Tuesday, November 02, 2010

A sentencing fan's Election Day guide

Today's elections (in which I have already voted) do not present numerous major crime and punishment story lines to follow.  But there is one super-duper important direct democracy initiative to watch and  plenty of major (and minor) federal and state races that sentencing fans should keep an eye on.  Here I will briefly spotlight a few of my own (idiosyncratic?) sentencing law and policy takes on today's experiment in democracy:

1.  A real prospect for libertarian change at the federal level: The Tea Party Movement is not obviously committed to all the libertarian principles that would call for massive scaling back of the drug war and mass incarceration.  Nevertheless, the new blood pushing the Republican Party, from Rand Paul to Sarah Palin, seems much more committed to individual liberty and smaller federal government than most of the big-government statists now in Congress representing both parties.

Only a naive optimist could seriously predict that the next Congress will want or will be able to make healthy (and needed) reform of the federal criminal justice system a top priority.  Nevertheless, my inherently optimistic streak leads me to believe that if President Obama wants to move forward with shrewd reform advocacy (e.g., if he says "The Era of Big Government (spending on local crime issues) is over"), he might find a surprisingly receptive audience across the aisle after this election.

2.  A real need to keeping getting real about correction budgets at the state level: The last few years have seen numerous states finally dealing with the significant cost consequences of the "tough-on-crime" mass incarceration binge that defined the 1990s crime politics and policies.  But at least a few notable states (e.g., California and Florida and my own Ohio) have so far avoided making some really tough criminal justice spending choices while this election cycle was heating up.  I do not know which candidates in these states are most likely to deal with these fiscal realities most effectively, but I am sure that persistent economic challenges entail that all state officials elected in 2010 will need to get up to speed on these pressing budget and public safety issues ASAP.

3.  A new dawn (maybe) on pot prohibition and the entire drug war: As regular readers surely already know, I view California's Proposition 19 to be extremely consequential because its passage would be a huge step toward ending pot prohibition and toward serious reconsideration of the entire "war on drugs."  Indeed, even if Prop 19 loses but gets at least 40% of the total vote (and more than 50% of younger voters), we likely will continue to see robust and healthy discussion of the costs and benefits of pot prohibition and other aspects of the drug war.  But if Prop 19 goes down badly, say 65% to 35%, the process of retreating from the worst aspects of the drug war will continue to proceed very, very slowly.

Some related posts on the 2010 election and sentencing issues:

November 2, 2010 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates | Permalink | Comments (13) | TrackBack

Thursday, September 23, 2010

USA Today exposes a "pattern of serious, glaring misconduct" among federal prosecutors

A helpful reader alerted me to this potent and disturbing new piece in USA Today headlined "Prosecutors' conduct can tip justice scales." Here are a few excerpts:

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution's promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses.

Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation's most elite and powerful law enforcement officials — themselves violated laws or ethics rules.

In case after case during that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains.

Such abuses, intentional or not, doubtless infect no more than a small fraction of the tens of thousands of criminal cases filed in the nation's federal courts each year. But the transgressions USA TODAY identified were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct.  And each has the potential to tarnish the reputation of the prosecutors who do their jobs honorably....

With help from legal experts and former prosecutors, USA TODAY spent six months examining federal prosecutors' work, reviewing legal databases, department records and tens of thousands of pages of court filings. Although the true extent of misconduct by prosecutors will likely never be known, the assessment is the most complete yet of the scope and impact of those violations.

USA TODAY found a pattern of "serious, glaring misconduct," said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors.  "It's systemic now, and … the system is not able to control this type of behavior. There is no accountability."

He and Alexander Bunin, the chief federal public defender in Albany, N.Y., called the newspaper's findings "the tip of the iceberg" because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges.

However frequently it happens, the consequences go to the heart of the justice system's promise of fairness....

In a justice system that prosecutes more than 60,000 people a year, mistakes are inevitable.  But the violations USA TODAY documented go beyond everyday missteps. In the worst cases, say judges, former prosecutors and others, they happen because prosecutors deliberately cut corners to win.

"There are rogue prosecutors, often motivated by personal ambition or partisan reasons," said Thornburgh, who was attorney general under Presidents Reagan and George H.W. Bush. Such people are uncommon, though, he added: "Most former federal prosecutors, like myself, are resentful of actions that bring discredit on the office."

Judges have seen those abuses, too.  "Sometimes, you get inexperienced and unscrupulous assistant U.S. attorneys who don't care about the rules," said U.W. Clemon, the former chief judge in northern Alabama's federal courts.

Wowsa!  I know of more than a few recent high-profile cases in which accusations of federal prosecutorial misconduct were lodged (and generally rejected by lower courts).  It will be interesting to see if this USA Today report prompts efforts by defense attorneys in all such cases to renew assertions of prosecutorial misconduct.  It will also be interesting to see if and how various folks inside the beltway --- ranging from folks inside Main Justice to members of Congress to even Supreme Court Justices --- might respond to this USA Today report.

September 23, 2010 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24) | TrackBack

Wednesday, September 22, 2010

Top House Republican complaining that Obama administration is not fighting drug war hard enough

As detailed in this report from The Hill, which is headlined "Republican: Obama administration fosters use of marijuana," at least one House Republican wants the Obama Administration to keep growing one part of the federal government:

Rep. Lamar Smith (Texas) accused the administration of being too lax in its enforcement of drug laws.  President Obama's drug policies are encouraging increased marijuana use, a top Republican lawmaker charged Tuesday.

Rep. Lamar Smith (Texas), the top Republican member of the House Judiciary Committee who would likely become chairman of the committee under a GOP majority, accused the administration of being too lax in its enforcement of drug laws.  "The administration is clearly sending the message that they don't think it's bad to use marijuana," Smith said on Fox News. "So they're encouraging the use of marijuana.  And that simply is not a good thing to do."

