Friday, June 26, 2015

Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders

SS-602x399As this report from The Hill details, a notable and significant group of Representatives are backing a notable and significant new federal criminal justice reform bill.  Here are the basics:

A bipartisan pair of lawmakers on Thursday unveiled a comprehensive criminal reform bill aimed at reducing the federal prison population.  The Safe, Accountable, Fair, and Effective (SAFE) Justice Act from Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) calls for new rehabilitation methods and sentencing reforms.  The bill is the result of the House Judiciary Committee's over-criminalization task force which examined ways to reform federal prisons....

Sensenbrenner said the bill was intended to reverse the staggering increase in the prison population, which has quadrupled in the last 30 years.  Despite increased incarceration and spending on prisons, recidivism still remains a problem, he also noted.  The bill applies mandatory minimums only to major crimes, and “expands recidivism reduction programming to incentivize and reward those who are working to make a change,” Sensenbrenner said....

Scott said the bill would encourage innovate approaches to criminal justice reform. “We were not interested in playing politics with crime policy,” said Scott.  He noted that 32 states had been able to reduce both crime and incarceration rates over the past five years. Calling those states "laboratories of democracy," he said the bill adopted many of those tested practices.

Scott lamented the high incarceration rate in the U.S. He said the bill aims to “direct non-violent low level, first time offenders from prison" and better acknowledge the conditions that lead to crime.  “If you address those underlying issues, you will have a better return rate than just from locking them up,” he said.

The bill also garnered support from major groups across the political spectrum. Leaders and representatives from Koch Industries, the ACLU, the NAACP, the Washington D.C. Police Foundation, Families Against Mandatory Minimums, and the Center for Criminal Justice Reform at the American Conservative Union have expressed support for the bill.

The bill is co-sponsored by Reps. Doug Collins (R-Ga.), Elijah Cummings (D-Md.), Raul Labrador (R-Idaho), Judy Chu (D-Calif.), Mia Love (R-Utah), and Scott Rigell (R-Va). “Too many of our children have gotten caught into a cycle that they can not get out of,” said Love, explaining the bill's appeal.

Rep. Rigell touted the broad coalition backing the bill, which includes Koch Industries, owned-by the Koch Brothers, who are major conservative donors. “If you think of those as two gate posts, “ he said, noting Koch Industries and the ACLU, “that’s an awfully wide gate.”

I am struggling to find on-line the full text of this important new federal sentencing reform proposal, but this summary from FAMM leads me to believe that this new SAFE Justice Act may go significantly farther (and be more politically viable) that the Smarter Sentencing Act and the Justice Safety Valve Act proposals that failed to move forward in the last Congress.  Indeed, these passages from this new Vox article, which provides the most detailed media account of the SAFE Justice bill's specifics, is prompting me to think all would-be federal reformers — including Prez Obama and his Justice Department, and especially Senators Cruz and Paul and other reform-minded GOP Prez candidates — should think seriously about giving up on the SSA and other reform bills now in the Senate in order to put all their advocacy efforts behind getting SAFE Justice passed through the House ASAP:

While Senate efforts at criminal justice reform have exposed a generational split in the Republican Party, in which young reformers like Senators Mike Lee and Rand Paul face off against old-school, tough-on-crime conservatives like Senators Chuck Grassley and Jeff Sessions, the House's bill was written by one of those old-school Republicans — Rep. James Sensenbrenner of Wisconsin — as well as Rep. Bobby Scott (D-VA).

Sensenbrenner and Scott think of the Safe Justice Act as a federal version of the criminal justice reform bills that have been taken up in state after state over the past several years, many of them under the mottos of "justice reinvestment" and "smart on crime." In their minds, they're building on what's worked in the states and are in line with reformers' emphasis on "data-driven" and "evidence-based" criminal justice policymaking.

The Safe Justice Act is a collection of dozens of different reforms. Most of them aren't terribly big on their own, but many of them overlap. That makes it really hard to estimate exactly how much the federal prison population would shrink if the bill became law. But its effect would be bigger than anything that's been introduced in Congress so far.

Many of the reforms would cut sentences for drug crimes — which reflects a growing consensus that nonviolent drug offenses aren't as bad as violent crimes. Drug prisoners are about half of all federal prisoners (unlike in states, where violent crime is the biggest cause of incarceration). That means that many of the Safe Justice Act's biggest reforms would target the largest slice of the federal population....

Most changes to prison sentences in Congress have focused on cutting mandatory minimum sentences, which force judges to sentence people to five, 10, or 20 years for certain drug crimes. But across-the-board cuts to mandatory minimums have been met with serious resistance from old-school Republicans, including Senate Judiciary Chair Chuck Grassley (R-IA). The House's solution, via the Safe Justice Act, isn't to reduce the mandatory minimums themselves — but to narrow the range of people who they apply to. Instead of someone who's convicted of trafficking a certain amount of cocaine being automatically sentenced to 10 years, for example, he'd only trigger the 10-year minimum if he were also a leader or organizer of an organization of five or more people. And even then, the bill says that judges can override the mandatory minimum if the defendant doesn't have much of a criminal history, or has a serious drug problem.

The bill would also make it possible for more people to be sentenced to probation instead of getting sent to prison. It would allow drug offenders to get probation if they'd been convicted of low-level drug crimes before. It would encourage judges to give probation to first-time low-level offenders. And it would encourage districts to start up drug courts and other "problem-solving courts"; some states have found these are better ways to treat some addicts than prison is....

Current prisoners whose sentences would have been affected by the bill's front-end reforms could apply to get their sentences reduced that way. But the Safe Justice Act would also give them another way to reduce their sentences: by getting time off for rehabilitation. Under the bill, every federal prisoner would get an individual case plan, based on what particular prison education, work, substance abuse, or other programs are the best fit for his needs. For every month a prisoner follows the case plan, he'd get 10 days off his prison sentence — meaning a prisoner with a perfect behavior record could get his sentence reduced by a third. (Prisoners serving time for homicide, terrorism, or sex crimes aren't eligible for time off, but that's a very small slice of the federal prison population.) The logic is that prisoners who want to rehabilitate themselves, and whose good behavior shows they're succeeding, shouldn't be forced to spend extra time in prison just for prison's sake.

The bill goes even further when it comes to probation — which affects many more people than prison. For every month of perfect behavior on probation, the offender would get 30 days off the end of his sentence — essentially cutting the probation term in half. If the offender violated probation, on the other hand, there would be a set of gradually escalating punishments, instead of an automatic ticket back to prison....

In the year 2015, it is extremely hard to get any sort of bill through Congress. And Sensenbrenner, Scott, and their fellow reformers have a narrow window before the presidential campaign saps Congress of any will to act it has left. So the barriers are pretty high. But this isn't, in itself, supposed to be a polarizing bill. The presence of Sensenbrenner and other old-school Republicans reflects that. And this is something that both houses of Congress have been debating for some time.

If House leadership decides to snatch up the Safe Justice Act and bring it to the floor quickly, it might give the Senate enough time to act. Maybe they'll be interested in the provisions that would make it a little harder for the federal government to treat regulatory violations as crimes; that's a pet cause of conservatives, even those who aren't otherwise committed to reforming criminal justice.

Still, House leadership might not be interested. But this is the broadest bill that's been introduced during the current wave of criminal justice reform, and it's a marker of just how much consensus there is among reformers in both parties when it comes to reducing federal incarceration.

June 26, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 24, 2015

"I know there needs to be [sentencing] reform,” Sen. Chuck Grassley says. “We need this.”

Secondary_150623_chuck_grassley_gty_1160The title of this post is the (slightly modified) subheadline of this lengthy new Politico report, headlined "Riots spur Senate look at sentencing reform." Here are excerpts:

After the Baltimore and Ferguson riots ignited nationwide discussions of race and criminal justice, a bipartisan group of top Senators is making headway on a sentencing reform compromise to release well-behaved prisoners early and reduce some mandatory-minimums.

But the fledgling proposal — yet to be committed to paper — faces potential resistance from the wings of both parties: Liberals and libertarians who want it to go further, and tough-on-crime conservatives who fear that it lets convicts off the hook.

The group, led by Senate Judiciary Chairman Chuck Grassley (R-Iowa), is writing legislation to allow convicts with low risks of recidivism to earn time off their sentences. They’re also contemplating reductions to some nonviolent drug-related mandatory minimums — and maybe even increasing others on white-collar crime in the name of sentencing equality. Talks are ongoing.

The path forward is uncertain, however. Grassley must thread the needle between his colleagues like Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) — who say the war on drugs is dead and want to ditch mandatory minimums completely — and lawmakers like Sens. Marco Rubio (R-Fla.) and Jeff Sessions (R-Ala.), who are leery of ditching all such sentencing requirements and still back a tough-on-crime mindset that dominated the GOP in the 1980s and 1990s. It also marks a transition for Grassley, who’s never been a big advocate for reducing mandatory minimums and has been labelled an arch-nemesis of criminal justice reform by newspapers back home in Iowa.

“I have different views than Paul and those guys,” Grassley said in a short interview. “They’d make you believe [people are incarcerated] for smoking one pot or one ‘roach’ … But they’re not; they’re in for a lifetime of violent crime.” “But I know there needs to be reform,” he quickly added. “We need this.”

It’s a political gamble. On the one hand, the group risks being accused of writing a watered-down overhaul; on the other, lawmakers don’t want to be accused of letting convicts off too easily. Striking a balance between those two positions has been difficult in the past — and one of the reasons such legislation hasn’t been enacted in previous congresses.

“You’ve got to be very careful,” said Sessions, a former U.S. Attorney for the Southern District of Alabama who’s already skeptical of the burgeoning deal. He launched into a lecture: “Historic criminal justice reform in the early 1980s has led to this dramatic drop in the crime rate. I mean, the murder rate is less than half of what it was — and so [mandatory minimums were] a fundamental component… I don’t want us to go further than we should in reducing sentences.”

The new compromise package comes amidst heightened inter-racial tensions following the deaths of unarmed black men at the hands of police officers. And when a young white man murdered nine black churchgoers in Charleston, S.C., because of their skin color, the nation was again plunged into discussions of race relations. “My hope is that in light of what happened in South Carolina, we think beyond the symbolism of the [confederate] flag, to changes that really show we’re committed to fairness when it comes to racial equality,” said Democratic Minority Whip Dick Durbin (D-Ill.), who is part of the compromise group.

For supporters of sentencing reform, reform is needed in the name of equality. Many mandatory minimums disproportionately affect African Americans because they are used for sentencing drug-related crimes that plague predominately lower-income, urban populations. “We’re housing too many of our citizens who are committing nonviolent crimes,” said civil rights activist Rep. John Lewis (D-Ga.). “So many people, especially, low-income people who can’t hire lawyers — and it’s not fair.”...

Over the past few years, reform negotiations have been dominated by people like Paul and more libertarian-type Republicans, as well as Democrats such as Leahy. The pair have teamed up on legislation that effectively eliminates mandatory minimums by allowing judges to override them. But the idea of eliminating mandatory minimum makes people like Grassley and his co-Republican negotiator, Sen. John Cornyn, nervous.

“Having been a judge for 13 years and attorney general, my observation is we have to be careful,” Cornyn said during a Tuesday interview in his Senate office. “Even though people may be well intentioned, there could be very negative consequences.”

The package marries provisions of two bills that passed the Judiciary panel last Congress. The first, sponsored by Cornyn and Sen. Sheldon Whitehouse (D-R.I.), another member of the group, focuses on the back end of sentencing reform by letting inmates out early and giving them tools to assimilate back to normal life. The program would only be offered for prisoners considered to have a low risk of re-offending and who do not have prior convictions. Those who have committed more serious crimes such as rape, murder or terrorism wouldn’t be eligible.

“The people coming out of prison are better prepared to re-enter society and be productive as opposed to regressing back into their life of crime,” under the program, said Cornyn, who notes that states have found positive results by implementing these sorts of programs. In Texas, Cornyn’s home state, such reductions have allowed them to close three prisons, he says. The deal would also take a page out of a bipartisan bill called “Smarter Sentencing” that would reduce mandatory minimums for drug crimes.

The compromise would leave intact mandatory minimums on violent offences as well as convictions that involve the use of firearms (an important exception for Cornyn), importing heroin and cocaine (a requirement of Grassley’s), gang involvement and terrorism, among others. “It’s narrow category of drug sentencing… but it would have a dramatic impact on the population in our federal prisons,” Durbin said.

Critics like Leahy, however, are bound to have reservations because the bill likely won’t go far enough. “Passage of mandatory minimum sentencing laws has not made us safer, but it has driven our federal prison population to historic highs — a nearly 800 percent increase in 30 years,” the former Judiciary chairman said in late April, speaking to The Constitution Project. “I oppose all mandatory minimums.”

Leahy, one of the Democrats’ lead voices on this issue, also isn’t a fan of the Cornyn bill — ultimately abstaining from voting on the measure last year because he believes it will just exacerbate racial disparity with its “high risk,” “low” designations. Paul’s office would not weigh in on the package that’s still in the works.

Other lawmakers are taking the opposite tack. When asked about such a package, Sessions on Monday ranted about “safer streets … where children can be raised,” and likened the debate to a “pendulum that tends to swing.” Rubio has also written op-eds expressing reservations about getting rid of certain minimum sentence requirements. And Grassley, whose committee staff is taking the lead on the matter, is sympathetic to those worries. In fact, it’s ironic that Grassley — who was not invited to the White House when Obama hosted Republicans to discuss this issue — is taking the lead on the compromise. Back home, the Des Moines Register called him a “stumbling block remains stubbornly in place.”

But Grassley says he’s always favored reducing some minimum sentences. He also wants to increase others, however — placing him at odds with some Democrats he’s currently negotiating with. He’d like to increase mandatory minimums on white color crimes like fraud, he says.

While they applauded the idea of allowing prisoners to earn more time off their sentences, several Congressional Black Caucus members engaged in the criminal justice reform talks threw cold water on that particular pitch. “That’s not the way to do it,” said Rep. Hank Johnson (D-Ga.). “I would oppose that for the same reason I’m opposed to mandatory minimums on other crimes: They take discretion away from the judge and put too much discretion in the hands of the prosecution.” Rep. Keith Ellison (D-Minn.) said the idea would “clearly” addresses the question of equal treatment for black and white offenders, but he has “an objection to mandatory minimums beyond the equity question.”...

Other pieces of the package still up in the air include provisions limiting asset seizures, or funding police body cameras — but Grassley worries bringing those into the negotiations at this point may hinder talks.

Cornyn suggested the group would be open to changes in committee and on the floor — so long as they don’t take the bill too far off course from the direction it’s headed, he added. And despite potential pitfalls to come, Whitehouse seemed confident they could deliver: “There’s a sweet spot for people who support reconsideration of mandatory minimums… there is a sweet spot in the middle.”

June 24, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Wednesday, June 17, 2015

As Gov Jindal talks up sentencing reform and medical marijuana in Iowa, should we wonder what "The Donald" has to say on these issues?

The question in the title of this post captures some notable news from the GOP campaign trail this week.  The seemingly more serious news is discussed in this NOLA.com article, headlined "Bobby Jindal talks medical marijuana, sentencing reform with The Des Moines Register."  Here are the details from that report:

Gov. Bobby Jindal doubled down on his commitment to sign two pieces of state legislation related to marijuana during a video interview with The Des Moines Register. "We are going to sign both bills. They've made it through the process. They are going to make to my desk in the next few days," Jindal told The Des Moines Register....

Jindal backs legislation to establish a framework for access to medical marijuana in Louisiana. Technically, medical marijuana has been legal in the state for years, but there's never been rules written to regulate growing, prescribing or dispensing it. The new law, should Jindal sign it, would set up those regulations. "Look, if it is truly tightly controlled and supervised by the physicians, I'm ok with that," Jindal said.

The governor also said he would approve a bill that reduces maximum sentences allowed for many types of marijuana offenders. As governor, Jindal said he has increased penalties for people who violent offenders -- sex crime perpetrators and others -- but is in favor of reducing penalties for people who commit nonviolent crimes. "At the federal level, I think there is a bipartisan effort to look at sentencing reform. I think that makes sense," Jindal said.

But, perhaps unsurprisingly, a decision by a high-profile individuals to throw his hat in the GOP presidential ring has garnered the most media attention this week. And this ABC News report highlights some reasons why Donald Trump's views on sentencing and marijuana reform may really be consequential in the coming months:

[T]here’s a slice of voters, not insignificant in the Republican primary race, who despise Washington and politicians more broadly. Every candidate likes to try to channel that, but none bring the bluster that Trump does.... Trump is a sideshow, but one whose act will spill on to the main stage, particularly if he earns a debate invitation or three....

From Facebook: “In the 24 hour period between 12:01 a.m. ET June 16 and 12:01 a.m. ET June 17, 3.4 million people on Facebook in the U.S. generated 6.4 million interactions (likes, posts, comments, shares) related to Donald Trump and his announcement. Note: over the last 90 days, conversation about The Donald has been generated by an average of about 39,000 unique people per day.”

June 17, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Tuesday, June 09, 2015

Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dsyfunctional death penalty

This local article, headlined "House panel voices disapproval of Wolf's death penalty stance," reports that some Pennsylania legislators are finally motivated to do something about the state's dysfunctional capital punishment system. Unfortunately, they only seem motivated so far to make an inconsequential political statement rather than actual try to fix the state's broken system. Here are the basics:

The House Judiciary Committee overwhelmingly approved a resolution that is intended to send a message to Gov. Tom Wolf that it strongly disapproves of the reprieves he has granted that delayed the execution of two convicted murderers. The resolution, approved by a bi-partisan 19-8 vote on Monday, now goes to the full House for consideration, which could occur as soon as Wednesday.

Wolf in February signed an executive order imposing a moratorium on carrying out the death penalty until he has had time to study a Senate-commissioned Pennsylvania Task Force and Advisory Committee on Capital Punishment and its recommendations are satisfactorily addressed. That study is due out later this year.

The executive order so far has resulted in reprieves being granted to Terrence Williams, who was convicted of two murders as a teen-ager in 1984, and Hubert Michael, who was convicted of killing 16-year-old Trista Eng in 1993. Both death row inmates have exhausted their appeals.

The resolution, if approved by the House, would do nothing to change those reprieves, but rather states that the House believes those actions by Wolf are unconstitutional.

"This is about whether or not the laws of Pennsylvania will be carried out. The governor has said he wants to study capital punishment. It does not give him the right to ignore existing laws," said Rep. Mike Vereb, R-Montgomery, a death penalty proponent who sponsored the resolution. Following the House Judiciary Committee's approval of a resolution condemning Gov. Tom Wolf's temporary moratorium on executions, Vereb explains he and the governor are of different minds on the subject of the death penalty. Vereb said justice delayed is justice denied to victims....

Rep. Brandon Neuman, D-Washington, ... said Vereb's concerns would be more appropriately expressed in an amicus brief to the pending lawsuit filed by Philadelphia District Attorney Seth Williams that is before the state Supreme Court over this issue. "This is a matter that I believe needs to be handled and is being handled in the judiciary branch," Neuman said....

Committee Chairman Ron Marsico, R-Lower Paxton Twp., read a letter from Eng's family sent to the governor last week. In it, the family of the York County murder victim stated, "You stand in the way of thousands of victims who seek justice." Marsico added, "We owe it to the victims to pass this resolution."

I generally agree with the basic sentiment that justice delayed is justice denied, but that very sentiment makes me wish that the Pennsylvania legislature would do more to addresss death penalty administration than just pass resolutions. As noted here, even before Gov Wolf's moratorium, the Keystone State had not carried out an execution in more than 15 years and "according to Bureau of Justice Statistics, Pennsylvania is less likely to execute a death row inmate than any other state that has carried out any executions."

In light of this ugly legal history, nearly all of which pre-dates Gov Wolf's election, I think the Pennslyvania House owes a lot more to victims than just passing a seemingly inconsequential resolution. Any and all serious proponents of the death penalty in the Pennsylvania legislature should feel duty-bound to conduct the hard work involved in fixing and making operational a broken capital system. But, because politic rhetoric so often matters more than policy fixes, I fear justice delayed and justice denied will remain the Keystone capital characteristic.

June 9, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Tuesday, June 02, 2015

Might Charles Koch put big money behind big reform of federal clemency process?

Post - March 2013 (5)The question in the title of this post is prompted by this notable new USA Today article headlined "Koch urges Obama administration to speed up clemency program." Here are excerpts:

Billionaire industrialist Charles Koch and top officials in his company are calling for the Obama administration to release from prison the thousands of non-violent offenders who qualify for clemency under a Justice Department initiative.  The push to shorten long federal sentences, mostly for drug offenses, has had a sluggish start since it was announced in April 2014. President Obama has commuted the sentences of only a few dozen inmates since the program took effect.

"I'm not faulting the administration," Mark Holden, Koch Industries' senior vice president and general counsel told USA TODAY on Monday. But, he said, "people got their hopes up. Why isn't it going any faster?"

Koch Industries officials did not offer a specific policy changes but hope their statement of unequivocal support for the clemency initiative will focus attention on the program. "When Charles says something … it helps to highlight the issue and bring other like-minded people to the table," Holden said.

Charles Koch, whose multibillion-dollar industrial conglomerate is one of the nation's largest private companies, has an outsize influence in Republican politics. His expansive network plans to spend about $900 million ahead of 2016 elections — about $300 million of which will be spent on electoral politics, he said. Koch also recently told USA TODAY that he might financially support up to five Republican presidential contenders in next year's primary: Wisconsin Gov. Scott Walker, former Florida governor Jeb Bush and Sens. Ted Cruz of Texas, Rand Paul of Kentucky and Marco Rubio of Florida.

"We're going to be supportive of those candidates who are supportive of the issues that are important to us," Holden said Monday, when asked what role the clemency issue might play in the 2016 race. Criminal-justice reform, he said, is a key part of Koch's "freedom framework." Holden noted that Paul and Cruz have pushed for changes to the system. Both have signed on to a Senate bill that would cut mandatory minimum sentences for drug offenses....

Lawyers involved in the clemency initiative say the process has been slowed, in part, because the eligibility standards may be too tough for the inmates to meet. The main targets of the program are drug offenders who were sentenced under a strict crack-cocaine law that was eased by Congress in 2010. To be eligible, inmates must be non-violent offenders who already have served 10 years and would have received shorter prison terms had they been sentenced under today's laws. They also must have a record of good conduct in prison and no significant criminal history....

More than 30,000 federal inmates applied for representation through the Clemency Project 2014, a consortium of legal organizations, including the American Bar Association and The National Association of Criminal Defense Lawyers, that are helping eligible inmates seek commutations.

Justice Department officials did not immediately respond to a request for comment Monday but have said they are likely to recommend more commutations to the White House. The administration also has requested a 66% budget increase for the Justice Department's Office of Pardon Attorney, which reviews the clemency requests.

Holden and Koch Industries spokeswoman Melissa Cohlmia said company officials decided to publicly support the clemency initiative and call for the faster release of inmates after receiving requests both from organizations and individual inmates, seeking Koch support for clemency applications. In a statement, Holden said Koch and the company back both the program and the Obama administration's eligibility criteria. He said the company also would like to see Congress revise more laws to cut prison time for inmates who would have received shorter terms had they been sentenced today.

"Until there is a change in that legal process, we believe that everyone who meets the common-sense criteria set by the Department of Justice should be granted clemency," Holden said in the statement. "We do not believe that keeping these individuals in prison under these circumstances is just nor does it enhance public safety."

I am always pleased to see prominent folks like the Koch brothers, and others who talk prominently about the importance and virtues of freedom, bringing their message to the criminal justice arena and pushing for reforms. I am especially pleased to see Koch Industries prominently "throwing its weight around" in support of more federal clemency grants ASAP. That all said, though, I would really like to see the Koch brothers start prominently throwing some money around to engineer systemic changes to clemency procedures and politics.

Together, the Koch brothers are estimated to be worth $80 billion; a high-profile investment of just, say, .01% of these riches spent on creating and staffing what I might call a "Supernova Federal Clemency Institute" could and would go a long way to transforming the modern clemency conversation.  I am branding this suggested clemency effort on the kind of stellar explosion that briefly outshines an entire galaxy, radiating as much energy as possible before burning out: a "Supernova Federal Clemency Institute," especially if funded by just .01% of the Koch fortune ($8 million), would explode on the clemency scene and could burn very bright for the final 18 months of the Obama presidency.

With $8 million in resources (and perhaps more coming from others committed to personal freedom in the United States), the "Supernova Federal Clemency Institute" could hire and effectively compensate a staff of lawyers, researchers and advocates who surely could produce, perhaps in a matter of weeks, a robust list of meritorious federal clemency candidates.  This imagined "Supernova Federal Clemency Institute" also could work on rentry project for those granted clemency, could produce reports on best-practices in the states, and could make recommendations to the President and to Congress about how best to ensure federal and state clemency procedures are enduringly committed to helping "secure the blessings of liberty to ourselves and our posterity."  

June 2, 2015 in Clemency and Pardons, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Monday, June 01, 2015

"The GOP should turn its attention to prosecutorial misconduct"

The title of this post is the subheadine of this notable new National Review commentary authored by Kevin Williamson.  The provocative main headline for the piece is "When District Attorneys Attack," and here are excerpts:

Prosecutorial misconduct is a plague upon these United States, from the vodka-pickled Democratic political jihadists in Austin to California, where judges complain of an “epidemic” of prosecutorial misconduct abetted by Democratic attorney general Kamala Harris, who is seeking to replace retiring Barbara Boxer in the Senate.

The Democrats have long been acculturated to the climate of corruption that attends government agencies that are largely free of ordinary accountability, where a carefully cultivated lack of transparency shields operatives from scrutiny and normal oversight. Republicans can rouse themselves to action, if only barely, when this involves the federal Internal Revenue Service or Environmental Protection Agency.  But deference to police agencies and prosecutors is so habitual among the members of the law-and-order party that they instinctively look for excuses when presented with obvious examples of police misconduct, and twiddle their thumbs in the 99 percent of cases of prosecutorial misconduct that do not involve a Republican elected official.

But only the Republican party has the credibility and the political capital to take on the difficult and sure-to-be-thankless task of reining in rogue police agencies and abusive prosecutors — and they may as well take a look at our scandalous prisons while they are at it.  Some Republican leaders, notably Texas’s former governor Rick Perry, have been active and energetic partisans of reform, largely under the banner of the excellent Right on Crime campaign.  But this is not really a job for presidents or even governors: This is a job for mayors, city councilmen, district attorneys, sheriffs, and police chiefs.

June 1, 2015 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, May 29, 2015

Highlighting that GOP candidates are so far way ahead of candidate Hillary Clinton on mandatory minimum reforms

Jacob Sullum has this new Reason posting which highlight that, so far, two high-profile Republican candidate for President have had more interesting and important things to say about mandatory minimum reform than the presumptive Democratic nominee.  The piece is headlined "Paul and Cruz Are Running to Clinton's Left on Sentencing Reform: The presumptive Democratic nominee wants to do something about mandatory minimums but won't say what." Here are excerpts:

In its story on the repeal of Nebraska's death penalty,The New York Times notes that "liberals and conservatives have been finding common ground on a range of criminal justice issues in Washington and around the country." One example it cites: "On the presidential trail, Hillary Rodham Clinton and Senators Ted Cruz and Rand Paul have all called for easing mandatory minimum sentences." That is literally true, but the implied equivalence is misleading, since the two Republicans are advocating specific reforms, while Clinton has not ventured beyond vague generalities...

Although Clinton refers to "measures," she cites just one: the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, which she cosponsored six months after it was introduced. That bill, which would have eliminated the sentencing disparity between crack cocaine and cocaine powder, did not go anywhere. Three years later, Congress almost unanimously approved a law that reduced crack penalties, although they are still more severe than the penalties for powder. If you combine Clinton's talk about reform with her end note referring to the 2007 bill, you might surmise that she thinks the smoked and snorted forms of cocaine should be treated the same. But as far as I know she has not said that explicitly or endorsed any other specific change in sentencing.

By contrast, Paul on Cruz are both on record as supporting substantial sentencing reforms, including, in Paul's case, effectively abolishing mandatory minimums. "I am here to ask that we begin today the end of mandatory minimum sentencing," Paul said at a Senate Judiciary Committee hearing in 2013.  On Bill Maher's HBO show last fall, Paul declared, "I want to end the war on drugs because it's wrong for everybody, but particularly because poor people are caught up in this, and their lives are ruined by it."  I have never heard Clinton take a position halfway as bold as those, and I doubt I ever will.

It is pretty striking when self-identified conservatives seeking the Republican presidential nomination are more credible on criminal justice reform than the presumptive Democratic nominee.  Paul in particular is not only bolder than Clinton on this issue, which is traditionally identified with left-leaning Democrats, but more passionate as well. 

May 29, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Wednesday, May 27, 2015

Senator Paul talking about crime and punishment in Chicago

As reported in this Chicago Tribune article, headlined "Rand Paul in Chicago: Crime 'not a racial thing, it is a spiritual problem'," the most interesting man in sentencing politics had lots of interesting things to say about crime and sentencing in the Windy City today. Here are some details:

U.S. Sen. Rand Paul brought his presidential campaign to Chicago on Wednesday, appealing to African-Americans on the South Side, entrepreneurs downtown and Republicans in the suburbs. On a stage set up on a blacktop parking lot in front of an American flag mural at 66th Street and South Martin Luther King Drive, Paul continued a unique approach for GOP White House contenders — making an appeal to African-Americans who tend to favor Democrats....

"There is crime going on all across America. It is not a racial thing, it is a spiritual problem," Paul said. "I think government can play a role in public safety, but I don't think government can mend a broken spirit. Government can't provide you salvation, government can't save you. … Ultimately, salvation is something you accept yourselves."

A white, libertarian Republican senator from Kentucky urging African-American voters in an impoverished, heavily Democratic neighborhood on the South Side to look within themselves to "find your inner grace" isn't a typical scene in a GOP presidential bid. Paul, though, isn't running a conventional campaign. His stop in Chicago came a day after the release of his book "Taking a Stand," in which he makes the case for a new, more inclusive Republican Party, proclaiming the "Republican brand sucks."

On Wednesday, Paul sought to bring that theme to the stump. He advocated for reclassifying nonviolent felonies to misdemeanors as part of his call to end "mass incarceration" in America.

"We've got to rethink the war on drugs. We've got to find a better way," Paul said. "We've got to treat drugs as a health problem, not an incarceration problem."

Paul also called for providing "second chances" for felons to vote and seek jobs. And he pitched a tax-cutting program for businesses in low-income areas. "If you want more jobs in your communities, if you want more businesses in your communities, we can't keep doing the same thing," Paul said. "For years, we've had this war on poverty and all we have is more poverty."

May 27, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, May 09, 2015

"Pressure builds on GOP for police, criminal justice reforms"

The title of this post is the title of this recent lengthy Politico article.  Much of the article discusses debate over possible federal involvement in state and local policing reforms.  But, as these passages highlight, federal criminal justice reform is part of the current mix in congressional reform discussions:

Pressure is mounting on Republican congressional leaders to take up criminal justice and police reform legislation — and the calls are increasingly coming from within the GOP.

Republican leaders haven’t yet decided how to proceed on an issue conservatives typically have not treated as a priority. But with outrage over police killings of African-Americans dominating the news, an increasing number of rank-and-file GOP lawmakers say doing nothing is no longer an option. 

Sheriff-turned-Rep. Dave Reichert (R-Wash.) wants Speaker John Boehner (R-Ohio) to set up a new select committee on the issue. Sen. Tim Scott, a black South Carolina senator, is pushing for more body cameras. And Senate Majority Whip John Cornyn (R-Texas) is eyeing a commission to study problem areas in criminal justice....

“We are doing a great disservice to ourselves and to everyone else so clearly frustrated by the status quo if we isolate Baltimore or Ferguson as just individual instances of civic unrest … if we don’t step back and see how they fit into the broader issue of our entire criminal justice system,” Cornyn said on the Senate floor Wednesday.

The Senate’s No. 2 Republican was advocating for a criminal justice overhaul. In addition to the bill to start a national commission, he’s sponsoring bipartisan legislation to allow well-behaved prisoners to earn time off their sentences.

It’s a different take on another proposal floated by President Barack Obama and Republicans alike: reducing mandatory minimum sentences on nonviolent drug related crimes, which are cited as one of the major reasons many black men from urban settings end up behind bars.

Leadership is listening but has not committed to a course of action. Boehner on TV last week, for example, retorted, “Why not?” when asked if the federal government should “chip in” for body cameras. Leaders in both chambers are waiting to see what their top law enforcement legislators say first. Both Judiciary Committees are already discussing what needs to be done and are scheduling hearings for the next few weeks....

For now, most of the work will focus on committees like Grassley’s, which seem to be sticking to areas with more consensus, like mandatory minimums and body cameras. During a recent speech, Grassley also floated a pitch to require states to give those charged with a misdemeanor counsel in court, and to reform a nationwide database that allows potential employers to find out if applicants were ever arrested — and use it against them even if they were released without charges.

Some recent related posts:

May 9, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, May 06, 2015

"On Criminal Justice Reform, Ted Cruz Is Smarter Than Hillary Clinton"

The title of this post is the effective title of this piece by Jacob Sullum appearing last week at Reason that captures my reaction to two of the notable essays in this fascinating Brennan Center publication titled "Solutions: American Leaders Speak Out on Criminal Justice."  Here are excerpts from Sullum piece explaining why criminal justice reforms might reasonably be more excited by the prospect of a Prez Cruz rather than another Prez Clinton:

The Brennan Center [book] ... features worthy and substantive contributions from, among others, Sens. Rand Paul (R-Ky.), Cory Booker (D-N.J.), and Ted Cruz (R-Texas), not to mention nonpoliticians such as UCLA criminologist Mark Kleiman and Marc Levin, founder of Right on Crime.  Even New Jersey Gov. Chris Christie, who is not exactly thoughtful on the subject of, say, marijuana legalization, has some interesting things to say about bail reform.  And then there are former President Bill Clinton, Vice President Joe Biden, Wisconsin Gov. Scott Walker, Sen. Marco Rubio (R-Fla.), and former Secretary of State Hillary Clinton, who either support policies that contribute to overincarceration and excessive punishment, fail to acknowledge their past support for such policies, or have nothing specific to say about how to correct those policies....

Hillary Clinton ... notes that as a senator she supported shorter crack sentences (as did almost every member of Congress by the time a bill was enacted in 2010).  But unlike Paul, Booker, and Cruz, who describe actual pieces of legislation they have either introduced or cosponsored, Clinton is decidedly vague about what reforms should come next.

Clinton wants us to know "it is possible to reduce crime without relying on unnecessary force or excessive incarceration," which may sound wise but is actually a tautology. Instead of unnecessary force or excessive incarceration, she suggests, "we can invest in what works," such as "putting more officers on the streets."  Clinton, her husband, and Joe Biden all seem to agree that you can never have too many cops.  She also mentions "tough but fair reforms of probation and drug diversion programs," along with more money for "specialized drug courts and juvenile programs."  That's about as specific as she gets.

Clinton fills out the essay with platitudes and self-aggrandizing references to Robert Kennedy and "my friend" Nelson Mandela.  She also name-checks "Dr. King."  Possibly all three of these men have something to do with criminal justice reform, but if so Clinton never bothers to elucidate the connections.  It is sad that the Democratic Party's presumptive presidential nominee would offer such a shallow discussion of a subject on which Democrats are supposed to be more enlightened than Republicans. By contrast, three less prominent Democrats — Booker, former Maryland Gov. Martin O'Malley, and former Virginia senator Jim Webb — contributed essays that are actually worth reading.

Clinton's essay is especially embarrassing compared to Ted Cruz's.  Although Cruz is not as passionate, active, or ambitious on criminal justice reform as Rand Paul is, his essay includes succinct and informed discussions of the bloated federal criminal code, the leverage that mandatory minimums give prosecutors, and the virtual disappearance of trial by jury in criminal cases, along with specific reforms to address these problems.  Democrats who think Hillary Clinton is savvier or smarter than Cruz may reconsider after reading these essays side by side.

Recent related posts:

May 6, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 28, 2015

Highlighting GOP leaders' notable new essays on criminal justice reform

As reported in this prior post, the Brennan Center for Justice today released this fascinating new publication titled "Solutions: American Leaders Speak Out on Criminal Justice" composed of essays by over twenty high-profile politicians and policy-advocates.  I find especially interesting and important the essays authored by GOP leaders because many members of the Republican Party have, generally speaking, until recently been less likely to vocally advocate for nationwide criminal justice reforms.  For that reason, I thought it worthwhile here to provide links just to those Solutions article authored by seven GOP leaders (going in alphabetical order):

April 28, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, April 22, 2015

Is there a "growing movement against death penalty – on the right"?

The question in the title of this post is prompted by this notable new press article with this full headline: "Nebraska highlights growing movement against death penalty – on the right: Seventeen Republican lawmakers seek abolition of capital punishment in the state as Christians, conservatives and libertarians band together for change." Here are excerpts:

A growing coalition of Christian, fiscally conservative and libertarian lawmakers are pushing to repeal the death penalty in some of America’s reddest states. And after years of working against state-sponsored executions, historically a Democratic platform, some conservatives say they believe the efforts are gaining traction.

The push for reform was on full display last week in Nebraska, as 17 Republican lawmakers in the one-house legislature advocated for passage of abolition bill LB268. “I know many of you, when you went door to door, you said to the constituent you talked to: ‘You send me to Lincoln, [Nebraska,] and when I get down there I’m going to find government programs that don’t work, and I’m going to get rid of them,’” Senator Colby Coash told fellow lawmakers. “And that’s exactly what LB268 does … We can get justice without this method.”

The bill passed its first hurdle with a 30 to 12 vote in favor of repeal, potentially enough to override Republican governor Pete Ricketts’ veto threat. Two more successful votes are needed to send the bill to the governor’s desk, and there is strong opposition, including filibuster threats, to overcome. Still, conservative advocates said they believe it is one of the most promising developments in decades.

“We’re probably in the best position we’ve been in since the bill passed in 1979,” said Stacy Anderson, the conservative executive director of Nebraskans for Alternatives to the Death Penalty, about the last time the state’s legislature passed an abolition bill. “From the conservative standpoint, the death penalty fails on all of our core values.”...

Republicans are still the most likely group to support capital punishment, with 77% in support of the death penalty. Still, conservative activists point to the 10% decrease in Republican support over 20 years, growing support for life without parole as an alternative to the death penalty, and the issue’s low priority ranking among voters.

The most widely cited reasons for opposing the death penalty seem in line with some of the most fervent strains of American Republicanism: fiscal conservatism, pro-life principles and small government ideals. And with increasing scrutiny on states that continue to execute prisoners despite a shortage of lethal injection drugs, the issue appears poised to continue to attract attention.

“It’s a government program that risks innocent life, costs more than the alternative, and is certainly not about limited government,” said Marc Hyden, an outreach specialist with Conservatives Concerned About the Death Penalty. “When I’m first speaking, I think conservatives give me kind of a weird look,” said Hyden. “But about halfway through the presentation, it starts clicking with them – that this is a program that just doesn’t mesh with conservative ideals.”

The campaign has seen growing interest in red states such as Georgia, Kentucky, Kansas and Tennessee, both Hyden and abolitionists said.

In Montana, a fiercely conservative state, a death penalty abolition bill made it out of the House judiciary committee for the first time perhaps ever, according to death penalty abolition advocates there. “I was shocked,” Moore told the Missoulian. “I didn’t expect it to come out of committee.” At the time that the bill passed to the floor, a stunned Moore described it as having “a tiger by the tail”. The abolition bill failed in a vote on the house floor, but many see its progress out of the judiciary committee as nothing short of stunning. “We were very excited,” said Jennifer Kirby about the bill’s progress. “It’s about time.”

April 22, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, April 08, 2015

Notable new attacks on Senator Rand Paul from (conservative?) folks at Crime & Consequences

I often view the "who, when and how" of criticisms of political figures to be a more telling indication of the importance of a politician than the substance of the criticism.  Given that perspective, and the fact that the bloggers at Crime & Consequences are among the most influential and effective advocates of "tough-on-crime" ideas and rhetoric, I find quite notable that two different C&C bloggers yesterday posted quickly these three critiques of GOP Senator Rand Paul and his efforts to become the 2016 Republican nominee for President:

The first C&C post linked above asserts that Senator Paul's criminal-justice-reform commitment "sets him apart from most Republican voters," and the last post linked above asserts that Senator Paul's statement in his Prez candidacy launch speech (basics here) reflects a stunning measure of "ignorance and stupidity."  Wowsa.

I suspect most of the C&C bloggers typically cast votes in GOP primaries, and I am now pretty confident that Senator Paul should not be counting on them for support.

Prior related posts:

April 8, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, March 04, 2015

"Do the Koch Brothers Really Care About Criminal-Justice Reform?"

The title of this post is the headline of this notable new Atlantic piece by Molly Ball exploring what to make of the recent emphasis on criminal justice reform coming from politically-savvy billionaires.  Here are excerpts:

Here is the thing the Koch brothers wish their critics understood: They just want to help people. "Everything we do is designed to help people improve their lives, whether you're talking about our business or our philanthropy," Mark Holden, the senior vice president and general counsel for Koch Industries, told me recently from his office in Wichita, where the multibillion-dollar international manufacturing conglomerate that Charles and David Koch inherited from their father is headquartered.  "We think a free society, consistent with classical liberalism and individual liberties, is the key to success for everyone, and that's what drives a lot of our activities. And criminal-justice reform is good for all of us — the rich, the poor, and everyone else."

Though the Kochs are best known — and, to liberals, notorious — for the massive amounts of money they pour into politics, they have lately been calling attention to a less polarizing crusade: an attempt to address what they term "the overcriminalization of America." But not everyone is convinced that their efforts are quite so sincere.

Critics such as Robert Greenwald, director of the documentary Koch Brothers Exposed, suspect that the push to roll back the criminal code is really just the brothers' deregulatory agenda by another name.  Indeed, Charles Koch, the company's chairman and CEO, has said he became interested in criminal-justice reform after a grand jury's 1995 indictment of a Koch refinery in Texas for 97 felony violations of environmental law.  The company spent six years fighting the charges and eventually settled with the government for $10 million. Seen in this light, the criminal-justice pitch is just another attempt to manipulate the political process to advance the company's financial interests.  That's the view of the liberal group American Bridge, which maintains the anti-Koch "Real Koch Facts" website. "Their own bottom line isn't just an important factor in their activity, it's the only thing," a spokesman for the group, Ben Ray, told me.

This is the question that has always swirled around the Kochs and their political efforts — the massive juggernaut of funding for conservative activism and candidates that critics dub the "Kochtopus": Are the brothers sincere ideologues dedicated to a libertarian vision for America? Or are they simply trying to tilt the political system to favor themselves and their companies?

Various tentacles of the Kochtopus have been involved in criminal-justice issues for about a decade; during that time, Charles Koch has quietly made contributions amounting to seven figures to the National Association of Criminal Defense Lawyers, money that has been used to provide lawyers for poor defendants. In 2011, the group honored Koch Industries with its annual Defender of Justice award. "They are in complete agreement with us on the fundamental policy — to make the Sixth Amendment a reality for every person in the country," said the association's executive director, Norman Reimer.

But the Kochs' advocacy has become more vocal in recent months, from public statements to new partnerships with such groups as Families Against Mandatory Minimums, the American Civil Liberties Union, and even the liberal Center for American Progress. The bid for more attention for the reform effort has received overwhelmingly positive attention, and coincides with a new PR push to show Koch Industries in a friendlier light, including a "We Are Koch" national television campaign that casts the company as heartland job creators — prompting the Kochs' critics to suspect a whitewash.  After all, the investment in criminal-justice reform pales in comparison to the hundreds of millions the Kochs and their donor network have spent electing Republicans, many of whom don't share their views on civil liberties, Greenwald noted.  "Certainly the scales tip against the impact of this, except from the press point of view," he said of the reform push.

And yet the Kochs have found many willing partners on the left for this effort, even among their erstwhile critics.  In 2011, the civil-rights activist and former Obama administration adviser Van Jones cited the Kochs as emblematic of the "economic tyranny" plaguing America, declaring, "We will not live on a national plantation run by the Koch brothers." He appears in the Koch Brothers Exposed (tagline: "The 1% at its very worst").  But Jones has welcomed the Kochs' support for his new Cut50 project, which aims to halve the prison population over the next decade. At a recent panel discussion in Washington, he sat next to Holden and gave him a hug. Koch Industries has agreed to participate in an upcoming conference Jones is sponsoring on prison reform.  When I asked Jones if it made him uncomfortable to team up with people he's previously depicted as villains, he responded, "When you've got more than 2 million people behind bars, I'll fight alongside anybody to change those numbers."...

To allies like Jones, it doesn't matter whether the Kochs are acting in good faith as long as their assistance stands to help the cause.  In a neat illustration of the way this issue crosses partisan lines, the ACLU's campaign against mass incarceration is supported by both the Kochs and liberal financier George Soros's Open Society Foundation.  Anthony Romero, the ACLU's executive director, acknowledged that some of the group's liberal members aren't thrilled about the Koch partnership: "There's always some unhappiness whenever you work with, quote-unquote, the enemy," he told me.  But particularly with Republicans in control of Congress, he said, validation from the likes of the Kochs is the key to moving the issue forward.  "Having the Koch brothers involved fundamentally changes the landscape. It gives legitimacy to this issue as a proper field of inquiry for Republican political leaders," he said.

The Kochs' activism fits within a broader trend on the right. Where once Republicans could reliably be stereotyped as tough-on-crime and Democrats as squishy bleeding hearts, recent years have seen many in the GOP question the old dogma of lock-'em-up, spurred by the party's increasingly libertarian bent and a desire to control spiraling prison costs. The 2012 Republican Party platform discarded its old plank endorsing the War on Drugs for one that emphasized prisoner reentry and rehabilitation; at the 2014 Conservative Political Action Conference, then-Texas Governor Rick Perry headlined a criminal justice panel at which he urged, "Shut prisons down. Save that money." As The Nation noted approvingly, Perry "has become one of the more aggressive prison reformers in the country," and he's been joined by Republican governors or former governors in Pennsylvania, Ohio, and New Jersey....

Holden, the Koch counsel, is a spike-haired Massachusetts native who once worked as a jail guard—seeing youths from his blue-collar neighborhood on the other side of the bars, he says, made a deep impression. He takes issue with the notion that the Kochs only want to pad their own pockets, pointing out that they take many positions "contrary to our short-term economic self-interest."

Some prior related posts on Koch family efforts in support of criminal justice reform:

March 4, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, February 24, 2015

Two notable and timely new reform reports from The Sentencing Project

Via an e-mail from The Sentencing Project (reprinted in part below), I received this summary (with links) to two notable new reports from the group:

[Here are] two new reports from The Sentencing Project documenting changes in criminal justice policy in 2014 and successful advocacy campaign strategies in conservative state environments. The reforms highlighted in these reports represent approaches that lawmakers and advocates can consider to address sentencing policy and collateral consequences at the state level.

The State of Sentencing 2014 highlights policy changes in 30 states and the District of Columbia in both the adult and juvenile justice systems, including:

  • Scaling back sentences for low-level drug offenses

  • Reducing barriers to reentry, including employment restrictions and bans on public assistance

  • Eliminating juvenile life without parole

State Criminal Justice Advocacy in a Conservative Environment documents successful advocacy strategies employed in campaigns in Indiana, Missouri, and Texas. In these states, advocates achieved the following reforms:

  • Reduced enhanced penalties in drug-free zones in Indiana by shrinking the limit of zones from 1,000 feet to 500 feet, and eliminating all zones except those around schools and parks
  • Modified Missouri’s federal lifetime ban on food stamp benefits for persons with felony drug convictions
  • Closed two Texas prison facilities: the Dawson State Jail and the Mineral Wells Pre-Parole Transfer Facility

February 24, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, February 20, 2015

Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?

Long-time readers and most federal sentencing policy gurus know about the long-time discussion of the Smarter Sentencing Act.  The SSA seemingly had lots of bi-partisan support when got through the Senate Judiciary Committee in the last Congress, but the drug warriors helped ensure it did not get any further.

Now we have a new Congress with new leadership in the Senate and, as reported here, a new introduction of a new version of the SSA, the Smarter Sentencing Act of 2015.  In part because new Senate Judiciary Chair Charles Grassley has been a vocal opponent of any significant statutory drug sentencing reform, I am not especially optimistic that the new SSA has a much better chance of passage than the old SSA.  But, as the question in the title of this post highlights, the new SSA appears to have an especially prominent new advocate, as demonstrated by this press release from the office of Senator Ted Cruz tited "Sen. Cruz: Smarter Sentencing Act Is Common Sense." Here is an excerpt from Senator Cruz's remarks last week during the introduction of the new SSA:

The issue that brings us together today is fairness. What brings us together is justice. What brings us together is common sense. This is as diverse and bipartisan array of members of Congress as you will see on any topic and yet we are all unified in saying commonsense reforms need to be enacted to our criminal justice system. Right now today far too many young men, in particular African American young men, find their lives drawn in with the criminal justice system, find themselves subject to sentences of many decades for relatively minor non-violent drug infractions. We’ve seen the impact of these kind of reforms in the states, the states are laboratories of democracy. My home state of Texas implemented similar reforms and from 2005 the state of Texas has seen a 22 percent decrease in crime and a 12 percent decrease in expenditures on criminal justice....

All of us agree, if you have violent criminals, if you have criminals who are using guns, who are using violence, who are dealing drugs to children, the criminal justice system should come down on them like a ton of bricks. But at the same time we need to recognize that young people make mistakes, and we should not live in a world of Le Miserables, where a young man finds his entire future taken away by excessive mandatory minimums.

There surely are issues about which Senator Cruz and I might not always agree (even though were educated around the same time at the same two higher-education institutions). But I completely agree with his view that the Smarter Sentencing Act is a common sense reform seeking to address the real problem that "today far too many young men, in particular African American young men, find their lives drawn in with the criminal justice system [and] find themselves subject to sentences of many decades for relatively minor non-violent drug infractions."

Notably, Senator Cruz in the past has not let GOP establishment figures stop him from being an aggressive and persistent voice for legal reforms he considers important. I am hopeful that Senator Cruz will fight the good fight on the SSA and other sentencing reform measures so as not to let old establishment folks like Senator Grassley keep the SSA and other proposals from coming up for a vote in the Senate.

A few recent and older posts on the "conservative politics" of federal sentencing reform:

February 20, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, February 19, 2015

Still more bipartisan talk (and even more bureaucracy) focused on criminal justice reform

This extended New York Times article, headlined "Unlikely Cause Unites the Left and the Right: Juctice Reform," spotlights that the Grey Lady never gets tired talking about lots of other people talking about the need for criminal justice reforms.  Here is how the piece starts:

Usually bitter adversaries, Koch Industries and the Center for American Progress have found at least one thing they can agree on: The nation’s criminal justice system is broken.

Koch Industries, the conglomerate owned by the conservative Koch brothers, and the center, a Washington-­based liberal issues group, are coming together to back a new organization called the Coalition for Public Safety.  The coalition plans a multi-million­dollar campaign on behalf of emerging proposals to reduce prison populations, overhaul sentencing, reduce recidivism and take on similar initiatives. Other groups from both the left and right — the American Civil Liberties Union, Americans for Tax Reform, the Tea Party-­oriented FreedomWorks — are also part of the coalition, reflecting its unusually bipartisan approach.

The coalition will have initial backing of more than $5 million, with groups also spending independently on their own criminal justice initiatives.  Organizers of the advocacy campaign, which is to be announced on Thursday, consider it to be the largest national effort focused on the strained prison and justice system.  They also view the coalition as a way to show lawmakers in gridlocked Washington that factions with widely divergent views can find ways to work together and arrive at consensus policy solutions.  “We want to both do good policy work and try to improve the system, but also to send the message to politicians that we always ask you to work together, and we are going to lead the way,” said Denis Calabrese, the president of the Laura and John Arnold Foundation, who helped organize the coalition.

For groups traditionally considered opponents, working together has required something of a leap of faith. But they say that they see an opening and are giving the new coalition three years to demonstrate results.

Though I never want to criticize the folks interested in serious criminal justice reform and advocacy, I am not sure what is really need right now is yet another coalition or group advocating in general for reform. What is really needed is people working really hard in the trenches to move courts and legislators who are now standing in the way of significant reforms. I sincerely believe with a lot less money and in a lot less time, empowering and aiding the work of the best folks in the trenches could and should get some serious reforms achieved in a lot less than three years.

February 19, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, February 12, 2015

Cato director explains why "2015 Can be the Year of Criminal Justice Reform"

The quoted portion of the title of this post is the title of this extended commentary by Tim Lynch, who directs the Cato Institute’s Project on Criminal Justice. Here are excerpts from the start and end of the piece along with its major headings: 

Criminal justice reform appears to be one of the hot topics this year. Unlike most other policy areas, where President Obama and Republicans remain at loggerheads, criminal justice reform holds much greater promise since both political parties seem to agree that there are festering problems that need to be addressed.

Let’s explore some of the most pressing topics.

Militarized policing....

Marijuana legalization....

Sentencing reform....

Civil asset forfeiture....

Indigent defense reform....

The political climate for criminal justice reform is superb. Present low crime rates provide space for policymakers who are inclined to address this compelling need. If there is no movement on reform now, we will all look back on 2015 as a lost opportunity.

February 12, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates | Permalink | Comments (2) | TrackBack

Monday, February 09, 2015

"Inside The Koch Campaign To Reform Criminal Justice"

The title of this post is the headline of this new Huffington Post piece that reviews a modern sentencing-reform story that is surely becoming familiar to regular readers of this blog.  Here are highlights from the piece which seem to add a few new elements: 

Koch Industries, Inc., the corporation led by conservative billionaires Charles and David Koch, is holding discussions with a coalition of strange bedfellows to tackle criminal justice reform.

In conversations with people like Sen. Cory Booker (D-N.J.) and organizations like the ACLU, the Koch brothers are homing in on reducing overcriminalization and mass incarceration, as well as reforming practices like civil forfeiture.  Progressives, rather than giving the Kochs the stink eye, are welcoming their efforts.

Koch Industries general counsel and senior vice president Mark Holden told The Huffington Post that he met with Booker and his staff a few weeks ago.  The New Jersey Democrat and Sen. Rand Paul (R-Ky.) are co-sponsoring the REDEEM Act, legislation that would give states incentives to increase the age of criminal responsibility to 18, among other reforms.

"We must reform our criminal justice system. It is an urgency more and more recognized by people across the political spectrum," Booker told HuffPost in an email.  "To make change in Congress and beyond I will work with just about anyone who shares my passion for this mission -- that includes Republican members of Congress and other leaders I've begun to work with like Newt Gingrich, Grover Norquist and Charles Koch's team."...

The Kochs have outlined five pillars for reform: The right not to be prosecuted for accidentally breaking the law; fair treatment under the law; competent and fair representation; mandatory minimum reforms; and restoration of rights.

When Koch Industries leaders talk about criminal justice, they at times sound like bleeding-heart progressives.  Holden, for example, called civil forfeiture practices, where police seize assets from someone accused of a crime, "a huge, grave injustice." He also praised Attorney General Eric Holder for taking a stand against the practice, and worried about the longterm consequences of the U.S. prison system.  "[S]omeone makes a mistake sometimes and it falls on the rest of their life, because they can't get a job, they can't vote, can't get a loan, that type of thing,” he said....

[O]organizations that work on criminal justice reform say they believe the Kochs' efforts are sincere and not monetary. "I think there are some people that worry perhaps the Kochs might be prioritizing things like environmental crime, or crimes more likely to impact white people with means," said Alison Holcomb, the national director of the ACLU’s Campaign to End Mass Incarceration. "My experience so far has been that they are genuinely interested in the issues across the board."

Some prior related posts on Koch family efforts in support of criminal justice reform:

February 9, 2015 in Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 04, 2015

A positive perspective on possible prison reform emerging from Congress

This lengthy new article in The National Journal provides an interesting and informative look at the politics and people at the center of federal sentencing and prison reform discussions. The piece's headlined highlights its themes: "This Is How Justice Reform Can Actually Happen This Year: Chuck Grassley's power will change the dynamics of sentencing reform. But there's still a bipartisan way forward in the Senate." The full piece is a must-read for anyone closely following congressional reform realities, and here is how the article starts:

The rise of Sen. Chuck Grassley to the head of the Judiciary Committee has made a lot criminal-justice reform advocates nervous.

Four months ago, before Republicans took back the Senate, it appeared that reducing mandatory minimums had overcome crucial hurdles.  The Smarter Sentencing Act, which would reduce mandatory minimums for some drug offenders, passed out of committee in January 2014 and attracted a roster of high-profile backers, from former GOP vice presidential nominee Paul Ryan to progressive leader Elizabeth Warren of Massachusetts. Potential 2016 presidential candidates such as Sens. Rand Paul and Ted Cruz had decried mandatory minimums.  Even President Obama and the Koch brothers, who have spent millions against him, agreed the sentencing requirements had to be reduced.

But, like many conservatives who came to power in an era when Republicans branded themselves as the "tough on crime" party, Grassley has made it clear that he sees the steady reduction in violent crime in the United States over the last 30 years as a direct reflection of more-effective policing strategies.  And he believes that mandatory minimum laws that ensure criminals stay locked up have been key to that progress.

Grassley's posture toward mandatory minimums has given some advocates pause. "I do think we can work with him," Sen. Jeff Flake, R-Ariz., a member of the Judiciary Committee, said of Grassley.  "He knows some changes need to be made, but it does influence how far you can go if the chairman stands opposed."

In a Democratic-controlled Congress, many saw a clear path for reducing mandatory minimums.  A handful of vocal GOP supporters have continued to say justice reform should remain a key priority in the new Senate.  But with Grassley in charge, the path forward for criminal-justice reform will likely look very different.

And we may get our first true glimpse of it next week — when GOP Sen. John Cornyn of Texas introduces a rare bill that could actually get through Congress and be signed by the president.  That legislation would be similar to what was known as the Recidivism Reduction and Public Safety Act in the 113th Congress.  That bill was also bipartisan but far less contentious than the Smarter Sentencing Act among the Republican rank-and-file. Even Grassley voted it out of committee last year, where it passed 15 to 2.  Many of the same members are still sitting on the committee with a few GOP additions, including Thom Tillis of North Carolina and David Perdue of Georgia.

The bill next week will focus on transitioning prisoners back into the community after they have served their time. It requires that each inmate undergo a risk assessment to evaluate his or her propensity for recidivism.  Then it allows those deemed medium- and low-risk to earn credits for participating in programs such as job training or substance abuse counseling.  Certain well-behaved and low-risk offenders could then use those credits to serve out the final days of their sentences under some kind of community supervision.

Grassley's office insists that it is early, and no decisions have been made on what bills will make it through the committee.  There is an attorney general to confirm and more on the committee's docket that comes before discussions about far-reaching justice reform.  But, shuffling down the hallways of the Dirksen Senate Office Building in January, Grassley rattled off his top three goals for the committee. "Juvenile-justice reform, patent trolling, and ... prison reform," he said.  "There are some things where there is a pretty good shot of getting some bipartisan agreement."  And, if the Senate GOP's No. 2 introduces the bill, it will make it harder for Grassley to ignore.

February 4, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, February 02, 2015

Highlighting how apathy may help the criminal justice reform cause

This new Slate commentary by Jamelle Bouie spotlights why maybe I should not complain too much about criminal justice problems not getting enough attention from the media and the general public. The piece is headlined "Why Public Apathy Isn’t All Bad: It has actually helped pave the way for significant criminal justice reform," and here are excerpts:

[A]s much as intensity contributes to politics, we shouldn’t give short shrift to its sibling: public apathy. Apathy gets a bad rap, but when you look at its full place in the world of public policy, it’s underrated.

To be clear, apathy’s reputation isn’t undeserved.  Politicians have long used voter disinterest as cover for corrupt behavior.  And on issues toward which voters aren’t attentive — but interest groups are — the public can get shafted. But the same shadows that cloak the worst of our lawmakers can also shield the best of them.  On issues with which the problems are severe and about which voters are indifferent, politicians have a chance to act effectively for the public good without watching their rears.

The best example is criminal justice reform. During the last decade, lawmakers across the country have pushed bold experiments in shrinking prisons and reducing incarcerated populations, unscathed by any kind of public backlash.  In 2010, after two decades of ceaseless prison growth, Texas officials — supported by Gov. Rick Perry — moved to counter increasing costs of prison construction and incarceration with a new regime of treatment and mental health programs to give prosecutors and judges a third option besides jail or parole.  It worked.  The Texas inmate population has dropped from its peak of 173,000 in 2010 to 168,000 in 2013, without any increase in violent or property crime. Recidivism is down, and the state has saved an estimated $3 billion.

You see a similar story in Georgia, where Gov. Nathan Deal has led the state to drastically change its approach to criminal justice. In 2012, lawmakers passed reforms that gave prosecutors non-prison options for adults arrested for minor crimes, and that gave judges more options for drug offenses, with a goal of reserving prison beds for violent offenders. And in 2013 the state passed reforms that would place minor juvenile offenders in social service programs, skipping the criminal justice system entirely....

On crime, in other words, the broad public just isn’t that interested. And as such, there isn’t a strong incentive for “tough on crime” rhetoric, crime-focused politicians, or punitive anti-crime policies.  But for those on the other side of the issue — for politicians who want fewer prisons and less incarceration — there’s an opportunity to push reform without fear of attack. And slowly, lawmakers are taking it.

Thanks in part to public apathy, the country is beginning to make progress on one of our most important problems.  But we shouldn’t get too optimistic.  Bills against asset forfeiture or for flexibility in sentencing are like the first few boards in a game of Ms. Pac-Man — easy to clear if you know what to do.  To tackle the larger problems — overcriminalization, disinvestment in prison alternatives, and robust reintegration for former offenders — you need more: more will, more skill, and more support.  You also need more money beyond the savings you gain from reform.  And in politics, the moment you ask for cash is the moment the public starts to pay attention.

February 2, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, January 31, 2015

Imagining a SuperBowl party with the Koch brothers, Al Franken, Rob Portman, David Keene, Piper Kerman and Van Jones

The silly idea reflected in the title of this post is my effort to put a timely spin on what is becoming an old story: lots of folks from lots of different perspectives are coming together to talk about the need for criminal justice reforms. And, as detailed in this press piece, many of these folks got together this past week at an event. Here are the details:

Only one issue in Washington right now could bring together the Koch brothers’ top lawyer, an environmental activist, the former head of the NRA and Sen. Al Franken.  Criminal justice reform.  In a city best known for dysfunction and discord, the issue has stood out as a rare area of common ground between Democrats and Republicans.

And at a panel on reforming the criminal justice system hosted by the Constitution Project advocacy group on Capitol Hill on Wednesday, the bipartisan array of speakers seemed genuinely nonplussed by the harmony across an otherwise gaping political divide.

Van Jones, the former Obama administration official and liberal commentator, was seated next to Mark Holden, Koch Industries’ general counsel and the face of the conservative mega-donors’ efforts to lower incarceration rates in the country. (The Koch brothers are planning to spend a reported $889 million during the 2016 election cycle, a figure that puts their operation in the same financial ballpark as the two political parties themselves.)

“That should be a headline in itself,” Jones said of he and Holden sitting at the same table. “Cats and dogs sleeping together,” Holden chimed in. “I don’t know about sleeping together,” Jones quipped.

Jones said he hoped politicians would seize on this moment — when crime is down and interest is high — to reform the U.S. penal system so that the country no longer imprisons a higher percentage of its citizens than any other nation.  “This is a time for real comprehensive change,” Jones said. “It’s very, very rare that we have a moment where the stars are aligned in this way.”  He later warmly embraced the Kochs' lawyer.

Lawmakers lined up to promote their criminal justice reform bills at the event, which also included remarks from Piper Kerman, the author whose memoir about her experience in federal prison inspired the Netflix series “Orange Is the New Black.”

Sens. Rob Portman, a Republican, and Al Franken, a Democrat, spoke about a bill they’re reintroducing this year to provide more mental health services to prisoners and to fund special mental health courts that emphasize treatment over doing time. Rep. Jim Sensenbrenner (R-Wis.) said he believes lawmakers should review every federal regulation or law that carries prison time to decide if it’s merited or not. Sen. Cory Booker (D-N.J.), who introduced a bill to expunge nonviolent criminal records of juvenile offenders that he’s co-sponsored with Sen. Rand Paul (R-Ky.), sat with audience members, saying he wanted to listen and learn.

Holden told the crowd that the Koch brothers have been involved in criminal justice reform for more than 10 years, after a few of their employees were prosecuted for violating environmental regulations in Texas in the 1990s.  (The charges against the employees were later dropped, and Koch Industries settled with the government.)  The Kochs have since invested in providing defense lawyers for poor people and other reform efforts, and have signaled it will be a major policy priority this year.  Their support could lend momentum to the bipartisan reform bills that have already been introduced. “What we should be using the prison system for is people we’re afraid of,” Holden said, not for nonviolent offenders.

I am always pleased to see talk of significant criminal justice reform making headlines. But as I have often said before (and as I likely will say again a lot in the months ahead), "talking the talk" about criminal justice reform is always much easier than "walking the walk" especially at the federal level.  So, if you come upon this notable cast of characters at your SuperBowl party this weekend, you should find it much easier to talk about criminal justice reform than to predict when all this talk will result in significant legislative action.

We are coming on five years since the libertarian/small-government wing of the GOP began talking a lot about significant sentencing reforms (right after the 2010 election cycle).  And yet, circa 2015, we still have not yet seen any proposals for "real comprehensive change" making the rounds on Capitol Hill.  Indeed, even (much-too) small proposed changes reflected in bills like the Smarter Sentencing Act have gained precious little momentum.

I am cautiously hopeful that the involvement of major capitalists like the Kochs will help fuel the work of major activists to turn all the talk into real action. But, ever the realistic (though optimistic) cynic, I am not expecting Congress to enact any truly landmark criminal justice reform legislation anytime soon.

January 31, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, January 28, 2015

"Lynch to Cast Herself as Departure From Holder in Bid to Be Attorney General"

The title of this post is the headline of this New York Times article previewing the start today of hearings concerning President Obama's nomination for Eric Holder's replacement as Attorney General. Here is how the article starts:

Loretta E. Lynch on Wednesday will cast herself as an apolitical career prosecutor who is a departure from Eric H. Holder Jr. when she faces a new Republican-­controlled Judiciary Committee that includes some of the administration’s fiercest critics in Congress.

“I look forward to fostering a new and improved relationship with this committee, the United States Senate, and the entire United States Congress — a relationship based on mutual respect and constitutional balance,” Ms. Lynch said in testimony prepared for the confirmation hearing.  “Ultimately, I know we all share the same goal and commitment: to protect and serve the American people.”

If she is confirmed, Ms. Lynch would be the nation’s first African-American woman to serve as attorney general.  Her allies have sought to differentiate her from Mr. Holder, an outspoken liberal voice in the administration who clashed frequently with Republicans who accused him of politicizing the office.

In particular, Ms. Lynch is expected to face tough questioning about her opinion of the president’s decision to unilaterally ease the threat of deportation for millions of unauthorized immigrants.  Mr. Holder approved the legal justification for that action, enraging some Republicans.

In these hearings, I am expecting some Senators to ask some questions about sentencing reform and federal marijuana policy. I hope to be able to provide some coverage and commentary about what gets asked and what nominee-Lynch says in future posts.

Prior related posts:

January 28, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, January 26, 2015

Shouldn't true fiscal conservatives question a federal program with 600% recent spending growth?

PSPP_Fed_Growth_FS_fig1The question in the title of this post is part of my reaction to this new fact sheet released by the Pew Public Safety Performance Project. The Pew document is titled "Growth in Federal Prison System Exceeds States': Federal imprisonment rate, taxpayer costs soar as states curtail expansion, protect public safety," and here is how it starts (footnoted omitted):

Between 1980 and 2013, the federal imprisonment rate increased 518 percent, from 11 inmates for every 100,000 U.S. residents to 68.  During the same period, annual spending on the federal prison system rose 595 percent, from $970 million to more than $6.7 billion in inflation-adjusted dollars.  Prison expenditures grew from 14 percent of the Justice Department’s total outlays to 23 percent, increasingly competing for resources with law enforcement and national security programs.

States, like the federal government, recorded sharp increases in incarceration and corrections costs over the past three decades.  However, between 2007 and 2013, many states made research-driven policy changes to control prison growth, reduce recidivism, and contain costs. While the federal imprisonment rate continued to rise during that period, the state rate declined.

Folks like Bill Otis and some other defenders of the modern state of the modern federal criminal justice system are often suspect when I (and others like Senator Rand Paul and Grover Norquist) assert that a true commitment to conservative values should prompt serious questions about the size and operation of federal criminal justice system.  And I fully understand how folks committed to certain social conservative values, and who also believe the federal government should be actively promoting certain social values, can continue to support strongly the federal war on drugs and ever-increasing federal expenditures in service to promoting certain social values.

But, as the title of this post suggests, I do not understand how anyone who is truly committed to fiscal conservative values is not now compelled to examine whether it is wise to keep spending/borrowing more and more federal monies to keep growing the federal prison system.  As this Pew document and many others have highlighted, a significant number of states have been able to reduce its spending on incarceration over the last decade without any obvious harmful impact on public safety.  My advocacy for federal sentencing reform is based largely on the hope and belief that the feds can now do the same.

January 26, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, January 25, 2015

"The Politics of Mercy: Is clemency still the third rail? We may find out."

The title of this post is the headline of this lengthy piece by Ken Armstrong at The Marshall Project. Here are excerpts:

For decades, the conventional wisdom has been that clemency equals danger. Any governor who grants pardons or commutations to convicted felons invites political risk – with no potential benefit. In Massachusetts, Mitt Romney signed not a single pardon, a record he later touted.

But when [Robert] Ehrlich was governor of Maryland from 2003 to 2007, he made clemency a priority, dedicating lawyers to screen requests and meeting monthly with senior aides to review applications.  In the end, Ehrlich granted clemency more than 200 times. And should he run for president, he plans to hold up that record as a signature achievement, arguing that it shows he is someone who leads instead of cowers.... The GOP field could also include other candidates who have resisted convention, such as Ohio Gov. John Kasich, who has commuted the death sentences of five condemned inmates since 2011.

Is it possible that a willingness to grant clemency might now offer some political benefit? “I would give it a qualified yes,” says P.S. Ruckman Jr., a political science professor at Rock Valley College in Rockford, Ill., and editor of the Pardon Power blog. “I think increasingly there’s a sense that it’s a nebulous plus if you at least appear to be someone who takes the Constitution seriously and isn’t stuck in the 1980s, pushing the Willie Horton button.”...

Ehrlich says there has since been a cultural shift, with growing concern about harsh sentencing laws — for example, mandatory minimums — and a realization that “the drug epidemic is more appropriately viewed as a health issue than as a criminal justice issue.” The country’s booming prison population “is impacting so many people, so many families, so many careers, so many parents,” Ehrlich says.  “It crosses every line.”...

Margaret Love, who served as U.S. Pardon Attorney under presidents Clinton and George H.W. Bush, says,  “This is a function of the justice system that should not be subject to these political whims.  I get sort of annoyed whenever I see it treated as a sort of holiday gift-giving. That’s not what it is. It’s part of the system, or at least ought to be.”

On Thursday, Love wrote a post on the website for the Collateral Consequences Resource Center, noting the symbolism of Virginia Gov. Terry McAuliffe’s recent summoning of the media to watch him sign a conditional pardon for an autistic inmate.  “There may be no more telling sign that the ‘soft on crime’ label is losing its power over elected officials than McAuliffe’s decision to publicize this bedside act of mercy,” she wrote.

In the next campaign, no candidate would test the power of that label more than Mike Huckabee, who this month left his Fox News show to consider running.  In his decade as Arkansas governor, Huckabee granted clemency more than 1,000 times.  On Thursday, BuzzFeed published an unaired ad that Mitt Romney’s campaign had prepared during the 2008 race, tying Huckabee to the early release of a serial rapist who, once freed, committed murder.  Romney’s campaign ultimately balked at using the ad.

Since then, Huckabee has become an even more inviting target.  In 2009, in Washington state, a former Arkansas inmate named Maurice Clemmons shot and killed four police officers in a coffee shop.  Nine years before, Huckabee had commuted Clemmons’s prison sentence, making him eligible for parole.

It might seem that advocates for clemency would cringe at the prospect of a Huckabee candidacy in 2016, given his vulnerability to Willie Horton-type attacks.  But Mark Osler, a law professor at the University of St. Thomas in Minneapolis, says, “I’ve told people for the last few years that one of the best things for clemency would be for Huckabee to run.”

What Osler and others see in Huckabee is an opportunity for an open discussion of what clemency is – and is not. “It does not lead to perfection, in the same way the jury system does not lead to perfection,” Osler says.  “With clemency you have an independent moral actor who is unpredictable — and that’s the person receiving clemency.  You can never guarantee that that person will not commit another crime.”

Clemency advocates believe Huckabee, an ordained minister, can make a persuasive case for mercy, particularly given how he links clemency to his Christian faith and to his belief in what he calls “restorative justice.”...

Ehrlich, unlike Huckabee, has not had any grants of mercy come back to haunt. And when talking about his embrace of clemency, he’s found support among dramatically different audiences, from a dinner co-hosted by the Charles Koch Foundation to a forum sponsored by George Soros’s Open Society Foundations.  “So it’s hard right and hard left, but the audiences have generally the same view on this issue,” he says.  In a speech three years ago, Ehrlich boiled his motives for making clemency a priority down to this: “Because it's the right thing to do. It's really not that complicated.”...

The field of potential presidential candidates also includes governors at the opposite end of this spectrum.  Wisconsin Gov. Scott Walker, a Republican, has refused to grant any pardons, portraying them as an undermining of the criminal justice system, rather than as a way to recognize someone’s rehabilitation or help check an unduly harsh law or ill-conceived prosecution.  To Ruckman, Walker is “on the wrong side of history. He’s a dinosaur on this one.”

January 25, 2015 in Clemency and Pardons, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, January 15, 2015

Political scientist highlights how Ted Kennedy and Joe Biden helped produce modern mass incarcertation

Murakawa2014I first spotlighted in this prior post the fascinating new book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America.  I now see that The Marshall Project has published this great piece by Dana Goldstein with a brief overview of the book and a potent Q&A with its author.  Here is how the piece starts and some of my favorite excerpts:

Are liberals as responsible for the prison boom as conservatives?

That’s the thesis of a new book, The First Civil Right: How Liberals Built Prison America.  It has begun to attract reviews and debate from across the political spectrum.  Princeton political scientist Naomi Murakawa seeks to upend assumptions about the politics of crime and punishment.  She argues that conservatives, playing the politics of racial animus, helped quadruple the incarceration rate, but they were not alone.  Rather, she points to “liberal law and order” ideas first expressed by Harry Truman, Lyndon B. Johnson, and even the NAACP.  These liberals believed that federalizing crime policy would “professionalize” the justice system and prevent racial bias.  But in fact, federal funding and federal oversight of courts, sentencing, and policing helped build what Murakawa calls a “carceral state” that disproportionately punishes people of color.

Murakawa and I talked about her book and its implications for criminal justice reform today, especially the #BlackLivesMatter movement and the Obama administration’s policing reforms....

Q: Your book aims to expose the liberal roots of the prison boom.  But Democrats did not create the Willie Horton ad.  It was Richard Nixon who expanded the drug war by claiming that drug use was “the common denominator” that explained lawlessness among hippies, inner-city blacks, and antiwar protestors.  Is it important to distinguish between the different motives of conservatives and liberals?

A: I think it’s important to stay focused on outcomes in terms of how they affect people’s day-to-day lives. I do discount stated intentions quite a lot.  I do this in part because I have a feeling that for those being sentenced under punitive sentencing guidelines it doesn’t make a difference to them that Sen. Ted Kennedy was liberal and overall had a good voting record.  It doesn’t make the brutality of living in a cage any less violent.

Kennedy promulgated this idea of sentencing guidelines.  It was his baby.  He ushered it through the Senate at first as guidelines that were rigid but would have been somewhat anti-carceral.  They became guidelines that were rigid and more carceral.  And Reagan signed this legislation, in 1984. Kennedy had the rest of his life to say, “The sentencing guidelines have had a terrible impact. This is not what I meant.”  Not once did he introduce legislation to reform the guidelines.  Not once did he apologize or try to change it.  When I look at that kind of history, that’s where I feel like it’s fair to hold liberals responsible.

Q: Joe Biden played an interesting role in what you call Democrats “upping the ante” to outbid conservatives on being tough on crime.  Can you talk about Biden’s history?

A:  He was really pivotal in leading the Senate in worsening all of the provisions of Clinton's 1994 Omnibus Crime Act, which expanded the death penalty and created new mandatory minimum sentences.  Biden was truly a leader and worked very closely and very happily with conservative senators just to bid up and up and up.  There’s a tendency now to talk about Joe Biden as the sort of affable if inappropriate uncle, as loudmouth and silly.  But he’s actually done really deeply disturbing, dangerous reforms that have made the criminal justice system more lethal and just bigger.

That 1994 act is overwhelmingly, incredibly punitive.  One of the ways Biden brokered it was by making it such a huge bill that it had something for everyone.  It provided political coverage for everyone who wanted to vote for it.  There were certain liberal members who might have been opposed to mandatory minimums, but they were also getting the Violence Against Women Act.  The Congressional Black Caucus opposed the death penalty expansions, but the bill also did include some modest money for rehabilitation programs. Everyone got goodies through the criminal justice system.

Prior related post:

January 15, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, January 06, 2015

GOP apparently eager to have Eric Holder as AG for at least one more month

The (slightly) tongue-in-cheek title of this post is my reaction to the news reported in "this notable NPR report, titled "Senate Slow To Schedule Hearings For Attorney General Nominee."  In the piece, Carrie Johnson reports that Democrats have been pushing for confirmation hearings ASAP for Attorney General nominee Lorreta Lynch, but new GOP Judiciary Chair Charles Grassley has indicated that these hearings will not take place before the last week in January  at the earliest.

I am very eager for the Lynch hearings because they should provide an important window into what both the GOP-controlled Congress and the Obama Administration are thinking about on federal criminal justice issues for the next two years.  But I suspect the GOP is feeling a bit forced to take a go slow approach on how to best approach (and attack) nominee Lynch and Prez Obama on these fronts, in part because the GOP has real internal divisions on these issues and in part because racial issues and divides are especially salient in criminal justice reform discussions these days.  

So, because AG Eric Holder remains in his position until his successor is confirmed, the GOP Senate is right now functionally extending his term as the nation's top prosecutor and lawyer. 

January 6, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, January 05, 2015

"Is Obama Finally Ready To Dial Back The War On Drugs?"

Meme1The title of this post is the headline of this lengthy Forbes piece by Jacob Sullum, which provides preview of sorts of of some of the biggest federal criminal justice issues to keep an eye on in the year to come. The piece merits a full read, and here are excerpts:

Some critics of the war on drugs — a crusade that Obama had declared “an utter failure” in 2004 — predicted that he would improve in his second term.  Safely re­elected, he would not have to worry that looking soft on drugs would cost him votes, and he would finally act on his avowed belief that the war on drugs is unjust and ineffective.  As Obama embarks on the third year of his second term, it looks like the optimists were partially right, although much hinges on what he does during the next two years.  Here are some of the ways in which Obama has begun to deliver on his promises of a more rational, less punitive approach to psychoactive substances:

Marijuana Legalization. Although the federal government cannot stop states from legalizing marijuana, it can make trouble for the ones that do by targeting state­licensed growers and retailers.  Under a policy announced in August 2013, the Justice Department has declined to do so, reserving its resources for cannabis operations that violate state law or implicate “federal law enforcement priorities.”...

Federal Marijuana Ban.... Contrary to the impression left by the president, the executive branch has the authority to reschedule marijuana without new legislation from Congress. In September, a few days before announcing that he planned to step down soon, Holder said whether marijuana belongs in the same category as heroin is “certainly a question that we need to ask ourselves.” Since the Controlled Substances Act empowers Holder to reclassify marijuana, it would have been nice if he had asked that question a little sooner. Still, Holder was willing to publicly question marijuana’s Schedule I status, something no sitting attorney general had done before.

Sentencing Reform.  Obama supports the Smarter Sentencing Act, which would make the 2010 crack penalty changes retroactive, cut the mandatory minimums for certain drug offenses in half, and loosen the criteria for the “safety valve” that allows some defendants to escape mandatory minimums.  Beginning last year, Holder has repeatedly criticized our criminal justice system as excessively harsh. Under a new charging policy he established last year, hundreds of drug offenders could avoid mandatory minimums each year....

Clemency.  After a pitiful performance in his first term, Obama has signaled a new openness to clemency petitions.  Last April an unnamed “senior administration official” told Yahoo News the administration’s new clemency guidelines could result in “hundreds, perhaps thousands,” of commutations.  Obama’s total so far, counting eight commutations announced a few weeks ago, is just 18, but he still has two years to go....

A few months ago, Obama chose former ACLU attorney Vanita Gupta, a passionate critic of the war on drugs who emphasizes its disproportionate racial impact (a theme Obama and Holder also have taken up), to head the Justice Department’s Civil Rights Division.  A year before her appointment, Gupta had criticized Holder’s moves on drug sentencing as an inadequate response to mass incarceration.  The previous month, she had endorsed marijuana legalization. The next two years will show whether Gupta’s appointment is a sop to disappointed Obama supporters or a signal of bolder steps to come.

If Obama actually uses his clemency power to free thousands, or even hundreds, of drug war prisoners, that would be historically unprecedented, and it would go a long way toward making up for his initial reticence.  He could help even more people by backing sentencing reform, which has attracted bipartisan support in Congress.  And having announced that states should be free to experiment with marijuana legalization, he could declare the experiment a success....

If none of those things happens, Obama’s most significant drug policy accomplishment may be letting states go their own way on marijuana legalization.  Even if our next president is a Republican drug warrior, he will have a hard time reversing that decision, especially given the GOP’s lip service to federalism.

This piece reviews some important basics, though hard-core sentencing fans know that there is a lot more the Obama Administration could be doing to radically reshape the battlefield in the modern federal drug war.

On the marijuana front, for example, DOJ could (and I think should) play an significant role defending Colorado as it gears up a response to the recent Supreme Court suit brought Nebraska and Oklahoma attacking its marijuana reform efforts. In addition, DOJ could (and I think should) be willing to interpret broadly the recent provisions enacted by Congress precluding it from using funds to interfere with state medical marijuana reform efforts.

On the broad drug war front, Prez Obama and DOJ could not only support the Smarter Sentencing Act but even try to give renewed life to the Justice Safety Valve Act. The JSVA, which Senator Rand Paul introduced and robustly promoted, would effectively reform the operation of all mandatory minimum sentencing provisions. Also Prez Obama and DOJ, especially in light of renewed concerns about racial biases in criminal justice systems, could (and I think should) return to the issue of crack sentencing reform. Specifically, given the apparent success of the Fair Sentencing Act of 2010, which only reduced the crack-powder disparity from the ridiculous 100-1 ratio to a ghastly 18-1, the Prez ought to get behind what I would call the Fully Fair Sentencing Act to eliminate any and all crack-powder sentencing disparity completely.

January 5, 2015 in Clemency and Pardons, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, December 12, 2014

Federal task force on corrections getting geared up for (big?) work in 2015

Logo5As effectively reported in this Crime Report piece, earlier this week the members of a "congressionally mandated task force on the federal prison system" were announced.  Here is the context for this notable development:

[The task force is now] headed by a bipartisan duo of former House members, Republican J. C. Watts of Oklahoma and Democrat Alan Mollohan of West Virginia.  They are being be joined by seven other experts in a yearlong study that many analysts hope will result in agreement on ways to cut the prison population.

There were 212,438 federal inmates last week, a total that has jumped from about 136,000 since the turn of the century -- even though crime rates have steadily fallen. (The federal inmate total exceeded 218,000 two years ago; it has shrunk as the Obama administration has reduced the terms of some prisoners serving time for low-level drug offenses.)...

Last month, Justice's Inspector General, Michael Horowitz, said that the Bureau of Prisons budget totals $6.9 billion and accounts for about 25 percent of the department’s "discretionary" budget, which means that prison spending hampers the DOJ's "ability to make other public safety investments."

The new task force is named for the late Chuck Colson, the former aide to President Richard Nixon who served a 7-month prison term in 1974 for obstruction of justice in the Watergate scandal and then became a corrections reformer, founding the Prison Fellowship. Colson died in 2012.  Retiring Rep. Frank Wolf (R-Va.), chairman of the committee that reviews Justice Department appropriations, successfully pushed for the task force in recent years while Congress was unable to agree on any major legal changes that would affect the federal inmate total.

Watts, who will chair the panel, served in the House from 1995 to 2003. When he was elected, he was one of only two African-American Republicans in the House.  He is a member of the conservative justice-reform group Right on Crime.  Last summer, in an article in the Tulsa World on prison reform in Oklahoma, Watts wrote that, "for nonviolent offenders, watching television and receiving 'three hots and a cot' in prison does far less to advance personal responsibility than paying restitution to the victim, performing community service, holding a job and paying child support."

Mollohan, who serve as vice chair, was Wolf's predecessor as the House's chief Justice Department appropriator when the Democrats controlled the House.  Mollohan has presided over many hearings on corrections issues.  In 2012, he co-authored an op-ed article with David Keene, former chairman of the American Conservative Union, declaring that, "Instead of throwing good money after bad, Congress should follow the example of ... states and take steps to curb federal prison population growth."...

The task force will hold the first of five meetings on January 27 in Washington, D.C. Its official mandate is to "identify the drivers of federal prison population growth and increasing corrections costs; evaluate policy options to address the drivers and identify recommendations; and prepare and submit a final report in December 2015 with findings, conclusions, policy recommendations, and legislative changes for consideration by Congress, the Attorney General, and the President."

The Urban Institute and the Center for Effective Public Policy will provide "research, analysis, strategic guidance and logistical support" for the task force under an agreement with the Justice Department's Bureau of Justice Assistance.   A year ago, the Urban Institute published a study titled "Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System," that might be something of a blueprint for the Colson group....

Several members of Congress, notably Senators Rand Paul (R-KY) and Cory Booker (D-NJ), have introduced proposals that could lead to reductions in the federal prison population, but it is not clear that any will be enacted while the Colson task force is conducting its study.

In any case, the task force's final report is likely to include recommendations that will go beyond any bills that might be approved in the next year.  The group's eventual proposals may include some that require Congressional approval and others that the Obama administration could put into effect by executive order.

This new Charles Colson Task Force on Federal Corrections rolled out this website, which I am hopeful over time might become a source of new research and data about the federal criminal justice system.  And though I tend to be somewhat cynical and pessimistic about what task forces can really achieve, I am hopeful and optimistic that this group will be an effective and important contributor to on-going federal sentencing reform efforts.

December 12, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, December 11, 2014

Notable new reporting on "tough-on-sex-offenders" rhetoric in recent judicial campaigns

The Marshall Project has this interesting new review of the most recent election cycle headlined "Trial By Cash: Judicial elections have gotten ugly. That’s bad news for defendants." Here is how it gets started:

In this year’s battle for the governorship of Arkansas, criminal justice reform was front and center. The Republican victor, Asa Hutchinson, a former federal prosecutor and DEA administrator, promised to combat prison overcrowding and called out “over-aggressive prosecutors who do not use common sense.”  His Democratic challenger, Mike Ross, advocated lighter sentences for nonviolent offenders and more emphasis on rehabilitation. Neither candidate deployed the fear-mongering attack advertisements that have been a campaign-season staple for decades.

The race for an open seat on the Arkansas Supreme Court seat was another matter.  One outside group's campaign ad praised Judge Robin Wynne of the state court of appeals for “refusing to allow technicalities to overturn convictions.”  Another attacked his primary opponent, defense attorney Tim Cullen, by claiming he had called child pornography “a victimless crime.”  Over eerie black-and-white footage of an empty playground, a woman’s voice responded to the statement (a distortion of Cullen's defense brief for a single case), intoning: “Tell that to the thousands of victims robbed of their childhood.” Wynne won.

If there is a growing bipartisan consensus that America locks up too many people for too long, there is little indication that anyone spending money on judicial elections shares the concern.  The real scourge of American justice, these campaigns seem to suggest, is the rampant coddling of child molesters by judges up for re-election.  “WHY SO LENIENT?” one ad demanded, attacking an incumbent state justice in Illinois.  A similar commercial in North Carolina cut from an image of children pedaling tricycles to one of inmates pacing in their cells, and declared that a justice up for re-election “took the side of convicted molesters.”

Judicial races once were largely polite, low-budget affairs.  But in the 1990s, business and political groups began to focus on these elections as an important (and often cost-effective) path to influencing policy and regulation.  Since then, judicial campaigns have come to look more like any other political circus: rallies, political consultants, attack ads, and a flood of campaign cash.  As of Nov. 5, election watchers at the Brennan Center, a liberal think tank that tracks legal issues, estimated that at least $13.8 million had been spent on TV advertising for state supreme court elections nationwide in 2014 — up from $12.2 million in the last midterm election in 2010.  

The funders of these campaigns aren’t generally motivated by a desire to lock up criminals.  In fact, some of this year’s big donors to organizations running tough-on-crime campaigns — including the conservative philanthropists Charles and David Koch — have simultaneously backed so-called “smart-on-crime” reform efforts aimed at shortening mandatory sentences and reducing prison populations.  But fear works, election strategists believe.  Why run on what really matters to your funders — like tort reform or deregulation — when you can run against paroling pedophiles?

December 11, 2014 in Elections and sentencing issues in political debates, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, December 08, 2014

Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform

Today's must-read for all sentencing fans is this lengthy new post by Bill Otis, amusingly titled "Should I Feel Lonely?".  The piece is a fun read in part because Bill is an effective writer and advocate, but it is a must read because it highlights that (1) while many in the media now struggle to find pundits other than Bill to speak actively and vocally in support of severe sentencing laws and mass incarceration, (2) efforts in Congress to significantly reform federal sentencing laws and "on the ground" developments to reduce incarceration levels are still failing to gain much traction.

I cannot do the Bill's full post justice in a brief excerpt, but here is a taste of what one can find by clicking through here:

Not to worry -- this post is not psychobabble about my feelings.  It's about a question I was asked by two journalists with whom I spoke recently.

The two were Ms. Carrie Johnson of NPR and Mr. Mark Obbie, a writer for Slate. The subject of their interviews was sentencing reform.  Both Ms. Johnson and Mr. Obbie were cordial, well-informed, thoroughly pleasant, and -- most important for journalists -- curious.

Each asked me the same question: Whether, as an opponent of sentencing reform, I feel lonely? I told them I don't.

Their question was perfectly natural. Almost everything one sees nowadays about the subject of sentencing sings the same tune -- tough sentencing might have been needed at one point, but we've gone too far; momentum has swung toward "smart sentencing;" reducing the prison population (to cut back on costs if for no other reason) is the wave of both the present and the future; and that the newly-ascendant Republican Party will lead the way through such figures as Sens. Mike Lee and Rand Paul.

But the mantra leaves something out. That would be the part of the country outside the Beltway (and outside Boston, Berkeley, New York, Seattle and a few other cities). In other words, what it leaves out is the United States.

The omission of Main Street America from the assessment about where the country is going would seem odd to most people, but for those of us, like me, who live inside the Beltway and work in academia, it's no surprise.  The liberal bubble is big. It's also, for the most part, impenetrable.

And it's one more thing -- wrong.

If one wants to know the state of play with "smart sentencing," and the Smarter Sentencing Act in particular, there might be a couple of places to look outside the editorial pages of the Washington Post and Mother Jones.  One might look, for example, to what actually happened in the last Congress, what's likely to happen in the next one, and what imprisonment trends have been over the last several years....

[T]there are some prominent people in the Republican Party on board with "sentencing reform."  But the great majority of Republicans, and the center of the Party, are not being fooled.  The much lower crime that increased incarceration helped produce are both wise policy for the country and good politics for Republicans....

So to return to my first question: Although I am decidedly out-of-step with my learned colleagues inside the Beltway, and despite all the puff pieces in the press running in the other direction, I don't feel lonely in opposing the more-crime-faster proposals marketing themselves as "sentencing reform."  Both the most recent statistics, and the most recent election, show that the American people know better than to cash in a system we know works for one we know fails.

There is much to discuss in Bill's important assessment of the current state of sentencing reform. But I have emphasized the very last phrase because I think it lacks demographic nuance based on the mostly older (and not-too-diverse) "bubble" that I suspect Bill mostly travels in.

Bill surely seems correct that an older (and mostly white) population of voters and political leaders are reasonably content with the sentencing/incarceration status quo, and that these voters and leaders still have considerable control over the policies and practices of the Republican party (as well as, for that matter, the Democratic party).  Bill stresses in his post, for example, that we do not hear much talk of sentencing reform coming from "Mitch McConnell, John Boehner, Chuck Grassley (the incoming Chairman of SJC), or Bob Goodlatte (the once-and-future Chairman of HJC) [or] Michael Mukasey."  Notably, everyone on that list is well over 60 years old, and they have all succeeded politically with "tough on crime" rhetoric and policies.

But as a new generation of GOP leaders emerge who are much younger (even though they are still mostly white), we are seeing growing concern for and focus on sentencing reform.  Leading GOP Governors from Chris Christie to Rick Perry, and leading GOP Senators from Rand Paul to Mike Lee, and leading GOP Reps from Paul Ryan to Jason Chaffetz, all have talked up sentencing reform in recent years.  And while Bill's list of older GOP leaders will control GOP policies and politics for the next few years, the younger leaders already on record supporting sentencing reform are likely to control GOP policies and politics for the subsequent few decades.

Turning from political leaders to voters, we see the same basic dynamics in play in recent election seasons.  According to polls and other sources, older and whiter voters seem much more wary about any significant changes to sentencing laws or drug laws.  But younger voters and people of color are much more open and eager to support significant sentencing and drug law reform as represented by the passage of Prop 47 and prior three-strikes reform in California and by initiatives for marijuana legalization in an array of states.

(Notably, these generational and demographic realities concerning sentencing reform are not only a  GOP story.  Older and whiter Democrats — from the Clintons to Joe Biden to Harry Reid to Nancy Pelosi to even Jerry Brown — have largely been stuck in political thinking of the 1990s and slow to warm to advocating for significant sentencing reform.  But if and when younger and more diverse voices continue to emerge on the Democratic side of the aisle, we should expect even more liberal advocacy for the kinds of criminal justice reforms championed by the Obama Administration rather than a return to the toughness championed throughout the Clinton Administration.)

Finally, and to give Bill still more credit for his analysis, despite generational and demographic shifts and divides on these matters, I agree that the future of significant sentencing reform is quite uncertain and will turn greatly on short-term and long-term assessments of "what really works."   Americans are a pragmatic people who will always move away from criminial justice policies shown or felt not to be really working.  That is why, I believe, alcohol Prohibition failed even though it had constitutional gravitas and also why we moved away from a purely rehabilitation model of sentencing and corrections through the 1970s and 1980s.  

Now we are seeing a push back on the modern drug war and mass incarceration mostly from younger folks and people of color have come to conclude that these policies are not working for their interests abd communties.  But there are still a whole lot of folks in power (particularly those who are older and whiter like Bill) who still see more a lot more good than bad from the sentencing and mass incarceration status quo.  Whether and how these competing groups views as to  "what really works" unfold and compete in the coming years will determine whether sentencing and incarceration policies in the US circa 2050 look more like they did in 2000 or in 1950. 

December 8, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, November 18, 2014

"Criminal Sentencing Reform: A Conversation among Conservatives"

Thanks to this post by Bill Otis at Crime & Consequences, I see that the Federalist Society recent National Convention included a panel discussion on sentencing reform, which can now be watched in full via YouTube at this link.  Here is how the discussion is described along with its participants:

Although prison populations at the federal level have very recently declined for the first time in decades, prisoner population at the state level rose.  The cost of crime, some that can be measured and some that are impossible to measure, is undoubtedly high, but so too is the cost of incarceration.  Are we striking the right balance in length of sentences?  And what is the proper balance between latitude and sentencing guidelines for judges?  Do the answers to these questions differ for the state versus the federal criminal justice system?

The Federalist Society's Criminal Law & Procedure Practice Group presented this panel on "Criminal Sentencing Reform: A Conversation among Conservatives" on Friday, November 14, during the 2014 National Lawyers Convention.

For a host of reasons, I am very pleased and impressed that the Federalist Society brought together a bunch of leading conservatives with various viewpoints to discuss these issues at their National Lawyers Convention. (It would have been nice to have had more than a single panelist who was not a former senior official with the Bush Administration's Justice Department, but I suspect it might be hard to find many conservatives who know a lot about sentencing who were not part of the Bush Administration's Justice Department.)

November 18, 2014 in Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, November 08, 2014

Prez Obama selects Loretta Lynch to replace Eric Holder as US Attorney General

This brief press release from the White House Friday afternoon made official that it was President Obama's "intent to nominate U.S. Attorney Loretta Lynch to be the Attorney General of the United States."  This lengthy Politico article, headlined "Lame duck looms over Lynch confirmation," highlights some politics dynamics surrounding this decision, and closes with a substantive point I care most about:

President Barack Obama will nominate Loretta Lynch to be the new attorney general on Saturday, setting up what could prove the first major post-midterms Senate showdown.

Obama will call for Lynch to be confirmed as soon as possible, but White House aides say he’ll defer to Senate leaders on whether to press ahead with a vote during the coming lame duck session, or to wait until next year, when the Republicans will officially be in the majority.

Senior Democratic aides, meanwhile, said no final decision on timing has been made, but they are strongly leaning towards moving in the lame duck.  A confirmation vote could be used as leverage in other deals the White House and leaders are seeking in the lame duck.

Incoming Senate Majority Leader Mitch McConnell (R-Ky.), however, made clear that he’s completely opposed, issuing a statement Friday evening promising “fair consideration,” but that Lynch’s “nomination should be considered in the new Congress through regular order.”

The question is a significant one — there’s precedent in President George W. Bush pushing through Michael Mukasey’s nomination in a lame duck.  But at the outset of what’s supposed to be a new effort toward cooperation, Obama and Senate Democrats would be doing the exact opposite by moving confirming such a senior Cabinet official in between the midterms and the Republican takeover of the majority.

That could give Republicans an easy excuse to point to for blame on future gridlock.  But by waiting until the new GOP members are sworn in, Obama would risk not getting his choice — or any choice — confirmed for the job.

Lynch, a United States attorney from New York, has kept a low profile, but has quietly been in top consideration for weeks at the White House. Lynch would be the second woman in the post, and the second African American, following Holder.  That could make opposition from the Republican Senate more politically difficult, especially as she’s been previously confirmed by acclimation twice previously.

A career prosecutor who’s been confirmed twice by the Senate to one of the most prominent U.S. attorney positions, Lynch has experience with many of the major issues that a new attorney general would confront — including terrorism and financial crimes. She does not have a deep personal relationships with Obama or his close aides, or a resonance with the Democratic base eager to see the president pick fights more post-midterms.

Sen. Patrick Leahy (D-Vt.), the outgoing Judiciary Committee chairman, issued a statement praising Lynch’s selection, but made no firm commitment on timing.  “I have spoken with the President about the need to confirm our next attorney general in a reasonable time period, and I look forward to beginning that process,” Leahy said.

Sen. Chuck Grassley (R-Iowa), who’ll head the Judiciary Committee when Republicans take over, said he was generally supportive of Lynch’s nomination but said he was looking forward to learning more about her.  “As we move forward with the confirmation process, I have every confidence that Ms. Lynch will receive a very fair, but thorough, vetting by the Judiciary Committee. U.S. Attorneys are rarely elevated directly to this position, so I look forward to learning more about her, how she will interact with Congress, and how she proposes to lead the department,” Grassley said.  “I’m hopeful that her tenure, if confirmed, will restore confidence in the Attorney General as a politically independent voice for the American people.”...

And timing isn’t the only problem Lynch would face. Sen. Jeff Sessions’ office sent out a reminder to reporters Friday of recent comments by Sens. Sessions, McConnell, Ted Cruz, Mike Lee and Rand Paul all saying that any nominee for attorney general would have to disavow Obama’s plan to provide amnesty to certain illegal immigrants through executive action. Obama has said repeatedly, including at his post-election press conference Wednesday, that he will go forward with the immigration reform executive actions before the year, unless Congress passes an immigration reform bill....

Obama, White House aides have said, sees the next attorney general as being a key figure in helping him complete several issues he sees as fundamental to the legal legacy he wants, including sentencing reform and figuring out a solution to closing the detention center at Guantanamo Bay.

I am very pleased and excited by this news for many reasons, particularly because I think the selection of Lynch at least indirectly suggests that Prez Obama is more interested in moving forward with sentencing reform than in picking fights with the new Congress. Among the various names discussed as possible nominees, I view Lynch as probably the least controversial choice as well as the person most likely to be able, practically and politically, to keep up the sentencing reform momentum that outgoing AG Eric Holder made a signature concern of his final years in his position.

November 8, 2014 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, November 07, 2014

ACLU to devote $50 million to political efforts to attack mass incerceration

Images (6)As reported in this New York Times article, headlined "A.C.L.U. in $50 Million Push to Reduce Jail Sentences," a leading advocacy group big new pot of money to be spent on attacking the problem of mass incarceration. Here are the details:

With a $50 million foundation grant, the largest in its history, the American Civil Liberties Union plans to mount an eight-year political campaign across the country to make a change of criminal justice policies a key issue in local, state and national elections. The goal of the campaign, financed by George Soros’s Open Society Foundations, is to slash an incarceration rate that has tripled since 1980. There are currently some 2.2 million prisoners in the United States.

The campaign aims to translate into state and federal policy a growing belief among many scholars, as well as of a coalition of liberal, conservative and libertarian political leaders, that the tough-on-crime policies of recent decades have become costly and counterproductive. In that view, widespread drug arrests and severe mandatory sentences are doing more to damage poor communities, especially African-American ones, than to prevent crime, and building ever more prisons that mostly turn out repeat offenders is a bad investment.

The campaign is likely to face strong opposition from some law enforcement officials, prosecutor groups and conservative experts who argue that tough sentencing policies have played an important role in driving down crime rates. The Republican electoral victories this week could also stiffen resistance to sweeping change.

The grant is going to the political arm of the A.C.L.U., which has far more leeway to lobby for laws, run ads on television and finance political action committees to promote candidates than the group’s larger, traditional branch, which relies more on litigation. As a result, the money is not tax-deductible.

While the A.C.L.U. has often been associated with liberal causes like ending the death penalty and promoting same-sex marriage, Anthony D. Romero, the group’s executive director, said the organization was building ties with conservative leaders promoting alternatives to incarceration and would not hesitate to aid Republican candidates who support needed steps. “I think criminal justice reform is one of the few issues where you can break through the partisan gridlock,” Mr. Romero said, adding that the group would seek out Republican lobbying firms to help reach legislators.

In the latest example of converging views, conservatives including Newt Gingrich and B. Wayne Hughes Jr., a Christian philanthropist, joined the Soros-led foundation and the A.C.L.U. in support of Proposition 47, a California ballot measure to redefine many lower-level felonies, including possession for personal use of hard drugs, as misdemeanors. The change, which passed by a wide margin on Tuesday, is expected to keep tens of thousands of offenders out of prison and save the state hundreds of millions of dollars each year.

The Koch brothers, major funders of conservative causes and candidates, have joined in. Koch Industries recently gave a grant “of significant six figures” to the National Association of Criminal Defense Lawyers to support the defense of indigents, said Mark Holden, senior vice president and general counsel at Koch Industries. “Whether the human cost or the societal cost, what we’re doing in the criminal justice system isn’t working,” Mr. Holden said. “We’re finding common ground with people with different political affiliations,” he said, praising the advocacy work of the A.C.L.U. in this field.

The A.C.L.U. campaign will be directed by Alison Holcomb, who led the effort in Washington State to legalize marijuana. The group plans to use ads to insert issues like drug policy, mandatory sentences and prison re-entry into early primary states in the presidential elections, such as Iowa and New Hampshire, and then in key battlegrounds like Pennsylvania and Florida, Mr. Romero said.

It will also develop a state-by-state database describing who is in prison for what crimes and then target local politicians and prosecutors who promote what Mr. Romero called “overincarceration.” Mr. Romero said the goal of the campaign was to reduce incarceration by 50 percent in eight years.... Todd R. Clear, a criminologist and the provost of Rutgers University-Newark, said he agreed that the time was right for a major shift in justice policies.... But he cautioned that to achieve a decline anywhere near as steep as that proposed by the A.C.L.U., far more politically contentious changes would be necessary. “We’ll have to make sentencing reforms for violent crime, too,” he said, including major changes in drug laws and the multidecade sentences often imposed on violent or repeat offenders.

November 7, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, November 06, 2014

How might election results (and subsequent sparring) impact Prez Obama's clemency plans?

In this prior post, I wondered aloud "How might election results impact replacing Eric Holder as Attorney General?."  Since then, I have turned to thinking about, as the title of this post highlights, whether and how the Republican electorial success this election cycle might impact the President's thinking and plans about finally making some real use of his clemency powers.

As regular readers know, I consider President Obama's clemency record to date to be not merely disappointing, but truly disgraceful.  That said, earlier this year, Deputy AG Cole and others talked up a new DOJ effort to identify worthy clemency candidates so that the President might start to do better.  From the get-go, I have been concerned that all the talk of new clemency developments might prove to be just another example of the Obama Administration being real good at "talking the talk" and not nearly so good at really "walking the walk."  Indeed, until President Obama starts seriously and consistently using his clemency power, I remain deeply fearful that the so-called Clemency Project 2014 could prove to be much ado about nothing (or about very little relief for very few).

With these realities as backdrop, I have no sense at all whether the consequential political developments of the last few days will have little, some or much impact on whatever Prez Obama had in mind with respect to clemency.  Does anyone else have any insights or even wild speculations on this front?

A few of many recent and older posts concerning federal clemency practices:

November 6, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, November 05, 2014

What does Rep-elect Mia Love, the new most-interesting person in Congress, think about sentencing reform and the federal drug war?

Images (4)

Among the amazing and exciting stories emerging from this election season is the historic victory of Mia Love, the first black Republican woman ever elected to Congress.  This new Washington Post article discusses the remarkable backstory of this remarkable woman, and why she is now already an especially important member of the new GOP-controlled Congress: 

For at least half a century, the party of Lincoln has battled charges that it is racist, sexist and anti-immigrant. Today, voters from a conservative state made those arguments a little bit harder to make. In Utah, Mia Love became the first black Republican woman — and first Haitian American — elected to Congress.

For the GOP — a house divided that faces significant demographic hurdles to winning the White House in 2016 even as it celebrates President Obama’s shellacking — this was huge. A party threatened with electoral extinction among African Americans and immigrants now has someone to brag about in Washington. In a wave election less about fresh Republican ideas than fervid disapproval of all things presidential, Love’s compelling personal story is an oasis. She’s not just a black face in what’s often described as a party full of angry old white men. She’s a path forward.

It’s hard to overstate how unlikely Love’s victory looked on paper. Utah is less than 1 percent black. Though more than 60 percent of the state’s people identify as members of the Church of Jesus Christ of Latter-day Saints, the church is just 3 percent black. Love, 38, is one of these few black Mormons — part of a church that, until 1978, didn’t let African Americans participate in all church activities and still hasn’t apologized for its racism.

Yet, a woman born in Brooklyn to Haitian immigrants is now a duly-elected representative of the Beehive State. What led to this? A speech at a national political convention about triumphing over adversity — just like another familiar politician facing long odds.

At the Democratic National Convention in 2004, Obama spun a tale of unrealistic dreams achieved by the power of a “larger American story.”...

Eight years later, Love turned her superficially similar biography — child of foreigner makes good — into a parable for gritty, individual wherewithal. This was Horatio Alger by the Brooklyn-Queens Expressway.

Her parents fled Haiti in 1976, one step ahead of the dreaded Tonton Macoutes, the secret police of dictator Francois “Papa Doc” Duvalier. “My parents immigrated to the U.S. with ten dollars in their pocket, believing that the America they had heard about really did exist,” Love told the Republican National Convention, gathered in Tampa in 2012 to nominate Mitt Romney. “When times got tough they didn’t look to Washington, they looked within.”

Indeed, Love — a black woman who married a white man she met on a Mormon mission, left her Catholic Church and lit out to a white enclave by the Great Salt Lake — explicitly challenged what she described as a vision of America mired in demography. “President Obama’s version of America is a divided one — pitting us against each other based on our income level, gender, and social status,” she said. “His policies have failed!”...

A talented performing artist, she reportedly turned down a Broadway role in “Smokey Joe’s Cafe” because it conflicted with her wedding in 1998 to Jason Love, who, by the way, took her to a firing range on their first date. She became a neighborhood activist in Saratoga Springs, Utah, leading the charge to get a developer to spray the area for flies — “The War of the Midges” it was called — ultimately winning a seat on the city council and then being elected mayor of the small town.

Even when she entered what would turn out to be a losing congressional run in 2012, the GOP knew what it had. Even the future Republican nominee for vice president said so. “Mia has a great opportunity to extend the message of liberty and economic freedom in ways that a lot of us can’t, and we’re excited about that,” said Rep. Paul Ryan (Wis.) after hosting a fundraiser for Love.

Two years later, Ryan’s enthusiasm was borne out on Twitter after Love’s victory. She trailed Democrat Doug Owens most of the night as the results came in from Utah’s 4th District, but ultimately triumphed with 50 percent of the vote to Owens’s 47 percent. “Many people said Utah would never elect a black, Republican, LDS woman to Congress. And guess what … we were the first to do it,” she told cheering supporters, the Salt Lake Tribune reported....

Just as Obama’s policies didn’t matter as much as the fact that he existed in 2008, Love’s may not either. Judging by her Web site, she won’t upend conservative orthodoxy. She wants to repeal Obamacare. She wants to defend the Second Amendment. She’s pro-life. All-in-all, a typical Republican.

Except: Not at all. Though she may speak out against immigration or D.C. dysfunction, she is not a white-haired, pale-skinned Methuselah turning beet-red on Fox News while doing so. She is a black woman under 40.

Perhaps not surprisingly, I could not find any statements on Mia Love's campaign website concerning her views about sentencing law and policy or criminal justice issues more generally. But, as regular readers know, Utah's junior Senator, Mike Lee, is one of the co-sponsors of the Smarter Sentencing Act and Rep Paul Ryan (mentioned above) has recently become an advocate of federal sentencing reform. And Love's website on this page stresses the principles of "fiscal discipline, limited government ... [and] cutting waste and ensuring that taxpayer dollars are spent wisely." For these reasons, I am cautiously hopeful that Rep-elect Mia Love will soon become another prominent GOP member of Congress supporting federal sentencing and drug war reforms that can and should limit the most wasteful part of a big federal criminal justice system.

November 5, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack

Is major federal sentencing reform possible now that Republicans have full control of Congress?

As the polls had come to predict in the weeks leading up to Election Day 2014, voters have now decided to put Republicans in control of both houses of Congress.  Way back in this post in July 2013, I asked the question "Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?," and now we are on a path to find out.  

Of course, with respect to sentencing reform and so many other federal legislative issues, a whole lot will depend on whether and how a Republican-controlled Congress wants to work with or work against the lame-duck President Obama.  Ever the hopeful optimist, I believe that Republicans in the new Congress will be looking to pass some bills that President Obama will sign into law and that at least some sentencing reform bills will be in this mix.  

Some recent related posts:

November 5, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, November 03, 2014

Why I believe criminal justice reform is on the ballot this year ... and reflected in anti-Obama sentitments

The title of this post is designed as something of a retort to this interesting new Daily Beast commentary by Inimai Chettiar and Abigail Finkelman.  The piece is headlined "Why Isn’t Prison Justice on the Ballot This Tuesday?," and here are excerpts (with my emphasis added):

Whichever party wins control of the U.S. Senate, voters can wince at the prospect of continued polarization and gridlock.  But one issue, intriguingly, seems ripe for genuine bipartisan cooperation: criminal justice reform.  Yet, partly because it has become less controversial, discussions about criminal justice policy have been absent from the campaign trail.  This silence creates the risk that a moment of promise will become a missed opportunity for change.

The fact that criminal justice policy is not a campaign issue is, itself, noteworthy. Consider it Sherlock Holmes’ dog that didn’t bark.  For decades, politicians vied to be the most punitive, from the 1977 New York City mayoral race, which improbably turned on the issue of the death penalty (over which a mayor has no power) to the 1994 referendum that passed “three-strikes-and-you’re-out” in California.  The 1988 presidential race is rightly remembered for its focus on demagogic and racially coded appeals....

But times have changed, and “tough on crime” has been replaced with “smart on crime.”  In the last decade, states as disparate as Texas, New York, Kentucky, and California have instituted reforms to reduce their prison populations and ease up their harsh sentencing laws.  The White House just launched a major initiative to implement a more modern, sensible drug policy.  Even Congress passed a law reducing the disparity between crack and powder cocaine sentences.  And Americans overwhelmingly support eliminating mandatory minimum sentences for nonviolent drug offenders.

Yet, by and large, candidates have steered clear of criminal justice reform this election cycle.  Perhaps they’re fearful of being painted as soft on crime.  Or perhaps they simply don’t care enough about the issue to take a position.

Check out the issues pages of the websites of Senate candidates in the hottest races. Neither Michelle Nunn nor David Perdue, the two major Senate candidates in Georgia, talk about criminal justice reform.  Neither do Mark Udall and Cory Gardner in Colorado. Or Joni Ernst and Bruce Braley in Iowa.  In fact, you’d have to look far to find a candidate who makes even the most pro forma nod to the issue.

And that’s too bad, because not only is criminal justice important on its own, but because it impacts so many other important issues.  Voters consistently list the economy and inequality as top concerns.  The current system of mass incarceration costs governments around $260 billion annually; that’s about half the 2014 federal deficit.  In fact, it’s among the largest drivers of economic inequality in the United States.  Finding employment or housing can be nearly impossible with a criminal record.  Locking up the primary breadwinner can push a family from working-class to impoverished. And children growing up with incarcerated parents too often get pulled into the system themselves....

Politicians and candidates cannot be allowed to remain silent on one of the largest human rights issues on American soil.  But they also can’t be allowed to limit themselves to bromides about wanting reform without laying out next steps, and taking them.  After all, some officeholders still resist needed changes, even as others link arms for reform.

Sens. Rand Paul (R-KY) and Cory Booker (D-NJ) may have drawn wide attention and praise for their REDEEM Act. But the Smarter Sentencing Act of 2014, which went further and was cosponsored by Ted Cruz and Elizabeth Warren, among others, was blocked by a bipartisan group of senators.  Similar battles are unfolding in state legislatures.  But, as always, there’s a way to get legislators to change their actions: threaten to kick them out.

We’ve missed the chance to make mass incarceration an issue in 2014.  But a few weeks ago, Bill Clinton predicted the issue would play prominently in the 2016 presidential election.  Let’s hope he’s right.  But such a drastic change in election politics won’t happen unless we demand to know where candidates stand on criminal justice.  We must ask why they’re holding up bills, and if they’re only paying lip service to reform.

We need to know what they will do — or why they’re not doing anything — so that the United States no longer wears the scarlet letter of being the largest jailor in the world.  And if they can’t answer, hold them accountable.

I have emphasized key phrases above which I believe serve as justifiable criticisms of one particular politician this election cycle: President Barack Obama.  As regular readers know, I have long been talking about what I think President Obama could and should be doing in response to mass incarceration.  On Inauguration Day 2009, in this post, I asked "Is it too early to start demanding President Obama use his clemency power?".  Similarly, in post after post and post, I have highlighted that Prez Obama and others in his administration have been much more willing and eager to "talk the talk" than to "walk the walk" when it comes to criminal justice reform.

In other words, in my view President Obama is the politician who should be getting the most criticism for, in the words of this commentary, being content to spew "bromides about wanting reform without laying out next steps, and taking them," for missing "the chance to make mass incarceration an issue in 2014," and for helping to ensure the United States still "wears the scarlet letter of being the largest jailor in the world."  And, like Inimai Chettiar and Abigail Finkelman, I want this politician to be held accountable.  And, if polling and predictions about a Republican surge on election day tomorrow are accurate, it does appear that President Obama and his party are going to be held accountable for their failings in this regard.

(Side note:  I also think Prop 47 in California as well as the marijuana initiatives on the ballot in a number of states and localities serve as another way that "prison justice" can be seen as being on the ballot this year.)

November 3, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates | Permalink | Comments (1) | TrackBack

Saturday, November 01, 2014

Notable account of all the advocacy and interests surrounding California's Prop. 47

Today's Los Angeles Times has this lengthy discussion of the advocacy interests surrounding the big criminal justice initiative on the California ballot this election season. The piece is headlined "Prop. 47 puts state at center of a national push for sentencing reform," and here are excerpts:

The statewide initiative on Tuesday's ballot to reduce penalties for illicit drug use and petty theft is part of a multimillion-dollar campaign to revise sentencing laws in California and across the nation.

Five major foundations, headlined by a philanthropic group run by New York billionaire George Soros, have poured millions of dollars to push for changes in California's policies on crime and imprisonment.  The campaign is aimed at shaping public opinion, media coverage, research and grass-roots activism on the issue.

Proposition 47 would reclassify possession of heroin, methamphetamine and other illegal drugs, and theft of $950 or less, as misdemeanors in California. If the measure passes, California will become the first state to "de-felonize" all drug use, opening the door for similar efforts in other states.

"We hope we're setting a precedent for the nation," said Lynne Lyman, state director of the National Drug Policy Alliance, an active supporter of Proposition 47.  "We are hoping it will signal that we don't need to be so tough on crime all the time."  Proponents of the ballot measure have raised $9 million — at least $2 million of which came from two of the foundations — for their campaign thus far.  Opponents have raised just $526,000, state election records show....

Since 2011, the foundations have awarded at least $14 million in grants to almost three dozen California-based groups that are earmarked for "criminal justice reform" or to influence public opinion. Soros' Open Society Foundations in 2012 also gave a $50-million grant to the National Drug Policy Alliance to "advance drug policy reform" in states across the nation.

The coordination by a few wealthy foundations to change public policy represents a legitimate but worrying form of political influence, said Robert McGuire, who tracks such activity for the Center for Responsive Politics.  The foundation grants are not disclosed publicly in the same way campaign contributions are reported.  Foundation nonprofit tax filings often do not become public until two years after money is spent.  "Nonprofits are allowed to do this, but voters have a right to know what interest is trying to get them to vote a certain way," McGuire said.

The California effort was initiated by Tim Silard, who ran alternative sentencing programs for California Atty. Gen. Kamala Harris when she was San Francisco district attorney, and Dan Zingale, who was chief of staff to then-first lady Maria Shriver....  Silard and Zingale said they sought a strategy that could break the grip of "tough on crime" politics in California....

Coalition members say they are driven by a belief that California — and the rest of the nation — locks up too many people for too long and that public safety would be better served by putting resources toward job training, mental health and drug addiction treatment.  An opening to change that trend surfaced in the U.S. Supreme Court's 2011 ruling that conditions in California's overcrowded prisons were unconstitutionally dangerous, upholding a lower-court order to reduce the prison population....

In 2013, Soros provided money to create a new organization called Vote Safe to launch Proposition 47.  Soros, a hedge fund manager widely known for bankrolling progressive campaigns and a decade-long battle against the war on drugs, has a representative on Vote Safe's three-member advisory board.  The campaign manager for both Citizens for Safety and Justice and Vote Safe is Lenore Anderson, another former aide to Kamala Harris who once ran the public safety offices in San Francisco and Oakland. Anderson said the ballot initiative was encouraged by polls that showed a softening in public attitudes toward criminal punishment.  "The whole country right now is going through transformation in attitudes on criminal justice," she said. "We felt it was a big moment."

Violent crime in California had dropped precipitously, hitting a 45-year low in 2011. In the fall of 2012, California voters passed another Soros-backed initiative to lift three-strikes penalties for nonviolent felons....

Supporters of Proposition 47 also emphasize that drug laws have a disparate impact on Latino and African American communities. Lyman of the Drug Policy Alliance hammered on that point during a Proposition 47 rally at a Los Angeles church a week ago. "The war on drugs and mass incarceration is just an extension of slavery," she said.

Prior related posts on California's Prop 47:

November 1, 2014 in Elections and sentencing issues in political debates, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, October 31, 2014

"Shrinking Prisons: Good Crime-Fighting and Good Government"

the title of this post is the headline of this thoughtful new piece from The Atlantic. Here are excerpts:

Liberals have long advocated prison reforms like reduced sentence lengths and alternatives to incarceration. Recently, however, conservatives have put these ideas on the congressional agenda — and their inspiration comes from that bastion of tough-on-crime conservatism, Texas.

Surprising? Perhaps. But seeing this coming didn’t require any sort of crystal ball. One had only to notice the forces driving every trend today: less money, higher expectations, and lower “weight.” Around the world and especially in the United States, both the public and private sectors have been under pressure since the Great Recession to cut costs and make the most of constrained resources. At the same time, consumers have become accustomed to expect better and better performance for their dollars. Many people have dismissed as “immature” or unrealistic the electorate’s expectation that governments provide both lower taxes and more services, but it’s not unreasonable given what the private sector has been able to deliver over the last generation.....

It’s overdue, then, for the public sector to revisit the costliest, least productive, and least “weightless” business lines in its portfolios—human services generally, and the corrections system in particular. What smacks more of outdated big government than large, costly, coercive institutions?

Incarceration as we know it today was originally a “progressive” idea. Compared to the days when every offense was punishable by execution — or at least corporal punishment — and prisons were simply a slow form of death, the modern penitentiary was conceived as a humane instrument of rehabilitation, not just punishment: The idea was that sitting alone in a cell and contemplating one’s transgressions — like a penitent — would lead to self-improvement. A close cousin, historically and conceptually, of the poorhouse and insane asylum, the penitentiary proved as much a misnomer, however, as today’s “corrections.” Nonetheless, along with the notion of redemption through hard work, the concept appealed to Jacksonian reformers and launched the first great era of prison construction in America. The second wave peaked, similarly, with the advent of the Progressive Era, which refined the concept with such additions as parole, probation, and indeterminate sentencing.

The third and latest wave of prison enthusiasm, however, was a reaction—against both liberal modifications to incarceration regimes and the social tumult of the ’60s. The War on Drugs increased the numbers of prisoners and lengthened the duration of sentences. The surge in incarceration also has been directly related to race: African-American males are jailed at about six times the rate of whites and three times the rate of Hispanics.

As a result, the United States today has the highest documented incarceration rate in the world: 743 adults per 100,000 population, or nearly 2.3 million adults, nearly one-quarter of the world’s total prison population. More than twice that number are on probation or parole, with more than 70,000 juveniles in detention, as well — roughly one in every 30 Americans is under supervision of some sort, a seven-fold increase since 1980....

Institutionalized correction, while more expensive, is less effective in reducing most crime than virtually any alternative. A 2001 report by New Jersey’s State Commission on Criminal Resentencing found that alternative sanctions and prisons have very similar effects on recidivism, while alternative sanctions free up prison bed space for more violent offenders. Similarly, a 2002 Justice Policy Institute report on Community Corrections programs in Ohio found shorter stays and lower recidivism or re-incarceration rates for clients from community-based correctional programs than for prison inmates.

As a result, many states — mostly Southern — are changing their approach, and saving money. Oklahoma, which was recently in the spotlight for its hard line on executions, has reduced its prison population by nearly 1,800 prisoners, projected to save the state approximately $120 million over the next 10 years. Georgia has become a leader in the use of “drug courts,” which divert offenders into alternatives to prison.

The Urban Institute reports that eight states — Arkansas, Hawaii, Louisiana, Kentucky, New Hampshire, North Carolina, Ohio, and South Carolina — have reliable enough data to provide preliminary findings on the effects of system reforms. These show early successes in slowing and even reducing prison-population-growth rates.

But the poster child is Texas. In 2007, conservative legislators in Austin were staggered by projections for how much it would cost to run the Department of Criminal Justice if the system went unchanged. The state faced the prospect of building approximately 17,000 new prison beds within five years at a cost of nearly $1.15 billion.  Instead, the legislature budgeted approximately $250 million for community-treatment programs and increased the number of inmates served by in-prison treatment and rehabilitation programs.  In 2009, the state added reentry-program coordinators to help reduce the number of released inmates who return to prison.  Texas’s effort now forms the basis for the bipartisan prison-reform legislation moving through Congress.

This has implications beyond prison reform. Governments today face increasing pressure to cut costs, but their citizens still want and need government services. Elected officials everywhere must figure out how to square this circle—to deliver better service at lower cost.  A major part of the answer will lie in moving from costly, outdated “solutions” based on large one-size-fits-all institutions to individualized, dispersed, home- and community-based solutions that use new technologies and evidence-based strategies....

The corrections field shows most starkly that the conservative critique of liberal programs — large, outdated, costly, and one-sized-fits-all — is valid, but also that the solutions liberals have been advocating for the past several decades, with the benefits of years of experimentation and evidence, provide a path forward.

October 31, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, October 30, 2014

New York Times editorial makes the case for California's Prop 47

Today's New York Times has this editorial headlined "California Leads on Justice Reform: Prop 47 Could Take the State a Step Further in Reducing Overcrowding." Here are excerpts:

For a long time, the conventional political wisdom was that no one ever lost an election for being too tough on crime.  That wisdom has been turned on its head in recent years, as both politicians and the public are realizing how much damage the lock-’em-up mind-set has caused....

A familiar retort is that crime is down precisely because the prisons are full, but that’s simply not true.  Multiple studies show that crime has gone down faster in states that have reduced their prison populations.

An encouraging example comes from California, the site of some the worst excesses of the mass incarceration era, but also some of the more innovative responses to it.  For five years, the state has been under federal court order to reduce extreme overcrowding in its prisons.  In response, voters in 2012 overwhelmingly approved a ballot measure to scale back the state’s notorious “three-strikes” law, leading to the release, so far, of more than 1,900 prisoners who had been serving life in prison — in some cases, for petty theft.

Dire warnings that crime would go up as a result were unfounded.  Over two years, the recidivism rate of former three-strikes inmates is 3.4 percent, or less than one-tenth of the state’s average.  That’s, in large part, because of a strong network of re-entry services.

The 2012 measure has provided the model for an even bigger proposed release of prisoners that California voters will consider on the ballot next week.  Under Proposition 47, many low-level drug and property offenses — like shoplifting, writing bad checks or simple drug possession — would be converted from felonies to misdemeanors.

That would cut an average of about a year off the sentences of up to 10,000 inmates, potentially saving the state hundreds of millions of dollars annually.  To keep people from returning to prison, or from going in the first place, the savings would be invested in anti-truancy efforts and other programs like mental health and drug-abuse treatment. Some would go to victims’ services, a perennially underfinanced part of the justice system.

Law-enforcement officials, not surprisingly, oppose the measure, warning that crime will go up.  But they’ve already been proved wrong on three-strikes reform.  Californians — who support the proposition by a healthy margin, according to polls — have now seen for themselves that they don’t have to choose between reducing prison populations and protecting public safety.

It is very rare for lawmakers anywhere to approve legislation to shorten sentences for people already in prison; it is virtually unheard-of to do it by ballot measure. California’s continuing experiment on sentencing can be a valuable lesson to states around the country looking for smart and safe ways to unravel America’s four-decade incarceration binge.

Prior related posts on California's Prop 47:

October 30, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, October 24, 2014

Election season round-up of posts on pot politics from Marijuana Law, Policy and Reform

For various reasons and in various ways, I find the politics of modern marijuana reform even more interesting than its policies and practicalities. Consequently, a number of my recent posts at Marijuana Law, Policy and Reform have focused on political developments and discourse in those states with significant reform proposals on the ballot in 2014.  As this election season now kicks into its final stretch, I thought it useful to collect some of these posts in this space:

As time and energy permits, I am hoping soon to start a series of posts on pot politics circa 2014 over at Marijuana Law, Policy and Reform  in order to explain why I think the results of this election season in a Alaska, Florida and Oregon are likely to have a huge impact on marijuana policy and national politics in the coming years.

October 24, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Tuesday, October 21, 2014

"Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases"

The title of this post is the title of this intriguing new empirical study authored by Joanna Shepherd and Michael Kang.  Here is the study's summary:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals.  State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

Citizens United (which removed regulatory barriers to corporate electioneering) has fundamentally changed the politics of state judicial elections.  Outside interest groups, often with high-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into state supreme court elections.  These powerful interests understand the important role that state supreme courts play in American government, and seek to elect justices who will rule as they prefer on priority issues such as environmental and consumer protections, marriage equality, reproductive choice and voting rights.  Although their economic and political priorities are not necessarily criminal justice policy, these sophisticated groups understand that “soft on crime” attack ads are often the best means of removing from office justices they oppose.

This study’s two principal findings:

  • The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants.  As the number of airings increases, the marginal effect of an increase in TV ads grows.  In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.

  • Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision.  Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.

The study is based on the work of a team of independent researchers from the Emory University School of Law.  With support from the American Constitution Society, the researchers collected and coded data from over 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions from 2008 to 2013.  State supreme courts are multi-judge bodies that decide appeals collectively by majority vote; the researchers coded individual votes from over 470 justices in these cases.  These coded cases were merged with data from the Brennan Center for Justice reporting the number of TV ads aired during each judicial election from 2008 to 2013. A complete explanation of this study’s methodology is below.

The findings from this study have several important implications.  Not only do they confirm the influence of campaign spending on judicial decision making, they also show that this influence extends to a wide range of cases beyond the primary policy interests of the contributors themselves.  Even more troubling, the findings reveal that the influence of money has spread from civil cases to criminal cases, in which the fundamental rights of all Americans can be at stake.

October 21, 2014 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, October 03, 2014

Should advocates of federal criminal justice reform be rooting for Republicans to take control of Senate?

The question in the title of this post is prompted by the closing paragraphs of this new National Journal article. The article is headlined "How Republicans Stopped Being 'Tough on Crime': GOP lawmakers in Congress are moving toward prison reform. Is this the final frontier for bipartisanship?". Here are some extended excerpts from an article that reinforcement my sense that reform advocate might be wise to root for Republicans to have lots of success on Election Day next month:

[M]any Republicans in Congress are moving away from the tough-on-crime philosophy that dominated the Nixon, Reagan, and Bush eras. At a time when people complain about historic levels of gridlock, there is more bipartisan support for reforming the criminal-justice system than there has been in the past four decades.

This newfound Republican support isn't just the product of tokenism. Among the members of Congress who have cosponsored legislation on this issue are Sens. Rand Paul, John Cornyn, Chuck Grassley, Mike Lee, Rob Portman, and Orrin Hatch, along with Reps. Raul Labrador, Paul Ryan, and Jason Chaffetz.

"This certainly is something that has gained momentum among many Republicans — not all," Lee told National Journal. "There's still a number of Republicans who don't agree with me on this, that this ought to be a priority. But I've been pleased by the number of Republicans who have joined me in this effort."

Of course, that doesn't mean the Republican colleagues always agree with each other. Grassley recently blasted the Smarter Sentencing Act, which was introduced by Lee and Sen. Dick Durbin. The bill would allow federal judges to use their discretion when sentencing some nonviolent drug offenders, instead of having to obey mandatory minimums. Grassley said the bill would "put taxpayers on the hook for close to $1 billion in entitlement spending." What Grassley didn't mention was that the bill would also lead to $4 billion in budget savings over the next 10 years, according to the Congressional Budget Office.

Levin, the Right on Crime founder, says the financial burdens imposed by the justice system — which often disproportionately targets minorities and hamstrings those not wealthy enough to afford their own attorney — should especially outrage conservatives. "Look, I'm a free-market guy, so I say the fact that rich people can get a better car, nicer jewelry, that's all well and good. But here we're talking about justice," Levin said. "Conservatives ought to be particularly receptive to these things, and I think they are, because at some point it just becomes like a tax."

But Lee emphasized that sentencing reform isn't just a fiscal issue for Republicans. "There's no question that reforming our sentencing system could save us money. I want to point out, though, that that is not our primary objective in this," Lee told National Journal. "An even more important objective involves not the financial costs, but the human costs."

That human cost is very real. The violent-crime rate is the lowest it's been in 20 years, yet there hasn't been a corresponding decrease in incarceration. Nearly a third of the world's female prisoners are incarcerated in the U.S. Between 1991 and 2007, the number of children with a parent in prison increased by 80 percent—so widespread that Sesame Street recently aired a segment dealing with the issue.

The prison population is the oldest it's ever been. In West Virginia, 20 percent of the prison population is over the age of 50. This raises the question: What is the advantage of the U.S. spending billions of dollars to house prisoners who may not present any real public danger?...

Criminal-justice reform has united other odd couples like [Senators Rand] Paul and [Cory] Booker. In March, the Senate Judiciary Committee approved a bill put forward by Republican Sen. John Cornyn of Texas and Democratic Sen. Sheldon Whitehouse of Rhode Island that would try to triage the likelihood that a prisoner would commit another crime, if released. The law would also give time credits to "low-risk" offenders and allow some to complete their prison sentences under "community supervision."

Cornyn said it's time to move away from the one-size-fits-all approach to treating American prisoners. "When I went to law school, we'd learn in criminal law class that rehabilitation was always one of the goals of our criminal justice system. But honestly, in my lifetime, we've done a lousy job at rehabilitating people," Cornyn told National Journal. "Instead, they have taken an approach that's more like warehousing people."

Cornyn said he's confident that if the GOP retakes the Senate in November, prison reform will be one area where they will be able to work with the White House. Even Whitehouse — Cornyn's Democratic counterpart on this legislation — sees this as an upside to a possible Republican-controlled Congress. "Frankly, I think the biggest danger to these bills is not really on their substance. It's just the threat of partisan and obstructive mischief by the more extreme Republican senators," Whitehouse told National Journal. "The motivation for that mischief evaporates once they're in control."

There you have it — prison reform, the final frontier of bipartisan legislation. But as Levin points out, there's just one last thing for Republicans and Democrats working on the issue to sort out: "The only disagreement sometimes is who's gonna get the credit."

A few recent and older related prior posts:

October 3, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, September 21, 2014

Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"

Newt Gingrich and B. Wayne Hughes Jr. are the co-authors of this notable recent Los Angeles Times op-ed headlined " "What California can learn from the red states on crime and punishment." Among other points, the piece makes the case for a proposition on the ballot in California (Prop 47) that would reduce the severity of a number of California crimes. Here are excerpts:

Imagine you have the power to decide the fate of someone addicted to heroin who is convicted of petty shoplifting. How much taxpayer money would you spend to put that person in prison — and for how long? Is incarceration the right form of punishment to change this offender's behavior?

Those are questions states across the nation are increasingly asking as the costly and ineffective realities of incarceration-only policies have set in. Obviously, we need prisons for people who are dangerous, and there should be harsh punishments for those convicted of violent crimes. But California has been overusing incarceration. Prisons are for people we are afraid of, but we have been filling them with many folks we are just mad at.

Reducing wasteful corrections spending and practices is long overdue in California. The state imprisons five times as many people as it did 50 years ago (when crime rates were similar). And as Californians know, the state's prison system ballooned over the last few decades and became so crowded that federal judges have mandated significant reductions.

Contributing to the growth in the number of prisoners and in prison spending has been a dramatic expansion in the number of felonies. In addition, mandatory minimum sentences have been applied to an increasing number of crimes. These policies have combined to drive up the prison population, as more prisoners serve longer sentences. On top of that, California has an alarmingly high recidivism rate: Six out of 10 people exiting California prisons return within three years.

It makes no sense to send nonserious, nonviolent offenders to a place filled with hardened criminals and a poor record of rehabilitation — and still expect them to come out better than they went in. Studies show that placing low-risk offenders in prison makes them more dangerous when they are released.

Over-incarceration makes no fiscal sense. California spends $62,396 per prisoner each year, and $10 billion overall, on its corrections system. That is larger than the entire state budget of 12 other states. This expenditure might be worth it if we were safer because of it. But with so many offenders returning to prison, we clearly aren't getting as much public safety — or rehabilitation — as we should for this large expenditure.

Meanwhile, California spends only $9,200 per K-12 student, and the average salary for a new teacher is $41,926. And as California built 22 prisons in 30 years, it built only one public university.

California is not alone in feeling the financial (and public safety) consequences of over-incarceration. Several states — politically red states, we would point out — have shown how reducing prison populations can also reduce cost and crime. Most notably, Texas in 2007 stopped prison expansion plans and instead used those funds for probation and treatment. It has reduced its prison population, closed three facilities and saved billions of dollars, putting a large part of the savings into drug treatment and mental health services. Better yet, Texas' violent crime rates are the lowest since 1977.

Another red state, South Carolina, made similar reforms for nonviolent offenses. The drop in the number of prisoners allowed South Carolina to close one prison and also lower its recidivism rate. Other states (Ohio, Georgia, Oklahoma, Kentucky, Missouri, Pennsylvania and Mississippi) have similarly shifted their approach to nonviolent convictions.

Now voters in California will have a chance to do the same, using costly prison beds for dangerous and hardened criminals. It is time to stop wasting taxpayer dollars on locking up low-level offenders. Proposition 47 on the November ballot will do this by changing six nonviolent, petty offenses from felony punishments (which now can carry prison time) to misdemeanor punishments and local accountability.

The measure is projected to save hundreds of millions of taxpayer dollars per year, and it will help the state emphasize punishments such as community supervision and treatment that are more likely to work instead of prison time....

If so many red states can see the importance of refocusing their criminal justice systems, California can do the same. It's not often the voters can change the course of a criminal justice system. Californians should take advantage of the opportunity and vote yes on Proposition 47.

September 21, 2014 in Elections and sentencing issues in political debates, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, September 02, 2014

Another drug sentencing sign of these political times in Massachusetts

This local article from Massachusetts, headlined "Candidates back reform of drug sentencing guidelines," provides more evidence that political candidates these days appear much more likely to support repeal or reform of severe drug sentencing laws rather than support increasing sentences for drug offenses. Here are the details:

Candidates for major offices this year in Massachusetts are backing the repeal or reform of mandatory minimum criminal sentences for drug offenses, according to a report released Tuesday.

Families Against Mandatory Minimums found 92 percent of the 24 candidates who responded to its survey favored repeal or reform of mandatory minimum drug sentences, with 75 percent, including Republican candidate for governor Charlie Baker, supporting repeal of such laws. "No candidate was in favor of longer mandatory minimum sentences or additional mandatory minimum sentences for drug offenses," the group wrote in its report, released just over a week before the Sept. 9 primary elections.

In part as a pledge to Gov. Deval Patrick, legislative leaders vowed in 2012 to revisit criminal sentencing reform ideas in the 2013-2014 session but never got behind legislation to fulfill that promise.

In her questionnaire, attorney general candidate Maura Healey backed ending mandatory minimums for non-violent drug offenses, reforming bail to ensure that indigent defendants are not in jail for lack of ability to pay, and expanding the use of drug courts, mental health courts, and veterans treatment courts.

Attorney general candidate Warren Tolman referred the group to his "Smart on Crime" plan and wrote, "I not only support repeal of mandatory minimum sentences for drug offenses, I will lead the fight to repeal them!"

Cape & Islands District Attorney Michael O'Keefe bucked the trend, saying he would support reforms to minimum mandatory sentences but not an outright repeal, and disputed FAMM's contention that low level drug offenders are ensnared by laws intended to punish criminals higher up the food chain. "Your contention that 'non-violent/low level drug offenders are receiving the same lengthy sentences intended for kingpins' is not true yet is repeated over and over again. Please supply me the name of one case. Just one. Thank you," O'Keefe wrote, noting his involvement with a 2012 sentencing reform law....

In her response, Attorney General Martha Coakley, who is running for governor, said she supports "increased flexibility" for sentencing non-violent offenders. "I support mandatory minimum sentences for the most dangerous criminals, like murderers and those who prey on children, but I support increased sentencing flexibility for individuals convicted of non-violent crimes," Coakley wrote.

"I support eliminating or curtailing inflexible and often counterproductive mandatory minimum sentences for low-level, non-violent drug offenses to provide judges with wider discretion in sentencing," Treasurer Steven Grossman, who is facing Coakley in the primary, wrote.

Democratic gubernatorial candidate Don Berwick and Baker both supported repealing mandatory minimum sentences for non-violent drug offenders. Baker's primary opponent, Mark Fisher, did not respond to the survey. The three independents running for governor, Jeff McCormick, Evan Falchuk and Scott Lively, all supported repealing mandatory minimums for drug offenders, while McCormick said he would "stand behind tougher sentencing for more violent crimes or those involving 'king pins'."

"These results confirm that drug sentencing reform is now a mainstream issue," said Barbara Dougan, director of FAMM's Massachusetts project, in a statement. "Political candidates in Massachusetts are clearly eager to take a second look at our state's sentencing policies, just as federal and state legislators across the U.S. are doing."...

The 2012 reform law lowered mandatory minimum sentences for drug offenses and also established a sentencing requirement that habitual offenders of certain violent crimes receive the maximum penalty. The Legislature has not returned to sentencing reform. Asked about that in July, Senate President Therese Murray said she was following the will of the members.

September 2, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, August 30, 2014

Could capital reprieve cost Colorado Gov his office?

The question in the title of this post is prompted by this lengthy Denver Post article, headlined "Colorado's pro-death penalty voters could make Hickenlooper pay." Here are excerpts:

The cold-blooded murders of three teenagers and a manager late one night in a Chuck E. Cheese restaurant in Aurora two decades ago has taken center stage in the political theater of this year's race for governor. Gov. John Hickenlooper has weathered political blows from the right since May 2013,when he granted the killer, Nathan Dunlap, a reprieve on his death sentence.

Hickenlooper's actions then reignited the hot topic over the weekend after Todd Shepherd of The Complete Colorado presented audio of Hickenlooper suggesting to a CNN film crew, in an interview for a segment of a documentary series set to air the evening of Sept. 7, that he could grant Dunlap clemency if he were to lose his re-election bid in November.

Besides reintroducing a wedge issue — capital punishment — that has a perception of marshaling Republican voters, the incumbent Democrat gave fresh life to Republicans' campaign narrative that Hickenloooper doesn't make forceful decisions. Republican nominee Bob Beauprez has repeatedly vowed on the campaign trail to execute Dunlap — an applause line for GOP voters....

Polling last April indicated Colorado voters support the death penalty 2-to-1. "This is a big issue," Owen Loftus, spokesman for the Colorado Republican Committee, said of the death penalty. "He's making it a bigger issue. The question of whether Gov. Hickenlooper is going to enforce justice or not — that gives people pause."...

When he ran for governor four years ago, Hickenlooper was vocal about being pro-capital punishment. His decision-making around the issue in 2013 has left some in his own party, and nearly everyone who opposes him, questioning his rationale.

The governor explained in his Dunlap decision that he believed Colorado's capital punishment system was "imperfect and inherently inequitable." The arguments began anew last weekend when news surfaced that Hickenlooper raised the possibility of clemency — which no Colorado governor has ever granted in a death penalty case. The governor reiterated his evolution on the issue this month when he told a television news reporter he opposes the death penalty....

Paul Teske, dean of the school of public affairs at the University of Colorado Denver, questioned whether Hickenlooper would lose any voters he might have had otherwise. "It could have a small influence, but the voters who are likely to be motivated by this issue probably weren't going to vote for Hickenlooper anyway," he said. But it could fit into a larger narrative. "I think Republicans will pair this with the gun issue to say that Hickenlooper is soft on public safety."

Denver pollster Floyd Ciruli said Hickenlooper can only blame himself for repeatedly reviving an issue that repeatedly hurts him. The issue was part of Hickenlooper's tipping point in 2013, Ciruli said, when he granted Dunlap the reprieve, helping drive down his approval ratings from results above and just below 60 percent to the low 40s.

"It was the first issue that clearly put him on the wrong side of the public," Ciruli said. "He had been a pretty popular governor up to that point in his first term, and it handed a very good issue to the Republicans to hammer him with. But it had kind of gone away. But now (since the CNN interview) he's reopened it."

By saying he might grant clemency if he loses, Hickenlooper didn't portray himself as a thoughtful leader, the pollster said. "Speaking in a hypothetical about what if he loses, what he might do, that comes across as politically manipulative," Ciruli said.

A Quinnipiac University poll in February indicated Coloradans by a 36 percent to 28 percent margin disapproved of Hickenlooper's handling of the Dunlap case. Meanwhile, 63 percent favored keeping the death penalty while 28 percent supported abolishing it. "There has been strong, unwavering support for the death penalty and a sense that the governor's 'not on my watch' position on the issue could hurt him on Election Day," said Tim Malloy, assistant director of the Quinnipiac's polling operation.

Colorado has three [defendants on death row]. Colorado has executed only one person in the last 47 years, kidnapper, rapist and murderer Gary Lee Davis, who was put to death in 1997.

August 30, 2014 in Clemency and Pardons, Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, August 06, 2014

Some sentencing reminders about what stalled in the "do-nothing Congress"

I tend not to get into bashing Congress for failing to do stuff while locked into its current partison gridlock.  This is in part because I see gridlock reflecting important, real and deep policy divisions on certain critical public policy issues, and in part because I always worry federal legislation will (sometimes? often?) risk making certain problems worse rather than better through questionable one-size-fits-all approaches to governing.  (For a useful discussion of this basic perspective, I liked this recent Washington Post commentary by Jared Bernstein headlined "The do-nothing Congress is still better than the actively-do-harm Congress.")

Whatever one's broader views concerning the vices or virtues of a do-nothing Congress, proponents of federal sentencing reform cannot help but be somewhat disappointed that a lot of notable (and arguably badly needed) federal sentencing proposals are now stuck in neutral inside the Beltway.  For starters, as Bill Otis is quick to note in this new post at Crime & Consequences, it seems that all the bipartisan momentum that had built up around the Smarter Sentencing Act (and also some other reentry/back-end sentencing reform bills) has now come to something of a halt. 

For the record, I had always believed and feared that significant statutory reform to any major federal sentencing provisions would be an up-hill climb in a divided Congress, especially after seeing how hard it was to achieve (quite tepid) reform of extreme statutory crack sentencing provisions even when Congress was firmly in Democratic control.  A year ago, in this little post titled "Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?", I ruminated that if "Senator Rand Paul and other libertarian-leaning Senator were to become chairs of key Senate Judiciary subcommittees, I think the odds of significant federal criminal justice reforms getting through Congress might actually go up."  A year later, I continue to believe that folks particularly eager to see federal statutory sentencing reforms become a reality may now want to root for certain GOP members to become in charge in the Senate.

One other federal sentencing legistaive reform topic on my mind concerns federal child porn restitution awards in the wake of the mess the Supreme Court seemed to make on this front a few months ago through its Paroline decision.  Regular readers likely recall that lots of folks were advocating (some even predicting) that Congress could come up with a quick statutory fix to Paroline.  But, as of this writing, there has been little action on or serious discussion about a Paroline fix bill known as "Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014." And I definitely fear that the need for, and likelihood of, any effective statutory Paroline fix goes down a bit every month as lower federal courts get in the habit of dealing with the doctrine that Paroline left behind.

Some prior related posts:

August 6, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack

Conservative Townhall publication provides more signs of modern political sentencing times

Townhall Magazine promotes itself as "the hottest monthly conservative magazine for politics, investigative reporting, news, conservative humor, culture, and commentary from your favorite authors and personalities." For that reason (and others), I was intrigued to see that the August issue of Townhall Magazine has this lengthy new article headlined "Should Conservatives Oppose the Death Penalty?" The article has two Townhall editors debating "whether or not the United States should keep using the death penalty."   In addition, the columnist section of the Townhall website today has these three notable new columns on topics frequently discussed on this blog (and, especially, championing positions I have often advocated):

Jonah Goldberg:  "Liberals Come Late to the Pot Party"

Harry R. Jackson, Jr.:  "Restoring Prisons and Prisoners on Our Watch"

Jacob Sullum:  "Why Prosecutors Love Mandatory Minimums: Seeking to Shorten 'Draconian' Sentences, the Attorney General Faces Opposition From His Underlings"

I have long said on this blog that I thought a lot of my positions concerning mass incarceration, severe mandatory minimum sentencing provisions and the modern drug war ought to appeal to principled anti-big-government concervatives.  This latest collection of pieces via Townhall confirms these views for me.

August 6, 2014 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, August 01, 2014

Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform

I have previously questioned the assertion that significant federal sentencing reform is inevitable, and the failure of the current Congress to make serious progress on the Smarter Sentencing Act or other notable pending federal sentencing reform proposals has reinforced my generally pessimistic perspective.  But this effective new article from the Washington Examiner, headlined "2016 contenders are lining up behind sentencing reform --- except this one Tea Partier," provides further reason to be optimistic that federal sentencing reform momentum will continue to pick up steam in the months ahead.  Here are highlights:

Sen. Marco Rubio hasn’t hammered out a firm position on mandatory minimum sentencing laws yet.  A year ago, that would have been perfectly normal for a Republican senator and rumored presidential contender.  But over the last months, most of the potential Republican nominees have voiced support for policy changes that historically might have gotten them the toxic “soft on crime” label.  These days, though, backing prison reform lets Republicans simultaneously resurrect compassionate conservatism and reach out to voters who wouldn’t typically find much to love from the GOP.

Rep. Paul Ryan is one of the latest potential presidential candidates to tout mandatory minimum sentencing reform as part of a conservative strategy to reduce poverty.... [H]e has debuted a new anti-poverty agenda that includes support for the Smarter Sentencing Act, a bill with a Senate version co-sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Tea Party favorite Sen. Mike Lee, R-Utah, and a House version from Rep. Bobby Scott, D-Va., and Raul Labrador, R-Idaho.  That bill would shorten some of the mandatory minimum sentence lengths and also would expand the “safety valve” that keeps some non-violent drug offenders from facing mandatory sentences.

“It would give judges more discretion with low-risk, non-violent offenders,” Ryan said in a speech at conservative think tank American Enterprise Institute.  “All we’re saying is, they don’t have to give the maximum sentence every time.  There’s no reason to lock someone up any longer than necessary.”

Ryan is the latest in a string of potential presidential contenders to get on board with prison reform.  But it’s likely the state of criminal justice reform would look different without Texas Gov. Rick Perry. In 2007, the Texas legislature adopted a budget designed to reduce the number of people incarcerated and spend more money on treatment. Since then, the state has closed three adult and six juvenile prisons, crime rates have reached levels as low as in the 1960s, and recidivism rates have dipped.

Perry has used his national platform to tout this reform — at a Conservative Political Action Conference (panel with Americans for Tax Reform President Grover Norquist, for instance, he said real conservatives should look to shut down prisons and save money — and other states have adopted reforms following the Lone Star State model.

Sen. Rand Paul, another 2016 favorite, has been one of prison reform’s most vocal boosters.  In an April 2013 speech at Howard University — a speech that got mixed reviews — he drew plaudits for criticizing mandatory minimum sentencing laws.  “Our federal mandatory minimum sentences are simply heavy-handed and arbitrary,” he said, per CNS News. “They can affect anyone at any time, though they disproportionately affect those without the means to fight them. We should stand and loudly proclaim enough’s enough.”

That speech took prison reform one step closer to becoming a national conservative issue, rather than just the purview of state-level think tank wonks and back-room chats among social conservative leaders.

And, of course, New Jersey Gov. Chris Christie addressed the issue in his second inaugural, connecting support for prison reform to his pro-life convictions.

None of this support means that legislation like the Smarter Sentencing Act has good odds in this Congress.  Brian Phillips, a spokesman for Lee, said that since House Majority Leader Eric Cantor’s astounding primary loss, House Republicans have become more gun-shy about any sort of politically complicated reform measures.  And GovTrack.us gives that bill a 39 percent chance of being enacted.

But that doesn’t mean conservative appetite for prison reform will abate.  Molly Gill, government affairs counsel for Families Against Mandatory Minimums, said interest in the issue is growing. “ It can’t go away,” she said. “If Congress doesn’t fix it now, it’s still going to be a problem next year. It’s going to be a problem at the Department [of Justice], it’s going to be a problem in appropriations committees, it’s going to be a problem for the Commerce, Justice and Finance subcommittees when they’re doing appropriations bills — because there is no more money coming, and we’re just going to keep stuffing people into overcrowded prisons.”...

For now, most of the Senate Republicans publicly eyeing 2016 bids have co-sponsored Lee and Durbin’s Smarter Sentencing Act — except Rubio, who said his office is examining it. “I haven’t looked at the details of it yet and taken a formal position,” he said. “We study those things carefully.”

Some recent and older related posts:

August 1, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack