Sunday, February 18, 2018

"Donald Trump and the Undoing of Justice Reform"

The title of this post is the headline of this lengthy New York Times editorial.  Here are excerpts:

In the decade or so before Donald Trump became president, America’s approach to criminal justice was changing fast — reckoning with decades of destructive and ineffective policies that had ballooned the prison population and destroyed countless lives.  Red and blue states were putting in place smart, sensible reforms like reducing harsh sentencing laws, slashing prison populations and crime rates, and providing more resources for the thousands of people who are released every week.

President Obama’s record on the issue was far from perfect, but he and his first attorney general, Eric Holder Jr., took several key steps: weakening racially discriminatory sentencing laws, shortening thousands of absurdly long drug sentences, and pulling back on the prosecution of low-level drug offenders and of federal marijuana offenses in states that have legalized it.  This approach reflected state-level efforts and sent a message of encouragement to those still leery of reform.

Within minutes of taking office, Mr. Trump turned back the dial, warning darkly in his Inaugural Address of “American carnage,” of cities and towns gutted by crime — even though crime rates are at their lowest in decades. Things only got worse with the confirmation of Attorney General Jeff Sessions, who, along with Mr. Trump, appears to be stuck in the 1980s, when politicians exploited the public’s fear of rising crime to sell absurdly harsh laws and win themselves re-election.  Perhaps that’s why both men seem happy to distort, if not outright lie about, crime statistics that no longer support their narrative....

Under Mr. Trump, the Justice Department has pulled back from his predecessor’s investigations of police abuse and misconduct; resumed the use of private, for-profit prisons; and stopped granting commutations to low-level drug offenders who have spent years or decades behind bars.

Meanwhile, Mr. Sessions, who as a senator was one of the most reliable roadblocks to long-overdue federal sentencing reform, is still throwing wrenches into the works as Congress inches toward a bipartisan deal.  Mr. Sessions called the Sentencing Reform and Corrections Act, a sweeping bill that would reduce some mandatory-minimum sentences, and that cleared the Senate Judiciary Committee on Thursday, a “grave error.”  That earned him a rebuke from the committee’s chairman, Senator Charles Grassley, who pointed out that the attorney general is tasked with enforcing the laws, not writing them.  “If General Sessions wanted to be involved in marking up this legislation, maybe he should have quit his job and run for the Republican Senate seat in Alabama,” Mr. Grassley said.

Mr. Grassley is no one’s idea of a justice reformer, but he supports the bill because, he said, it “strikes the right balance of improving public safety and ensuring fairness in the criminal justice system.”

So what has this administration done right?  The list is short and uninspiring.  In October, Mr. Trump declared the epidemic of opioid abuse a national emergency, which could be a good step toward addressing it — but he’s since done almost nothing to combat a crisis that killed more than 64,000 Americans in 2016.

In his State of the Union address last month, Mr. Trump promised to “embark on reforming our prisons to help former inmates who have served their time get a second chance.”  It’s great if he really means that, but it’s hard to square his assurance with his own attorney general’s opposition to a bill that includes recidivism-reduction programs intended to achieve precisely this goal....

The rhetoric from the White House and the Justice Department has emboldened some state and local officials to talk tougher, even if just as ignorantly, about crime.  The good news is that it’s not working as well anymore. In Virginia’s race for governor last fall, the Republican candidate, Ed Gillespie, attacked his opponent, Ralph Northam, with ads blaming him for violence by the MS-13 gang.

It was a despicable stunt, its fearmongering recalling the racist but effective Willie Horton ad that George H. W. Bush ran on in his successful 1988 presidential campaign.  Thankfully, Virginia’s voters overwhelmingly rejected Mr. Gillespie, another sign that criminal justice reform is an issue with strong support across the political spectrum.  In the era of Donald Trump, candidates of both parties should be proud to run as reformers — but particularly Democrats, who can cast the issue not only as a central component of a broader progressive agenda, but as yet another example of just how out of touch with the country Mr. Trump and his administration are.

February 18, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)

Notable White House personnel development that should help the cause of criminal justice reform

This recent press article about a new person joining the White House staff should hearten those hoping to see some form of federal criminal justice reform become a reality.  Here are the details:

Brooke Rollins is headed to Washington to join a new White House office run by President Donald Trump’s son-in-law, Jared Kushner.  Rollins, 45, is a former aide to Texas Gov. Rick Perry and a member of Trump’s economic advisory committee.  Since 2002, she’s run the influential think tank Texas Public Policy Foundation, which lobbies on a host of conservative issues in Austin.

Rollins has been working closely with the office she’ll join, Trump’s Office of American Innovation.  The office’s mission is to apply ideas from corporate America to solve the nation’s problems.  Kushner said in a statement he’s “grateful” to have Rollins join his team, where she’ll “continue executing on our key initiatives.”

Rollins already works closely with Kushner and his office on criminal justice reform, an issue she added to TPPF’s policy priorities and championed for more than a decade in Texas. Rollins recently paired with the Koch network on a $4 million, multi-state criminal justice reform project.

Trump campaigned promising to take a tough-on-crime approach. Rollins said the White House has been receptive to TPPF’s ideas on the issue, and the think tank recently added staff in D.C. to work specifically on criminal justice.  “They’re business oriented people and they want results fast,” Rollins said of the Office of American Innovation last year. “They see an organization like ours… and we’ve been able to implement that in Texas, and they want to understand how to do that here.”

Here are snippets of an op-ed piece that Rollins co-authored that was published just last week:

Far too many inmates are incarcerated when they could instead be rehabilitated. Of the 1.3 million people held in state prisons at the end of 2015, 197,200 had as their most serious offense a drug charge; 44,700 of those were for simple possession....

The emphasis on punishment rather than rehabilitation has a high dollar cost — $80 billion a year for incarceration, and an even higher cost in the diminution of the human spirit.

The system traps individuals in a soul-crushing cycle of poverty and prison, while doing next to nothing to make our streets safer or change the behavior of those who are going to be living among us when their time is served.

Proposals to address these challenges are not pie-in-sky do-gooderism; they are a clear-eyed assessment based on evidence and experience. We must ensure that individuals coming out of prison are better people than when they entered. Preparations for re-entry and reintegration into communities must begin on the first day of incarceration, not 90 days before they are released, as often happens now....

[S]tates have seen the results and are instituting programs focusing on education and training that are showing success in rehabilitating individuals and reducing recidivism. Everyone deserves a second chance.

Rollins will not be able to ensure federal criminal justice reforms become a reality ASAP, but her very hire suggests to me continuing commitment from at least some persons to have effective advocates for reform working within the White House.

February 18, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (3)

Monday, February 12, 2018

"Yes, Trump is embracing criminal justice reform"

The title of this post is the headline of this new opinion piece that struck me as notable for any number of reasons: the piece appears in the right-leaning Washington Examiner and is authored by well-known conservatives Ken Blackwell and Ken Cuccinelli.  The piece also ends with a call for Congress to catch up to states in the criminal justice reform arena.  Here are excerpts:

Throughout the last election cycle, there came fevered predictions from many commentators on the Left that, given candidate Donald Trump’s frank messaging about returning to "law and order" and confronting violent crime in American cities, criminal justice reform efforts were officially dead in the water.  Criminal justice reform appears “bleak in the age of Trump,” stated one article. “How Criminal Justice Reform Died,” intoned another.

Such fatalism was both misplaced and inaccurate. Misplaced, because the lion’s share of successful criminal justice reforms over the last ten years have advanced at the state and local levels, not in D.C.— mainly by southern red states. With oversight over roughly 90 percent of the country’s incarcerated population, the states will always be the primary mover of criminal justice policies, not the federal government.

But such predictions have now been proven inaccurate as well, given recent remarks made by now-President Trump about the need for federal prison reform....

Society is justified in expecting individuals to take ownership not just for their actions, but also for their reformation. This is hampered, however, when the weight of accumulated barriers to re-entry becomes a millstone. Research has been clear that getting a job upon release is among the most critical steps to reducing a person’s likelihood for recidivism. When President Trump and others say society has a “great interest” in helping ex-offenders get on the path of self-sufficiency, he’s speaking a well-established truism.

Fortunately, conservative states have long since begun helping ex-offenders land on their feet upon release. Chief among them: Texas, long known as a “tough on crime” stalwart. In 2007, state lawmakers passed a $241 million “justice reinvestment” package to increase capacity for substance abuse and mental health treatment and expand probation and parole services, as well as community-based diversion programs. This avoided the immediate need for $2.1 billion in spending just to meet their expected needs for new prison capacity.

More recently, Texas has passed indemnity laws to insulate employers and landlords from liability when they extend a job or lease to ex-offenders.  This makes it less likely that a criminal record will be an insuperable barrier to work or finding a place to live. Communities in Texas have been getting safer at the same time.  Crime rates have fallen by 31 percent, while incarceration rates have fallen by more than 20 percent. Eight prisons have been shuttered even as Texas’ population has soared, saving millions in annual operating costs.

In 2012, Georgia began investing in efforts aimed at reducing recidivism, including an expansion of in-prison educational resources.  They’ve since reduced their prison population and nearly eliminated its backlog of inmates awaiting transfer, all the while reducing crime by 8 percent and saving $25 million.  A large reform package passed in Louisiana last year has similar aims of steering less serious offenders away from incarceration and into more effective community-based programs. South Carolina, Utah, Alaska, Kentucky, and others have passed comprehensive reforms, as well.

As we mentioned above, the states are the natural gatekeepers for criminal justice reform.  But Congress has shortcomings within its own prison system to address, and is quickly running out of excuses for doing so.  President Trump, whom so many on the Left falsely assumed would spell the end of reform, has instead sounded a clarion call to advance it. He was right for doing so, as many conservative states have proved, and it's time Congress took up that challenge as well.

February 12, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Sunday, February 11, 2018

Sentencing Reform and Corrections Act of 2017 now has 20 sponsors in the Senate but...

1518381838864this Roll Call article suggests Senators cannot figure out how to break a "logjam" that is created by the Attorney General and Prez Trump. The Roll Call article is headlined "Senators Ponder How to Break Criminal Justice Logjam: With Trump not on board with bipartisan bill, 'we’re stuck,' Grassley says," and here are excerpts:

Senate Judiciary Committee members grappled Thursday with the best strategy to overhaul the nation’s criminal justice system, since the leading bill has broad bipartisan support but the White House apparently backs only one part of it.

Chairman Charles E. Grassley of Iowa set a markup next week for a bill that represents a hard-negotiated compromise — first struck in 2015 — that backers say would pass the Senate with a bipartisan supermajority if brought to the floor. It is expected to easily advance from the committee and could be a signature legislative accomplishment for the Senate.

A broad and politically varied coalition of lawmakers and advocacy groups off Capitol Hill generally back the overhaul, which has two main components. One section aims to reduce sentences for nonviolent drug offenders, and the other aims to ease re-entry for prisoners.

But Majority Leader Mitch McConnell didn’t bring a version of the legislation to the floor in the last Congress because of opposition to the sentencing section from law enforcement groups and some Republican senators, Majority Whip John Cornyn of Texas told the committee Thursday. And now, President Donald Trump has voiced support only for the prison changes.

Cornyn, the Senate’s No. 2 Republican leader, said, “I honestly don’t see a path forward” this year for the broader bipartisan bill. “I’m worried that if we just revisit the Sentencing Reform and Corrections Act, which failed during the Obama administration, given this change in the new administration and its views on the sentencing reform component of it, we’re going to have nothing to show for our efforts,” said Cornyn, using the bill’s formal title. “I know we all tried to work together on this and it just didn’t work out.”

Instead, Cornyn said the committee’s best opportunity to move a criminal justice bill would be his legislation, proposed along with Republican Sen. Mike Lee of Utah and Democratic Sen. Sheldon Whitehouse of Rhode Island, which contains only provisions aimed at easing re-entry for prisoners — “and then building on that as we can” with an amendment process on the floor. That process could include amendments on sentencing, based on a bill introduced in previous sessions by Lee and Democratic Whip Richard J. Durbin of Illinois.

Grassley responded that the compromise bill would be the best way to get the sentencing and prison provisions into law. The measure currently has 19 co-sponsors, and he said the backers are seeking more. “It’s a matter of process and around here — nothing gets done unless it’s bipartisan,” Grassley said. “And I don’t often agree with Sen. Durbin, but we put together a bill that we worked really hard and we think it’s the only way of advancing both bills.”

Whitehouse said he would support both ways of moving forward since the sentencing bill was proposed five years ago, but that Cornyn’s strategy “actually might provide a more realistic way of getting this matter resolved.” The Senate, however, could end up in the same place if the prison bill gets to the floor and then a supermajority of senators add the sentencing portion back in with an amendment, Whitehouse said. “Waiting here for there to be the ultimate global concord to sort this out has yielded five years of nothing and I’m ready to go forward,” Whitehouse said.

Grassley countered, however, that there could still be senators who would block the prison bill from the floor if they knew there were more than 60 senators supporting a sentencing amendment. “That’s what we face,” Grassley said. “There’s some people around here [who] are just a little bit afraid of what you call an Assistant U.S. Attorneys Association and they’re stopping everything from being done that is so successful in the other states. When people are willing to stand up to those leaders of the Senate, we’ll get something done in both areas.”

Interestingly, this new Axios article has an entry, headed "Grassley twists Trump’s arm for criminal justice reform," reporting on an interview that suggests Senator Grassley might seek to use his political capital with the President to try to get the SRCA into law:

Grassley didn't deny the White House’s cool reception of his bill, but he plans to use his substantial political clout to press Trump to change his mind.

As I've reported, Trump bends over backwards to keep Grassley happy. He knows that as Judiciary Chairman, Grassley played a crucial role in delivering two of Trump's biggest successes so far: the confirmation of Supreme Court Justice Neil Gorsuch and a modern record for circuit court judges in a president's first year.

"I've carried a lot of water for the White House," Grassley told me. "They ought to give some consideration for the close working relationship we’ve had on issues we agree on." "I think people at the White House have not wanted to go against Gen. Sessions," he added, before closing with a sentence crafted perfectly to appeal to Trump's ego. "This is an opportunity for a bipartisan victory by the President of the United States."

I think the best way to convince Trump to support this bill is to move it for votes ASAP in the full Senate and House.  I suspect that if 70+ Senators and 300+ members of the House vote for these reforms, which seems quite possible, the Prez will be inclined to sign it.  For that reason, perhaps we should start a hash tag campaign: #voteonSRCA2017.

A few prior related posts:

February 11, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Thursday, February 08, 2018

Brennan Center releases report on "Criminal Justice One Year Into the Trump Administration"

As detailed in this press release, the Brennan Center for Justice at NYU School of Law has produced this new report about federal criminal justice developments in the first year of the Trump era. Here is an overview via the press release:

Criminal Justice One Year Into the Trump Administration examines how the executive branch has used memoranda or more subtle changes in enforcement strategy to reverse Obama-era reforms and implement a more draconian law enforcement strategy.  Their efforts threaten to increase the federal prison population and disrupt state and local movements for reform that have broad, bipartisan backing.

“From day one at the Inauguration podium, Trump immediately shifted how federal officials talk about criminal justice issues,” said Inimai Chettiar, the director of the Brennan Center’s Justice Program. “He has sounded false alarms about rising crime nationwide and wrongly linked immigration to both this phantom increase and the opioid crisis. He preys on people’s fears to try to justify these ineffective and overreaching policies from his administration.”

Researchers note that:

  • The administration’s changes to policy have so far focused on increasing aggressive prosecutorial practices, changing federal drug enforcement policy, decreasing oversight of problematic police practices, and resurrecting rhetoric around fear of crime.

  • In fiscal year 2017, arrests by Immigration and Customs Enforcement officials rose by more than 30 percent. Arrests of individuals with no criminal conviction increased 146 percent from fiscal year 2016. ICE increased its use of detainers, or requests that local law enforcement hold someone in custody and hand them over to federal law enforcement authorities, by 65 percent. And, the number of detainers that local law enforcement declined to honor also rose.

  • Opioid deaths are expected to rise in 2017 and surpass the record of nearly 50,000 deaths in 2016.

  • The White House is poised to support federal legislation that improves formerly incarcerated individuals’ reentry into society, but has not made a commitment to back federal sentencing reform efforts with bipartisan support.

“In some areas the effects of Trump’s changes to policy are not yet clear,” said Ames Grawert, counsel in the Brennan Center’s Justice Program.  “But that is not the case when it comes to immigration. Under his tenure, more people are entering ICE’s system and fewer are leaving it.  The Department of Homeland Security expects the daily population in immigration detention centers will increase by 25 percent.  That will not only have significant impact on the lives of the individuals put behind bars, but on the nation’s criminal justice system as a whole.”

February 8, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

Reviewing how crime and punishment (but not AG Sessions' approaches) have changed in recent decades

Over at FiveThirtyEight, Amelia Thomson-DeVeaux has this extended piece that is a kind of retrospective on the evolution of crime and punishment in the US over the last 30 years, with a particular focus on the perspectives of AG Sessions. The piece is headlined "Jeff Sessions Is Trying To Take Criminal Justice Back To The 1990s," and here is how it gets started:

Thursday is the first anniversary of Jeff Sessions’s confirmation as attorney general. Over the past year, he has announced that he would seek to increase the use of the federal death penalty; reversed a series of Obama-era memos that instructed federal prosecutors not to go after the marijuana industry in the states that have legalized it; and directed prosecutors to slap drug suspects with the most serious charge they can prove.

None of these policies would have seemed out of place 30 years ago. And, in fact, it’s clear that Sessions has set his sights on returning the country’s criminal justice system to the days of harsh penalties for crime and hardline drug laws. The problem: A lot has changed over the last three decades — in particular, crime and our understanding of how to fight it.

Thirty years ago, there were open-air drug markets in big cities from New York to Los Angeles, residents of those cities were robbed or even killed on public transportation, and the murder rate was near its all-time high. At the crest of the crime wave, harsher penalties for criminals like mandatory minimum sentences and expanded use of the death penalty seemed like a reasonable response to a devastating national crisis, and most Americans supported them.

But today, the crime rate is much lower than in the 1990s, and Sessions’s policies are out of step with most public opinion. Moreover, many criminologists view his strategy as a throwback that’s unlikely to significantly curb violence or drug crime.

That’s because since these policies were implemented, decades of social science research has led experts like David Kennedy, a professor of criminal justice at the John Jay College of Criminal Justice in New York City, to conclude that they don’t work well enough to justify their cost. “The evidence shows that they’re expensive, there’s enormous human damage, and they’re not actually effective in deterring crime,” he said.

Sessions has long established himself as a hard-liner on criminal justice issues: As Alabama’s attorney general, he proposed a crime bill that would have made the death penalty mandatory for a second conviction for drug trafficking. As the U.S. attorney general, he’s billed his new policies as a rejection of the “soft” strategies on crime that characterized the Obama administration, arguing that capital punishment and long sentences deter criminals and that pot is a “gateway drug” for harder substances and addiction.

There’s no question that crime did start to drop precipitously during the era of harsher penalties. And in 2010, the homicide rate hit a four-decade low, according to the Bureau of Justice Statistics. Though most experts agree that the harsher strategies alone can’t explain the decline, there’s still no consensus about why the crime rate started to drop three decades ago. Scholars do note that it was already falling before many tough-on-crime measures were widely introduced, and they have offered theories from improved policing to the roaring economic growth of the 1990s to explain the change.

Richard Rosenfeld, a criminologist at the University of Missouri-St. Louis, said Sessions deserves some credit for calling attention to the recent uptick in the murder rate, which rose for the second consecutive year in 2016 after a 25-year decline. But Rosenfeld, who studies the causes behind crime rate shifts, and other mainstream criminal justice experts reject the notion that the Obama-era criminal justice reforms, like the decision not to pursue mandatory minimum sentences for low-level drug offenders, caused an increase in violent crime. Instead, Rosenfeld blames the increased violence in part on the drug market, with more demand for heroin because of the opioid epidemic. Rosenfeld also said that tensions between African-American communities and the police could be a factor.

And there’s even debate about whether the violent crime rate — as opposed to just the murder rate — is actually increasing. With a criminal justice outlook that seems more suited to the 1990s than today, Sessions finds himself implementing policies on sentencing, capital punishment and drug enforcement — particularly marijuana — that are out of sync with much of the country.

February 8, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)

Wednesday, February 07, 2018

AG Sessions gives full accounting of his full law-and-order approach to his work as Attorney General

Jeff-sessions-attorney-general-630x354Last night, Attorney General Jeff Sessions delivered this extended speech at the Reagan Alumni Association's Celebration of President Reagan's Birthday.  I recommend the full text as a window into how the current AG thinks about and approaches various law enforcement issues, and here are some highlights that ought to interest sentencing fans:

[President Reagan] was elected to stop the dramatic rise in crime that arose after the Great Society.  The violent crime rate tripled from 1964 to 1980.  Robbery tripled. Rape tripled. Aggravated assault nearly tripled. Murder doubled.  The people were not happy.  Personal safety was a huge issue.  The last liberal, as was said, was mugged.

By 1980, judicial activism looked triumphant.  It was praised as a virtue and not a vice.  Originalism seemed to have gone the way of the Dodo.

Ronald Reagan was elected to fix this situation.  He was the law & order candidate — that’s for sure.  It was not Jimmy Carter.  Nixon had run on law and order successfully.

President Reagan promised change and he delivered.  His achievements with regard to legal reform are nothing short of remarkable.  They have not been fully appreciated....

President Reagan was a strong leader and a good boss.  There was never any doubt about what he expected from us.  And I drew a lesson from that: a strong leader is one who makes his expectations simple and clear.  When I became a United States Attorney, I told my staff, “I know why Ronald Reagan put me here: to put crooks in jail and to protect the treasury.”

We took on violent crime, drug dealers, the Miami cocaine cowboys, the mafia, government corruption, waste fraud, and abuse in government programs.

President Reagan signed into law a number of legal reforms that empowered the law enforcement effort.  There was the elimination of parole, the issuing of sentencing guidelines and mandatory minimum sentences in certain cases, the elimination of bail on appeal, and increased bail for dangerous criminals before trial.  We increased the DEA, FBI, ATF, and federal prosecutors.  Many states followed Reagan’s leadership.

I was a prosecutor before these laws went into effect and I was a prosecutor after these laws went into effect.  I can tell you firsthand that they were transformational. These were the biggest changes in law enforcement since the founding of this country.  These laws were critical to re-establishing law and order.

When a criminal knows with certainty that he is facing hard time, he is a lot more willing to cooperate.  When the sentence is uncertain and up to the whims of the judge, criminals are a lot more willing to take a chance.  The certainty of a significant sentence does, in fact, have a deterrent effect.  And the recidivist can’t commit his crimes if he is in the slammer.

We got tough about drug abuse because — as surely as night follows day — violence, addiction and death follow drug activity.  And those who were put in jail in the mid-to-late 1980s could not commit crimes in the 1990s, which is when the steep decline in crime became most apparent.

I mentioned how dire the situation was in 1980.  That was before Reagan. After the changes that we made were put in place, from 1991 to 2014, the violent crime rate was cut in half. So were the murder rate and the robbery rate.  Aggravated assault was cut by 47 percent, and rape was cut by more than one third.  These are remarkable achievements that made this country a better place.  So when I look up at my portrait of Ed Meese on the wall of my conference room, that’s what I think about.  And that example inspires the work that we do every day.

Under President Trump, we are determined to advance President Reagan’s work of restoring the rule of law.  President Trump sent us an order to support our men and women in blue and to “reduce” crime in America.  We embrace that goal and intend to achieve it.  Of course, the anti-crime effort often goes unnoticed no matter how important....

We are hammering violent groups — especially the vicious MS-13.

We are not going to pretend that there is not a law against marijuana, or that it’s not bad for you....

We don’t think illegal drug use is “recreation”.  Lax enforcement, permissive rhetoric, and the media have undermined the essential need to say no to drug use — don’t start.  And we are identifying pill mill doctors and sending large members to the slammer.

We have taken many other steps to restore the rule of law at the Department.  But I’ll be the first to acknowledge that we still have work to do.  There have been some very sharp criticisms about the Department.  I hear these criticisms and welcome the discussion.  Sunlight truly is the best disinfectant.  We will not ignore these problems or hide our heads in the sand.

Much of what we are doing is behind the scenes — matters I can’t discuss publicly.  I’m sure that you can understand why.  We will also make sure that all our employees are treated fairly.

February 7, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Tuesday, February 06, 2018

Prez Trump trumpets again his interest in getting "really, really tough, really mean with the drug pushers and the drug dealers"

As noted in this prior post, Prez Trump last week in his State of the Union address spoke about "reforming our prisons" and the need to "get much tougher on drug dealers."  The first comment, coming on the heels of other prison reform talk, has garnered the most attention among criminal justice reform advocates.  But the second comment ought also get some attention, especially because Ronald Bailey has highlighted at Reason that Prez Trump doubled-down on these comments this week.

This Reason commentary, headlined "Trump Wants Us 'To Get Really, Really Tough, Really Mean with the Drug Pushers': Doubling down on a drug war that has failed for 40 years," take a critical look at what the President is saying. Here is how is starts (with links from the original):

What's the best way to address the national problem of opioid abuse and overdose deaths? "My take," President Donald Trump declared in Ohio yesterday, "is you have to get really, really tough, really mean with the drug pushers and the drug dealers. We can do all the blue ribbon committees we want—[applause]—we have to get a lot tougher than we are."

The president's dismissal of blue ribbon commissions is somewhat perplexing, since he ordered that one be created just last March—the President's Commission on Combating Drug Addiction and the Opioid Crisis. In any case, the president is evidently eager to rev up the war on drugs.

What might the president mean by getting really tough on drug pushers? One clue might be his phone call to Philippines President Rodrigo Duterte last April. "I just wanted to congratulate you because I am hearing of the unbelievable job on the drug problem," Trump said. "Many countries have the problem, we have a problem, but what a great job you are doing and I just wanted to call and tell you that."

As big a blustering blowhard as our president is, I trust that he is not actually contemplating Duterte-style extrajudicial killings when he says "we have to get a lot tougher than we are." Nevertheless, it is clear that the president has learned nothing from the failures of the war on drugs. Over the past four decades, the government has spent more than trillion dollars, locked up millions of Americans, and undermined our civil liberties, especially our Fourth Amendment protections against search and seizure, to stop the drug trade. Despite all the resources wasted and lives lost, the prices of illicit drugs have generally declined.

Prohibitionists claim that the drug war has reduced drug-related crime, decreased drug-related disease and overdose, and disrupted and dismantled organized criminal enterprises. But in a paper last year for the Cato Institute, George Mason University economists Christopher Coyne and Abigail Hall show that "prohibition is not only ineffective, but counterproductive, at achieving the goals of policymakers both domestically and abroad. Given the insights from economics and the available data, we find that the domestic War on Drugs has contributed to an increase in drug overdoses and fostered and sustained the creation of powerful drug cartels."

February 6, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, February 05, 2018

Reviewing the potential import and impact of Prez Trump's talk of prison reform

Matt Ford at The New Republic has this new piece with this full headline" "A Chance for Criminal Justice Reform Under Trump: Despite his fear-mongering over crime, the president recently promised to help ex-prisoners 'get a second chance at life'."  Can he deliver?"  Here are excerpts from the second half of the piece (with a particular paragraph stressed for additional comment):

Some Republican leaders in deep-red states have taken aggressive steps in recent years to reshape how their own states approach crime and punishment. Georgia has overhauled its criminal code and juvenile-justice system, leading to noticeable declines in its prison population. Texas rewrote its probation and parole guidelines and expanded treatment options for mental health and drug addiction. Kentucky expanded its pretrial services programs as part of a broader push towards bail reform.

At the same time, conservative policy organizations have taken up the cause. The Koch brothers and their network of nonprofit advocacy groups are reform’s most prominent backers on the right, drawing some skepticism from the left. The result is an unusually broad alliance in modern American politics that brings together the Heritage Foundation and the American Conservative Union alongside the ACLU and the left-leaning Center for American Progress.

Credit for this trend’s arrival at the White House apparently goes to Jared Kushner, the president’s son-in-law and and a close adviser. In recent months, Kushner has met with key Democratic and Republican lawmakers in Congress, reform-oriented governors, and advocacy groups. The issue may also carry some personal resonance for Kushner: His father, Charles Kushner, received a two-year prison sentence for tax evasion and other crimes in 2005.

So far, the administration is keeping mum on its exact vision for reform. When asked for more details about the president’s plan, the White House provided a factsheet that described the depth of the problem as well as Trump’s meetings with Republican state officials who’ve tackled the issue in their own backyard. The document contained no specific policy proposals, but those meetings could still provide a window into what sort of policy proposals the Trump administration might favor from Congress. “Kansas improved its juvenile justice system to help make sure young offenders do not become repeat offenders,” Trump noted at a criminal justice summit he hosted at the White House in January. “Kentucky is providing job training to inmates and helping them to obtain professional licenses upon release, and it’s been very successful.”

Proposals like those overlap with policies favored by Democrats, to an extent.  Liberals typically focus on preventing or limiting how Americans enter prison in the first place, through sentencing reform, diversion programs, or decriminalization for nonviolent drug offenses.  Conservative policymakers, on the other hand, tend to gravitate toward measures that help prisoners successfully reenter society like prison education and work-release programs.

But Trump’s rhetoric of late gives hope for bipartisan efforts in Congress to push through a criminal-justice reform bill this year.  While Trump prides himself as a master dealmaker, he’s been content to let Republican lawmakers and his top advisers sketch the details of major legislation on health care, tax reform, and immigration. As long as he’s not actively hostile to whatever lawmakers send him, reformers could find Trump more amenable to the final package if they can convince him it’s a win.

More important, Trump’s lip service to prison reform could be a political boost for reformers in deep-red states.  Any serious effort to reverse mass incarceration will take place in the state criminal-justice systems, where roughly 90 percent of American prisoners are housed.  By endorsing some type of reform, the president could bolster local efforts against challenges from the right.

Trump’s electoral victory, driven by his fear-mongering over crime, raised fears among many reformers that the moment for taking substantive, bipartisan steps against mass incarceration has passed.  Instead, he’s proving that the shift could be more durable than expected.

The paragraph that I have emphasized here strikes me as an especially important aspect of Prez Trump's recent reform talk even if major or significant federal statutory reform fails to emerge from Congress anytime soon.  Just as the "Right on Crime" movement has helped enable state-level politicians feel comfortable supporting criminal justice reform consistent with conservative principles, the avowed commitment by Prez Trump to prison reform allows state-level politicians to feel they can support prison reform consistent with supporting the President.  Indeed, effective criminal justice advocates in red states now may be able to call out any opponents of prison and reentry reform for seeking to undermine or resist what President Trump says is important for Making America Great Again.

February 5, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Sunday, February 04, 2018

Yet another notable pitch for "why Conservatives should support criminal justice reform"

Long time readers know I have been talking a long time about a "new right" on a range of sentencing and corrections issues (though recalling this post on the topic back in January 2005 lead me to realize that the new right is not so new circa 2018). And lately it is hard now to pull up Fox News and not see some discussion of some criminal justice reform issue. Today's example is in this form of this new Fox News commentary authored by Texas Representative Jerry Madden titled "Here's why Conservatives should support criminal justice reform." U recommend the full piece, and here are excerpts:

Criminal justice reform may wind up being the most significant conservative policy change in Washington this year. That may sound surprising to some, but not to anyone who has been watching this movement in conservative states over the last decade.

Starting in Texas, conservatives of all stripes – fiscal, social, constitutional, or otherwise – have found favor with reforms to the criminal justice system that focus on increasing public safety and cutting costs to taxpayers. This is, seemingly, a very commonsense goal. But take a look at how most states and the federal government operate and you will find that well-functioning, well-focused systems are far from the norm.

The results are undeniable: Texas has lowered its overall crime rate 31 percent, putting it at levels that have not been seen since 1967. In that time, the Lone Star State has closed eight prisons and lowered the incarceration rate. This flies in the face of the old, mistaken ways of viewing criminal justice policy that considers incarceration the default rather than one tool of many to protect public safety.

At the heart of the Texas reforms is the idea that the nearly all of those incarcerated will eventually return to society after serving their sentence and therefore they must be rehabilitated to ensure that they do not return to a life of crime. Prisons cannot be mere people warehouses. For the offenders who commit to it, there is a real opportunity for redemption and second chances.

To no conservative’s surprise, the federal government lags behind in this area. The budget for the Bureau of Prisons is growing out-of-control. The BOP’s budget is now over 25 percent of the total budget for the Justice Department – a massive line item for an already over-indebted government. The outdated policies passed by Congress in the 1980s and 1990s are in desperate need of updating to match what states have shown to be successful.

There are two bills currently before Congress that will push for conservative changes. Rep. Doug Collins of Georgia and Sen. John Cornyn of Texas, both Republicans, are the lead sponsors on two prison reform bills that focus on preparing prisoners for re-entry. These bills don’t reduce the sentences for crimes, but rather encourage inmates to participate in recidivism-reducing programming by offering incentives that include more phone calls and visits with family, and earned time to spend the end of their sentence in a halfway house, home confinement, or community supervision....

There is further encouragement coming from, of all places, 1600 Pennsylvania Avenue. President Trump has stated the case well: there is a path to remain “very tough on crime, but we will provide a ladder of opportunity to the future.” In his listening session at the White House recently, the president further explained: “My administration is committed to helping former inmates become productive, law-abiding members of society.” President Trump has made it clear that this is an issue that conservatives across the country can rally behind.

With the state examples as proof, and with a push from conservatives in the White House and Congress, criminal justice reform is a clear winner for the right. It is time for Congress to move on conservative reform as soon as possible.

February 4, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

Thursday, February 01, 2018

Prez Trump speaks again about prison reform at the 2018 House and Senate Republican Member Conference  

As noted here a few days ago, President Donald Trump in his very first State of the Union address said that prior reform was on his agenda for the coming year.   Lest anyone think he was not serious about this issue, today in remarks at the 2018 House and Senate Republican Member Conference he spoke again about the topic.  From this official transcript, here is what Prez Trump had to say today:

We can reform our prison system to help those who have served their time get a second chance at life.  And I’ve watched this, and I’ve seen it, and I’ve studied it.  And people get out of prison, and they made a mistake.  And not all — some are very bad, but many are very good.  And they come home and they can’t get a job.  It’s sad.  They can’t — there’s — they can’t get a job.

Now, the best thing we’ve done to fix that, Paul, is the fact that the economy is just booming.  I mean, that fixes it better than any program we can do, anything we can do at all.  But the economy is so strong now and so good, and so many companies are moving in that I really believe that problem — it’s a big problem — is going to solve itself.  But we’re working on it.

I find notable (and a bit amusing) Prez Trump's assertion about prison reform that he has "studied it" (and I am not quite sure what "it" he is referencing).  Moreover, because I hope to see significant reforms coming out of Congress, I am bit concerned that Prez Trump is here also suggesting that the prisoner reentry problem "is going to solve itself."

Still, with Prez Trump's two statements this week about prison reform, following a White House meeting on this issue a few weeks ago, it now seems he is genuinely interested in this topic. That reality bodes well for the prospect of some measure of federal reform making it through Congress and to his desk.  But what developing reform might specifically look like, and just how it gets implemented, are the critical follow-up realities.  And, of course, nothing should be considered a done deal in DC until it is truly a done deal.

A few prior recent related posts:

February 1, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Tuesday, January 30, 2018

Prez Trump, in his first State of the Union address, mentions "reforming our prisons" and need to "get much tougher on drug dealers"

As had been predicted (see this prior post), President Donald Trump in his very first State of the Union address said that prior reform was on his agenda for the coming year.  But later in this speech, he suggested that he supported an even tougher criminal justice response to our nation's drug problem.  These were both very small parts of a very long speech, and here is the context with key sentences highlighted from this official text

As America regains its strength, this opportunity must be extended to all citizens.  That is why this year we will embark on reforming our prisons to help former inmates who have served their time get a second chance....

In 2016, we lost 64,000 Americans to drug overdoses: 174 deaths per day. Seven per hour.  We must get much tougher on drug dealers and pushers if we are going to succeed in stopping this scourge.  My Administration is committed to fighting the drug epidemic and helping get treatment for those in need. The struggle will be long and difficult — but, as Americans always do, we will prevail.

With these sentences and sentiments, I believe Prez Trump has defined the terms of what is truly possible on the federal criminal justice reform front in 2018. It would seem "back-end" prison reforms to facilitate earlier release from prison for all federal offenders and enhanced reentry efforts are quite possible and may truly be a priority for the Trump Administration; it would also seem that "front-end" sentencing reforms to reduce mandatory minimum terms for drug trafficking offenses many not be possible and may be actively opposed by the Trump Administration. Interesting times.

A few prior recent related posts:

January 30, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (3)

Monday, January 29, 2018

Is Prez Trump really going to talk about criminal justice and prison reform in his first State of the Union address?

Images (7)The question in the title of this post is prompted by this notable report from Jim Geraghty at the National Review headlined "Expect Criminal-Justice and Prison Reform from President Trump Tuesday Night."  Here is what he is predicting:

Let’s start this week off with some news: President Trump will talk about criminal-justice reform and prison reform in his State of the Union address Tuesday night.

For several months now, the president’s son-in-law and key adviser Jared Kushner has had monthly meetings with Mark Holden, Koch Industries general counsel; Brooke Rollins, president of the Texas Public Policy Foundation; and Doug Deason, a wealthy businessman and advocate for criminal-justice reform. The conservative groups aim to bring prison reforms and anti-recidivism programs that have achieved sterling results in Texas and Georgia to the nation’s federal prison system.

About 10 percent of all incarcerated individuals in the United States are in federal prison. “If they were a state, they would be the largest state in the country,” Deason said. To bring these kinds of anti-recidivism programs to federal prisons, “all it requires is an executive order instructing Jeff Sessions to open up the Bureau of Prisons to outside service providers,” he explained. “Right now they do so, but only on a very limited basis.”

The Koch network hopes to add momentum to the effort with new initiative called Safe Streets and Second Chances, which will research the most effective methods across eight prisons in Florida, Texas, Pennsylvania, and Louisiana, featuring a “randomized controlled trial involving more than 1,000 participants in a mix of urban and rural communities.” The research will be directed by Dr. Carrie Pettus-Davis of Washington University in St. Louis. The aim is to provide “a counselor for a prisoner from the time he enters prison to years after he’s left, to stop this cycle of recidivism,” Deason said, and “have them leave better equipped to be a productive member of society than when they went in.”

Deason characterizes Sessions as open to proposals on prison reform and programs focused on a prisoner’s re-entry into society, but still “closed-minded” on reducing mandatory minimum sentences.

Interestingly, and perhaps enhancing my basis for reasonably hoping Prez Trump brings up this topic, this CNN article has different Senators talking about what they hope to see in the SOTU speech, and it includes this tidbit:

"I talked to the President about talking about prison reform," Sen. John Cornyn of Texas said, which is "something I've been working on, something I know that he and others are interested in."

Inspired by these reports, we ought to collectively work on a 2018 State of the Union drinking game.  Perhaps it ought to be a gulp of beer or a sip of wine/liquor for every time Prez Trump says prison reform or job training or mentoring or addiction treatment.  And if he says mandatory minimums or sentencing guidelines need to be reformed, I will buy a round for everyone!

A few prior recent related posts:

UPDATE: I just noticed this White House webpage detailing "Special Guests for the State of the Union Address." Because it does not seem that any of the special guests have a prison past, I am now doubting prison reform is getting any significant attention in the speech. Some of the listed guests, though, do suggest some other criminal justice issues will be getting mentioned:

Elizabeth Alvarado, Robert Mickens, Evelyn Rodriguez, and Freddy Cuevas are the parents of Nisa Mickens and Kayla Cuevas, who had been close friends since elementary school, but in September 2016, the two girls were chased down and brutally murdered by MS-13....

Police Officer Ryan Holets and his wife adopted a baby from parents who suffered from opioid addiction, breaking down walls between drug addicts and police officers to help save lives....

Agent CJ Martinez has spent much of his 15-year tenure working with the United States Immigration and Customs Enforcement’s Homeland Security Investigations to dismantle criminal organizations, resulting in more than 100 arrests of MS-13 gang members who were prosecuted for crimes including homicide, assault, and narcotics and weapons trafficking.

January 29, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (4)

Wednesday, January 24, 2018

Encouraging new report on prospects for prison reform legislation emerging from Congress

This report from The Hill, headlined "Prison reform gains new momentum under Trump," suggests that recent talk from the White house about prison reform might soon become real action from Congress.  Here are the details of an encouraging story:

Momentum is building under the Trump administration for criminal justice reform. The path forward, however, is looking a little different than it has in the past.

Previous efforts to reform the justice system have focused on cutting prison time for convicted felons. But those taking part in the current discussions say the focus has shifted to preventing ex-convicts from returning to jail, suggesting this approach has the best chance of winning approval from both Congress and the White House.

A source familiar with the talks between the White House and GOP members of Congress said a bipartisan prison-reform bill offered by Rep. Doug Collins (R-Ga.) is expected to be marked up in the House Judiciary Committee before the first quarter ends in April.

The Prison Reform and Redemption Act, co-sponsored by eight Democrats and seven Republicans, allows prisoners to serve the final days of their sentences in halfway houses or home confinement. To do so, prisoners have to complete evidence-based programs while in prison that have been shown to reduce recidivism rates. The legislation directs the attorney general to identify the most effective programs, which could include everything from job and vocational skills training to education and drug treatment....

Senate Majority Whip John Cornyn (R-Texas) has introduced similar legislation in the Senate along with Sen. Sheldon Whitehouse (D-R.I.). Collins and Cornyn are working closely together to ensure any differences between their bills are reconciled, the source familiar with talks said.

President Trump and Jared Kushner, Trump’s son-in-law and senior adviser, have met with lawmakers and advocates to talk about prison reform and the success states have had in the last few months, signaling there’s White House support for legislation. “The administration strongly believes that prison reform is a conservative issue that will help reduce crime and save taxpayer dollars and has the potential to gain bipartisan support,” a White House source said.

Bipartisan criminal justice reform efforts until now have largely focused on proposals to reduce mandatory minimum sentencing for certain nonviolent drug offenders and armed career criminals.  While talks now appear focused on prison reform, advocates say sentencing reform isn’t off the table just yet.

Brooke Rollins, president and CEO of the Texas Public Policy Foundation, which started the national Right on Crime campaign, said there’s more divisiveness around sentencing reform. “My best educated guess is that at some point that will become part of the discussion, but right now there is an encouraging [group] coalescing around prison reform.”

Rollins notes that criminal justice reform is a big issue and commended the administration for tackling it one piece at a time. “When trying to get it done all at once, you often end up with nothing,” she said. “I think this administration is smart to focus on prison reform for now.”

I share the view that an effort to get everything in one big reform bill can sometimes prevent getting any bill through the legislative process. And given that a good prison reform bill with lots of potential sentence-reduction credits could prove even more consequential for current and future federal prisoners than even broad mandatory minimum reforms, I am especially encouraged by the prospect of a prison reform bill being the first priority for Congress in the months ahead.  Of course, as with all parts of sentencing reform, the devil is in the details; I will not get to revved up about possible reform until the particulars are made public.  But this report heightens my hope that some significant federal reform may actually get done in the first part of 2018.

Recent related post:

January 24, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Thursday, January 18, 2018

An accounting of how criminal justice has changed as the folks inside the Beltway have changed

The Marshall Project has this notable new piece headlined "Trump Justice, Year One: The Demolition Derby; Here are nine ways the law-and-order president has smashed Obama’s legacy." Here is how the piece sets up its listing (readers can click through to review the particulars):

On criminal justice, Donald J. Trump’s predecessor was a late-blooming activist.  By the end of President Barack Obama’s second term, his administration had exhorted prosecutors to stop measuring success by the number of defendants sent away for the maximum, taken a hands-off approach to states legalizing marijuana and urged local courts not to punish the poor with confiscatory fines and fees.  His Justice Department intervened in cities where communities had lost trust in their police.

After a few years when he had earned the nickname "Deporter-in-Chief," Obama pivoted to refocus immigration authorities — in effect, a parallel criminal justice system — on migrants considered dangerous, and created safeguards for those brought here as children.  He visited a prison, endorsed congressional reform of mandatory minimum sentences and spoke empathetically of the Black Lives Matter movement.  He nominated judges regarded as progressives.

In less than a year, President Trump demolished Obama's legacy.

In its place, Attorney General Jeff Sessions has framed his mission as restoring the “rule of law,” which often means stiffening the spines and limiting the discretion of prosecutors, judges and law officers. And under President Trump’s “America first” mandate, being tough on crime is inextricably tied to being tough on immigration.

“I think all roads in Trump's rhetoric and Sessions’ rhetoric sort of lead to immigration,” said Ames Grawert, an attorney in the left-leaning Brennan Center’s Justice Program who has been studying the administration’s ideology.  “I think that's going to make it even harder for people trying to advance criminal justice reform because that's bound up in in the president's mind, in the attorney general's mind, as an issue that they feel very, very passionately on -- restricting immigration of all sorts.” 

Here are nine ways Trump has transformed the landscape of criminal justice, just one tumultuous year into his presidency.

January 18, 2018 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (8)

Wednesday, January 17, 2018

Detailing how AG Sessions seeks to block sentencing reforms in White House criminal justice reform push

Vice News has this new piece providing a little backstory on how and why the event last week at the White House was focused only on prison reform and lacked any discussion of sentencing reform.  The piece is headlined "Jared Kushner’s prison reforms hit a brick wall called Jeff Sessions," and here are excerpts:

For the past six months, the president’s son-in-law Jared Kushner has been working on a potentially bipartisan initiative: to reform the U.S. criminal justice system.  Kushner has been holding “listening sessions” to develop White House agenda on criminal justice reform, including policy recommendations such as providing incentives to companies for hiring former felons, investing in inmates once they leave prison, and perhaps most importantly, reforming sentencing laws, including mandatory minimum sentencing, a relic of the 1980s and 90s war on drugs and the focus of a three-year bipartisan reform effort in the Senate.

It all culminated in last week’s White House roundtable discussion on prison reform with President Trump, several Republican governors, and conservative activists. Except one thing was missing: sentencing reform.  Attorney General Jeff Sessions opposes reforming mandatory minimum sentencing and effectively blocked it from becoming part of the White House reform agenda, according to three people who attended meetings with White House advisors on the issue over the past few months.

“Sessions was very powerful in the Senate, but I think he’s actually more powerful now to oppose the bill,” a source familiar with White House meetings on the issue said. “He has an ability to keep in line several members on the conservative side, the DOJ would take a position on the bill, that would scare the Republicans.”

As the prison reform debate played out, Kushner expressed support for limiting mandatory minimum sentencing, according to individuals who have discussed these issues with him, aligning him with Senate Republicans on the Judiciary Committee.  But Kushner dropped the issue from the agenda in order to get Sessions to attend the roundtable discussion last week.

At the meeting Trump suggested creating more programs for job training, education, mentoring and drug addiction aimed at rehabilitation.  There was no discussion of sentencing laws. The White House did not respond to a request for clarification about the Kushner’s nor the White House’s official position on sentencing reform.

“The president directed the Attorney General to reduce violent crime in this country and he is focusing the Department’s efforts on achieving that goal. Incarceration remains necessary to improve public safety, and the effectiveness of incarceration can be enhanced by the implementation of evidence-based reentry programs,” a spokesperson for the Department of Justice said.

“They were never going to be able to get the President to say he supports sentencing reform based on what Sessions has told him,” a source familiar with the meetings said.

A majority of Republicans and Democrats support reforming mandatory minimum sentencing, which takes sentencing leeway away from judges.  Since then the federal prison population has quadrupled; more than half of all federal inmates were sentenced using mandatory minimum laws.

Meaningful sentencing reform is considered key to any reform package that could be brought to vote in the Senate.  Republican Sen. Chuck Grassley of Iowa, Judiciary Committee Chairman, said sentencing reform is a must-have if Trump wants a bill to pass.  “Any proposal that doesn't include sentencing reform is not going to get through the committee,” a spokesman for Grassley said in an email....

In October, the Senate Judiciary Committee unveiled its latest criminal justice reform bill — the Sentencing Reform and Corrections Act — to eliminate many mandatory-minimum sentences for drug crimes.  This is not the first time Congress has tried to pass comprehensive reform.  The same bill made it out of the committee in 2015, but was never voted on due to loud opposition from a group of Republicans, including then-Senator Jeff Sessions.

I remain confident that any number of bills with sentencing reform components could get a majority of votes on the floor of the House and the Senate if leadership would bring these bills up for a vote.  But I surmise AG Sessions has enough sway with leadership (especially in the Senate) to get them to prevent a vote on any bills the AG opposes.

That all said, the kinds of prison reform being discussed and seemingly now endorsed by AG Sessions — some version of the corrections part of the Sentencing Reform and Corrections Act — could be a very significant type of reform that could have a positive impact for every federal offender. Sentencing reform in the form of a reduction in the length and reach of mandatory minimums would be very important in lots of ways, but these mandatories only directly impact roughly 1/4 of all new federal offenders each year and it is unclear exactly when and how any mandatory minimum sentencing reforms would be extended to the roughly 90,000 current federal drug offense prisoners. Corrections reforms that allow prisoners to earn reductions in their sentences could and likely would impact all 180,000+ current federal prisoners and all those new prisoners brought into the system every years.

Of course, we need to see the particulars of any "evidence-based reentry programs" and other prison reforms that AG Sessions can abide before being able to assess effectively who might benefit from a reform bill with only the corrections part of the reform equation.  But my main point it to highlight that the import and impact of any discussed reform always has devilish elements in the details, and a that good form of prison reform may be even better and much more consequential than a middling form of sentencing reform.

January 17, 2018 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Lies, damn lies and fascinating statistics in the US Sentencing Commission FY 2017 sentencing data

I just noticed that the US Sentencing Commission last week released its latest standard quarterly data report, and this one is extra exciting because it contains preliminary data on all cases sentenced during fiscal year 2017.  Critically, FY17 runs October 1, 2016 through September 30, 2017, so a good chunk of the data reflect a period in which Attorney General Loretta Lynch was still in charge of the Justice Department.  Still, a majority of the data reflects sentencings after Attorney General Jeff Sessions took over, and the final third of FY 2017 had all sentencings taking place after AG Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.

I provide all this backstory largely as a prelude to highlighting how similar the USSC FY17 data look to FY16 data. I also thought it interesting to compare some of these data to FY13 and FY09, the last two Prez election year USSC data sets. (I am drawing all these data from Table 19, then Table 6 of these USSC data reports.)

USSC FY        Total Sentences (mean in month)     Drug Trafficking Sentences (mean in month)     Immigration Sentences (mean in month)

2009                81,347 (47 months)                                  23,931 (78 months)                                         25,924 (17 months)

2013                80,035 (45 months)                                  22,354 (72 months)                                         24,972 (16 months)

2016                67,740 (44 months)                                  19,231 (66 months)                                         20,052 (13 months)

2017                66,409 (45 months)                                  18,980 (70 months)                                         20,333 (12 months)

One can mine a lot more data from the FY 2017 report to tell a lot more stories about how, at least so far, formal and informal changes by AG Sessions have not yet made a dramatic impact on federal sentencing statistics.  Indeed, one might be heartened by the fact that fewer federal cases were sentenced in FY 2017 than in the last 15 years, and I think fewer federal drug trafficking sentences were imposed in FY17 than in nearly any other year in the past two decades (though the uptick in average sentence is interesting and may prompt a future post). 

Of course, these data may start looking very different in FY 2018 and beyond as new US Attorneys appointed by Prez Trump take over and their new cases make it all the way to sentencing. Still, I think it notable and interesting that the first run of federal sentencing data of the Trump Era shows a continued decline in overall sentences imposed and in drug trafficking sentences imposed.

January 17, 2018 in Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Thursday, January 11, 2018

Notable comments by Prez Trump during meeting on prison review

I spent most of Thursday on the road, and various news stations were reporting on statements by Prez Trump others than those on the topic of prison reform. But, as this official White House page reveals, Prez Trump made some comments during a meeting that ought not be overlooked. Here are excerpts:

We’ll be discussing a number of opportunities to improve our prison system to better promote public safety and to help former prisoners reenter society as productive citizens. Very important. Very big topic. It’s become a very big topic, especially, I think, over the last 12 months or so. We’ve been focused on it very strongly.

We support our law enforcement partners, and we’re working to reduce crime and put dangerous offenders behind bars. At the same time, we want to ensure that those who enter the justice system are able to contribute to their communities after they leave prison, which is one of many very difficult subjects we’re discussing, having to do with our great country.

The vast majority of incarcerated individuals will be released at some point, and often struggle to become self-sufficient once they exit the correctional system. We have a great interest in helping them turn their lives around, get a second chance, and make our community safe. Many prisoners end up returning to crime, and they end up returning to prison. Two-thirds of the 650,000 people released from prison each year are arrested again within three years.

We can help break this vicious cycle through job training — very important, job training — mentoring, and drug addiction treatment. And you know how we’re focused on drugs pouring into our country and drug addiction. It’s a big problem even as we speak of this subject. We’ll be very tough on crime, but we will provide a ladder of opportunity to the future....

My administration is committed to helping former inmates become productive, law-abiding members of society.

This Hill article about the meeting, headlined "Trump, Kushner meet with advocates on prison reform," includes quotes from advocates and lawmakers suggesting reasons for optimism and pessimism concerning possible federal legislative reforms moving forward after this notable meeting.

January 11, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (10)

Press reports indicate White House listening session to be focused only on reentry issues, not sentencing reform

As noted here yesterday, there are plans for an afternoon meeting at the White House on criminal justice issues.  But, as this new Newsweek article details, it seems that sentencing reform is not going to be part of the discussion.  The article's headline provides the essentials, "Trump and Kushner's Prison Reform Plan Not Expected to Reduce Sentences or Fix Prison Conditions," and here are the details:

President Donald Trump will hold a listening session on prison reform Thursday that will focus on improving prisoner reentry – the process of preparing inmates for release–with a conservative approach, multiple people in talks with the administration told Newsweek.

The session is only expected to include politicians and religious and nonprofit leaders from the right. It is not expected to include discussion on topics like prison conditions or sentencing reform.

In attendance will be three Republican governors who instituted criminal justice reform in their states–Governor Nathan Deal of Georgia, Governor Matt Bevin of Kentucky and Governor Sam Brownback of Kansas–along with televangelist Paula White, according to Derek Cohen, the director of Right on Crime at the Texas Public Policy Foundation, which has been in discussions about conservative reentry reform methods with the Trump administration. “All the policy issues we’ve discussed with the administration have a conservative orientation,” said Cohen, who added that prison ministries are crucial to a successful release. “Faith is going to be an integral part of any reentry plan.”

The Texas Public Policy Foundation and the Trump administration have discussed cutting government regulation to make it easier for former prisoners to get jobs, Cohen said. Getting rid of restrictions that bar ex-cons from working as barbers, for example, allow inmates to more easily get a job upon release and reduce the likelihood of recidivism, he added.

Koch Industries general counsel Mark Holden will also attend the meeting, which he said will be at 1:30 p.m. in the White House’s Roosevelt Room. “Our point of view at Koch is prisoner reentry needs to begin at day one of the sentence” and not “60 or 90 days out” from release, said Holden, who had also been involved in the prison reform talks that Trump senior adviser and son-in-law Jared Kushner began last summer. Holden added that mental health and drug treatment, along with vocational training, need to happen inside prisons so inmates are prepared for life outside when they are released.

“I’m delighted that the president has made this a priority,” said Pat Nolan, director of the American Conservative Union Foundation’s Center for Criminal Justice Reform, which has also been in prison reform talks with the Trump administration. “I’ve been working since 1996 to help build a conservative movement in criminal justice reform, and this is a very important turning point.” Cohen and Nolan will not be at the Thursday session, but others from their organizations are attending....

Kushner’s Office of American Innovation is also working on an apprenticeship plan for released prisoners that could match inmates with employers, according to a conservative leader who has been working with the White House on the reforms, but it’s unclear whether that initiative will be announced Thursday.

Excluding organizations that are seen as liberal, like the ACLU or the NAACP, and leaving out sentencing reform was necessary to gain the support of “old guard conservatives” like U.S. Attorney General Jeff Sessions, who will also attend the meeting, the conservative leader said. “Reading the tea leaves, I think what they’ve done is sat down with Mr. Sessions and got him to agree to part of the reforms,” said the conservative leader, who requested anonymity in order to freely discuss the issue. He added that he expects White House Chief of Staff John Kelly to attend and that Housing Secretary Ben Carson and Labor Secretary Alexander Acosta came to previous meetings on the issue.

The White House did not respond to a request for comment late Wednesday evening.

Recent related post:

January 11, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Wednesday, January 10, 2018

Interesting report of plans for Prez Trump to hold a "listening session on prison reform" this week

Axios has this notable new scoop about notable White House plans including President Trump under the headline "Scoop: Jared's policy push on prison reform."  Here are the details:

President Trump tomorrow will hold a listening session on prison reform, after six months of quiet exploration of the issue by senior adviser Jared Kushner (who turns 37 today).

Why it matters: The White House sees this as a conservative issue (save money, cut crime) that could get bipartisan support (spending for workforce development), heading into a midterm election year when it'll be even harder to get congressional accomplishments than it was last year.

  • Under the auspices of Kushner's Office of American Innovation, administration officials have met with faith-based leaders, former inmates who have been rehabilitated, conservative leaders, and experts on the issue.
  • Attorney General Jeff Sessions will join Thursday's session.
  • Jared and his wife, Ivanka Trump, held a dinner discussion at their home, including Sens. Dick Durbin (D-Ill.), Amy Klobuchar (D-Minn.), Mike Lee (R-Utah) and Sheldon Whitehouse (D-R.I.)
  • The administration is exploring possible legislative proposals and administrative actions. An early step could include a push for public awareness involving churches.
  • The issue came up during this weekend's Camp David meeting with GOP congressional leaders.

Koch Industries general counsel Mark Holden, a longtime champion of the issue, told me he has been impressed with Kushner's passion, and that the approach the administration is exploring "has been showed to markedly reduce recidivism."

Jared Kushner's interest and "passion" for criminal justice reform is not big or new news, but the direct involvement of President Trump and Attorney General Sessions in talks about possible federal reforms does strike me as big news. It is worth watching as the rest of this week unfolds whether and how the White House or the Prez himself speaks about this planned meeting (either before or after it takes place).  I am still not prepared to assert that significant federal statutory sentencing reform is becoming likely, but this reported meeting seems like a good and important sign.

January 10, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Monday, January 08, 2018

Interesting comments on reform and rehabilitation from Deputy AG Rosenstein

Deputy Attorney General Rod Rosenstein today delivered these lengthy remarks at the American Correctional Association's Winter Conference.  Folks interested in prison policies and practices, as well as the messages being delivered by the US Justice Department these days, should make time to  read the entire speech.  And sentencing fans (including students in the Sentencing class I start teaching today) may be especially interested in these interesting comments about reform and rehabilitation from the early part of the speech:

The American Correctional Association has a proud history of supporting the work of prison and jail officials.  More than 147 years ago, in 1870, corrections officials from the United States and abroad met in Cincinnati, Ohio and adopted a “Declaration of Principles” they believed should guide the field of corrections.  One of your principles is that the purpose of incarcerating criminals is “the protection of society.”

One of the most important management principles is that it is essential to articulate the big-picture goal for an organization.  That vision filters down into how other managers understand their mission, and ultimately into everything that our employees do. In law enforcement, our goal is to reduce crime.

Correctional agencies play a critical role in achieving that goal.  By providing inmates with structure, and teaching them discipline and skills during their incarceration, you increase the probability that they will become productive members of society and reduce the likelihood of recidivism.

When I read the original version of your principles, I noticed that the word “reform” appears 27 times.  The word “rehabilitate” does not appear at all.  Rehabilitation came into vogue as a sentencing goal in the 20th century.  Many people ultimately concluded that rehabilitation was not a realistic goal for prisons.

After spending almost three decades in law enforcement, I agree that we need to focus on reform of criminals, not rehabilitation.  The reason is that “re-habilitation,” by definition, is about restoring a person’s good reputation and ability to work.

There are some criminals for whom rehabilitation is a reasonable goal.  They are people who lived law-abiding lives and were productive members of society, before something went wrong and caused them to go astray.

But many of the career criminals housed in our prisons unfortunately were not properly habilitated before they offended.  The criminals who were not productive members of society need reform, not rehabilitation.

Admitting that most of our inmates need reform is not a way of disparaging the criminals.  It is instead a frank way to acknowledge that our task is more than just helping them overcome a few mistakes.  Many inmates do not just lack self-restraint.  They lack job skills.  They lack education.  They lack family structure.  They lack discipline.

While they are under governmental supervision, you have the chance to help them reform by imposing discipline and offering opportunities for improvement.  The most important thing for many inmates to learn is the discipline of following a schedule: wake up at a particular time, report to work when required, eat meals at the designated hours, and go to bed early enough to start fresh the next morning.

Some of the programs you offer also may be useful to reform inmates and set them on the right path. Programs such as institutional work assignments, prison industries, substance abuse treatment, and educational or vocational training.  Your work makes our communities safer.

The principles from 1870 also codify the professionalism that defines corrections officials.  They explain that “[s]pecial training, as well as high qualities of head and heart, [are] required to make a good prison or reformatory officer.”

January 8, 2018 in Criminal justice in the Trump Administration, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Friday, December 22, 2017

Reviewing the "hope and skepticism" engendered by Prez Trump's Rubashkin commutation

As reported in this prior post, Prez Trump made some minor modern clemency history by commuting the 27-year prison sentence of Sholom Rubashkin. This NBC News piece, headlined "Trump’s first commutation met with hope and skepticism," provides some context and commentary on this decision:

After President Donald Trump commuted the 27-year sentence of Sholom Rubashkin, a former kosher meatpacking plant CEO convicted of financial fraud, prison reform advocates on Thursday immediately perked up.

Trump, they said, did something not even President Barack Obama — a strong proponent for reform — had done: commuted a sentence during his first year in office. It wasn't until 2011 when Obama — three years into his first term — commuted the sentence of a federal prisoner, although he had pardoned nine people a year before.

"I'm extremely excited about this and am very optimistic that Trump is going to surprise people," said Amy Povah, the founder of CAN-DO, a nonprofit that advocates clemency for federal prisoners convicted of drug crimes.  "I communicate with a lot of prisoners, and I guarantee you they woke up to renewed hope."

Still, the number of commutations that could roll out under the Trump administration remains unknown.  With so much at stake, some fighting for criminal justice reform are asking whether the Rubashkin case is a precursor of things to come — or just a rare one-off.  Neither the White House nor the Justice Department immediately responded to requests for comment Thursday....

Rubashkin had the support of both Democrats and Republicans in Washington for his commutation.  Notably, a push for the Obama administration to take action fell on deaf ears. That was even as Obama moved swiftly later in his final term to begin commuting sentences.  Obama granted clemency to 1,715 federal prisoners — more than any other U.S. president in history. The vast majority had been sentenced under mandatory minimum laws that were enacted in the 1980s and ’90s to address the scourge of drugs....

Kevin Ring, the president of Families Against Mandatory Minimums, said he's concerned that the bar might be set too high for inmates seeking commutations — given that Rubashkin's case was high-profile enough to attract the interest of lawmakers, including House Minority Leader Nancy Pelosi, D-Calif., and Sen. Orrin Hatch, R-Utah.  He also questioned if certain types of prisoners — those not associated with white-collar crimes like Rubashkin — would benefit from clemency.  "Most are just families who don't wield any political influence," Ring said.....

In recent days, House Speaker Paul Ryan, R-Wis., has suggested Congress could tackle criminal justice reform in the next year.  That's important to Holly Harris, the executive director of the U.S. Justice Action Network, a lobbying group with advocates from the left and right.

She said a bipartisan bill in the House, the Prison Reform and Redemption Act, which would allow certain prisoners to serve the end of their sentences in halfway homes or home confinement, could be a catalyst in overhauling the system.  "Voters are very well educated and realize that one-size sentencing doesn't work," Harris said.  "The president of the United States has sent a really positive signal" with the release of Rubashkin.

While Trump ran as the "law and order" candidate, his lack of specifics on the criminal justice issue, apart from how it relates to immigration and national security, could end up going beyond what Obama started and result in sweeping change, Povah added.  "We know that he's an outsider, and I don't think he always necessarily cares what's conventional," she said.  "So I kind of hope that that can benefit people."

Recent related post:

December 22, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, December 20, 2017

"President Trump Commutes Sentence of Sholom Rubashkin"!?!?!

The title of this post is the headline of this press release from the White House this evening.  Here are the details:

Today, President Donald J. Trump commuted the prison sentence of Sholom Rubashkin, an action encouraged by bipartisan leaders from across the political spectrum, from Nancy Pelosi to Orrin Hatch.

Mr. Rubashkin is a 57-year-old father of 10 children.  He previously ran the Iowa headquarters of a family business that was the country’s largest kosher meat-processing company.  In 2009, he was convicted of bank fraud and sentenced thereafter to 27 years in prison.  Mr. Rubashkin has now served more than 8 years of that sentence, which many have called excessive in light of its disparity with sentences imposed for similar crimes.

This action is not a Presidential pardon.  It does not vacate Mr. Rubashkin’s conviction, and it leaves in place a term of supervised release and a substantial restitution obligation, which were also part of Mr. Rubashkin’s sentence.

The President’s review of Mr. Rubashkin’s case and commutation decision were based on expressions of support from Members of Congress and a broad cross-section of the legal community. A bipartisan group of more than 100 former high-ranking and distinguished Department of Justice (DOJ) officials, prosecutors, judges, and legal scholars have expressed concerns about the evidentiary proceedings in Mr. Rubashkin’s case and the severity of his sentence.  Additionally, more than 30 current Members of Congress have written letters expressing support for review of Mr. Rubashkin’s case.

Because I have some personal history working on this case, I am not inclined to comment at great length beyond wanting to here praise President Trump for bringing some (non-political?) attention to his historic clemency powers through this grant. I also will link to some prior posts about this long-controversial case.

Some of many prior posts on the Rubashkin case:

December 20, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18)

Thursday, December 14, 2017

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

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

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

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

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

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

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

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

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

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

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

December 14, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Friday, December 01, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, November 17, 2017

New ACLU poll suggests significant interest in criminal justice reform

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 16, 2017

Notable crime fighting comments by Deputy AG Rosenstein in Chicago

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 07, 2017

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

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

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

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

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

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

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

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

Sunday, November 05, 2017

Spotlighting challenges facing federal prosecutors in capital pursuit of Sayfullo Saipov

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

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

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

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

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

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

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

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

Prior related posts:

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

Saturday, November 04, 2017

"Can Jared Kushner Save Criminal Justice Reform?"

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 02, 2017

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

Here are some of the commission’s recommendations:

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

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

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

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

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

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

Wednesday, November 01, 2017

"Trump labels US justice system 'laughing stock' "

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

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

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

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

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

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

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

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

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

Prior related post:

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

Thursday, October 19, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, October 18, 2017

Law enforcement group pressing Trump Administration to support criminal justice reform

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

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

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

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

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

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

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

Monday, October 16, 2017

NFL endorses federal criminal justice reform bills

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

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

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

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

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

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

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

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

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

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

Thursday, October 12, 2017

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

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

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

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

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

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

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

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

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

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

Thursday, October 05, 2017

AG Sessions announces new initiatives to address violent crime

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, October 04, 2017

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

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

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

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

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

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

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

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

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

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

Tuesday, September 26, 2017

Acting DEA head officially resigns

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

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

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

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

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

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

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

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

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

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

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

Among other things, AFJ’s report notes:

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

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

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

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

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

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

Prior related post:

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

Tuesday, September 19, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, September 15, 2017

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

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

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

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

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

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

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

Thursday, September 14, 2017

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

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

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

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

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

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

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

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

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

Tuesday, September 12, 2017

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

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

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

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

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

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

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

Monday, August 28, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, August 25, 2017

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

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

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

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

A few prior related posts:

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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