Smith blamed the administration's decision to not enforce federal laws against marijuana dispensaries in states that have legalized the drug for medicinal purposes.  Smith blamed the administration's approach on drug laws for recent statistics showing an increased use of marijuana.

"We ought to be enforcing our drug laws, not backing away from them," said Smith, who also lamented a recent revision of criminal sentencing guidelines that reduced sentencing guidelines for crack-cocaine traffickers.  Proponents of the law in both parties had pushed that reform because sentencing for crack-related drug crimes were much more severe than for similar amounts of cocaine, a disparity which fueled a racial divide in drug sentencing.

As this article highlights, a Republican take-over of the House of Representatives this fall would likely result in Representative Lamar Smith becoming the chair of the House Judiciary Committee.  And Representative Smith has long been a vocal proponent of the war on drugs and an array of other tough-on-crimes measures that have increased the severity and scope of the federal criminal justice system. 

September 22, 2010 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (17) | TrackBack

Friday, September 17, 2010

Quick textual reflections on Constitution Day

USCon Today, September 17, is the 223rd anniversary of the day in 1787 when the Constitutional Convention officially submitted its proposed constitution to the people of the United States.  To honor the day, I thought I might quoting some of the key criminal justice provisions of the original U.S. Constitution (along with the Bill of Rights):

Part of Article I:  "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.  No Bill of Attainder or ex post facto Law shall be passed."

Part of Article II:  "The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Part of Article III:  "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."

Amendment I:  "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Amendment II:  "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Amendment IV:  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Amendment V:  "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...."

Amendment VI:  "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

I would be interested in readers' perspectives on which criminal justice parts or provisions of the US Constitution they believe or fear is being given the least respect or attention in modern times. 

Regular readers should not be surprised that I believe that it is the Reprieves and Pardons Clause that is in the worst shape in modern times.  Especially in the wake of the Supreme Court's recent work in cases like Heller and Blakely and Graham, I am not unduly worried about the state and fate of the even Amendments (which always seem to get less love than the leading odd Amendments).  But modern presidents have largely ignored their clemency powers until late in their presidencies, and political cronyism rather than constitutional respect seems to best explain many of the major clemency actions of the last few Presidents.  And, as noted here and in many prior posts, President Obama, now almost a full two years into his presidency, has not yet used this historically important constitutional authority a single time (except for two turkeys last Thanksgiving). 

Some related posts:

September 17, 2010 in Clemency and Pardons, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (19) | TrackBack

Sunday, September 12, 2010

"Obama backs off strict crime policy"

The title of this post is the headline of this extended new piece from Josh Gerstein from Politico.  The piece covers a lot of federal sentencing law and policy ground that should be familiar to readers of this blog, and here are excerpts:

For years, it was one of the GOP’s most potent political epithets – labeling a Democrat “soft on crime.” But the Obama White House has taken the first steps in decades to move away from a strict lock-‘em-up mentality on crime – easing sentences for crack cocaine possession, launching a top-to-bottom review of sentencing policies and even sounding open to reviewing guidelines that call for lengthy prison terms for people convicted of child pornography offenses.

The moves – still tentative, to be sure — suggest that President Barack Obama’s aides are betting that the issue has lost some of its punch with voters more worried about terrorism and recession. In one measure of the new political climate surrounding the issue, the Obama administration actually felt free to boast that the new crack-sentencing bill would go easier on some drug criminals....

Despite the tentative moves in the direction of lessening some sentences, there remain numerous signs that Obama and his aides recognize that the issue could still be politically damaging.

When Obama signed the crack disparity bill, only still photographers were allowed in and the president issued no formal statement. The Justice Department’s sentencing review group has indicated it has no plan to issue a formal report that could become a political football. And, 18 months into his presidency, Obama has yet to issue a single commutation or even a pardon to an elderly ex-con seeking to clear his record.

Some advocates note that the crack sentencing bill was not particularly ambitious: it reduced the crack/powder disparity from 100-to-1 to 18-to-1. And it wasn’t retroactive, so some who were sentenced under mandatory minimum laws may not benefit.

Asked whether Obama might grant requests to commute the sentences of those who would have gotten less punishment if they committed their crimes today, an administration official said the crack-disparity bill “reflected Congress’s judgment that the law should not be retroactive, [and] the President believes that the Fair Sentencing Act will go a long way toward ensuring that our sentencing laws are tough, consistent, and fair.”

The official also downplayed the notion Obama might offer some kind of blanket clemency for earlier crack-cocaine offenders, saying that “as a general matter, the President agrees with the Department of Justice’s long-held view that commutation is an extraordinary remedy that should only be granted in extraordinary circumstances.”

September 12, 2010 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, May 27, 2010

Nuanced and astute (and vague) testimony from DOJ at Sentencing Commission hearing on mandatory minimums

As detailed in this prior post, the United States Sentencing Commission today is conducting a public hearing in Washington DC "to gather testimony from invited witnesses regarding the issue of statutory mandatory minimum penalties in federal sentencing."  The agenda and a list of invited witnesses scheduled to testify today at the USSC can be found here, and this morning the bulk of the written testimony submitted by these witnesses are now linked through this agenda page.

Providing a "View from the Executive Branch" (namely the views of the current US Department of Justice) is Sally Quillian Yates, US Attorney for the Northern District of Georgia.  Her submitted written testimony is available at this link, and it is today's must-read for anyone and everyone still following post-Booker sentencing debates and curious about how the Obama Justice Department is staking out ground in these debates.  Just about every paragraph of the DOJ testimony coming from USA Sally Gates is interesting and important, and here are a few extended snippets that really caught my attention:

My testimony today is offered in the context of an ongoing study at the Department of Justice that began soon after Attorney General Holder took office.... The Sentencing and Corrections Working Group is conducting the most comprehensive review of federal sentencing and corrections in the Executive Branch since at least the passage of the Sentencing Reform Act....

The results of the Working Group are guiding the Department’s policies regarding sentencing.  To begin, the Administration has been working hard with Members of Congress to see the enactment this year of legislation to address the current disparity in sentencing between crack and powder cocaine offenses, including the existing 100-to-1 quantity ratio. In addition, last week, the Attorney General issued a new Department policy on charging and sentencing in a memorandum to all federal prosecutors.  This new policy recognizes the reality of post-Booker sentencing and the need for an appropriate balance of consistency and flexibility to maximize the crime-fighting impact of federal law enforcement.  We are also working on new ways to examine racial and ethnic disparities in sentencing beyond federal cocaine sentencing policy to determine if disparities are the result of race-neutral application of statutes and charging decisions and otherwise justified; and we are working on initiatives to promote more effective prisoner reentry.  These and other measures will be announced shortly....

The federal prison population, which was about 25,000 when the Sentencing Reform Act was enacted into law, is now over 210,000.  And it continues to grow.  Much of that growth is the result of long mandatory sentences for drug trafficking offenders.  While these and other mandatory sentences have been important factors in bringing down crime rates, we also believe there are real and significant excesses in terms of the imprisonment meted out for some offenders under existing mandatory sentencing laws, especially for some non-violent offenders. Moreover, the Federal Bureau of Prisons is now significantly overcapacity, which has real and detrimental consequences for the safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety.

At the same time, since the Supreme Court’s decision in Booker, Sentencing Commission research and data – and the experience of our prosecutors – have shown increasing disparities in sentencing.  We are concerned by, and continue to evaluate, research and data that indicate sentencing practices (particularly those resulting in lengthier incarcerations) are correlated with the demographics of offenders.  Further, with more and more sentences becoming unhinged from the sentencing guidelines, undue leniency has become more common for certain offenders convicted of certain crime types.  For example, for some white collar offenses – including high loss white collar offenses – and some child exploitation offenses, sentences have become increasingly inconsistent.  The federal sentencing guidelines, which were originally intended to carry the force of law, no longer do. Thus, for these offenses for which there are no mandatory minimums, sentencing decisions have become largely unconstrained as a matter of law, except for the applicable statutory maximum penalty. Predictably, this has led to greater variation in sentencing. This in turn undermines the goals of sentencing to treat like offenders alike, eliminate unwarranted disparities in sentencing, and promote deterrence through predictability in sentencing.

Our study has led us to the conclusion that in an era of advisory guidelines, mandatory minimum sentencing statutes remain important to promote the goals of sentencing and public safety.  At the same time, we recognize that some reforms of existing mandatory minimum sentencing statutes are needed and that consideration of some new modest mandatory minimum sentencing statutes is appropriate....

In the past, the Sentencing Commission has taken the position that mandatory minimum sentencing statutes were not needed, in part because the sentencing guidelines were themselves mandatory.  This position was also put forward for many years by advocacy groups such as the American Bar Association and Families Against Mandatory Minimums as well as by federal public defenders. However, in our review of federal sentencing over the last year, we have found little support from these groups, in Congress, or the Federal Judiciary for reinstating the presumptive nature of the sentencing guidelines.  In the absence of such a change to the federal sentencing structure that might return presumptive sentencing guidelines (an overhaul that we are not now recommending), we believe that mandatory minimum sentencing statutes must go hand in hand with advisory sentencing guidelines.

May 27, 2010 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, May 25, 2010

DOJ resisting efforts to disinfect the federal celemency process with some sunlight

Light Supreme Court Justice Louis Brandeis famously advocated for transparency and honesty in public policy with the wondrous aphorism "sunlight is the best disinfectant.”  This bright idea came to my mind when I saw this fascinating new article in The National Law Journalconcerning federal celemncy policies and practices. The piece is headlined "Justice Department Wants to Keep Pardon Data Under Wraps: DOJ says release of information on applicants violates privacy law," and here are excerpts:

The Obama Justice Department is fighting to keep secret the names of more than 9,200 people whose applications for pardons and commutations were denied by President George W. Bush.

Last year, DOJ attorneys failed to persuade a judge in the U.S. District Court for the District of Columbia that the privacy interest of the unsuccessful applicants outweighs any public value of producing a list. The department has asked a federal appeals court in Washington to reverse the ruling.

The case is a politically sensitive one for the Justice Department, given Attorney General Eric Holder Jr.'s involvement in the decision to pardon fugitive Marc Rich at the end of the Clinton administration. The Rich pardon turned into a Washington scandal that compelled Holder to apologize for mistakes when it came up during his confirmation hearing last year.

Although the case applies only to pardon applicants during the Bush administration, a loss at the U.S. Court of Appeals for the D.C. Circuit would likely make public the names of those who sought pardons and clemency during other administrations.

Under the current policy, the Justice Department will confirm whether a specific convict received a pardon, but will not disclose a comprehensive list of all the denials.

Since October 2009, Obama has received 382 pardon petitions and 2,275 applications for commutation -- on top of more than 2,000 pending petitions.  Obama has not granted or denied a single petition, according to Justice Department statistics.  The outcome of the dispute has the potential to change the pardon process going forward, said several lawyers in Washington who represent clients seeking clemency.  Routine disclosure of all names could deter some people from seeking a pardon in the first place.

"Pardon grants should be, and are, publicly disclosed because there should not be secret pardons," Hogan Lovells partner H. Christopher Bartolomucci said. "But pardon denials should not be disclosed as a general matter because of the applicant's privacy interest."

The case stems from a Freedom of Information Act request filed by a retired Washington Post reporter, George Lardner, who is writing a book on the history of clemency.  Lardner's lawyers at the Public Citizen Litigation Group in Washington said that comparing clemency lists on file at the Office of the Pardon Attorney will help determine whether ethnic consideration played a role in Bush's rejection of thousands of applications.

Last July, Judge Colleen Kollar-Kotelly issued a 35-page opinion ordering the names to be publicly released. "Fundamentally, the disclosure of the requested information shines a light on the most basic information about the executive's exercise of his pardon power -- who is and who is not granted clemency by the President," Kollar-Kotelly wrote.DOJ officials declined to comment.

In the D.C. Circuit, the department continues to mount its privacy argument -- that many applicants have family members, friends and employers who may not know that the person has a criminal record. There's no way to put a favorable spin on the fact an applicant was deemed unworthy of clemency, wrote DOJ Civil Division lawyer John Koppel in court papers filed May 10. "At most, the public would learn the names of those denied clemency, but not the factors favoring or disfavoring the decision, nor whether there were weighty considerations supporting or opposing clemency in the OPA file," Koppel said in court papers. "Without knowing the reasons that factored in the decision, the public learns nothing about how the government works -- even as a significant privacy interest is sacrificed."

One lawyer in Washington whose practice is devoted to clemency said she supports shedding light on the pardon process but also expressed concern about the prospect of a wholesale release of names. "I think a lot of my clients would be really anxious to see their names on a list of applicants who were denied," said Margaret Colgate Love, the U.S. pardon attorney between 1990 and 1997....

Lardner's attorneys at the Public Citizen Litigation Group in Washington note that none of the unsuccessful applicants are participating in the case and that there are public databases -- the Bureau of Prisons has one -- where employers can check whether an employee has served time in the federal prison system. Public Citizen Litigation Group Director Allison Zieve said DOJ's argument "is speculation about worst-case scenarios" without necessary evidence to support the concern. "For an administration that seeks to pride itself on its openness and commitment to FOIA, it's disappointing they would [appeal]," Zieve said. "It's not really the government's interest at stake in this case."

Because I believe assertions of privacy interests and concerns are frequently overstated, and especially because I consider the federal clemency process very badly broken, I am deeply disappointed that Obama Justice Department is fighting so hard to prevent George Lardner and others from getting the most basic information about the operation of the federal clemency process.  Given that President Obama has failed to act in any way on what is now a backlog of nearly 5,000 clemency petitions, I am a proponent of anyone who is eager in any way to shine more sunlight on a clemency process that seem to me to be teeming with infectants.

Some related posts:

May 25, 2010 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, May 23, 2010

Insiders reporting James Cole tapped to be next Deputy Attorney General

Sentencing fans know that, with the Justice Department's still on-going internal review of sentencing and corrections policy and with lots of important SCOTUS and USSC sentencing decisions in the works, the DOJ remains a critically important playing in helping to chart the short-term and long-term future of sentencing law and practice.  Consequently, given this new story in The National Law Journal headlined "Source: Bryan Cave Partner Picked to Be Next Deputy Attorney General," I now am eager to hear what folks might know about likely future DAG James Cole.

Here are the basic background details from the NLJ story:

President Barack Obama intends to nominate Bryan Cave partner James Cole as the next deputy attorney general, a source with knowledge of the plans confirms.

Cole, 57, comes to the nomination with a mix of experience in the Justice Department and in private practice.  He spent 13 years at the department, rising to be chief of the Public Integrity Section. He's been at Bryan Cave since 1995, specializing in white-collar defense and corporate investigations, though he took time to serve as special counsel to the House Ethics Committee during its inquiry of then-Speaker Newt Gingrich, R-Ga.

Cole is also a friend of Attorney General Eric Holder Jr., and the two worked together at the Justice Department. "He's experienced, able, and a very fair-minded guy," said Irvin Nathan, general counsel to the U.S. House of Representatives, who worked with Cole as a partner at Arnold & Porter....

Arnold & Porter partner James Cooper, who led the embezzlement conspiracy prosecution of officials from the Washington Teachers Union in 2003, called Cole an excellent choice for deputy attorney general because he brings the perspective of an attorney who has worked on both sides of the courtroom.

"I am extremely pleased with the selection," said Cooper, who practices in white-collar criminal defense. "He has had the kind of distinguished career inside and outside of the government that suggests to me he has the right kind of judgment and temperament to be an effective manger."

As the Justice Department's No. 2 official, the deputy attorney general manages the day-to-day operations of its tens of thousands of employees nationwide. The deputy serves as the department's top official when the attorney general is unable to do so, and he can be one of the department's top public faces on Capitol Hill and elsewhere....

Gary Grindler of the department's Criminal Division has been acting deputy attorney general since February, when David Ogden stepped down to return to Wilmer Cutler Pickering Hale and Dorr. Cole's candidacy was first reported last month by ProPublica, and the plans to nominate him were reported Friday afternoon by The Wall Street Journal and The Washington Post.

I doubt Cole would be confirmed before the Supreme Court hands down its expected big rulings in the honest services fraud cases and other still pending big federal criminal law cases this Term.  But he likely would have a hand in how DOJ responds to the Sentencing Commission's important new proposed sentencing guidelines and also its on-going work on mandatory minimum sentencing statutes.  Thus, if anyone has a sense of Cole's sense of these issues, please consider leaving a comment here.

May 23, 2010 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 18, 2010

"Some Reflections on Conservative Politics and the Limits of the Criminal Sanction"

The title of this post is the title of this interesting piece on SSRN from J. Richard Broughton, which I came across only last night (even though it was posted more than a month ago). Obviously, the piece was written well before yesterday's SCOTUS rulings in Comstock and Graham, but the abstract highlights why the piece is still timely and especially worth reading while the ink is still drying on yesterday's intriguing SCOTUS opinions:

This Article, written for the Charleston School of Law’s recent symposium on Crime & Punishment, briefly addresses the significance of popular forces and conservative political thought in an American criminal justice regime that has become too broad in its scope and sometimes unnecessarily harsh in its treatment of certain offenders. Although conservatives can plausibly embrace some judicially-enforceable limits on the criminal law, a conservative view of structural constitutional considerations would still constrain the judiciary’s authority to undermine popular decision-making as to criminal law and punishment. This Article cites the Supreme Court’s disparate approach to capital and non-capital proportionality issues under the Cruel and Unusual Punishments Clause as an example. Those same structural considerations that would credit popular forces in constitutional adjudication, however, necessarily require popular forces to act as the chief definers of the criminal sanction and enforcers of its limits outside the realm of judicial review.

