Tuesday, March 06, 2018

Noting the focus on prosecutor elections as new front in criminal justice reform efforts

This new McClatchy article, headlined "Progressive groups investing in district attorney races as path to criminal justice reform," highlights the new focus on DA elections within the broader modern criminal justice reform movement. Here is how the piece starts:

The American Civil Liberties Union, backed by millions in funding from billionaire Democratic donor George Soros, is investing resources and applying organizational muscle in local district attorney races in 2018.

The ACLU is among a variety of organizations working to elect prosecutors willing to jumpstart a laundry list of criminal justice reforms, including an overhaul of the pretrial bail bond system. It received a $50 million grant from Soros’ Open Society Foundations in 2014.

Now, in this year’s elections, the organization is planning voter education and outreach campaigns in district attorney races in California, Florida, Maine, Massachusetts, Minnesota, Oklahoma, Oregon, Vermont and possibly North Carolina and Missouri.

The group hasn’t determined which local races will be targeted, but it will focus on contests in big cities with large jail populations that feed the state prison system, said Taylor Pendergrass, senior campaign strategist for the ACLU’s Campaign for Smart Justice.  More than 1,000 local prosecutors are up for election in November, according to the group. “We’re just recognizing how powerful district attorneys are in shaping criminal justice policies, both at the local level, but also at the statehouse,” Pendergrass said. “The lobbying power of prosecutors is really a substantial force almost everywhere we want to see change made in the criminal justice system.”

The ACLU doesn’t endorse political candidates. Instead, it said the objective is to raise awareness about criminal justice issues of concern to the organization, its members and the voting public.  But Soros-funded super PACs and advocacy groups have helped elect a growing number of progressive district attorneys who now serve metro areas such as Chicago, Denver, Houston, Philadelphia and Orlando. And it’s looking to add more in 2018.

The Color of Change Political Action Committee, which has also received Soros funding, is urging black voters to support Democratic candidate Elizabeth Frizell for Dallas County District Attorney in Texas.  A former state district judge, Frizell has called for special prosecutors to investigate shootings by police.  She also supports replacing cash bail bonds with a pretrial release system based on factors such as the type of offense, the facts of the case and the defendants’ likelihood to re-offend and return to court.

An African American, Frizell reflects a new wave of ethnically diverse, activist district attorney candidates, many of whom support policies such as diversion programs for minor drug offenders, reentry programs for people leaving prison and reducing disparities that disproportionately impact poor and minority defendants in the courts.

March 6, 2018 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Saturday, March 03, 2018

Jim DeMint explains how "core of conservatism" at core of South Carolina's leadership on criminal justice reform

Jim DeMint, a former US Senator from South Carolina, has recently become of significant conservative voice in support of various criminal justice reforms. His latest commentary, appearing here under the headline "How Jim DeMint wants SC lawmakers to redefine ‘tough on crime’," links conservative principles and recent reforms and proposals in the Palmetto State. Here are excerpts:

The core of conservatism is the dignity of every individual and the value of every life.  That’s why we talk about individual freedom, self-reliance and personal responsibility. Conservatives fight for limited government to preserve these sacred goals.  And that’s why we care about prison reform.  The values conservatives hold dear are jeopardized when prisons fail to deliver results.  We owe it to victims, law enforcement and the citizens of our communities to act.

In 2010, South Carolina showed the nation how a conservative state can lead on criminal justice reform.  Back then, we stood squarely at a crossroads.  Our prison population was growing at an unsustainable rate, and we were forecasting the need to burden our taxpayers by building more prisons.  We had to take action.  The Palmetto State could go to an old playbook of tough on crime: incarcerate more, spend more and break an already strained budget.  Or we could redefine what it means to be “tough on crime” by adopting smart policies aimed at keeping people safer, reintegrating citizens into the community and taming expensive correctional spending.

Fortunately, state leaders chose a new direction.  S.1154 addressed the enormous number of people churning in and out of our prisons for low-level nonviolent crimes and violations of supervision conditions.  They also established the Sentencing Reform Oversight Committee, made up of legislators, stakeholders and policy experts, to track the law’s performance and make ongoing recommendations for reform in the future.

The results were transformative.  Our violent and property crime decreased by 16 percent, and recidivism dropped by 10 percent.  Our prison population dropped by 14 percent. As a result, we have shut down seven facilities and saved taxpayers nearly half a billion dollars.  Today, based on this innovative approach and the tireless efforts of the men and women at the departments of Corrections and Parole and Probation Services trusted with its implementation, more people are returning to their families and communities and becoming productive, tax-paying citizens.

As reforms outperformed our expectations, skeptics became believers, and practitioners in courtrooms and the corrections system have built a culture of following evidence-based practices.

Still, our prisons are understaffed and struggle with a growing threat of violence within facilities. Therefore, we should pursue evidence based-reform that we know can deliver results. Prison resources should be spent on those who pose a threat to public safety and are not wasted denying liberty to those who can be safely supervised in the community....

Nearly 80 percent of the prison population is still incarcerated for non-violent offenses.  Those convicted are staying in prison too long, nearly a third longer than in 2010.  Our system drains $500 million from taxpayers and has a negative impact on families and communities.  There are also gaps in supervision best-practices that don’t meet the high standard we should hold ourselves to.

