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)

Monday, June 12, 2017

An (incomplete) accounting of the stalled state of federal statutory sentencing reform

The Atlantic has this lengthy new article providing something of an up-to-date accounting of the state of federal sentencing reform in Congress, and its first sentence serves as something of a summary: "You know a policy’s prospects are shaky when lawmakers on both teams are praying for Jared Kushner to ride in and save the day."  Here is more from the start, heart and end of the piece:

Not that Kushner isn’t a swell guy.  But Trump’s all-purpose son-in-law already had a pretty full plate (e.g., solving that whole Middle East thing) even before the feds started poking into his relations with Russia.  It seems unlikely he’ll have much bandwidth in the coming months to weigh in on Congress’s mundane domestic squabbles.  Which is why advocates of criminal-justice reform might want to take a moment to wave adios to any prospect of action in the foreseeable future....

Desperate for administration allies, reform advocates were tickled pink when Jared Kushner came to the Capitol in late March to talk reform with Grassley, Durbin, and Lee.  (The dream is that Kushner is sympathetic to reform because his dad did a stint in federal prison.)  Senate aides say it was more a listening session than an offer of support. But it gave disheartened advocates a shred of hope and emboldened them to renew their quest for backers.  Post-meeting, Grassley announced that he would know the administration’s position on reform legislation “in three weeks.”

Two-plus months later, the White House has yet to offer further guidance.

Meanwhile, Attorney General Sessions has jammed his thumb deep into reformers’ eye sockets.  Last month, his office issued a directive that federal prosecutors should pursue the toughest possible charges and sentences for even nonviolent drug offenders (a reversal of Obama-era policy). Reform fans on and off the Hill were dismayed.  (A trio of Senate Democrats from the Judiciary Committee had publicly petitioned Sessions not to go in this direction.)....

Complicating matters further, one of last year’s key SRCA backers, Senator John Cornyn, has begun toying with a new bill of his own. Cornyn is collaborating with House Homeland Security Chairman Michael McCaul on a measure that would jack up mandatory minimums for certain immigrants and for people who commit violent crimes against law enforcement officials.  This move isn’t a total about-face for Cornyn. Last year, he introduced a “Back the Blue” bill establishing steep mandatory minimums for crimes against law enforcement.  More broadly, multiple Hill aides point out that Cornyn has always been in the “back-end” reform camp and has made clear he’d be just as happy to split his pet programs back off of SRCA.

At this point, folks on both sides of the aisle see Cornyn’s emerging proposal as more of a messaging move than an attempt at serious legislation. Even so, a competing bill is hardly welcome news to his reform colleagues. As a Judiciary Committee staffer noted, “A good amount of work went into putting together [SRCA]. It’s like an ecosystem: Change one thing and something else is changed.”

Bottom line, say Hill aides: For anything to happen on criminal-justice reform, Congress will need a kick in the pants from the other end of Pennsylvania Avenue. “It’s going to be difficult to move forward if we’re not able to build support in the administration,” said the Judiciary Committee staffer.

With Sessions charging in the opposite direction, Kushner is seen as the cause’s last, best hope. If Trump’s beloved son-in-law would climb on board, say aides, the situation could get super interesting in a Jared vs. Jeff reality TV-style smackdown. Said a senior Democratic staffer, “If Kushner gets behind this effort and decides this is good for Trump, we’re gonna find out whether he has any influence with the president or not.” Alas, for now Kushner is preoccupied with his own “drama,” sighed a Republican aide, noting, “We’re still trying to get a face-to-face with him.”

Of course, with each passing day, it matters less what Kushner does. Congress is grotesquely behind in handling even its top priorities of healthcare and tax reform, and things will get exponentially worse as the fall budget battles approach. Even the most upbeat reform advocates sound blue when discussing the congressional calendar. “The pace at which the Senate is moving right now is a problem,” acknowledged the Judiciary Committee staffer.

Translation: Despite its lovely, bipartisan promise, the prospects for significant criminal-justice reform are — if not totally dead — only slightly worse than the odds that Kushner will go down in history as father of the Israeli-Palestinian peace accords.

This article is rich with important inside-the-Beltway details, but it misses a bit of the broader context that also plays a role in federal statutory sentencing reform being stalled.  Specifically, the significant up-tick in violent crime in recent years (and also, to a lesser extent, various issues related to the opioid epidemic) has provided reform reform agnostics with a basis to believe we should tap the brakes on any federal sentencing reform efforts.   And this is why legislative reform to reduce sentences is always such a hard slog: when crime is down, the tough-on-crime crowd says toughness is working and we should not risk another approach; when crime is going up, the tough-on-crime crowd says we have to we tough and tougher to deal with increasing crimes.

June 12, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)

Friday, June 09, 2017

Reviewing Prez Trump's judicial nomination success so far (and noting Prez Obama's early relative failings)

The New Republic has this notable and important article which highlights one big reason why notable and important members of the GOP are unlikely to defect from Team Trump anytime soon.  The full headline of the article accounts in part for my post title (with my emphasis added): "Trump’s Judicial Picks Are Keeping Republicans Happy — and Quiet: In a rare show of competency, he's tapped five times as many judges as Obama had at this point — and conservatives are delighted." Here are excerpts:

The most critical government document released on Wednesday — the one that’ll have the most wide-ranging impact in the future — was not James Comey’s prepared testimony for the Senate Intelligence Committee about his interactions with Donald Trump.  It was a simple press release, issued by the White House, announcing a “fourth wave” of judicial nominations since the Trump inauguration.  The eleven nominations included four district court judgeships, three for the U.S. Circuit Court of Appeals, three for the Court of Appeals for Veterans Claims, and one for the Court of Federal Claims.  Conservatives were uniformly delighted.

All told, Trump has nominated 22 judges to fill vacancies across the federal bench.  Thus far, only two — Supreme Court Justice Neil Gorsuch and Sixth Circuit Court Judge Amul Thapar — have been confirmed.  But the prospect of filling vacancies over time explains a lot about why congressional Republicans have stood by Trump, despite the erratic and stormy start to his presidency.  As long as Trump keeps funneling a steady supply of conservative jurists to the Senate, in a bid to dramatically reshape the federal courts, Republicans can go to bed happy that they’re fulfilling at least one major element of their political project.

Judicial nominations are the one area where the Trump administration is “running like a fine-tuned machine,” as the president boasted in February.  In fact, Trump’s team has far outstripped the efforts of his predecessor.  By this date eight years ago, President Obama had made just four judicial nominations: Supreme Court Justice Sonia Sotomayor, and three nominations for the Court of Appeals.

It is true that Trump was blessed — thanks mostly to a virtual freeze on judicial confirmations in the last two years of the Obama presidency — with more opportunities than Obama.  According to the American Bar Association, at the beginning of June 2009 there were 72 judicial vacancies; today there are 132.  But even given that, if you want to do this by percentages, President Trump, at this point in his presidency, has nominated replacements for 16.7 percent of all judicial vacancies; President Obama by this time had nominated replacements for just 5.6 percent.

What accounts for this rare outburst of competency from the Trump White House?  Certainly, judicial nominations are a lighter lift than legislation; thanks to changes to the Senate filibuster made by both parties, judges at all levels now need only 50 votes for passage, meaning Republicans can confirm them without Democratic support.  Those rules were still in place in 2009, and throughout Obama’s first term. He did have a filibuster-proof majority for brief periods, from July–August 2009 and September 2009–February 2010.  But the former president certainly had less margin for error....

In the judicial arena, at least, Trump is fulfilling the duty laid out by Grover Norquist when he said that conservatives just need a president “with enough working digits to handle a pen.” His unpopularity and the overarching Russia investigation aside, he’s signing off on the nominations that conservatives want. If Republicans in Congress manage to get their act together on legislation, he’ll sign those bills into law as well. The GOP won’t abandon him because he’s giving them what they want.

I have left out some of the political spin that this article adds to this discussion largely because I think it most worth stressing how relatively successful Prez Trump has been in this arena despite difficulties elsewhere especially in contrast to where the Obama Administration was at this point.  The particular irony, of course, is that Prez Trump was a businessman before getting into politics while Prez Obama was a lawyer and law professor.  But this point may provide an explanation rather than an irony: Prez Trump may be much more willing to accept and move forward with judicial recommendations from others than Prez Obama might have been.  (Also, the Trump team gave themselves a kind of running start by putting together a SCOTUS possibilities list during the 2016 campaign.)

June 9, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (12)

Thursday, June 08, 2017

Noticing that the Trump DOJ budget predicts a 2% growth in the federal prison population in fiscal year 2018

The Wall Street Journal has this new article noting that the Trump Administration is already making plans for an increased federal prison population.  The article is headlined "Federal Prison Population Expected to Grow Under Trump: Increase is anticipated in prosecutions of illegal immigrants, drug offenders."  Here is how it gets started:

The federal prison population is expected to grow next year by 4,171 to a total of 191,493 as the Trump administration steps up prosecutions of illegal immigrants and drug offenders, reversing the trend toward a smaller prison population under former President Barack Obama.

That estimate of 2% growth in fiscal 2018 was tucked into in a Justice Department budget proposal posted online after the Trump administration's broader spending plan was released two weeks ago.  The proposed budget also calls for 300 new federal prosecutors and 75 new immigration judges.

June 8, 2017 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Wednesday, June 07, 2017

Prof Stephanos Bibas among new slate of notable nominees to the circuit courts by Prez Trump

5914168_origThis big news in the world of Presidential nominations this morning would seem to be Prez Trump's decision, reported here, to nominate Christopher Wray to serve as head of the FBI.  Long-time and hard-core sentencing fans will perhaps recall that Wray was an Assistant AG for the Justice Department back when Blakely and Booker came down, so there is an interesting sentencing history that his name necessarily evokes.

But, other nomination news from inside-the-Beltway should be of even more interest to long-time and hard-core sentencing fans.  According to this Washington Times article, sentencing scholar Stephanos Bibas is getting tapped for an open position on the Third Circuit.  Here are the details from the press account, along with a bit of notable commentary therein:

President Trump announced a new round of 11 judicial nominations Wednesday, including three nominees for high-profile federal appeals courts.

One of the nominees, Colorado Supreme Court Justice Allison H. Eid, is being tapped by the president to fill a vacancy on the 10th U.S. Circuit Court of Appeals created when Justice Neil Gorsuch was confirmed for the Supreme Court in April. Justice Eid was on Mr. Trump’s list of conservative potential Supreme Court nominees that he presented to voters during the presidential campaign last year. She has served on Colorado’s high court since 2006, and previously was the state’s solicitor general.

“These appointments follow the successful nomination and confirmation of associate Justice Neil M. Gorsuch to the United States Supreme Court, the successful nomination and confirmation of Judge Amul R. Thapar of Kentucky to serve as a circuit judge on the United States Court of Appeals for the Sixth Circuit, and the nomination of numerous candidates to other judgeships,” the White House said in a statement.

Mr. Trump also is nominating U.S. District Court Judge Ralph R. Erickson of North Dakota for the 8th U.S. Circuit Court of Appeals, and University of Pennsylvania Law School professor Stephanos Bibas to serve on the 3rd U.S. Circuit Court of Appeals. Judge Erickson has served on the district court since 2003. The White House called Mr. Bibas, director of the university’s Supreme Court Clinic, “one of the nation”s leading experts in criminal law and procedure.” He has argued six cases before the Supreme Court, taught at the University of Chicago Law School and served from 1998 to 2000 as an assistant U.S. Attorney in the Southern District of New York....

“President Trump continues to put forward superlative judicial nominees with sterling credentials and impressive intellects,” said Jonathan Adler, director of the Center for Business Law & Regulation at Case Western Reserve University School of Law. “It’s especially notable that President Trump continues to pick current and former academics for the appellate bench — more so than any recent president. This will only magnify the impact his nominees are likely to have on the federal courts.”

I have previously noted in this space Prez Trump's apparent affinity for academics in his early judicial selections (as well as for folks with some sentencing history).  And I have a particular affinity for Prof Bibas not only because of his long history as a sentencing scholar, but also because we worked together on a Supreme Court case Tapia in which he was an appointed amicus and we co-authored one of my favorite articles, Making Sentencing Sensible.  Stephanos and I also co-authored an essay about capital sentencing, Engaging Capital Emotions.

Also, long-time and eagle-eyed blog readers may recall that Prof Bibas did a stint of guest-blogging in this space in conjunction with the release of his book, "The Machinery of Criminal Justice," which was published in 2012 by Oxford University Press and is available here.  All of his posts are linked under the category tab, Guest blogging by Professor Stephanos Bibas, and here are links to my introduction and then to all his substantive posts:

June 7, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (18)

Brennan Center provides a "final" accounting of rising violent crime in 2016

The folks at the Brennan Center have this new report titled "Crime in 2016: Final Year-End Data" authored by Ames Grawert and James Cullen. This Brennan Center webpage includes a link to the report, other past reports on crime rates, and this accounting of the report's primary findings:

Chicago accounted for more than 55 percent of the murder increase last year, according to a new analysis of crime data by the Brennan Center. The overall national crime rate remained stable.

This analysis finds that Americans are safer today than they have been at almost any time in the past 25 years.

Based on new year-end data collected from police departments in the 30 largest cities, crime in 2016 remained at historic lows across the country. Although there are some troubling increases in murder in specific cities, these trends do not signal the start of a new national crime wave. What’s more startling, this analysis finds that the increase in murders is even more concentrated than initially expected. Chicago now accounts for more than 55.1 percent of the total increase in urban murders — up from an earlier projection of 43.7 percent.

Final Year-End Findings:

  • The overall crime rate in the 30 largest cities in 2016 remained largely unchanged from last year. Specifically, overall crime rose by 0.9 percent, essentially remaining stable.

  • The murder rate rose in this group of cities last year by 13.1 percent.

  • Alarmingly, Chicago accounted for 55.1 percent of the total increase in urban murders — more than preliminary data suggested.

  • A similar phenomenon occurred in 2015, when three cities — Baltimore, Chicago, and Washington, D.C. — accounted for more than half (53.5 percent) of the increase in murders.

  • Some cities are experiencing an increase in murder while other forms of crime remain relatively low. Concerns about a national crime wave are premature, but these trends suggest a need to understand how and why murder is increasing in these cities.

  • Violent crime rates rose slightly. The 4.2 percent increase was driven by Chicago (16.5 percent) and Baltimore (18.6 percent). Violent crime still remains near the bottom of the nation’s 30-year downward trend.

These crime data, however one might view or spin them, help ensure that Justice Department officials like Jeff Sessions Steve Cook have strong talking points whenever they are eager to make the case for tougher federal criminal justice policies and practices.  Moreover, they can help support a pitch for sentencing toughness that can be enduring: if crime keep going up in 2017 and beyond, then the case gets made that even great toughness is needed; if crime starts going down in 2017 or later, then the case gets made that toughness works.

June 7, 2017 in Criminal justice in the Trump Administration, National and State Crime Data | Permalink | Comments (2)

Tuesday, June 06, 2017

"Where Are the United States Attorneys?"

The title of this post is the title of this New York Times editorial, which starts and ends this way:

Three months after President Trump abruptly fired half of the nation’s 93 United States attorneys, following the resignations of the other half, he has yet to replace a single one.

It’s bizarre — and revealing — that a man who called himself the “law and order candidate” during the 2016 campaign and spoke of “lawless chaos” in his address to Congress would permit such a leadership vacuum at federal prosecutors’ offices around the country.  United States attorneys are responsible for prosecuting terrorism offenses, serious financial fraud, public corruption, crimes related to gang activity, drug trafficking and all other federal crimes....

Especially when it comes to higher-profile, long-term cases, Senate-confirmed heads are needed to work in coordination with the Justice Department.  The United States attorneys are only the tip of the iceberg.  Mr. Trump has yet to nominate a new F.B.I. chief after firing the former director, James Comey, last month.  The Justice Department’s criminal, civil and national-security divisions are all under temporary leadership.  These delays are strange even for a White House that ran what one former official called the “slowest transition in decades” and that has dealt with key government posts with all the urgency of a summer barbecue.

While his hiring freeze, which is leaving many lower federal jobs unfilled, is part of a broader strategy to hobble or suffocate entire federal agencies, this seems less deliberate and harder to understand.  The prosecutors certainly won’t be coming on board anytime soon.  Even in a fully functioning administration, it takes months for nominees to be screened by the F.B.I. and approved by the Senate.

One familiar rationale — that Mr. Trump wasn’t prepared because he never expected to win — may account for some of the delay, but it’s an increasingly embarrassing excuse.  You don’t run for president on a major-party ticket as a lark, and you don’t pink-slip top federal prosecutors en masse without a long list of qualified candidates in your back pocket.

There are two other obvious, and perhaps simpler, explanations, and both may be correct.  Mr. Trump does not actually believe in or care about his campaign claim of “lawless chaos” in our streets.  And Mr. Trump is not a good manager — not of his businesses, certainly, and not of the vastly larger, more complex organization he now runs, the one that matters to the well-being of every American.

June 6, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

Might AG Sessions resign due to tension with Prez Trump?

As I write the question in the title of this post, I already realize the answer surely is "No."  But the very fact the question arises is somewhat remarkable, and this ABC News report is the reason it does.  The report is headlined "Jeff Sessions suggested he could resign amid rising tension with President Trump," and here are excerpts:

As the White House braces for former FBI Director James Comey’s testimony Thursday, sources tell ABC News the relationship between President Donald Trump and Attorney General Jeff Sessions has become so tense that Sessions at one point recently even suggested he could resign.

The friction between the two men stems from the attorney general's abrupt decision in March to recuse himself from anything related to the Russia investigation -- a decision the president only learned about minutes before Sessions announced it publicly. Multiple sources say the recusal is one of the top disappointments of his presidency so far and one the president has remained fixated on.

Trump’s anger over the recusal has not diminished with time. Two sources close to the president say he has lashed out repeatedly at the attorney general in private meetings, blaming the recusal for the expansion of the Russia investigation, now overseen by Special Counsel and former FBI Director Robert Mueller.

But sources say the frustration runs both ways, prompting the resignation offer from Sessions. Asked by ABC News if the attorney general had threatened or offered to resign, Justice Department spokesperson Sarah Isgur Flores declined to comment.

The New York Times is on this beat with these recent articles on this front:

"Trump Grows Discontented With Attorney General Jeff Sessions"

"Sessions Is Said to Have Offered to Resign"

Dare I say that perhaps AG Session has offered to resign because he is now just so sick and tired of winning?

June 6, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (6)

Discouraging account of the state of federal criminal justice reform come summer 2017

On the heels of big talk in summer 2013 from then-Attorney General Eric Holder about criminal justice reforms, some pundits (as noted here) were quick to suggest that momentum for major federal sentencing reform might be unstoppable. Ever the political pessimist, I was then quite hopeful but still not all that optimistic that Congress would find a way to enact some sweeping federal statutory sentencing reforms before too long.

But fast forward four years to the coming summer 2017, and there no seems to be very little reason to be hopeful or optimistic about anything getting done in this space anytime soon. This new Marshall Project feature article by Justin George highlights that this is not only a story of a new Prez and Attorney General with different criminal justice priorities, but also a story of reform voices on the left and right coming to battle each other in ways that may ensure there in no path forward. The article is headlined "Can This Marriage Be Saved?: Left and right came together on criminal justice reform. Then Trump happened." Here are a few notable excerpts:

John Malcolm [is] a legal scholar at the Heritage Foundation, the influential conservative think tank [and] a member of an unlikely alliance that hopes to end America’s status as the world’s most prolific jailer: liberals who find the criminal justice system racist, inequitable, and inhumane are joining forces with conservatives — such as Malcolm — who find it wasteful, harmful to families, and heavy-handed. Last year, reformers on both sides agreed to support a proposed law that would relax mandatory minimum sentences, giving federal judges somewhat more discretion in sentencing and helping low-level offenders avoid prison time. It was a modest proposal, compared to the size of the problem, but the bill attracted a rare amount of bipartisan support in Washington.

Despite that support, however, the measure failed to pass Congress. Some Republicans wanted the law to include a provision on “mens rea” reform, which would expand the category of crimes in which a defendant’s criminal intent is a factor in determining guilt. Democrats, convinced that such a provision would make it harder for prosecutors to go after corporate crime, resisted. The bill stalled, then died—and so did some of the spirit of common cause. Last year, as the contentious presidential election neared its conclusion, the alliance started to come undone.

Liberal members of the coalition, such as Jesselyn McCurdy, a lobbyist for the American Civil Liberties Union, say that the reform bill failed because obstructionist Republicans didn’t want to give President Obama anything he could claim as a bipartisan achievement on the verge of the election. But, as Malcolm sees it, it was Democrats, confident that Hillary Clinton would be president and that the Republican grip on Congress would be loosened, who decided that they no longer needed to compromise. “People’s positions became hardened,” Malcolm said. Conservatives, he added, also bristled at the “anti-police” rhetoric of the Black Lives Matter movement and at the left’s emphasis on the racial disparities of the criminal justice system.... Groups from the right and left still meet regularly on criminal justice issues, including at a monthly work luncheon that Malcolm hosts, at the Heritage Foundation. But momentum has been hard to regain. “Hurt feelings are impacting meaningful discussion,” Malcolm said. “For the right, the criticism of the left is ‘Your messaging stinks, and you don’t make it easy to pass stuff, because you make this difficult for conservatives to sign on to,’ ” Kevin Ring, the president of Families Against Mandatory Minimums, said. “And, for the left, the criticism of the right was ‘You didn't try that hard.’ ”...

But [Senator Mike] Lee, who still believes that a reform bill can get through Congress, said he is not so sure Sessions will be an impediment. “Jeff Sessions is in a different role now — he’s no longer a lawmaker,” Lee said. “I’ve had conversations with people in the White House and elsewhere in the administration in which I’ve explained to them this could be a really good bipartisan win, a nice bipartisan moment, and I’ve been working with the administration to figure out what level of comfort they have with it and what we need to do in order to move forward.” (The Department of Justice said that Sessions was not available for comment, and the White House did not respond to requests to interview Kushner for this story.)...

But the only notable criminal justice measures showing signs of life in the House so far this year would only create more opportunities to put people in prison or to hand out longer sentences, such as a measure expanding the powers of federal probation officers to arrest anyone who interferes with their work. Given this inhospitable climate, Ring, of Families Against Mandatory Minimums, said that perhaps the best course for reformers is to hope for “benign neglect” from the Trump administration and to focus on repairing the damage done to the alliance by the “emotional fallout” of 2016. Maybe, he said, “this is time for us to put our head down and start winning hearts and minds.”

June 6, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Monday, June 05, 2017

Deputy AG Rosenstein suggests rising crime justifies prosecutorial shift from Holder Memo to Sessions Memo

I just saw this AP article from late last week reporting on an interesting interview with the second in charge at the US Department of Justice.  Here are the details:

The Justice Department’s new policy urging harsher punishments for most criminals is meant to target the worst gang members and drug traffickers, Deputy Attorney General Rod Rosenstein said Friday in an effort to mollify critics who fear a revival of drug war policies. “We’re not about filling prisons,” Rosenstein told The Associated Press in his first interview since becoming the Justice Department’s No. 2 official. “The mission is to reduce violent crime and drug abuse, and this helps us do that.”

Rosenstein emphasized the department’s plan to fight violent crime that includes prosecutors’ ability to decide whether to level charges that carry mandatory minimum sentences — a carrots-and-sticks approach for gaining cooperation. He acknowledged that federal prosecutors will sometimes charge lower-level criminals to take down entire gangs but “that’s the exception not the rule.”...

Attorney General Jeff Sessions’ directive last month urges federal prosecutors to seek the steepest penalties for most crime suspects, a reversal of Obama-era policies that aimed to reduce the federal prison population and show more leniency to lower-level drug offenders. Sessions’ Democratic predecessor, Eric Holder, told prosecutors they could, in some cases, leave drug quantities out of documents to avoid charging suspects with crimes that trigger years-long mandatory minimum punishments.

Some prosecutors have said they felt constrained by the Holder directive. Under that old rule, they worried about a loss of plea-bargaining leverage — and a key inducement for cooperation — without the ability to more freely pursue charges that carry mandatory minimum sentences.

Advocates for changes to the criminal justice system assailed the reversal as a return to drug-war era policies that helped ravage minority communities and put even nonviolent drug offenders in prison for long terms. Among the sharpest critics was Holder, who called it an “ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety.”

Rosenstein said he dutifully implemented Holder’s policy when it was issued in 2013 but believes recent spikes in violence in some cities necessitate a new approach. Supporters of Holder’s policy “felt like there were too many people in prison and crime rates were falling, and they were hopeful that they could reduce enforcement and keep crime rates low,” he said. “We’re in a different position now.”

Officials will be continually tracking crime statistics in cities that have seen recent spikes in violence. But any change won’t be immediate, Rosenstein said. Sessions’ directive gives prosecutors leeway to veer from the policy and levy less-serious charges when warranted. And federal prosecutors rarely take cases against “minor offenders,” focusing their attention instead on larger criminal organizations, Rosenstein said. “We think it’s important in this circumstance in 2017 to restore to our federal prosecutors the authority to use the penalties Congress has given them in cases they think it’s important,” Rosenstein said. “We’re not micromanaging from Washington.”

I find it quite interesting that DAG Rosenstein here repeated a line used by AG Sessions last month when discussing his new charging/sentencing memo that the new policy is "not micromanaging from Washington." This leads me to think that at least some local US Attorneys expressed concern about being "micromanaged" by the Holder Memos, and it leads me to wonder if these US Attorneys will really feel more free from micromanaging under the Sessions Memo.

Prior recent related posts: 

June 5, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Saturday, June 03, 2017

NPR covers debate over federal sentencing and mandatory minimums in three parts

This past week, National Public Radio ran a notable three-part series with conversations about modern federal sentencing realities on its Morning Edition program.  Here are the links, headings and brief descriptions of who what talking about what:

Mass Incarceration Is A Major U.S. Issue, Georgetown Law Professor Says

Rachel Martin talks to Georgetown University Law professor Paul Butler about the ongoing and new challenges facing the nation regarding the criminal justice system.

Former Prosecutor On Why He Supports Mandatory Minimums

Attorney General Sessions told federal prosecutors to seek the harshest penalties possible against defendants.  Former federal prosecutor Bill Otis tells Rachel Martin why he supports the guidelines.

A Federal Judge Says Mandatory Minimum Sentences Often Don't Fit The Crime

NPR's Rachel Martin speaks to federal Judge Mark Bennett of Iowa, who opposes mandatory minimum charging and sentencing guidelines for nonviolent drug offenses.

June 3, 2017 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, May 23, 2017

"How Far Can Jeff Sessions Take His Crime War?"

The question in the title of this post is the headline of this astute New Republic piece by David Dagan that provides lots of useful context, old and new, for the work and rhetoric coming from AG Jeff Sessions and Prez Donald Trump.  Here are some extended excerpts (with emphasis in the original):

In fact, the last two years have seen worrying increases in the nation’s violent-crime rate, and some American cities have developed a full-blown homicide crisis.  That is a serious problem anybody who cares about criminal justice should be watching closely.  But it does not justify the Sessions-Trump imagery of marauding gangsters terrorizing an entire nation.  Overall, the United States today remains a much safer country than it was 30 years ago.

So the attorney general of 2017 faces a dramatically different climate than the unknown Alabama prosecutor of 1982. Even conservatives are now leading criminal-justice-reform efforts in several red states.  But reformers must keep their guard up.  Because for Sessions, crime is an inherently polarizing issue — and that’s the best news for Republicans who want to crack down.  “We should relish the fact that there will be opposition,” Sessions wrote back in 1982. “We want opposition because it defines who we are and who they are. The bigger the confrontation, the clearer the definition.”...

Sentences will get longer as a result of the May 10 charging memorandum.  But the order may have a greater effect that isn’t so obvious: It may result in not only longer sentences, but more cases being brought, period.  In the last five years of the Obama administration, the number of defendants charged in federal cases plummeted from about 103,000 to about 77,500, the lowest number since 1998.  A number of factors drove that decline, including a hiring freeze that reduced DOJ’s bandwidth.  But John Walsh, who served as U.S. Attorney for Colorado in the Obama administration, says Holder’s policy requiring prosecutors to justify the use of mandatory minimum sentences was also a contributing factor: The rule forced prosecutors to hone in on the worst offenders.  That is now history....

Fortunately, the federal government has limited influence over the calamity of mass incarceration.  The feds do operate the nation’s largest prison system, but that still accounts for only 10.5 percent of people incarcerated in the U.S.  Otherwise, it’s up to the states (with roughly 1.2 million prisoners) and counties (roughly 600,000 jail inmates.)

The only way that Sessions and Trump can really change a political culture that has moved away from the tough-on-crime consensus of the 1980s and 1990s is to lead a public law and order crusade.  The campaign started it, but there’s a long way to go — and a lot of fear-mongering to do — to shift the tide.  Democrats now largely condemn the prison policies they once went along with.  Republicans are more circumspect, but the conservative movement for prison reform has achieved impressive incarceration reductions in some bright-red states.

Despite fears that state and local politicians would be scared off by the tough talk coming out of Washington, the momentum for reform has continued through the beginning of the Trump presidency. “So far, we haven’t seen much of an impact at all,” said Adam Gelb, who runs a unit of the Pew Charitable Trusts that advises states on criminal-justice reform.  “States have built up a strong head of steam, with broad support across the political spectrum for policies that work better and cost less.”

The kinds of states you’d imagine getting behind Sessions’s new “law and order” campaign are actually among those getting behind progressive reforms.  Louisiana is on track to pass a plan that could cut its prison population 10 percent over a decade — probably not enough to shed its status as the nation’s leading per-capita jailer, but significant progress nonetheless.  Utah approved a big juvenile-justice reform in April.  The same month, North Dakota legislators voted to favor probation over prison for low-level felonies, among other changes.  Most surprising, Alabama is poised to restore voting rights for thousands of felons.

The America of 2017 is much less hospitable to a crime war than the America of 1982.  The fact that, despite recent increases, crime remains way down makes it harder to stir up panic than it was back in the 1980s and 1990s.  The rural dimension of the opioid epidemic has contributed to a new understanding of drugs as a problem of public health. Years of activism and aggressive reporting on the ravages of mass incarceration are also beginning to register in the public conscience, especially among millennials to whom the excesses of the past look simply bizarre....

But as Sessions realized years ago, the mix of race, drugs, and crime is a powerful force in American politics.  The fact that Sessions’s sentencing memo was met with deafening silence from Republican members of Congress suggests that spines on Capitol Hill remain as gelatinous on this issue as any other involving the administration.  The onus is not entirely on conservatives, though.  Liberals should do more than simply bat down Sessions’s inaccurate portrayal of the whole country as being in the grips of a violent-crime meltdown.  They should emphasize that the recent uptick in violence is worrying, that some American cities are indeed having a crisis-level problem — and that Sessions has absolutely no idea what to do about this.

We know much more than we used to about fighting crime.  Prisons surely play a role, but we’ve long ago reached the point of diminishing returns from warehousing people.  If Donald Trump cares about Chicago as much as he tweets about it, liberals should argue, then rather than blowing the city off, he would deploy federal money to support policing and violence-prevention programs that work, there and in other high-homicide towns.

If reformers play their cards right, Sessions may ultimately find that the crime war whose terms he understood so well as a young man has been redefined in ways he can no longer grasp.

May 23, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Tuesday, May 16, 2017

Brennan Center releases "A Federal Agenda to Reduce Mass Incarceration"

Justice agendaYesterday the Brennan Center released this notable new report which feels like it was first conceived back when everyone thought Hillary Clinton was poised to be President. Nevertheless, the report, headlined "A Federal Agenda to Reduce Mass Incarceration" speaks to current political realities in its executive summary with this paragraph:

Even with broad public support, addressing the problems in our criminal justice system will not be easy. For the last eight years, the White House and Justice Department supported this important work. But Attorney General Jeff Sessions appears opposed to efforts to reduce unnecessarily harsh charging and sentencing. While President Donald Trump’s own views remain unclear, key advisers such as Vice President Mike Pence, senior adviser Jared Kushner, and Gov. Chris Christie all support efforts to reduce imprisonment.

Here are some other parts of the report's executive summary:

This report sets forth an affirmative agenda to end mass incarceration and reform our criminal justice system. Bipartisan momentum has been growing for years. We must keep it going. The United States has less than five percent of the world’s population, but nearly one quarter of its prisoners. Mass incarceration contributes significantly to the American poverty rate. Conservatives, progressives, and law enforcement leaders now agree that the country must reduce its prison population, and that it can do so without jeopardizing public safety. In the last decade, 27 states have led the way, cutting crime and imprisonment together.

Of course, because 87 percent of prisoners are housed in state facilities, changes to state and local law are necessary. But history proves that decisions made in Washington affect the whole criminal justice system, for better or worse. Federal funding drives state policy, and helped create our current crisis of mass incarceration. And the federal government sets the national tone, which is critical to increasing public support and national momentum for change. Without a strong national movement, the bold reforms needed at the state and local level cannot emerge.

In a divisive political environment, it is tempting to assume that progress toward federal reform is impossible. But even today, the need to confront problems in the way we arrest, prosecute, and incarcerate remains a rare point of trans-partisan agreement. Republican and Democratic Congressional leaders alike acknowledge that unnecessarily long federal prison sentences continue to impede rehabilitation, driving recidivism and economic inequality. And according to a new poll from the Charles Koch Institute, 81 percent of Trump voters believe criminal justice reform is a “very important” or “somewhat important” issue. More than half know someone who is in or has been to prison....

To help bridge that divide, this report offers solutions that would keep crime rates low and show support for law enforcement, while reducing mass incarceration. The strongest of these policies require congressional action. Others could be implemented by a sympathetic administration. Taken together, these policies form the core of a national agenda for federal leaders to make our country safer and fairer. They also serve as models for state and local action.

Legislation

End the Federal Subsidization of Mass Incarceration: Federal grants help shape criminal justice policy at the state and local levels. For decades, these grants have subsidized the growth of incarceration. For example, the 1994 Crime Bill offered states $9 billion in funding to build more prisons. Today, $8.4 billion in federal criminal justice grants flow from Washington annually, largely on autopilot, encouraging more arrests, prosecution, and incarceration. To bring accountability to this flow, Congress can pass a “Reverse Mass Incarceration Act” that would dedicate $20 billion over 10 years to states that reduce both crime and incarceration. This would spur state and local action across the country.

End Federal Incarceration for Lower-Level Crimes: Our criminal justice system relies heavily on prison, using it as the default punishment for most crimes. But research has shown that unnecessary incarceration is costly and ineffective at preventing recidivism and promoting rehabilitation.  Early estimates show that approximately 49 percent of the federal prison population is likely incarcerated without an adequate public safety reason. Congress can pass legislation to eliminate prison terms for lower-level offenses and shorten prison terms for other crimes.  In doing so, it can safely, significantly cut the prison population, saving around $28 billion over 10 years, enough to fund a Reverse Mass Incarceration Act.

Institute a Police Corps Program to Modernize Law Enforcement: The country faces a national crisis in policing.  Some believe that overly-zealous enforcement has reached a breaking point.  Others believe police are not adequately funded or supported. All can agree that something needs to change.  To advance a twenty-first century police force, Congress can allocate $40 billion over five years to recruit new officers and train them in modern policing tactics focused on crime prevention, as well as techniques to reduce unnecessary arrests, uses of force, and incarceration.

Enact Sentencing Reform: While lawmakers should aspire to the bold changes to federal sentencing described above, Congress can start with a milder first step: reintroducing and passing the Sentencing Reform and Corrections Act of 2015.  This proposal would cautiously reduce prison sentences for some nonviolent crimes.  A bipartisan group of senators, led by Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), have already committed to reintroducing the bill this session. The White House has expressed cautious support.

Executive Action

Redirect Federal Grants Away from Mass Incarceration: Since many of the harmful incentives in federal criminal justice grants are written into law, truly ending the federal subsidization of mass incarceration will take congressional action, as laid out above. But the Justice Department can take the first step, by changing performance measures for grants to reward states that use federal funds to reduce both crime and incarceration. Institute New Goals for Federal Prosecutors: The Justice Department should ensure that scarce federal criminal justice resources are focused on the most serious crimes, and evaluate U.S. Attorneys nationally based on their ability to decrease both crime and incarceration.

Commute Sentences to Retroactively Apply the Fair Sentencing Act: In 2010, Republicans and Democrats joined together to pass legislation to reduce the disparity between crack and powder cocaine crimes as the drugs are scientifically equivalent. But more than 4,000 federal prisoners remain incarcerated under outdated drug laws. Future presidents can bring justice to these prisoners by identifying clemency petitions meeting certain criteria, fast-tracking them for review, and granting clemency.

May 16, 2017 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, May 15, 2017

The challenge of taking stock of impact of Holder Memos to gauge possible impact of new Sessions Memo

As reported and reviewed a bit here, Attorney General Jeff Sessions issued on Friday this important new charging and sentencing memorandum to direct the work of federal prosecutors.  As I stated in my first post about what will be known as the Sessions Memo, I think this is a very big deal in terms of both the substantive instructions and enforcement tone being set for federal prosecutors by the new Attorney General.

But just how big a deal is the Sessions Momo?  This is a critical question that really cannot be answered for years, and all the nuanced particulars involved here cannot be unpacked in a single blog post.  But I still thought it might be useful this morning to explain what I see as the challenge of figuring out how big a deal the Sessions Memo really is.  And part of that story relates, as the title of this post suggests, to the uncertainty that must still attend any assessment of the impact and import of different charging memos released by former Attorney General Eric Holder.

To begin, I think nearly everyone who follows modern crime and punishment generally accepts what John Pfaff has been stressing for a decade concerning the impact and import of prosecutors on the severity of our criminal justice system and the size of our prison populations.  At the risk of oversimplification, Pfaff has effectively highlighted that how prosecutors do their work matters so much practically to who goes into prison and for how long.  Consequently, new DOJ instructions about how federal prosecutors must do their work would seem to be a very big deal.  (Of course, Pfaff also stresses that the federal criminal justice system prosecutes and imprisons less than 10% of all those subject to prosecution throughout the US, so there is necessarily some ceiling on how much new guidance toward federal prosecutors will impact the nation as a whole.)

Because prosecutors matter a lot, federal prosecutorial policies matter a lot.  But just how much?  Notably, former Attorney General Eric Holder issued at least three significant guidance memos to federal prosecutions: a first one in May 2010 allowing more charging/sentencing discretion, a second one in Aug 2013 urging less use of certain mandatory minimums, and a third one in Sept 2014 cautioning again using certain charges to induce a plea in drug cases.  Arguably, the May 2010 general charging/sentencing memo was the most consequential and far-reaching of AG Holder's instructions to federal prosecutors.  But if you look at the basic data assembled in this NBC News discussion of the Sessions Memo, federal prosecutorial charging practices did not appear to change all that much until after AG Holder in Aug 2013 really delivered aggressively and consistently the message that DOJ was now taking a much different approach to drug cases and others.

In some subsequent posts, I hope to unpack more fully the data on federal prosecutorial practices in the Obama years under AG Holder's guidance.  For now, my goal was to highlight that we did not see a massive sea change in federal prosecutions or sentences as soon as AG Holder first announced new guidance in May 2010.  (I also must note for those eager to praise Prez Obama and AG Holder for their reform efforts, note how Holder was not so quick off the dole.  AG Sessions set forth his policy by May of his first year in office; AG Holder took until May of his second year in charge.)  Importantly, it seems it was really only when AG Holder fully doubled down, in speeches and policy directives and other actions, on charting a much different prosecutorial path starting in August 2013 that the numbers in the federal system saw some real significant movement.  I hope to discuss that movement and its meaning in coming posts as well.

So, after a lot of words, my message here is stay tuned:  stay tuned to this blog for some coming number crunching about the Holder legacy and Sessions course change, and also stay tuned to see how AG Sessions and others inside DOJ and other parts of the Trump Administration follow up on this initial memo.  What follows may prove to be much more important than what we have seen so far.

Prior recent related posts: 

May 15, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, May 11, 2017

Notable comments from AG Sessions about the opioid crisis and combatting drug problems

This press release from the Department of Justice provides the text of remarks delivered today by Attorney General Jeff Sessions at the "DEA360 Heroin and Opioid Response Summit" in Charleston, WV. I recommend the speech in full, even though some comments are familiar, and here are a few excerpts that caught my attention:

People in Washington, D.C., use the word "crisis" to describe all kinds of problems.  But this epidemic of opioid and prescription drug abuse is a true crisis.  It is ravaging our communities, bringing crime and violence to our streets, and destroying the lives of too many Americans....

Let’s start by looking at the scope of the problem.  In 2015, more than 52,000 Americans died from a drug overdose.  That means our country is losing the equivalent of a major league baseball stadium full of people every year to overdoses.  That is simply unacceptable. 

Nearly two-thirds of those deaths were from opioids — that includes heroin as well as prescription drugs such as oxycodone, hydrocodone, codeine and morphine.   Every day, 91 Americans die from an opioid overdose.  And each year, more Americans are dying from drug overdoses than from car crashes.  

What’s terrifying is that these numbers may well understate the current problem, due to the recent rise of the synthetic opioid fentanyl, which is vastly more potent than heroin.  Drug traffickers are now mixing fentanyl with other drugs, resulting in a truly deadly concoction. In just one year, largely as a result of fentanyl, overdose deaths involving synthetic opioids rose an astonishing 73 percent.  Let me repeat that, 73 percent more overdose deaths.

But this plague not only brings death, but a whole parade of horribles. The number of American babies born with a drug withdrawal symptom has quadrupled over the past 15 years.  Here in West Virginia, the situation is so bad that in some hospitals, one out of every 10 babies is born dependent on opioids....

This wave of opioid and heroin abuse also represents a crisis for law enforcement.   We know drugs and crime go hand-in-hand.   Drug trafficking is an inherently violent business.  If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court.  You collect it by the barrel of a gun.

The opioid and heroin epidemic is a contributor to the recent surge of violent crime in America.   Transnational drug cartels are working with street gangs to traffic heroin that is both cheaper and stronger than ever.  As the market for this heroin expands, these gangs fight for territory and new customers — and innocent people get caught in the crossfire.     

Drug abusers miss work, and when they do work, they don’t work well.  According to one estimate, American employers are losing $10 billion dollars a year from absenteeism and lost productivity due to opioid abuse.

Any way you look at it, this drug abuse epidemic is a multi-faced and massive crisis.  It demands an all-hands-on-deck response — from government, law enforcement, health care providers, teachers, community leaders and parents.  All of us must do our part to fight the scourge of drugs.   

As I mentioned before, we have three essential tools in this fight:  enforcement, treatment and prevention.  At the Department of Justice, our principal concern is law enforcement.  Strong enforcement is crucial to effective drug abuse prevention and treatment.

Many people say, "We can’t arrest our way out of this problem."  But no one denies we need good prevention and treatment programs.  What we must recognize is that strong law enforcement efforts are also essential.   Criminal enforcement is crucial to stopping the violent transnational cartels that smuggle drugs across our borders, and the thugs and gangs who bring this poison into our communities....

The DEA has developed what they call their 360 Strategy, and deployed it to six pilot cities, including here in Charleston.  One part of the 360 Strategy is coordinated law enforcement actions against drug cartels and traffickers.   DEA’s field divisions work closely with task force partners in federal, state, and local law enforcement to identify, target and prosecute the biggest drug traffickers.  

We are also targeting links between the cartels and drug trafficking networks across our country, including violent street gangs. Another part of DEA’s 360 Strategy is diversion control.  A lot of drug abuse happens because legitimate controlled substances are diverted from their lawful purposes.... 

We are also targeting and prosecuting dishonest medical providers who violate their oaths by running "pill mills" or otherwise diverting prescription drugs from legitimate uses.  The DEA’s Tactical Diversion Squads, including one here in Charleston, do outstanding work on this front....

The goal of all our enforcement efforts is to take back our neighborhoods from drug traffickers and criminals, and give these communities breathing room.   That allows us to deploy the other tools we have to fight drug abuse:  treatment and prevention....

The best thing we can do is to keep people from ever abusing drugs in the first place.  Our nation must once again send a clear message:  illegal drug use is dangerous and deadly.  We know for a fact it destroys lives — just look around you.

Education does work.  We won’t end this epidemic in a week, or a month, or a year.  This will be a huge undertaking, both here in West Virginia and across our great country.  We must use all the tools we have: criminal enforcement, treatment and prevention programs.  

May 11, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, May 10, 2017

Highlighting that conservative voters say they support criminal justice reform efforts

Vikrant Reddy authored this National Review commentary discussing the results of a recent interesting poll (which I highlighted here) under the headlined "The Conservative Base Wants Criminal-Justice Reform."  Here are excerpts:

Last week, the Charles Koch Institute (CKI) polled several hundred conservative voters to assess whether they recognize criminal justice as an important issue currently facing the nation. While specific reasons for their interest are debatable, 81 percent of Trump voters polled described the issue as either “very important” or “somewhat important” — a definite consensus.

Ordinarily, polls that confirm the status quo are not interesting.  This poll, however, caught the attention of those who have been asking whether conservative attitudes towards criminal-justice policy may have changed since the November 2016 election.  It’s a fair question.

The new presidential administration has given mixed messages, sometimes using strong rhetoric about increasing criminal penalties, but other times speaking with thoughtfulness about expanding treatment for opioid addiction.  Some prominent administration figures, such as Vice President Mike Pence, have a history as reformers.  Others, such as Attorney General Jeff Sessions, have a history as skeptics.  The views of the president himself are unpredictable.

Furthermore, when asked if judges should have more freedom to assign punishments other than prison (such as civil or community service), 63 percent of Trump voters “strongly agreed” or “agreed.”  When asked about the practice of civil asset forfeiture, which allows law-enforcement agencies to seize an individual’s property without requiring that the individual be charged or convicted of a crime, 59 percent of Trump voters found common ground with their liberal counterparts, responding that that they “strongly disagreed” or “disagreed” with such policing practices....

People surprised by the results of the poll ought to focus on one important figure: Fifty-four percent of Trump voters said they knew someone who is or has been incarcerated. That may surprise progressives who accuse conservatives of being out of touch and aloof from criminal-justice realities, but it shouldn’t surprise anybody who works in the criminal-justice arena and regularly talks to conservatives about their views....

Increasingly, then, the Americans who experience criminal justice as a personal issue are rural conservatives. Consider the example of Oklahoma.  On the night that Trump won the presidency, voters also approved changes to the state criminal code that reclassified certain drug felonies as misdemeanors, effectively expressing the view that too many drug offenses in Oklahoma were being treated with needlessly long bouts of incarceration. Oklahomans appear to prefer better probation and parole that monitors drug offenders and provides them with treatment.  This referendum vote took place in a state in which every single county voted for Trump.  A higher percentage of people (65.3 percent) voted for Trump in Oklahoma, than in any state, except Wyoming and West Virginia. It’s hard to be “Trumpier” than Oklahoma.

Leadership matters in public policy, and for that reason, it would be good to see clear support for criminal-justice reform from the White House.  Conservative legislators and governors, however, do not need to wait for cues from the administration.  The conservative base is already providing them. They have wanted criminal justice reform for a decade, and their minds did not change because of one election.

Recent prior related post:

May 10, 2017 in Campaign 2016 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Tuesday, May 09, 2017

New buzz about AG Sessions considering new tougher charging guidance for federal prosecutors

I had the great honor and privilege tp speak earlier today to a terrific group of judges, along with a terrific lawyer from the US Sentencing Commissions, about federal sentencing trends and developments.  We started the discussion with a particular focus on drug cases, and I mentioned that I was expecting to see new, probably tougher, charging guidelines emerging from the Department of Justice under its new leadership.  This new Washington Post article, headlined "Sessions weighs return to harsher punishments for low-level drug crimes," suggests my informed speculation here may quite soon be reality. Here are excerpts from the piece:

Attorney General Jeff Sessions is reviewing policy changes set in place by the Obama administration that eliminated harsh punishments for low-level drug crimes and could direct federal prosecutors to again charge drug offenders with crimes carrying the most severe penalties, according to U.S. officials.

The change, if adopted, would overturn a memo by then-Attorney General Eric H. Holder Jr. that instructed prosecutors to avoid charging low-level defendants with drug offenses that would trigger severe mandatory minimum sentences. Only defendants who met certain criteria, such as not belonging to a large-scale drug trafficking organization, a gang or a cartel, qualified for the lesser charges under Holder’s instructions.

If new charging instructions are implemented, it would mark the first significant move by the Trump administration to bring back the drug war’s toughest practices — methods that had fallen out of favor in recent years as critics pointed to damaging effects of mass incarceration.

“As the Attorney General has consistently said, we are reviewing all Department of Justice policies to focus on keeping Americans safe and will be issuing further guidance and support to our prosecutors executing this priority — including an updated memorandum on charging for all criminal cases,” Ian Prior, a department spokesman, in a statement to The Washington Post.

Sessions has recently peppered his speeches to law enforcement groups throughout the country with tough-on-crime rhetoric and urged Justice Department lawyers to prosecute more drug and gun cases.

The attorney general is considering having his prosecutors bring the most severe charges against drug traffickers, whether they are low-level defendants or not, according to officials who spoke on the condition of anonymity to discuss internal deliberations. Sessions also may allow prosecutors to use more “enhancements” to make sentences even longer. Under what’s referred to as “Section 851” of the Controlled Substances Act, defendants charged with a federal drug, firearm or immigration crime may face enhancements if they have previously been convicted of a felony drug offense.

Holder told his prosecutors four years ago that they should stop using enhancements except in certain cases — such as when the defendant was involved in the use or threat of violence — in an effort, he said, to make punishments more fairly fit the crime.

Holder’s changes came in August 2013 during a growing push among lawmakers and civil rights groups to roll back the strict charging and sentencing policies created in the 1980s and 1990s at the height of the war on drugs. Sen. Rand Paul (R-Ky.) was one of the sponsors of bipartisan criminal-justice legislation that would have reduced some of the mandatory minimum sentences for gun and drug crimes — a bill that Sessions opposed and helped derail....

The Holder memo was also supported by many of the U.S. attorneys in the Obama administration. But some prosecutors across the country fought Holder’s broad effort to eliminate mandatory minimum prison sentences for certain drug offenders, saying it damaged their ability to build cases from the ground up against major drug organizations.

As I noted in this post a few months ago, the new Attorney General has already issued directives that lead me to suspect that we would be seeing a formal new "Sessions Memo" that seeks to remove some of the "play in the joints" that former AG Eric Holder introduced through prior charging memorandum issued back in 2010 and 2013. Indeed, I have been a bit surprised we have not yet seen new directives from AG Sessions yet in this arena, and this new Post article leads me to suspect a Sessions Memo could be coming out any day now.

UPDATE:  This New York Times article, headlined "Sessions to Toughen Rules on Prosecuting Drug Crimes," suggests that new charging guidance from AG Sessions could be released any day now.  Here is a key paragraph from the article that provides additional context for this important coming federal criminal justice development:

Current and former government officials have said for weeks that Mr. Sessions’s new policy could come at any time. They said Tuesday that they expected to see it finalized shortly, and Mr. Sessions himself has foreshadowed the announcement this year, calling for a return to tougher federal charging policies in speeches and issuing memos telling prosecutors to anticipate policy shifts.

May 9, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, May 05, 2017

Might Prez Trump conduct something of a federal "drug war" retreat through major budget cuts?

The question in the title of this post is prompted by this notable new CBS News article headlined "Trump administration proposes massive cuts to Drug Czar office."  Here are the details:

The Trump administration is looking to slash the White House Office of National Drug Control Policy (ONDCP) budget by nearly 95 percent, according to a memo obtained by CBS News.  The Office of Management and Budget (OMB) has proposed major ONDCP budget cuts for fiscal year 2018 that would cut 33 employees, nearly half the office staff, along with intelligence, research and budget functions at the agency, as well as the Model State Drug Laws and Drug Court grant programs....

The document also zeroes out funding to a number of grant programs including the High Intensity Drug Trafficking Areas (HIDTA) program and the Drug-free Communities Support Program.  These grants are "duplicative of other efforts across the Federal government and supplant State and local responsibilities," the memo states.

HIDTA serves as a catalyst for coordination among federal state and local enforcement entities, and funds task forces in 49 states across the country.  It is considered a vital tool used by law enforcement agencies to go after very high profile drug dealers and conduct in-depth interagency investigations.  The drug free communities support program is the nation's largest drug prevention program and funds 5,000 local anti-drug community coalitions across the country.  This program has also enjoyed broad bipartisan support.

President Donald Trump signed an Executive Order last month to create a presidential commission to tackle the national opioid [crisis], chaired by New Jersey Governor Chris Christie.  The Order stated that the ONDCP would be providing support for the Commission.  "I have been encouraged by the Administration's commitment to addressing the opioid epidemic, and the President's personal engagement on the issue, both during the campaign and since he was sworn into office," the ONDCP's Acting Director, Richard Baum, wrote in an office-wide email. "However, since OMB's proposed cuts are also at odds with the fact that the President has tasked us with supporting his Commission on Combatting drug Addiction and the Opioid Crisis."

"These drastic proposed cuts are frankly heartbreaking, and if carried out, would cause us to lose many good people who contribute greatly to ONDCP's mission and core activities," Baum wrote.

The staff was notified of the cuts Friday after Baum and top aides were notified of the draconian cuts last Thursday.  According to a source familiar with the discussions, Baum has been in close contact with Jared Kushner, who heads up the White House Office of American Innovation.  Baum had hoped to convince the Office of American Innovation that the ONDCP is an essential tool in combatting the opioid epidemic. The discussions did not go as planned.

"The budget process is a complex one with many moving parts," The White House said in a statement to CBS. "It would be premature for us to comment - or anyone to report - on any aspect of this ever-changing, internal discussion before the publication of the document. The President and his cabinet are working collaboratively to create a leaner, more efficient government that does more with less of tax payers' hard-earned dollars."

Due in part of some of the rhetoric used by both Prez Trump and Attorney General Sessions, there has been much talk and consternation about the prospect of the Trump Administration ramping up the federal drug war. But if these significant budget cuts become a reality, it is quite possible that the Trump Administration would be functionally doing a lot more to pull back on the drug war in his first Term than did President Obama during his first Term.

UPDATE: This new CBS News article, headlined "White House dismisses concerns over steep potential cuts to 'Drug Czar' office," includes new statements from White House officials suggesting any ONDCP cuts would not signal a drug war retreat as well as some informed reaction to the budget cutting talk:

A senior administration official suggested that if the White House decided to strip ONDCP of its agency mandate to coordinate collaboration between federal and local law enforcement and public health organizations, transitioning it into an office like the National Security Council or National Economic Council. The official said cuts would "by no means signal the commitment to winning the war on drugs is lessened." The senior administration official pointed to dozens of drug programs across many federal agencies as evidence that the White House is committed to anti-drug efforts, even if the ONDCP loses its ability to issue grants.

But Rafael Lemaitre, a former top spokesman for the ONDCP, countered that the reason the ONDCP was created in the first place was to coordinate these programs into one comprehensive strategy for the president. "Creating chaos at ONDCP or eliminating the agency will mean that each of the bureaucrats who run each those long list of programs and are spread out across government will have no single point of contact or direction to follow," Lemaitre said. "Efforts will be duplicated. Presidential priorities won't be followed. Ineffective programs will continue."...

Scores of former government officials, doctors, community based organizations, law enforcement officials and officials at drug treatment and prevention programs agree. In a letter to senior White House adviser Reed Cordish, dozens called on the White House to maintain ONDCP's funding and strong national influence.

"As we have written before, ONDCP brings essential expertise to the table on complex drug issues, expertise that would otherwise be missing or dispersed across multiple agencies," the letter states. "ONDCP holds all federal, state, and local agencies accountable for achieving specific goals to reduce drug trafficking, use, and other consequences."

Kevin Sabet, the head of Smart Approaches to Marijuana and a three-time ONDCP adviser who distributed the letter, did not mince words. "To slash anti-drug finding during this opiate and marijuana crisis is exactly the wrong move at the wrong time," he said. 

May 5, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (16)

Thursday, May 04, 2017

"Will Rod Rosenstein serve as a check on the attorney general, or will he tolerate his boss’s unabashed cheerleading for Trump?"

UntitledThe loaded question in the title of this post is the subheadline of this interesting new Slate piece by Leon Neyfakh with the main headline "The Man Who Could Stop Jeff Sessions." The piece is an extended profile of the fellow who was recently officially confirmed by the Senate to be the second-in-command at the US Justice Department. Here is part of the piece:

Rod Rosenstein — who joined the DOJ in 1990 as a trial attorney in the public-integrity section of the criminal division and most recently spent 12 years as the U.S. attorney for Maryland — is known in legal circles as a consummate professional who has never allowed politics to interfere with his decision-making.  The new deputy attorney general was, famously, the only U.S. attorney appointed by George W. Bush who was asked to stay on by Barack Obama — a merit badge that suggests he has been consistently even-handed in dealing with people from both sides of the aisle.  It’s a reputation that has attached itself to Rosenstein like a very flattering glue. Practically every profile of him includes words like apolitical, principled, and independent.  At his confirmation hearing in March, Maryland Sens. Chris Van Hollen and Ben Cardin called him, respectively, a “fair and focused administrator of justice” and a prosecutor who has conducted himself in “a totally nonpartisan, professional manner.”

In his new job overseeing the DOJ’s day-to-day operations, the 52-year-old Rosenstein is expected to bring a degree of normalcy and structure to an agency that, three months into Trump’s presidency, remains severely understaffed at its top levels. The extent to which he is allowed to assert his principles in running the department — and the extent to which he’s able to exert influence over the attorney general — will be a huge factor in determining what kinds of actions the DOJ takes under Trump and Sessions.

The differences between how Rosenstein and Sessions think about the Justice Department’s role in the federal government are manifest. Where the former seems to buy into an idealized vision of the agency as a nonpartisan instrument of pure law enforcement, Sessions has already demonstrated a gleeful willingness to align himself and his agency with the Trump administration....  Sessions is, of course, a key member of Trump’s cabinet. He was also an enthusiastic adviser to the Trump campaign back when he was a senator and was the first member of Congress to endorse him during the Republican primaries. On account of that history, and his well-established ideological kinship with Trump, Sessions’ continuing closeness to the president makes sense.  And yet there are good reasons to be concerned about a sitting attorney general who is unapologetically loyal to the president.

“There is an inherent tension in the role of attorney general,” said Michael Vatis, who served in the office of the deputy attorney general from 1994 to 1998. “Just like every other cabinet member, he is a political appointee who is supposed to be working the president’s agenda, but at the same time, it’s important for him to maintain a sense of independence from the White House, because inevitably, the Justice Department and the people who work under the AG are going to have to conduct investigations … that have some political element to them.” For those investigations to have credibility, Vatis continued, “you can’t have people in the country thinking … the investigation is not going to be conducted fairly, because the AG is just going to look out for the president’s political interests.”...

For many career lawyers at the DOJ, as well as alumni who have been watching the Trump administration’s manhandling of their beloved agency with increasing horror, Rosenstein’s hiring is a reason to feel cautiously optimistic about the agency’s future.  “He’s a career DOJ guy,” said one agency staffer, speaking on condition of anonymity. “The career people and the long-termers view him as a known quantity.  If they don’t know him personally, they know people who do.  If I had to surmise what the rest of the department thinks, I would guess they’re thinking, ‘OK, this is someone we can work with.’ ”

How much power will Rosenstein have as deputy attorney general? Potentially a great deal. “Obviously the attorney general is the final decision-maker and the visionary for the department. He’s in charge. … But the DAG’s office is essentially the nucleus of the department.  It’s where major litigation is overseen, and it’s where policy initiatives are led,” said Mónica Ramírez Almadani, who served in the DAG's office during the Obama administration....

The fact that Rosenstein himself seems to take great pride in his professionalism and independence raises the question of how he will respond when his boss engages in the kind of actions the administration’s critics see as inappropriately political.  How far will he be willing to go, for instance, to defend the scores of police chiefs around the country who have argued that the immigration crackdown Sessions is demanding will impede their ability to effectively fight crime?  This is what current and former DOJ alumni are waiting to find out: Will Rosenstein serve as any kind of check on the new regime — someone who will tame Sessions’ most aggressive political instincts and push for greater distance between the DOJ and the White House — or will he fall in line and tolerate Sessions’ unabashed cheerleading for Trump?...

“I don’t know how much influence he’ll have on Sessions,” said Richard Jerome, who worked in the associate attorney general’s office from 1997 to 2001. “[Sessions is] a pretty strong personality, he’s certainly not new to Washington, and he has his own views. There’s not much that’s going to change his approach.”

One important factor to consider is that Sessions probably doesn’t believe that “politicization” of the DOJ is the unforgivable sin that many liberals make it out to be. Indeed, it’s fair to argue that the agency is by definition political and has always been in alignment with the administration it exists to serve.  Pretending otherwise, according to this line of thinking, is a form of naïveté: While most people agree that the DOJ should be “nonpartisan” in the sense that a Republican-led agency shouldn’t make it its mission to go after Democrats, the notion that someone like Sessions should try to suppress or hide his ideological priors is a nonstarter.  It’s not clear that it’s even possible for the Sessions DOJ to create distance between itself and the White House, considering that the ideas Sessions believes in most fervently — deporting illegal immigrants, reducing drug use through incarceration, and reducing federal scrutiny of local police departments — are the same ones Trump ran on as a candidate, and has embraced as president....

Still, the AG and the president can be on the same page ideologically without becoming so closely aligned that doing right by the administration becomes more important than doing what’s right.  This is the true meaning of “independence” — and in Rosenstein, Sessions has a deputy whose career has been defined by a belief in its importance. Let’s see if he continues to uphold that belief while working in Sessions’ shadow.

May 4, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (8)

Thursday, April 27, 2017

Interesting new survey data on various criminal justice reform issues from Charles Koch Institute

HZZG820BThis press release from the Charles Koch Institute reports a few highlights and provides this link to a set of really interesting survey data on a set of criminal justice reform questions.  Here are the basics from the press release:

The Charles Koch Institute (CKI) ... released a poll surveying 1,200 American voters who participated in the 2016 presidential election about their views on criminal justice issues such as civil asset forfeiture, overcriminalization, and mandatory minimum sentencing.

The results, which represent responses from a broad range of Americans — including voters who identify as liberals, moderates, and conservatives — suggest significant support for criminal justice reform. Notably, this support even comes from Trump voters: When asked whether criminal justice reform is a priority for the country, 81 percent of Trump voters described the issue as either “very important” (34 percent) or “somewhat important” (47 percent). Trump voters were also more likely to have experience with the criminal justice system, as 54 percent of them reported knowing someone who is or has been incarcerated.

When asked about civil asset forfeiture, 59 percent of Trump voters either “strongly disagreed” (28 percent) or “disagreed” (31 percent) that police should have the right to seize private assets of a suspect even if that individual is never prosecuted. Furthermore, when asked if judges should have more freedom to assign forms of punishments other than prison (such as civil or community service), 63 percent of Trump voters “strongly agreed” (26 percent) or “agreed” (37 percent).

“There appears to be an appetite among conservatives to get ‘right-on-crime,’” said Vikrant Reddy, a senior research fellow with CKI. “Conservatives have been observing the criminal justice system, and they have opinions on how to make it better. In short, they want reforms that prioritize public safety, respect individual rights, and advance human dignity.”

For any and all would-be criminal justice reform advocates, the detailed particulars of the full poll results are worth checking out.  The poll probed all sorts of interesting concepts by asking whether respondents agreed or disagreed with statements like "it's important to have mandatory minimum sentences" and "possession of drugs should not be met with prison time" and "too many people are in prison for non-violent crimes" and "the current criminal justice system unfairly targets racial minorities."

April 27, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Thursday, April 20, 2017

Brennan Center releases report on "Criminal Justice in President Trump's First 100 Days"

The Brennan Center for Justice has released this big new report titled "Criminal Justice in President Trump's First 100 Days." Here is part of its "Executive Summary":

In his Inaugural Address, President Donald Trump pledged to address the rising specter of “American carnage” — “the crime and gangs and drugs that have stolen too many lives and robbed our country of so much unrealized potential.”  The last time a president addressed rising crime in his inaugural address was 1997.  Then, with crime near historic peaks (at 4,891 offenses per 100,000 people), President Bill Clinton spoke of the need to “help reclaim our streets from drugs and gangs and crime” so that “our streets will echo again with the laughter of our children, because no one will try to shoot them or sell them drugs anymore.”

Trump’s dark portrait of America, however, comes at a time when the national crime rate is near historic lows — 42 percent below what it was in 1997. As his first 100 days near an end, what has the president done to address crime and criminal justice? And what can the country expect in the weeks and months ahead?

So far, many of the administration’s actions are symbolic.  But they evidence a clear return to the discredited “tough on crime” rhetoric of the 1990s, and suggest a significant departure from the Obama administration’s approach to criminal justice.  Trump’s turn also directly contradicts the emerging consensus among conservatives, progressives, law enforcement, and researchers that the country’s incarceration rate is too high, and that our over-reliance on prison is not the best way to address crime.  As crime remains near historic lows — despite local, isolated increases — these proposed changes are, ultimately, solutions in search of a problem. Taken to an extreme, they would set back the national trans-partisan movement to end mass incarceration.

This analysis documents the following key shifts in federal policy since January 20th:

Misguided Fears of a New Crime Wave....

A New War on Drugs?...

Increased Immigration Enforcement and Detention....

Decreased Oversight of Local Police....

Increased Use of Private Prisons....

Possible Federal Sentencing or Reentry Legislation....

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

Wednesday, April 05, 2017

AG Sessions provides update (with timelines) about the work of DOJ's Task Force on Crime Reduction and Public Safety

As reported in this short press release, "Attorney General Jeff Sessions today issued [a] memo to 94 U.S. Attorney’s Offices and Department of Justice component heads providing an update on the Department’s Task Force on Crime Reduction and Public Safety." As the press release further explains, in this update, "the Attorney General announced the creation of Task Force subcommittees that will focus on a variety of issues including developing violent crime reduction strategies, supporting prevention and re-entry efforts, updating charging and sentencing policies, reviewing asset forfeiture guidance, reducing illegal immigration and human trafficking, combatting hate crimes, and evaluating marijuana enforcement policy."

The full three-page AG memo is available at this link, and it does not cover much of significant substance.  But the memo does state that the AG "directed the Task Force to hold a National Summit on Crime Reduction and Public Safety within 120 days," and it also states that the AG has asked for Task Force subcommittees to provide initial recommendations no later than July 27th.  Thus I expect we will see some hot talk about changes to DOJ charging and sentencing policies (and perhaps also marijuana policies) as the weather heats up in the coming months. 

April 5, 2017 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, March 23, 2017

Notable discussion of federal criminal justice issues at new Take Care blog

A new legal blog with a number of notable contributors, Take Care, has recently been created seeking to provide "insightful, accessible, and timely legal analysis of the Trump Administration." The blog has topical pages on Criminal Justice and Marijuana Legalization among many others, and here are a few recent posts from those pages readers might find of interest:

"Why Jeff Sessions’s Reversal on Private Prisons Is Dangerous" by Chiraag Bains

"Reliance Defenses in the Trump Era and Beyond" by Zachary Price

"Trump’s Approach to Crime & Punishment" by Chiraag Bains

March 23, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Wednesday, March 22, 2017

Department of Justice to host National Summit on Crime Reduction and Public Safety at the end of June

Acting Assistant Attorney General Alan Hanson gave this speech today at the Byrne Criminal Justice Innovation Program Symposium. The entire speech makes for an interesting and encouraging read, and here are a few passages that really caught my eye (including the reference to the coming National Summit mentioned in the post title):

As with any new Administration, I know there are lots of questions about priorities. The President just released his budget last week, and you can see that the White House is clearly focused on reducing crime in America’s communities. That’s good news for all us who care about public safety. I think it’s also important for everyone here to know — and this will come as no surprise — that for our Attorney General, the safety of our communities, and of those who protect them, is paramount.

Attorney General Sessions has made it clear that he’s willing to do what it takes to help cities reduce crime and violence. And having worked very closely with Jeff Sessions during his time in the Senate, I can tell you those are not empty words.  For anyone who cares about making sure our neighborhoods are places of promise and opportunity — where citizens can live, work and thrive — you can be sure you have an ally in our Attorney General.

In his short time in office, he has already set up a task force on crime reduction and public safety.  The goal of this task force is to work with federal, state and local law enforcement and community organizations to identify effective public safety strategies.  As part of this effort, the Department plans to host a National Summit on Crime Reduction and Public Safety at the end of June.  We hope to learn at that summit about local strategies that work and determine how we at the federal level can support those efforts....

As you know, the BCJI program offers a unique approach to public safety and neighborhood revitalization.  It’s place-based, community-oriented, driven by data and research and grounded in partnerships across agencies and across disciplines — all the elements you would expect in a successful public safety program.

The BCJI model builds on programs like Project Safe Neighborhoods that rely on coordination between federal, state and local law enforcement and prosecutors and on collaboration with researchers.  It focuses on crime hot spots, and on distressed areas where resources are most urgently needed.  Perhaps most importantly, it brings community leaders and law enforcement to the table together, which guarantees that this work isn’t being done in a vacuum.

This approach is not one we see often enough — which is a shame, because we know it works.  In Evansville, Indiana, for example, from 2013 to 2015, reported crime dropped 42 percent in the BCJI target neighborhood of Jacobsville.  Five hot spots in Milwaukee’s target area saw a 23 percent drop in violent crime over the same period. That’s compared to a 1 percent increase in the city as a whole.  And in Austin, Texas, during the 16 months of BCJI operation in the Rundberg neighborhood, violent crime dropped 15 percent.

These are impressive numbers, and they’re especially notable when many other cities are seeing a trend in the opposite direction....

This work — the work that you’re doing — is more important than ever.  Crime rates remain near historically low levels, but there’s no question that some cities are seeing troubling recent surges in violence — in some cases, dramatic increases.  This is a time for vigilance, not complacency, because, as the Attorney General said, “When crime rates move in the wrong direction, they can move quickly.”

March 22, 2017 in Criminal justice in the Trump Administration, National and State Crime Data, Who Sentences? | Permalink | Comments (2)

Interesting letters from and to US Senate about work of federal prosecutors in Trump era

Two new press pieces report on two notable new letters about the work of federal prosecutors in the new Administration.  Here are the headlines, links, and leads:

From Politico, "Senators press Sessions on drug policy changes":

Three Democratic senators are urging Attorney General Jeff Sessions not to return to policies that urge prosecutors to pursue long mandatory-minimum prison sentences against low-level drug offenders. Sens. Cory Booker of New Jersey, Dick Durbin of Illinois and Patrick Leahy of Vermont sent Sessions a letter Tuesday pleading with him not to abandon the Obama administration’s “Smart on Crime” initiative that generally led to earlier releases for those convicted of drug dealing in the federal system.

“Changes to current drug charging policies that lead to more mandatory minimum penalties in low-level, nonviolent drug cases will not increase public safety and will only increase taxpayer spending on our bloated federal prison system,” the senators wrote. “We are concerned about a possible shift in the Justice Department’s treatment of federal drug cases and the specter that mandatory minimum penalties may once again be used by the Justice Department on a routine basis as tools to prosecute low-level nonviolent drug offenses.”

From the Washington Examiner, "Groups urge greater oversight of US Attorney nominees":

Criminal justice reform advocates are urging the Senate Judiciary Committee to exercise greater oversight of United States Attorney nominees. Their letter, sent Tuesday and signed by the American Conservative Union Foundation, Families Against Mandatory Minimums, Right on Crime Coalition and R Street Institute, comes less than a month after the Trump administration dismissed 46 U.S. attorneys.

U.S. attorneys make up the 93 positions nationwide. After they are nominated by President Trump, the Senate Judiciary Committee must consider them and make recommendations to the full Senate about confirmation. The letter includes questions the four groups think the Senate committee should ask all nominees, noting that prosecutors "are central to the integrity of the entire criminal proceeding."

March 22, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Wednesday, March 15, 2017

AG Sessions talks again about "the challenge of violent crime and drugs" and about support for law enforcement

Jeff-sessions-attorney-general-630x354The Department of Justice now has posted here an extended speech delivered by Attorney General Jeff Sessions today in Richmond, Virginia (which just happens to be where I am headed tomorrow for a faculty workshop).  Those who have been following what AG Sessions has been saying in recent months (and really throughout his whole career) will likely not find anything all that new or surprising in this latest speech.  Nevertheless, I still found the entire speech and especially the following passages worth flagging in this space.  And I have highlight two particular sentences in the discussion of drugs that I have not previously seen and that could and perhaps should capture a lot of attention:

First, we should keep in mind some context. Overall, crime rates in our country remain near historic lows. Murder rates are half of what they were in 1980.  The rate of violent crime has fallen by almost half from its peak....  In the past four decades, we have won great victories against crime in America. This happened under leadership from both political parties, and thanks above all to the work of prosecutors and good police using data-driven methods and professional training.  Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we’ve seen warning signs that this progress is now at risk.  The latest FBI data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 10 percent — the largest increase since 1968.  And all of this is taking place amid an unprecedented epidemic of heroin and opioid abuse....

My fear is that this surge in violent crime is not a “blip,” but the start of a dangerous new trend.  I worry that we risk losing the hard-won gains that have made America a safer and more prosperous place.  While we can hope for the best, we can’t afford to be complacent.  When crime rates move in the wrong direction, they can move quickly....

Last month the President gave us clear direction, issuing three executive orders that direct the federal government to reduce crime and restore public safety. This task will be a top priority of the Department of Justice during my time as Attorney General. I’d like to talk briefly about how we’re tackling this challenge.

First, we’re making sure the federal government focuses our resources and efforts on this surge in violent crime.  Two weeks ago, I announced the formation of a Department of Justice Task Force on Crime Reduction and Public Safety. It includes crime reduction experts from throughout the Department of Justice, including the heads of the FBI, the ATF, the DEA and the U.S. Marshals Service.  The task force will evaluate everything we are doing at the federal level.

Second: We need to use every lawful tool we have to get the most violent offenders off our streets. In recent years, we have seen a significant shift in the priority given to prosecuting firearms offenders at the federal level.  This trend will end.  This Department of Justice will systematically prosecute criminals who use guns in committing crimes....

Third: To turn back this rising tide of violent crime, we need to confront the heroin and opioid crisis in our nation — and dismantle the transnational cartels that bring drugs and violence into our neighborhoods.

Our nation is in the throes of a heroin and opioid epidemic.  Overdose deaths more than tripled between 2010 and 2014.  According to the CDC, about 140 Americans on average now die from a drug overdose each day.  That means every three weeks, we are losing as many American lives to drug overdoses as we lost in the 9/11 attacks.  Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction, and misery.  We have also seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs.  As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

There are three main ways to fight the scourge of drugs: criminal enforcement, treatment and prevention.  Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product.  One of the President’s executive orders directed the Justice Department to dismantle these organizations and gangs — and we will do just that.

Treatment programs are also vital. But treatment often comes too late to save people from addiction or death.  So we need to focus on the third way we can fight drug use: preventing people from ever taking drugs in the first place.

I realize this may be an unfashionable belief in a time of growing tolerance of drug use.  But too many lives are at stake to worry about being fashionable.  I reject the idea that America will be a better place if marijuana is sold in every corner store.  And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana — so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.

In the ’80s and ’90s, we saw how campaigns stressing prevention brought down drug use and addiction.  We can do this again. Educating people and telling them the terrible truth about drugs and addiction will result in better choices. We can reduce the use of drugs, save lives and turn back the surge in crime that inevitably follows in the wake of increased drug abuse.

Finally: The federal government alone cannot meet the challenge of violent crime and drugs — so we need to protect and support our brave men and women in law enforcement. About 85 percent of all law enforcement officers in our nation are not federal, but state and local. These are the men and women on the front lines — the ones doing most of the tough and often dangerous work that keeps our neighborhoods safe....

The new challenge of violent crime in our nation is real — and the task that lies before us is clear. We need to resist the temptation to ignore or downplay this crisis. Instead, we must tackle it head-on, to ensure justice and safety for all Americans. We will enforce our laws and put bad men behind bars. We will fight the scourge of drug abuse. And we will support the brave men and women of law enforcement, as they work day and night to protect us. Together, let us act to meet this challenge, so that our children will not look back and say that we let slip from our grasp all we had done to make America a safer place.

I find it quite interesting and significant that AG Sessions, in the first sentence highlighted above, has highlighted the severity of the current US drug problem in term of the number of deaths caused by the worst and deadliest terrorist attack in US history.  The decision to frame the problem in these terms reveals just how seriously the Attorney General sees the problem, and I am in some sense inclined to respect and applaud this framing in part because I fear a lot of people who have not been directly touched by the modern opioid epidemic do not fully appreciate how many lives are being lost to it.

Ironically, though, the kind of wise intensity I see reflected in the first sentence highlighted above is undercut but what strikes me as a misguided intensity reflected in the second sentence highlighted above.  Because tens of thousands of individuals are dying for opioid overdoses and nobody dies from a marijuana overdoes, it make a whole lot of sense to me that a whole lot of people would see a whole lot of value in encouraging people to trade an opioid dependency for a marijuana dependency.  (And this simple analysis, of course, leaves out the statistically reality that the vast majority of people who use marijuana do not become dependent on it.) 

March 15, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Gun policy and sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (20)

Thursday, March 02, 2017

Leading congressional Dems calling upon AG Sessions to resign, which means.....?

As reported in this new ABC News article, "Sen. Chuck Schumer today joined several Democratic lawmakers in calling for Attorney General Jeff Sessions' resignation amid reports that he met with the Russian ambassador to the United States on two occasions, despite denying during his confirmation hearing that he had made contact with Russian officials." Here is more:

"The information reported last night makes it clear beyond the shadow of a doubt that Attorney General Sessions cannot possibly lead an investigation into Russian interference in our elections or come anywhere near it," the New York senator and minority leader said of revelations that Sessions had contact with the Russians last year.

He added: "There cannot be even the scintilla of doubt about the impartiality and fairness of the attorney general, the top law enforcement official of the land. After this, it's clear Attorney General Sessions does not meet that test. Because the Department of Justice should be above reproach, for the good of the country, Attorney General Sessions should resign.”

Schumer’s comments echoed those of House Minority Leader Nancy Pelosi Wednesday evening who said, "Jeff Sessions lied under oath during his confirmation hearing before the Senate. Under penalty of perjury, he told the Senate Judiciary Committee, 'I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians.’ We now know that statement is false."

For his part, Sessions said in a statement Wednesday night that, "I never met with any Russian officials to discuss issues of the campaign. I have no idea what this allegation is about. It is false."

Other Democratic lawmakers have called for Sessions to resign, while some say he should at least recuse himself from overseeing any investigation into the question of alleged ties between Trump officials and Russians during and after the 2016 election.

Rep. Tim Ryan, D-Ohio, and Rep. Elijah Cummings, D-Md., have called for his resignation, as has Sen. Elizabeth Warren, D-Mass., Sen. Kamala Harris, D-Calif., and Sen. Claire McCaskill, D-Mo. "It is inconceivable that even after Michael Flynn was fired for concealing his conversations with the Russians that Attorney General Sessions would keep his own conversations secret for several more weeks," said Cummings, who is the ranking Democrat on the House Committee on Oversight and Government Reform. "Attorney General Sessions should resign immediately."

According to a Justice Department official, Sessions' meetings with ambassadors were in his capacity as a senator on the Armed Services Committee and about relations between the two countries....

Many other lawmakers have stopped short of calling for resignation, but argued that the attorney general should recuse himself from leading Justice Department investigations over the alleged links between Russian officials and Trump officials, as well as Russia's purported involvement in influencing the 2016 election.

I am inclined to believe that AG Sessions and Prez Trump will resist these calls for the AG to resign over this latest Russian kerfuffle, but in all sorts of ways this development is disconcerting for the future work of the Department of Justice. Sessions seemed to me a controversial choice primarily because of his policy positions, and a whole lots of reputable folks were quick to assert that Sessions was a man of integrity who had the kind of values and character needed to be an effective Attorney General. This latest development would seem to weaken that claim and more broadly weaken Sessions' ability to be an effective AG.

UPDATE The Attorney General has decided to recuse himself "from any matters arising from the campaigns for President of the United States."  His full statement explaining that decision is available at this link.  I suspect this will be more than good enough for Prez Trump and just good enough for most Republicans in Congress and not good enough for most Democrats in Congress.

March 2, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (42)

Tuesday, February 28, 2017

Telling comments about violent crime from AG Sessions in speech to NAAG

Campaign-2016-sessions-profile.jpeg-1280x960Attorney General Jeff Sessions gave this lengthy speech at the winter meeting of the National Association of Attorneys General (NAAG).  The speech is focused on what AG Sessions calls a "disturbing rise in violent crime in our nation," and the full speech should be read by any and everyone eager to get a sense for the perspectives and thinking of our new Attorney General. Here are some passages that especially caught my attention:

First, let’s put things in context.  Overall, crime rates in the United States remain near historic lows. Murder rates are half of what they were in 1980.  The rate of violent crime has fallen by almost half from its peak in the early 1990s. Many neighborhoods that were once in the grip of gangs and drugs and violence are now vibrant places, where kids can play in the park and parents can enjoy a walk after sunset without fear.  There is no doubt that in the past four decades — under leadership from both political parties, and thanks above all to the work of prosecutors and good police using science and professional training — we have won great victories against crime in America.  Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we’ve seen clear warning signs — like the first gusts of wind before a summer storm — that this progress is now at risk.  The latest FBI official data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 11 percent — the largest increase since 1968. The rape rate increased by over 4 percent, and the aggravated assault rate rose by nearly 4 percent.

If this was a one-year spike, we might not worry too much.  But the preliminary data for the first half of 2016 confirmed these trends.  The number of violent crimes in the first half of last year was more than 5 percent higher than the same period in 2015.  The number of murders was also up 5 percent over the same period the year before, and aggravated assaults rose as well.

Just last week, the Wall Street Journal reported that since 2014, the murder rate in 27 of our country’s 35 largest cities has gone up. Homicide rates in Chicago, Baltimore, Milwaukee and Memphis have returned to levels not seen in two decades.  Last year, Chicago had more than 4,000 shooting victims and 762 murders, and Baltimore’s murder rate was its second-highest ever.

These numbers should trouble all of us.  My worry is that this is not a “blip” or an anomaly, but the start of a dangerous new trend that could reverse the hard-won gains of the past four decades — gains that made America a safer and more prosperous place....

While this spike in violent crime is not happening in every neighborhood or city, the trends should concern all of us.  It is a basic civil right to be safe in your home and your neighborhood.  We are diminished as a nation when any of our citizens fears for their life when they leave their home; or when terrified parents put their children to sleep in bathtubs to keep them safe from stray bullets; or when entire neighborhoods are at the mercy of drugs dealers, gangs and other violent criminals.

So we need to act decisively at all levels — federal, state and local — to reverse this rise in violent crime and keep our citizens safe.  This will be a top priority of the Department of Justice during my time as Attorney General.

We know the first step in fixing something is recognizing you have a problem.  For anyone who still doubts that today’s rise in violent crime is real and significant, I’ve done my best here to make that case.  And I’m not alone, because police chiefs and sheriffs and mayors across our country are saying the same thing.

Once we recognize the problem, we need to examine the causes and take action. It’s still early, but people with long experience in law enforcement and crime research are beginning to draw some conclusions.

We know that our nation is in the throes of a heroin epidemic, with overdose deaths more than tripling between 2010 and 2014.  Meanwhile, illegal drugs flood across our southern border and into cities and towns across our country, bringing violence, addiction and misery.  In particular, we’ve seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs.  As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

In recent years, we’ve also seen a significant shift in the priority given to prosecuting gun and drug offenders at the federal level.  While numbers don’t tell the whole story, I still find the following statistics troubling: at the end of 2015 there were more than 7 percent fewer federal gun prosecutions than five years before. In that same five-year period, federal drug prosecutions declined by 18 percent.

Under my leadership at the Department of Justice, this trend will end.  Our agents and prosecutors will prioritize cases against the most violent offenders, and remove them from our streets so they can no longer do us harm.

We’ve also heard from law enforcement leaders, including the FBI Director and many police chiefs, that something is changing in policing.  They tell us that in this age of viral videos and targeted killings of police, many of our men and women in law enforcement are becoming more cautious.  They’re more reluctant to get out of their squad cars and do the hard but necessary work of up-close policing that builds trust and prevents violent crime.

This is a terrible place to be, because we know that tough and effective law enforcement can make a real difference. It can reduce crime and save lives. We’ve seen it happen in our country over the past four decades — and many of you in this room have been part of this noble work.

The immense social costs of crime are indisputable. Yes, incarceration is painful for the families of inmates, and every conviction represents a failure on multiple levels of society.  But the costs of rising crime are even more severe.  Drug crimes and violent felonies change the lives of victims forever.  Neighborhoods hit by rising crime suffer deep economic harm.  And if more young men choose to commit crimes because jail time is less daunting than before, that means they are forgoing more hopeful courses for their lives and their communities.  In the midst of a terrible heroin epidemic and a rise in violent crime, we should not roll back the tools law enforcement has to go after federal drug trafficking and firearms felons, or release thousands more.

The federal government has a key role to play in addressing this crisis.  I pledge that under my leadership at the Department of Justice, we will systematically prosecute criminals who use guns in committing crimes.  We will work to take down drug trafficking cartels and dismantle gangs. And we will enforce our immigration laws and prosecute those who repeatedly violate our borders.

I also pledge to listen to the stories and concerns of those who are most affected by this rise in violent crime.  Over the coming months I plan to travel around the country, from border towns to big cities, to talk with and learn from our law enforcement partners, crime victims, community leaders and others.

Earlier this month, the President also gave us clear direction. He signed three executive orders aimed at reducing crime and restoring public safety, protecting our law enforcement personnel, and dismantling the transnational cartels that are bringing drugs and violence into our neighborhoods.

To carry out the first of those orders, today I’m announcing the formation of a Department of Justice Task Force on Crime Reduction and Public Safety.

The Deputy Attorney General will chair the task force, which will include crime reduction experts throughout the Department of Justice, including the heads of the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Drug Enforcement Administration (DEA) and the U.S. Marshals Service.  The task force will evaluate everything we are doing. It will look at deficiencies in our current laws that have made them less effective in reducing crime, and propose new legislation.  It will make sure we’re collecting good crime data, and think of ways to improve that data so we can all better understand crime trends.  We will insist that every agent and prosecutor is deployed effectively, fully supported and highly productive.  Finally, the task force will consult with our partners in law enforcement at all levels, as well as law enforcement organizations, victims’ groups and community groups....

Unfortunately, in recent years law enforcement as a whole has been unfairly maligned and blamed for the unacceptable deeds of a few bad actors.  Our officers, deputies and troopers believe the political leadership of this country abandoned them. Their morale has suffered. And last year, amid this intense public scrutiny and criticism, the number of police officers killed in the line of duty increased 10 percent over the year before. To confront the challenge of rising crime, we must rely heavily on local law enforcement to lead the way — and they must know they have our steadfast support.

For the federal government, that means this: rather than dictating to local police how to do their jobs — or spending scarce federal resources to sue them in court — we should use our money, research and expertise to help them figure out what is happening and determine the best ways to fight crime. We should strengthen partnerships between federal and state and local officers. And we should encourage proactive policing that ensures our police and citizens are communicating and working well together.

The new challenge of violent crime in our nation is real — and the task that lies before us is clear. As President Reagan used to say, there are no easy answers, but there are simple ones; we only need the courage to do what is right.  We need to resist the temptation to ignore or downplay this crisis and instead tackle it head-on, to ensure justice and safety for all Americans. We need to enforce our laws and put bad men behind bars.  And we need to support the brave men and women of law enforcement as they work day and night to protect us.

February 28, 2017 in Criminal justice in the Trump Administration, Gun policy and sentencing, Who Sentences? | Permalink | Comments (12)

What are we likely to hear (or hoping to hear) from Prez Trump tonight about crime and punishment?

Prez Trump is slated to give his first speech to Congress tonight, and this Politico piece reports on some of the advance buzz coming from the White House about the tone and content of the speech.  Here are brief excerpts from the report that might interest sentencing fans:

President Donald Trump’s highly-anticipated first address to Congress on Tuesday will detail an “optimistic vision” for the nation that vows to push a “bold agenda” on tax and regulatory overhauls, reforms in the workplace and a promise to “sav[e] American families from the disaster of Obamacare.”

That’s according to a list of 11 key bullet points outlining Trump’s speech from the White House that was obtained by POLITICO in advance of the address.  In it, Trump will also paint his agenda with broad, unifying tones, saying he will “invite Americans of all backgrounds to come together in the service of a stronger, brighter future for our nation.”

“All Americans share a desire for safe communities for themselves and their families,” reads one of the points....

Here is the outline of Trump’s address, distributed by the White House:...

• In Tuesday night’s speech, he will lay out an optimistic vision for the country that crosses the traditional lines of party, race and socioeconomic status. It will invite Americans of all backgrounds to come together in the service of a stronger, brighter future for our nation.

• All Americans share a desire for safe communities for themselves and their families....

• It will be a speech addressed to ALL Americans AS Americans — not to a coalition of special interests and minor issues.

• Americans can expect a speech that is grounded firmly in solving real problems for real people. How can we make sure that every American who needs a good job can get one? How can we get kids who are trapped in failing schools into a better school? How we can keep gangs and drugs and violent crime out of their neighborhoods?

• The President will reach out to Americans living in the poorest and most vulnerable communities, and let them know that help is on the way.

Based on Prez Trump's prior speeches, I am expecting mostly generalities rather than many specifics on the topics of crime and punishment. But the tone and nature of generalities here could still provide addition insight into the likely direction and priorities for the administration of the federal criminal justice in the Trump era.

February 28, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)

Monday, February 27, 2017

Ohio Secretary of State reports that 82 non-citizens have recently cast votes in Ohio

Because I continue to be intrigued by Prez Trump's claim that millions of persons committed a crime by voting illegally in our last election, I find interesting this new story about illegal voting in Ohio headlined "82 non-citizens voted in Ohio, Husted says." Here are the details:

Nearly 400 non-citizens are registered to vote in Ohio — 82 of whom have managed to cast ballots in at least one election since 2015, Secretary of State Jon Husted said Monday.  Husted, a Republican and likely candidate for Ohio governor, said his office discovered the 385 registrations from non-citizens on a biennial review of the state's voter database.  In total, 7.9 million people were registered to vote in Ohio as of the November election, so the non-citizens make up fewer than 1 in every 20,000 registered voters — far from the widespread voter fraud President Donald Trump has claimed.

Husted is sending law enforcement the names of the 82 non-citizens who voted, so officials can investigate and decide whether to prosecute. His office will send letters to the non-citizens who registered but never voted, requesting they cancel their registration. If they fail to do so, they could ultimately face prosecution. Election fraud can carry a fifth-degree felony charge in Ohio.

As Trump has alleged voter fraud in last year's election, Husted has countered that election fraud isn't a common problem. Still, his office has boasted of its three reviews of the voter rolls to look for non-citizens, the first such reviews conducted by an Ohio secretary of state. “In light of the national discussion about illegal voting it is important to inform our discussions with facts. The fact is voter fraud happens, it is rare and when it happens, we hold people accountable,” Husted said Monday in a statement.

Husted didn't say how which elections the 82 non-citizens had voted in, but even if they all voted in November 2016, they couldn't have swayed Ohio's presidential result, for instance.  Eighty-two votes would have amounted to 0.0015 percent of the state's November voters. None of the non-citizens cast a vote in a race that was tied or decided by one vote, Husted said....

The secretary of state's office began the biennial review in 2013. Reviews that year and in 2015 uncovered a total of 44 non-citizens who voted in an election.  Of those, eight people have been convicted of breaking the law and two other cases still are pending, spokesman Josh Eck said.

Trump continues to claim — without any evidence — that massive voter fraud marred the 2016 presidential election. On Jan. 23, the new president told congressional leaders between 3 million and 5 million illegal votes caused him to lose the popular vote to Democrat Hillary Clinton.  Trump won the election with a convincing victory in the Electoral College, even as Clinton won the popular vote by nearly 2.9 million votes. 

If the Ohio story is reasonably representative of the national story (as is often the case with bellwether Ohio), then we might reasonably suspect that there may have been between 3 thousand and 5 thousand illegal votes case in the 2016 election.  Whether or not Ohio is representative of other states in this particular context, I am quite pleased to learn that the crime of voter fraud is not rampant in the great state of Ohio.

February 27, 2017 in Criminal justice in the Trump Administration, Offense Characteristics | Permalink | Comments (28)

Saturday, February 25, 2017

"Conservative Criminal Justice Advocates Try To Change The System — Even In The Trump Era"

The title of this post is the title of this new BuzzFeed News piece which follows up with this subheadline: "Conservative groups pushing for changes to the criminal justice system flooded this year’s conservative confab known as CPAC hoping to convince more people on the right to embrace their cause." Here are excerpts:

Groups, like the American Conservative Union Foundation, an arm of the ACU, which hosts CPAC, hope to convince more people on the political right to embrace the cause as a conservative one by leveraging their recent successes at the state level and reminding lawmakers that it’s an issue with support from multiple conservative groups.

“I do feel that letting politicians know that we are large in numbers and we do support this, and we are present at all of these events, we’re not going to go away; it’s something that’s important and it’s […] a part of the conservative movement,” says Christina Delgado, a spokesperson for the conservative group FreedomWorks....

But some, especially members of the Republican conference in Congress, have expressed concerns over whether reforms — which aim to reduce mass incarceration, rising prison costs, and recidivism rates — represent a soft-on-crime approach to the criminal justice system that could jeopardize public safety. “You do have people that have a bit more of a reactionary tough-on-crime approach that have come up to the booth and talked to us about it,” says Derek Cohen, deputy director of Texas-based Right on Crime, which is also attending CPAC. “But once you start talking to them about, you know, the practicalities of running a criminal justice system, they actually get it very quickly.”...

Delgado says the issue came up in questions during a Thursday event hosted by FreedomWorks that featured Kentucky Gov. Matt Bevin, a Republican who recently signed an order to try to help ex-offenders land jobs after their sentence is up.  Delgado says Bevin noted “it’s not about going softer on crime, it’s about just making sure that we’re addressing the more important aspects of crime, and that is the actual danger, the actual criminals, the actual problem.”

Cohen says different types of conservatives — social, fiscal, libertarian — “all have their own reasons for actually being interested in the reform campaign.”  For many libertarians, it’s issues such as civil asset forfeiture that make the case for criminal justice reform.  For fiscal conservatives, it’s about cutting rising corrections costs.”...

But even with progress happening in Republican-leaning states, it remains to be seen where exactly the new Trump administration will fall on specific federal criminal justice issues. Trump said he wanted to “bring back law and order” during the election campaign, but has not detailed what that will mean.

Though not all are convinced Trump will be swayed by the arguments for criminal justice reform — his attorney general, Jeff Sessions, was a vocal opponent during his time in the Senate — pro-reform groups are hoping state successes appeal to Trump.  “As President Trump considers how best to reduce crime and restore public safety, we hope that he can learn from reform champions in states like Oklahoma, Louisiana and Kentucky to chart a new path for America,” Steve Hawkins, president of the Coalition for Public Safety — another CPAC attendee — said in a statement to BuzzFeed News.

Cohen says Right on Crime, which has attended the last five CPACs, has met with members of Congress recently, and that “there seems to be renewed energy” in passing reform legislation.  Judiciary Committee members Sens. Dick Durbin and Chuck Grassley have said they plan on re-introducing the bill in the current sessions of Congress.  “Now, what shape that reform’s going to be in, I think is a bit premature to say,” Cohen said, “but there definitely is the same appetite if not a greater one.”

Recent prior related post:

February 25, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, February 14, 2017

Noting central place of Texas in (incomplete) consensus disfavoring increased use of incarceration

Today's New York Times has this extended commentary about incarceration authored by Tina Rosenberg running under the headline "Even in Texas, Mass Imprisonment Is Going Out of Style."  Here are excerpts:

It promises to be a bleak four years for liberals, who will spend it trying — and, most likely, failing — to defend health care, women’s rights, climate change action and other good things.  But on one serious problem, continued progress is not only possible, it’s probable. That is reducing incarceration.  In an era of what seems like unprecedented polarization and rancor, this idea has bipartisan support. The Koch brothers and Black Lives Matter agree.  The American Civil Liberties Union and the American Conservative Union Foundation agree.  Bernie Sanders and Newt Gingrich agree.

Here’s what they agree on:

• The United States went overboard on mass incarceration in the 1980s and 1990s.

• This has ruined a lot of lives — of those incarcerated, yes, but also others among their families and communities.

• The evidence says that harsher sentences don’t prevent crime and may even lead to more crime.

• Jailing people is really, really expensive.

• Prison brings no help and much harm to the 80 percent of prisoners who are addicted to drugs or mentally ill.

• There are alternatives to imprisonment that keep Americans safe.

(There are also crime and justice issues that these liberals and conservatives do not agree on, such as the death penalty, the merits of private prisons and, of course, guns.)

Even all this agreement is no guarantee of progress in Washington.  President Trump’s policies on crime are whatever slogans get the crowd roaring. Attorney General Jeff Sessions has a D-plus record on this issue as a senator.  He supported reducing the disparity in sentencing for cocaine and crack possession. He did vote for the Prison Rape Elimination Act — kudos for that, I suppose.  But last year, Mr. Sessions, along with a few other Republican senators, blocked the major bill on this issue, the Sentencing Reform and Corrections Act, from coming to a vote.  So the administration can be expected to be unhelpful, with Congress a question mark.

While Washington’s actions are important, however, federal prisons hold only one in eight imprisoned Americans.  So mass incarceration is really a state issue. And in the states, momentum is heartening. After quintupling between 1974 and 2007, the imprisonment rate is now dropping in a majority of states.  Overall, it fell by 8.4 percent from 2010 to 2015, while crime dropped by 14.6 percent, according to research by the Pew Charitable Trusts.

California slashed its incarceration rate by 27 percent between 2006 and 2014 after a court order. New York cut its rate by 18 percent, largely because of reform of the Rockefeller drug laws that mandated long sentences for possession. New Jersey’s rate dropped by 24 percent.

More remarkable — and probably more persuasive to other states and to Congress now — is the shift in red states, where incarceration rates have been the highest. In the last decade, they have dropped substantially in South Carolina, Mississippi, Georgia and, notably, in lock-’em-up Texas....

The cost of prisons was a huge issue.  In 2007, the Texas Legislative Budget Board projected that the state would need more than 17,000 new prison beds over five years, a building project that would cost $530 million, never mind the operating costs. That pushed the ultraconservative House speaker, Tom Craddick, to a breaking point. Jerry Madden, the Republican chairman of the House Corrections Committee, said in an interview that Craddick took him aside. “Don’t build new prisons,” Craddick told him. “They cost too much.”

Madden was an engineer and took that approach, asking: What is proven to work to keep people out of prison? How much of that do we need to buy in order to not build more of them? For ideas, he and his staff talked to research and advocacy groups, including the liberal coalition and the conservative Texas Public Policy Foundation, which gave birth to and houses Right on Crime.

That there was a conservative research group to consult was in itself remarkable. “No one in conservative think tanks worked on criminal justice, other than to advocate for more prisons and more incarceration,” said the foundation’s director, Brooke Rollins, who had been Gov. Rick Perry’s policy director. But in 2004, Rollins got a call from Tim Dunn, an oilman who helps fund the foundation and serves on its board. Dunn has put millions of his own money into pushing the Texas legislature further to the right. Texas Monthly called him “probably the most influential person many Texans have never heard of.”

“Conservatives are wrong on crime,” he told a startled Rollins. “Scripture would not call us to build prisons and forget people.” Dunn believes that crime victims want restitution and repentance, while the prison system merely incapacitates. On his personal website, he wrote that “nonviolent crimes should be recompensed in a way that gets people back into the work force and adding to communities as quickly as possible,” and that Texas should “focus on restoring victims and communities damaged by crime.”

At Dunn’s urging, Rollins hired Levin part time to work on a conservative approach to criminal justice reform. “We found the conservative and liberal think tanks agreed on 70, 80 percent of the stuff,” said Madden.  And it’s those areas of agreement that were put in the bill. The reforms passed nearly unanimously — and although Perry had previously vetoed narrower reforms, this time he signed them. (He now endorses the Right on Crime agenda.)  Reforms continue today: 16 bills passed in the last legislative session, including one allowing people to erase their criminal records in some circumstances....

The state now has drug courts, veterans’ courts and mental health courts. “They are there to provide help, but at the same time, structure,” said Madden, who is retired from the legislature.  “You have a problem and we’re going to help you with your problem.”  Many inmates were in prison for technical violations of their probation or parole. Now those violations often bring rapid sanctions and supervision instead of a return to prison.

The rate of incarceration in Texas state prisons fell by 17 percent from 2007 to 2015, according to the coalition, and the juvenile incarceration rate fell by nearly three-quarters. Recidivism is dropping steadily. At the same time, the crime rate has dropped by 27 percent.

Texas still has much to do. It ranks sixth or seventh in the nation in imprisonment rates. Some 8,900 people are in the state jail system for crimes that are neither violent nor sexual. Many are there for drug charges, but they often can’t get treatment in jail.  Thousands of people are sent back to prison each year for technical revocation of parole or probation.  As for juveniles, 22,000 are in the adult system, where they are at high risk of sexual assault and suicide....

The fall in crime rates — itself a reason incarceration has dropped — has made reform politically possible. Conservative leadership in states like Texas gives everybody cover. And Americans support criminal justice reform by large majorities.  One telling example: in his re-election campaign in 2014, Gov. Nathan Deal of Georgia, a Republican, highlighted his reforms that lowered the rate of incarceration among African-Americans by 20 percent.  Twenty years ago, a Republican in Georgia would have boasted about the opposite.

If crime rates begin rising again, could hard-line thinking once more prevail? Yañez-Correa doesn’t think so. “Many legislators want to work on these issues jointly because other issues are so polarized,” she said. “People on both sides are genuinely interested and devoted.”

This story is important and encouraging, but it fails I think it connect fully with the import and impact of Prez Trump campaigning on a "law and order" platform and his eagerness to make much of the uptick in murder and other violent crimes in some big cities in recent years.  The folks over at Crime & Consequences and many others are quick and keen to link any and every increase in crime to recent decreased use of incarceration, and that perspective is certainly some element of how Prez Trump and AG Sessions think about crime and punishment issues.

I remain hopeful that, especially at the state level, there is continued interest in, and bipartisan support for, an array of "smart on crime" alternatives to incarceration for a range of less serious and less dangerous offenders.  But I do not think that Prez Trump and AG Sessions, arguably the two most important criminal justice policy-makers for the next few years, subscribe to all or even most of what is listed above in the commentary as points of agreement.  And that is a very big deal that must always be front and center as one considers the future of criminal justice reform at both the federal and state level.

February 14, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Monday, February 13, 2017

Will Prez Trump and AG Sessions listen to law enforcement leaders with diverse views on crime and punishment?

LEL_report_cover-209x300The question in the title of this post is prompted by this New York Times article, headlined "Police Chiefs Say Trump’s Law Enforcement Priorities Are Out of Step," discussing a new report issued by organization Law Enforcement Leaders to Reduce Crime and Incarceration. The NY Times piece provides this accounting of the report along with some diverse perspectives on how diverse law enforcement leaders look at and toward the Trump Administration:

Not surprisingly, President Trump’s approach to crime, which began to take shape in a series of moves last week, generated swift criticism from liberals and civil rights groups. But it also stirred dissent from another quarter: prominent police chiefs and prosecutors who fear that the new administration is out of step with evidence that public safety depends on building trust, increasing mental health and drug addiction treatment, and using alternatives to prosecution and incarceration.

“We need not use arrest, conviction and prison as the default response for every broken law,” Ronal W. Serpas, a former police chief in Nashville and New Orleans, and David O. Brown, a former Dallas chief, wrote in a report released last week by a leading law enforcement group. “For many nonviolent and first-time offenders, prison is not only unnecessary from a public safety standpoint, it also endangers our communities.”

The organization, the Law Enforcement Leaders to Reduce Crime and Incarceration, is made up of more than 175 police officials and prosecutors, including Charlie Beck, Los Angeles’s police chief; Cyrus R. Vance Jr., Manhattan’s district attorney; and William J. Bratton, the former police chief in New York and Los Angeles. Other leading law enforcement groups have also called for an increase in mental health and drug treatment, a focus on the small number of violent offenders who commit the most crimes, training officers on the appropriate use of force, and retooling practices to reflect a growing body of evidence that common practices, such as jailing people before trial on minor offenses, can actually lead to an increase in crime. The group warned that “failing to direct these resources toward our most immediate and dangerous threats risks wasting taxpayer dollars,” singling out using federal money on “dragnet enforcement of lower-level offenses.”

Mr. Trump has shifted the focus from civil rights to law and order, from reducing incarceration to increasing sentences, from goading the police to improve to protecting them from harm. Last week, he swore in a new attorney general, Jeff Sessions, who has said that the government has grown “soft on crime,” and helped block a bipartisan bill to reduce sentences. Mr. Sessions said that a recent uptick in crime in some major cities is a “dangerous, permanent trend,” a view that is not supported by federal crime data, which shows crime remains near historical lows. The president signed executive orders that repeatedly connected public safety to immigration violations, vowing to fight international crime cartels; to set up a task force to “comprehensively address illegal immigration, drug trafficking, and violent crime”; and to focus on preventing violence to peace officers.

Some police chiefs and sheriffs have complained that immigration enforcement is not consistent with their priorities and could undermine hard-earned trust. “I would rather have my officers focused on going after violent criminals and people breaking into homes than going after nannies and cooks,” Chief Art Acevedo of Houston said. Kim Ogg, the new district attorney in Houston, won office promising to make changes like dropping prosecution of low-level drug offenses, reducing the use of money bail and releasing videos of police shootings. Those priorities were much more aligned with the Obama administration than Trump’s, in whose pronouncements Obama-era buzzwords like deincarceration, constitutional policing and de-escalation — reducing the use of force during police encounters — have all but disappeared. Mr. Trump did tell a gathering of police chiefs this week: “As part of our commitment to safe communities, we will also work to address the mental health crisis. Prison should not be a substitute for treatment.”...

Some police chiefs said they are reserving judgment until there is more meat on the bones of the administration’s plans. “Hopefully, they are going to seek our practical advice,” said Edward A. Flynn, Milwaukee’s police chief, who also heads the legislative committee of the Major Cities Chiefs Association. “That to us is key. We don’t want any more policy bromides grounded in campaign promises. We want ideas grounded in practical wisdom about how to protect our cities.”

Still, a number of chiefs — and perhaps the vast majority of lower-ranking officers — say they are basking in the glow of Mr. Trump’s positive attention after feeling under siege during the Obama administration. “Law enforcement in general was painted with a very broad brush,” said Michael J. Bouchard, the sheriff of Oakland County, Mich. “The idea was that policing was broke, and I think that was a false dialogue.”

Unions agreed. “I can promise that if we have a president who is speaking about protecting the lives of police officers, that the membership is going to be supportive of him,” said Chuck Canterbury, the president of the Fraternal Order of Police. “No police officer took an oath that said, ‘I agree to support and defend the Constitution and to get my butt whipped.’” Michael A. Ramos, the president of the National District Attorneys Association and the chief prosecutor in San Bernardino County, Calif., hailed the shift in emphasis, saying the pendulum had swung “way too far” toward being “soft on crime.”

Law enforcement leaders responded more positively to Mr. Trump’s order to ratchet up the fight against organized crime cartels, which operate through intermediaries in even the smallest American cities through the sale of heroin, methamphetamine, and other drugs. But Darrel W. Stephens, the executive director of the Major Cities Chiefs Association, said the nation also needed to address its appetite for drugs: “We must do everything we can to stop the flow of drugs into our country, but doing so would not solve our substance abuse problem.”

The full 28-page report referenced here is titled "Fighting Crime and Strengthening Criminal Justice: An Agenda for the New Administration," and it is available at this link. An executive summary and press release provides these five bullet points describing the report's suggested priorities:

• Prioritizing fighting violent crime.

• Enact federal sentencing reform.

• Increasing mental health and drug treatment.

• Bolstering community policing.

• Expanding recidivism reduction programs.

February 13, 2017 in Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (19)

Thursday, February 09, 2017

Prez Trump signs three crime-fighting executive orders, including one to create a “Task Force on Crime Reduction and Public Safety”

As reported and summarized in this CBS News report, this morning "President Trump signed three executive actions Thursday aimed at bolstering law enforcement and targeting violent crime and criminal drug cartels." Here is more:

The first executive order, according to what Mr. Trump outlined during the signing ceremony in the Oval Office, is meant to direct the Departments of Justice and Homeland Security to “undertake all necessary and lawful action to break the back of the criminal cartels that have spread across our nation and are destroying the blood of our youth and many other people.” The president signed the action Thursday after swearing in Attorney General Jeff Sessions. Among other powers, the action gives broad authority to increase intelligence and lawn enforcement information sharing with foreign powers in order to crack down on “transnational criminal organizations” and their subsidiaries. It also instructs an interagency panel to compile a report on crime syndicates within four months.

“These groups are drivers of crime, corruption, violence, and misery,” the order reads. “In particular, the trafficking by cartels of controlled substances has triggered a resurgence in deadly drug abuse and a corresponding rise in violent crime related to drugs.”...

The president signed two other actions Thursday, including one that creates a task force within the Justice Department dedicated to “reducing violent crime in America.” The “Task Force on Crime Reduction and Public Safety” will have administrative and financial support from the Attorney General’s office, according to the text of the order.

The last action directs the DOJ to implement a plan to “stop crime and crimes of violence against law enforcement officers.” The order itself instructs the department to “pursue appropriate legislation...that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.” That recommended legislation could include “defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence.” The order also directs a thorough evaluation of all grant funding programs currently administered by the Justice Department.

I am intrigued by all three of these orders, but I want to read the full orders before I comment on these.  Helpfully, the White House now has them available via these links:

Presidential Executive Order on a Task Force on Crime Reduction and Public Safety

Presidential Executive Order on Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking

Presidential Executive Order on Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers

February 9, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5)

Wednesday, February 08, 2017

Jeff Sessions confirmed as Attorney General ... now what for federal sentencing policies and practices?

Jeff_Sessions_official_portraitAs Fox News reports here, "Sen. Jeff Sessions won confirmation Wednesday evening to become the next attorney general of the United States," and here's more of the basic backstory:

The Senate narrowly approved the Alabama Republican’s nomination on a 52-47 vote, the latest in a series of confirmation votes that have been dragged out amid Democratic protests. One Democrat, Joe Manchin of West Virginia, joined Republicans in voting to confirm Sessions. Sessions himself voted present.

In his farewell address Wednesday evening, Sessions urged his erstwhile colleagues to get along better following days of bruising debate. "We need latitude in our relationships," Sessions said. "Denigrating people who disagree with us is not a healthy trend for our body."...

Wednesday’s vote came after a rowdy overnight session during which Sen. Elizabeth Warren, D-Mass., was formally chastised for allegedly impugning Sessions’ integrity on the floor. Warren had read a letter authored in 1986 by Coretta Scott King, who was against Sessions’ nomination at the time to the federal bench, arguing he used the power of his office to “chill” black voting rights. Warren also quoted the late Sen. Ted Kennedy, D-Mass., who originally had entered King’s letter into the record, describing Sessions as “disgraceful.”

GOP Senate leaders said Warren had violated Senate rules and should lose her speaking privileges. In a remarkable scene, the Senate then voted 49-43 to suspend Warren’s speaking privileges for the rest of the nomination process – the first time the Senate has imposed such a punishment in decades.

Democrats had repeatedly contended that Sessions is too close to Trump, too harsh on immigrants, and weak on civil rights for minorities, immigrants, gay people and women. Sessions was a prominent early backer of Trump, a supporter of his hard line on illegal immigration and joined Trump's advocacy of a wall along the U.S.-Mexico border....

Republicans argued Sessions has demonstrated over a long career in public service, including two decades in the Senate, that he possesses integrity, honesty, and is committed to justice and the rule of law.

Everyone interested in federal sentencing law, policy and reform as well as all federal sentencing practitioners now must wonder what exactly an Attorney General Sessions will mean for federal sentencing policies and practices emerging from the U.S. Department of Justice.  (Over at Marijuana Law, Policy and Reform, I made the same point with respect to federal marijuana policies.)  

I am expecting and somewhat fearing the possibility that AG Sessions will be eager, though new memoranda to US Attorneys, to ramp up application of mandatory minimums in a variety of settings.  AG Sessions can formally and informally push for "tough and tougher" sentencing policies in lots of other ways as well, and it will be interesting to see whether and how he does in the weeks and months ahead. 

February 8, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (7)

Prez Trump talks crime and support for law enforcement with police chiefs . . . and says some interesting things

Prez Donald Trump gave this lengthy speech to a gathering of major city police chiefs, and he had a lot to say about crime and law enforcement toward its conclusion (after an extended Trumpian discussion of the litigation surrounding his travel executive order).  Here is some of what the Prez has to say on the crime front (with a few points of emphasis added based on what struck me as especially interesting):

Right now, many communities in America are facing a public safety crisis.  Murders in 2015 experienced their largest single-year increase in nearly half a century. In 2016, murders in large cities continued to climb by double digits. In many of our biggest cities, 2016 brought an increase in the number of homicides, rapes, assaults and shootings. In Chicago, more than 4,000 people were shot last year alone, and the rate so far this year has been even higher. What is going on in Chicago?

We cannot allow this to continue. We’ve allowed too many young lives to be claimed -- and you see that, you see that all over -- claimed by gangs, and too many neighborhoods to be crippled by violence and fear.  Sixty percent of murder victims under the age of 22 are African American. This is a national tragedy, and it requires national action. This violence must end, and we must all work together to end it.

Whether a child lives in Detroit, Chicago, Baltimore, or anywhere in our country, he or she has the right to grow up in safety and in peace. No one in America should be punished because of the city where he or she is born. Every child in America should be able to play outside without fear, walk home without danger, and attend a school without being worried about drugs or gangs or violence.

So many lives and so many people have been cut short.  Their potential, their life has been cut short. So much potential has been sidelined. And so many dreams have been shattered and broken, totally broken. It’s time to stop the drugs from pouring into our country. And, by the way, we will do that. And I will say this: General, now Secretary, Kelly will be the man to do it, and we will give him a wall.  And it will be a real wall. (Applause.) And a lot of things will happen very positively for your cities, your states, believe me. The wall is getting designed right now....

It’s time to dismantle the gangs terrorizing our citizens, and it’s time to ensure that every young American can be raised in an environment of decency, dignity, love and support. You have asked for the resources, tools and support you need to get the job done. We will do whatever we can to help you meet those demands. That includes a zero tolerance policy for acts of violence against law enforcement. (Applause.)  We all see what happens. We all see what happens and what’s been happening to you. It’s not fair.

We must protect those who protect us. The number of officers shot and killed in the line of duty last year increased by 56 percent from the year before. Last year, in Dallas, police officers were targeted for execution –- think of this. Who ever heard of this? They were targeted for execution. Twelve were shot and five were killed. These heroic officers died as they lived -– protecting the innocent, rushing into danger, risking their lives for people they did not even know, but for people that they were determined to save. Hats off to you people....

[I]nstead of division and disunity -- and which is so much disunity -- we must build bridges of partnership and of trust. Those who demonize law enforcement or who use the actions of a few to discredit the service of many are hurting the very people they say that they want to help. When policing is reduced, crime is increased, and our poorest citizens suffer the most. And I see it all the time. When the number of police goes down, crime goes up.

To build needed trust between law enforcement and the communities they serve, it is not enough for us to merely talk to each other. We must listen to each other. All of us share the view that those in uniform must be held to the highest possible standard of conduct -- so important. ...

That is why our commitment to law and law enforcement also includes ensuring that we are giving departments the resources they need to train, recruit and retain talent. As part of our commitment to safe communities, we will also work to address the mental health crisis.  Prisons should not be a substitute for treatment. We will fight to increase access to life-saving treatment to battle the addiction to drugs, which is afflicting our nation like never ever before -- ever. (Applause.)

I've been here two weeks. I've met a lot of law enforcement officials. Yesterday, I brought them into the Oval Office. I asked a group, what impact do drugs have in terms of a percentage on crime? They said, 75 to 80 percent. That's pretty sad. We're going to stop the drugs from pouring in. We're going to stop those drugs from poisoning our youth, from poisoning our people. We're going to be ruthless in that fight. We have no choice. (Applause.)

And we're going to take that fight to the drug cartels and work to liberate our communities from their terrible grip of violence. You have the power and knowledge to tell General Kelly -- now Secretary Kelly -- who the illegal immigrant gang members are. Now, you have that power because you know them, you're there, you're local. You know the illegals, you know them by their first name, you know them by their nicknames. You have that power. The federal government can never be that precise. But you're in the neighborhoods -- you know the bad ones, you know the good ones.

I want you to turn in the bad ones. Call Secretary Kelly's representatives and we'll get them out of our country and bring them back where they came from, and we'll do it fast. You have to call up the federal government, Homeland Security, because so much of the problems -- you look at Chicago and you look at other places. So many of the problems are caused by gang members, many of whom are not even legally in our country.

I saw a few folks tweeting concerns this morning about Prez Trump's statement that we are "going to be ruthless in that fight" against "drugs from poisoning our youth, from poisoning our people."  And, with coming likely confirmation of AG Jeff Sessions, there is a very reasonable basis for fearing that the Trump Administration is going to seek to double-down on old tough-and-tougher approaches to the drug war.  But given some of the other Trump comments highlighted here (particular the comment that "prisons should not be a substitute for treatment"), I am holding out at least some hope that some nuance will be a part of the particulars of any new Trumpian drug war offensive.

February 8, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (11)

Tuesday, February 07, 2017

Prez Trump in sheriffs meeting expresses support for broad civil forfeiture police powers

This Washington Post report details the notable joke Prez Trump made regarding a state legislator who apparently wants to limit police civil forfeiture powers, and highlights the broader issues raised by the surrounding discussion.  Here are the details:

At a meeting on Tuesday with sheriffs from across the country, President Trump joked about destroying the career of an unnamed Texas state senator who supported curtailing a controversial police practice for seizing people's property....

Sheriff Harold Eavenson of Rockwall County, Tex., brought up the issue of civil asset forfeiture, which allows authorities to seize cash and property from people suspected, but in some cases never convicted or even charged, with a crime. Eavenson told Trump of a “state senator in Texas that was talking about legislation to require conviction before we could receive that forfeiture money.”

“Can you believe that?” Trump interjected. “And,” Eavenson went on, “I told him that the cartel would build a monument to him in Mexico if he could get that legislation passed.”

“Who's the state senator?” Trump asked. “Do you want to give his name? We'll destroy his career,” he joked, to laughter from the law enforcement officials in the room....

While many people are unfamiliar with the practice, asset forfeiture is widespread. In 2014, federal authorities alone seized over $5 billion from suspected criminals, more than the total losses to burglary that year. That number doesn't even count seizures conducted by state and local law enforcement. Critics of asset forfeiture policies say the broad leeway afforded to law enforcement officers in most states creates a system ripe for abuse....

A 2015 ACLU investigation found that Philadelphia police routinely seized what amounted to “pocket change” from some of the city's poorest residents. A 2014 Washington Post investigation found that police seized $2.5 billion in cash from motorists not charged with crimes as part of a federal program.

When told of the practice, a large majority of Americans are opposed to it. A December 2016 survey by YouGov and the libertarian Cato Institute found that 84 percent of Americans oppose taking “a person’s money or property that is suspected to have been involved in a drug crime before the person is convicted of a crime.”...

But law enforcement groups have been resolute in their support for the practice. They say seizing money from people not charged with crimes is sometimes necessary to protect public safety, particularly in cases where it may be hard to obtain a criminal conviction against a suspect.

Law enforcement groups often cast asset forfeiture as a tool for fighting drug kingpins and foreign drug cartels, as Sheriff Eavenson implied at the White House meeting. But reports of asset forfeiture abuse suffered by American citizens have become more common. Nonetheless, police have had great success in convincing state and federal lawmakers to uphold the practice.

President Trump has not spoken much about the practice, and the White House did not immediately return a request for comment. But Trump's nominee to lead the Justice Department, Sen. Jeff Sessions, has been an enthusiastic proponent of civil asset forfeiture. In a 2015 Senate hearing, Sessions said that “95 percent” of forfeitures involve suspects who have “done nothing in their lives but sell dope.”

February 7, 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 (4)

Wednesday, February 01, 2017

Highlighting the basis for hoping Judge Gorsuch will prove to be like Justice Scalia on some criminal justice issues

Leon Neyfakh has this piece at Slate of note headlined "Unlike Trump, Neil Gorsuch Has Shown Flickers of Humanity on Criminal Justice Issues." Here are excerpts:

Donald Trump got himself elected in part by acting not just tough on crime but merciless. The guy loves the police and hates anyone who’s even been accused of breaking the law—thinks they’re disgusting and dangerous and don’t deserve an inch of sympathy no matter the circumstances of their offense. This is what it means to be strong in Donald Trump’s mind—a reflection, it has been persuasively argued by historian Rick Perlstein, of the formative years he spent fearing for his life in New York during the bad old 1970s and ’80s.

So it comes as something of a surprise that his pick for the Supreme Court, Neil Gorsuch, has a judicial track record dotted with flashes of humanity when it comes to issues of criminal justice. There’s the time he dissented from his colleagues about whether it was right for a school police officer to handcuff and arrest a seventh-grader for burping in class. (“My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.”)

There’s the time he argued it was unfair to hold a guy responsible for failing to follow a law he didn’t know he was breaking, a dissenting opinion that began: "People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land."

Maybe my expectations have sunk too low since Inauguration Day, but even just the premise of those sentences — that putting someone in prison is undesirable and that putting someone in prison who doesn’t deserve to be there is more likely unfair than fine — feels somewhat reassuring.

Also reassuring: a speech Gorsuch gave in 2006 that was being highlighted Tuesday night by the folks at Right on Crime, an organization of conservatives who support criminal justice reform. In that speech, Gorsuch mostly applied his soon-to-be-famous verve to the conservative parlor game of mocking silly federal statutes (“Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag? Yes, they’re probably federal criminals too”). But he also said something that betrays an awareness of just how dangerous it is for prosecutors — federal and otherwise — to enjoy so much discretion that they can pretty much punish anyone they want: “What happens to individual freedom and equality,” Gorsuch asked, “when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”...

But lest you think Mr. American Carnage has chosen a nominee who is some kind of soft-hearted criminal-coddler, consider the Gorsuch decisions flagged Tuesday by Igor Volsky from the Center for American Progress. One of them has Gorsuch declining to provide relief to a defendant who got life in prison without parole because his lawyer threatened to quit his case if he took a plea bargain instead of going to trial. Several others suggest a tendency to side with police officers who have been accused of excessive force—including one who killed a man by shocking him with a Taser to the head during a chase and another who put a 9-year-old who’d stolen an iPad from his school in a “twist-lock.”

February 1, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (4)

Tuesday, January 31, 2017

Prez Trump notes Judge Gorsuch's law school work on behalf of prisoners and defendants during SCOTUS nomination

President Trump lived up to his promise to appoint a judge from his not-so-short lists, and tonight the pick he announced was Tenth Circuit judge Neil Gorsuch. Though I would like to see some more diversity on the High Court, I can never be too disappointed when another graduate from my law school alma mater gets tapped to be a Justice. And, I found really interesting that Prez Trump noted this bit of Judge Gorsuch's history while in law school (with my links added):

While in law school, he demonstrated a commitment to helping the less fortunate. He worked in both Harvard Prison Legal Assistance Projects and Harvard Defenders Program.

This law school history is certainly not evidence that Judge Gorsuch would be likely to vote one way or the other in criminal cases, but I still think it quite notable that the judge has this history and than Prez Trump would stress this history.

In the days ahead, I hope to identify any interesting and notable criminal justice opinions of Judge Gorsuch from his time on the Tenth Circuit over the last decade.

January 31, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (10)

Exactly who should (or are) sentencing fans rooting for as Prez Trump is about to announce his SCOTUS pick?

Regular readers know I have blogged a fair amount about some of the folks on Prez Trump's not-so-short SCOTUS pick list, and some of these prior posts are collected below.  According to press reports, a couple of well-established and generally well-regarded circuit judges have emerged as the most likely pick.  I now wonder if readers with a special interest in sentencing jurisprudence have a special reason to be pulling for a special candidate.  If so, please share who and why in the comments.

Once a pick is announced, I expect to do a little blogging on the nominees' sentencing work even though I expect very few others will be assessing the pick's work in this arena.  And, as always, I both welcome and depend on help from readers who might have insights and perspectives that I am sure to miss hanging out in my ivory tower. 

A few prior related Trumpian SCOTUS posts:

January 31, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)

Monday, January 30, 2017

Is VP Pence going to be a key player for possible federal sentencing reform?

The question in the title of this post is prompted by this interesting new Daily Caller article headlined "Want Drug-Sentencing Reform? Look To Mike Pence, Congressman Says. Here are the details:

Criminal-sentencing reform proponents in Congress are “hopeful” that Vice President Mike Pence will be an ally, helping them to work with the new law-and-order administration to pass legislation to cut mandatory minimum sentencing for drug-law offenders. “I’ve got reason to be hopeful,” House Oversight Committee Chairman Jason Chaffetz told reporters at a morning session of the Seminar Network, a large group of wealthy libertarian and conservative donors gathered in Palm Springs by Charles and David Koch....

Speaking to reporters alongside Sen. Mike Lee, also of Utah, Chaffetz said, “Gov. Pence, having been a governor, he understands this. In the end, he’s done some wise things. And I also think you will see concerted support from conservative governors who will buoy up any support in the White House.”

“If you’re going to be tough on crime, you better be smart about it.  And there are hardened criminals who do need to spend the rest of their lives in prison.” But, he added, we need to fix the problem of repeat offenders spending years in prison for drug crimes.

Doug Deason, a Seminar Network donor with an interest in sentencing reform, highlighted the White House’s new legislative director, Marc Short, as another reason to be hopeful. Before joining the administration, Short was a longtime adviser to Pence and a lead deputy in the libertarian Koch network. “He cares passionately about criminal justice reform,” Deason said.  Deason, a Texas businessman who is president of Deason Capital Services, was less enthusiastic about Sessions, telling reporters, “I’m glad they got him out of the Senate, they got him out of the way!”

Chaffetz defended Sessions, however, pointing to the Fairness in Sentencing Act the Alabama senator shepherded through in 2010, reducing the difference between sentences for crack cocaine and powder cocaine. “I think last year we were caught up in presidential politics… and I think he’s in a different position now,” Chaffetz said....

“We were so close last time,” Lee, a member of the Senate Committee on the Judiciary, lamented to reporters at the seminar.

January 30, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Wednesday, January 25, 2017

And then there were two: Prez Trump's SCOTUS pick now reportedly between Circuit Judges Hardiman and Gorsuch

This CBS News article, headlined "Trump Supreme Court justice pick narrows to two names," it seems that two circuit judges are the men now most likely to be picked by the new Prez to replace Justice Scalia. Here are the details:

The choice to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia is down to two names -- Denver-based U.S. Court of Appeals Judge Neil Gorsuch and U.S. District Court Judge Thomas Hardiman of Pennsylvania, according to two sources close to the selection process.

Gorsuch has a slight edge -- CBS News’ Jan Crawford reported that Gorsuch was the front-runner over the weekend. But as Mr. Trump narrows the field, “many voices” are “making calls” on Hardiman’s behalf, and he cannot be ruled out, one source said. Hardiman has to be considered a serious contender, just on the heels of Gorsuch.

Tuesday’s White House meeting with Senate leaders and members of the Judiciary Committee is designed to be a general discussion to see if any names on Trump’s list of 21 potential high court nominees would present problems. It is not designed to elicit specific endorsements or opposition to any specific nominee. From the White House perspective, it is viewed as a gesture of respect of the Senate advise-and-consent role.

Both Hardiman and Gorsuch are regarded as conservative, but neither is thought by the White House to be unconfirmable. Nor are they nominees who would, the White House believes, elicit a massive Senate Democratic uprising. That is the working theory, but confirmation fights in the modern era have been unpredictable. There is a sense within the White House that 10 Senate Democrats up for re-election in 2018 from pro-Trump states are particularly vulnerable and MAY vote for confirmation -- hence the White House’s desire to move as rapidly as possible to preserve its leverage.

Gorsuch is a former Washington, D.C. lawyer and Supreme Court clerk educated at Harvard and Oxford who is considered a solid conservative. He sailed through his Senate confirmation in 2006, and was even introduced by both the Republican (then-Sen. Wayne Allard) and Democratic (then-Sen. Ken Salazar) senators from his home state of Colorado...

Selecting Hardiman would diversify the high court in one way -- if confirmed, Hardiman would be the only one on the high court without an Ivy League degree. The Massachusetts native became the first person in his family to go to college when he attended the University of Notre Dame. He paid his way through law school at Georgetown by driving a taxi....

Mr. Trump’s team believes Gorsuch is significantly less likely to inflame the left, while also being an acceptable choice to the far right. Gorsuch sided with Hobby Lobby in the Obamacare contraception case and wrote a book about assisted suicide that indicated his pro-life views. Before joining the bench, Gorsuch took few if any controversial positions as a D.C. lawyer in private practice or during his brief stint in the civil division of the Bush Justice Department.

Hardiman ‎is also seen as a solid conservative, but with a slightly more enigmatic record. Hardiman serves on the same court as President Trump’s sister, Maryanne Trump Barry.

Sentencing fans should know that both Judges Gorsuch and Hardiman have a significant history with sentencing appeals given their extended tenures on circuit courts, but Judge Hardiman also has history as a district judge from 2003 to 2007. I always think his kind of professional history is a plus for Supreme Court justices, and it strikes me as especially notable that Judge Hardiman was involved in sentencing federal defendants both before and after Booker made the guidelines advisory.

January 25, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (9)

Is Prez Trump really ordering the Justice Department to conduct major voter fraud investigation?

Though it appears that Jeff Sessions will not be confirmed to serve as our next Attorney General until next week, his boss this morning was tweeting a new crime-fighting agenda for the Justice Department.  This U.S. News & World Report article, headlined "Trump Calls for Voter Fraud Investigation: The president has previously declared that 3 to 5 million voted illegally in 2016," explains:

President Donald Trump called for a "major investigation" into voter fraud Wednesday. "I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and… even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!" the president tweeted from his personal account.

The call is a follow-up on comments from Trump and the White House. Trump said "millions" voted illegally in November, prompting him to lose the popular vote to Hillary Clinton. And shortly after being sworn in as president, Trump repeated the claim to lawmakers at a White House reception, the Washington Post reported Tuesday.

When asked if the administration would call for an investigation on the matter at Tuesday's briefing in Washington, White House press secretary Sean Spicer said that it was a possibility. "Maybe we will," Spicer said.

He noted the president has continuously stated his concern on the issue before and "continues to maintain that belief" that voter fraud is a major problem, "based on studies and evidence people have brought to him." Spicer specifically cited a study "that came out of Pew in 2008 that showed 14 percent of people who voted were noncitizens."

Politico slammed the veracity of that study and claim, and several outlets, including CNN and the Associated Press, assert that the president and his team have provided essentially no evidence for these claims....

The White House is not fully going it alone, however. Mitch McConnell, the Senate Republican leader, gave at least tacit backing to Trump on the issue Tuesday. "It does occur," McConnell told reporters. "The notion that election fraud is a fiction is not true… There are always arguments on both sides about how much, how frequent and all the rest."

But House Speaker Paul Ryan said he had seen "no evidence to that effect" and he's made his position on the matter "very, very clear."

Based on the reports and evidence I have seen marshaled by folks on both sides of the political aisle, the claim that millions (rather than perhaps just hundreds) voted illegally in the 2016 election is seemingly badly detached from reality.  And it is useful to recall that we went down this road to some extent 16 years ago the last time a Republican took control of the Executive Branch.  This lengthy New York Times article from 2007, headlined "In 5-Year Effort, Scant Evidence of Voter Fraud," review the last version of this story and it starts this way:

Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews. Although Republican activists have repeatedly said fraud is so widespread that it has corrupted the political process and, possibly, cost the party election victories, about 120 people have been charged and 86 convicted as of last year.

January 25, 2017 in Criminal justice in the Trump Administration, Offense Characteristics, Who Sentences? | Permalink | Comments (16)

Friday, January 20, 2017

"Dear President Trump: Here’s How to get Right on Crime, Part 3"

As noted in this prior post, the Marshall Project this week has a timely three-part series in which leading conservatives working on and advocating for criminal justice reform are setting out the conservative case for reforms. The first commentary was authored by Pat Nolan and carried the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration."  The second commentary was authored by Vikrant Reddy and carried the subheadline "End overcriminalization, reward success, pay attention to the heroin crisis."

The final part comes from the pen of Marc Levin and carries the subheadline "Listen to Pence, Carson, Priebus, Kushner — and look out your window." Here are excerpts:

The new president’s is known for his real estate acumen, but he doesn’t have a monopoly on exclusive properties. It turns out that the cheapest room at the Trump International hotel in New York City costs less than the $620 per night per youth cost for juvenile detention in the Big Apple. In addition to Donald Trump’s message of promoting efficiency in government, he also ran on expanding the workforce to reclaim America’s economic prowess. Yet, so many of those on the margins of our society cannot hold a job because they are incarcerated, have a criminal record, or are suffering from addiction. Indeed, there was a significant correlation between counties with a high numbers of opiate overdose deaths and counties voting for Trump.

While Trump and other nominees have made statements about being tough on crime, Trumpism is consistent with the “deal” that a smaller more effective criminal justice system represents for the American people: better public safety for lower costs while holding offenders accountable. There are also many hopeful signs that the new administration could be as active on the issue as it is on Twitter. Vice President-elect Mike Pence who championed rehabilitation initiatives as governor of Indiana and key figures such as Ben Carson and Reince Priebus have gone on the record in support of criminal justice reforms. Moreover, Jared Kushner, who faced the harrowing experience of seeing his father incarcerated, has supported organizations like the Aleph Institute that works to ensure Jewish prisoners can see a rabbi, and also advocates for sentencing reform.

Additionally, the Trump administration presents a major opportunity to break the criminal justice reform logjam in Congress....

In addition to a default mens rea provision and ensuring that intent be proved for every element of sentencing enhancements, other federal criminal justice reform priorities should include civil asset forfeiture reform, reining in mandatory minimums for nonviolent offenses, and earned time for most inmates who complete programs proven to reduce recidivism. Given that 90 percent of offenders are sentenced and incarcerated at the state and local level, the Department of Justice should continue providing technical assistance to states. This assistance has been instrumental in more than 30 states adopting justice reinvestment plans that lower both costs and crime through solutions such as drug and mental health treatment, problem-solving courts, and swift, certain, and commensurate sanctions to promote compliance with supervision. (Half of those admitted to prisons are there because they violated rules of probation and parole.) Indeed, from 2010 to 2015 in the 10 states with the largest imprisonment declines, the crime rate fell an average of 14.6 percent, compared with 8.4 percent in the 10 states with the biggest growth in imprisonment.

From his position in Trump Tower, the incoming president has had a birdseye view of the single most powerful urban example of simultaneously reducing crime and incarceration. New York City has cut its incarceration rate by 55 percent (combined local jail and state commitments) since 1996, while simultaneously reducing serious crime by a whopping 58 percent. New York City’s broken windows policing model combated an atmosphere of lawlessness by ensuring quality-of-life crimes like graffiti and jumping subway turnstiles were no longer ignored, but the interventions almost always involved alternatives to incarceration. Should not those who defile buildings be put to work cleaning up the mess rather than sit in jail? In the Big Apple, many neighborhoods where crime was once the most salient issue now have the rather preferable problem of increased housing costs. For a new president who has pledged to make America great again, it only makes sense to look at what has made New York City great again: the conservative principles that tell us to be smart, not just tough, on crime.

Prior related posts:

January 20, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)