If conservative politics is to lead a more sensible popular approach to crime and punishment, it cannot do so with unhelpful “soft on crime/tough on crime” rhetoric or mass appeals to popular sentiment about the criminal justice issue of the day.  Rather, it must do so through a conservatism grounded in constitutional balance: an appreciation for the tension between the need for order and the claims of liberty, avoiding the vice of impotence in the face of socially harmful conduct but robustly affirming limits to ensure that the government controls itself as well as the people.  Conservatives can adhere to their impulse for preserving civil order and controlling the governed through formal institutions and arrangements, yet also rely upon those same forms to limit the government’s prosecutorial and penal reach.  Such an approach may require conflict between the political branches of government.  But such conflict is actually a constitutional virtue, and its absence has helped to create many of the current distortions in crime policy. This Article therefore suggests a popular (i.e., non-judge-made) and constitutionalist -- but not a populist -- approach to creating a more limited and responsible crime and punishment regime.

May 18, 2010 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, April 28, 2010

Effective USA Today coverage of President Obama's clemency stinginess

Clemencyx Yesterday's edition of USA Today had a pair of pieces (and this reprinted graphis) discussing federal clemency realities, which effectively stressed the significant fact that President Obama has received a huge number of clemency requests while having granted not a single one during his first 16+ months in the Oval Office.  One piece, which is headlined "Record number seek president's clemency," starts this way:

President Obama has received more petitions for pardons and shorter prison sentences than previous presidents at this point in office, and he hasn't approved a single one. 

Obama has already logged 2,361 clemency petitions, according to the Justice Department.  He also faces a backlog of 2,173 old requests, a legacy of a system that civil rights groups and conservative jurists say has fallen into disuse.

A related piece, which is headlined "Convict petitions Obama to reduce crack penalty," highlights the story of, Kenneth Harvey, just one of thousands of offenders hoping that President Obama will give his pledge of hope and change a little more meaning in this context. Here is a brief segment from that piece:

Harvey's family wants him back home — and they thought when Barack Obama got elected president, they'd have a shot. Now, they're not so sure.

Obama has not approved a single request for a pardon or a shorter prison sentence since he took office, despite having more petitions before him — 2,361 according to the Justice Department — than any previous president at this point in his term.

The White House won't discuss the issue, other than to say Obama has asked Justice to review how it processes petitions and makes recommendations.

As regular readers know, I have been urging President Obama to exercise his clemency power with vigor since literally his very first day in the Oval Office (as evidenced by some of the posts linked below).  Though I remain deeply disappointed at the lack of action by the President in this setting, I am perhaps even more disappointed by the lack of criticism concerning the Obama Administration's failings in this historically significant setting.

Some related posts:

April 28, 2010 in Clemency and Pardons, Criminal justice in the Obama Administration | Permalink | Comments (6) | TrackBack

Wednesday, April 21, 2010

Fascinating report on backstory behind presidential pardon problems

This new post at Main Justice, which is headlined "Despite Efforts, Pardon System Still Unchanged," provides some new and notable details about discussion and debate over pardon policy inside the Obama Administration.  Here are excerpts:

Behind closed doors Justice Department and White House officials have been considering changes to the system since the start of the Obama administration, though the White House appears to have scaled back its ambitions after key personnel changes.

Former White House Counsel Greg Craig, now a partner at Skadden, Arps, Slate, Meagher & Flom, led a push for major reforms before stepping down last November, according to two people with knowledge of the discussions.  He received support from then-Deputy Attorney General David Ogden, who recently returned to his practice at Wilmer Cutler Pickering Hale and Dorr LLP, the individuals said.

Attorney General Eric Holder — whose involvement in the controversial pardon of fugitive financier Marc Rich at the end of the Clinton administration threatened his career — also expressed interest in making the clemency program “more systematic,” said one of the individuals.

The Justice Department’s Office of the Pardon Attorney receives clemency applications and makes recommendations to the White House via the Office of the Deputy Attorney General.  A steep backlog in the pardon office coupled with fewer clemency grants in recent years has driven applicants to reach out to the White House directly.

Some critics say the current system is obsolete because it provides the president with no assurances that his grants will be free of political consequences. Meanwhile, they say, the tool used in the past to “correct injustices that the ordinary criminal process seems unable or unwilling to consider,” as Justice Anthony Kennedy once wrote, has fallen into disuse.

An idea favored by Craig was the creation of a blue-ribbon commission or an advisory process inside the Justice Department but apart from the pardon attorney, the people said.  After he stepped down in November, however, discussions turned to developing criteria under which clemency petitions should be granted in the existing program.

“Like every administration, we are updating the policy guidance for DOJ on requests for executive clemency,” a White House official said.  Craig and Ogden declined to comment.  A Justice Department spokeswoman declined to comment while the policy was under review.

The clemency issue gained attention after the Supreme Court heard arguments last month in Dillon v. U.S., a case brought by a federal prisoner who was sentenced in 1993 to 27 years behind bars for trafficking in crack cocaine.

Percy Dillon, described as a model prisoner, asked the court to decide whether the U.S. Sentencing Commission erred in limiting federal judges’ discretion in new sentencing hearings under Congress’ 2007 reduction in the crack guidelines.  A federal judge had called his original sentence “unfair” and “entirely too high.”

At one point, Justice Kennedy asked the government’s lawyer whether the Justice Department ever recommends clemency for prisoners like Dillon.  He also questioned whether the lack of commutations last year and the five the year before signaled that “something is not working in the system.”

It is quite sad (and perhaps quite telling) that the two official inside the Obama Administration who were most forcefully pushing for clemency reforms are now out of the Administration.  And, of course, it is even sadder and even more telling that we are now deep into the Obama era and have yet to see any tangible evidence of significant hope and change in this setting or in many other federal criminal justice contexts.

As regular readers know, I have been urging President Obama to exercise his clemency power with vigor since literally his very first day in the Oval Office:

April 21, 2010 in Clemency and Pardons, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, February 11, 2010

"Grandmother Will Mark President's Day By Petitioning Obama To Commute Her 27-Year Prison Sentence For Non-Violent Crime"

The title of this post is the headline of this new press release from the ACLU.  Here are excerpts from the release, which provides the backstory of a remarkable case, that appears to be the kick-off for a remarkable new project:

Hamedah Hasan, a mother and grandmother serving her 17th year of a 27-year federal prison sentence for a non-violent crime, asked President Obama today to commute her remaining sentence. Hasan's petition was filed with the U.S. Department of Justice's Office of the Pardon Attorney, and was accompanied by almost 50 letters of support from prison chaplains, community members, advocates, friends and family. The American Civil Liberties Union represents Hasan in her commutation petition....

In an unusual display of support for a commutation petition by a federal judge, the Honorable Richard G. Kopf, U.S. District of Nebraska, who sentenced Hasan in 1993, wrote a letter to the Department of Justice Pardon Attorney's Office. In it, Judge Kopf said, "…I can say, without equivocation, that Ms. Hasan is deserving of the President's mercy. I have never supported such a request in the past, and I doubt that I will support another one in the future. That said, in this unique case, justice truly cries out for relief."...

President Obama, Vice President Biden and Attorney General Holder have publicly called for equalization of federal sentences for crack and powder cocaine, and the U.S. Sentencing Commission has called for reform of the crack-powder sentencing disparity four times. President Obama's "Blueprint for Change," published soon after he was elected in 2008, stated, "...the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated."...

Hasan's petition is the first of several in a larger project, dubbed "Dear Mr. President, Yes You Can."  The Dear Mr. President Project brings together civil rights advocates, legal scholars, law school clinics, pro bono counsel and others to urge President Obama to depart from the practices of his immediate predecessors and use the pardon and commutation power in a principled way, consistent with his administration's position that the crack Sentencing Guidelines have been far too harsh.  The Project also aims to promote the president's clemency power as a means to correct historical injustices.

Baylor Law School professor and former federal prosecutor Mark Osler, who is a founding member of the Project, noted, "President Obama has gone 387 days (and counting) without granting a single pardon or commutation.  This makes him one of the slowest-acting presidents in history to exercise the power of forgiveness.  Thomas Jefferson employed the pardon power to eliminate the sentences of those convicted under the shameful Alien and Sedition Acts.  President John F. Kennedy granted over 100 commutations in less than three years in office.  President Lyndon Johnson commuted 226 sentences. It's time for President Obama to revive the noble and necessary function of executive clemency in Hamedah Hasan's case."

Hasan is the mother of three daughters, Kamyra, 16, to whom Hasan gave birth in prison, Ayesha, 21, and Kasaundra, 26. Hasan also has two grandchildren.  Hasan's commutation petition materials are available at: www.dearmrpresidentyesyoucan.org  

Awesome stuff here, and I am hopeful (though sadly not especially optimistic) that this campaign might finally help President Obama do something about his truly shameful clemency record to date.  At the very least, I hope that this "Dear Mr. President Project" will lead prompt the media to start taking more note of President Obama truly shameful clemency record to date.

Some related recent posts on federal clemency realities:

February 11, 2010 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Thursday, February 04, 2010

Noting big (and wasteful?) budget growth in federal prison spending

Following up on an issue I spotlighted in this recent post (which has generated lots of interesting comments), today this article in USA Today takes a look at the Justice Department's proposed 2011 budget numbers. This piece is headlined "2011 budget gives federal prisons $528M," and here are some highlights:

As states cut their budgets by closing prisons and diverting some offenders to probation and treatment programs, the federal government is proposing to dramatically ramp up its detention operations.

The Obama administration's $3.8 trillion 2011 budget proposal calls for a $527.5 million infusion for the federal Bureau of Prisons and judicial security — $227 million more than the proposed increase to Justice's national security program. The boost would bring the total Bureau of Prisons budget to $6.8 billion.

Nearly half of the new funding is proposed to accommodate the administration's plan to close the military detention facility at Guantanamo Bay and move some of the terror suspects to an Illinois prison. The Justice Department also projects that federal prisons, which now hold 213,000 offenders, will hold 7,000 more by 2011.

Also included in the Justice budget is a proposal to hire 652 additional prison guards and fill 1,200 vacant detention positions, far more than the combined 448 new agents planned for the FBI, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, and U.S. Marshals Service.

Assistant Attorney General Lee Lofthus says the increased prison system funding does not reflect a de-emphasis of national security, only that the Bureau of Prisons "needs the bed space."...

The federal spending plan contrasts with the criminal justice strategies pursued in many cash-strapped states, including California, Kansas and Kentucky, where officials have closed prisons or allowed for the early release of some non-violent offenders. In Kansas, for example, state officials last year closed three prisons and reduced the number of probation violators sent to prison to reduce detention costs.

Marc Mauer, executive director of the Sentencing Project, which advocates alternatives to incarceration, says states have a "greater sense of urgency" to change policy because of their obligations to balance budgets. "That sense of urgency isn't there at the federal level," Mauer says. "Prison expansion slows the momentum for the reconsideration of some of those policies."

I hope we might hear the usual suspects who usually complain most loudly about excessive federal spending will speak out about the continued (and wasteful?) growth of the federal criminal justice and prison system.  I fear, however, that prison spending tends to be an arena in which many persons who are usually advocates for limited government spending become quite willing to endorse the continued growth of big government.

Some recent related posts:

February 4, 2010 in Criminal justice in the Obama Administration, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Thursday, December 24, 2009

Obama as Scrooge: no Christmas clemency grants

Scrooge As I complained in posts here and here and here around Thanksgiving, it was sad and telling that President Barack Obama's first use of his historic clemency power was to continue the modern (silly?) tradition of pardoning a turkey.  At that time, however, I was hoping that Prez Obama might be saving up some holiday clemencies for the Christmas season.  But now the Obamas have gone off to Hawaii on their vacation; as this official webpage reveals, Prez Obama has left behind on Christmas Eve nearly 3,500 requests for pardons and commutations sitting unresolved on his Oval Office desk.

In this new Huffington Post commentary, which is titled "What I Want For Christmas: Mass Clemency," Jacob Appel makes a fulsome pitch for all executive branch leaders to consider the granting of mass clemency this holiday season.  Here are some highlights:

[W]ith the United States now boasting the highest incarceration rate in the world -- more than 1 in every 100 Americans in currently behind bars -- our nation is long overdue for a mass clemency of non-violent felons and those unlikely to re-offend.  Such a collective pardon and commutation would reunite hundreds of thousands of families, save billions of dollars in incarceration costs, and might foster a national spirit of forgiveness and reconciliation....

So here's my Christmas wish: Each chief executive should order a special panel to determine, as quickly as possible, which prisoners either have a history of extreme violence or pose a high risk of re-offending.  Those meeting neither criteria should be transitioned home as quickly as possible....

One of the glaring -- yet too often overlooked -- failings of contemporary America is that we have become a nation obsessed with justice and retribution.  We claim to be The Land of the Free, yet we have lost sight of what it means to be imprisoned: denied liberty and access to one's family, subjected to isolation and violence and unspeakable boredom.  We have come to believe, in the most pernicious way, that people should get what they deserve.  What a sea change it might be in our public discourse and our civic life if we focused instead upon mercy and forgiveness.  A merciful and forgiving culture might find itself with less anger, less social disruption, and even less crime.  If we liberated only half of our prisoners, we could spend the billions of dollars saved educating children, or providing substance-abuse treatment to addicts, or training mental health workers -- breaking the cycle of neglect that sets future prisoners on their initial trajectory toward misconduct....

Fortunately, the majority of our more than two million prisoners are not fanatics and sociopaths. Many are good people who have exercised poor judgment.  They have the same hopes and dreams as ordinary, free Americans, but they now squander their lives behind bars because our prison-industrial complex has gone haywire.  They are, in short, the meek and wretched who the Biblical Jesus -- whether literal or figurative -- would want us to remember in our holiday prayers.

Will the White House read this column and decide upon a mass clemency?  Unlikely.  Such a bold step might make President Obama truly worthy of his Nobel Prize, and win him the praise of history, but political leaders of all stripes think in terms of poll numbers.  I suspect that a mass clemency could be sold to the American public -- particularly as more and more Americans find their own loved ones imprisoned -- but I understand that to attempt such a courageous step requires a leap of considerable faith.  I am more optimistic that, if enough people clamor for a mass clemency, one inspired state governor -- possibly a lame-duck chief executive without a political future -- will consider such a dramatic and compassionate act.  If that happens, and the social order does not crumble, other political leaders may have the courage to follow.  In the interim, I can only hope that the government lawyers assembling last-minute pardons lists, possibly as I write this, remember that each name they add to their clemency register is another flesh-and-blood human being who will be able to spent the Christmas holiday with his or her family.

While I am impressed by Appel's pitch for mass clemencies, I would have been grateful if President Obama would have granted even a single clemency before heading off to the islands.  In this Thanksgiving post, I called out President Obama and the criminal justice members of his White House team as turkeys.  Now, this Christmas Eve, the label Scrooge seems fitting for all these folks. 

Relatedly, as I have suggested before, I think that the media, public policy groups and the left side of the blogosphere also merit some spiritual grief this Christmas eve.  Save for an few commentaries like Appel's, there has been precious little media or blogosphere criticism of the failure of President Obama to bring any hope or change to modern federal clemency stinginess.  Sadly, far too many criminal justice groups and bloggers, who should be making a big stink about Obama's failure to show a true concern for the meek and wretched sitting in prison this holiday season, seem to be content tucked in their beds without stirring this night before Christmas.

Some related posts on federal clemency realities:

December 24, 2009 in Clemency and Pardons, Criminal justice in the Obama Administration | Permalink | Comments (11) | TrackBack

Thursday, December 03, 2009

"No Decrease In Death Penalty Approval Rate"

The title of this post is the headline of this notable new NPR piece discussing the absence of significant change in the handling of the federal death penalty under the new Obama Administration.  Here are excerpts:

During the Bush administration, opponents of capital punishment criticized the Justice Department for bringing federal death penalty cases too often and in states that have outlawed execution as a form of punishment.

With Attorney General Eric Holder running the department, many people expected to see a more limited use of the tactic. But so far, Holder is instructing prosecutors to seek the death penalty at roughly the same rate as President Bush's last attorney general.... Holder has authorized death penalty prosecutions at a pace comparable to that of his immediate predecessor, according to the Federal Death Penalty Resource Center. The center helps defense lawyers in capital cases, and it also tracks how often an attorney general authorizes prosecutors to seek the death penalty.

According to the Federal Death Penalty Resource Center, President Bush's first attorney general, John Ashcroft, greenlighted 139 federal death penalty prosecutions out of 641 cases that might have been eligible for capital punishment. That's a 22 percent approval rate. Ashcroft's successor, Alberto Gonzales, authorized prosecutors to seek the death penalty in 81 out of 423 possible cases, for a 19 percent approval rate.

Michael Mukasey approved 21 out of 159 cases, so his approval rate was 13 percent. Holder's approval rate is almost identical to Mukasey's. As of Oct. 3, capital defense lawyers say, Holder had authorized prosecutors to seek the death penalty in 7 cases out of 61 that might have been eligible for capital punishment. That's an 11 percent approval rate.

If you include the five alleged Sept. 11 conspirators headed to New York from Guantanamo for a federal death penalty trial, the rate climbs higher. And Thanksgiving week, Holder instructed prosecutors to seek the death penalty in another four cases....

There is also a question of local standards in death penalty enforcement. Many states have outlawed the death penalty, but even in those states, federal prosecutors can still bring capital charges....

Ashcroft brought federal death penalty cases in states that have outlawed capital punishment. When asked for his view on bringing federal death penalty cases in states that have outlawed capital punishment, Holder said, "I wouldn't say that there's a policy where we're doing it on a state-by-state basis. It really is a case-by-case basis."

December 3, 2009 in Criminal justice in the Obama Administration, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, November 18, 2009

"Obama suggests 9/11 suspect will get death penalty"

The title of this post is the headline of this new Reuters piece. Here is how the piece starts:

U.S. President Barack Obama suggested on Wednesday the self-professed mastermind of the Sept. 11, 2001, attacks would be convicted and put to death, but later said he was not trying to prejudge the trial.

I am bumming that President Obama did not also predict just when Khalid Sheikh Mohammed would be executed, especially since the administration of the federal death penalty remains in a virtual legal black hole since some scheduled federal executions were stayed way back in 2006 based on pre-Baze concerns about lethal injection protocols. 

Some related posts:

November 18, 2009 in Criminal justice in the Obama Administration, Death Penalty Reforms | Permalink | Comments (12) | TrackBack

Monday, November 09, 2009

"President Barack Obama proving stingy with his pardon power"

The title of this post is the headline of this little piece today in the Chicago Tribune.  These basics about President Obama's poor clemency track record to date should be familiar to regular readers of this blog:

A lot of things have moved pretty quickly in the Obama administration. Presidential pardons are not among them.  In two and a quarter centuries, only four presidents have been slower than President Barack Obama in exercising their authority of executive clemency -- granting either pardons or commutations of sentences to the convicted -- with thousands of applications pending at the Justice Department.

Some related posts on federal clemency:

November 9, 2009 in Clemency and Pardons, Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

Sunday, October 11, 2009

DOJ reviewing some DNA testing waivers in federal plea agreements

This new article in today's Washington Post, which is headlined "Justice Dept. to Review Bush Policy on DNA Test Waivers," spotlights an interesting issues concerning the use of rights waivers in some federal plea agreements. Here are some of the basics:

Attorney General Eric H. Holder Jr. has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law, officials said.

The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence.  More than 240 wrongly convicted people have been exonerated by such tests, including 17 on death row.

The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges. Prosecutors who use them, including some of the nation's most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing.  They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts.

But DNA experts say that's about to change because more sophisticated testing will soon bring biological evidence into federal courtrooms for a wider variety of crimes.  Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right.  One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty....

Interviews and documents show that language allowing for DNA waivers was inserted into the law at the behest of Republican senators and that the Bush Justice Department lobbied against the measure even with the waiver provision.  Soon after the law passed with bipartisan support, the department sent a secret memo to the nation's 94 U.S. attorney's offices urging them to use the waivers, several federal officials familiar with the memo said.

Holder, a former U.S. attorney in the District, has called for expanded DNA testing in federal courts. After inquiries by The Washington Post, his spokesman, Matthew Miller, said Holder "has ordered that the department review its DNA waiver policy."...  Oregon prosecutor Joshua Marquis, who sits on the executive committee of the National District Attorneys Association, said he's never heard of DNA waivers in state court and that the organization opposes the concept. "I think it's important to always leave the door open for actual proof of innocence," he said.

In federal court, the waivers are part of the standard plea agreement filed by prosecutors in the District, Alexandria and Manhattan, which are among the nation's highest-profile U.S. attorney's offices.  Waivers are used in some or all pleas by at least 16 other offices, including such large ones as Chicago and Los Angeles and such smaller ones as Arkansas and West Virginia. Prosecutors in Maryland rarely use the waivers. "It saves us a lot of spurious litigation down the pike," said G.F. Peterman III, acting U.S. attorney in the Middle District of Georgia. "All they have to do is say I'm not guilty, go to trial and they've waived nothing. It's their decision."

Defense attorneys disagree, saying prosecutors give defendants the choice of signing the waiver or not getting the benefits of a plea agreement, which usually include a lighter sentence. "It's a horrendous provision, and I can never get them to take it out," said Christopher Amolsch, a lawyer whose client recently waived DNA testing rights in a cigarette smuggling case in U.S. District Court in Alexandria. Other lawyers said they don't usually fight the waivers, considering it a losing battle....

At least 24 U.S. attorneys don't use the waivers. It could not be determined how many inmates have been affected by the policy, because the remaining 50 U.S. attorney's offices did not respond to inquiries or declined to comment.  It is also unclear how many federal prisoners have filed petitions seeking post-conviction DNA testing since 2004.  Justice Department officials said the number is small but have also said they expect more petitions over time.

Though this Postarticle is focused on waiver of the right to DNA testing, I am hopeful that the Justice Department is examining critically all the disparate and disturbing use of broad waivers in federal plea agreements.  I am glad to see the Post focusing on one part of this issue, but I hope the inquiry into waivers of rights in plea deals extend beyond DNA concerns.

As this article highlights, though the Justice Department and federal prosecutors are often raising concerns about disparate sentencing practices, the reality of federal criminal practice is that plea bargaining practices and plea agreement terms are often wildly disparate from district to district.  The different and disparate fast-track sentencing programs (discussed in the most recent FSR issue) are the most tangible example of prosecutor-produced disparity, but use of different types of waivers is also profound and pervasive, too. 

The most pervasive and pernicious plea agreement waiver involves waivers of the right to appeal.  Though statistics are hard to come by, I suspect that some (if not most or even all) federal districts include appeal waiver in some (if not most or even all) plea agreement.  As I explained in long ago posts here and here right after Booker, I think a strong argument could and should be made that appeal waivers are void as against public policy as enshrined in the Sentencing Reform Act and Booker.  But, to my knowledge, only a very few federal judges and courts refuse to endorse and uphold appeal waivers.

October 11, 2009 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, October 05, 2009

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.

October 5, 2009 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, September 29, 2009

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:

September 29, 2009 in Criminal justice in the Obama Administration, Drug Offense Sentencing | Permalink | Comments (1) | TrackBack