority of drug crimes are handled at the state level, how federal authorities set priorities and fund initiatives will set the tone.  Notably, the Obama transition site has these statements about the new Administration's priorities in this arena: 

Despite these seemingly progressive sentiments, as noted in this post, drug policy reformers we not too excited about the nomination of Eric Holder for Attorney General.  In addition, as noted in this post, there are reasons to be concerned that the Obama Administration is unlikely to change swiftly or radically the nation's commitment to the "war on drugs."   And yet, with today's news that academics have been nominated to be the next Solicitor General and to head the Office of Legal Counsel, maybe we could see some notable developments in this arena.

Some related posts on drug reform and the new Administration:

Other posts so far in the 2009 "what's in store" series:

January 5, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

Any new thoughts about criminal justice as Prez-elect Obama fills out his Justice league?

As noted in this recent post, President-elect Obama today officially tapped Harvard Law Dean Elena Kagan to be the next Solicitor General.  In addition, as detailed in this official press release, the Obama team has also today named a number of other persons to fill key spots in the Justice Department:

Today, President-elect Barack Obama announced that he intends to nominate the following individuals for key posts at the United States Department of Justice: David Ogden, Deputy Attorney General; Elena Kagan, Solicitor General; Tom Perrelli, Associate Attorney General; and Dawn Johnsen, Assistant Attorney General for the Office of Legal Counsel.

President-elect Obama said, “These individuals bring the integrity, depth of experience and tenacity that the Department of Justice demands in these uncertain times. I have the fullest confidence that they will ensure that the Department of Justice once again fulfills its highest purpose: to uphold the Constitution and protect the American people. I look forward to working with them in the months and years ahead.”

I know these impressive folks only by reputation, but those reputations bode well for anyone (like me) hoping that the "change" mantra becomes a serious reality in the federal administration of justice.  Relatedly, regular readers may recall the name Dawn Johnsen from this post, which noted that she authored this terrific chapter from a publication by the Center for American Progress Action Fund, entitled "Change for America: A Progressive Blueprint for the 44th President."  That chapter included these important sentiments:

Although crime is largely a state and local responsibility, federal leadership can be enormously influential beyond the federal system through assistance that fosters innovation, supports research, and shares information about “what works” in combating crime....

Incarceration in the United States is an issue crying out for DOJ attention.  After holding steady for most of the 20th century, the federal prison population increased 10-fold in the last 25 years. The United States at all levels of government incarcerates more of its population than any other nation in the world, both in terms of the incarceration rate and in absolute numbers....

The costs, both financial and social, are astronomical.  DOJ should undertake affirmative efforts to decrease prison populations without endangering public safety.  Again, states can provide useful models for each other and for the federal government.  In response especially to budget crises, some states have successfully reduced incarceration rates without increasing crime.  DOJ should study, disseminate, and implement best practices, which include increased and improved use of drug courts and treatment alternatives to incarceration....

I sincerely hope that AAG-nominee Johnsen sustains a fierce commitment to deal with mass incarceration in the new Administration, and I also hope these other nominees share this perspective. 

With these appointments and modern economic realities and various notable jurisprudential doings, I am starting to become (dangerously?) optimistic that we could be on the verge of a new criminal justice era in the United States.  Perhaps readers can/should try to burst my optimism bubble so that I do not start expecting too much.

Some recent related posts:

January 5, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (6) | TrackBack

Monday, December 29, 2008

Real headaches or just hiccups on nominee Holder's path to AG?

The Boston Globe has this long pieceon coming Senate confirmation issues surrounding President-elect Obama's nominees.  The piece is headlined "Holder's hearing might be rocky: GOP could grill Cabinet nominee," and here is how it starts:

With Barack Obama anxious to take office, the public eager for fresh leadership, and the economy demanding urgent attention, the Senate is likely to defer to the president-elect and swiftly approve his Cabinet nominees, congressional aides and political analysts say.

But there will be one prominent exception: The confirmation hearing for Eric Holder, Obama's pick for attorney general, promises to be bruising, with Republicans determined to explore Holder's role in controversial pardons under President Clinton, his views on gun rights, and his involvement in the case of Elian Gonzalez, the 6-year-old Cuban boy returned to his homeland by Clinton's Justice Department.

"You're probably only going to have one truly horrendous confirmation; that's always the case," said Stephen Hess of the Brookings Institution, who served on the White House staffs of presidents Eisenhower and Nixon. "In this case, it is clearly the attorney general-designate, Eric Holder."

Meanwhile, yesterday the Hartford Courant had this long article full of new information about Eric Holder's role in some controversial commutations granted by President Clinton in 1999 that have always struck me as more troublesome than even the Marc Rich pardon.  This piece is headlined "Clinton-Era Sentence Reductions Could Trip Holder's Confirmation," and here is a section that really caught my eye:

[Q]uestions about Holder's appointment have been building over his role as a former deputy attorney general in a number of controversial Clinton-era legal decisions. High on the list are the dramatic sentence reductions he recommended in 1999 for members of two groups responsible for a years-long terror campaign aimed at Puerto Rican independence....

A total of 16 radical Independentistas, either Macheteros or members of the affiliated Armed Forces of National Liberation, ultimately won sentence reductions or remissions of fines — although none of them had applied personally for clemency.

Together, the groups are linked to 130 bombings, several murders and as many as a dozen robberies. When President Bill Clinton issued the clemency, the FBI said the two groups were the driving force behind the violent wing of the Puerto Rican independence movement and represented one of the nation's foremost domestic terror threats....

Senate staffers said the Puerto Rico clemency is expected to be the subject of considerable questioning. A senior Justice official, while generally supportive of Holder, called the lesser-known Puerto Rico commutations "far more egregious" because they involved terror and appear to have deviated widely from federal regulations and past practices in clemency matters.

Interviews and a review of congressional records show that Holder's recommendation for clemency was at odds with a report by the Office of the Pardon Attorney. The pardon attorney issued a second report to Holder about two years later that took no position on clemency. Critics say the second report violated rules requiring the pardons attorney to recommend either for or against clemency.

Despite all the reasons to expect an interesting show during his confirmation hearings, I still think the smart money has to be on Holder being easily confirmed as the next Attorney General.  But, one can never fully predict how these matter will play out, especially when there is reason to suspect that folks with scores to settle with either the Clintons or the President-elect might view the Holder hearings as the best opportunity to vent.

Some prior posts on the Obama transition, the Holder pick and federal criminal justice issues:

Election season 2008 posts about Clinton commutations to Puerto Rican terrorists:

December 29, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

Sunday, December 28, 2008

Should we be worried or hopeful about the Obama Administration and the drug war?

A couple of new commentaries about the incoming Obama Administration and marijuana policies can give those interested in this aspect of the drug war either new hopes or new fears.  First, over at Esquire, John Richardson has this piece headlined "Why Obama Really Might Decriminalize Marijuana."  But, Jacob Sollum at Reason has this response that explains why he fears that the most anyone should expect is "A Blue-Ribbon Panel, If We're Lucky."

Ever the moderate and sentencing fanatic, I think (or at least hope) that the Obama Administration will see the virtues of a sensible casualty assessment and than a slow and steady troop withdrawal in this area of the drug war.  I believe that a sober cost/benefit analysis of modern marijuana policy would lead to the conclusion that we right now spend too much taxpayer money in order to punish unequally a small percentage of those folks involved in distribution and use of a drug that few consider very serious.  If the Obama Administration is seriously committed to reviewing all federal programs to assess their efficacy, the federal investment to the pot portion of the drug war ought to be reduced in the years to come.

Some related posts:

December 28, 2008 in Criminal justice in the Obama Administration, Drug Offense Sentencing | Permalink | Comments (10) | TrackBack

Monday, December 22, 2008

Why we need a re-entry czar and a task force on the prison economy

Now that the Obama transition team has filled the cabinet and is busy creating new task forces to deal with modern new concerns, it is time for those concerned about modern criminal justice problems to step up pitches for the incoming Obama administration as to how to improve modern criminal justice systems.  I have already done a some of this pitching thanks to the kind editors of the Harvard Law & Policy Review who helped me publish this piece, titled, "Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities."  But I have a lot more ideas, particularly concerning czars and task forces that the new administration should create.

Specifically, in light of the urgent importance of re-entry programming with 700,000 persons getting released from prison every year, we need a national re-entry czar who can help state and localities with re-entry programming.  The passage of the federal Second Chance Act last year (which Senators Biden, McCain and Obama all supported) highlights the congressional interest in re-entry efforts.  But the Second Chance Act has not yet been adequately funded and national coordination of effective re-entry programs could and should greatly improve the reintegration of ex-offenders into communities.

In addition, in light of the extraordinary budget pressures states are feeling and the high costs of mass incarceration, we need a national task force on the prison economy.  Senator Jim Webb has already held two important hearings through Congress's Joint Economic Conference to highlight the inefficiencies and ineffectiveness of mass incarceration, especially as the war on drugs continues to fill our prisons without seeming to do much to diminsh illegal drug use.  Senator Webb could and should head a prison economy task force, which could and should include attorneys general and governors in states being forced to consider prison releases to deal with budget deficits.

I am sure readers have other ideas for the incoming Obama administration as to how to improve modern criminal justice systems, and I hope everyone will use the comments to express these ideas (or to critique my ideas).

Some recent related posts:

December 22, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (16) | TrackBack

Saturday, December 20, 2008

Notable names for number two at DOJ

Now available at law.com is this article from Legal Times discussing the names making the rounds for the second spot at the Justice Department in the Obama Administration.  Here are snippets from the article:

With congressional pressure mounting, the short list for the Department of Justice's No. 2. position appears to be getting shorter all the time.

President-elect Barack Obama's transition staff has declined to discuss potential Justice nominees, or even reveal who on the transition team is mustering names. But Washington lawyers have been speculating for weeks that Wilmer Cutler Pickering Hale and Dorr's David Ogden, who is heading the Justice Department transition team, is the likely pick for deputy attorney general. One Washington lawyer close to the transition says his nomination is all but assured.

Elena Kagan, dean of Harvard Law School, has also been named as a possibility, though many say the position would be an odd fit. Denied a hearing by Republicans after President Bill Clinton nominated her to the U.S. Court of Appeals for the D.C. Circuit in 1999, Kagan has re-emerged as a potential Supreme Court pick for Obama....

The deputy attorney general, who oversees the day-to-day operation of the department, typically comes to the job with a criminal law background, but [Ogden's law parter Randolf] Moss says Ogden and Holder would complement each other.

"The fact that Eric brings enormous expertise on criminal matters creates a nice balance," Moss says. And he adds that Ogden was associate deputy attorney general under then-Deputy Attorney General Jamie Gorelick, a job that required his involvement in numerous criminal investigations. Gorelick is now Ogden's colleague at Wilmer.

December 20, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (0) | TrackBack

Thursday, December 18, 2008

Will the Obama Administration embrace and promote the faith-based prison movement?

One of the few positive sentencing and corrections stories these days involves the apparent successes of faith-based prisons.  A helpful reader sent me this news story from Oklahoma, headlined "Faith builds character: Inmates learn new ways to rebuild their lives," on this topic. Here are snippets

Behind the iron bars and razor wire of Oklahoma's largest prison for women, a quiet miracle is taking place. Nearly 200 inmates at Mabel Bassett Correctional Center are living in separate pods from the general population where they are finding hope for themselves and their families through character development and spiritual renewal.

"This is an incredible program," said Ilinda Jackson, director. "It instills character in these women, teaches them how to deal with the behaviors that got them here, and addresses how to change." She said the voluntary program is changing the atmosphere at the prison.

Misconduct is way down among participants. "There's less violence, a higher level of accountability. The women are taking responsibility for their lives," she said.  The Faith and Character Community Program, now in its second year, is divided into two groups, women pursuing a faith-based solution to their problems, and those seeking character development without the faith element.

Millicent Newton-Embry, warden at Mabel Bassett, said the program has changed the environment of the entire prison, not just the faith and character pods, as women in those pods have influenced inmates in the general population.  Misconduct reports are down 18 percent prison-wide since the programs were initiated. "We have less people fighting over things like curling irons," she said. "The staff has more time to do important case management work because they're spending less time mediating conflict.  The inmates are resolving these things themselves.

"Studies have shown that religion, when it's voluntary, can be foremost in changing criminal thinking, and criminal attitudes, for the long term," she said.  Outside volunteers teach the religious elements of the faith pod to avoid any church-state issues.

I have long been disappointed that academics and researchers have not yet paid sufficient attention to the faith-based prison movement.  But the Bush Administration was an avowed supporter of the movement, though I think the administration could and should have done even more to facilitate the movement's growth and development at both the federal and state level.

President-elect Obama has expressed some support for some Bush Administration faith-based programming, but I have not seen any explicit discussion from the Obama team about faith-based prison.  I am hopeful that the new administration will openly embrace and actively promote the faith-based prison movement if and when there is continuing reason to believe that the movement is having a positive impact on both offenders and public safety.

Some related posts on faith-based prison programs:

December 18, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (7) | TrackBack

Tuesday, December 16, 2008

ABA criminal justice transition recommendations

I just tripped across this ABA webpagetitled "Transition 2008" through which the ABA sets out its recommended "legislative and executive branch actions and initiatives that will improve the justice system, promote the rule of law, ensure the nation's security, and protect civil liberties." Specifically, this ABA page has "four separate policy papers summarizing some of the Association's most significant recommendations for the new administration and the new Congress."

The transition paper on "Criminal Justice System Improvements " is available at this link.  Here is how it is described:

The ABA offers recommendations to improve the criminal justice system.  Such recommendations include: alternatives to incarceration; repeal of mandatory minimum sentencing; eliminating sentencing disparities; and enacting prison reform legislation.

December 16, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

A modest(?) proposal for filling the bench from the ivory tower

Law prof Carl Tobias has this new piece online at FindLaw that is sure to get the law professor blogs a buzzing. Titled "Why Barack Obama, as President, Should Nominate Leading Law Professors for Seats on the Federal Appeals Court," this essay certainly gets my endorsement as long as some profs with criminal justice backgrounds are among the short-list mix.  Here are a few excerpts from the short piece:

President-elect Barack Obama will receive much advice in the coming months. One valuable idea that his nascent administration should embrace and implement is nominating legal scholars to serve on the United States Courts of Appeals.  Numerous legal academics are particularly well-suited to discharge the critical responsibility of delivering appellate justice.

President Ronald Reagan used this concept to excellent effect over both of his administrations. The chief executive searched for, identified, and appointed many highly-respected legal scholars to the appeals courts.... Yet selecting legal academics for the appellate courts apparently fell out of favor in the administrations of Presidents George H. W. Bush, Bill Clinton and George W. Bush. To be sure, these chief executives did choose a few legal scholars, but they were notable exceptions to the rule....

President Obama has vowed both to practice bipartisanship and to appoint excellent judges.  One fertile source of nominees who possess the requisite expertise and temperament to be outstanding appellate jurists is the faculties of the 200 American law schools.  Because legal scholars' work closely resembles that of circuit judges, choosing academics will allow President Obama to select candidates who are essentially known quantities, and to be confident that they possess the skills necessary to be distinguished federal appeals judges.

I obviously have a parochial and personal interest in endorsing academics who have criminal justice backgrounds when thinking about judicial appointments.  But the important reality of heavy criminal law dockets in the federal appellate courts (especially outside the DC Circuit) undercuts somewhat the assertion by Tobias that "legal scholars' work closely resembles that of circuit judges." 

I fear that too many modern legal scholars, perhaps especially many modern constitutional scholars, tend to give far too little attention and thought to a broad array of criminal justice issues that regularly occupy the day-to-day work of the federal judiciary.  Put another way, I fear that too many criminal justice issues tend to get second-class treatment in the modern legal academy.  I would hate to have a federal appellate bench filled with academics inclined to give criminal justice cases second-class treatment on appeal.

Some recent related posts:

December 16, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (8) | TrackBack

Monday, December 01, 2008

President-Elect Obama officially names Eric Holder as his AG pick

As detailed in this CQ Politics entry, the likely next U.S. Attorney General was officially named today: "President-elect Barack Obama on Monday tapped former Deputy Attorney General Eric H. Holder Jr. to take the top spot in the Justice Department."  Here are some other notable snippets from the CQ report:

Holder would be the first black attorney general.  The Senate Judiciary Committee will vet Holder for the post.  Several Republicans on the panel have already voiced support for him.

To be sure, Holder will face renewed questions about his role in Clinton’s pardon of fugitive financier Marc Rich in 2001.  Rich’s ex-wife, Denise, donated heavily to Democratic causes, including Clinton’s presidential library and Hillary Rodham Clinton ’s 2000 Senate campaign. Holder signed off on the pardon.  Holder told the House Government Reform Committee in early 2001, “It is now clear, and this is admittedly hindsight, that we, at the Justice Department, and more importantly, former President Clinton, the American public, in the cause of justice, would have been better served if the case had been handled through the normal channels.”

Senate Judiciary Chairman Patrick J. Leahy , D-Vt., has said that Clinton, not Holder, bears the responsibility for the Rich pardon. Leahy has predicted a “lopsided vote” to confirm Holder.

Just in time for this long-predicted announcement is this profile of Holder in today's New York Times and this editorial about the Justice Department in today's Washington Post.

Some prior posts on the Obama transition, the Holder pick and federal criminal justice issues:

December 1, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack

Monday, November 24, 2008

Great state-focused coverage of federal Second Chance Act

A helpful reader pointed me to this effective and timely coverage today of the Second Chance Act at Stateline.org.  The piece is headlined "States want Second Chance Act funded," and here is how it begins:

With correctional facilities around the country teeming with repeat offenders, state and local officials are hoping the Second Chance Act — a federal law signed by President Bush in April to help keep former prisoners from committing new crimes — will be a priority under the incoming Obama administration.

The act, which Congress approved with widespread bipartisan support, authorizes $165 million in annual grants to states, localities, nonprofits and religious groups to build programs that help current and ex-offenders find jobs and housing, overcome drug and alcohol addictions, receive mentoring and return to society as law-abiding residents.

When he signed the bill into law, President Bush called it a sign of support for the roughly 700,000 people who are released from state and federal prisons each year. Federal statistics that show more than two thirds of all those released from prison are rearrested for serious crimes within three years.

That has resulted in surging prison populations — and corrections costs — for many states. Corrections trails only health care, education and transportation among state expenses, costing states nearly $50 billion last year.

Despite the new law’s promise of federal dollars to fund so-called “reentry” initiatives, Congress has not appropriated the money. State and local lawmakers, corrections officials, advocacy groups and others now are pushing the incoming Congress — and the administration of President-elect Barack Obama — to provide funding, perhaps in a spending measure that could come up for debate as early as January.

November 24, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack

Sunday, November 23, 2008

Interesting reflections on Obama appointees from drug policy reformers

The Drug War Chronicle has this interesting new feature piece titled "Obama's Appointees Raise Questions in the Drug Reform Community."  Here are snippets from the start and end of the piece:

Like other interest groups, the drug reform movement has the Obama transition under a microscope, searching for clues on the new administration's intentions as it scrutinizes those appointments for positions that are going to be key to advancing the cause. Some of the Obama transition team's early moves have some drug reformers sounding alarm bells, but other reformers -- not so much....

The reform community should not be freaking out, agreed Eric Sterling, who served as counsel to the House Judiciary Committee in the 1980s and now heads the Criminal Justice Policy Foundation.  Instead, it should be trying to flex its muscles. "I think the reform community is way overreacting and, more importantly, not taking the initiative," he said "Reform leaders ought to be asking themselves what letters they've written to President-elect Obama, what letters to the editor they've penned, what op-eds they've submitted. Is the movement doing anything other than passively reacting?" he asked....

"We have to build the movement. We keep seeing the same 300 people at the conferences, maybe 1,000 if you're talking about the harm reduction conferences. No one is going door to door in the black community talking about how the drug war is undermining public safety and its relationship with the police. No one is talking to the unions. We've done well on the education part of our issue, but we haven't done well in developing a political power base, and until we do that, we won't get reform."

Some recent related posts on the Obama transition and criminal justice issues:

November 23, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (0) | TrackBack

Wednesday, November 19, 2008

Three late afternoon thoughts on the Holder pick: race, tough and tech

I have so many old and new thoughts about the importance of the next Attorney General and about President-Elect Obama's apparent selection of Eric Holder for that spot.  At the end of a long day, I want to focus on three particular thoughts/words:

1.  Race:  The import and impact of racial issues in all aspects of the work of the federal Justice Department (both criminal and civil) should not be overlooked, even though war on terror and political issues have dominated modern DOJ and AG discussions.  An appointment of the first African-American Attorney General is therefore noteworthy and important for many reasons.  And, while many aspire for post-racial dialogues about crime and justice, the interplay between race and justice will be that much more salient when Eric Holder becomes the nation's top cop.

2.  Tough:  Jeff Rosen wisely notes here that, because Holder "has impeccable credentials as a tough-on-crime prosecutor," he might be uniquely positioned to achieve a "Nixon in China on Crime."  While many might be concerned about his past connection to all the tough-on-crime posturing during the Clinton Administration, that very background might give him a unique ability and unique credibility if and when he tries to turn the corner on "tough-on-crime" in an effort to now be "smart-on-crime."

3.  Tech:  I was pleased to learn during this NPR segment that Holder is, according to a close friend, "a technology junkie."  As some of my regular technocorrections blogging helps to highlight, I expect some of the hardest and most unpredictable crime and justice issues on the horizon will involve technology issues.  Whatever his policy positions or instincts, the fact that Holder has an affinity and comfort with technology should be a great assert for his new job.

Some recent Holder as AG posts:

November 19, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (5) | TrackBack

Tuesday, November 18, 2008

Lots of buzzing around Eric Holder as the next US Attorney General

In this afternoon post, Newsweek has reported today that "President-elect Obama has decided to tap Eric Holder as his attorney general."  But this BLT post has this bold update on the story:

The Associated Press and The New York Timesare reporting that Obama is deeply considering Holder for the AG post but that no decision has been made.  Apparently, Obama aides have been feeling out Republican senators to get a sense of Holder's chances.  An official in the Obama camp told the Times that the Newsweek report was "wrong."

Of course, regular readers know that there is a pardon story that surround Holder as a result of his service in the Clinton Administration.  Here is how the Newsweek report covered this notable ghost of pardons past:

The only hesitancy about Holder’s selection was that he himself had reservations about going through a confirmation process that was likely to revive questions about his role in signing off on the controversial pardon of fugitive financier Marc Rich.  Although there is no evidence that Holder actively pushed the pardon, he was criticized for not raising with the White House the strong objections that some Justice Department lawyers and federal prosecutors in New York had to pardoning somebody who had fled the country.  But after reviewing the evidence in the case, and checking with staffers on the Senate Judiciary Committee, Obama aides and Holder both decided the issue was highly unlikely to prove an obstacle to his confirmation, one of the sources said --especially given the Democrats’ more sizable post-election majority in the Senate.

UPDATE:  Jeralyn at TalkLeft has a series of posts on Eric Holder's criminal justice record, including these recent ones of note:

Because I have never been much of a fan of what the Clinton Administration did on any number of federal criminal justice issues, I am not especially excited to learn that Obama's concept of hope and change for DOJ seems to involve the promotion of a former Clinton Administration high ranking DOJ official.  That said, a lot of people I respect have a lot of respect for Eric Holder, so I will come at this appointment with an open mind.  Still, I am growing ever more concerned that inside-the-beltway experience seems to be a running theme in all the cabinet picks being talked up these days.

November 18, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack

Monday, November 17, 2008

Notable US Attorney transitions and the Obama administration

Though not a core sentencing issue, who serves as the US Attorney in a federal district certainly can have an impact of a variety of sentencing issues. Thus, I am intrigued to see this news from the WSJ Law Blog that the US Attorneys for New Jersey and for the Southern District of New York are announcing their resignations. 

Few should be surprised that a new incoming federal administration is prompting some old US Attorneys to head for the door.  And everyone should get in the game of predicting who might take over these local federal "top cop" spots in the future.  Also, I encourage readers to opine on whether and how any particular US Attorney transition might have a particular impact on particular federal sentencing issues under an Obama Administration.

Some recent related posts:

November 17, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

Saturday, November 15, 2008

More proof that pardon scandals rarely get completely forgotten

The latest proof that bad pardoning actions can cast a long shadow comes from this new article at Politico, headlined "Clinton scandal figure on Justice team."  Here are a few details:

President-elect Barack Obama tapped a major campaign bundler and a former U.S. attorney who got caught up in Bill Clinton's 2001 pardons scandal to serve on the 14-member Justice Department review team announced Friday.

Alejandro Mayorkas, a former U.S. attorney in California, drew controversy in 2001 for calling the White House on behalf of Carlos Vignali, a convicted drug dealer who was seeking a presidential commutation.... The House Committee of Government Reform cited Mayorkas in a report critical of Southern California politicians who pushed Clinton to release Carlos Vignali, saying Mayorkas should have been aware of Horacio Vignali's questionable background, according to a Los Angeles Times story published in March 2002.

Mayorkas told the newspaper that the criticism was fair, and he did not know the elder Vignali very well. "It is reasonable to expect that someone in my position would do his or her due diligence to learn that information," he told the Los Angeles Times. "I made a mistake."

The Obama transition team did not immediately respond to requests for comment about Mayorkas, who will serve on the Justice Department review team.

The saddest aspect of this story is the fact that a past pardon scandal is overshadowing the important decision by the Obama transition team to create a "team of 14 law scholars, corporate attorneys and former Clinton appointees who will look at civil rights, legal services and election law."  The full review team is listed here at change.gov.

November 15, 2008 in Clemency and Pardons, Criminal justice in the Obama Administration | Permalink | Comments (0) | TrackBack

Friday, November 14, 2008

Developing criminal justice "wish list" for the Obama Administration

Over at the White Collar Crim Prof Blog, Ellen Podgor has this terrifically interesting "Wish List to President Barack Obama & The Next AG."  Ellen's wish list is lengthy (even though only focused on white-collar topics), and here are a few of her provocative and thoughtful wishes that caught my eye:

Needless to say, I could add dozens of my wishes to this list, especially if I were to branch out beyond white-collar topics.  But on a Friday, I am especially interested to hear some criminal justice wishes from readers.  

So, dear readers, please use the comments for expressing your wishes on criminal justice topics for the next Administration.  Though I seriously doubt the President-Elect or his future AG regularly read this blog, one never knows how many cyberspace genies might try to help make a good criminal justice wish comes true.

November 14, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack

Thursday, November 13, 2008

A criminal justice blueprint for the new Prez that I hope gets followed

I received recently an e-mail announcing a new publication from the Center for American Progress Action Fund, entitled "Change for America: A Progressive Blueprint for the 44th President."  This website explains this new document and its coverage, and it provides this link to ten chapters available for download.  One chapter of special interest for sentencing fans is this one authored by Dawn Johnsen titled "Department of Justice: Restoring Integrity and the Rule of Law."

This whole chapter encouraging changes within DOJ should be enjoyable reading for anyone troubled by how the Justice Department has operated in recent years.  And anyone eager for serious state and federal sentencing reform should be especially pleased by the last three pages of this chapter, which are devoted to "longer-term priorities."  Here are some lengthy excerpts from this astute and effective part of CAP's blueprint for criminal justice change:

The attorney general should launch a coordinated set of initiatives that tackle the most fundamental and intractable problems in the criminal justice systems, both federal and state.... Although crime is largely a state and local responsibility, federal leadership can be enormously influential beyond the federal system through assistance that fosters innovation, supports research, and shares information about “what works” in combating crime....

Incarceration in the United States is an issue crying out for DOJ attention.  After holding steady for most of the 20th century, the federal prison population increased 10-fold in the last 25 years. The United States at all levels of government incarcerates more of its population than any other nation in the world, both in terms of the incarceration rate and in absolute numbers....

The costs, both financial and social, are astronomical. DOJ should undertake affirmative efforts to decrease prison populations without endangering public safety.  Again, states can provide useful models for each other and for the federal government. In response especially to budget crises, some states have successfully reduced incarceration rates without increasing crime. DOJ should study, disseminate, and implement best practices, which include increased and improved use of drug courts and treatment alternatives to incarceration....

DOJ should document the condition of indigent defense representation systems in the states, compile existing national and local standards for indigent defense systems and defense counsel, and bring stakeholders — judges, defenders, and prosecutors — together to devise solutions to the problem.  Beyond this, DOJ should advocate for federal funding for state indigent defense systems analogous to funding for state prosecutorial functions.... 

DOJ should strive to remedy the terribly disparate racial impact of current criminal law enforcement efforts. Under both the federal and state systems, African Americans suffer gravely disproportionate treatment at every stage — stops, arrest, prosecution, conviction, and sentencing. The causes and solutions are complex. The consequences, however, are devastating, in terms of shockingly disparate rates of imprisonment, which translate into political disenfranchisement and exclusion from student loans, jobs, and other life opportunities....

The solutions typically should not be race based, but should address the harms of problems such as ever-lengthening prison terms and the failures of the war on drugs.  Yet the gross disparate impacts on African Americans, and the perpetuation of the historic harms of discrimination, provide a special moral imperative for concerted attention to problems that harm us as a nation.

In addition, DOJ should pay special attention to how our criminal justice policies harm our nation’s youth, diminishing forever their life opportunities.  Most obvious are extremely lengthy prison sentences and even life without parole imposed for crimes committed by juveniles. Another recent such trend is to put children convicted of sex offenses on public sex offender registries, in some cases for the rest of their lives, which in turn may be used to limit where they may live or work....

Some progress in resolving these and other fundamental criminal justice problems can be made in the first months of the new administration — and the effort certainly should begin then.  But real change will take far longer.  Criminal justice reform should remain a priority throughout the next administration, with the goal of a more just and humane criminal justice system that better protects the public.

Some recent related posts:

November 13, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack