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.
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?
The 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.
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:
Wednesday, February 08, 2017
Jeff Sessions confirmed as Attorney General ... now what for federal sentencing policies and practices?
As 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.
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.
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.”
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):
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.
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:
- Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
- Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
- Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
- Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21
- Circuit judges Diane Sykes and William Pryor reportedly on top of Prez-Elect's SCOTUS short-list
- Reports of now five names atop Prez-Elect Trump's SCOTUS short-list
- "In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"
- And then there were two: Prez Trump's SCOTUS pick now reportedly between Circuit Judges Hardiman and Gorsuch
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.
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.
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:
- "Dear President Trump: Here’s How to get Right on Crime, Part 1"
- "Dear President Trump: Here’s How to get Right on Crime, Part 2"
Thursday, January 19, 2017
"Dear President Trump: Here’s How to get Right on Crime, Part 2"
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 in the series here is authored by Vikrant Reddy and carries the subheadline "End overcriminalization, reward success, pay attention to the heroin crisis." Here are excerpts:
Criminal justice reform advocates are pessimistic about the prospects for federal sentencing reform under the new presidential administration. Federal sentencing, however, is only one component of America’s vast criminal justice system. There are several other areas where the administration and reformers could find common cause. Here are just three reforms widely supported by advocates which are also consistent with a “Trumpian” worldview. They should be at the forefront of a serious federal reform agenda over the next four years.
Scaling Back Overcriminalization
There are now over 5,000 obscure federal crimes, such as shipping lobster in plastic rather than cardboard boxes, that are more appropriately treated as administrative or regulatory matters. Furthermore, the mens rea or “state of mind” portions of many criminal statutes (which specify whether the conduct must be purposeful, knowing, reckless, or negligent) are frequently left out when laws are drafted. Reversing this “overcriminalization” has long been a priority for conservatives. Yet it has also been a priority for prominent progressive voices, such as the National Association of Criminal Defense Lawyers and U.S. Representatives John Conyers and Bobby Scott....
One of the most widely-admired strategies for improving criminal justice outcomes is performance-incentive funding (PIF). The idea is simple: Governments should fund prisons (and community corrections programs, for that matter) based on outcomes achieved, not merely on the number of people incarcerated. A government that contracts for lower recidivism rates and increased restitution payments to victims is more likely to find that its prisons are encouraging education and job training behind bars. People from the business world who are more concerned with results than with ideologies — such as Donald Trump — are likely to understand this truth intuitively: You get what you pay for....
Combating Heroin Addiction
On Election Day, Trump performed unusually well in communities ravaged by heroin abuse. He seemed to understand that he owes it to these voters — his base — to take the issue seriously. His administration will likely pursue a law enforcement solution that attacks the “supply side” of the heroin problem, as Trump frequently promised on the campaign trail. There is also a “demand side” to the problem, however, and Trump must treat this side of the problem with equal urgency. This means redirecting scarce resources from incarceration to less costly and more effective diversion programs that treat addiction.
Prior related post:
Wednesday, January 18, 2017
"Dear President Trump: Here’s How to get Right on Crime, Part 1"
The title of this post is the headline of this notable new Marshall Project piece that is the start of a timely three-part series. Here is how the Marshall Project editors set up the series:
The election of Donald Trump, who ran a swaggering tough-on-crime campaign, disheartened many advocates of bipartisan criminal justice reform. The Marshall Project invited conservatives active in that cause to make a case to the president-elect — a conservative case — for ways to make the system more fair, humane and effective. This is the first of three commentaries.
The commentary to kick this off comes from Pat Nolan and carries the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration." Here is how it gets started:
Conservatives believe that the core function of government is keeping the public safe from harm within the constraints of individual liberty and limited government. We know it is the nature of bureaucracy that government agencies grow in size and inefficiency. The justice system must be held accountable for wise use of tax dollars just as it holds offenders accountable for their actions.
Crime is more than lawbreaking — it is victim harming. Victims should be involved at all stages of the justice process, and the system should aim to repair the harm caused by the crime whenever possible. Offenders should be held accountable to make restitution to their victims.
Evil intent (mens rea) has long been an essential element of all crimes. In recent years, however, the mens rea requirement has been dropped in favor of finding criminality even if there is no intent to break the law. Thus, an act committed in good faith can become the basis for a criminal conviction and a prison sentence. This is wrong, and mens rea must be restored as a key element of every crime.
The greatest power we cede to government is the ability to put someone in prison. While prisons are necessary to isolate offenders who threaten the safety of the community, there is a growing tendency to overuse prisons even when the public is not endangered. There are proven ways to hold non-dangerous offenders accountable without sending them to prison. We should use costly prison beds for the truly dangerous. Prisons are for people we are afraid of, but too often they are used for people we are merely mad at.
Cases should be decided individually, not as an assembly line of one-size-fits-all sentences. The harm done by a sentence should never be greater than the harm caused by the crime.
Crime that crosses state lines and national borders is the proper purview of federal laws. Other than those limited situations, crime is an inherently local problem and should be governed by local and state laws. However, in recent years Congress has federalized many crimes such as carjacking which have no national scope merely to strike a politically popular pose. Only those crimes that have a national reach should be federalized. Other crimes should be left to local law enforcement that is more responsive to their residents.
We recommend greater use of problem-solving courts, such as drug courts, veterans’ courts and mental health courts tailored to the special problems faced by these populations.
Prisons should do more than warehouse inmates. They should prepare offenders for their return to society by providing educational programs such as GED classes, drug treatment, anger management, and job skills. The cost of these programs is far exceeded by the savings from the resulting drop in crime rates.
January 18, 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, Who Sentences? | Permalink | Comments (1)
Wednesday, January 11, 2017
Great political and practical "state of reform" reviews via Jacobin
The magazine Jacobin has recently run two effective pieces by two effective writers about the politics and practicalities of modern sentencing reform efforts. Here are links to the lengthy pieces, both of which I recommend in full, with their introductions:
Many are mourning the death of comprehensive criminal justice reform at the federal level in the wake of the election of Donald Trump, who unabashedly campaigned as the law-and-order candidate. They fear we may be at the beginning of the end of the “smart-on-crime” era, in which historic adversaries across the political spectrum joined forces to reverse the punitive policies and politics that have turned the United States into the world’s leading warden.
Some have sought solace in the belief that Trump’s victory will have a limited impact because most people are apprehended, tried, and sentenced subject to state and local statutes and authorities, not federal ones, and that 90 percent of the more than 2 million people incarcerated today in the United States are serving their time in state prisons and county jails, not federal penitentiaries. They view Trump as a political meteorite that may have blown up the elite bipartisan reform coalition in Washington as it blazed through an uncharted political universe but left promising reform coalitions at the state and local levels largely intact.
This conventional postmortem paradoxically overestimates Trump’s responsibility for imperiling criminal justice reform at the national level while underestimating his likely impact on state and local reform efforts.
Trump’s outsized personality and spectacular victory obscure the reality that the smart-on-crime approach had severe limitations and weaknesses that have been hiding in plain sight for years. The politics that gave birth to this strange bedfellows coalition engineered by Right on Crime — a group of brand-name conservatives and libertarians that included Newt Gingrich, Grover Norquist, and Charles and David Koch — helps explain both its limited accomplishments and the triumph of Trumpism.
A ray of sunshine recently poked through the otherwise gloomy holiday headlines: “US prison population falling as crime rates stay low.” The prison population has indeed fallen, and crime rates are still down. But while the crime that politicians exploited to create mass incarceration has plummeted, the number of prisoners locked up in the name of public safety has only budged.
Mass incarceration, in short, remains a durable monstrosity.
As of 2015, an estimated 2,173,800 Americans were behind bars — 1,526,800 in prison and 728,200 in jails — according to recently released data from the Bureau of Justice Statistics. That’s 16,400 fewer people in jail and 35,500 fewer prisoners than in 2014 — a 2.3 percent decline and, for prisoners, the largest single-year drop since 1978. The 2015 figure also marks the lowest overall prison population since 2005. Crime rates have plunged, falling “to levels not seen since the late 1960s.”
But even as the US becomes a much safer country, it still incarcerates its citizens at much higher rates than most any other on earth. To put things in perspective, our prison archipelago today confines a population similar in size to the city of Houston or the borough of Queens.
At the dawn of mass incarceration in 1980, the US’s already-quite-large prison population was estimated at 329,821. To return to that number, the governments would have to replicate the recent 35,500-prisoner reduction for roughly thirty-four years in a row. That’s a very long time to wait for the poor communities — particularly but not exclusively brown and black ones — that mass incarceration devastates.
The criminal justice reform movement has stopped losing. But it hasn’t really started to win.
January 11, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
Tuesday, January 10, 2017
AG-nominee Jeff Sessions puts focus on crime in opening statement before confirmation hearing
Via Politico, here is the text of Attorney General nominee Jeff Sessions' full opening statement to the Senate Judiciary Committee, as prepared for delivery. And here are some excerpts that highlight its crime-fighting tone, as well as some of the effort to thwart certain criticisms already lodged against the nomination:
Protecting the people of this country from crime, and especially from violent crime, is the high calling of the men and women of the Department of Justice. Today, I am afraid, that has become more important than ever.
Since the early 1980s, good policing and prosecutions have been a strong force in reducing crime. Drug use and murders are half what they were in 1980. I am very concerned, however, that the recent jump in the violent crime and murder rates are not anomalies, but the beginning of a dangerous trend that could reverse the hard won gains that have made America a safer and more prosperous place. The latest official FBI statistics show that all crime increased nearly 4 percent from 2014 to 2015 with murders increasing nearly 11 percent — the largest single year increase since 1971. In 2016, there were 4,368 shooting victims in Chicago. In Baltimore, homicides reached the second highest per-capita rate ever.
The country is also 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 every city and town in the country, bringing violence, addiction, and misery.
We must not lose perspective when discussing these statistics. We must always remember that these crimes are being committed against real people, real victims. It is important that they are kept in the forefront of our minds in these conversations, and to ensure that their rights are always protected.
These trends cannot continue. It is a fundamental civil right to be safe in your home and your community. If I am confirmed, we will systematically prosecute criminals who use guns in committing crimes. As United States Attorney, my office was a national leader in gun prosecutions every year. We will partner with state and local law enforcement to take down drug trafficking cartels and dismantle gangs. We will prosecute those who repeatedly violate our borders. It will be my priority to confront these crises vigorously, effectively, and immediately.
Approximately 90 percent of all law enforcement officers are not federal, but local and state. They are the ones on the front lines. They are better educated, trained and equipped than ever before. They are the ones who we rely on to keep our neighborhoods, and playgrounds, and schools safe. But in the last several years, law enforcement as a whole has been unfairly maligned and blamed for the actions of a few bad actors and for allegations about police that were not true. They believe the political leadership of this country abandoned them. They felt they had become targets. Morale has suffered. And last year, while under intense public criticism, the number of police officers killed in the line of duty increased ten percent over 2015. This is a wake up call. This must not continue.
If we are to be more effective in dealing with rising crime, we will have to rely heavily on local law enforcement to lead the way. To do that, they must know that they are supported. If I am so fortunate as to be confirmed as Attorney General, they can be assured that they will have my support.
As I discussed with many of you in our meetings prior to this hearing, the federal government has an important role to play in this area. We must use the research and expertise of the Department of Justice to help them in developing the most effective and lawful enforcement methods to reduce crime. We must re-establish and strengthen the partnership between federal and local officers to enhance a common and unified effort to reverse the current rising crime trends. I did this as United States Attorney. I worked directly and continuously with state and local law enforcement officials. If confirmed, it will be one of my primary objectives....
In recent years, our law enforcement officers also have been called upon to protect our country from the rising threat of terrorism that has reached our shores. If I am confirmed, protecting the American people from the scourge of radical Islamic terrorism will continue to be a top priority of the Department of Justice. We will work diligently to respond to threats, using all lawful means to keep the American people safe from our nation’s enemies. Partnerships will also be vital to achieving much more effective enforcement against cyber threats, and the Department of Justice clearly has a lead role to play in that essential effort. We must honestly assess our vulnerabilities and have a clear plan for defense, as well as offense, when it comes to America’s cybersecurity.
The Department of Justice must never falter in its obligation to protect the civil rights of every American, particularly those who are most vulnerable. A special priority for me in this regard will be aggressive enforcement of our laws to ensure access to the ballot for every eligible American voter, without hindrance or discrimination, and to ensure the integrity of the electoral process....
You can be absolutely sure that I understand the immense responsibility I would have. I am not naïve. I know the threat that our rising crime and addiction rates pose to the health and safety of our country. I know the threat of terrorism. I deeply understand the history of civil rights and the horrendous impact that relentless and systemic discrimination and the denial of voting rights has had on our African-American brothers and sisters. I have witnessed it. I understand the demands for justice and fairness made by the LGBT community. I understand the lifelong scars born by women who are victims of assault and abuse.
A few prior related posts on AG-nominee Sessions:
- Some notable comments from Senator (and AG nominee) Sessions about limiting federal crimes and prosecutorial discretion
- Making the case for AG-nominee Jeff Sessions as an advocate for crime victims
- Recalling the work of AG-designee Senator Jeff Sessions on crack/powder sentencing reform
- Bring it, Jeff: why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive
- Why I think at the hearings for AG, Senators should try to kill... question with conservative kindness
Monday, January 09, 2017
FBI stats for first half of 2016 show increases in "all of the offenses in the violent crime category"
This new FBI press release, titled simply "FBI Releases Preliminary Semiannual Crime Statistics for 2016," provides sober news about violent crime in the United States during the first part of 2016. Here are the top-line particulars:
Statistics released today in the FBI’s Preliminary Semiannual Uniform Crime Report revealed overall increases in the number of violent crimes reported and overall declines in the number of property crimes reported for the first six months of 2016 when compared with figures for the first six months of 2015. The report is based on information from 13,366 law enforcement agencies that submitted three to six months of comparable data to the FBI’s Uniform Crime Reporting (UCR) Program for the first six months of 2015 and 2016.
◾ All of the offenses in the violent crime category—murder and non-negligent manslaughter, rape (revised definition), rape (legacy definition), aggravated assault, and robbery—showed increases when data from the first six months of 2016 were compared with data from the first six months of 2015. The number of aggravated assaults increased 6.5 percent, murders increased 5.2 percent, rapes (legacy definition) increased 4.4 percent, rapes (revised definition) rose 3.5 percent, and robbery offenses were up 3.2 percent.
◾ Violent crime increased in all city groupings. Among cities, violent crime rose the most over the previous year (9.7 percent) in those with populations of 1,000,000 and over. In cities with populations from 500,000 to 999,999, violent crime increased 5.2 percent, and in cities with 250,000 to 499,999 inhabitants, violent crime was up 4.3 percent.
◾ Violent crime increased 6.3 percent in metropolitan counties and rose 1.6 percent in nonmetropolitan counties.
◾ Violent crime increased in all four regions of the nation. These crimes were up 6.4 percent in the West, 5.9 percent in both the Midwest and in the South, and 1.2 percent in the Northeast.
◾ In the property crime category, offenses dropped 0.6 percent. Burglaries were down 3.4 percent, and larceny-thefts declined 0.8 percent. However, motor vehicle thefts increased 6.6 percent.
◾ Among the city population groups, there were both increases and decreases in the overall number of property crimes. Law enforcement agencies in cities with 1,000,000 and over populations reported the largest increase, 2.1 percent. Law enforcement agencies in cities with populations under 10,000 inhabitants reported the largest decrease, 3.5 percent.
◾ Property crime decreased 3.9 percent in nonmetropolitan counties and 1.5 percent in metropolitan counties.
◾ The West was the only region to show an increase (0.8 percent) in property crime. Reports of these offenses declined 2.4 percent in the Northeast, 1.3 percent in the Midwest, and 0.9 percent in the South.
There are many ways to mine and to spin these new FBI crime data (which can and should be understood even better in light of this FBI data on yearly changes over the last five years). But the simple headline and simple story is that violent crime increased somewhat significantly nationwide in the first half of 2016, especially in larger cities. And the simple consequence may be, as hearings for the next Attorney General are about to get started, that talk of major federal sentencing reforms may take a back seat to talk of new federal crime fighting measures.
"In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"
The title of this post is the title of this new and timely short piece authored by Scott Meisler now available via SSRN that ought to be of special interest to sentencing fans. Here is the abstract:
Recent press reports indicate that federal appellate judges William Pryor and Diane Sykes are among the finalists for the Supreme Court vacancy created by Justice Scalia’s death. But just as Justice Scalia and fellow conservative Justice Alito often differed on questions of criminal and habeas corpus procedure, so too have Judges Pryor and Sykes. This short essay analyzes four legal issues on which the two judges have recently reached contrary results or demonstrated different approaches — including two legal issues arising from Justice Scalia’s last major criminal procedure opinion, Johnson v. United States. The essay concludes that, though the decisions analyzed here represent only a small sample, they suggest that Judge Sykes’s approach to criminal procedure questions would more closely resemble Justice Scalia’s, while Judge Pryor’s would be more similar to that of Justice Alito.
January 9, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)
Sunday, January 08, 2017
Why I think at the hearings for AG, Senators should try to kill... question with conservative kindness
This new Washington Post article, headlined "Jeff Sessions should have been a tough sell in the Senate, but he’s too nice," details some reasons behind my thinking that it is unwise for advocates of criminal justice reform to adopt an overly aggressive opposition posture to Prez-Elect Donald Trump's nominee for Attorney General, Senator Jeff Sessions. Here are excerpts from the piece, with a few lines emphasized for commentary to follow:
He is one of the more well-liked members of the Senate, a place that still retains elements of one of the world’s most exclusive clubs. He is genial, respectful and patient toward colleagues and staff. And that has given fellow Republicans and even some Democrats reason not to scrutinize the more unsavory allegations of his political history.
Take Sen. Susan Collins, a moderate Republican from Maine who, under other circumstances, might be a target for Democrats to peel off in hopes of defeating Sessions’s nomination. Instead, she’s his lead spokeswoman.... “He’s a decent individual with a strong commitment to the rule of law. He’s a leader of integrity,” Collins said in an interview, dismissing attacks from liberal activists about his conservative views and his actions as a young prosecutor. “I think the attacks against him are not well-founded and are unfair.”...
“I genuinely like him,” said Sen. Christopher A. Coons (D-Del.), a member of the Judiciary Committee. Coons still might vote against Sessions because of the “stark differences” between the two on policy, but they are friends....
[M]ost senators tend to see Sessions in the same way Collins does — as a friendly man who never broke his word to them. Many have prayed with him and traveled with him on official overseas trips. Almost no one wants to review the original allegations against him during his 1986 nomination; for the most part, they don’t think that he is the racist that some have painted — at least not anymore. “I don’t know the dynamics of what happened then, but I can speak to Jeff’s character in the 20 years that I’ve known him,” Collins said....
One senator who has wanted to focus more on Sessions’s past on race is Sen. Tim Scott (R-S.C.), the chamber’s only black Republican. “I think judging a person on 30-year-old history is questionable. Eliminating or exempting 30-year-old history is probably not wise as well,” Scott said. “So, making sure that you understand what it actually was and who he is, has been an important part of what I’ve tried to do.”
Scott hosted Sessions in mid-December in North Charleston with activists who peppered him with questions about federal prosecution of a police officer who fatally shot a black man in the back. “The attorney general’s position has more impact on communities of color than perhaps any other nominee,” Scott said, adding that he was still considering the nomination.
By and large, senators want to focus on other topics. And there’s plenty there to discuss, from how Sessions would handle the deportation of illegal immigrants to allegations that in 1995, while serving as state attorney general, he supported the use of chain gangs for prisoner work.
Coons suggested that Sessions had so many staunchly conservative positions in “the recent past” that there was little need to relitigate the 1980s. He spent an hour with Sessions on Thursday talking about legal philosophy. Coons and Sessions have spent the past six years talking at the Senate’s weekly Bible study and working out together in the gym.
The lines I have stressed here highlights my belief that everyone interested in criminal justice reform ought to be looking toward the Sessions' hearing as a high-profile opportunity to make in a high-profile and high-impact way the strong conservative case for criminal justice reform (and especially federal sentencing reform). Particularly because it seems all but certain that Sessions will be confirmed as Attorney General, I hope that some folks inclined to oppose Sessions appreciate that it could be much more productive at this week's hearings to try to co-opt Sessions from the right rather than attack him from the left.
For the record, and as highlighted by this recent helpful Brennan Center analysis, I fully understand how Senator Sessions' record in the criminal justice arena makes so many advocates so concerned and so eager to fight. But these advocates should remember that, in just the past few years, a number of tough-on-crime GOP stalwarts like Senator Charles Grassley and Representative Jim Sensenbrenner have become vocal advocates for federal sentencing reform. Indeed, a large number of prominent GOP Senators on and off the Judiciary Committee have been vocal supporters of federal sentencing reform in some form — I am thinking here of Senator Cornyn, Cruz, Lee, Paul and Tillis among others — and these folks seem to view (rightly, in my opinion) sentencing reform as conservative cause.
Of particular importance in this context, especially given the passages stressed above, are what I might call the "equal justice" and "religious redemption" arguments for federal reforms. As noted in this prior post, Senator Sessions was an early and prominent voice calling for a reduction in the crack/powder 100-1 federal sentencing disparity. This suggests Sessions might in a hearing voice support for sentencing reforms intended to reduce unequal application of the harshest mandatory minimum sentencing terms. And all the references to prayer above leads me to think Sessions also could and would be moved by religious leaders talking about the importance of second chances (which, I surmise, help moved Senator Grassley and also fits with the huge and too-often-overlooked corrections part of the SRCA).
Even more fundamentally, though Senator Sessions has roots and a history supporting a big and tough federal criminal justice apparatus, lots of his GOP colleagues are very skeptical of federal prosecutorial powers, and for good reason. Notably, Senator Sessions has himself expressed concerns on the Senate floor about federal prosecutors "encroach[ing] upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction." Especially in the arena of marijuana reform and perhaps business crimes more generally, I also think Sessions could and should be questioned about the conservative case for keeping the federal Justice Department out of what are generally local matters.
In the end, this all may be wishful thinking on my part, a desire to turn a glass more than half-empty upside-down so that it looks close to half full. But given all the remarkable and important criminal justice reform work done and supported robustly in recent years by self-described conservatives, I am strongly disinclined to view Senator Sessions as a Darth-Vader-like character until he actually starts ordering the Justice Department to begin work on a Death Star.
A few prior related posts on the AG-nominee Sessions:
- Some notable comments from Senator (and AG nominee) Sessions about limiting federal crimes and prosecutorial discretion
- Making the case for AG-nominee Jeff Sessions as an advocate for crime victims
- Recalling the work of AG-designee Senator Jeff Sessions on crack/powder sentencing reform
- Bring it, Jeff: why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive
Tuesday, January 03, 2017
Latest SCOTUS short-list speculations and suggested nomination timeline
SCOTUS junkies will want to be sure to check out this latest lengthy Politico article headlined "Inside Trump's strategy to remodel the Supreme Court: The president-elect is narrowing his short list while his advisers look beyond the current opening." Here are snippets that struck me as especially new or noteworthy:
Donald Trump has narrowed his short list for his first Supreme Court pick down to roughly a half-dozen finalists but the president-elect and his top advisers are already thinking about a second selection, as they seek to quickly remodel the high court with a reliably conservative bent. Trump’s team wants to make filling the seat held by the late Justice Antonin Scalia one of the earliest acts of his presidency, according to multiple transition officials, in hopes of scoring an energizing and unifying victory for the conservative movement.
And as Trump weighs perhaps the most enduring personnel decision he’ll make as president-elect — filing one of only nine lifetime seats on the high court — he has sought input from an array of friends, former rivals, and legal and TV personalities. “He clearly understands he may have a chance to define the court for a generation or more and he is taking it very seriously,” said former Speaker Newt Gingrich, a Trump confidante.
While Scalia’s seat is the only current opening, Trump’s advisers are plotting how to fill that vacancy in tandem with the next one — a slot if vacated by a liberal justice like Ruth Bader Ginsburg, 83, or swing-vote Justice Anthony Kennedy, 80, could far more dramatically move the court’s political center of gravity to the right. The thinking inside the transition, according to multiple people involved in the internal deliberations, is that Scalia’s replacement offers Trump and the conservative movement the best chance for an unabashedly rock-ribbed replacement because it would not fundamentally shift the court’s balance of power....
But in the current search process, Trump’s team is also hoping to identify a conservative candidate — possibly a woman — who could be more politically palatable, or at least harder for Senate Democrats to oppose, if Kennedy or Ginsburg leave the court.... Two of the most-discussed names are Diane Sykes of the Chicago-based 7th Circuit federal appeals court and William Pryor of the Atlanta-based 11th Circuit, in part because Trump himself name-dropped them at a primary debate last February....
Trump, besides promising to appoint justices in the mold of Scalia, is looking for some distinctly Trumpian qualities. He has repeatedly told his advisers, for instance, “I want someone who is not weak.” That is especially appealing to legal conservative hardliners who are still scarred by former Justices David Souter and Sandra Day O’Connor, two Republican appointees who often sided with the court’s liberal bloc, and to a lesser extent Chief Justice John Roberts, an appointee of President George W. Bush, who upheld the constitutionality of President Obama’s health care law....
Those close to Trump’s search process say that the list now under more serious consideration is closer to a half-dozen, including Pryor and Sykes, as well as 3rd Circuit Judge Thomas Hardiman, 6th Circuit Judge Raymond Kethledge, 8th Circuit Judges Steve Colloton and Raymond Gruender, 10th Circuit Judge Neil Gorsuch and Michigan Supreme Court Justice Joan Larsen.
Trump released two lists of potential justices during the campaign, but most of the candidates under serious consideration are on the initial list of 11. The only two women in the current top tier, Larsen, who is only 48, and Sykes, 59, are among those who could be “held back” for a second opening. “Going with a woman or a minority does get you some brownie points, so in terms of picking the hardest to confirm now, that would argue for a man,” Levey said. “Also the symbolic value, if Ginsburg does leave the court, of replacing her with a woman WOULD be important.”
Trump’s advisers want his Supreme Court pick to be one of his earliest acts as president, though the plan has been not to announce a choice until after Sen. Jeff Sessions is confirmed as attorney general. Both Sessions and any high court pick must pass through the same Senate Judiciary Committee.
The two men spearheading Trump’s search are Don McGahn, Trump’s incoming White House counsel, and Leonard Leo, the Federalist Society’s executive vice president. Incoming White House Chief of Staff Reince Priebus, and top Trump advisers Steve Bannon and Kellyanne Conway are also involved, as are Vice President-elect Mike Pence and Sessions.
Leo said on “Fox News Sunday” that Trump’s team wants the Scalia vacancy filled in time for the new justice to be seated for the final sitting of this term in late April. That could allow the new justice to weigh in on important pending cases, including the detention of immigrants and transgender rights. “Ideally, you would have someone who could be seated on the court at least by then to hear those final round of cases, perhaps even have some of the 4-4 decisions, if there are any, reheard by the court,” Leo said. He noted that Ginsburg — “one of the most liberal justices”— was confirmed in just 50 days at the start of President Clinton’s first term....
As he often does ahead of big decisions, Trump has sought opinions from far and wide, including Fox News legal analyst Judge Andrew Napolitano, former rivals Ted Cruz and Rick Santorum and at least one person on his longer list: Sen. Mike Lee of Utah, who is not considered to be in serious contention for a high court seat. While Trump promised his public list of 21 was “definitive” when it was announced, he could still expand it for a second pick. “After the first nominee he may add some new possibilities,” Gingrich said, a view confirmed by another transition official.
A few prior related Trumpian SCOTUS posts:
- Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
- Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
- Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
- Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21
- Circuit judges Diane Sykes and William Pryor reportedly on top of Prez-Elect's SCOTUS short-list
- Reports of now five names atop Prez-Elect Trump's SCOTUS short-list
Thursday, December 22, 2016
Continuing to track a continuing rise in homicide rates and violent crime
This week brought two notable new data points to reinforce the disconcerting reality that homicide and violent crime are on the rise in significant portions of the United States. This Wall Street Journal article has a headline capturing the deadliest part of this story: "Homicides Rose in Most Big Cities This Year: Sixteen of the 20 largest police departments saw a year-over-year increase." This piece starts this way:
Homicides rose in most big American cities in 2016, continuing a worrisome trend for police and criminologists that began last year, even as murder rates in most cities are nowhere near the levels of two decades ago.
Sixteen of the 20 largest police departments reported a year-over-year rise in homicides as of mid-December, a Wall Street Journal survey found. Some notched minor increases, while Chicago has experienced one of the most dramatic jumps, with more than 720 murders — up 56% from 2015.
Chicago’s homicide count, greater than the considerably larger cities of Los Angeles and New York combined, marks a grim tally not seen since the violent drug wars of the 1990s. As the bodies in Chicago pile up — including that of Nykea Aldridge, cousin of basketball star Dwyane Wade, shot while walking with her baby in broad daylight — police are struggling to solve the killings, clearing only one in five homicides so far this year.
Nationally, 37 of the 65 largest police agencies, including ones in San Antonio, Las Vegas and Memphis, Tenn., reported year-over-year homicide increases as of Sept. 30, the Major Cities Chiefs Association said. In 2015, 44 departments reported increases, many for the first time in years.
The folks at the Brennan Center are also on this beat, as evidence by this new publication, titled simply "Crime in 2016: Updated Analysis," which is summarized this way:
In September, the Brennan Center analyzed available crime data from the 30 largest cities, projecting that by the end of 2016, these cities would see a nearly unchanged rate of overall crime and a slight uptick in the murder rate. That report concluded that while concerns about “out of control” crime rates were premature, the data “call attention to specific cities, especially Chicago, and an urgent need to address violence there.”
This report updates these findings, incorporating more recent data. Updated Tables 1 and 2 show conclusions similar to the initial report, with slightly different percentages:
The overall crime rate in the 30 largest cities in 2016 is projected to remain roughly the same as in 2015, rising by 0.3 percent. If this trend holds, crime rates will remain near historic lows, driven by low amounts of property crime.
The violent crime rate is projected to increase slightly, by 3.3 percent, driven by increases in Chicago (17.7 percent increase) and Charlotte (13.4 percent increase). This is less than the 5.5 percent increase initially projected in the September report. Violent crime still remains near the bottom of the nation’s 30-year downward trend.
The 2016 murder rate is projected to be 14 percent higher than last year in the 30 largest cities. Chicago is projected to account for 43.7 percent of the total increase in murders. The preliminary 2016 report identified some reasons for increasing violence in Chicago, such as falling police numbers, poverty and other forms of socioeconomic disadvantage, and gang violence. A similar phenomenon occurred in 2015, when a group of three cities — Baltimore, Chicago, and Washington, D.C. — accounted for more than half of the increase in murders. This year Baltimore and Washington, D.C., are projected to see their murder rates decline, by 6 percent and 18.6 percent, respectively.
An increase in the murder rate is occurring in some cities even while other forms of crime remain relatively low. Concerns about a national crime wave are still premature, but these trends suggest a need to understand how and why murder is increasing in some cities.
I am pleased to see that the Brennan Center is not trying to wish away what is now a two-year uptick in homicides, and I share the view that "these trends suggest a need to understand how and why murder is increasing in some cities." This is whay I am very hopeful (but, candidly not all that optimistic) that Prez-elect Trump with follow-up on his campaign promise (noted previously here) to work with Congress to create a task force on violent crime during his first 100 days in office.
Some notable comments from Senator (and AG nominee) Sessions about limiting federal crimes and prosecutorial discretion
Among my plans for the holiday break is to review some of the writings and statements of Senator (and AG nominee) Jeff Sessions concerning various criminal justice matters, and I may at times share some interesting findings in this space. To that end, I came across this lengthy floor statement from 2009 in which Senator Sessions expressed these concerns about a proposed federal hate crime provision:
For years legal commentators and jurists have expressed concern at the tendency of Congress, for the political cause of the moment, to persist in adding more and more offenses to the U.S. Criminal Code that were never Federal U.S. crimes before. This is being done at the same time that crime rates over the past decade or so have dropped and State and local police forces have dramatically improved their skills and technology. There are really fine police forces all over the country today. An extraordinary number of police officers have college degrees and many advanced degrees.
I think two questions should be asked initially. First, is this a crime that uniquely affects a Federal interest, and can it be addressed by an effective and enforceable statute? Second, have local police and sheriffs' offices failed to protect and prosecute this vital interest?
Most people do not understand that a majority of crimes -- theft, rape, robbery, and assault -- are not Federal crimes and are not subject to investigation by the FBI or any other Federal agency. They could not do so if they wanted to because they have no jurisdiction. They can only investigate Federal crimes. It has been this way since the founding of our country, and it fixes responsibility for law enforcement on local authorities where it should be.
Americans have always feared a massive Federal Government police force. It is something that we have not ever favored. This is not paranoia but a wise approach, and I do not think it should be changed....
[Attorney General Holder has been] suggesting that, in a select group of cases that are on the front burner today, the Attorney General needs this legislation -- S. 909, which has now been attached to the Defense bill -- as a backstop for State and local law enforcement to ensure that justice is done in every case.
Well, there are many prosecutorial and jury decisions that are made in State courts every day with which one could disagree. The question is whether the Federal Government will be empowered to ensure justice is done in every case.
I just want to share the reality of the world with my friends here, that anyone, I guess, can conclude that a case didn't end justly for them. One distinguished jurist is famously quoted as saying, "To speak of justice is the equivalent of pounding the table. It just adds an element of emotion to the discussion." But whatever we mean by that word, it basically means the Attorney General gets to decide whatever he wants to do. I am not sure this is good legislation. I think legislation ought to be crisp and clear and set forth criteria by which a prosecution occurs or does not occur, leaving not so much broad discretion among the prosecutorial authorities....
I would note, it is an inevitable delight of prosecutors to have more and more power and more and more ability to prosecute criminals. That is what they do. They are wonderful people. I never enjoyed anything more than being a prosecutor, wearing a white hat every day to work and trying to vindicate decent people from criminal acts. But that is just a tendency of the prosecutorial mindset that we ought not to forget....
I want my colleagues to know it is time for us in Congress to step back and question carefully any proposal to create new or further expand federal criminal jurisdiction that would encroach upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction.
Wednesday, December 21, 2016
"The Obama Legacy: Chipping Away at Mass Incarceration" ... but ...
The quoted portion of the title of this post is the headline of this notable new commentary authored by Marc Mauer. Perhaps appropriately given the "Obama Legacy" label, the piece is focused mostly on the federal sentencing system. And, in my view inappropriately, the piece gives Prez Obama a little too much credit for some of what I consider to be his "day late and dollar short" work in this arena. With that set up, here are excerpts (with two lines emphasized that really rankles me, as I will explain after the excerpt):
As President Obama prepares to leave office, the United States still holds the dubious honor of having the highest incarceration rate in the world, with 2.2 million people behind bars. In order to assess his impact on the criminal justice system, it’s necessary to examine the policy shifts that got us here in the first place.
In 1980 there were 24,000 people in the federal prison system, about 25% of whom were serving time for a drug offense. By the time Obama was elected in 2008, that number had ballooned to 201,000 people, nearly half of whom were locked up for a drug offense.
There are two key reasons for the population explosion — both rooted in the war on drugs. First, President Reagan encouraged federal law enforcement agencies and prosecutors to emphasize drug arrests. Second, Congress adopted mandatory sentencing policies — frequently applied to drug offenses — that established a “one size fits all” approach to sentencing. Federal judges were obligated to impose prison terms of 5, 10, 20 years — or even life — largely based on the quantity of drugs involved. They were not permitted to take any individual factors, such as histories of abuse or parenting responsibilities, into account to mitigate those sentences. The racial disparities from these sentencing policies were particularly extreme.
The most egregious of these policies were tied to crack cocaine offenses. Someone possessing as little as five grams of the drug (about the weight of a sugar packet) would face a minimum of five years in prison. That threshold was significantly harsher than the mandatory penalty for powder cocaine, which required a sale of 500 grams of the drug (a little over a pound) to receive the same penalty. Since 80% of crack cocaine prosecutions were brought against African Americans, the racial disparities from these sentencing policies were particularly extreme.
Momentum for reforming the crack cocaine mandatory minimum laws predated the Obama administration, and had growing bipartisan support when the President took office. The President signed the Fair Sentencing Act into law in 2010, reducing sentencing severity in a substantial number of crack cases. Then in 2013, Attorney General Eric Holder issued a memorandum to federal prosecutors calling on them to avoid seeking mandatory prison terms in low-level drug cases, which has cut the number of cases with such charges by 25%.
While the changes in sentencing laws have helped to reduce the federal prison population, the highest profile of Obama’s reforms is his use of executive clemency to reduce excessively harsh drug sentences. That is a story of both politics and policy. During Obama’s first term he used his clemency power far less than his predecessors — a pattern that was sharply criticized by many reform groups and editorial boards. But after launching a “clemency initiative” in 2014, the President has commuted the drug sentences of more than 1,100 individuals (with promises of substantially more by the time he leaves office). Notably, in about a third of these cases, the individuals had been sentenced to life without parole due to mandatory sentencing policies....
Perhaps the most significant aspect of President Obama’s work in regard to criminal justice reform has been his role in changing the way we talk about the issue. After a disappointing first term in which these issues received only modest attention, Obama’s last years in office framed criminal justice reform as a top priority. Among a series of high-profile events during his second term was the President’s address on mass incarceration at the NAACP national convention, at which he concluded that “mass incarceration makes our country worse off.”
Mass incarceration did not come about because there is a shortage of ideas for better approaches to public safety — it was the result of a toxic political environment where legislators favored political soundbites over evidence. By using the bully pulpit to frame justice reform as a major issue, Obama provided some coverage for mainstream legislators to support sound policy options.
It is difficult to be optimistic that the incoming administration will look favorably on criminal justice reform. Leading Republicans, such as House Speaker Paul Ryan, may be persuasive in making the conservative argument for reform. But President-elect Trump’s “tough on crime” rhetoric, which paints many incarcerated people as “bad dudes,” suggests progress at the federal level will be a challenge. Realistically, opportunities for justice reform are more likely at the state level. Many local officials are already convinced of the need for sentencing reform and reentry initiatives, and they may be less influenced by the political climate in Washington. If so, such changes at the local level may ultimately gain traction in a Trump White House as well.
1. The first line emphasized above makes me extra crazy because it falsely portrays Prez Obama as a bold leader who used the bully pulpit in order to provide "coverage for mainstream legislators to support sound policy options." This could not be more backwards: Prez Obama was a timid and disappointing follower here, as his July 2015 NAACP speech about the need for reform came only AFTER "mainstream" politicians ranging from Rand Paul to Corey Booker, from Ted Cruz to Patrick Leahy, from Rick Perry to Deval Patrick, from Bobby Jindal to Jim Webb, from Chuck Grassley to Dick Durbin, from Jim Sensenbrenner to Bobby Scott, from Raul Labrador to Elijah Cummings, from Judy Chu to Mia Love, from Newt Gingrich to even Chris Christie had all spoken in some significant ways about the need for significant criminal justice reform and especially sentencing reform (and I am sure I am leaving out many others).
2. The second line emphasized above makes me crazy for more "inside baseball" reasons: given that this commentary makes much of the "egregious" crack/powder cocaine sentencing policies that were only partially fixed by the FSA, the commentary ought to take a moment to note that Prez-Elect Trump has nominated as Attorney General the most prominent and vocal GOP Senator who was complaining loudly about the 100-1 crack/powder laws before doing so was popular or comment. As noted in this post and recently reported by the Wall Street Journal, " Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime."
I really respect so much of the work Marc Mauer does in his commentary and through The Sentencing Project, but these troublesome statements reflect what I am seeing as the worst tendencies of the "commentariat class" since the election. Specifically, even though Prez Obama's record on sentencing reform is relatively unimpressive (especially as compared to his record on lots of other issues), many on the left seem eager to assert that Prez Obama really achieved a lot in this arena and then go on to gnash teeth about reform momentum being halted now that there is a new sheriff in town. This narrative entirely misses, in my opinion, not only (a) the reality that Prez Obama himself retarded reform momentum in many ways (e.g., by getting such a late start on clemency, by resisting mens rea reforms that could have been included in bipartisan sentencing reform bills), but also (b) the (significant?) possibility that many GOP leaders in Congress who have actively promoted and worked hard on federal sentencing reform bills will keep up that work in the years to come.
December 21, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17)
Saturday, December 17, 2016
Is there any way to predict how Trump judges will develop sentencing jurisprudence?
The question in this post is prompted by this new Politico article headlined "Trump set to reshape judiciary after GOP blockade: The Senate left town with 99 judicial vacancies, as well as the current Supreme Court opening." Here are excerpts:
I have truly no idea whether or how or when Trump insiders will focus seriously on filling judgeships in lower federal courts, but the persons who end up filling all these vacancies will certainly have a major impact on sentencing law and policy as developed through constitutional and non-constitutional sentencing jurisprudence. When and how Prez-Elect Trump names a replacement for Justice Scalia in the weeks ahead may provide some window into how the Trump Administration will approach lower federal court appointments, but I have a feeling judicial appointments could be a kind of "work-in-progress" for the entire first term of the Trump Administration.
Mitch McConnell’s refusal to confirm many of President Barack Obama’s judicial nominees has set the table for Donald Trump to dramatically reshape the judiciary over the next four years, as the Republican Senate set a modern record for the fewest confirmations of lifetime judicial appointees.
The Senate GOP confirmed just 20 lifetime judicial appointments to district and appeals courts in its two years in the majority, the lowest number by far in the past 28 years, according to a Congressional Research Service report obtained by POLITICO. That means that President-elect Trump will have major sway over the courts next year, starting with the Supreme Court and going all the way down to the district level.
The Senate left town last week with 99 judicial vacancies covering district and appeals courts, as well as the current Supreme Court opening. There are 52 Obama nominations to those courts pending, with Supreme Court nominee Merrick Garland the most prominent nominee still waiting for action.... Most, if not all of Obama's nominations, will be wiped away next year by Trump and Senate Republicans.
There are also 38 judicial emergencies, according to the federal judiciary. Republicans had mulled confirming some judges if Hillary Clinton had won, GOP sources said before the election, but since Trump prevailed Republicans believed there was little reason to do any judicial confirmations in the lame duck. The Senate last voted on a judge on July 6, when Brian Martinotti was confirmed to a New Jersey district court....
Over eight years, Obama got roughly the same number of judges confirmed as Bush. The Senate confirmed 323 district, circuit and Supreme Court judges for Obama and 322 for Bush, according to CRS. President Bill Clinton enjoyed 370 such confirmations. That’s led McConnell to claim that he treated “President Obama fairly with respect to his judicial nominations."
But Democrats said they had treated Bush far better in his last two years as president. “Our constitutional duty of advise and consent is not about comparing one president to another. It is to ensure our Federal courts have the judges they need,” said Sen. Patrick Leahy (D-Vt.), the outgoing top Democrat on judicial matters, in a statement as Congress left town last week. “Right now, that is not the case when one of every nine judgeships across the country is vacant.”
Friday, December 16, 2016
"Why Congress May Bring Criminal Justice Reform Back to Life"
The title of this post is the headline of this effective new Marshall Project analysis by Bill Keller, which carries the subheadline " Four reasons a bipartisan bill has a better chance than you think." Here are excerpts:
It’s no wonder criminal-justice reformers woke up from Election Day 2016 with a sense of existential gloom. Given candidate Donald J. Trump’s law-and-order bluster, his dystopian portrayal of rising crime and an ostensible war on the police, and a posse of advisers who think the main problem with incarceration is that we don’t do enough of it, the idea that justice reformers have anything to look forward to is at best counterintuitive.
It is reasonable to expect that President Trump and his choice for attorney general, Jeff Sessions, will dismantle at least some of what their predecessors leave behind. Based on what they have said, the Trump-Sessions Justice Department may well roll back federal oversight of troubled police forces, escalate the war on drugs, enlarge the share of the corrections business that goes to private companies, accelerate deportations of undocumented immigrants and use the threat of financial sanctions to challenge so-called sanctuary cities....
But those inclined to look for silver linings may find one on Capitol Hill.... I can think of four reasons the prospects of federal reform are actually better in 2017.
First, it is not an election year. Nothing makes members of Congress squirm like the specter of attack ads portraying them as coddlers of criminals. There is reason to think those Willie Horton-style gotchas have lost some of their potency, but the prospect tends to make members of Congress more risk-averse in even-numbered years. And the lobbying alliance in favor of reform has grown and diversified and offers supportive candidates some political cover. It now includes significant numbers of police executives and prosecutors, who say our tendency to over-criminalize and over-punish wastes money and human potential without making us safer.
Second, President Obama will be gone. Some of the resistance to this year’s sentencing bill was a reluctance to give the president a parting victory. His heartfelt embrace of criminal-justice reform in the final years of his presidency was — through no fault of his own — the kiss of death in a hostile Congress.
Third, at least one of the hard-core Senate opponents of sentencing reform will no longer be there. That would be Jeff Sessions, the Republican senator from Alabama. True, as attorney general he will be in a position to encourage a presidential veto. But he will not be joining the obstructionists who this year never let a bill come to a vote at all. The chairman of the Senate Judiciary Committee, Charles Grassley, said in October that if his party leadership had brought the bill to the floor, it would have garnered 65 to 70 votes — enough to override a veto.
And fourth, the Republican leadership will be looking very hard for bipartisan successes to demonstrate that Washington is no longer in a state of ideological paralysis. On the short list of things Congress could do to reassure voters that government is back in business, criminal justice ranks near the top. The subject attracts libertarians who have come to see the machinery of criminal justice as another example of overbearing government, conservative Christians who see the criminal justice morass as dehumanizing, fiscal conservatives who have noticed that incarceration is expensive, and policy wonks who see a “corrections” system that largely fails to correct.
December 16, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)
Circuit judges Diane Sykes and William Pryor reportedly on top of Prez-Elect's SCOTUS short-list
This new CNN article reports that we may not be getting a SCOTUS nominee from Prez-Elect Donald Trump anytime soon and that the current front-runners are both federal circuit judges. Here are the details:
It will be some time before Donald Trump announces a nominee to fill the vacancy left by Antonin Scalia, according to transition insiders.
But two names continue to emerge to the top of the president elect's list of potential Supreme Court justices. Judges Diane Sykes and William Pryor are among the top contenders, according to multiple sources
The Supreme Court vacancy is "actively being discussed," but there is no timetable at the moment, Trump transition aide Jason Miller told reporters Thursday. "The President-elect, he had previously put out a list of 20 very qualified individuals from which he would select. I know that they have continued to narrow that list down," Miller said. "He himself has said that's probably a shorter list of 5 or 6 folks that are near the top of that, that's being narrowed down to. And again, but this is another one where it's an absolute utmost priority, so we need to make sure we get this one right."
Trump first mentioned Sykes and Pryor after a February debate -- and the two conservatives are among the only ones Trump has mentioned by name. However, aides acknowledge that given the size of the list and Trump's previous approach to filling vacancies, things are subject to change.
Sykes, 58, sits on the 7th Circuit Court of Appeals. The Marquette University School of Law grad voted to uphold Wisconsin's voter ID law and also sided with businesses in challenging the Affordable Care Act's contraception mandate. While some conservatives view Sykes favorably, others expressed concern given her age.
Pryor, a staunch conservative, called Roe v. Wade, the 1973 decision making abortion legal, the "worst abomination in the history of constitutional law." The 54-year-old Tulane Law University grad sits on the 11th Circuit Court of Appeals.
As regular readers should know, Judge Pryor would be an especially interesting pick for sentencing fans because of his recent and continuing service as a member of the US Sentencing Commission. Indeed, if Judge Pryor were to get the nomination, an interesting issue would arise concerning his continued service as a member of the USSC. I do not think there are any major legal or ethical problems with a sitting SCOTUS Justice also being an active member of the USSC, but I suspect others might believe it more appropriate for Judge Pryor to resign his position on the Commission if elevated to SCOTUS.
A few prior related Trumpian SCOTUS posts:
- Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
- Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
- Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
- Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21
Wednesday, December 14, 2016
Making the case for AG-nominee Jeff Sessions as an advocate for crime victims
Paul Cassell and Steven Twist have this notable new FoxNews commentary run under the headlined "Why Jeff Sessions, a conservative attorney general, would be best for crime victims." Here are excerpts:
As two crime victims’ rights advocates and law professors, we welcome the announcement that President-elect Trump will nominate Alabama Senator Jeff Sessions to be the next attorney general of the United States. Senator Sessions has a long and robust record of fighting for justice, and more specifically for enforceable victims’ rights. If confirmed by the Senate, he will undoubtedly be a powerful voice for crime victims as the chief law enforcement officer of the United States.
Our enthusiasm about Senator Sessions stems from the fact that he was an early supporter of amending the U.S. Constitution to protect rights for crime victims. This idea was first proposed by a Task Force assembled by President Ronald Reagan and later endorsed by Presidents Bill Clinton and George W. Bush. The Victims’ Rights Amendment was first introduced in Congress in 1996 by Senators Dianne Feinstein and Jon Kyl. Senator Sessions strongly advocated for the amendment and will be the country’s first Attorney General to cast votes for amending the Constitution to give rights to crime victims....
The Senator’s strong bipartisan record on behalf of crime victims does not end there. Senator Sessions crossed the aisle to work with Senator Feinstein to preserve restitution rights for crime victims and to provide stronger protections for victims of child abuse. He joined with the late-Senator Ted Kennedy to reduce sexual assaults in prison. He worked with Illinois Democratic Senator Dick Durbin to address sentencing disparities in federal drug laws and increase penalties for the most serious drug traffickers. And in many other ways, he fought against weakening the federal criminal laws whenever they posed an undue risk of creating even more victims of crime.
More impressive still is his courage as a prosecutor to take up the cause of pursuing justice for crime victims through the prosecution of their attackers. He stood against headwinds of the Old South to prosecute KKK criminals in Alabama. He prosecuted Klansman Henry Francis Hays, son of Alabama Klan leader Bennie Hays, for abducting and killing Michael Donald, a black teenager.
As a prosecutor, Senator Sessions established a record as aggressive, but fair. He remained focused on the ethical duty to do justice. We are excited about the prospect of an attorney general who sees the need for expanding rights and services for crime victims, and who has demonstrated the heart, the courage, and the leadership to head a Department of Justice that will ensure justice is pursued for all, including and especially for the crime victim.
Monday, December 12, 2016
"Trump should reform criminal justice system to foster economic growth"
The title of this post is the headline of this new commentary published in The Hill and authored by Eric Sterling, who is now the executive director of the Criminal Justice Policy Foundation and long ago was counsel to the U.S. House Judiciary Committee. Here are excerpts:
President-elect Trump has expressed a commitment to fostering economic growth and preserving American jobs. In that pursuit, he would be well advised to work towards reforming the criminal justice system. If he embraced a bankruptcy-like program to restore clean criminal records to the millions of Americans who have not been in trouble for many years, he could generate hundreds of thousands jobs – many more than were saved by his intervention and promises to Carrier and United Technologies.
One of the first measures of any economy is employment and job growth. Surprisingly (and unbeknownst to most politicians), our criminal justice system, and its focus on punishment instead of prevention, is one of the biggest drags on our economy because its long-term impact on employment. Once you have a criminal conviction, your ability to get a job is slashed for the rest of your life. If you can get a job, it is likely be “off-the-books.” One Department of Justice study estimated that the average wage loss is 50 percent.
The Bureau of Justice Statistics reported a decade ago that about 68 million Americans have a criminal record. Many of these records are not convictions, but some estimate that about one-third of American working age adults have a criminal conviction.
More than two-thirds of the U.S. gross domestic product is based on the activity of consumers. Cumulatively, the "under-earning" by perhaps one-third of American consumers means lost purchases of everything that every American company makes and sells. Imagine how many Americans could get a mortgage and buy a home if millions of Americans no longer had a criminal record (and imagine how many new Carrier furnaces and air conditioners would be sold and installed).
We have a prison population of 1.8 million (that excludes the jail and juvenile detention populations). In 1970, that number was about .25 million. We know that none of the men and women in prison bought a Ford or Chevrolet last year. We also know that most of those in prison are not there for violent offenses. If they were home – yes, with their liberty restricted, and under supervision – they could work, and many of them would need and could buy a car....
Imagine what the Social Security trust fund would like if millions more American men and women were working, instead of in prison or unemployed or underemployed. Trump should direct his economic team to fully calculate the large-scale economic benefits of smart on crime justice reform.
Trump is proud of his mastery of bankruptcy laws. A criminal record clean slate law is like a bankruptcy. Instead of wiping your financial debts away, such a law would wipe away your criminal record after five or seven years of verifiable good conduct. Bankruptcy, which is in the Constitution, is a useful model for rebuilding the records of formerly convicted persons to re-enter the economy by the millions and help build economic growth for all Americans.
December 12, 2016 in Criminal justice in the Trump Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)
Monday, December 05, 2016
Bring it, Jeff: why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive
The title of this post is my (foolish?) reaction to this notable new Politico magazine article headlined "Jeff Sessions’ Coming War on Legal Marijuana: There’s little to stop the attorney general nominee from ignoring the will of millions of pro-pot voters." Here are excerpts from the start of the article which I follow with a (too brief) explanation for my blunt "bring it" bravado:
By nominating Senator Jefferson Beauregard Sessions III for attorney general, President-elect Donald J. Trump is about to put into the nation’s top law enforcement job a man with a long and antagonistic attitude toward marijuana. As a U.S. Attorney in Alabama in the 1980s, Sessions said he thought the KKK "were OK until I found out they smoked pot.” In April, he said, “Good people don't smoke marijuana,” and that it was a "very real danger" that is “not the kind of thing that ought to be legalized.” Sessions, who turns 70 on Christmas Eve, has called marijuana reform a "tragic mistake" and criticized FBI Director James Comey and Attorneys General Eric Holder and Loretta Lynch for not vigorously enforcing a the federal prohibition that President Obama has called “untenable over the long term.” In a floor speech earlier this year, Senator Sessions said: "You can’t have the President of the United States of America talking about marijuana like it is no different than taking a drink… It is different….It is already causing a disturbance in the states that have made it legal.”
Sessions has not shared his plans on marijuana enforcement, but if he chooses, he will be able to act decisively and quickly — more so perhaps than with any other of his top agenda items such as re-doubling efforts to combat illegal immigration and relaxing oversight of local police forces and federal civil rights laws. With little more than the stroke of his own pen, the new attorney general will be able to arrest growers, retailers and users, defying the will of more than half the nation’s voters, including those in his own state who approved the use of CBD. Aggressive enforcement could cause chaos in a $6.7 billion industry that is already attracting major investment from Wall Street hedge funds and expected to hit $21.8 billion by 2020.
And so far, Congress has shown no interest in trying to stop the Sessions nomination, at least on this issue. Even members who are in favor of protecting states from federal interference on the marijuana issue have said they support Sessions’ confirmation as attorney general: “I strongly support Jeff Sessions as Attorney General,” said Representative Tom McClintock, Republican from California. “He is a strict constitutionalist who believes in the rule of law. I would expect that he will respect the prerogative of individual states to determine their own laws involving strictly intra-state commerce.”
There are dozens of reasons I think it would be quite foolish as a matter of constitutional law and sound federal policing priorities for future Attorney General Jeff Sessions to start his tenure by using broad federal police powers to criminally prosecute tens of thousands of players in a growing recreational marijuana industry. This industry is already well-established and producing thousands of jobs and tens of millions in tax revenues in Colorado, Oregon and Washington; it is now gearing up for growth in Alaska, California, Massachusetts and Nevada and maybe Maine.
In the most simple of terms, it would be foolish for the Trump/Sessions Administration to try to "Make America Great Again" via tough federal pot prohibition enforcement because it would show to all who care to pay attention that the GOP's purported affinity for personal freedoms, free markets, limited government and states' rights is a huge bunch of hooey. But I genuinely believe that most younger GOP Senators — e.g., folks like Ted Cruz, my wish pick for AG, Mike Lee, Rand Paul, Ben Sasse, Tim Scott— have always voiced a genuine commitment to personal freedoms, free markets, limited government and states' rights. Consequently, I do not think these important GOP voices are going to be quick to bless any efforts by future AG Jefferson Beauregard Sessions III to bring back an era of national federal Prohibition enforcement by executive fiat.
Moreover, and completely missing from the facile analysis in this superficial Politico article, even if future AG Jeff Sessions were eager to bring back an era of national federal Prohibition enforcement by executive fiat for the emerging recreational marijuana industry, there will still be the bigger and stronger and much more consequential medical marijuana industry chugging along — especially in so many swing/red states that were critical to the election of Donald J. Trump circa 2016. I am thinking here specifically of now-red states like Arizona and Florida and Michigan and Ohio and Pennsylvania. Those now-red states alone add up to nearly 100 electoral votes that a whole bunch of Dems would love to win back in 2018 and 2020; and they are all states that, I think, could easily go back into the Dem column if/when establishment Dems finally figure out that medical marijuana reform in a winning issue worth promoting forcefully. (I have blogged here an explanation for my claim in a post at my other blog that Voter math suggests a possible Hillary landslide IF she had championed marijuana reform.)
Importantly, in this post I have only outlined some obvious political/policy reasons for why I think it would be foolish (and ultimately unlikely) for future AG Jefferson Beauregard Sessions III to bring back an era of national federal pot Prohibition enforcement by executive fiat. In a future post, assuming readers are interested, I can explain all the reasons I think the other two branches of the federal government — Congress and the federal judiciary — can and would and should find an array of means to "stop the attorney general nominee from ignoring the will of millions of pro-pot voters." Given that Congress and federal judges over the last eight years have done a whole lot to preclude the Obama Administration from doing too much by executive fiat, everyone concerned about criminal justice and marijuana policy in the Trumpian future much keep in mind that the Framers gave us a wonderful federal system of check-and-balances that has been pretty effective at keeping the big bad federal government from doing too many stupid things that are obviously against the considered will of the people.
Cross-posted at Marijuana Law, Policy, and Reform
Friday, December 02, 2016
Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21
This new Politico article, headlined "Trump: Supreme Court pick coming 'pretty soon'," suggests that SCOTUS fans may not have much longer to wait to see who might be selected to replace the late great Justice Antonin Scalia on the US Supreme Court:
President-elect Donald Trump said Thursday night he had narrowed his choices for a potential Supreme Court nominee to "three or four" candidates and that a decision would be coming "pretty soon."
Appearing on Fox News from Cincinnati, Ohio, where the president-elect held the first leg of his celebratory "thank you" tour Thursday, Trump told host Sean Hannity that an announcement on a potential judicial appointment is not too far off. "We're going to have to appoint very soon. We're going to have to come up with a name," Trump said. "I'm looking -- I'm down to probably three or four [candidates]. They are terrific people, highly respected, brilliant people and we'll be announcing that pretty soon too."
The president-elect also assured Hannity that his final selections would be constitutional "originalists." During his presidential campaign Trump unveiled a list of 21 candidates whom he has said were chosen in the mold of Justice Antonin Scalia, who died Feb. 13.
I have outlined at great length what I hope to see from a SCOTUS pick in this prior post titled "Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list." Because I seriously doubt that Prez-Elect Donald Trump and/or his advisers care one whit about any of the matters I care about when it comes to SCOTUS appointments, I am not expecting to be pleased or excited by The Donald's pick. But I am genuinely pleased and excited to be able to imaging a full and fully-functioning Supreme Court in the not-too-distant future.
A few prior related Trumpian SCOTUS posts:
- Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
- Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
- Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
Tuesday, November 29, 2016
Making the case that the next Administration needs to demonstrate that "laws are not just for the little people"
Writing here in the National Review under the headline "A Memo for Attorney General Jeff Sessions," former Justice Department officials Robert Delahunty and John Yoo share some interesting advice for the likely next AG. I recommend the lengthy piece in full, and here is just a taste:
Hillary Clinton’s alleged criminality was a centerpiece of the last election and may well have cost her the presidency. It was not very long ago that crowds at Trump rallies were chanting “Lock her up!” We can think of no earlier presidential contest in which a candidate’s alleged criminal wrongdoing was so central an issue in the voters’ decision-making. This is truly an unprecedented case.
Unless President Obama acts first to pardon Clinton, the task of balancing these considerations will be left to the new president and his attorney general. Our view is that President Trump should offer her a pardon. Just as with President Gerald Ford’s pardon of Richard Nixon, Clinton’s acceptance of that offer would be widely understood as a tacit admission, if not perhaps of proven criminal guilt, then at least of wrongdoing sufficient to justify prosecution. We think that the matter should rest there.
But even if that were to happen, there are, apparently, more ongoing criminal investigations into the affairs of the Clintons and their inner circle. The investigation that Comey suspended concerned Clinton’s use of a private server to transact governmental business involving classified materials. Media reports have indicated that there are no fewer than five other investigations under way. These include at least one investigation into whether the Clinton Foundation has committed financial crimes or been sullied by influence-peddling.
We believe that those investigations — which were begun under the Obama administration — should be pursued. And if in the end, the findings of those investigations justify bringing criminal charges against the vast network of Clinton helpers and aides, those charges should be brought and tried.... Trump is right to express a desire not to harm the Clintons: The criminal process should never be turned into a political vendetta or even appear to be one. But no one, and certainly not the powerful and politically connected, should be above the law — the Clintons included. Trump’s campaign pledges on that issue resonated with the American public. The law is not just for the little people, and the little people are watching....
Jeff Sessions will take the helm of a Justice Department that has been terribly compromised in other respects. He must act decisively to change its culture. Again, the Clinton “reverse Midas” touch — transforming gold into dross — was at work. Candidate Clinton publicly offered to retain Attorney General Lynch in office if she were elected, even while Lynch at the time was charged with overseeing criminal investigations into the Clinton e-mail and Foundation scandals. By not publicly declining that offer — in effect, a bribe — Lynch tainted the integrity of the investigations as well as the office of attorney general.
President Obama also undermined public confidence in the Justice Department. He maintained that he had learned of Clinton’s private server only when everyone else had. Yet later leaks revealed that he in fact had corresponded numerous times with Clinton through her off-the-record system. Obama also proclaimed Clinton not guilty of wrongdoing even while the investigation into the use of her private server was still open....
These incidents came towards the end of an eight-year period in which the honor of the Justice Department had been badly tarnished. Much of the damage occurred during the five-year stint of former attorney general Eric Holder, the first and only attorney general to be held in contempt of Congress. (Holder’s conduct was so egregious that even most House Democrats declined to vote against the contempt resolution.) Under Holder, the DOJ became thoroughly politicized, taking positions that were, frankly, absurd — on legal issues such as congressional voting representation for the District of Columbia, presidential recess-appointment power, or the War Powers Resolution. Holder’s Justice Department brought cases not on their legal merits but in order to target the administration’s perceived political or ideological opponents....
This election was about the place of law in American public life. The voters were rightly repelled by the performance of public figures, above all Hillary Clinton and her entourage, who acted as if they were above the law. Voters resented President Obama’s chronic refusal to enforce the law — whether in health care or immigration — when he found that it did not suit his political purposes. They seem to have forgiven Donald Trump for his alleged manipulation of the tax code because, even if dodgy, his actions were not illegal.
As president, Donald Trump owes it to his voters and to the American people as a whole to restore the public’s trust in its government. He must repair the contract between the people and its agents that his rival and his predecessor have shattered. And Attorney General Jeff Sessions needs to be a strong and stalwart presence at his right hand as the new president makes this happen.
November 29, 2016 in Criminal justice in the Trump Administration, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (19)
"Why Trump needs to roll back criminal penalties for noncriminal conduct"
The title of this post is the headline of this notable commentary authored by Ronald Lampard, the director of the Criminal Justice Reform Task Force at the American Legislative Exchange Council (ALEC). Here are excerpts:
Unauthorized use of Smokey the Bear's image could land an offender in prison. So can unauthorized use of the slogan "Give a Hoot, Don't Pollute." While one may think the government would never initiate a criminal prosecution for either of these two "criminal" acts, there have been numerous examples of individuals being prosecuted under federal law for conduct that should not be criminalized.
For example, Eddie Anderson of Idaho took his son camping in the wilderness, searching for arrowheads. They didn't find any, but they were searching on federal land, which is prohibited by the Archaeological Resources Protection Act of 1979. They both faced a felony charge, punishable by up to two years' imprisonment before they pleaded guilty to a misdemeanor and were fined $1,500 each and placed on probation for a year.
Some of these criminal offenses are contained in federal statutes, which prescribe an estimated 4,500 crimes, according to a study by retired Louisiana State University law professor John Baker. To help put that number in perspective, the Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. Around the turn of the 20th century, the number of federal criminal statutes was as low as dozens. Essentially, over the last hundred years, federal statutes carrying criminal penalties have grown at an exponential rate.
The number of criminal statutes — laws passed by both Houses of Congress and signed into law by the president — is dwarfed by the number of regulations carrying criminal penalties. The total number of these regulations is difficult to count, however, it is estimated to number roughly 300,000. Perhaps most disturbingly, these "criminal regulations" are written by unelected bureaucrats, yet still carry the force of law.
In order to stem the explosion of criminal regulations, President-elect Trump can begin the process of removing said regulations. Trump says in his first 100 days he wants to see two regulations removed for every one regulation created. Since these regulations were largely written by unelected bureaucrats who work for the executive branch, the Trump administration could start immediately....
Certainly, some of these regulations ought to deter certain conduct. However, this can be accomplished by making the penalty civil or administrative.... As John Malcolm at the Heritage Foundation said, "There is a unique stigma that goes with being branded a criminal. Not only can you lose your liberty and certain civil rights, but you lose your reputation — an intangible yet invaluable commodity … that once damaged can be nearly impossible to repair. In addition to standard penalties … a series of burdensome collateral consequences that are often imposed by … federal laws can follow an individual for life."
The federal government should proscribe criminal penalties only for conduct that is inherently wrong in order to protect public safety. Criminal statutes serve a crucial purpose in preserving law and order and establishing the rule of law. However, preserving law and order need not come at the expense of criminalizing conduct such as nursing a woodpecker back to health or shipping undersized lobsters in plastic bags instead of cardboard boxes.
Trump has a tremendous opportunity to reduce the number of actions criminalized by federal law. Such action would serve all Americans well and would be a great victory for both law and order and individual liberty.
Monday, November 28, 2016
Mapping out the Trumpian new world order with respect to federal sentencing reform
This article from The Hill, headlined "Trump marks change for criminal justice reform," effectively details the uncertain terrain for federal sentencing reform in the wake of this month's historic election. Here are excerpts:
President-elect Donald Trump won’t close the door on criminal justice reform, but the path forward may be complicated by his campaign rhetoric and pick to lead the Department of Justice, advocates say.... Trump’s calls for law and order, his vow to jail immigrants who are in the U.S. illegally and his pick of Sen. Jeff Sessions (R-Ala.) as attorney general have also left some criminal justice reform advocates concerned.
“I’d be lying if I told you I wasn’t concerned about Sessions as attorney general,” said Danyelle Solomon, who serves as the director of Progress 2050, a Center for American Progress project focused on diversity. “There are a lot of concerns ... that he will be a barrier to data-driven, policy-driven reforms in this space," she said. "I think he creates a challenge."
Sessions voted against the Senate bill to reduce certain mandatory minimum prisons sentences when it came before the Senate Judiciary Committee over a year ago, leaving some worried that he'd be a barrier for reform moving forward. But conservative criminal justice reforms advocates remain optimistic about Sessions, noting he authored the Drug Sentencing Reform Act in 2001 to decrease the amount of powder cocaine and increase the amount of crack cocaine necessary to trigger mandatory minimum sentences.
“Sessions isn’t monolithically opposed to reform, but he does demand a high standard for legislation that’s put in front of him,” said Derek Cohen, deputy director of Right on Crime. With Sessions as attorney general, Cohen said lawmakers might hammer out better legislation that may actually reduce costs and recidivism rates.
Jessica Jackson Sloan, national director and co-founder of #Cut50, argued "there's a really strong conservative pull on this administration" to continue pushing for criminal justice reform. Sloan is expecting reforms to focus more on re-entry, over-criminalization and initiatives in the private sector to get formerly incarcerated people back into the workforce.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said in a statement to The Hill that he’s spoken to ranking member John Conyers (D-Mich.) about getting an early start on reform measures in the new Congress. “I look forward to talking with President-elect Trump and his administration about the problems facing the criminal justice system and our ideas for reform,” he said. "There is bipartisan agreement that many aspects of our criminal justice system need reform."
Goodlatte pointed to successes GOP governors have had in making reforms at the state level. “It is my hope that this will be an issue we can all work on together in 2017,” he said....
Opponents of criminal justice reform, however, argue the door for criminal justice reform was never open to begin with. Bill Otis, an adjunct professor of law at the Georgetown University Law Center, claims reform never really had a chance of passing Congress when President Obama was in office and has even less of a chance under Trump.
The former federal prosecutor said advocates had a leg up with the support of the Obama administration and with that came a forum and resources. “Now all that will disappear,” he said. “Trump ran explicitly as a law-and-order candidate. If he had a good word to say about reducing prison sentences, I didn’t hear it.”
Advocates are refusing to throw in the towel. Last week, the partners of the U.S. Justice Action Network sent a letter to Trump encouraging him to make criminal justice reform a top priority in his first 100 days. “We share your goal of enhancing public safety and encourage you to consider that, just as with energy policy, it requires an all-of-the-above strategy,” they wrote. “That is, just as we recognize those who pose a danger to society must be behind bars, for many others such as addicts and those with mental illness public safety can best be advanced through treatment-based approaches.”
Wednesday, November 23, 2016
"Four predictions about President Trump’s Supreme Court" ... that seem somewhat iffy
The quoted portion of this post title is the headline of this new Washington Post commentary authored by poly-sci professor Kenneth Moffett. But as my addition to the title suggests, I am not too sure about all the predictions. Here are some highlights:
One of President-elect Donald Trump’s most important decisions will be choosing a Supreme Court nominee to replace the late Justice Antonin Scalia. And while Trump has not clearly signaled who he will pick, here are four predictions about the next Supreme Court:
1. Trump will appoint a conservative. What kind of conservative isn’t yet clear. ...
Eight potential Trump appointees have more liberal scores than Scalia, while four are more conservative. Regardless of which side they fall on, eight are clustered pretty close to Scalia, indicating that they would likely be justices in his mold....
The chart suggests that it is virtually certain that Trump will nominate a conservative, most likely one whose preferences are closely aligned with Scalia. Of course, if Trump deviates from his announced list of 21 — not an impossibility given his penchant for surprise — then that may be less certain.
2. The court will get back to hearing its normal caseload.
During the 2015 term, the court heard 69 cases, but only has 48 on the docket in 2016.... [When] a new justice will be confirmed, bringing the court back to full strength. When that happens, the court’s docket will return over the next term or two to the average of where it had been in the previous five terms, around 69 cases.
3. The court is not going to undo affirmative action programs — at least not immediately....
4. The court could move to weaken labor unions and expand gun rights.
For complicated reasons, I am not sure I would make book on most of these predictions. But on a holiday eve, I will just say I would love to hear others' SCOTUS predictions (especially in the sentencing space).
Tuesday, November 22, 2016
"Trump will not pursue charges against Clinton, aide says"
The title of this post is the headline of this new FoxNews piece, which reports these details:
President-elect Donald Trump will not pursue charges against Hillary Clinton relating to the Clinton foundation or the former secretary of state’s use of a private email server, former Trump campaign manager Kellyanne Conway said Tuesday.
In an interview with MSNBC’s Morning Joe, Conway said that while Clinton “has to face the fact that a majority of Americans don’t find her to be honest and trustworthy,” it would be a good thing if Trump can “help her heal.” "I think when the President-elect, who's also the head of your party…tells you before he's even inaugurated he doesn't wish to pursue these charges, it sends a very strong message, tone, and content,” she said.
The move is a significant break from Trump’s campaign rhetoric, which included a warning that if he were president he’d get his attorney general to appoint a special prosecutor to investigate her behavior. In the second presidential debate he quipped to Clinton that if he was president: “you’d be in jail.” Cries of “lock her up” were a common feature at Trump’s campaign rallies....
Trump's decision not to pursue charges against Clinton would not prevent congressional Republicans from opening investigations and referring them to the Justice Department for charges. Trump expanded on his decision at a meeting with reporters at the New York Times Tuesday afternoon, telling them "I think it would be very very divisive for the country" to prosecute the Clintons, although he hadn't taken it off the table entirely.
Though I am 99.9% certain nobody will fully understand the full basis for my first two reactions here, I will share them anyway: (1) I am a tiny bit disappointed, and (2) I hope congressional Republicans will at least do some investigation into the deleted emails and/or into pay-to-play with the Clinton Foundation while Hillary Clinton was serving as Secretary of State.
UPDATE: Kent over at Crime & Consequences has this post on this topic under the title "Amnesty for Hillary."
Monday, November 21, 2016
"Four Ways Drug Policy Reformers Must Play It Smart Under the Trump Administration"
The title of this post is the headline of this notable new commentary by Bill Piper, which gets started this way:
I began working, advocating and lobbying for federal-level drug policy reform in Washington, DC in the last year of Bill Clinton’s presidency. I’ve continued to do so ever since: I was a loyal soldier in the war against the War on Drugs through eight years of George W. Bush and then eight years of Barack Obama. But now, with the election of Donald Trump, it feels like the work during those three presidencies was just basic training—the real challenge is just beginning.
Like many people, I’m still trying to wrap my mind around the very idea of Donald Trump as president. But what’s certain is that drug policy reformers are going to have to play it smart in the new era, and I do have some initial thoughts.
First, we’re in uncharted territory. We have never had a president like this—so far removed from establishment norms, openly promoting white supremacy, believing in and promoting wacko conspiracy theories. Complicating matters, he doesn’t seem to have fixed positions, rarely gives specifics and contradicts himself often. No one knows for sure what exactly to expect, but we should assume the worst.
His administration, which looks set to be staffed by drug-war extremists, could go after state marijuana laws. Instead of just opposing sentencing reform, they could push for new mandatory minimums. They might demonize drugs and drug sellers to build support for mass deportations and a wall. Trump’s law-and-order rhetoric could fundamentally alter the political environment, nationally and locally.
Right now there is a bipartisan consensus in favor of reducing incarceration—that consensus is in danger. We could be set back decades if we’re not careful. We need to rethink a lot of what we’ve been planning and think about how we message. And it’s more important than ever that we support our allies in other movements and stand strong for racial justice. We need to re-learn how to play defense.
Wednesday, November 16, 2016
A few (of many, many, many) reasons I am rooting really, really, really hard for Ted Cruz to be our next Attorney General
I am so excited by this developing news that Ted Cruz is perhaps going to be our nation's next Attorney General. Let me report the basic news and then set out just a few reasons why I think all Americans who are committed to the rule of law — including the most ardent Trump supporters and especially the most ardent Trump haters — should want Prez-Elect Trump to be calling Cruz, rather than, "Lyin' Ted," Attorney General Rafael Edward Cruz:
President-elect Donald Trump is considering nominating Texas Senator Ted Cruz to serve as U.S. attorney general, according to a person familiar with the matter.
Cruz, 45, was at Trump Tower in New York on Tuesday. When approached by reporters on his way out, Cruz said the election was a mandate for change but didn’t say he was under consideration for a job.
Cruz unsuccessfully sought the Republican presidential nomination. He and Trump were at odds during the primary, viciously attacking one another. Trump nicknamed Cruz “Lyin’ Ted.” Cruz didn’t endorse Trump during a speech at the Republican National Convention in Cleveland. In September, relations between the two men seemed to improve when Cruz said he would vote for Trump.
I could likely write a hundred posts explain why everyone interested in criminal justice reform generally, or sentencing reform and marijuana reform in particular, should be much more excited about Ted Cruz as Attorney General than any of the other names that have been floated. For now, I will just start with the three main reasons I am so thrilled:
1. The profoundly personal: Like far too many people, I tend to assume people who have a similar background to me think a lot like me. Ergo, I must admit that my (unhealthy?) "man love" for Ted Cruz may have a lot to do with these aspects of his background (via Wikipedia):
Cruz graduated cum laude from Princeton University in 1992 with a Bachelor of Arts in Public Policy from the Woodrow Wilson School of Public and International Affairs.... Cruz's senior thesis at Princeton investigated the separation of powers; its title, Clipping the Wings of Angels, draws its inspiration from a passage attributed to US President James Madison: "If angels were to govern men, neither external nor internal controls on government would be necessary." Cruz argued that the drafters of the Constitution intended to protect the rights of their constituents, and that the last two items in the Bill of Rights offer an explicit stop against an all-powerful state.
After graduating from Princeton, Cruz attended Harvard Law School, graduating magna cum laude in 1995 with a Juris Doctor degree. While at Harvard Law, he was a primary editor of the Harvard Law Review...
Cruz married Heidi Nelson in 2001. The couple has two daughters, Caroline and Catherine.... She is currently taking leave from her position as head of the Southwest Region in the Investment Management Division of Goldman, Sachs & Co. and previously worked in the White House for Condoleezza Rice and in New York as an investment banker. Cruz has joked, "I'm Cuban, Irish, and Italian, and yet somehow I ended up Southern Baptist."
As some readers may know, I graduated from the same university and law school as Senator Cruz (two years earlier, so I never met him), and I also was extremely lucky to meet and marry a beautiful blonde woman who is a lot different than me (and smarter than me) and who has blessed me with two daughters.
2. The principled political: I have long been impressed with Cruz's willingness and eagerness to combine political acumen with principled commitments. Though I tend not to be a fan of the tactic of shutting down the government, I am a fan of anyone who will be driven even to the point of serious career risk to make a principled stand based on principled beliefs. This Cruz character was on display throughout the 2016 campaign: at first, before the voting started, Cruz worked with Donald Trump because he say Trump as a voice for outsiders. Once the voting started, Cruz treated Trump with respect and also tried to highlight how he was more principled and had more personal character than Trump. Then, rather than avoid going to the Republican National Convention (as did Gov John Kasich and other establishment types that Trump defeated), Cruz went into the Trumpian lion's den and told all Republicans and all Americans to vote their conscience.
Now that Americans in key states have all voted their conscience and Trump is Prez-Elect, Cruz is not licking his wounds and plotting how to make Trump fail. Instead, Cruz is apparently willing and perhaps eager to serve all Americans in the Executive Branch after a number of years in which he served only Texans in various ways as a state official and then as a US Senator. Moreover, this past political history (not to mention his Princeton University senior thesis) would seem to ensure that Cruz would not serve as a Trump toady as Attorney General. I make this point because I think the last two Presidents first selected (ground-breaking) accomplished lawyers to serve as attorney general (Alberto Gonzales and Eric Holder) who were, in my view, not-very-successful in part because they were perceived to be (and likely were) far too cozy personally and politically with the President.
3. Criminal justice reform: There are dozens of reasons I think an Attorney General Cruz would be great for adding momentum to the criminal justice reform movement. I will not try to list all those reasons here and will just instead link to prior posts on this blog highlighting some reasons I sincerely hope I get to talk about Attorney General Cruz on this blog in the coming months and years, with a few posts emphasized that I think everyone MUST read ASAP:
Tuesday, November 15, 2016
Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
As explained in this post eight months ago, I was deeply disappointed that Prez Obama "decided to nominate to the Supreme Court to replace Justice Antonin Scalia, an old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit, none other than Chief DC Circuit Judge Merrick Garland, another old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit." As this sentence was meant to highlight, my disappointment in the selection by Prez Obama was focused on six particular attributes of Judge Garland (and Justice Scalia), and here in rank order is what I disliked from most bothersome to least:
1. Old: Garland at age 63 was the oldest person nominated to be an associate Justice in over 100 years other than Prez Nixon's nomination of Lewis Powell at age 64. With all due respect to people who are eager to work well after retirement age, I generally think it better for most jurists after a two decades on the bench to be thinking seriously about retirement, rather than about starting a new job.
2. Harvard Law School: With all due respect to my alma mater and its rivals Yale and Stanford, only two of the previous 16 nominees to the Supreme Court did not attend at some point HLS or YLS or SLS: John Paul Stevens (Northwestern) and Harriet Miers (SMU). Though I am proudly a product of elite coastal educational institutions, my 20 years teaching at Ohio State (and teaching as a visitor at Colorado and Fordham) has reinforced and deepened my strong belief that a whole lot of elite lawyers and supremely qualified jurists have degrees from law schools other than Harvard, Yale and Stanford.
3. DC Circuit Judge: Even after Justice Scalia's passing, three of the current Justices had previously served on the DC Circuit (Chief Justice Roberts and Justices Ginsburg and Thomas). As a close follower of criminal justice jurisprudence (which makes up almost 50% of the SCOTUS docket), there are many reasons I think judicial experience as a DC Circuit Judge is especially bad: (a) the DC Circuit sees very few criminal cases and zero state habeas cases, (b) the DC Circuit is "inside the Beltway" and so judging is always going to be distinctly "politicized" on that court, and (c) the very few criminal cases DC Circuit judges do see are highly unrepresentative of criminal cases throughout the nation. Among the reasons I have liked the last three appointments to SCOTUS (Justices Alito, Sotomayor and Kagan) is because none of them came up from the DC Circuit; also Justice Sotomayor had been a federal district judge before becoming a circuit judge, and Justice Kagan had never been a judge. I sincerely believe that the Supreme Court's criminal justice jurisprudence has improved considerably in recent years thanks to the collective work of Justices Alito, Sotomayor and Kagan (and I say this as one of the few fans of the Blakely/Booker cases which predate their arrival).
4. Formerly worked for USDOJ: Regular readers are likely aware of my complaints about the persistent appointment of what I might call "big government" prosecutors/insiders, i.e., people who spent at least some of their formative professional years advocating on behalf of (ever-exanding) government powers. Here are snippets from the official SCOTUS bios of the last five confirmed SCOTUS appointments to the Supreme Court: "Special Assistant to the Assistant U.S. Attorney General [and] Assistant Special Prosecutor" (Breyer); "Special Assistant to the Attorney General" (CJ Roberts); "Deputy Assistant Attorney General, U.S. Department of Justice [and] U.S. Attorney, District of New Jersey" (Alito); "Assistant District Attorney in the New York County District Attorney's Office" (Sotomayor); "Solicitor General of the United States" (Kagan). Those eager for courts to check and limit the powers of governments (especially the federal government) need not look past these professional realities to understand why it so often seems that "the little person" asserting rights against some big government rarely prevails before a group of people who, in many, many, many ways, owe their professional success to the increasing size of government with fewer and fewer constitutional restraints.
5. Male: According to this Wikipedia entry, as of 2016, there have been 161 formal nominations to SCOTUS, and only five have been women (O'Connor, Ginsburg, Meirs, Sotomayor, Kagan). For those good at math, you should know that this is just over 3% of all appointments (and, disgracefully in my view, a bunch of men bullied Meirs into withdrawing before she even got a hearing and she was replaced by Justice Alito). As of the 2010 census, women comprised 51% of the US population, and I am so proud that Prez Obama increased the historical number of women appointed to SCOTUS from around 1.8% to 3.1%. But, especially as the father of two teenage daughters, I am not quite ready to say "you have come a long way, baby."
6. White: Of 161 formal SCOTUS nominees, only three have been people of color (T. Marshall, Thomas, Sotomayor). Given that 72% of the nation identified white as of the 2010 census, I suppose I should just be grateful Prez Obama nominated one person of color to SCOTUS. But, beyond the fact that now close to 25% of the nation identifies black or Latino, there are lots of other large diverse minority groups in the US, as this official US Census article notes. For example, as of 2010, Asians were now 5% of the US population, and "grew faster than any other major race group between 2000 and 2010." In addition, I think a powerful argument might be made, especially given the exclusive federal jurisdiction in Native lands and on many US Islands, that SCOTUS ought to have someone from the 2.5% of the US population that consider themselves at least in part "American Indian and Alaska Native (5.2 million) and Native Hawaiian and Other Pacific Islander (1.2 million)."
So, based on this discussion and my prior criticism of Prez Obama's nomination of Judge Garland, I think my ideal pick to replace Justice Scalia would be (1) young (ideally under 50), (2) an alum of some school other than HLS, YLS or SLS, (3) not a DC Circuit Judge, (4) not a former prosecutor or DOJ employee, (5) a woman, and (6) not white. For the record, in case anyone cares or thinks my own biases color my judgment, I satisfy only three of these six criteria — as does, quite interestingly, Prez Obama and Prez-Elect Donald Trump and defeated candidate Hillary Clinton (though none us satisfy the same three of these six criteria).
I have not yet had a chance to drill down deeply into all 21 of the lawyers appearing on Prez-Elect Donald Trump's SCOTUS not-so-short list to see who may satisfy the most of my ideal criteria, but I was inspired to do this post by some recent articles from The National Law Journal and the New York Times discussing the diversity on some attributes of some of the persons on the Trump SCOTUS list. I do not believe there is a woman of color on the Trump list, so I think it may be impossible for any of the 21 to hit all of my key six diversity attributes. But it is certainly possible (and I am hopeful) that there are more than a few candidates on the list who satisfy five or at least four of these attributes. And in the wake of Prez -Elect Trump's past criticism of a federal judge based on his ethnicity, I suspect I am not the only one now culling his lists on various distinct diversity grounds.
And, to preempt any complaints that I am worrying way too much about "identity politics," as an academic in a University community that talks a lot about diversity attributes, I could readily devise a long list of other attributes that could also be important to consider if we aspire to have SCOTUS become a more "representative" institution: e.g., personal or professional history (a SCOTUS nominee could be a non-lawyer); religion (e.g., no Mormons or avowed atheists have even been a Justice); military service (who was last veteran on SCOTUS?); socio-economic status (who was last first-generation college SCOTUS nominee?), marital/parenting history (the last two nominees were single), disability, sexual orientation, citizenship or criminal history and on and on.
Sunday, November 13, 2016
Respond to Election 2016 outcomes by writing a commentary for the Federal Sentencing Reporter
Wearing my hat as an editor of the Federal Sentencing Reporter, I am happy to reproduce a solicitation from the journal below (and I am eager to encourage regular readers to put together their views ASAP for possible publication):
Seeking Commentaries for Federal Sentencing Reporter Special Issue to provide “Advice for the new Congress and new Administration”
Every election cycle presents a notable opportunity for new discussions and debate over the state and future of the federal criminal justice system, especially when the election comes at the close of a two-term presidency. And after considerable talk before the campaign season of bipartisan agreement over the need for federal sentencing reforms, the 2016 campaign saw the two leading candidates take divergent tacks when discussing crime and punishment. Democratic candidate Hillary Clinton spoke of the need for “end-to-end reform” of the criminal-justice. In sharp contrast, GOP candidate (and now President Elect) Donald Trump stressed the themes of "law and order."
With the election of Donald Trump and with both houses of Congress to be under the control of the same party as the President Elect, the incoming Congress and new Administration could seek to move forward swiftly with criminal justice reforms. But what form might new reforms take? In a short document entitled "Donald Trump's Contract with the American Voter," the President-Elect pledged to work with Congress to establish new mandatory minimum prison terms for certain immigration offenses, to create a task force on violent crime, and to increase funding for federal law enforcement agencies and federal prosecutors. But beyond these few pledges, it remains quite unclear whether or how the new Trump Administration or the incoming Congress might want to make a criminal justice reform priority.
In light of these developments and related uncertainty, the editors of the Federal Sentencing Reporter have decided to create a special Forum opportunity to invite judges, lawyers and other sentencing practitioners, legal academics and sentencing researchers, to share "Advice for the new Congress and new Administration." We hope that contributors to this special issue of FSR can help provide both general ideas and specific proposals for how the new Congress and new Administration should approach criminal justice reform issues, especially as they relate to federal sentencing law and policy.
FSR seeks to publish short commentaries — ranging in length from a few paragraphs to a few pages — on any federal crime and punishment topics authored in any reasonable form to provide “Advice for the new Congress and new Administration.” Commentaries could tackle big structural issues (such as whether the time has come to radically change the advisory guideline system), smaller technical issues (such as how to revise statutory mandatory minimum drug sentencing provisions), or any other topic of interest or concern to modern federal sentencing policy and practice.
FSR hopes to publish in its December 2016 and February 2017 issues all proper commentaries submitted before the end of this year. Submissions must be received no later than November 28 for possible publication in the December issue and not later than December 24 for the February issue. Submissions should be sent electronically to sentencinglaw @ gmail.com with a clear indication of the author and the author’s professional affiliation. All judges, lawyers and other sentencing practitioners, legal academics and sentencing researchers, and any others with an informed interest in federal sentencing law, policy and practice are encouraged to submit a commentary.
Friday, November 11, 2016
How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
The question in the title of this post are inspired by today's national holiday, Veterans Day. Here are some general data thoughts/realities as part of an effort to try to answer these questions:
1. According to these latest BJS statistics, we can reasonably estimate that at least 5% of the current federal prison population are veterans. The BJS report starts by noting that "In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities." But a variety of demographic realities would suggest that veterans are probably underrepresented among the types of prisoners serving time in federal prison.
2. So, to answer my first question based on this working estimate of at least 5%, we should expect that nearly 50 of the 944 federal prisoner commutations by Prez Obama have been to veterans. But this is really a statistical guess because there could be direct or indirect reasons why veteran status made a candidate more likely to garner Prez Obama's attention or why the pool of long-sentenced drug offenders now only getting clemency these days are less likely to include veterans.
3. And, to answer my second question based on this working estimate of at least 5%, we should expect that nearly 10,000 veterans make up of current federal Bureau of Prisons population which totals over 191,000. If we were to entertain the supposition that only 1 out of every 100 current veteran federal prisoners are likely to be good candidates for clemency, that would still mean 100 current federal prisoners would now be commutation-worthy. (And, if we want to think about all veterans with a federal conviction who might seek or merit a pardon, there could well be thousands of good veteran clemency candidate worth thinking about on this Veterans Day.)
Though the day is still young, I am not expecting that Prez Obama will celebrate his last Veterans Day in the Oval Office by making a special effort to grant commutations or pardons to a special list of veterans. But Prez-Elect Trump, who made taking care of the vets a consistent campaign theme, perhaps might be encouraged by sentencing reform advocates to plan to celebrate his future Veterans Days in the Oval Office by looking to use his clemency powers in this kind of special and distinctive way. After all, a key slogan for this day is to "honor ALL who served," not just those who stayed out of trouble after serving.
Some very old prior related posts:
- Thinking about sentenced troops on Veterans Day
- How many vets, after serving to secure liberty, are now serving LWOP sentences?
- My amicus effort to support our troops
- Should prior military service reduce a sentence?
- How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?
- Are special jail facilities for veterans (and other special populations) key to reducing recidivism?
November 11, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Early thoughts on a day to be full of thoughts about the future of the death penalty
As noted in this prior post, I am so very fortunate and pleased and excited that today I will have a chance to participate in this amazing symposium being put on by Northwestern Law's Journal of Criminal Law and Criminology. The title given to the event is "The Death Penalty's Numbered Days?", and this symposium page provides the schedule of panels and speakers.
Needless to say, all the election result earlier this week surely has impacted what a lot of folks plan to say at this event, and here are three notable new article highlights aspects of the new capital punishment world order:
From BuzzFeed News here, "How Donald Trump Could Revitalize The Death Penalty: Trump could have a serious impact on the death penalty if he wanted to. Here’s how."
From SFGate here, "Suit filed to block death-penalty measure Prop. 66"
From the AP here, "With Death Penalty Back, Nebraska Looks Ahead to Executions"
In a (too tiny) nutshell, I generally do not expect too much to change jurisprudentially or practically about the death penalty in the next few years unless and until (1) states can find a steady supply of lethal injection drugs (or devise effective alternative methods of execution), and/or (2) Prez-Elect Trump and his appointees start trying to make a potent case to all Americans that much greater use of the death penalty is an essential and important ways to legally respond to the uptick in murders nationwide in the last few years.
Thursday, November 10, 2016
Reading closely the main criminal justice elements of "Donald Trump’s Contract with the American Voter"
I just had a chance for the first time to review closely this two-page document entitled "Donald Trump's Contract with the American Voter." I did not read this document whenever it was released during the campaign, but now I see these notable promises in the criminal justice arena from page two of this document (with my emphasis added):
I will work with Congress to introduce the following broader legislative measures and fight for their passage within the first 100 days of my Administration:...
End Illegal Immigration Act
Fully-funds the construction of a wall on our southern border with the full understanding that the country of Mexico will be reimbursing the United States for the full cost of such wall; establishes a two-year mandatory minimum federal prison sentence for illegally re-entering the U.S. after a previous deportation, and a five-year mandatory minimum federal prison sentence for illegally re-entering for those with felony convictions, multiple misdemeanor convictions or two or more prior deportations; also reforms visa rules to enhance penalties for overstaying and to ensure open jobs are offered to American workers first.
Restoring Community Safety Act
Reduces surging crime, drugs and violence by creating a task force on violent crime and increasing funding for programs that train and assist local police; increases resources for federal law enforcement agencies and federal prosecutors to dismantle criminal gangs and put violent offenders behind bars.
Because I generally think that mandatory minimum sentencing provisions often do more harm than good, I am troubled to see emphasis on such provisions in the first passage I have quoted. At the same time because I generally think out federal criminal justice system should be much more focused on violent crime and much less focused on nonviolent crime, I am actually a bit encouraged to see an particular emphasis on violent crime in the articulation of priorities in the second passage.