Thursday, December 14, 2017

Does the election of Doug Jones in Alabama increase the prospects of federal statutory sentencing reform?

The question in the title of this post is prompted by this Marshall Project piece headlined "What the Doug Jones Election Means for Criminal Justice Reform." The subheadline of the piece, "The Alabama Democrat represents the flip-side of his predecessor," perhaps best frames the article that follows, and here are excerpts:

Last year, prospects were looking good for a bipartisan effort in Congress to overhaul federal sentencing. But after long and careful negotiations, one senator almost single-handedly torpedoed the measure: the junior Republican from Alabama, Jeff Sessions.

Sessions, of course, went on to become Attorney General, dimming hopes even further.  But Tuesday’s election of his unlikely replacement, Democrat Doug Jones, hands the seat to a former federal prosecutor who has advocated for less harsh sentencing and more alternatives to prison.  “Doug Jones was a groundbreaking voice for prosecutorial reform to end mass incarceration,” said Lauren-Brooke Eisen, senior counsel in the Brennan Center’s Justice Program.  “He was one of the first prosecutors to speak out about how prosecutors can and should help reduce unnecessary incarceration.”

Jones, the former U.S. Attorney for the Northern District of Alabama, was best known as a prosecutor for securing the convictions of two former Ku Klux Klan members in the infamous 1963 bombing of the 16th Street Baptist Church in Birmingham, which killed four young black girls.  The men were convicted in 2001 and 2002.

Over the last few years, Jones, who could not be reached for comment Wednesday after his victory, has begun to openly push for changes that would give prosecutors more leeway.  He included criminal justice among his top campaign priorities, taking aim at mandatory minimum sentencing, disparities that send a disproportionate number of blacks and Latinos to prison, and “three strikes” laws.  “These are bipartisan issues Democrats and Republicans agree on,” Jones told a group of Alabama State University students last month. “Try to reduce the crime, keep our communities safer and at the same time cut down the costs of the criminal justice system.”...

It’s too soon to tell what Jones’ election means for federal sentencing reform. Progress stalled under President Donald Trump, and Sessions has stayed true to his law-and-order roots, calling on U.S. Attorneys to seek the highest possible charges and rolling back a guideline that had allowed prosecutors to ignore some drug charges.  Legislators and advocates instead have focused on trying to create more re-entry programs, prison educational opportunities and job skills training.

But Jones’ election elevates one of the effort’s most vocal supporters.  Two years ago, Jones and another former federal prosecutor, James E. Johnson, and other law enforcement officials formed Law Enforcement Leaders To Reduce Crime & Incarceration, a bipartisan, reform-minded advocacy group.  Jones was among members who signed a letter supporting the effort that ultimately died in Congress....  “While I sought harsh punishments for violent offenders as U.S. attorney, not all cases require severe sentences,” Jones wrote on his website. “Judges and prosecutors should be given flexibility and be empowered to decide the fate of those before them in the justice system.”

For the time being, the prospects of any congressional federal sentencing reform rests primarily in the hands of Senate Leader Mitch McConnell and Prez Donald Trump.  Senator McConnell can refuse (and so far has refused) to bring the Sentencing Reform and Corrections Act up for a floor vote even though some GOP Senators have said, as noted here, the SCRA could get 70 votes in the Senate right now.   But the SCRA surely would not get 70 votes in Prez Trump were to come out vocally against it, and Senator McConnell surely will not bring it up for a floor vote if he knows doing so would be against the wishes of Prez Trump.  Those realities likely mean that the new Senate 51-49 math and the new voice of Senator-elect Jones will not in any major way directly impact the prospects for congressional federal sentencing reforms in the months ahead.

That all said, I do think the Jones victory in Alabama still has some political ripples in the arena of crime and punishment.  As he did in the gubernatorial race in Virginia, Prez Trump used his Twitter thumbs to make a "weak on crime" attack on the Democratic candidate in Alabama.  That candidate still prevailed, and did particularly well in the suburbs where it is often thought the "soft on crime" epithet is most effective (although surely other factors mattered to suburban Alabama voters earlier this week).   Including the New Jersey race for governor also decided last month, we can and should now say that in the last three significant state-wide elections, the candidate obviously more supportive of criminal justice reform prevailed.

I make these points not to assert that many political candidates are going to now view criminal justice reform advocacy as a winning political strategy, although I expect (and hope) some will.  Rather, I am making the more subtle (but important) point that no current politician or would-be candidate should any more be unduly afraid that supporting criminal justice reform could doom them in the next political cycle.  For much of the last half-century, the conventional wisdom was that any politician who could be effectively painted as soft on crime was sure to lose in the next election  (and I suspect this conventional wisdom in part accounts for why so little significant criminal justice reform was actually achieved during the Obama era).  With every significant victory by any person who calls for criminal justice reform on the campaign trail, that old conventional wisdom becomes much less conventional and much less wise.

December 14, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Friday, December 01, 2017

Can, should and will AG Sessions seek a federal prosecution of Garcia Zarate after "disgraceful verdict in the Kate Steinle case"?

Download (4)The provocative question in the title of this post is prompted by this news of a (surprising?) trial verdict in California state court in a high-profile prosecution and the immediate reactions thereto.  Here are the basics (with some emphasis added):

A jury handed a stunning acquittal on murder and manslaughter charges to a homeless undocumented immigrant whose arrest in the killing of Kate Steinle on a San Francisco Bay pier intensified a national debate over sanctuary laws.

In returning its verdict Thursday afternoon on the sixth day of deliberations, the Superior Court jury also pronounced Jose Ines Garcia Zarate not guilty of assault with a firearm, finding credence in defense attorneys’ argument that the shot that ricocheted off the concrete ground before piercing Steinle’s heart was an accident, with the gun discharging after the defendant stumbled upon it on the waterfront on July 1, 2015.

Garcia Zarate, a 45-year-old Mexican citizen who was released from County Jail before the killing despite a federal request that he be held for his sixth deportation, was convicted of a single lesser charge of being a felon in possession of a gun. He faces a sentence of 16 months, two years or three years in state prison. Garcia Zarate, who has already served well over two years in jail and gets credit for that time, will be sentenced at a date not yet determined.

The verdict set off a flurry of reactions.  Defense attorneys said the case had been overcharged, while U.S. Attorney General Jeff Sessions blamed the killing on San Francisco’s policy of refusing cooperation with immigration agents. Jim Steinle, who had been strolling on the pier with his daughter when she fell, told The Chronicle he was “saddened and shocked,” adding, “Justice was rendered, but it was not served.”...

President Trump, who has cited the case in his effort to build a border wall, said on Twitter, “A disgraceful verdict in the Kate Steinle case! No wonder the people of our Country are so angry with Illegal Immigration.”

Defense attorney Francisco Ugarte suggested a different lesson, saying, “From day one, this case was used as a means to foment hate, to foment division, to foment a program of mass deportation ... and I believe today is a vindication for the rights of immigrants.”...

Garcia Zarate was charged from the beginning with murder, and prosecutors gave the jury the option of convicting him of first-degree murder, second-degree murder or involuntary manslaughter. Jurors rejected all three.

The defendant is not likely to be released again in the city. San Francisco officials have long said they will turn over undocumented immigrants to federal authorities if they obtain a warrant, and records show Garcia Zarate is being held on a U.S. Marshals Service warrant. U.S. Immigration and Customs Enforcement “will work to take custody of Mr. Garcia Zarate and ultimately remove him from the country,” Tom Homan, the agency’s deputy director, said in a statement.

Steinle, 32, had been walking with her arm around her father on Pier 14 when she was struck in the back by a single bullet. The round had skipped off the concrete ground after being fired from a pistol that had been stolen, four days earlier, from the nearby parked car of a federal ranger. Prosecutors told the jury that Garcia Zarate brought the gun to the pier that day to do harm, aimed it toward Steinle and pulled the trigger. Assistant District Attorney Diana Garcia spent much of the trial seeking to prove the pistol that killed Steinle couldn’t have fired without a firm pull of the trigger, while establishing that Garcia Zarate tossed the weapon into the bay before fleeing the scene.

Alex Bastian, a spokesman for the district attorney’s office, said Thursday that prosecutors had found sufficient evidence for the charges at every step of the case. “The verdict that came in today was not the one we were hoping for, but I think it’s unequivocal that both sides gave it their all,” Bastian said. “This really is about the Steinle family. They’ve shown incredible resolve during this whole process, and our hearts go out to them.”

Defense lawyers said the shooting was an accident that happened when Garcia Zarate, who had a history of nonviolent drug crimes, found the gun wrapped in a T-shirt or cloth under his seat on the pier just seconds before it discharged in his hands. Lead attorney Matt Gonzalez said his client had never handled a gun and was scared by the noise, prompting him to fling the weapon into the bay, where a diver fished it out a day later....

During the monthlong trial, jurors watched video from Garcia Zarate’s four-hour police interrogation, in which he offered varying statements about his actions on the pier. At one point he said he had aimed at a “sea animal,” and at another point, he said the gun had been under a rag that lay on the ground near the waterfront, and that it fired when he stepped on it. Gonzalez said it was clear in the video that Garcia Zarate — who has spent much of his adult life behind bars, was living on the street before the shooting, and has a second-grade education — did not fully understand what the officers were asking him through an officer’s Spanish translation.

What primarily prompts the question in the title of this post is the possibility that the current federal administration might view the California state court acquittal of Garcia Zarate in terms comparable to the California state court acquittal of Los Angeles police officers for their beating of motorist Rodney King. (These verdicts, as well as OJ Simpson's acquittal, lead me to think Californians at least sometimes take "beyond a reasonable doubt" quite seriously.)  The outrage over that state court acquittal surely played a significant role in the decision by federal authorities to pursue federal charges against the LA officers.  Perhaps similar outrage (at least from Prez Trump) over this state court acquittal will have federal authorities thinking the same way. (And, as criminal procedure gurus know, the dual sovereignty doctrine means there is no Double Jeopardy limit on the feds pursuing parallel charges in this case.)

I highlighted the limited severity of the sentence that Garcia Zarate now faces in state court to highlight another reason why federal authorities might be inclined to take up this case. Even if the federal prosecutors were only able secure a federal conviction for felon in possession, that charge alone in federal court would carry a sentence of at least up to 10 years and might actually have a mandatory minimum sentence of 15 years if Zarate's criminal history made him subject to the Armed Career Criminal Act (ACCA).  And, of course, the feds could and would get their usual two bites at the apple if they also charged various homicide offenses: a jury conviction of homicide charges would immediately raise the sentencing stakes, but even a jury acquittal would not preclude prosecutors from arguing to the judge that Steinle's death was critical "relevant conduct" at sentencing that should drive up his guideline range.

Last but not least, as I was typing up these thoughts, I saw this new FoxNews report headlined "DOJ weighing federal charges in Kate Steinle murder case, after not guilty verdict." Here is a snippet:

Justice Department spokeswoman Sarah Isgur Flores acknowledged Friday that the DOJ is looking at federal charges.  She suggested a possible charge could be felony re-entry or a charge pertaining to a violation of supervised release.  “We’re looking at every option and we will prosecute this to the fullest extent of the law because these cases are tragic and entirely preventable,” Flores said on “Fox & Friends” Friday.

If DOJ is really serious about "prosecut[ing] this to the fullest extent of the law," it seems to me that there are many more charges available beyond just immigration offenses (although those offenses, too, could be used to imprison Zarate for decades).

December 1, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (18)

Friday, November 17, 2017

New ACLU poll suggests significant interest in criminal justice reform

This ACLU posting, headlined "ACLU Poll Finds Americans Reject Trump’s Tough-on-Crime Approach," reports on the result of notable new poll with notable new findings. Here are excerpts from the posting:

In a rejection of President Trump and Attorney General Jeff Sessions' tough-on-crime approach, a new ACLU poll finds that a large majority of Americans believe the criminal justice system is unjust and needs to be significantly reformed.

Nine out of 10 Americans from across the political spectrum told our pollster that our criminal justice system needs fixing. This is an astounding number, but the results are even more impressive when you drill down into them. They show that criminal justice reform is a political issue the American people care about....

Our polling shows that Americans are uncomfortable with the land of the free putting so many of its people behind bars, particularly when two out of three respondents do not believe that the criminal justice system treats Black people fairly. Seventy-one percent of respondents said that the United States should reduce its prison population.

This support remained strong across people with very different political beliefs. Eighty-seven percent of Democrats, 67 percent of independents, and 57 percent of Republicans all agreed that we should reduce our prison population. But one of the most encouraging signs that Americans have had enough of mass incarceration is that 52 percent of Trump voters said it was important to reduce the size of the prison population.

Most people polled also believed that mass incarceration wasn’t just a serious problem but counterproductive. Seventy-one percent of respondents agreed that “sending someone to prison for a long sentence increases the chances that he or she will commit another crime when they get out because prison doesn’t do a good job of rehabilitating problems like drug addiction and mental illness.” This includes 68 percent of Republicans and 65 percent of Trump voters. Bleeding-heart liberals they are not.

Americans also don’t want their prisons full of people with mental health disabilities. Eighty-four percent of respondents said that people with mental health disabilities belong in mental health programs instead of prison.

Two in three Americans would be more likely to vote for candidates who supported reducing the prison population and using the savings to reinvest in drug treatment and mental health programs, including 65 percent of Trump voters. And 72 percent said that they would be more likely to vote for an elected official who supports eliminating mandatory minimum laws. This is in direct contrast to the agenda pushed forward by President Trump and Attorney General Session, who have supported more mandatory minimums.

The majority of Americans recognize racial bias in the criminal justice system. Fifty-five percent of Americans agree that racism in policing, prosecution, and sentencing are responsible for racial disparities in our nation’s prisons and jails....

Sixty-one percent of Americans believe that people who have committed crimes involving violence can turn their lives around. Sixty-one percent of Americans also believe that people who suffer from drug addiction and commit serious crimes don’t belong in prison but should be in rehabilitation programs where they can receive treatment. And nearly nine out of 10 respondents believe that when people with mental health disabilities commit crimes that involve violence they should be sent to mental health programs where they can receive treatment from professionals.

The full ACLU poll producing these results are available at this link.  Because of the structure of some of the questions asked in this poll, I am not entirely convinced that there is quite as much public opposition to current Trump-era "tough-on-crime" approaches as the ACLU is here asserting.  But I do think this poll provides still further evidence that the public in general is eager to hear policy-makers and political candidates discuss the opportunities and need for criminal justice reform.

November 17, 2017 in Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, November 16, 2017

Notable crime fighting comments by Deputy AG Rosenstein in Chicago

Deputy Attorney General Rod Rosenstein delivered this lengthy speech at an awards dinner in Chicago on Thursday evening, and it included a number of interesting passages about crime fighting. I recommend the speech in full, and here are a few passages I thought especially worth highlighting:

In the first few decades after its creation in 1919, the Chicago Crime Commission battled bootleggers, gangs, and public corruption. It famously named Al Capone as Public Enemy Number One, which inspired the FBI to create its Ten Most Wanted List.

The challenges Chicago faces today demand a similar approach. In 2016, more than 4,300 Chicagoans were shot, and 760 were killed. On average, one person was shot every two hours, and two people were killed every day.  This year, with more than 600 homicides so far, Chicago is on track to report the second-highest murder total this century....

Gang violence accounts for the majority of the shootings and killings. Most of the violence relates to drug trafficking. Gang members do not just kill each other. T he also murder innocent bystanders -- men, women, and even children.

I mentioned earlier that I have a particular interest in a Chicago case from almost a century ago. It arose following the most notorious Chicago gang murder in history, known as the St. Valentine’s Day Massacre.  In 1929, seven victims were lined up against a wall and shot with machine guns.  The sensational crime shocked the city and provoked a public outcry to crack down on crime....

So Eliot Ness and his allies sent Capone to prison for a more readily provable crime -- tax evasion. Attorney General Robert Kennedy adopted a similar approach in 1961, when he counseled agents to fight organized crime with all available tools, even if it required prosecuting gangsters for minor offenses. In this century, after the attacks of September 11, 2001, Attorney General John Ashcroft ordered prosecutors to disrupt terrorist plots by pursuing any lawful charges to put suspects behind bars before they carry out their murderous plans.

The lesson of Ness, Kennedy and Ashcroft informs my approach to violent crime.  The lesson is that if we really want to save lives, we must have the courage to order our law enforcement agencies to employ proactive policing. To prevent crime, you need to identify killers and remove them from the community before they strike again.

I support education, job-training, rehabilitation, and other efforts to teach people not to commit crimes. But for police and prosecutors, our unique power is the ability to send people to prison.  The challenge is to focus on the right people and to make it count.  Local police agencies spend much of their time reacting to emergency calls and investigating past crimes, but they convict only a fraction of the perpetrators.

During my briefings with the leaders of the Chicago Police Department this morning, I learned that Chicago is now working to drive down violent crime through proactive policing.  We know that proactive policing works.  Proactive police and prosecutors identify violent repeat offenders, then they commit the resources needed to gather evidence of any readily prosecutable crimes.

Targeting dangerous repeat offenders for proactive enforcement is not a "zero tolerance" strategy of arresting random people for minor offenses.  It is a thoughtful strategy of identifying the career criminals and gangs that are fomenting violence in our communities, and using constitutional policing to arrest, prosecute and incarcerate them....

The lesson is that deterrence requires enforcement and rules that matter to criminals are the ones that carry expected penalties the criminals are unwilling to pay.  Deterrence is about fear of consequences. We want criminals to fear the police and the consequences of committing crimes.  If dangerous criminals are not afraid, then law-abiding citizens are in jeopardy.

When we see a surge in violent crime that follows a dramatic disruption in policing, as happened in Baltimore and Chicago, it is obvious that there is a lapse in the deterrent effect of law enforcement.  The debate about what caused the recent lapse in deterrence will endure, as will efforts to remedy root causes and improve relationships between police officers and residents of crime-ridden neighborhoods.

In the meantime, the crime surge can be suppressed if law enforcement agencies work together to secure lengthy sentences for armed felons, build proactive drug and conspiracy cases against members of gangs that foment violence, and prosecute dangerous offenders who violate probation or parole conditions.  I saw that approach work in Baltimore from 2007 to 2014. Both shootings and arrests fell dramatically.  It can work again....

Unfortunately, some people will not act good.  The national violent crime rate rose nearly seven percent over the past two years. The homicide rate increased more than 20 percent. Proactive policing can help reverse that trend....

The Attorney General also announced the creation of the National Public Safety Partnership to combat violent crime, and we hosted a National Summit on Crime Reduction and Public Safety.  The Attorney General established a new charging policy that authorizes prosecutors to charge defendants with the most serious offense.  It is not really a new policy; it is a return to the policy that worked when crime was falling....

We also are hiring additional federal prosecutors to focus on violent crime.  More police officers will patrol the streets with COPS hiring grants.  The Organized Crime and Drug Enforcement Task Forces helps implement a National Gang Strategy Initiative.  We offer training and technical assistance to state and local partners, and we collaborate with local law enforcement and exchange best practices.

There are many other things that we do to help reduce crime, but I want to conclude by talking about one of the most important.  We fight crime by promoting respect for the police. We need police to serve as role models.  Contacts with the police create indelible memories in the minds of citizens.  Police have a special responsibility to follow ethical and professional standards.  And citizens should show respect for law enforcement.  There is no excuse for people to harass law enforcement officers....

Chicago Police are still burdened by the requirement that they spend up to 45 minutes filling out a form every time they make a routine investigative stop. People who impose those requirements may be well-intentioned, but they usually fail to weigh the benefit of more bureaucracy against the cost of human lives lost to criminals who now are not stopped.

Fortunately, Superintendent Johnson’s police commanders are working to overcome their hurdles and give officers the tools and support they need to fight crime. Those tools include crime cameras, crime-mapping and predicting patrolling. I saw those tools demonstrated this morning at the Chicago Police Department’s Seventh District, where Commander Kenny Johnson and his crime analysts hold daily strategy meetings to decide where to assign patrol officers. They also run weekly shooting reviews attended by both state and federal prosecutors.

I also learned this morning that Chicago police data reports show that drug arrests lead to violent crime reductions. The most important single variable that reduces shootings in Chicago is to make a drug arrests. That is just a fact. As John Adams famously said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of the facts and evidence.”

It is good to see police leaders who are stubborn about facts.  Superintendent Johnson’s police officers do not mindlessly make mass drug arrests.  They arrest drug dealers who disrupt neighborhoods and foment violence.  They do exactly what Ness, Kennedy and Ashcroft did.

There are many notable aspects to this full speech, but I find especially interesting that the Deputy AG (1) references the St. Valentine’s Day Massacre without noting its link to alcohol Prohibition, (2) states that most of Chicago's violence relates to drug trafficking, and (3) asserts drug arrests lead to violent crime reductions.

November 16, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, November 07, 2017

Prez Trump promises "crime will be gone" if Virginians elect the right governor

The politics of crime and punishment are always notable, and the President of the United States today through Twitter added to this always dynamic tale.  Specifically, in this 2017 Election Day tweet, Prez Trump makes a bold claim (with my emphasis added) about the impact of the GOP candidate for Gov in Virginia: "EdWGillespie will totally turn around the high crime and poor economic performance of VA. MS-13 and crime will be gone."  Wow, that is quite a promise, and one I do not recall Prez Trump even making for his own tenure in office.

This new Washington Post article, headlined "Trump plays ‘crime’ card for Virginia GOP as bitter race for governor highlights political rifts," provides more of the context and contents of the President's tweets in this arena. Here is how the article starts:

President Trump weighed in on Virginia’s hotly contested race for governor Tuesday, underscoring the importance of an election seen as a test of his popularity and its possible impact on state-level politics around the country.

Trump urged voters to support Republican Ed Gillespie over Democrat Ralph Northam, the state’s sitting lieutenant governor. Gillespie, a longtime establishment Republican, has embraced the culturally divisive aspects of Trump’s agenda, while Northam has presented himself as a bulwark against Trump.

“Ralph Northam will allow crime to be rampant in Virginia,” Trump wrote on Twitter, echoing Gillespie ads tying Northam to violence committed by the gang MS-13. If the Republican wins, Trump said, “MS-13 and crime will be gone.”

Polls show Gillespie and Northam are running neck and neck. They are competing to replace Gov. Terry McAuliffe (D), who is prevented by state law from seeking a second consecutive term.

November 7, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Sunday, November 05, 2017

Spotlighting challenges facing federal prosecutors in capital pursuit of Sayfullo Saipov

Andrew McCarthy has this notable recent National Review commentary under this amusing headline/subheadline: "Your Sentencing Advice Isn’t Helpful; Bergdahl is to loyalty as Trump is to tact."  Though the headline suggests the piece is mostly about taking Prez Trump to task, it actually focuses effectively on just how the battle facing federal prosecutors in the Saipov case was made a bit harder by the Prez.  Here is part of McCarthy's analysis:

The Justice Department has an exacting process before the death penalty may be charged. The process is meant to impress on the judiciary — much of which is philosophically predisposed against capital punishment — that the attorney general seeks the death sentence only after extremely careful deliberation, which includes hearing a presentation from the defense. Now, since the attorney general answers to the president, Saipov’s lawyers will argue that the DOJ process is, shall we say, a joke and a laughingstock, the president having already ordered his subordinate to seek the defendant’s execution.

In the end, I’m pretty sure defense motions to throw out any capital charges will be denied.  But the burden on the prosecutors to prevail on the matter of a death sentence will be tougher. Make no mistake: They already have an uphill battle on their hands. 

Saipov richly deserves the death penalty. (Like you, dear readers, I’m not the president, so I get to say that without screwing up the case.)  But the problem is, while this jihadist atrocity should result in a straight-up, slam-dunk state multiple-murder prosecution, the State of New York has done away with capital punishment.  If he is going to get a death sentence, it will have to be a federal case. Thus, I’m proud to say, the case has been taken over by my former stomping grounds, the United States Attorney’s office for the Southern District of New York. There is still a problem, however: Finding a federal murder charge that fits the facts well is not simple. 

The SDNY prosecutors are a clever lot.  In a two-count complaint, they theorize (in Count Two) that Saipov caused eight deaths in the course of damaging an automobile in interstate commerce. But the criminal statute invoked (section 33(a) of the U.S. penal code) is really addressed at incidentally endangering human beings while doing violence to a car, not incidentally endangering the car while doing violence to human beings.  The latter is what Saipov did — an attack with a truck, not on a truck.

Plainly aware that this allegation may not fly, the prosecutors also charge material support to terrorism (under section 2339B).  They plausibly allege (in Count One) that Saipov’s savage attack was done on behalf of the Islamic State terror network (ISIS).  Yet defense lawyers will surely counter that Saipov has no known connections to ISIS, and that his attack was not coordinated with ISIS.  The government has a good argument.  Even assuming Saipov had no ISIS ties, he fully intended his act to contribute to ISIS’s sharia-supremacist cause. Plus, ISIS has responded by embracing Saipov, albeit after the fact. Still, the ISIS connection will be hotly contested. And, more to the point, neither the material-support charge nor the damaging-an-automobile charge is a death-penalty offense.

Of course, the criminal complaint is only the first step in the case, really just a means of keeping Saipov detained without bail, not the formal indictment on which he will ultimately be tried. When that indictment is filed, I am hopeful it will include charges of murder in aid of racketeering. This offense (section 1959) is a capital crime, prohibiting murder (as well as other violent crimes) committed “for the purpose of gaining entrance to” a racketeering enterprise. ISIS clearly qualifies as such an enterprise under federal law (under section 1961, it is a group of individuals associated in fact — even though not a legal entity — and it engages in acts of murder, among other depravities). Further, even if Saipov was not a member of ISIS before his killing spree, he was patently seeking entry into the network . . . and he succeeded in getting it. ISIS branded him “one of the caliphate soldiers” in its claim of responsibility.

All that said, this is not an easy prosecution — certainly not as easy as the blatant brutality of Saipov’s attack would make it appear.  I am quite confident that whichever judge is assigned to the case will deny the inevitable motions to dismiss death counts.  When we step back, a foolish outburst, even from the White House, is trivial juxtaposed to Saipov’s barbarity.  But understand that the judge will still be incensed over the need to address presidential ranting (particularly if it continues).  The prosecutors’ margin for error, already thin in a death case, will narrow all the more.  Not being a lawyer, Trump may not grasp how many ways a pissed-off judge — especially one who is philosophically opposed to capital punishment — can undermine a prosecutor’s case without formally tossing it out.

Prior related posts:

November 5, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Saturday, November 04, 2017

"Can Jared Kushner Save Criminal Justice Reform?"

The question in the title of this post is the headline of this recent Marshall Project article about a figure who has long been seen as an important figure in the fate of federal criminal justice reform in the Trump Era.  Here are some excerpts:

In July, [Pat] Nolan, now director of the American Conservative Union Foundation’s Center for Criminal Justice Reform and a leading figure in a conservative reform effort that goes under the rubric Right on Crime, picked up the newspaper and saw that Jared Kushner was well-placed to advance the cause. Nolan reconnected and began sending Kushner memos on how private businesses and church groups could be mobilized to become mentors for released prisoners. Kushner almost always responded within hours.

Nolan’s faith has been bolstered by a flurry of meetings, summits and dinners that Kushner has held in recent weeks with lawmakers and criminal justice reform advocates, leading the more optimistic activists to believe the tough-on-criminals posture of President Donald Trump and Attorney General Jeff Sessions may not mean a complete freeze on federal reforms.

Many wonder whether Kushner has the clout and skill to maneuver any reform to enactment. No new initiatives or official messages of support for reform legislation have come from a White House that has ratcheted up enforcement of drug and immigration offenses. But given a window into the 36-year-old’s dealing with bipartisan groups seeking reforms, Nolan thinks Kushner, driven by his own personal frustrations with the criminal justice system, stands a chance of success. “He cares passionately about this,” Nolan said....

In September, Nolan was among faith leaders invited by Kushner to discuss ideas for a national mentoring program to help released prisoners resettle in their communities -- a measure that would require minimal federal effort. Later that afternoon, Kushner convened a roundtable of politicians, criminal justice reform groups, religious leaders, employers and others in the Indian Treaty Room in the East Wing of the Eisenhower Executive Building. The conference was called the “Prisoner Reentry Summit” and participants had been sent questions in advance to prepare.

“Please let us know if there are ways in which the President can amplify already successful programs, Federal and private sector/nonprofit, or assist in making a program more effective,” the questionnaire said. “While suggestions for the investment of Federal resources are appreciated, please also be sure to highlight opportunities that do not require Federal funding.”In a navy blue suit, Kushner sat in the middle of a long conference table flanked to his left and right by Nolan and Kentucky Gov. Matt Bevin. Others at the meeting included U.S. senators Sheldon Whitehouse of Rhode Island and John Cornyn of Texas, U.S. representatives Chris Collins of New York and Sheila Jackson Lee of Texas, Gov. Sam Brownback of Kansas, Secretary of Housing and Urban Development Ben Carson and Secretary of Labor Alexander Acosta.

Participants spoke for three to five minutes each on a range of challenges faced by released prisoners, including housing, education and employment while Kushner took notes, asked questions and identified next steps, Holden said. A Department of Justice official who attended signaled that the DOJ was interested in drug courts and programs that could help released prisoners transition back to communities, a surprise to those who feared that Attorney General Sessions’ agenda would only focus on enforcing laws and punishing criminals. “It wasn’t ‘lock em up and throw away the key,’” Holden said. (About a week after the summit, the Department of Justice announced that it was awarding more than $9.5 million to juvenile and family drug court programs across the country.)...

No new initiatives have been launched by the White House since the meeting but other positive signs for reform have followed. Early this month a bipartisan group of senators led by Senate Judiciary Committee Chairman Chuck Grassley, Senate Democratic Whip Dick Durbin and several others reintroduced the Sentencing Reform and Corrections Act, a popular bipartisan bill that died last year when it was never put up for a vote. The bill would give judges more discretion at sentencing to skirt mandatory minimum sentence requirements for people with short criminal histories, and its revival was unexpected; Sessions had strongly opposed the bill last year when he was in the Senate.“Something happened,” said Inimai M. Chettiar, Justice Program director of the left-leaning Brennan Center for Justice. “We don’t know what happened. What I found interesting about the resurrection of this particular bill is that Sessions did a lot of work to kill this bill.”

Sources in the Senate say Kushner has pledged White House support for the bill. Does that mean he believes he has more sway with President Trump than Sessions does? Or has Sessions changed his mind or reached a compromise with Kushner and senators? Attempts to reach Kushner through the White House communications director were not successful. A DOJ spokesman declined an interview request for Sessions....

In talks with Nolan, Kushner has indicated that he believes Sessions is more of a proponent of second chance programs than many have been led to believe. Sessions’ Senate record includes sponsoring legislation that reduced the discrepancies for penalties for using crack versus cocaine and the Prison Rape Elimination Act. “He thinks that the press and the public have misinterpreted where Sessions is coming from,” Nolan said. “He thinks there is a lot more commitment from Sessions to working toward reforms. ”But even if Kushner can hurdle Sessions’ reservations, Whitehouse said, White House leadership will be needed to persuade House Speaker Paul Ryan to guide a bill through a House obstacle course, and convince Senate Majority Leader Mitch McConnell to give the bill floor time and line up votes. “There are ways to get there but it requires levers to be applied that the White House has and I do not,” Whitehouse said....

Of the conservatives who have Kushner’s ear, Whitehouse says, “To be blunt, I am skeptical of their motives.” But having participated in two meetings with Kushner on the subject, Whitehouse said he believes the president’s son-in-law is serious about improving the criminal justice system. “I’ve seen the way he talks about it,” Whitehouse said. “I haven’t the faintest idea of how he polls in the White House,” but “I know he’s sincere about this.”

November 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (4)

Thursday, November 02, 2017

Is Prez Trump making a capital prosecution for NYC terror killer harder with his death penalty tweets?

The question in the title of this post is prompted by this new Guardian article, headlined "Trump's 'alarming' death penalty call threatens suspect's chance of fair trial, experts warn." And that article was prompted by this series of tweets by Prez Trump this morning:

Prez Trump tweet around midnight on 11/2: "NYC terrorist was happy as he asked to hang ISIS flag in his hospital room.  He killed 8 people, badly injured 12. SHOULD GET DEATH PENALTY!"

Prez Trump tweets around 8am on 11/2:  "Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system... ...There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!"

I welcome all sorts of comments from all sorts of litigators about whether and how they think these tweets might impact the federal prosecution of Sayfullo Saipov for mowing down people in NYC.

Prior related posts:

November 2, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Who Sentences? | Permalink | Comments (22)

Opioid Crisis Commission advocates expanded federal drug court programs and lots of other (mostly public health) stuff

Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis issued this big final report yesterday, and the heart of the report's themes and recommendations are usefully summarized in this extended letter to Prez Trump penned by Commission Chair Chris Christie.  This article in The Hill, headlined "Trump opioid commission backs more drug courts, media blitz," provides this even tighter summary, including the one recommendation that may be of focused interest and concern for sentencing fans:

President Trump’s opioid commission laid out 56 recommendations for how the nation should combat the epidemic, including drug courts and a national media campaign, days after the crisis was declared a national public health emergency.  Members voted to approve the report, which was due Nov. 1, at the end of a meeting on Wednesday.

The commission didn’t weigh in on the specific amount of money needed to combat the health crisis. President Trump's declaration of a public health emergency, which doesn't free up millions of dollars in extra cash, sparked calls for more funding by Democrats and advocacy groups.  But the report calls on Congress to determine the funding required....

Advocacy groups argue a robust infusion of federal dollars is needed to combat the epidemic of prescription painkiller and heroin overdose deaths plaguing the nation. Without more money, they say, the emergency declaration won’t make a significant dent in the crisis. The public health emergency fund doesn’t have much left — about $57,000. New Jersey Gov. Chris Christie (R), who helms the commission, predicted Trump will initially ask “for billions of dollars to deal with this.”...

Here are some of the commission’s recommendations:

— A coordinated system: The Office of National Drug Control Policy (ONDCP) should create a system to track all federally funded initiatives and invest only in effective programs. “We are operating blindly today; ONDCP must establish a system of tracking and accountability,” the report notes.

— A media campaign: The White House should fund and collaborate on a multiplatform media campaign, and the commission noted a similar one occurred during the AIDS public health crisis. It should address “the hazards of substance use, the danger of opioids, and stigma.”

– Opioid prescribing: The Department of Health and Human Services should develop a “national curriculum and standard of care” on prescribing prescription painkillers. It should supplement previous guidelines from the Centers for Disease Control and Prevention.

— Improve prescription drug monitoring programs. The Department of Justice should fund and create a hub to share data on prescribing and dispensing.

— Fentanyl: The commission wants to enhance sentencing for trafficking of this potent synthetic opioid.

November 2, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, November 01, 2017

"Trump labels US justice system 'laughing stock' "

In this post last night, I flagged the prospect of yesterday's NYC terror attack becoming the first big federal capital prosecution of the Trump era.  But some sharp commenters surprised me by noting that it was not entirely clear that a federal criminal statute carrying the possibility of the death penalty was violated by Sayfullo Saipov.  Moreover, as reflected in this new CNN article which carries the headline that serves as the title of this post, it is not entirely clear that Prez Trump would be content with having Sayfullo Saipov subject to federal prosecution in the same way as Boston Marathon bomber Dzhokhar Tsarnaev and Charleston church shooter Dylann Roof:

President Donald Trump called for "quick" and "strong" justice for terror suspects in the wake of the deadly New York City attack, saying that it is not surprising terror attacks happen because the way the United States punishes terrorists is "a laughing stock."

Tuesday's terror attack in New York was the city's deadliest since 9/11.  Sayfullo Habibullaevic Saipov drove a rented van down a bike path, law enforcement sources have said.  The attack killed six victims instantly, while two others died later.  New York politicians and officials quickly labeled the incident a terror attack.

Trump's comments, made during a White House Cabinet meeting Wednesday, malign the justice system for a lack of toughness.  Attorney General Jeff Sessions, the head of the so-called 'laughing stock' justice system, was in the room for this comment -- sitting across from Trump.

The President also said he would consider sending the attacker to the controversial prison at Guantanamo Bay. "We also have to come up with punishment that's far quicker and far greater than the punishment these animals are getting right now," Trump told reporters. "They'll go through court for years. And at the end, they'll be -- who knows what happens."

He added: "We need quick justice and we need strong justice -- much quicker and much stronger than we have right now.  Because what we have right now is a joke and it's a laughing stock.  And no wonder so much of this stuff takes place."

White House press secretary Sarah Sanders, defending the President, claimed during her Wednesday briefing with reporters that Trump said "the process has people calling us a joke and calling us a laughing stock" -- which is not what Trump said.  Sanders also added that Trump was "voicing his frustration with the lengthy process that often comes with a case like this."...

Legal scholars are divided on whether Trump could actually send people to Guantanamo, with most acknowledging that such an action would set up an unprecedented constitutional showdown. Daphne Eviatar, the Human Rights Director with Amnesty International, slammed Trump's suggestion that he would consider sending Saipov to Guantanamo, stating that he was "a criminal suspect and should be treated as such by the US justice system."

Trump also derided political correctness in his Wednesday remarks, complaining that the country is "so politically correct that we're afraid to do anything."

Prior related post:

November 1, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (26)

Thursday, October 19, 2017

AG Jeff Sessions our "crime problem" while expression concern about the "move to even lighter sentences"

US Attorney General Jeff Sessions today delivered this speech to the Oklahoma Sheriffs’ Association, and the speech includes comments about rising crime and support for law enforcement that have become staples of the AG's recent speeches.  But this latest speech also indirectly addresses the latest bipartisan talk of federal sentencing reform and covers some other new ground.  Here are excertps:

But today we are fighting a multi-front battle: an increase in violent crime, a rise in vicious gangs, an opioid epidemic, threats from terrorism, combined with a culture in which family and discipline seem to be eroding further and a disturbing disrespect for the rule of law.

After decreasing for nearly 20 years because of the hard but necessary work our country started in the 1980s, violent crime is back with a vengeance.  In 2016, the nationwide homicide rate increased by another 7.9 percent, resulting in a total surge of more than 20 percent since 2014. Not a little matter.

As homicide deaths have gone up, drug overdose deaths have gone up even faster.  Preliminary data show that more than 60,000 Americans died from drug overdoses in 2016. Not only is that the highest drug-related death toll in our history, but it is also the fastest increase in drug deaths we’ve ever seen.  That’s more than the population of Midwest City — dead in just one year.  For Americans under the age of 50, drug overdoses are now the leading cause of death.

Oklahoma isn’t immune to these problems.  This wonderful state suffered a 40 percent increase in murders between 2014 and 2016, and the number of drug overdose deaths has surged by more than 67 percent in the last decade.

And yet, despite the national surge in violent crime and the record number of drug deaths over the last two years, there is a move to even lighter sentences. We must be careful here. Federal prison population is down 15 percent — the average sentence is down 19 percent. Crime is up.

Sometimes it is prudent to review sentences and determine if some might be too harsh or too light.  For example, I led the effort with my then-colleague Senator Durbin to reduce the sentencing disparity between crack and powder cocaine from 100 to 1 all the way down to 18 to 1.  That was the right thing to do.

But I'm afraid we don’t have a sentencing problem; we have a crime problem.  If we want to bring down our prison population then we should bring down crime.

So what should we do?  What has been proven to work?

In 1984 I had been a federal prosecutor for six years when Congress passed the Sentencing Reform Act.  This law instituted mandatory minimum sentences, sentencing guidelines, truth in sentencing, and ended federal parole.  I was a prosecutor before this law, and I was a prosecutor after it went into effect.  It’s clear to me that it worked. We saw crime rates cut in half, neighborhoods revitalized, and general law and order restored on our streets.

Why did it work?  Most people obey the law.  They have no desire to inflict violence on their neighbors or traffick deadly drugs to suffering addicts.  They want to be safe. No, most crimes are committed by a relatively few number of criminals.  Putting them behind bars makes us safer.

Experienced law enforcement officers like you understand that.  You are the thin blue line that stands between law-abiding people and criminals.  You protect our families, our communities, and our country from drugs and violence.  Every American benefits from that work, and the vast majority of our country appreciates what you do.

But some would undermine this support by portraying law enforcement officers as the enemy.  But we’ve seen a shocking and unacceptable level of violence toward police officers in this country.

Earlier this week, the FBI released its annual report on violence against police officers.  The report showed a more than 60 percent increase last year in the number of officers feloniously killed in the line of duty.  It also shows a 14 percent increase in the number of officers assaulted on duty. According to the report, 150 officers were assaulted every day on average last year....

You deserve the support and respect of every American, and I’m here today on behalf of President Trump and the Department of Justice to say thank you.  I am proud to stand with you. The Department of Justice is proud to stand with you.  We have your back.  We understand one thing, criminals are the problem, law officers are the solution....

Helping law enforcement do their jobs, helping the police get better, and celebrating the noble, honorable, essential and challenging work of our law enforcement communities will always be a top priority of President Trump and this Department of Justice.  We will always seek to affirm the critical and historic role of sheriffs in our society and we will not participate in anything that would give the slightest comfort to radicals who promote agendas that preach hostility rather than respect for police.

October 19, 2017 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (5)

What may be the future of federal halfway houses in the Trump Administration?

The question in the title of this post is prompted by this Reuters article from last week that a helpful reader made sure I did not miss.  The article is headlined "Trump administration reduces support for prisoner halfway houses," and here are excerpts:

The administration of President Donald Trump has been quietly cutting support for halfway houses for federal prisoners, severing contracts with as many

The Federal Bureau of Prisons spokesman Justin Long confirmed the cuts in response to an email inquiry from Reuters, and said they only affect areas with small populations or underutilized centers. “The Bureau remains firmly committed to these practices, but has had to make some modifications to our programs due to our fiscal environment,” Long said.

Halfway houses have been a part of the justice system since the 1960s, with thousands of people moving through them each year. For-profit prison companies such as Geo Group Inc have moved into the halfway house market, though many houses are run directly by government agencies or non-profit organizations. A Geo spokeswoman declined to comment for this article.

The bureau, which falls under the U.S. Department of Justice, last year had about 180 competitive contracts with “residential reentry centers” run by non-profit and for-profit companies, such as Geo. The International Community Corrections Association says on its website there were about 249 separate halfway houses in communities nationwide that are covered by the 180 contracts.

Federal judges who spoke to Reuters said the cuts are having an impact in their districts, particularly in states with fewer facilities or larger geographic areas where the nearest center might be several hundred miles away. Judge Edmund Sargus of the Southern District of Ohio said it was a real “stumper” when in July the government ended its contract with the Alvis facility serving the Dayton area.

Long said that the cuts have not reduced referral rates or placements, and only impact “about 1% of the total number of beds under contract.”...

In 2016, of the 43,000 inmates released from federal prison, 79 percent were released into a halfway house or home confinement, according to the trade association.

“We need to improve re-entry services ... This move flies in the face of that consensus,” said Kevin Ring, whose non-profit Families Against Mandatory Minimums has recently launched a Twitter campaign to raise awareness of the problem....

For Kymjetta Carr, the cuts have had a personal impact. The 30-year-old from Cincinnati said she had expected her fiance Anthony Lamar to get out of prison and go to a halfway house in November, after serving seven years on a drug charge. But she now has to tell their 10-year-old son his father won’t be out for Christmas or his birthday because Lamar’s release to a halfway house will not come until late July. “It seems like the rug has been pulled out from under us,” she said, in an interview arranged through Families Against Mandatory Minimums, a nonprofit advocacy group.

Halfway houses are low-security residences for thousands of convicted prisoners serving alternative sentences or on release from prison into partial freedom programs on the outside. The facilities are meant to help prisoners reenter their communities, find a job and get their lives back on track. A study commissioned last year by the Justice Department found that centers have come under greater strain in recent years, as more people have been released from prison.

Blair Campmier, executive director of Reality House in Columbia, Missouri, said he was notified in early June that the center’s eight-year-old contract would be terminated. Some of his clients were sent to halfway houses in Kansas City and Springfield, more than two hours away. “They were not happy, and their families were not happy,” said Campmier.

Ricardo Martinez, the Chief U.S. District Judge in the Western District of Washington and Chairman of the Committee on Criminal Law of the Judicial Conference of the United States, told Reuters he has sent a letter to the Bureau of Prisons’ new Director Mark Inch requesting discussions. “From our perspective, these facilities are not only useful - they are essential,” Martinez said.

October 19, 2017 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, October 18, 2017

Law enforcement group pressing Trump Administration to support criminal justice reform

As detailed via this press release, a notable group of law enforcement leaders is making a notable push for federal criminal justice reform efforts.  Here are the basics (with a few links) from the press release:

More than 80 of the nation’s leading police chiefs, prosecutors, and sheriffs will gather today in the nation’s capital for the National Law Enforcement Summit on Crime in 2017.  

The Group hosting the summit [program here], Law Enforcement Leaders to Reduce Crime and Incarceration, released an open letter and five-point policy plan this morning to President Trump and Attorney General Sessions, urging them to shift away from a “tough on crime” agenda. They urge them to, instead, join the current bipartisan movement for criminal justice reform that’s reemerging as a Congressional priority.

The Summit comes on the same morning Attorney General Sessions testifies at his first oversight hearing before Congress. U.S. Senator Thom Tillis (R-NC), former Attorney General Eric Holder, and former Acting Attorney General Sally Yates are headlining the event.

“We are grateful to the Trump Administration for prioritizing the cause of fighting crime and violence. They have consistently supported our mission, and acknowledged the difficulties and dangers of our profession. We stand ready to work with the White House and Justice Department on constructive policies to advance public safety,” said Ronal Serpas, Founding Chairman of Law Enforcement Leaders and former Superintendent of the New Orleans Police Department. “As members of law enforcement, we do not believe that public safety is served by a return to tactics that punish without strong purpose. From decades of experience on the front lines, we have learned first-hand that these responses are ineffective to reduce crime. There is an alternative to these counterproductive policies. That’s what we are here to discuss today.”

At the Summit, prominent law enforcement officials will discuss their views on why overly punitive policies are counterproductive to public safety, and will profile the work they have done in their localities to advance more modern strategies.

October 18, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Monday, October 16, 2017

NFL endorses federal criminal justice reform bills

I was not familiar with professional sports leagues playing a role in modern legislative debates, but this new Washington Post piece reports that the National Football League has "decided to endorse a bipartisan bill to reduce mandatory minimum sentences for low-level drug offenders, eliminate “three-strike” provisions that require life sentences and give judges more latitude to reduce sentences for certain low-level crimes."  Here are the details:

The National Football League, still in political crosshairs over whether players should take a knee during the national anthem, is throwing its weight behind another cause in Washington’s debate over racial inequality: criminal justice reform.

The NFL’s spokesman said on Monday that the league has decided to endorse a bipartisan bill to reduce mandatory minimum sentences for low-level drug offenders, eliminate “three-strike” provisions that require life sentences and give judges more latitude to reduce sentences for certain low-level crimes.

“We felt that this was an issue over the last months, as we have continued to work with our players on issues of equality and on issues of criminal justice reform, that was surfaced for us, and we thought it was appropriate to lend our support to it,” NFL spokesman Joe Lockhart said Monday during a conference call with reporters.

The owners appear to be seeking middle ground between football players and their critics during a heated national debate over the growing phenomenon of players kneeling during the national anthem to protest police brutality and racial inequality.  It is not clear what effect the NFL’s effort will have on that debate — or on President Trump, who has fueled much of the vitriol against kneeling players through his personal and official Twitter accounts....

On Capitol Hill, spokesmen for the two main sponsors of the criminal justice bill, Sens. Charles E. Grassley (R-Iowa) and Richard J. Durbin (D-Ill.), declined to comment about the timing of the NFL’s endorsement or whether it was intended to quell the heated debate over the players’ continued protests. Both said they welcomed the NFL’s support.

But a spokesman for Grassley added that the NFL had not coordinated with the bill’s congressional sponsors in advance of its decision.  In the meantime, no other sports league has signed on. A spokesman for the NFL Players Association did not immediately return a call for comment about whether the football players’ union would also endorse the bill.

In Congress, it is not clear whether the NFL’s endorsement will help the bill’s chances of passing.  The legislation has already earned the support of some influential groups from across the political spectrum, including the National Association for the Advancement of Colored People, the American Civil Liberties Union, the Charles Koch Institute and Americans for Tax Reform.

In addition, the Grassley-Durbin bill is the result of a five-year, bipartisan effort. Last year, the duo released almost identical legislation backed by 37 co-sponsors, including 17 Republicans. Despite that, sponsors have struggled in years past to secure a full Senate vote for the bill, with Senate Majority Leader Mitch McConnell (R-Ky.) refusing to bring it to the floor.

October 16, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (3)

Thursday, October 12, 2017

"Can Republicans get sentencing reform past Trump and his base?"

The question in the title of this post is the headline of this new Salon article.  Here is how it gets started:

With the presidential election in the rearview mirror, a genuinely bipartisan group of senators, led by Republican Chuck Grassley of Iowa and Democrat Dick Durbin of Illinois, are hoping for real movement on the issue of criminal justice reform.  Last week, Grassley and Durbin introduced a new version of the Sentencing Reform and Corrections Act, a bill Senate Majority Leader Mitch McConnell killed off during the campaign season, seemingly for political reasons.

This coalition that supports reduced sentences for nonviolent offenses even has an audience in the White House: Donald Trump's daughter and son-in-law, Ivanka Trump and Jared Kushner, hosted a bipartisan dinner with prominent senators to discuss the issue.

But even though it's not an election year, there's real reason to believe that this move towards criminal justice reform is opening up fissures in the conservative coalition.  Bluntly put, the more racist forces in the party — the ones that got Trump nominated and elected in the first place — don't like the idea of criminal justice reform and aren't afraid to kick up an intra-party fights in order to maintain the staggeringly high imprisonment levels in the United States.

"Most of the mainstream Republican party, traditional Republican leaders like Chuck Grassley, are very invested in the criminal justice debate. They want to see it done," Ames Grawert, counsel for the Brennan Center’s Justice Program, explained to Salon.  "It’s this insurgency alt-right side, of which I think Jeff Sessions is one iteration, that is opposing sentencing reform to any extent."

The fight against mass incarceration has been largely associated with the left and the Democrats — Hillary Clinton's campaign platform promoted policies aimed at ending the era of mass incarceration, for example — but there's actually been a surprising amount of leadership from Republicans on this issue over the past few years.  Republican-controlled state governments such as those in Texas, Georgia and Kentucky have made real progress in trying to reduce their prison populations through surprisingly progressive reforms.  And most people familiar with the issue say that Republican senators like Grassley, Mike Lee of Utah and Tim Scott of South Carolina are really dedicated to reducing long prison sentences, especially for nonviolent, drug-related offenses.

The reasons for this shift are both moral and pragmatic. "When the fiscal crisis hit," said Inimai Chettiar, director of the Brennan Center's Justice Program said, conservatives "were much more focused on this fiscal angle," but added that a growing church-based effort to reach out to imprisoned populations has also led many Republicans to come to this "from a moral angle and a religious angle."

“When faced with the need to save costs, they couldn’t help but notice the burdens that departments of corrections were creating,” added Kara Gotsch, director of strategic initiatives for the Sentencing Project, in discussing why state-level Republicans have taken the lead on this issue.  Gotsch also feels that mass incarceration is such a widespread problem that it's "hard for anyone not to know someone who’s been touched by the criminal justice system."  This, she feels, is also provoking more compassion from some Republicans.

October 12, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Thursday, October 05, 2017

AG Sessions announces new initiatives to address violent crime

As explained in this press release, the Attorney General today announced, as the title of the release puts it, the "Reinvigoration of Project Safe Neighborhoods and Other Actions to Reduce Rising Tide of Violent Crime." Here is the text of the press release:

Today, Attorney General Jeff Sessions announced several Department of Justice actions to reduce the rising tide of violent crime in America. Foremost of those actions is the reinvigoration of Project Safe Neighborhoods, a program that has been historically successful in bringing together all levels of law enforcement to reduce violent crime and make our neighborhoods safer for everyone.

In announcing this recommitment to Project Safe Neighborhoods, the Attorney General issued a memo directing United States Attorneys to implement an enhanced violent crime reduction program that incorporates the lessons learned since Project Safe Neighborhoods launched in 2001.

In a statement on the program, the Attorney General said: "According to the FBI, the violent crime rate has risen by nearly seven percent over the past two years, and the homicide rate has risen by more than 20 percent. We cannot be complacent or hope that this is just an anomaly: we have a duty to take action.

“Fortunately, we have a President who understands that and has directed his administration to reduce crime. The Department of Justice today announces the foundation of our plan to reduce crime: prioritizing Project Safe Neighborhoods, a program that has been proven to work.

“Let me be clear – Project Safe Neighborhoods is not just one policy idea among many. This is the centerpiece of our crime reduction strategy.

“Taking what we have learned since the program began in 2001, we have updated it and enhanced it, emphasizing the role of our U.S. Attorneys, the promise of new technologies, and above all, partnership with local communities. With these changes, I believe that this program will be more effective than ever and help us fulfill our mission to make America safer."

The Attorney General also announced the following Department of Justice initiatives to help reduce violent crime:

-Additional Assistant United States Attorney Positions to Focus on Violent Crime – The Department is allocating 40 prosecutors to approximately 20 United States Attorney’s Offices to focus on violent crime reduction.

-More Cops on the Streets (COPS Hiring Grants) – As part of our continuing commitment to crime prevention efforts, increased community policing, and the preservation of vital law enforcement jobs, the Department will be awarding approximately $98 million in FY 2017 COPS Hiring Grants to state, local, and tribal law enforcement agencies.

-Organized Crime and Drug Enforcement Task Force’s (OCDETF) National Gang Strategic Initiative – The National Gang Strategic Initiative promotes creative enforcement strategies and best practices that will assist in developing investigations of violent criminal groups and gangs into enterprise-level OCDETF prosecutions. Under this initiative, OCDETF provides “seed money” to locally-focused gang investigations, giving state, local, and tribal investigators and prosecutors the resources and tools needed to identify connections between lower-level gangs and national-level drug trafficking organizations.

-Critical Training and Technical Assistance to State and Local Partners – The Department has a vast array of training and technical assistance resources available to state, local and tribal law enforcement, victims groups, and others. To ensure that agencies in need of assistance are able to find the training and materials they need, OJP will make available a Violence Reduction Response Center to serve as a “hot line” to connect people to these resources.

-Crime Gun Intelligence Centers (CGIC) – The Department has provided grant funding to support a comprehensive approach to identifying the most violent offenders in a jurisdiction, using new technologies such as gunshot detection systems combined with gun crime intelligence from NIBIN, eTrace, and investigative efforts. These FY 2017 grants were awarded to Phoenix, AZ, and Kansas City, MO.

-Expand ATF’s NIBIN Urgent Trace Program – The Department will expand ATF’s NIBIN Urgent Trace Program nationwide by the end of the year. Through this program, any firearm submitted for tracing that is associated with a NIBIN “hit” (which means it can be linked to a shooting incident) will be designated an “urgent” trace and the requestor will get information back about the firearm’s first retail purchaser within 24 hours, instead of five to six business days.

October 5, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

Wednesday, October 04, 2017

Via Fox News, Senators Grassley, Durbin, Lee and Whitehouse start a renewed pitch for their Sentencing Reform and Corrections Act

This new Fox News commentary, headlined "Bipartisan criminal justice reform is how Congress is supposed to work — the time is now to get it done," carries this notable byline: "Sen. Chuck Grassley, Sen. Dick Durbin, Sen. Mike Lee, Sen. Sheldon Whitehouse." And here is some of what these four Senators have to say:

In 2015, a diverse group of lawmakers set out to rethink our approach to federal prison sentences. Our goal: improve public safety and the rule of law by ensuring that penalties match their crime. Many months of thoughtful deliberation yielded a product that earned broad bipartisan support in Congress and from organizations around the country and across the political spectrum. And though the political winds in Washington have shifted, that broad support for comprehensive sentencing reform remains strong.

This week, we are reintroducing the “Sentencing Reform and Corrections Act” as we continue to build on the most sweeping criminal justice reform effort in a generation.

Crafted by Republican and Democratic leaders, this legislation aims to safely and sensibly reduce excessive sentences. It recalibrates prison sentences for certain drug offenders and gives judges greater sentencing flexibility while keeping stiff penalties in place for violent criminals. The bill preserves important law enforcement tools to take down large criminal organizations while expanding outlets to shield low-level nonviolent offenders from lengthy mandatory minimum prison sentences. It eliminates mandatory life sentences for three-strike drug offenders and gives judges authority to retroactively apply the Fair Sentencing Act, which reduced the sentencing disparity between offenses involving crack and powder cocaine.  The bill also includes “back end” reforms to curb recidivism by helping inmates successfully re-enter society.

We believe this is the right mix of reforms to give nonviolent offenders who’ve done significant time for their crime a second chance to rejoin their families and contribute to our communities while also reducing taxpayer costs and empowering law enforcement to keep dangerous criminals off our streets.  Our bipartisan work represents hard-fought consensus to a long-established problem. In recent years a unique and growing chorus of voices from across the political spectrum prompted a number of proposals in Congress to reform sentencing laws.  However, until now, none garnered enough support to move forward. It became clear that if we wanted to truly make progress on this issue, we would have to come together, check our differences at the door, and focus on areas where we could reach agreement....

We are encouraged by engagement from the White House on this comprehensive criminal justice reform effort. Last Congress, our bill was supported by hundreds of organizations from a variety of industries and political perspectives, including the NAACP and the Charles Koch Institute. It was also endorsed by a broad range of faith-based organizations and law enforcement leaders. We continue to welcome input from stakeholders and our colleagues in government and the law enforcement community as we make additional improvements. This bill represents the way Congress is supposed to work, and is well-positioned to be one of the most significant bipartisan achievements of the 115th Congress. It also represents an important step in our nation’s ongoing quest for justice.

Our founders declared that Americans have the inalienable rights to life, liberty and the pursuit of happiness.  Our criminal justice system needs to reflect these values. That means seeking justice for both the victim and the accused.  Our colleagues in Congress supporting these reforms may not always see eye to eye on every proposal, but we are committed to upholding America’s promise of justice for all.

UPDATE: I now see that the full text of the Sentencing Reform and Corrections Act of 2017 — all 168 pages! — is available at this link.

October 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Tuesday, September 26, 2017

Acting DEA head officially resigns

As reported here by the New York Times, the "acting head of the Drug Enforcement Administration will resign at the end of the week, according to law enforcement officials, who said he had become convinced that President Trump had little respect for the law." Here is more about a not-too-surprising departure:

The official, Chuck Rosenberg, who twice served as chief of staff to the former F.B.I. director James B. Comey and remains a close confidant, had grown disillusioned with Mr. Trump.  The president fired Mr. Comey in May, and then in July told law enforcement officers “please don’t be too nice” when handling crime suspects.

Mr. Rosenberg forcefully rejected Mr. Trump’s comment, sending an email to all D.E.A. employees at the time to tell them that they should not mistreat suspects.  “We must earn and keep the public trust and continue to hold ourselves to the very highest standards,” Mr. Rosenberg wrote in the internal email.  “Ours is an honorable profession and, so, we will always act honorably.”...

Mr. Rosenberg, who was appointed by President Barack Obama in 2015, is a career prosecutor.  Under President George W. Bush, he served as the United States attorney in both southern Texas and eastern Virginia.

In late July, Mr. Rosenberg, told the deputy attorney general, Rod J. Rosenstein, that he did not want to be considered as the permanent administrator of the D.E.A.  Mr. Rosenstein, who wrote a memo that Mr. Trump briefly cited as his rationale for dismissing Mr. Comey, then asked whether Mr. Rosenberg wanted to remain at the Justice Department, and Mr. Rosenberg said he did not.

In a message to D.E.A. employees on Tuesday, Mr. Rosenberg said, “The neighborhoods in which we live are better for your commitment to the rule of law, dedication to the cause of justice and perseverance in the face of adversity.”

“You will continue to do great things,” he added. “I will continue to root for you, now from the sidelines.”

September 26, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)

Alliance for Justice assails Third Circuit nominee Stephanos Bibas for his criminal justice work and writings

As revealed in this post from June, I was stoked when sentencing scholar (and my occasional co-author) Stephanos Bibas was nominated by Prez Trump for an open seat on the Third Circuit. But, though Prof Bibas has gotten lots of support from lots of folks across the political aisle, the folks at Alliance for Justice have released this critical new report his record and AFJ President Nan Aron say that in his coming confirmation hearing the "onus is on him to alleviate concerns about his approach to the rights of individuals who might find themselves before him in court."

I surmise that AFJ releases a critical report about every one of the nominees put forward by AFJ, but my professional connections to Prof Bibas and his working in the sentencing arena prompted me to review this particular AFJ report about his work and writings.  This AFJ press release summarizes the report's articulated concerns:

Among other things, AFJ’s report notes:

  • Bibas has written about the treatment of prisoners in ways that are unsettling and raise questions about his respect for their constitutional rights. In a 2012 book, he praises colonial-era punishments such as public whippings that inflict pain and humiliation on convicted persons, suggesting that public shaming is not practiced enough today.  This philosophy regarding punishment would be seriously harmful in a federal judge charged with reviewing countless sentencing decisions that will have enormous and lasting impacts on the lives of real people.  Bibas also argues that prisoners could be forcefully conscripted into the military.

  • In an article, Bibas insisted that while over-incarceration is real, it is not reflective of racial disparities in the justice system or society as a whole as the “liberal” “narrative” maintains.  He also argued that the growth in the prison population was “driven mainly by violent and property crime, not drugs.”

  • Bibas has shown a serious misunderstanding about the nature of drug addiction, having argued that it is not a disease but something that addicts can choose to overcome.

  • Bibas signed an open letter criticizing the University of Pennsylvania’s adoption of new procedures for investigating and resolving sexual assault complaints on campus. The letter made troubling statements suggesting that victims are in part responsible for assaults, and advocated for the university to adopt an adjudicative system for these cases that closely mirrors the criminal justice system. The Supreme Court has discouraged schools, which are supposed to provide safe learning environments for all students, from attempting to replicate criminal investigations and prosecutions on campus.

  • While serving as a prosecutor in the Southern District of New York, Bibas used federal prosecutorial, law enforcement, and court resources to bring charges against a cashier at a veterans’ hospital cafeteria for allegedly stealing seven dollars. On the morning of the trial, he turned over evidence corroborating the defense that records suggest he may have withheld for some time. The cashier was acquitted, and the prosecution faced scorching media criticism.

For a host or reasons, I am disinclined to engage with the particulars of the AFJ report.  But I am inclined to predict that Prof Bibas, based on his past criminal justice work and writings, will be much more inclined to respect criminal defendants' rights than many other past and future judicial nominees.

Prior related post:

September 26, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

Tuesday, September 19, 2017

Pushing back on criticisms of AG Sessions returning Justice Department to "failed mindset of its past"

In this post last week, I noted the National Review commentary authored by two former US Attorneys which focused on the Sessions charging/sentencing memo to complain that "Attorney General Jeff Sessions has returned the Justice Department to the failed mindset of its past."  I now have just noticed that Andrew McCarthy has penned this lengthy response at National Review under the headline "On Criminal Justice, Sessions Is Returning DOJ to the Rule of Law."  Here is an excerpt:

The authors lament that Sessions has reinstituted guidelines requiring prosecutors “to charge the most serious offenses and ask for the lengthiest prison sentences.” This, the authors insist, is a “one-size-fits-all policy” that “doesn’t work.” It marks a return to the supposedly “ineffective and damaging criminal-justice policies that were imposed in 2003,” upsetting the “bipartisan consensus” for “criminal-justice reform” that has supposedly seized “today’s America.”

This is so wrongheaded, it’s tough to decide where to begin.  In reality, what Sessions has done is return the Justice Department to the traditional guidance articulated nearly four decades ago by President Carter’s highly regarded attorney general, Benjamin Civiletti (and memorialized in the U.S. Attorney’s Manual).  It instructs prosecutors to charge the most serious, readily provable offense under the circumstances. Doesn’t work? This directive, in effect with little variation until the Obama years, is one of several factors that contributed to historic decreases in crime. When bad guys are prosecuted and incarcerated, they are not preying on our communities.

The thrust of the policy Sessions has revived is respect for the Constitution’s bedrock separation-of-powers principle. It requires faithful execution of laws enacted by Congress.... Absent this Justice Department directive that prosecutors must charge the most serious, readily provable offense, the executive branch becomes a law unto itself.  Bending congressional statutes to the executive’s policy preferences was the Obama approach to governance, so we should not be surprised that a pair of his appointed prosecutors see it as a model for criminal enforcement, too.  But it is not enforcement of the law.  It is executive imperialism....

Criminal statutes can be modified by legislation, which reflects the judgment of the people’s representatives.  The fact that they have not been, notwithstanding the purported “consensus” for “reform,” suggests that the public is not convinced of the need for such modification — or, perhaps, that our representatives grasp the need for a check on the judges. Unable to change the law, the “reformers” are reduced to arguing that justice happens only when prosecutors ignore the law.  If you’re Jeff Sessions and you say, “No, you know, I think we’ll have them follow the law,” you’re a Neanderthal....

Vance and Stewart have a point when they object to Attorney General Sessions’s unfortunate fondness for what they call “adoptive forfeiture policies.”  As we at National Review have contended (as has Justice Clarence Thomas, Kevin Williamson reminds us), civil asset forfeitures are property seizures without due process of law.  A federal spoils system incentivizes police to grab with both hands. Regardless of their effectiveness against drug lords, such forfeitures should be halted — the police should be required to proceed by criminal forfeiture and prosecution, with the due-process safeguards that entails. But that is because civil forfeitures offend the Constitution, not because they feed a left-wing narrative about fractured police–community relations.

Attorney General Sessions is enforcing the law, and doing so within a noble Justice Department tradition of giving force to Congress’s expression of the public will.  He is not altering the law by executive fiat, the preference of President Obama, Attorneys General Holder and Lynch, Professor Vance, Mr. Stewart, and the bipartisan minority they portray as a “consensus.”

There is a great deal I don’t like about the legal system either.  Statist government has enacted far too many laws, such that the federal government has criminalized too much of what used to be the province of state regulation — or unregulated private behavior.  The drug laws do have severe penalties and may work injustice in some cases — although fewer than Vance and Stewart suggest: Though the hands of federal judges are tied by mandatory minimums, they are not bound to follow advisory sentencing guidelines or prosecutorial recommendations.  I would certainly be open to mitigating penalties in exchange for thinning out the federal penal code and transferring areas of enforcement responsibility back to the states.  The point, however, is that this has to be done by legislation, not by executive autocrats under a stealthy distortion of prosecutorial discretion.

If Professor Vance and Mr. Stewart are right that we are in a new era, if the public has truly been won over to the notion that incarcerating criminals is counterproductive, the next step is very simple: Pass laws that amend the penal code.  In the meantime, the Justice Department’s job is to enforce the laws we have.  As Attorney General Sessions recognizes, that means charging the most serious, readily provable offense.

There is more to this commentary, and it merits a full read.  I have emphasized the points about the rule of law and the distinct roles of the distinct branches because it stands as the most conceptually principled defense of the Sessions Memo on prosecutorial policies.  At the same time, this defense lack a bit of nuance in failing to acknowledge that a large measure of congressional dysfunction, rather than the obvious will of the people, is precluding amendments to the federal penal code.

In red and blue states nationwide for nearly a decade, in various initiative votes from California to Oklahoma and from Alaska to Florida, the American people and their representative have been amending penal codes to be less harsh in many ways (especially to nonviolent offenders and marijuana users).  But very little similar work has gotten done in Congress largely because leadership will not even allow reform bills to come up for a full vote.  There are good reasons to think we could and would get many amendments to the federal penal code if up-or-down votes were allowed on various leading reform proposals --- e.g., the GOP-controlled Senate Judiciary Committee voted 75% in support of a massive sentencing reform bill in October 2015.  In light of the reality that significant federal sentencing reform seems to gets significant majority support when it gets a vote, one cannot quite say that full enforcement of existing federal criminal laws is fully compliant with the will of the people.

September 19, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Friday, September 15, 2017

Deputy AG Rosenstein hints at possible changes to federal corporate-crime prosecution policies

As reported in this Politico piece, the "Justice Department's No. 2 official indicated Thursday that the federal government's policy on prosecuting corporate crime is under review and he suggested that changes to the department's stance on the issue are coming." Here is more:

"It’s under review and I anticipate that there may be some change to the policy on corporate prosecutions," Deputy Attorney General Rod Rosenstein said Thursday during a question-and-answer session following a speech at the conservative Heritage Foundation in Washington. "I don’t have any announcement about that today, but I do anticipate that we may in the near future make an announcement about what changes we’re going to make to corporate fraud principles."

The department's current policy, announced by Deputy Attorney General Sally Yates in September 2015, aimed to increase prosecutions of individuals responsible for criminal acts committed during work for corporations. The so-called Yates memo was seen in part as a reaction to criticism of the anemic number of prosecutions of individuals on Wall Street or at big banks for crimes related to the economic meltdown in 2008.

Rosenstein did not indicate what portions of the Yates memo are likely to be overhauled or halted. He also said that he favors prosecutions of individuals in appropriate cases. "Corporations, of course, don’t go to prison. They do pay a fine," Rosenstein said. "The issue is can you effectively deter corporate crime by prosecuting corporations or do you in some circumstances need to prosecute individuals. I think you do."

DAG Rosenstein also talked a bit about possible changes to DOJ policies on marijuana enforcement, and I cover those comments here over at Marijuana Law, Policy and Reform.

September 15, 2017 in Criminal justice in the Trump Administration, White-collar sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, September 14, 2017

New York Times reporting that Prez Trump back in May urged AG Sessions to resign then rejected his letter of resignation

This new New York Times article reports on notable details of the history of recent tensions between Prez Trump and AG Sessions under the headline "Trump Humiliated Jeff Sessions After Mueller Appointment."  Here is how it gets started:

Shortly after learning in May that a special counsel had been appointed to investigate links between his campaign associates and Russia, President Trump berated Attorney General Jeff Sessions in an Oval Office meeting and said he should resign, according to current and former administration officials and others briefed on the matter.

The president blamed the appointment of the special counsel, Robert S. Mueller III, on Mr. Sessions’s decision to recuse himself from the Justice Department’s Russia investigation — a move Mr. Trump believes was the moment his administration effectively lost control over the inquiry. Accusing Mr. Sessions of “disloyalty,” Mr. Trump unleashed a string of insults on his attorney general.

Ashen and emotional, Mr. Sessions told the president he would quit and sent a resignation letter to the White House, according to four people who were told details of the meeting. Mr. Sessions would later tell associates that the demeaning way the president addressed him was the most humiliating experience in decades of public life.

The Oval Office meeting, details of which have not previously been reported, shows the intensity of Mr. Trump’s emotions as the Russia investigation gained steam and how he appeared to immediately see Mr. Mueller’s appointment as a looming problem for his administration. It also illustrates the depth of antipathy Mr. Trump has had for Mr. Sessions — one of his earliest campaign supporters — and how the president interprets “disloyalty” within his circle of advisers.

Mr. Trump ended up rejecting Mr. Sessions’s May resignation letter after senior members of his administration argued that dismissing the attorney general would only create more problems for a president who had already fired an F.B.I. director and a national security adviser. Mr. Trump once again, in July, told aides he wanted to remove Mr. Sessions, but for a second time didn’t take action.

The relationship between the two men has improved marginally since midsummer, as Mr. Sessions has made a public display of hunting for the leakers among the administration’s national security officials. His allies said that despite the humiliation, the attorney general has stayed in the job because he sees a “once-in-a-lifetime” opportunity as the nation’s top law enforcement official to toughen the country’s immigration policies.

September 14, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

Tuesday, September 12, 2017

Looking at criminal justice reform through the lens of federal budget debates

Last week the Center for American Progress (CAP) released this advocacy document titled "Congress Can Lead on Criminal Justice Reform Through Funding Choices." Though the document is already a bit dated now that a stop-gap funding bill went through Congress late last week, this CAP issue brief still provides a useful primer on how budgets passed by Congress always play a role in criminal justice reform at both the federal and state level. Here is how this document gets started:

As Congress returns from the August recess, one of its most pressing goals will be to pass a series of appropriations bills to fund the federal government for fiscal year 2018, which begins October 1, 2017. Criminal justice stakeholders across the country are paying particularly close attention to the FY 2018 Commerce, Justice and Science (CJS) appropriations bill. This bill not only controls the funding levels for federal criminal justice entities but also sets the amounts available to the U.S. Department of Justice (DOJ) for grants to state and local government counterparts as well as researchers and service providers.

The importance of federal criminal justice resources has become even more pronounced in recent years as the movement to reform criminal justice systems and practices has gained steam. While comprehensive efforts to reduce the size of the federal criminal justice system face headwinds from the Trump administration’s “law and order” policies, congressional leaders have the opportunity to provide federal leadership on this issue through their funding choices.  After all, the overwhelming majority of the country’s total incarcerated population — approximately 90 percent — is in state and local systems, not the federal system.

The House and Senate appropriations committees have marked up their respective appropriations bills, providing almost $2.2 billion for the DOJ’s discretionary grant programs for FY 2018. These grant programs represent the primary assistance that the federal government makes available to state and local public safety agencies each year.  They also are one of the federal government’s main vehicle for supporting, enhancing, and in some cases influencing state and local criminal justice agencies.  The two appropriations bills are likely headed to a floor vote in September.  The bills are different from each other, but both are certainly a dramatic improvement on the budget proposed by President Trump, which cuts DOJ’s discretionary grant funding by $310 million.

Congress should ensure that funding priorities are aligned to address the critical and emerging criminal justice issues facing communities today.  This issue brief examines four such important funding areas: 1) promote diversion into mental health and substance use treatment instead of incarceration; 2) reduce incarceration rates and levels; 3) eliminate the criminalization of poverty; and 4) increase support for indigent defense.

September 12, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Monday, August 28, 2017

In latest speech, AG Sessions talks up the changed policies of the Trump Administration

Attorney General Jeff Sessions gave this speech today at a conference of the National Fraternal Order of Police.  Regular readers are familiar with various themes that have become common in the speeches of AG, but these excerpts still seemed worth spotlighting:

Several months ago now, we changed the charging policy for our federal prosecutors, trusting them once again and directing them to return to charging the most serious, readily provable offense.

In July, we reinstituted our equitable sharing program, ensuring that criminals will not be permitted to profit from their crimes.  As President Trump knows well, civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels.  Civil asset forfeiture takes the material support of the criminals and instead makes it the material support of law enforcement.  In departments across this country, funds that were once used to take lives are now being used to save lives.

Since these changes, we have seen a 23 percent increase in the number of criminals charged with unlawful possession of a firearm.  The Department has convicted more than 1,200 members of gangs, cartels, and their subsidiaries, since the beginning of the year....

Helping law enforcement do their jobs, helping the police get better, and celebrating the noble, honorable, essential and challenging work of our law enforcement communities will always be a top priority of President Trump and this Department of Justice.  We will always seek to affirm the critical role of policeoffers in our society and we will not participate in anything that would give comfort to radicals who promote agendas that preach hostility rather than respect for police.

President Trump is serious about this mission.  He is doing all he can to restore law and order and support our police across America.  And that is why, today, I am here to announce that President Trump is issuing an executive order that will make it easier to protect yourselves and your communities. H e is rescinding restrictions from the prior administration that limited your agencies' ability to get equipment through federal programs, including life saving gear like Kevlar vests and helmets and first responder and rescue equipment like what they’re using in Texas right now.

Some of these programs, like the Department of Defense's 1033 program that Congress signed into law more than 25 years ago, have recycled more than $5.4 billion in used gear and equipment that taxpayers had already purchased, and made it available for your agencies to repurpose it in the fight against terrorism, crime, and disaster relief. Equipment like helicopters and armored vehicles are also vitally important to emergency and disaster response efforts.

One sheriff told me earlier this year about how, due to the prior administration's restrictions, the federal government made his department return an armored vehicle that can change the dynamics of an active shooter situation.  These are the types of helmets and gear that stopped a bullet and saved the life of an officer during the Orlando nightclub shooting.  This is the type of equipment officers needed when they pursued and ultimately killed terrorists in San Bernardino.  Studies have shown this equipment reduces crime rates, reduces the number of assaults against police officers, and reduces the number of complaints against police officers.

Those restrictions went too far.  We will not put superficial concerns above public safety. All you need to do is turn on a tv right now to see that for Houstonians this isn’t about appearances, its about getting the job done and getting everyone to safety.

The executive order the President will sign today will ensure that you can get the lifesaving gear that you need to do your job and send a strong message that we will not allow criminal activity, violence, and lawlessness to become the new normal.  And we will save taxpayer money in the meantime.

August 28, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (11)

Lots of commentary and criticism in wake of Prez Trump's Arpaio pardon

There has been no shortage of commentary and criticism of Prez Trump's decision on Friday to make his first use of the clemency power a pardon for Joe Arpaio (basics here). Here is a not-quite-random, not-so-systematic sampling of stories and commentaries:

In accord with a lot of the commentary here, I am troubled by how Prez Trump first decided to use his historic clemency powers.  But, as this Guardian piece usefully highlights, many recent presidents have used their clemency authority in ways seemingly motivated unduly by political commitments rather than purely by concerns about justice and mercy.  I want to believe that the current President is capable and eager to have concerns about justice and mercy impact at least some of his future clemency decisions, but his track record on this front and others certainly does not inspire optimism.

August 28, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (35)

Friday, August 25, 2017

As he had hinted, Prez Trump decides to make his first use of the clemency power a pardon for Joe Arpaio

As reported here by Politico, "President Donald Trump pardoned attorney former Sheriff Joe Arpaio on Friday."  Here is more:

Arpaio had been convicted of federal contempt. The outspoken immigration opponent has long backed Trump. The president teased a pardon during a campaign rally in Phoenix on Tuesday. The White House cited a lifetime of public service in announcing Apraio's pardon.

I cannot yet find any official White House statement about this action, but I will update this post if and when one appears.

A few prior related posts:

UPDATE: This Reuters piece provides more context on the pardon as well as reaction thereto. Commentor Joe helpfully noticed that the official White House statement appears on the ABC News Twitter feed, and as of early Saturday morning I cannot yet find that statement on the White House website.

August 25, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (24)

"Jeff Sessions Should Be Screaming Bloody Murder About a Potential Joe Arpaio Pardon"

The title of this post is the headline of this interesting Reason commentary authored by Mike Riggs.  Here are excerpts:

President Donald Trump did not pardon former Maricopa County Sheriff Joe Arpaio at his Arizona rally on Tuesday, but CNN reports that the paperwork and accompanying talking points are ready.  Should he pardon Arpaio at some point in the near future, it would be both completely legal and an affront to everything his attorney general supposedly holds dear.

"One of the talking points is that Arpaio served his country for 50 years in the military, the Drug Enforcement Administration and as Arizona's Maricopa County sheriff," CNN's Kaitlan Collins reports, "and that it is not appropriate to send him to prison for 'enforcing the law' and 'working to keep people safe.'"  Arpaio is not facing six months behind bars for "enforcing the law" or "working to keep people safe," any more than drug dealers are sentenced to prison for "making people happy."  Arpaio disregarded a judge's order and was convicted of felony contempt of court.  He did the crime, by his own logic and that of the U.S. Attorney General, and he should now do some time.

But if Trump decides to spare the 85-year-old Arpaio six months of incarceration — we won't know until October if he'll actually serve any time behind bars — he has that power. Yes, it would signal a break with historical precedent, but that's really the only constraint on executive clemency....

If anyone in Trump's orbit should be discouraging him from pardonning Arpaio, it's Sessions.  When Pres. Bill Clinton pardoned financier Marc Rich in the final hours of his presidency, Rich had not even stood trial.  He fled the U.S. in 1983 after being indicted for trading with Iran during the hostage crisis, and spent the rest of his life living comfortably abroad.  During his absence, Rich's family in the U.S. funneled more than a million dollars to the Democratic National Committee, the senatorial campaign of Hillary Clinton, and the Clinton Presidential Library.  When Clinton eventually pardoned him at the behest of Israel's government, the prosecutors who worked to indict Rich were understandably furious, as were many members of Congress.

"From what I've seen, based on the law of bribery in the United States, if a person takes a thing of value for himself or for another person that influences their decision in a matter of their official capacity, then that could be a criminal offense,'' Sen. Jeff Sessions told the New York Times in 2001.  One might think Sessions would feel similarly about the current president rewarding a campaign surrogate with a Get Out of Jail Free card.

Sessions also objected to the clemency initiative, which Obama launched in 2014 and continued through the end of his second term.  This was the most systematic attempt to heal the wounds of a stupid war since President Jimmy Carter pardoned men who evaded the draft for Vietnam.  Sessions, however, declared Obama's efforts to shorten insanely long drug sentences a betrayal of the American justice system.  "To unilaterally determine that a sentence was unjustified simply because the president disagrees with the underlying criminal justice policy is a thumb in the eye of the law enforcement officers, prosecutors, defense attorneys, judges, court and prison personnel who put time and resources into these cases," Sessions said in 2014.

Just a month ago, Sessions said he was committed to holding law-breaking cops accountable.  "Just as I'm committed to defending law enforcement who lawfully have to use deadly force to defend themselves while engaged in their work," he told the National Organization of Black Law Enforcement Executives, "I will also use the power of the office I'm entrusted with to hold any officer responsible who violates the law."

If Arpaio is an exception to Sessions' position on executive clemency and holding criminal cops accountable, I can't wait to hear his explanation.

A few prior related posts:

August 25, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (11)

Monday, August 21, 2017

Reviewing recent chapters of the long-running US "war on drugs"

The Guardian has this lengthy new article on federal drug crime policies headlined "How Jeff Sessions and Donald Trump have restarted the war on drugs."  I find the headline frustrating because the federal government never really ended the "war on drugs" so it is misguided to suggest something that never stopped has been restarted.  That lingo notwithstanding, the extended piece provides a useful primer on recent drug war developments during the Obama and Trump era, and here are excerpts:

Barack Obama’s attorney general, Eric Holder, [in 2013] was pushing through a set of “smart on crime” reforms that included directing federal prosecutors to avoid triggering mandatory minimum sentences when dealing with lower-level, nonviolent drug offenders.  For many years research and advocacy groups had opposed mandatory minimum sentences as cripplingly expensive, marked by racial disparities and of dubious value for crime prevention. But the laws were still on the books and the federal prison population continued to grow.

Holder was announcing that federal prosecutors were being instructed to use minimum sentences in fewer, and more serious, cases. Central to this push for change, said America’s first black attorney general, was the evidence that America’s harsh drug enforcement had fallen more heavily on African Americans....

In May [2017], Sessions reversed his predecessor’s initiative, claiming, without evidence, that Holder’s sentencing changes had led to America’s sudden 10.8% increase in murders in 2015.... What is so striking about the move by Sessions and the Trump administration is that it is at odds with much thinking across the globe about the war on drugs, including among leaders in Latin America.  Ever since 2011 when Juan Manuel Santos, as the president of Colombia, declared that the war on drugs had failed, a growing international consensus has been forming on the need for a new conversation to discuss the violence, bloodshed and ruined lives that followed in the wake of the war on drugs – whether in Colombia, Mexico or America.

The change in direction in the US has come at a time when America has been also seeing an increasing number of states liberalizing laws on the consumption and sale of marijuana.  Into this evolving international and national context has stepped Sessions, with a very different approach.  The new attorney general and his initiatives represent a huge setback for advocates who have worked for decades to build bipartisan agreement that America’s war on drugs had been a failure and it was time to reverse the damage....

For decades, reciting law and order slogans has been the path of least resistance for politicians -- and the policymakers who sign such harsh legislation have not been held responsible for its consequences. “I am unaware of any legislator who has gotten into political trouble for codifying a simple-minded slogan or soundbite that pushes up the incarceration rate with no effect on crime,” says Bobby Scott, an African American Democratic congressman from Virginia who has been fighting for a better approach to criminal justice since he was first elected in 1993. “I am aware of many politicians who voted for intelligent, research-based initiatives that reduce crime and save money, and because they’re labeled ‘soft on crime’ they get in political trouble.”

In recent years, driven by the enormous price tag of mass incarceration for taxpayers, reforming America’s criminal justice system has become a bipartisan effort, with the Republican mega-donor Koch brothers and the advocacy group Right on Crime supporting the cause, and conservative states like Texas leading the way on reducing their prison populations.  Rick Perry, the former Texas governor who now serves as Trump’s energy secretary, was one of the many Republicans who signed on to these reforms. “After 40 years of the war on drugs, I can’t change what happened in the past,” he said at the World Economic Forum in 2014. “What I can do as the governor of the second largest state in the nation is to implement policies that start us toward a decriminalization and keeps people from going to prison and destroying their lives, and that’s what we’ve done.”... “

You are never going to win the war on drugs. Drugs won,” Koch Industries executive Mark Holden told reporters in Colorado in June, expressing frustration at Sessions’ return to war on drugs policies and rhetoric. “Illegal drug usage is at the same or higher levels now than it was when we started the war on drugs,” Holden, who leads the Koch criminal justice reform efforts, told the Guardian. “We need to go to a different approach.”

Sessions’ rollback of Holder’s sentencing reforms has been hailed by some law enforcement groups, and the Justice Department has also defended Sessions’ changes by pointing to his backing from people “actually on the front lines dealing with violent criminals on a daily basis”.  Among Sessions’ supporters in law enforcement are the Fraternal Order of Police (the nation’s most prominent police union), the Federal Law Enforcement Officers Association, and the National Association of Assistant US Attorneys, which represents the frontline federal prosecutors whom Holder had tried to rein in.

Larry Leiser, the national association’s president, says that many federal prosecutors believe that tough mandatory minimum sentences are a crucial tool in convincing lower-level drug defendants to cooperate with the government when it’s prosecuting the higher-ups involved with the criminal activity.  “The tools we have [to tackle drugs and violence] are the tools that Congress has created for us, Leiser says. “We’re just trying to hold on to the ones we’ve got.”

“Some organizations and people like to make these drug traffickers the victims. What about the people whose lives they kill and the lives they destroy?” Leiser asks. “We’ve lost our way on this issue; we’ve failed to focus on the victims.”...  Leiser and Patrick O’Carroll, the executive director of the Federal Law Enforcement Officers Association, both say they believe the Obama administration’s modest criminal justice reforms are connected to 2015’s increase in murders. “If you have less drugs in the marketplace, there are less people dying and fighting over the drugs, and you’re going to have less murders,” Leiser says.

August 21, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, August 16, 2017

ABA delegates pass resolution against mandatory minimums and defer vote on resolution against new Sessions charging memo

Aba-logo-defending-liberty-pursuing-justiceAs reported in this ABA Journal report, the "ABA House of Delegates on Tuesday approved a late-offered resolution backing a ban on mandatory minimum sentences, while sponsors withdrew another late sentencing resolution after hearing from the U.S. Justice Department." Here are more details:

Delegates approved Resolution 10B, which opposes the imposition of mandatory minimum sentences in any criminal case.  The resolution calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future....

“Sentencing by mandatory minimums is the antithesis of rational sentencing policy,” the report says.  Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says.

Though the ABA is on record for opposing mandatory minimums, the resolution “is timely and it is indeed urgent” because Congress is considering a number of bills that would impose new mandatory minimums, according to Kevin Curtin of the Massachusetts Bar Association.  Curtin told the House that mandatory minimums have produced troubling race-based inequities.  Blacks are more likely than whites to be charged with crimes carrying mandatory minimum sentences, and they are more likely to be sentenced to a mandatory minimum term, he said.

The withdrawn proposal, Resolution 10A, would have urged the Department of Justice to rescind a policy adopted in May by Attorney General Jeff Sessions.  The Sessions policy directs federal prosecutors to charge and pursue the most serious, readily provable offense, unless they get approval of superiors to deviate from the policy.  The ABA resolution urges that the department reinstate policies permitting federal prosecutors to make individualized assessments in each case....

Neal Sonnett, representing the ABA Criminal Justice Section, explained why the proposal was withdrawn.  The Justice Department has a designated seat within the section, but it did not voice an objection until Monday afternoon, he said.  The department indicated it believed there were errors in the section report and it wanted to continue discussions, Sonnett said.  The section withdrew the resolution to allow for those discussions and intends to bring it back to the House at the ABA Midyear Meeting in February.

A report to the House of Delegates said Sessions’ decision will lead to increased use of mandatory minimums for low-level and nonviolent drug offenders and a rise in incarceration.  “The draconian charging and sentencing policies urged by Sessions are a throwback to the policies of limited prosecutorial discretion and increased mandatory minimum sentences — policies that did not work — and are in stark contrast to the progressive trend in policies over the last 10 years,” the report says.

The ABA website provides information about the withdrawn Resolution 10A as well as the adopted Resolution 10B.

August 16, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Saturday, August 12, 2017

"Trump Wants to Get Tough on Crime. Victims Don’t Agree."

The title of this post is the headline of this intriguing New York Times piece about the results of this interesting recent survey of "crime survivors." Here are excerpts:

Sending more people to prison, deporting illegal immigrants, cracking down on marijuana use — those are some of the things the Trump administration has said will make America safer.  But what do crime victims think about all this? It is a group whose views are rarely measured, but a poll commissioned by the Alliance for Safety and Justice sought to find out.

A few notes of caution: The group supports criminal justice reform, including incarcerating fewer people, and seeks to promote the voices of victims who agree.  And the random survey, which has a margin of sampling error of 3.4 percent, was taken in May, before President Trump repeatedly criticized Jeff Sessions, the attorney general, on Twitter.

But it is a rare chance to hear from victims, more than 800 of whom were asked about their views on the administration’s criminal justice policies.  By and large, their priorities appear very different from the president’s.

Half of respondents said they felt less safe since Mr. Trump took office, though it was not clear that this was because of his approach to criminal justice.  Only 39 percent said they felt less safe when Mr. Trump discussed crime or criminal justice.  But when the president posts on Twitter, the number who feel less safe jumps to 57 percent, according to the survey.

About three in four said they were happy with their local police and law enforcement in general. While only about 42 percent rated Mr. Trump favorably, that was higher than the president’s favorability rating among the general population at the time. About a third held positive views of Mr. Sessions.

When victims were asked to name two things that contributed most to crime in their communities, just 12 percent blamed undocumented immigrants.  Almost nobody thought there were too few people in prison.  Instead, more than half named drug and alcohol addiction, and nearly a third pointed to poor parenting.  Mental health issues and a lack of job opportunities also ranked high on the list.

“‘Lock ’em up and throw away the key,’ that’s the traditional way of thinking, but many victims don’t want ‘tough on crime’ and incarceration,” said Aswad Thomas, 34, who was shot twice in the back during a robbery attempt in Hartford in 2009, ending his plans to play professional basketball. “Most of us want more rehabilitation services for crime victims.”

Mr. Thomas, now the membership director at the Alliance, said once he found out that both of the young men who had shot him had been victims of crime themselves, he became convinced that offering counseling and trauma services to victims could itself help reduce violent crime.

A vast majority of respondents supported increasing treatment for addiction and mental health, while they were less enthusiastic about Trump administration policies like seeking the maximum punishment for drug offenders and increasing deportations, which only 40 percent of respondents favored.  Nearly two-thirds said they did not want federal drug laws to be enforced in states where marijuana use has been legalized....

A majority of respondents — 84 percent — said additional funding should be spent on rehabilitation and drug and mental health treatment programs for people in the justice system. Some views held true despite the respondents’ political leanings. Among those who said they held a favorable opinion of Mr. Trump, more than half chose addiction as a leading driver of crime.

August 12, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (12)

Wednesday, July 26, 2017

Timely and puzzling statement from AG Sessions on work of DOJ Task Force on Crime Reduction and Public Safety

While he has been getting bashed repeatedly by Prez Trump in recent days, Attorney General Sessions has been noticably quiet.  This afternoon, however, the Justice Department released this press release under the heading "Statement by Attorney General Jeff Sessions on Recommendations From the Task Force on Crime Reduction and Public Safety."  Here is its full text:

Attorney General Jeff Sessions today issued the following statement on the work of the Task Force on Crime Reduction and Public Safety:

"Every American, no matter who they are or where they live, has the right to be safe in their homes and neighborhoods.  And yet, in many locations, the violent crime rate is rising, and in some of our urban areas, the increase is staggering.  Reducing this crime surge is a top priority for President Trump and the Department of Justice.  Consistent with the President's Executive Order on a Task Force on Crime Reduction and Public Safety, I created the Task Force in February and it has provided me with recommendations on a rolling basis.  Dedicated professionals from throughout the Department have been listening to our partners in state, local, and tribal law enforcement; identifying successful violent crime reduction strategies; and developing recommendations on actions the Department can take to help improve public safety.

"I have been acting on the Task Force's recommendations to set the policy of the Department.  I will continue to review all of the Task Force's recommendations, and look forward to taking additional steps towards ensuring safer communities for all Americans."

I do not think this press release is meant as a direct response to recent statements by Prez Trump, but I do think it serves as an indirect way for AG Sessions to remind Prez Trump that the AG is busy doing the job Prez Trump appointed him to do.  In addition, an (informal?) deadline for the Task Force's recommendations was set for July 27, and I believe a lot of folks (myself included) thought we could be getting some public information about the Task Force's recommendations on that date or soon thereafter.  I believe this statement by AG Sessions is suggesting that no big formal announcements or big DOJ changes of policy should be expected tomorrow.

But maybe AG Sessions is saying and signaling something else with this statement.  When I first read it, I started looking for some other new document which set out some of the Task Force's recommendations.  But I have not found any such document, nor (after a re-read of this statement) do I think such a document is soon forthcoming.  That is why I find this statement somewhat puzzling, though perhpas I should not try so hard to read between the lines.

July 26, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (3)

Tuesday, July 25, 2017

"Could Lyin' Ted replace 'beleagured' Jeff? Trump is 'openly considering removing Attorney General Sessions and could replace him with former enemy Cruz"

The title of this post is the headline of this press report that amusingly captures the latest crazy news from inside the Beltway.  Here are the basics:

Ted Cruz is reportedly near the top of Donald Trump's list of choices to potentially replace Jeff Sessions as attorney general.  Cruz, who was regularly mocked by Trump during the Republican primaries and nicknamed 'Lyin' Ted' by the then-candidate, could find himself taking Sessions' spot if the former Alabama representative resigns or is fired, the Washington Post reports.

Trump would reportedly be willing to make the Texan the country's chief law enforcement officer despite him having last year revived a rumor linking Cruz's father, Rafael, to Lee Harvey Oswald and the JFK assassination.

However, Cruz was quick to distance himself from the speculation on Monday night, releasing a statement that said he is 'deeply gratified that we have a principled conservative like Jeff Sessions serving as Attorney General.  He added: 'The stories being reported in the media tonight are false. My focus is and will remain on fighting every day to defend 28 million Texans in the US Senate.'

Another name reportedly under consideration is former New York City mayor Rudy Giuliani.  Giuliani denied he is in the running for the role, which reportedly is on the cusp of being available due to Trump's desire to fire special counsel Robert Mueller and bring the Russia investigation into his presidential campaign to an end, according to the Post.

Senator Cruz has in the not-so-distant past been a supporter of some federal sentencing reforms for nonviolent drug offenders (such as Smarter Sentencing Act) and also for allowing states to set their own marijuana policies. Generally speaking, because just about any new AG would likely be more supportive of sentencing reform than AG Sessions, advocates of modern sentencing reforms should be rooting for the President to make a change here. But, personally, I still think a change is pretty unlikely.

UPDATE: Prez Trump today criticized AG Sessions yet again, but has not yet indicated plans to fire him. And this Daily Beast article highlights why no one should expect AG Sessions to retire. The piece is headlined "Jeff Sessions Is Growing ‘Pissed’ at Trump, His Allies Say. And He Doesn’t Plan to Quit." Here is a snippet:

Attorney General Jeff Sessions has no plans to leave office, as friends say he’s grown angry with President Donald Trump following a series of attacks meant to marginalize his power and, potentially, encourage his resignation. “Sessions is totally pissed off about it,” said a Sessions ally familiar with his thinking. “It’s beyond insane. It’s cruel and it’s insane and it’s stupid.”

Sessions’ allies say the president’s criticism of the attorney general is counterproductive. Perhaps more than any other member of Trump’s Cabinet, Sessions has been an uncompromising advocate for Trump’s agenda. The attorney general has worked methodically to dismantle Obama’s legacy at the Justice Department: reconsidering the department’s efforts to make troubled police departments change their practices, changing the DOJ’s stance on voter-ID lawsuits, and rolling back former Attorney General Eric Holder’s sentencing guidelines that were aimed at reduced incarceration and balancing out drug-crime-related punishments....

“He’s not going anywhere,” said another Sessions ally. “He is not going to resign. What he is accomplishing is way too important to the country.”

Rather than quit, Sessions insiders predict the attorney general will call Trump’s bluff. And unlike other members of Trump’s Cabinet, he has political wiggle room to do so. Trump’s base of support — immigration restrictionists, rank-and-file law-enforcement officials, and states’ rights conservatives — were Sessions’ fans before they flocked to the president. They may very well scoff at the idea that the administration would be better off without its AG. Sessions also enjoys continued support in the Senate, where he served for a decade. On Tuesday morning, Sen. Lindsey Graham (R-SC) pushed back on Trump’s attacks and called the president’s encouragement that Sessions prosecute Hillary Clinton over her email use “highly inappropriate.”

July 25, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (20)

Friday, July 21, 2017

Could Prez Trump follow Prez Obama's lead by making notable and significant use of his clemency powers?

The question in the title of this post is my somewhat cheeky effort to put a kind of sentencing spin on the news from the Washington Post that Prez Trump has been "discussing the president’s authority to grant pardons" as part of an effort to limit or undercut special counsel Robert Mueller’s Russia investigation. Here is a bit more:

Trump has asked his advisers about his power to pardon aides, family members and even himself in connection with the probe, according to one of those people. A second person said Trump’s lawyers have been discussing the president’s pardoning powers among themselves.

One adviser said the president has simply expressed a curiosity in understanding the reach of his pardoning authority, as well as the limits of Mueller’s investigation. “This is not in the context of, ‘I can’t wait to pardon myself,’ ” a close adviser said.

Along with a number of other commentators, I have long complained about the failure of modern President's to make robust use of their clemency powers, particularly early in their terms. I have not had exactly these kinds of pardons in mind, but I am still inclined to be grateful whenever a president is giving any attention to his historic clemency powers.

July 21, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (32)

Wednesday, July 19, 2017

Details emerging on new Trump Administration approach to asset forfeiture ... UPDATED with new DOJ memo

As noted in this prior post, on Monday Attorney General Jeff Sessions gave a speech in which he indicated that a "new directive on asset forfeiture" was forthcoming that, "especially for drug traffickers," sought "to increase forfeitures."  This new AP article, headlined "US restoring asset seizures - with safeguards," reports on what this new directive is going to include. Here are excerpts from the AP piece:

The Trump administration will soon restore the ability of police to seize suspects’ money and property with federal help, but The Associated Press has learned the policy will come with a series of new provisions aimed at preventing the types of abuse that led the Obama Justice Department to severely curtail the practice.

At issue is asset forfeiture, which has been criticized because it allows law enforcement to take possessions without criminal convictions or, in some cases, indictments. The policy to be rolled out Wednesday targets so-called adoptive forfeiture, which lets local authorities circumvent more-restrictive state laws to seize property under federal law. The proceeds are then shared with federal counterparts.

Former Attorney General Eric Holder significantly limited the practice in response to criticism that it was ripe for abuse, particularly with police seizures of small amounts of cash. Attorney General Jeff Sessions plans to ease those restrictions, but also impose new requirements on when federal law can be used, a senior Justice Department official briefed on the policy said Tuesday. The official, who spoke to the AP on condition of anonymity, was not authorized to discuss the changes before their unveiling.

Key changes include requiring more detail from police agencies about probable cause justifying a seizure before federal authorities get involved. Also, the Justice Department will have to decide more quickly whether to take on local seizures and also let property owners know their rights and the status of their belongings within 45 days of the seizure, faster than federal law requires.

Another key change will make it harder for police to seize less than $10,000 unless they have a state warrant, have made an arrest related to the seizure, have taken other contraband, such as drugs, along with the money, or the owner has confessed to a crime. Without at least one of those conditions, authorities will need a federal prosecutor’s approval to seize it under federal law.

Old rules set that threshold at $5,000, the official said. The old process rarely required a federal prosecutor’s sign-off, said Stefan Cassella, a former federal prosecutor and expert on asset forfeiture and money laundering law.

Sessions’ support for asset forfeiture is in keeping with his tough-on-crime agenda and aligns with his oft-stated view that the Justice Department’s top priority should be helping local law enforcement fight violent crime. Police departments use the seizures for expenses, and some agencies felt Holder’s restrictions left them without a critical funding source. When he forecast the rollback of the Holder provision at a conference of district attorneys, the announcement drew applause.

But an embrace of asset forfeiture follows bipartisan efforts to overhaul the practice, and as a growing number of states have made their own laws limiting its use. Republican Rep. Darrell Issa of California, who sponsored legislation this year to tightly regulate asset forfeiture, told the AP that Sessions’ move is “a troubling step backward” that would “bring back a loophole that’s become one of the most flagrantly abused provisions of this policy.”

“I’m glad that at least some safeguards will be put in place, but their plan to expand civil forfeiture is, really, just as concerning as it was before,” Issa said. “Criminals shouldn’t be able to keep the proceeds of their crime, but innocent Americans shouldn’t lose their right to due process, or their private property rights, in order to make that happen.”

UPDATE Here now is the official US Department of Justice news release, headlined "Attorney General Sessions Issues Policy and Guidelines on Federal Adoptions of Assets Seized by State or Local Law Enforcement." And here is the associated one-page order.

July 19, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, July 17, 2017

In latest speech, AG Sessions advocates for more gun and prescription drug prosecutions and more asset forfeiture

Attorney General Sessions gave another notable speech today, and this one was delivered to the National District Attorneys Association.  Regular readers are familiar with the themes AG Sessions has been stressing of late, but these excerpts highlight what struck me as some new parts to what the AG is talking up:

We have a multi-front battle in front of us right now: an increase in violent crime, a rise in vicious gangs, an opioid epidemic, threats from terrorism, and human traffickers, combined with a culture in which family and discipline seems to be eroding further.

From the early 1990s until just a few years ago, the crime rate steadily came down across the country. But violent crime is rising.  The murder rate, for example, has surged nearly 11 percent nationwide in just one year — the largest increase since 1968.  Per capita homicide rates are up in 27 of our 35 largest cities....

These numbers are deeply troubling — and especially since they represent a sharp reversal of decades of progress. My best judgment is that this rise is not an aberration or a blip.  We must take these developments seriously and consider carefully what can be done about them.  Yielding to the trend is not an option for America and certainly not to us....

We must encourage proven police techniques like community-based, proactive policing and “broken windows” — policies that are lawful and proven to work. Better training, better morale, professional excellence are goals of yours. My goal is to help you be effective and never to make your work more difficult. I am asking our U.S. Attorneys to be leaders in this approach. In the long run, there is nothing we can do that is more impactful....

I want to see a substantial increase in gun crime prosecutions. I believe, as we partner together and hammer criminals who carry firearms during crimes or criminals that possess firearms after being convicted of a felony, the effect will be to reduce violent crime.

Next, the DEA reports that 80 percent of heroin addicts started with abuse of prescription drugs. As you know, more than 50,000 died of drug overdoses in 2015. Preliminary numbers indicate 2016 may hit 60,000. We have never seen numbers like this. This nation is prescribing and consuming far too many painkillers. This must end.

Last week, we announced the indictments of over 400 defendants as part of the annual Health Care Fraud Take Down. 120 of those involved opioid-related drug fraud and nearly 50 were doctors. Some of these frauds involved massive amounts of drugs. But I’m convinced this is a winnable war. We can significantly reduce this abuse, which includes the big drug companies as well.

DEA is making these cases a priority. They can make visits to physician and pharmacies and do checks on those who prescribe or sell these drugs. They are reviewing and identifying physician and pharmacy outliers that can help you narrow the search for crooks.

I would urge you to examine every case that involves an arrest of an individual illegally possessing prescription drugs. Make a condition of any plea bargain that the defendant tell where he or she got the drugs. Together, let’s get after these bad actors....

In addition, we hope to issue this week a new directive on asset forfeiture — especially for drug traffickers.  With care and professionalism, we plan to develop policies to increase forfeitures.  No criminal should be allowed to keep the proceeds of their crime.  Adoptive forfeitures are appropriate as is sharing with our partners....

As prosecutors, we have a difficult job, but our efforts at the federal, state, and local levels have a real impact. With every conviction we secure, we make our communities safer.

July 17, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, July 14, 2017

"Murder Is Up Again In 2017, But Not As Much As Last Year"

Asher-murder-0710-1The title of this post is the title of this notable new analysis of big city murder data authored by Jeff Asher over at FiveThirtyEight.  Here is how the posting starts and ends (with footnotes/links omitted):

Big U.S. cities1 saw another increase in murders in the first half of 2017, likely putting them on track for a third straight year of rising totals after murder rates reached historic lows in 2014.  So far, however, this year’s increase is considerably smaller than it was in each of the past two years; the big-city numbers are consistent with only a modest rise in murders nationwide.  Overall, if recent numbers hold, the nation’s murder rate will likely rise but remain low relative to where it was from the late 1960s through the 1990s.

The FBI collects national data on murders and other major crimes, but it releases them after a significant lag.  The most recent full year for which official data is available is 2015, when murders rose at their fastest pace in a quarter century.  Official 2016 data won’t be available until the fall, but murder almost certainly rose last year too; in January, I found that big cities experienced a roughly 11 percent increase in murders in 2016, which past patterns suggest is consistent with about an 8 percent rise in murder overall.

In order to gauge changes in the prevalence of murder in big cities in 2017, I collected year-to-date murder counts for 2017 and 2016 in 68 of the country’s big cities, using a mixture of data from the cities themselves and from media reports.  Data from 63 of the cities included murders committed through at least the end of May, and 50 cities provided data covering the month of June.  These big cities have had roughly 4 percent more murders so far in 2017 than they did at the same point in 2016.

Only a handful of cities are seeing large increases or decreases in murder this year, which is what we would expect to see given a small overall rise in the sample....

Big cities tend to exaggerate national murder trends, both up and down — so a large rise in big-city murder usually corresponds with a slightly smaller national increase.  If murder rose roughly 8 percent nationally in 2016 (as my January estimate suggests) and is set to rise a few percentage points in 2017, then the nation’s murder rate in 2017 will be roughly the same as it was in 2008.  That’s still more than 40 percent lower than the country’s murder rate in the early 1990s (but roughly 27 percent higher than it was in 2014).

Ultimately, this year’s trend is similar to last year’s in that more big cities are seeing a rise in the number of murders than are seeing a decline.  There are still six months left in 2017, and while anything could happen, the most likely outcome is that — although this year’s rise will likely be smaller than last year’s — the country will see murders increase for a third straight year.

As regular readers know, Attorney General Sessions has made much of rising crime rates in his criticisms of Obama era criminal justice reforms and in his defense of his recent decision to toughen federal prosecutorial charging and sentencing practices. This kind of data showing still further (though smaller) increases in murders in 2017 on the heels of significant increases in 2015 and 2016 will likely only reinforce the views of AG Sessions and others in the Trump Administration that "tough and tougher" federal sentencing policies and practices are needed to enhance public safety.

July 14, 2017 in Criminal justice in the Trump Administration, National and State Crime Data, Offense Characteristics | Permalink | Comments (3)

Thursday, July 13, 2017

Still more from AG Sessions on crime and punishment... and some critical commentary thereon

This recent post reprinted some excerpts of a speech by Attorney General Sessions at the 30th DARE Training Conference, and AG Sessions hit some similar points in this subsequent speech yesterday in Las Vegas to law enforcement personnel. This Vegas speech gave special attention to immigration enforcement and "sanctuary cities," and here are excerpts from the start of the speech that help highlight how AG Sessions view a tough approach to law enforcement as central to everything that government seeks to achieve: 

Since the early 1990s, the crime rate has steadily come down across the country — that is, until two years ago. Now, violent crime is once again on the rise in many parts of America.  The murder rate, for example, has surged 10 percent nationwide in just one year — the largest increase since 1968.

These numbers are shocking, and they are informative, but the numbers are not what is most important. What’s most important are the people behind the numbers.  Each one of the victims of these crimes had a family, friends, and neighbors. They’re all suffering, too....

We cannot accept this status quo, and this Department of Justice will not accept it.  Every American has the right to be safe in their homes and in their neighborhoods.

The first and most important job of this government — and any government — is to protect the safety and the rights of its people.  If we fail at this task, then every other government initiative ceases to be important.

As law enforcement officials, we have the responsibility to stop — and reverse — the surge in violent crime and opioids that has taken place over the last two years.  And under President Trump’s leadership, this Department of Justice will answer the call and do its part.

To that end, I have directed our federal prosecutors to work closely with our law enforcement partners at the federal, state, local, and tribal levels to combat violent crime and take violent criminals off our streets.

As we all know, the vast majority of people just want to obey the law and live their lives.  A disproportionate amount of crime is committed by a small group of criminals.  And the more of them we apprehend, prosecute, and convict, the more crime we can deter.

Meanwhile, as AG Sessions has been this week expounding his vision for federal criminal enforcement, some commentators concerned about his vision have been explaining their concerns.  Here are two recent pieces with critical commentary on what AG Sessions is up to:

July 13, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, July 05, 2017

"How smart was Obama's 'Smart on Crime' initiative? Not very"

The title of this post is the headline of this new Fox News commentary authored by Lawrence Leiser (president of the National Association of Assistant United States Attorneys), Nathan Catura (president of the Federal Law Enforcement Officers Association), Bob Bushman (president of the National Narcotics Officers’ Associations’ Coalition), Al Regnery (chairman of the Law Enforcement Action Network), and Ron Hosko (president of the Law Enforcement Legal Defense Fund). The piece largely serves as a defense of the new Sessions charging/sentencing policies, and here is the bulk of what this impressive quintet have to say:

Department of Justice policies since the 1980s directed federal prosecutors to charge the most serious readily provable offense, unless justice required otherwise.  It’s undisputed that this charging practice, applied over the course of several Republican and Democratic administrations in recent decades, contributed to the reduction of violent crime by half between 1991 and 2014.

The Obama administration’s “Smart on Crime” initiative — touted by former Deputy Attorney General Sally Yates in a recent oped in the Washington Post titled “Making America scared again won’t make us safer” — undermined those hard-fought gains in public safety, and ushered in significant increases in violent crime.  In 2015, violent crime rose 5.6 percent — the greatest increase since 1991 — and included a shocking 10.8 percent increase in homicide rates.  And, although the final numbers for 2016 have not been published, the preliminary data suggests another substantial increase in the violent crime rate.

Among the policies championed by then Attorney General Eric Holder and Deputy Attorney General Yates was one that reversed long-standing charging policies and directed federal prosecutors to avoid minimum sentences against drug traffickers, as mandated by Congress, and instead pursue lesser charges.  Despite the well-known and deadly violence associated with drug cartels, gangs and their networks, the Holder-Yates policies directed federal prosecutors in certain cases to under-charge drug trafficking cases and avoid triggering statutory minimum penalties by not pressing charges on the actual amount of drugs that traffickers distributed, such as heroin, crack cocaine, and methamphetamine.

Changes in federal law enforcement policy can ripple through communities across the country and affect their safety.  “Smart on Crime” was part of a larger policy shift within the Obama administration from drug abstinence and accountability to drug acceptance and victimization.  Since its inception, correlative increases in drug abuse, overdose deaths and violent crime have had a devastating impact on every community, regardless of sex or demographics.  The reduced charging and sentencing of thousands of drug traffickers and their early release from prison — all hallmarks of the Holder-Yates policies of the Obama years — have begun to leave their devastating mark downstream on the safety of communities across the nation.  The surge in violent crime should not be surprising.  Drug trafficking by its very nature, is a violent crime.

Take the recent account of Michael Bell, a former federally-convicted methamphetamine dealer who, when facing new state charges in Tennessee for kidnapping and domestic assault, shot two sheriff’s deputies during a court proceeding.  Bell would have still been in federal prison had he not been released in 2015, three years earlier than scheduled, because of the across-the-board sentencing reductions prior administration leaders pushed the U.S. Sentencing Commission to impose.

Not surprisingly, those former officials continue to use the term “low level, non-violent offender” to promote a sanitized narrative of drug trafficking for profit.  Law enforcement professionals know that drug trafficking enterprises are comprised of integrated networks of street corner dealers, mid-level traffickers, distributors, producers and cartel leaders, whose collective efforts inherently rely on violence and have contributed to the deaths of over 50,000 Americans last year in drug overdoses alone.

Despite the evocative “second chance” narrative that stirs support among sentencing reformers, law enforcement professionals also know that the people who end up in federal prison work hard to get there.  Few offenders go to prison for their first offense, or even the second or third.  Many of the people who end up in federal prison have committed violent crimes, are members of drug trafficking and criminal organizations or simply have chosen to continue to disregard our laws. Because the majority of criminals admit their guilt, plea bargaining involves the dismissal or reduction of related charges, which greatly reduces the criminal histories and sentences of countless criminals. That means the numbers and types of crimes for which many of them are arrested, but never charged or convicted, are incalculable.  Criminals are committing thousands of crimes and violent acts against our citizens for which they are never held accountable.

Seeking justice and keeping the peace, it is federal law enforcement agencies and their state and local partners who will strive to enforce the laws that Congress enacted to protect our country and its citizens.  The surest way to preserve public safety is to honor the laws the people have passed and to enforce them to the fullest.

July 5, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, National and State Crime Data, Who Sentences? | Permalink | Comments (25)

Monday, July 03, 2017

"Crime, the Constitution, and the Trump Administration"

The title of this post is the title of this extended commentary authored by Tim Lynch, who directs the Cato Institute’s Project on Criminal Justice.  Here is how it starts and ends:

President Trump says crime is a serious problem and that he’s going to do something about it.  His first move was to nominate Alabama Senator Jeff Sessions to be the new attorney general.  Sessions, a former federal prosecutor, is widely known for his “lock ‘em up” philosophy and tough stances on drugs and immigration.  As the first 100 days of the Trump presidency recede into history, it is a good time to pause and assess what’s in store for the American criminal justice system.

To begin, it is very unfortunate that Trump has chosen to elevate the crime problem in the way that he has because it reinforces the mistaken idea that the federal government “oversees” our criminal justice system.  In fact, the Constitution says very little about federal criminal jurisdiction.  According to the constitutional text, piracy, treason, and counterfeiting are supposed to be the federal government’s concern, but not much else.  The common law crimes of murder, rape, assault, and theft are to be handled by state and local governments.  Of course, as the federal government grew in size and scope, it came to involve itself in a host of local matters — from schools to road maintenance to crime fighting.  Although Trump has spoken of “draining the swamp” and slashing the federal budget, he not only seems uninterested in reducing the federal role in crime-fighting, but is also clearly moving to expand that role....

To conclude this overview of the criminal justice policy landscape, the first few months of the Trump presidency have been unsettling, to say the least.  Trump may have good intentions, but his gut instincts in the area of criminal justice are terribly misguided.  Massive deportations, marijuana raids, property seizures, and militarized policing will jolt the foundations of our constitutional republic.  Criminal justice reformers will win some policy battles — especially at the state and local level, but the road ahead looks treacherous indeed.

July 3, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Friday, June 30, 2017

Chicago now an even more fascinating study in federal criminal enforcement and gun crimes

The title of this post is my reaction to this new press release from the Department of Justice titled "Attorney General Jeff Sessions: We Cannot Accept these Levels of Violence in Chicago." Here is how it starts and ends:

Today Attorney General Jeff Sessions issued the following statement on the unacceptable violence plaguing the City of Chicago and outlined steps that the Department of Justice is taking to increase public safety:

"No child in America should have to walk the streets of their neighborhood in fear of violent criminals, and yet in Chicago, thousands of children do every day. Last year, more than 4,300 Chicagoans were shot, and more than 700 were killed — the deadliest year in two decades.”

“The Trump Administration will not let the bloodshed go on; we cannot accept these levels of violence. That's why, under President Trump's strong leadership, we have created the Chicago Gun Strike Force and are sending 20 more permanent ATF agents to Chicago, reallocating federal prosecutors and prioritizing prosecutions to reduce gun violence, and working with our law enforcement partners to stop the lawlessness.”...

The Crime Gun Strike Force, a permanent team of special agents, task force officers, intelligence research specialists, and ATF Industry Operations investigators who are focused on the most violent offenders, in the areas of the city with the highest concentration of firearm violence.

The Strike Force became operational June 1, 2017, and consists of 20 additional permanent ATF special agents, 6 intelligence research specialists, 12 task force officers from the Chicago Police Department (CPD), 2 task force officers from the Illinois State Police, and 4 NIBIN specialists (National Integrated Ballistics Information Network).

I have noted in lots of posts in recent years how remarkable it is that the largest city in the US (New York) keeps having crime declines while the third largest city (Chicago) is struggling with increased crime.  This pattern has been in place for at least a half-decade (see this 2012 post), and I sure hope this new Chicago Gun Strike Force can help matters in Chicago.

June 30, 2017 in Criminal justice in the Trump Administration, Gun policy and sentencing, Who Sentences? | Permalink | Comments (6)

Thursday, June 29, 2017

Two more notable recent criticisms of tough turn by AG Jeff Sessions

I have noted in a few prior posts various criticisms of the US Attorney General's new tough charging and sentencing guidance for federal prosecutors (which got an extra jolt of attention when AG Sessions took to the editorial pages of the Washington Post to make his case via this opinion piece).  This week I have notice these two more notable criticisms:

Via Real Clear Politics, "Trump Should Reject Sessions' Stance on Sentencing Reform" by Brett Tolman

Via The Washington Post, "Jeff Sessions isn’t making America safer. He might be making it more dangerous." By Inimai Chettiar and Ames C. Grawert

UPDATE: Here is one more notable new addition via Forbes, "What Sessions Doesn't Get: Narcotics Trafficking Is A Market" by Mark Osler

June 29, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Wednesday, June 28, 2017

Trump Administration says it "strongly supports" latest Kate’s Law to increase penalties on illegal reentry

The Trump Administration yesterday released this (unusual?) "statement of administration policy" concerning a bill in the House of Representatives known as Kate's Law. Here is its full text:

The Administration strongly supports H.R. 3004, Kate’s Law. This bill commemorates Kate Steinle, the 32-year-old woman who was shot and killed two years ago in San Francisco as she walked along a pier with her father. The alleged shooter, Francisco Sanchez, was an illegal immigrant who had already been deported five times and had seven felony convictions.

H.R. 3004 would increase the penalties that may be imposed on criminal aliens convicted of illegal reentry, deterring reentry and keeping criminal aliens off our streets. The bill is consistent with the Administration's broader efforts to strengthen enforcement of our immigration laws and improve the security of our Nation's borders.

If H.R. 3004 were presented to the President in its current form, his advisors would recommend that he sign the bill into law. 

Notably, as this White House statement indicates and as detailed in this recent Cato commentary by David Bier titled "Kate’s Law: A Waste of Federal Resources," the latest version of Kate's Law (H.R. 3004, available here) does not include the five-year mandatory minimum prison term that has appeared in some prior versions of "Kate's Law."  Rather, the version that the Trump Administration now "strongly supports" serves to raise the maximum prison term for various illegal reentry offenders with particular criminal histories.  Consequently, I do not think this version of Kate's Law would really have too much of an impact on too many illegal reentry cases.  In turn, advocates of federal sentencing reform who are justifiably concerned about great more use and reliance on federal mandatory minimum sentencing provisions should be pleased to see a version of Kate's Law apparently gaining steam that does not include any new mandatory minimum sentencing provisions.

One last cheeky comment combined with a final observation about this statement from the Trump Administration.  I was tempted to title this post, "Unlike Obama, Prez Trump formally expresses strong support for federal sentencing reform."  I decided not to use such a post title because, though I think it would be in many ways accurate, the phrasing would have a "fake news" quality to it.  Modern conversations about and references to "federal sentencing reform" are generally about lowering possible prison terms, not increasing them.  Moreover, the Obama Administration in various ways at various times over the course of the two terms did express support for federal sentencing reform.

That all said, I was tempted to title this post, "Unlike Obama, Prez Trump formally expresses strong support for federal sentencing reform," because this statement on Kate's Law showcases the kind of express and aggressive support that a White House can (and I think should) put behind criminal justice reform legislation it supports.  Though I am certain Prez Obama and his team worked behind the scenes in various ways and gave various speeches to support various sentencing reform efforts, I do not recall the Obama team ever issuing any formal "statement of administration policy" like this one from the Trump team in support of any particular sentencing reform proposal in Congress.  Of particular note, especially if we consider parallel points in a first Term, Prez Obama to my knowledge never formally expressed support from the White House as President in 2009 for bills in Congress that sought to completely equalize crack and powder cocaine sentencing (though the Holder DOJ did testify in support of complete equalization in front of the then Democratically controlled Congress).

UPDATE: I just now have seen that Attorney General Jeff Sessions is also adding his voice in support of Kate's Law via this official statement which includes these passages:

Countless families and communities have suffered as a result of these ‘sanctuary’ policies, which undermine federal law by safeguarding criminal illegal aliens from federal law enforcement. One victim of these policies was Kate Steinle, who was killed by an illegal alien who had been deported five times and yet still walked the streets freely. Her death was preventable, and she would still be alive today if only the City of San Francisco had put the public’s safety first. How many more Americans must die before we put an end to this madness?

Kate’s Law and the No Sanctuary for Criminals Act would penalize criminal illegal aliens who break our laws and the jurisdictions that attempt to shield them from justice. These bills can restore sanity and common-sense to our system by ending abusive attempts to undermine federal law, and they can prevent future tragedies by empowering law enforcement.

June 28, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Offense Characteristics, Who Sentences? | Permalink | Comments (11)

Tuesday, June 27, 2017

"Will Trump Use Science to Fight Crime?"

The question in the title of this post is the headline of this notable new piece by Ted Gest at The Crime Report, which reports on what some criminologists had to say at a recent event about crime fighting in the Trump Administration.  Here are excerpts:

Leading criminologists expressed cautious optimism yesterday that President Trump will embrace evidence-based practices in his administration’s war on crime.

Laurie Robinson, who advocated the use of science in justice as an Assistant Attorney General in the Obama administration, declared, “I do not think the [criminal justice] field is turning back” on evidence-based programs. Robinson, now a member of the criminology faculty at George Mason University, said that officials “on the front line have to know what works, and how to pay for it.” She noted that bipartisan justice reform plans had been approved in recent years in such conservative states as Georgia, Louisiana and North Dakota.

Her comments came at the annual gathering sponsored by the Center for Evidence-Based Crime Policy at the George Mason campus, in northern Virginia near Washington, D.C.. The session opened with a discussion on the “Progress of Evidence-Based Crime Policy in the Last Three Decades.”

Some critics have expressed doubt that the new administration will base policies on scientific evidence, noting Trump’s professed disbelief in global warming and Attorney General Jeff Sessions’ advocacy of tough-on-crime practices that studies have found ineffective....

Denise O’Donnell, who headed the Justice Department’s Bureau of Justice Assistance under Obama, said many U.S. policing leaders have concluded that “there is power in data.” She cited such developments as the use of public opinion surveys by police departments in formulating policies on officers’ body-worn cameras.

James Burch, a vice president of the Washington, D.C.-based Police Foundation and a former Justice Department official, offered a “qualified yes” to the question of whether evidence-based criminal justice practices will continue under Trump. Burch said he detected a “different tone” in discussions among police chiefs and sheriffs at national conventions in recent years. Law enforcement officials are asking themselves “how do we hold ourselves accountable?” he said....

Speakers pointed out that in opening a national “summit” on crime reduction and public safety last week, Sessions said that in a new national “Public Safety Partnership” involving 12 localities, the Justice Department will provide “diagnostic teams” to “assess the local factors driving increased violent crime, and will help local leaders develop strategies to address those factors.”

June 27, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, June 24, 2017

Former DAG Sally Yates makes the case against AG Sessions new federal charging and sentencing policies

Former Deputy Attorney General Sally Yates that this new Washington Post commentary under the headline "Making America scared again won’t make us safer." Here are excerpts:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the “lock them all up and throw away the key” approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

But last month, Attorney General Jeff Sessions rolled back the clock to the 1980s, reinstating the harsh, indiscriminate use of mandatory minimum drug sentences imposed at the height of the crack epidemic.  Sessions attempted to justify his directive in a Post op-ed last weekend, stoking fear by claiming that as a result of then-Attorney General Eric H. Holder Jr.’s Smart on Crime policy, the United States is gripped by a rising epidemic of violent crime that can only be cured by putting more drug offenders in jail for more time.

That argument just isn’t supported by the facts.  Not only are violent crime rates still at historic lows — nearly half of what they were when I became a federal prosecutor in 1989 — but there is also no evidence that the increase in violent crime some cities have experienced is the result of drug offenders not serving enough time in prison.  In fact, a recent study by the bipartisan U.S. Sentencing Commission found that drug defendants with shorter sentences were actually slightly less likely to commit crimes when released than those sentenced under older, more severe penalties.

Contrary to Sessions’s assertions, Smart on Crime focused our limited federal resources on cases that had the greatest impact on our communities — the most dangerous defendants and most complex cases. As a result, prosecutors charged more defendants with murder, assault, gun crimes and robbery than ever before.  And a greater percentage of drug prosecutions targeted kingpins and drug dealers with guns.

During my 27 years at the Justice Department, I prosecuted criminals at the heart of the international drug trade, from high-level narcotics traffickers to violent gang leaders. And I had no hesitation about asking a judge to impose long prison terms in those cases.  But there’s a big difference between a cartel boss and a low-level courier. As the Sentencing Commission found, part of the problem with harsh mandatory-minimum laws passed a generation ago is that they use the weight of the drugs involved in the offense as a proxy for seriousness of the crime — to the exclusion of virtually all other considerations, including the dangerousness of the offender.  Looking back, it’s clear that the mandatory-minimum laws cast too broad a net and, as a result, some low-level defendants are serving far longer sentences than are necessary — 20 years, 30 years, even mandatory life sentences, for nonviolent drug offenses.

Under Smart on Crime, the Justice Department took a more targeted approach, reserving the harshest of those penalties for the most violent and significant drug traffickers and encouraging prosecutors to use their discretion not to seek mandatory minimum sentences for lower-level, nonviolent offenders.  Sessions’s new directive essentially reverses that progress, limiting prosecutors’ ability to use their judgment to ensure the punishment fits the crime....

While there is always room to debate the most effective approach to criminal justice, that debate should be based on facts, not fear. It’s time to move past the campaign-style rhetoric of being “tough” or “soft” on crime. Justice and the safety of our communities depend on it.

Prior recent related posts:

June 24, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Thursday, June 22, 2017

Are federal judges already getting a little tougher at sentencing in the Trump era?

The question in the title of this post was my first thought after looking through this new federal sentencing data released by the US Sentencing Commission today.  The data that really caught my eye is on Table 12, which shows that in the most recent quarter (running from January 1 to March 31), less than 20% of federal cases involved a judge-initiated departure/variance below the guideline range (19.9% to be exact), and 2.9% of cases involved a judge-initiated departure/variance above the guideline range.  The last time that less than 20% of federal cases involved a judge-initiated departure/variance below the guideline range was in the fourth quarter of 2013, and I do not believe there has ever been a quarter in which so many cases involved an above-guideline sentence.

Because federal sentencing data moves always around a bit from quarter-to-quarter, and because case-load mixes can vary from quarter-to-quarter, these small statistical changes I have noticed here may just be a coincidental blip rather than a reflection of the impact of tough-on-crime talk from the Trump Administration and its Department of Justice.  (Nevertheless, because the federal system currently sentences over 16,000 cases per quarter, even small statistical changes represent hundreds of defendants.)  We will have to see in subsequent USSC data runs whether this new pattern of fewer below-guideline sentences and more above-guideline sentences persists.

Critically, the period covered by this USSC federal sentencing data predates the May issuance by Attorney General Jeff Sessions of new charging and sentencing guidance for federal prosecutors.   I find it notable and interesting that federal judges may have already been responding in some (small) sentencing ways to the tough-on-crime talk from the Trump Administration even before AG Sessions formally toughened up federal prosecutorial policies and practices.

June 22, 2017 in Criminal justice in the Trump Administration, Data on sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

"Jeff Sessions wants a new war on drugs. It won't work."

The title of this post is the headline of this new Washington Post commentary authored by David Cole, who is the national legal director of the American Civil Liberties Union, and Marc Mauer, who is executive director of the Sentencing Project. Here are excerpts:

Attorney General Jeff Sessions is right to be concerned about recent increases in violent crime in some of our nation’s largest cities, as well as a tragic rise in drug overdoses nationwide [“Lax drug enforcement means more violence,” op-ed, June 18].  But there is little reason to believe that his response — reviving the failed “war on drugs” and imposing more mandatory minimums on nonviolent drug offenders — will do anything to solve the problem.  His prescription contravenes a growing bipartisan consensus that the war on drugs has not worked. And it would exacerbate mass incarceration, the most pressing civil rights problem of the day.

Sessions’s first mistake is to conflate correlation and causation. He argues that the rise in murder rates in 2015 was somehow related to his predecessor Eric Holder’s August 2013 directive scaling back federal prosecutions in lower-level drug cases.  That policy urged prosecutors to reserve the most serious charges for high-level offenses.  Holder directed them to avoid unnecessarily harsh mandatory minimum sentences for defendants whose conduct involved no actual or threatened violence, and who had no leadership role in criminal enterprises or gangs, no substantial ties to drug trafficking organizations and no significant criminal history....  Sessions offers no evidence that this policy caused the recent spikes in violent crime or drug overdoses. There are three reasons to doubt that there is any significant connection between the two.

First, federal prosecutors handle fewer than 10 percent of all criminal cases, so a modest change in their charging policy with respect to a subset of drug cases is unlikely to have a nationwide impact on crime.  The other 90 percent of criminal prosecution is conducted by state prosecutors, who were not affected by Holder’s policy.  Second, the few individuals who benefited from Holder’s policy by definition lacked a sustained history of crime or violence or any connections to major drug traffickers.  Third, the increases in violent crime that Sessions cites are not nationally uniform, which one would expect if they were attributable to federal policy.  In 2015, murder rates rose in Chicago, Cleveland and Baltimore, to be sure.  But they declined in Boston and El Paso, and stayed relatively steady in New York, Las Vegas, Detroit and Atlanta.  If federal drug policy were responsible for the changes, we would not see such dramatic variances from city to city.

Nor is there any evidence that increases in drug overdoses have anything to do with shorter sentences for a small subset of nonviolent drug offenders in federal courts.  Again, the vast majority of drug prosecutions are in state court under state law and are unaffected by the attorney general’s policies.  And the rise in drug overdoses is a direct result of the opioid and related heroin epidemics, which have been caused principally by increased access to prescription painkillers from doctors and pill mills.  That tragic development calls for treatment of addicts and closer regulation of doctors, not mandatory minimums imposed on street-level drug sellers, who are easily replaced in communities that have few lawful job opportunities.

Most disturbing, Sessions seems to have no concern for the fact that the United States leads the world in incarceration; that its prison population is disproportionately black, Hispanic and poor; or that incarceration inflicts deep and long-lasting costs on the very communities most vulnerable to crime in the first place.... Advocates as diverse as the Koch brothers and George Soros, the Center for American Progress and Americans for Tax Reform, the American Civil Liberties Union and Right on Crime agree that we need to scale back the harshness of our criminal justice system.

Rather than expanding the drug war, Sessions would be smarter to examine local conditions that influence crime and violence, including policing strategies, availability of guns, community engagement and concentrated poverty.  Responding to those underlying problems, and restoring trust through consent decrees that reduce police abuse, hold considerably more promise of producing public safety. Sessions’s revival of the failed policies of the past, by contrast, has little hope of reducing violent crime or drug overdoses. 

Prior recent related posts:

June 22, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, June 20, 2017

Intricate disputation of AG Sessions' recent defense of his new tougher federal charging/sentencing policy

As noted in this weekend post, the US Attorney General today took the the editorial pages of the Washington Post to make the case for his new tough charging and sentencing guidance for federal prosecutors via this opinion piece.  Today, the Washington Post has this new opinion piece by Radley Balko under the the headline "Here are all the ways Jeff Sessions is wrong about drug sentencing."  

The headline of the Balko piece serves as something of a summary of its contents, which involves an intricate "a line-by-line review" of all the key points made by AG Sessions in his piece.  Rather than try to capture all the particulars of the Balko piece here, I will just quote some of his closing commentary: 

Certainly, drug trafficking lowers the quality of life in a community.  Turf wars between drug gangs can make those communities more dangerous.  But again, Sessions himself concedes that prohibition itself creates these problems.  It’s pretty rare that liquor store employees erupt in gun fights over turf.  And if prohibition begets violence, the only way the solution to an increase in violence can be more prohibition is if the new prohibition wipes out drug trafficking entirely.  Otherwise, more prohibition usually just means more violence.  Knock out one major dealer, and new dealers will emerge and go to war to take his place.

We all know that rescinding the Holder memo isn’t going to end drug trafficking.  It isn’t going to affect the opioid crisis.  It isn’t going to move the needle either way on the violence in Chicago or Baltimore.  The most likely outcome is that a few hundred more nonviolent offenders spend a lot more time in federal prison than they otherwise would have.  I suppose it will also give Sessions the satisfaction of having rolled back one of the few substantive criminal-justice reforms of the Obama administration.  But the crime rate and the violence in America’s cities will rise or fall independent of the Holder memo.

The one thing we can all depend on — the one sure thing: Illicit drugs will continue to be available to pretty much anyone who wants to use them.

Prior recent related post:

AG Jeff Sessions makes the case for his new tougher federal charging/sentencing policy

June 20, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

AG Sessions announces notable new DOJ crime-fighting plans to be rolled out in a dozen cities

NPSP200Today marks the start of the Justice Department's National Summit on Crime Reduction and Public Safety, and this summit is already producing some interesting news.  This Washington Examiner article, headlined "Jeff Sessions announces plan to help 12 cities find ways to fight crime," provides these basics:

Attorney General Jeff Sessions on Tuesday announced a new initiative to combat violence and bolster public safety by promising federal resources to help 12 cities strategize on the best ways to fight crime.  The new federal effort came ahead of Sessions' speech at the opening of the National Summit on Crime Reduction and Public Safety outside of Washington.

"Turning back the recent troubling increase of violent crime in our country is a top priority of the Department of Justice and the Trump Administration, as we work to fulfill the president's promise to make America safe again," Sessions said in a statement.

The initiative will start with 12 cities joining the Justice Department's newly formed National Public Safety Partnership, dubbed "PSP."  The new PSP program comes on the heels of President Trump's February executive order on public safety.  According to the Justice Department, the initial 12 cities are that ones need "significant assistance" in combating "gun crime, drug trafficking and gang violence."

The Department of Justice will work with American cities suffering from serious violent crime problems.  Our new National Public Safety Partnership program will help these communities build up their own capacity to fight crime, by making use of data-driven, evidence-based strategies tailored to specific local concerns, and by drawing upon the expertise and resources of our department," Sessions said.

The 12 cities are:

  • Birmingham, Ala.
  • Indianapolis, Ind.
  • Memphis, Tenn.
  • Toledo, Ohio
  • Baton Rouge, La.
  • Buffalo, N.Y.
  • Cincinnati, Ohio
  • Houston, Texas
  • Jackson, Tenn.
  • Kansas City, Mo.
  • Lansing, Mich.
  • Springfield, Ill.

More cities are expected to be announced in the coming months, the Justice Department said.

Notably missing from the list are Chicago and Baltimore, two cities that have been rocked by gun violence and homicides this year.

AG Sessions also gave this lengthy speech to open the National Summit on Crime Reduction and Public Safety, and that speech included both a short discussion of his recent charging/sentencing memo and this new initiative:

[L]ast month I issued a memo to all federal prosecutors establishing a new charging policy. This policy makes clear that Department prosecutors generally will charge the most serious, readily provable offenses supported by the facts of the case. Instead of barring prosecutors from faithfully enforcing the law, this charging policy empowers these trusted professionals to apply the law fairly — and allows them to use discretion where a strict application of the law would result in an injustice.

That is how good law enforcement has always worked. This policy ensures that we uphold our constitutional duty to faithfully execute the laws, our ethical duty of candor to the courts, and our obligation to the American people to ensure that justice is done.

And today, the Justice Department is taking another important step, by launching a new program called the National Public Safety Partnership, or PSP.  This program will help communities suffering from serious violent crime problems to build up their capacity to fight crime.  The PSP program will use data-driven, evidence-based strategies, and draw upon the expertise of people in the Department of Justice, as well as others.

Our Department’s components will also support the PSP, working in collaboration with our local partners.  This program will enhance our support of state, local, and tribal law enforcement, so we can more effectively investigate and prosecute violent criminals — especially those involved in gun crimes, drug trafficking, and gang violence.

Based on local needs, the PSP program will provide two complementary but separate tiers of help — Diagnostics Teams and Operations Teams.  Diagnostic Teams will assess the local factors driving increased violent crime, and will help local leaders develop strategies to address those factors, over a period of up to 18 months.  Operations Teams will provide rigorous training and coaching over a three-year period.  They will help communities form a lasting coordination structure among federal, state, local, and tribal law enforcement agencies and prosecutors.  Among other things, Operations Teams will provide enhanced crime trend analysis and comprehensive gun-crime intelligence programs.

We have selected 12 initial cities to take part in the Public Safety Partnership program, along with the 10 cities who took part in a pilot concept known as the Violence Reduction Network.  We anticipate announcing more PSP sites later this year.

And the new National Public Safety Partnership has this slick new website.

June 20, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Saturday, June 17, 2017

AG Jeff Sessions makes the case for his new tougher federal charging/sentencing policy

The US Attorney General today took the the editorial pages of the Washington Post to make the case for his new tough charging and sentencing guidance for federal prosecutors.  This opinion piece carries this headline: "Jeff Sessions: Being soft on sentencing means more violent crime. It’s time to get tough again."  And here are excerpts (with on particular line emphasized by me):

[I]n 2013, subject to limited exceptions, the Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence. Prosecutors were required to leave out objective facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb mass incarceration of low-level offenders, but in reality it covered offenders apprehended with large quantities of dangerous drugs.  The result was that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent.  Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.

Before that policy change, the violent crime rate in the United States had fallen steadily for two decades, reaching half of what it was in 1991.  Within one year after the Justice Department softened its approach to drug offenders, the trend of decreasing violent crime reversed. In 2015, the United States suffered the largest single-year increase in the overall violent crime rate since 1991.

And while defenders of the 2013 policy change point out that crime rates remain low compared with where they were 30 years ago, they neglect to recognize a disturbing trend that could reverse decades of progress: Violent crime is rising across the country. According to data from the FBI, there were more than 15,000 murders in the United States in 2015, representing a single-year increase of nearly 11 percent across the country. That was the largest increase since 1971. The increase in murders continued in 2016. Preliminary data from the first half of 2016 shows that large cities in the United States suffered an average increase in murders of nearly 22 percent compared with the same period from a year earlier.

As U.S. attorney general, I have a duty to protect all Americans and fulfill the president’s promise to make America safe again. Last month, after weeks of study and discussion with a host of criminal-justice participants, I issued a memorandum to all federal prosecutors regarding charging and sentencing policy that once again authorizes prosecutors to charge offenses as Congress intended. This two-page guidance instructs prosecutors to apply the laws on the books to the facts of the case in most cases, and allows them to exercise discretion where a strict application of the law would result in an injustice. Instead of barring prosecutors from faithfully enforcing the law, this policy empowers trusted professionals to apply the law fairly and exercise discretion when appropriate. That is the way good law enforcement has always worked.

Defenders of the status quo perpetuate the false story that federal prisons are filled with low-level, nonviolent drug offenders. The truth is less than 3 percent of federal offenders sentenced to imprisonment in 2016 were convicted of simple possession, and in most of those cases the defendants were drug dealers who accepted plea bargains in return for reduced sentences. Federal drug offenders include major drug traffickers, gang members, importers, manufacturers and international drug cartel members. To be subject to a five-year mandatory sentence, a criminal would have to be arrested with 100 grams or more of heroin with the intent to distribute it — that is 1,000 doses of heroin.

The truth is that while the federal government softened its approach to drug enforcement, drug abuse and violent crime surged. The availability of dangerous drugs is up, the price has dropped and the purity is at dangerously high levels. Overdose deaths from opioids have nearly tripled since 2002. Overdose deaths involving synthetic opioids rose an astonishing 73 percent in 2015. My fear is that this surge in violent crime is not a “blip,” but the start of a dangerous new trend — one that puts at risk the hard-won gains that have made our country a safer place.

Some skeptics prefer to sit on the sidelines and criticize federal efforts to combat crime. But it’s not our privileged communities that suffer the most from crime and violence. Minority communities are disproportionately impacted by violent drug trafficking. Poor neighborhoods are too often ignored in these conversations. Regardless of wealth or race, every American has the right to demand a safe neighborhood.  Those of us who are responsible for promoting public safety cannot sit back while any American communities are ravaged by crime and violence.

There are those who are concerned about the fate of drug traffickers, but the law demands I protect the lives of victims that are ruined by drug trafficking and violent crime infecting their communities. Our new, time-tested policy empowers police and prosecutors to save lives.

There are lots of reasons and lots of ways to question any efforts to directly link the recent uptick in violent crime over the last few years to changes in federal prosecutorial policies.  But I have emphasized one particular line in the opinion piece in order to help enhance understanding of the thinking behind the new Sessions Memo. The Attorney General reasonably thinks he must  "do something" in response to recent increases in violent crime, and the most obvious and easy thing for him to do is to rescind Holder-era policy guidance and return to the federal prosecutorial policies of earlier era. (Of course, the prosecutorial policies of earlier era helped swell the federal prison population dramatically and, as noted here, the Department of Justice is already predicting that federal prison populations will start growing again after notable recent declines.)  

Prior recent related posts: 

June 17, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (9)

Tuesday, June 13, 2017

Highlighting how criminal justice reformers are "going local" at the start of the Trump era

Chris Geidner has this notable lengthy new BuzzFeed News article about the work of criminal justice reform advocates under this extended headline: "Trump Loves Old School, Tough-On-Crime Policies. So Criminal Justice Liberals Are Going Local. What do you do when your progressive vision loses its spotlight from the White House?". Here is a snippet of an article the merits a read in full:

Glenn Martin, [who] is the president of JustLeadership USA, ... spent six years in prison more than two decades ago and is now helping to lead the fight to close New York City’s Rikers Island.  Closing the jail became a focus in the wake of multiple groundbreaking news stories examining its conditions — and why people are there in the first place — and a concerted, ongoing grassroots opposition. The effort to shutter the jail recently picked up backing from NYC Mayor Bill de Blasio.

Martin, who served on the year-long commission whose report recommended closing the jail, was blunt about the reasons for his local focus — which was the case even before this past November’s election.  “I never had a lot of hope that Congress was the answer to this,” he said in an interview after a student-focused event about closing Rikers that took place at the New School in Manhattan.  “In fact, it was a bipartisan coalition that got us here; forgive me if I’m not inspired by a comeback coalition trying to get us out of this mess.”

While Martin is a federal skeptic, ending the mess — America has more people in jails and prisons, both in number and percentage, than any other country on the planet — was a mission that just last year seemed to be going strongly in these and other advocates’ direction on the national stage.

In the last months of his presidency, Obama commuted a steady stream of sentences — mainly focused on those serving long prison sentences for nonviolent drug-related offenses. A bipartisan coalition on Capitol Hill was pressing for significant criminal sentencing reforms — and though Republican leadership was not moving the legislation, a younger generation of lawmakers had expressed openness or even enthusiasm for it.  Attorney General Loretta Lynch oversaw significant investigations into numerous police departments and had begun a process of ending the federal government’s reliance on private prisons — a long-sought aim of liberals.  And these promised to be merely the opening salvos in a paradigm-shifting mission: Ending mass incarceration and increasing police accountability had become popular causes for the highest level of public officials, celebrities, and intellectuals in Washington.

That momentum came to a halt in January.  Advocates are facing a very different situation now.  Trump wasn’t just disinterested in their cause — he actively campaigned against it, promising a crackdown on crime and echoing the kind of sentiments popular in the 1980s and early ’90s when crime rates were significantly higher.  (For Trump, “urban centers” — despite his having lived in one for years — remain a bad stereotype of a 1982 inner city.)  The naming of Sessions as attorney general was a doubling down of that vision: Sessions likely was the senator whose criminal justice views most closely aligned with Trump’s views.

While some remain hopeful about continuing to build federal momentum for sentencing law changes, the reality is that most federal efforts will be aimed at stopping or minimizing Trump and Sessions’ proposals — not advancing their own goals....

There are, in fact, a handful of areas where advocates see real possibilities: pressing local, even grassroots, efforts to make community change (including through local elections); backing state legislative changes where they’re possible; filing litigation where advocates think it’s needed; and partnering with business and philanthropists to fund programs that otherwise might not happen....

Passing laws and making changes locally is key to keeping the criminal justice movement’s momentum alive on a national scale.  For decades, politicians in both parties largely ran on harsher sentences and aggressive drug policy; persuading politicians that it can be done differently has become an essential piece of the local dynamic.

June 13, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)