March 3, 2018 in Elections and sentencing issues in political debates, State Sentencing Guidelines | Permalink | Comments (2)

Saturday, February 24, 2018

Notable video from American Conservative Union: "Unshackled - America's Broken Justice System"

Speakers such as Prez Trump and the head of the NRA got the most attention at this year's annual Conservative Political Action Conference (CPAC) received the most attention, but Friday's CPAC agenda included a General Session panel titled "Second Chance: The Conservative Stance on Criminal Justice Reform" as well as a breakout sessions titled "Dignity for Incarcerated Women: Is it Really Necessary to Shackle Women in Labor?." I have been noting in recent years the intriguing criminal justice reform programming appearing on the CPAC agenda, and now I see that the Center for Criminal Justice Reform of the American Conservative Union Foundation has a notable new video with conservative leaders discussing why modern criminal justice reform is a core conservative concern:

February 24, 2018 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Sunday, February 11, 2018

"The American people have spoken: Reform our criminal justice system"

Holly Harris, executive director of the Justice Action Network, has this notable new Hill commentary with a headline that I have used as the title of this post. Here are excerpts:

Republicans and Democrats are both invested in fixing the justice system, which makes it difficult for either side to politicize this effort.  That wouldn’t be smart politics anyway. Polls show widespread support for specific reforms that will lower the swelling prison population, save money, and make communities safer.  This support is strong among voters in both parties, as well as Independents and women, who are swinging elections in this country.

Three-quarters of American voters think the country’s criminal justice system needs to be significantly improved, according to a poll conducted earlier this year by the conservative polling firm Public Opinion Strategies on behalf of the Justice Action Network.  That conviction is shared equally among Republicans, Democrats and Independents. Robert Blizzard, who conducted the poll, said, “I can’t think of a more positive issue to run on that has more bipartisan support.”  His advice matters, as his firm polls for more than a quarter of the Republicans in the House....

Congress must now stop using the president as an excuse not to bring criminal justice bills to a vote.  The House and Senate are both expected to consider legislation later this year that would implement some of the reforms that voters crave, and the president’s words on the world’s grandest political stage gave Congress a clear runway to act.

Any credible pollster out there would tell members of Congress on both sides of the aisle to tackle this issue and “go big before you go home.”  Voters, by wide margins, favor major changes to our criminal justice system.  Nine out of 10 American voters believe we should break down the existing barriers that make it harder for people leaving jails to find work and support their families.  Republicans are just as likely to hold that view as Democrats.

That is overwhelmingly good news for supporters of “ban the box” or “fair chance hiring” policies, which dozens of states have adopted that would prevent public employers from asking job applicants whether they have been convicted of a crime before they have a chance to explain their qualifications for the job.  Two-thirds of all voters want Congress to enact this policy at the federal level, and Republican governors from Kentucky, Georgia, Arizona, Oklahoma and Indiana have recently taken up this cause.

Attitudes of Americans toward incarceration have shifted dramatically since a generation of Republicans and Democrats enacted tough-on-crime policies at the state and federal levels in the 1980s and 1990s.  Voters now demand more policies that give judges and the justice system more discretion to tailor punishments specifically to individual crimes and cases.

One of the best examples of this shift is the overwhelming opposition to mandatory minimum sentences.  Some 87 percent of voters want judges to have more discretion to sentence nonviolent offenders on a case-by-case basis rather than saddle them with formulaic sentencing requirements that have clogged our prisons with people convicted of nonviolent crimes.  That includes 83 percent of Republicans.

It’s mind-boggling that this issue is controversial in Washington. Not only do Americans want to change how many people we lock up and for how long, they also want policies that will get them back on track.  Some 85 percent of voters think the primary goal of our justice system should be to rehabilitate people so they can become productive, law-abiding members of society. Americans now understand that investing in more treatment rather than more prisons will ultimately make us all safer when these individuals do not return to crime.

Americans no longer believe everyone who commits a serious but nonviolent crime should automatically wind up in prison. Some 87 percent of voters would like governments at the state and federal levels to shift some of the money spent incarcerating nonviolent offenders toward alternative programs, like electronic monitoring, community service or probation. A majority 59 percent feel strongly about it.

Budget concerns are one driver of these changing attitudes.  American voters overwhelmingly believe we spend too much money locking people up, and should spend more on treating drug addiction, helping victims and preventing future crimes.  Voters also want to see more oversight of prisons to ensure taxpayer funds are being spent responsibly.

Prior related post:

February 11, 2018 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Monday, February 05, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, February 04, 2018

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

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

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

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

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

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

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

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

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

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

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

Friday, January 26, 2018

New poll suggests strong bipartisan support for criminal justice reforms

JAN_Web-LogoThis new article from The Hill, headlined "Poll: 3/4 of Americans support criminal justice reform," provides highlights from a notable new survey:

Three-quarters of Americans think the nation’s criminal justice system needs to be significantly improved, according to a new poll out Thursday....

A Justice Action Network poll conducted by Robert Blizzard, a partner at the Republican-leaning Public Opinion Strategies, found a majority of Americans surveyed, 76 percent, believe that the country’s criminal justice system needs significant improvements.

Of the 800 registered voters polled between Jan. 11 and 14, 87 percent of Americans agree that some of the money being spent on locking up nonviolent offenders should be shifted to alternatives like electronic monitoring, community service and probation.

Two-thirds of voters — 65 percent — support fair chance hiring, and 87 percent of voters strongly support replacing mandatory minimum prison sentences for non-violent offenders with a system that allows judges more discretion.  Eighty-five percent of voters, meanwhile, agree that the main goal of the nation’s criminal justice system should be rehabilitating people to become productive law-abiding citizens.

Many more of the poll particulars are available via this Justice Action Network press release and through this PowerPoint.  The press release emphasizes reasons why politicians should be paying attention to these issues:

[V]oter support for bipartisan justice reforms is overwhelmingly high, especially among women, who remain a crucial voting bloc heading into the 2018 midterm elections, and may determine the makeup of the House in November....

“This is not a partisan issue–voters strongly believe that the country’s criminal justice system needs serious improvements,” said Robert Blizzard, Partner at Public Opinion Strategies. “Significant majorities of Republican and Democratic voters across the country favor these reforms, including key 2018 target constituencies like independent voters and women voters. I can’t emphasize enough how strongly voters support these reforms. As a political pollster looking towards 2018 I think all politicians should pay attention. Go back to 2006, women voted for the democratic candidate by double digits. In 2010, women favored the GOP candidate and helped deliver the house to Republicans. Key constituencies are strong on these reforms and they can help give a lift to candidates everywhere.”

January 26, 2018 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Tuesday, January 16, 2018

Is "tough-on-crime" no longer a winning political strategy?

The question in the title of this post is prompted by this new Daily Beast article authored by Inimai Chettiar and Udi Ofer, which is headlined "The ‘Tough on Crime’ Wave Is Finally Cresting." Here are excerpts:

For decades, politicians competed to see who could push the most draconian criminal justice policies. Jeff Sessions's announcement this month that he would authorize federal prosecutors to go after pot even in states where it is legal seems ripped straight from that playbook.  But the “tough on crime” Attorney General may be in for a surprise.  In 2018, it turns out, demagoguery about crime no longer packs a political punch.  In fact, support for reform may prove to be a sleeper issue in 2018 and 2020.

This would be a big change. Candidates most prominently began to compete on crime in the tumultuous 1960s.  Richard Nixon won with ads showing burning cities and scowling young men, ads crafted by an unknown aide named Roger Ailes.  Ronald Reagan launched a “war on drugs.”  George H.W. Bush won in 1988 with notorious ads telling the story of Willie Horton, who was allowed out of prison under a weekend furlough program.  Bill Clinton in 1992 bragged of his support for the death penalty. These chest-thumping themes were echoed in hundreds of campaigns down the ballot each year....

Over the last decade, a bipartisan movement has arisen to push back and revise criminal justice policy. Throughout 2016 it made real strides. Black Lives Matter and advocates brought national awareness. The Democratic and Republican parties included reducing imprisonment in their platforms — a stark reversal of past policy.  Every major candidate for president — with the exception of Donald Trump — went on the record supporting justice reform.

Then came the startling rise of President Trump. In his inaugural address, he warned of “American carnage” and rampant crime.  His attorney general, Jeff Sessions, had killed the bipartisan sentencing reform bill as a senator. Now, at the Justice Department, he is piece-by-piece dismantling his predecessors’ efforts to reduce federal imprisonment rates.  This has chilled the artery of many politicians once eager to support reform efforts in Washington.

For Trump and Sessions, it seemed, it was still 1968. They are waging traditional scare politics.  But something unexpected happened on the way to the backlash.

Lawmakers in blue and red states alike pressed forward with reforms.  In 2017, 19 states passed 57 pieces of bipartisan reform legislation.  Louisiana reduced sentences. Connecticut modernized bail.  Georgia overhauled probation.  Michigan passed an 18-bill package to reduce its prison population.

And in the 2017 elections, candidates won on platforms that proactively embraced justice reform. In Virginia, for example, gubernatorial candidate Ed Gillespie defined his campaign by running modern day “Willie Horton” ads against Ralph Northam for restoring the right to vote to former prisoners, and branded him as “weak” on MS-13. Voters handed Northam a sizeable win. In deeply conservative Alabama, Doug Jones campaigned on criminal justice reform. Trump repeatedly attacked Doug Jones as “soft on crime.” But Jones beat Roy Moore.

Urban politics have been transformed, too.  District attorneys campaigning on reducing imprisonment are winning across the nation, most recently in Philadelphia.  Justice reform proved a powerful organizing issue among the young and in communities of color.

January 16, 2018 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Tuesday, January 09, 2018

Two notable new additions to the Senate Judiciary Committee that should generally hearten sentencing reform advocates

As reported here by the Washington Post, "The Senate Judiciary Committee will welcome its first African American members in this century after Democrats added Sens. Kamala D. Harris (D-Calif.) and Cory Booker (D-N.J.) to the panel that handles judicial nominations and appointments to the Justice Department." Here is more:

“The Congressional Black Caucus could not be more proud of both of our Senate members and know the experience and expertise they bring to the Committee will be beneficial for all Americans,” said Rep. Cedric Richmond (D-La.), the CBC’s chairman, in a statement.

Harris, a former attorney general of California, was seen as a likely candidate to join the committee after Sen. Al Franken (D-Minn.) announced his resignation late last year. The appointment of Booker was more of a surprise, coming one year after Booker testified against the appointment of then-Sen. Jeff Sessions (R-Ala.) as attorney general, a rare move for one senator to make against another. Sometime after that hearing, Booker learned that he and Harris were “second and third in line” if openings came up.

“The Trump administration has repeatedly demonstrated its hostility to the ideals of civil rights and equal justice for all,” Booker said Tuesday in a statement announcing his appointment. “As a member of the Senate Judiciary Committee, I will make it my mission to check and balance President Trump and Attorney General Sessions.”

No African American senator has sat on the Judiciary Committee since the 1990s, when Carol Moseley Braun, a Democrat from Illinois, became the first black woman elected to the Senate. There had been pressure on Democrats to elevate Harris; in the end, Senate Minority Leader Chuck Schumer opted to elevate both of the Senate’s black Democrats.

Harris’s appointment was possible because Democrat Doug Jones’s victory last month in Alabama shrank the Republican advantage on two committees. (Republicans now have one-seat advantages on the Judiciary Committee (11 to 10) and Finance Committee (14 to 13); Sen. Sheldon Whitehouse (D-R.I.), who is in his second term, will join the latter committee.)

Senator Booker has been a fairly vocal advocate for sentencing reform since his election to the Senate back in 2013, and he has sponsored bills on a range of criminal justice issues. Senator Harris has worked as a state prosecutor and has expressed support for criminal justice reform in various ways since becoming a Senator just last year.  (Conveniently, Mother Jones has this interesting lengthy new profile of Senator Harris, headlined "The Secret to Understanding Kamala Harris: And why it’s making her a flash point in the Democratic Party," which highlights why some on the left do not see her as a true reform ally.)

Critically, in recent years it has been Senate leadership, not the Senate Judiciary Committee, that has been a roadblock to getting significant statutory sentencing reform enacted.  Thus, the addition of Senators Booker and Harris to the Judiciary Committee does not, in and of itself, directly impact in any dramatic way the likelihood of some form of sentencing reform getting passed in 2018.  But their knowledge and reform-minded vision could and should impact the Committee's work in various ways in the coming year that should be heartening to advocates of sentencing reform.  And their place on the Committee could become a very big deal if the Democrats were able to take back control of the Senate come November.

January 9, 2018 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Wednesday, December 20, 2017

"Three ways conservatives can lead criminal justice reform"

The title of this post is the title of this new commentary authored by Bob McClure, who is president and CEO of The James Madison Institute. Here are excerpts:

As head of a conservative think tank dedicated to principles of limited government and constitutional liberties, I find two things increasingly obvious: Our criminal justice system is in dire need of comprehensive reform, and that effort is being led not by bureaucrats in Washington but by policymakers and leaders in the states.  I look around the country and see great strides by states like Georgia, Oklahoma, Texas and Louisiana.  I see policymakers in my home state of Florida starting to join the movement, and I want to get excited at the possibilities for real culture-changing efforts.

The reforms these states have passed will ultimately accomplish two things: They will improve public safety and will save millions of taxpayer dollars.  Nevertheless, the road forward is anything but a clear or easy journey.

In our organization’s research of policy initiatives, a particular statistic disappoints me more than all others: our nation’s incarceration rate.  According to data from the International Center for Prison Studies, the United States currently incarcerates approximately 737 people per 100,000 citizens, counting both adults and juveniles.  This puts us right at the top of the list -- more than Iran, more than Russia, more than Rwanda.  We owe it to ourselves to ask why this is the case and how we can correct course....

Drug and non-violent offenses have created a revolving door in our jails and prisons, both at the state and federal levels.  It’s estimated that as many as one-fourth to one-third of our inmates are in prison for drug-related offenses.  Many are there because of oppressive sentencing rules that have eliminated the proper role of judges and created an incarceration-industrial complex trapping far too many families in a cycle of prison, poverty and despair.  Consequently, we have seen our prisons jam-packed with hundreds of thousands of offenders who have the potential to be rehabilitated but who end up sliding further down the path of crime and punishment....

There are three specific actions that can and should be championed at the state level to continue the progress conservatives have made in addressing criminal justice policy reform:

1.  Restore the role of judges in the system. For far too long, judicial discretion in sentencing has been eroded, the unfortunate result of well-intentioned conservatives over many years.

2.  Begin to address the distinction between those trafficking in narcotics as a criminal enterprise and those individuals selling smaller amounts of drugs to feed their addiction.  We want to lock up the bad guys feeding poison to our children, but we should be able to distinguish between those hardened criminals and addicts needing treatment.

3.  Reaffirm the need for substance abuse and mental health approaches in the justice system. The cost for drug crimes is a sliding scale over time.  As individuals reoffend and continue the cycle, the long-term costs of incarceration, safety net use, and lower employability far outweigh the short-term investment in treatment and rehabilitation.

This trio of actions is just a small piece of a very broad conservative policy reform agenda that states must champion.  As we seek to promote conservative principles and at the same time address the challenges impacting our society from scourges like addiction, it is my hope that states can be the shining example of how to lead the way forward.

December 20, 2017 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Thursday, December 14, 2017

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 30, 2017

Does federal statutory sentencing reform become a bit more likely if Senator Tom Cotton were to become CIA Director?

The question in the title of this post is what kept coming to mind as I scanned this new Washington Post article headlined "White House readies plan to replace Tillerson with Pompeo at State, install Cotton at CIA." Here is the start of the piece:

The White House has readied a plan to oust embattled Secretary of State Rex Tillerson and replace him with CIA Director Mike Pompeo, who has become one of the most personally loyal and politically savvy members of President Trump's national security team, two administration officials confirmed Thursday.

The plan, hatched by White House Chief of Staff John F. Kelly, is expected to be set in motion over the next few weeks, and has broad support within Trump's inner circle, the officials said. But it was unclear whether Trump had signed off on the plan yet, and the president has been known to change his mind about personnel and other matters before finalizing decisions with public announcements.

Under the plan, Pompeo would likely be replaced at the CIA by Sen. Tom Cotton (R-Ark.), one of Trump's most steadfast defenders and a confidant to some leading members of the foreign policy team, according to the officials, who spoke on the condition of anonymity because the White House has not publicly announced the moves.

Federal statutory sentencing reform has not made much progress this year while GOP leadership in Congress has been focused on health care and tax reform. But, as noted here last month, some in-the-know folks believe the Sentencing Reform and Corrections Act could receive 70 votes in the Senate if ever brought to a vote.  And, based on all of his vocal opposition to reform expressed last year (as noted in posts below), I think Senator Cotton is one big reason the Sentencing Reform and Corrections Act seems unlikely to get a vote in the Senate in the near future.  But if Senator Cotton becomes CIA Director Cotton, maybe these political dynamic change for the better for those eager to see sentencing reform enacted in Congress.

Prior related posts about Senator Cotton's opposition to sentencing reform:

November 30, 2017 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (6)

Tuesday, November 21, 2017

Senator Mike Lee explains how "conservative approach to lawmaking" drives his advocacy for federal sentencing reforms

Lee_1x1Pew's Public Safety Performance Project has this notable new Q&A with Mike Lee under the subheading "A U.S. senator and former assistant U.S. attorney discusses crime and punishment, and how his views on both have changed."  I recommend the entire Q&A, and the final three Qs and As struck me as worth reprinting here:

Q: How has your conversion on criminal justice influenced your career?

A: When I got to the Senate, I remembered what that [Judge Paul Cassell in the Angelos case] had said, and I realized that I had become one of the people who could help fix this problem.  So that’s what I decided to do.  I knew it wouldn’t necessarily be easy, but I also knew it was important.  So I started looking for allies, and that led me to team up with Sen. Dick Durbin (D-IL) on our legislation.  It’s easy to say you want to be tough on crime and go along with any and every attempt to increase penalties, including minimum mandatory penalties. But to be effective, a criminal justice system must be seen as legitimate.  And for too long, our federal sentencing laws have required punishments that just don’t fit the crime.

Q: Have you encountered any interesting reactions to the change in your views?

A: Most of it is encouraging. Most people I talk to, regardless of where they are on the political spectrum, are glad that somebody is doing this. And they’re glad to see me involved. There are some who aren’t. There are some who get upset and pound their chest and say, “You need to take criminals and lock them up and you need to throw away the key. We’ve got to be harder on crime and harder on criminals rather than softer.” So yes, there are those who take that approach, and most of those people would probably describe themselves as conservatives. Regardless of whether you consider that a conservative approach or not, I don’t think it’s a particularly thoughtful one. I don’t think it’s a particularly helpful one. It does us no good to be harsh just for the sake of harshness.  Harshness itself isn’t an end objective.  We want to be smart in the way we punish crime.  We want to be effective. Public safety is the end result we’re trying to achieve.

Q: Any final thoughts?

A: Some people ask me, “Why are you doing this even though you’re a Republican? And a conservative Republican at that?”  And the answer is that I don’t view criminal justice reform as incompatible with being a conservative; in fact, I’m doing this because I’m a conservative. Conservatives purport to be conservative because, among other things, conservatives believe we should take great care when government intervenes to deprive someone of liberty or property.  There’s no greater due process deprivation than when the government puts someone away, either wrongfully or for a longer period of time than is just.  So for me, this is a natural outgrowth of my conservative approach to lawmaking.

November 21, 2017 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5)

Sunday, November 19, 2017

Notable advocacy for Georgia as "national model" for sentencing reform

Newt Gingrich and Kelly McCutchen have this notable new local commentary headlined "Criminal sentencing reform in Georgia has become national model."  Here are excerpts:

Texas is celebrating 10 successful years of reform that has led to the lowest crime rates since 1967 and the lowest rate of incarceration in a generation.  Meanwhile, the state of Georgia is following in the Lone Star State’s footsteps by increasing public safety and reforming the criminal justice system.

This is especially important to note because the FBI reported last month that while the national crime rate is down, violent crime has increased slightly for two years in a row, due in large part to an increase in homicides in cities such as Chicago and Baltimore.

In 2012, Gov. Nathan Deal recognized the breakthroughs Texas was making and began a justice reinvestment plan that tackled some of the biggest challenges facing Georgia’s criminal justice system.

Chief among these challenges was that Georgia sent many low-risk offenders to prison for lengthy sentences. For too long, the assumption was that the most appropriate form of punishment was long-term incarceration.  However, research shows that low-risk, nonviolent offenders who serve long sentences tend to continue to commit crimes after being released.

Once Georgia’s sentencing challenge was identified, the state was able to restructure sentences for property and drug offenses.  Lawmakers came up with alternatives that actually held offenders accountable -- rather than simply punishing them -- and reduced the likelihood that they would reoffend.  Alternatives included substance abuse treatment and accountability courts, both of which more effectively address the causes of many offenders’ behavior. This low-level sentencing change allowed the state to focus on imprisoning serious offenders, which resulted in fewer victims of crime, increased safety outcomes and lowered costs.

Georgia also worked to improve the juvenile justice system, which was exceedingly expensive and not as effective as it could be. The state began to implement programs to help rehabilitate juvenile offenders outside of a detention setting. At the same time, the state shifted its focus toward helping juvenile offenders who had served time to return to society as productive citizens....

The results speak for themselves:

• Violent and property crime rates have been on a steady decline for over a decade, with property crime and total crime taking an even steeper decline since the reforms, compared to the years prior.

• Parole revocation is down 35 percent from 2007 to 2016, a sign that fewer released offenders are sent back to prison because they violated conditions of their supervision.

• The Georgia corrections system now includes 67 percent violent offenders, up 9 percent since 2009, which illustrates a renewed focus on violent crime over low-level drug crime.

Georgia’s story is an incredible one for many reasons. First, it disproves the widely held belief that incarcerating more offenders means less crime.  The reforms in Texas and Georgia -- as well as South Carolina, Mississippi and other states -- show alternatives can be more effective.

Second, it shows that being “tough on crime” by incarcerating offenders for long sentences –-- and for every offense, large or small -- is more about playing politics than getting results. The research tells us that long sentences for low-level, nonviolent offenders can result in worse public safety outcomes.  Housing lower-risk people with more dangerous offenders makes them more dangerous themselves.  In this way, harsh sentences make our streets less safe.

These successes should drive our public policy discussions about crime and safety. We are disturbed by the FBI report on violent crime. Crime, particularly violent crime, is a complex issue that requires careful analysis to identify specific causes and remedies at the local level.  Georgia has already been successful in doing that with nonviolent crimes. It will take a community-wide effort to determine the best ways to keep violent crime at bay.

Those of us on the side of reform vow to work with policymakers, political leaders, and law enforcement to continue on the path that has led to years of low crime rates. This nation cannot backslide into antiquated, tired and misinformed narratives for the sake of political capital and convenience.

November 19, 2017 in Elections and sentencing issues in political debates, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Thursday, November 16, 2017

"Justice reform is real and conservative governors are leading the way"

The title of this post is the headline of this recent Fox News commentary authored by Kentucky Governor Matt Bevin.  Here are excerpts:

During the 2016 Republican National Convention in Cleveland, I participated in a national panel on criminal justice reform with like-minded, conservative governors Nathan Deal of Georgia and Mary Fallin of Oklahoma.  It was an honor for me to discuss how best to create second chance opportunities with these two veterans of criminal justice reform.

When I was elected as governor in 2015, it was my intention that Kentucky would also be making significant changes to our criminal justice system. That is exactly what we have been doing.  With a rising prison population, severely depleted workforce participation rates, and the highest percentage in the nation of children with at least one incarcerated parent, we unfortunately had plenty of room for improvement. For years Kentucky had maintained an outdated, “lock-em-up and throw away the key” approach. That was unsustainable from both a societal and financial cost and we were determined to shake up the status quo.

Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities—doing what is right for the people we represent is not a political statement. We began by making it easier for formerly incarcerated people to get back to work, passing a comprehensive felony expungement bill that allows certain former offenders, who have been crime-free for five years, to wipe their slates clean.  We also passed a bold reentry initiative that provides for more job training and eliminates regulatory barriers to employment for people with criminal records.

Our administration implemented “ban the box” for state government agencies to give ex-offenders a fair shot at employment, and launched the “Justice to Journeyman” initiative, which paves a pathway for inmates and detained youth to earn nationally recognized credentials in a skilled trade.  Kentucky’s success as the center for engineering and manufacturing excellence in America is only being enhanced as we pioneer changes in criminal justice policy....

I ... encourage ... all governors to tackle criminal justice reform policy with a sense of urgency and purpose. Some political advisors still speak passionately about being “tough on crime”, and caution that supporting criminal justice reform policy could be politically dangerous at election time.

This is a ridiculous notion. After all, more than 90 percent of those now incarcerated will eventually re-enter society.  We either pave a path towards second opportunities or we settle for recidivism. Which is better for our communities?

If we want voters to continue electing conservatives, we must offer serious solutions. We can no longer afford to cling to the outdated idea that prison alone is the only way to hold people accountable for their crimes.  Instead, we need to take a smarter, more measured approach to criminal justice.  More than simply removing lawbreakers from society, we must also rehabilitate and re-assimilate them back into society.

In the midst of national division in many fronts, a community of conservative governors are uniting to build trust and offer real solutions to some of our country’s greatest problems.  Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities — doing what is right for the people we represent is not a political statement.

America has always been a land of opportunity and second chances.  When we hold individuals fully accountable for their actions while treating them with respect in the process, all of society benefits.

November 16, 2017 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Wednesday, November 08, 2017

Another notable set of Election Day results for the criminal justice reform movement

One could readily spin the 2016 election as a good one for the (non-capital) sentencing reform movement: marijuana reform and sentencing reform initiatives won in a wide array of blue and red states, and the presidential candidate more supportive of federal reforms won the nationwide popular vote by a fairly sizable margin.  But, on the other side of the spin cycle, the death penalty won big ballot initiative victories in a three states (including California), and Donald Trump won all the right votes in all the right places to become Prez and bring his tough-and-tougher attitudes about crime and punishment into power in the federal executive branch.

I remind everyone of these mixed-message stories from the major election of 2016 because it seems there are not mixed messages or competing spins likely to emerge from the off-off-year election results in 2017.  In two gubernatorial races in New Jersey and Virginia, the candidate more supportive of some form of criminal justice reform prevailed.  As noted in this prior post, Prez Trump used his Twitter thumbs to make crime a central issue in the Virginia race, but his preferred candidate seems to have badly under-performed his poll numbers.  And in a widely-discussed local DA race, long-time defense attorney Larry Krasner won big in Philadelphia and now seems poised to engineer a whole new approach to the prosecutorial function in one of the largest cities in the US.

For an array of reasons, these results do not ensure that an array of sentencing reform movements at the federal, state and local levels are sure to be ever more successful and productive in the months and years ahead.  But they serve as a clear signal at this moment in time that advocating criminal justice reform in the right ways and in the right places can be part of winning political strategy (at least on the east coast).   The importance of that signal cannot be overstated.

November 8, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Tuesday, November 07, 2017

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

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

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

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

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

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

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

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

Saturday, October 28, 2017

"The Right Way: More Republican lawmakers championing death penalty repeal"

The-Right-Way-Thumbnail-232x300The title of this post is the title of this new report released this past week by the group Conservatives Concerned About the Death Penalty.  Here is its executive summary and part of its introduction:

More Republican lawmakers are recognizing that the death penalty is a broken policy and taking an active role in efforts to end it.  This report documents that shift by analyzing sponsorship of death penalty repeal bills in state legislatures between 2000 and 2017.

During the first part of this time period, from 2000 to 2012, Republican sponsorship of legislation to end the death penalty was relatively rare, with the number of Republican sponsors per year never exceeding single digits. But that has changed during the past five years, when there has been a significant increase in the number of Republican sponsors of repeal legislation.

In 2016 and 2017, dozens of Republican lawmakers sponsored death penalty repeal bills. In fact, during these two years, Republicans constituted around a third of all sponsors of death penalty repeal bills in state legislatures. As these data show, death penalty repeal efforts are becoming more bipartisan in many states.

These developments come as a number of conservatives have coalesced under the banner of Conservatives Concerned About The Death Penalty (CCATDP) to raise concerns about the death penalty in the media and other forums. Plagued by wrongful convictions, high costs, and delays, the death penalty has proven to be ineffective and incompatible with a number of core conservative principles. It runs afoul of conservative commitments to limited government, fiscal responsibility, and a culture of life.

Such concerns are increasingly impacting policy debates in state legislatures, among grassroots conservatives, and between conservative faith and party leaders. For many of us, our conservative principles inevitably lead to the conclusion that the death penalty is a failed government program that must end....

Conservatives Concerned About The Death Penalty launched in March 2013 at the Conservative Political Action Conference (CPAC).  At that time, death penalty use was rapidly declining. The number of executions was down to less than half of its peak in 1999. Annual death sentences were down to just over one quarter of their record high in 1996, and public support was down 20 points from its highest point in 1994....

Some of the biggest death sentencing drops occurred in reliably red states like Texas, Oklahoma, Alabama, and Louisiana. Many point to the action of a Republican governor in January 2000 as the death penalty’s turning point when Illinois’ then-Governor, Republican George Ryan, imposed the nation’s first state-based moratorium on executions. This set off a wave of increased scrutiny and institutional opposition to the death penalty. That same year, New Hampshire’s Republican-controlled legislature voted to repeal the death penalty, only to have its Democratic governor veto it.

Despite this history of efforts from Republicans, death penalty repeal was still largely seen as a liberal concern.

CCATDP’s launch in 2013 put conservative death penalty opposition on the national radar. For many conservatives, our launch was their first exposure to the conservative case against the death penalty.  For many others, it was the first time they realized they weren’t alone.

Since then, dozens of national, state, and local conservative leaders have lent their support to CCATDP.  Eleven local CCATDP branches have formed in states across the country. More than 1,400 media stories have included our conservative take on the death penalty. Among those, we have appeared on conservative talk radio stations in every state in the country. And Republican lawmakers have taken on death penalty repeal in statehouses from Virginia to Washington, Louisiana to Utah.

This report documents this last point – the dramatic rise in Republican sponsorship of bills to end the death penalty. It includes profiles of several Republican lawmakers who are leading the way, and it highlights some of the other trends that helped contribute to this rise.

October 28, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (6)

Thursday, October 26, 2017

Gallup reports reduced levels of support for death penalty in US

Tfkakmgl20mit7ddmcueeqAs reported in this new posting from Gallup, "Americans' support for the death penalty has dipped to a level not seen in 45 years. Currently, 55% of U.S. adults say they favor the death penalty for convicted murderers." Here is more:

The latest results, based on an Oct. 5-11 Gallup poll, continue a trend toward diminished death penalty support as many states have issued moratoria on executions or abolished capital punishment.  Gallup first asked about the death penalty using the current question format in 1936. Support has generally been 60% or higher throughout most of the past 80 years, but has been as low as 42% and as high as 80%.

The low point came in 1966 during a period spanning the late 1950s through early 1970s when a series of court cases challenged the legality of capital punishment. This culminated with the Supreme Court's 1972 decision in Furman v. Georgia that halted all U.S. executions. Three months before that ruling, 50% of Americans said they favored the death penalty.  Four months after it, 57% were in favor, the last time support was below 60%.

State legislatures responded to the Furman ruling by rewriting state laws to address the high court's concerns that the death penalty was not applied fairly.  Those new laws were deemed constitutional, leading to the resumption of capital punishment in the late 1970s. Death penalty support generally increased from the mid-1970s to the mid-1990s, peaking at 80% in 1994, a time when Americans named crime as the most important problem facing the nation.

Most of the decline in death penalty support in recent years is attributable to a drop in support among Democrats. In the early 2000s, consistent majorities of Democrats favored capital punishment -- but their support has been below 50% in each of the past five years, including just 39% in the current poll.

In contrast, Republicans continue to largely back the death penalty, with typically around eight in 10 in favor of the practice, though slightly fewer, 72%, do so in the current poll.  Independents' support is similar to the national average, at 58%, but has been lower the past three years than it was in most of the previous two decades....

Currently, 39% of Americans say the death penalty is not imposed often enough, 26% say it is used too much, and 26% say its use is about right.  Those views have been fairly steady in recent years but reflect a decline since 2010 in the percentage saying the death penalty is not used often enough.  That decline has mostly been accompanied by an increase in the percentage saying it is used too often.

Attitudes about the fairness and usage of the death penalty correspond with basic support or opposition toward capital punishment more generally.  Thus, the declines in recent years in the percentage of U.S. adults who say the death penalty is applied fairly or who are critical of how often it is used are largely related to the decline in basic death penalty support.

Over at Crime & Consequences, Kent Scheidegger has a few comments about these Gallup numbers, including this important observation:

The question Gallup has asked since 1936 is, "Are you in favor of the death penalty for a person convicted of murder?" The question is misleading as it asks about the death penalty for murder generally rather than just the worst murders. So understood, I would answer that question "no" myself. Gallup seems oblivious to the deficiency in this question, though, and regularly headlines the results in its reports. This year's "favor" answer to that question is the lowest since March 1972 (before Furman v. Georgia), and that is the headline on their report.

October 26, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Wednesday, October 18, 2017

Law enforcement group pressing Trump Administration to support criminal justice reform

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

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

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

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

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

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

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

"Prosecutors Are Banding Together to Prevent Criminal-Justice Reform"

The title of this post is the headline of this lengthy Nation article which carries this subheadline: "A new investigation shows that DA associations are thwarting changes to the death penalty, sentencing, and more."  My first reaction is being shocked, shocked that prosecutors oppose reductions in their power, but this story is still an interesting read.  Here is an excerpt:

District attorneys’ associations exist in most states.  They consist of dues-paying members—generally the lead prosecutors from every county or district in the state — and have bylaws, like most professional groups.  As professional organizations, they also have nonprofit status; their activities include public education and training as well as lobbying.

For the most part, these prosecutors’ associations adopt a “tough on crime” stance, advocating for legislation that would give them greater discretion to lock people up.  “They all too often act as a roadblock to significant reforms,” says Udi Ofer, director of the Campaign for Smart Justice at the American Civil Liberties Union.  “In state after state, we’ve seen DA associations hold back reforms that are supported by Democrats and Republicans alike.”

According to Fordham University law professor John Pfaff, prosecutors are the single most important factor in the increase of prison populations, because they tend to file charges even when the evidence suggests that someone should go free, and generally pursue the harshest sentence they can get.  District attorneys and county prosecutors can opt to drop charges — for example, by refusing to prosecute marijuana possession — or to favor pretrial intervention.  But Pfaff found that between 1994 and 2008, even as crime and arrest rates fell, the number of felony charges filed by prosecutors increased. From this data, he concluded that prosecutors were driving the phenomenon of mass incarceration through punitive charges and penalties.

Prosecutors have one big reason to protect harsh sentencing: Today, around 95 percent of federal and state criminal cases end in a plea bargain.  Such agreements, in which the defendant pleads guilty in exchange for a fixed sentence, avoid the time and expense of a jury trial, making it faster and cheaper for prosecutors to close cases.  And the more draconian the punishments that a prosecutor has at her disposal — high mandatory minimums, say, or the ability to charge a youthful offender as an adult — the more leverage she has to persuade someone to take a plea bargain instead of risking a trial.

In the last year or so, criminal-justice reform has topped the legislative agenda in several states, from conservative Florida and Louisiana to liberal California, and advocates for reform exist across the political spectrum, from the conservative Right on Crime, the Koch brothers, and former House speaker Newt Gingrich to the ACLU and Black Lives Matter.  In response, prosecutors’ associations have pushed legislators hard to reject such reforms.  And, in most cases, they have succeeded.

October 18, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

Thursday, October 12, 2017

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

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

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

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

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

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

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

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

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

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

Wednesday, September 27, 2017

Grover Norquist calls criminal justice reform one of the "conservative movement’s most important recent accomplishments"

Anti-tax icon Grover Norquist has this notable Wall Street Journal commentary under the headline "Conservatives for Criminal Justice Reform: You don’t hear about it much, but 31 mostly red states have reduced both crime and imprisonment." Here is how it starts:

Every so often I’m asked to list the conservative movement’s most important recent accomplishments.  One always ranks near the top: criminal justice reform.

With leadership from Republican governors and legislators and groups such as Right on Crime, conservatives have pushed to rein in runaway prison spending and adopt cost-conscious correctional policies that improve public safety.  Starting 10 years ago in Texas, more than half of all states have now shifted course, changing laws to ensure that violent offenders serve hard time while those who are not a danger are steered toward less expensive alternatives that can help alter the paths of their lives and make communities safer.

Taxpayers benefit.  In 2007 the Pew Charitable Trusts projected that state prisons would grow 14% over five years, costing states $27.5 billion more.  Instead, the reforms have bent the curve.  The state prison population is down 5%.  Between 2010 and 2015, 31 states reduced both crime and imprisonment, proving that fiscal discipline and safe streets can go hand in hand.

September 27, 2017 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Monday, July 31, 2017

"The Republican Party, Conservatives, and the Future of Capital Punishment"

The title of this post is the title of this new article authored by Ben Jones now available via SSRN. Here is the abstract:

The United States has experienced a significant decline in the death penalty during the first part of the 21st century, as death sentences, executions, public support, and states with capital punishment all have declined.  Many recent reforms banning or placing a moratorium on executions have occurred in blue states, in line with the notion that ending the death penalty is a progressive cause.  Challenging this narrative, however, is the emergence of Republican lawmakers as champions of death penalty repeal legislation in red states.  This Article puts these efforts by Republican lawmakers into historical context, and explains the conservative case against the death penalty: its incompatibility with limited government, fiscal responsibility, and promoting a culture of life.  Understanding Republican opposition to capital punishment takes on particular importance now following setbacks to efforts against the death penalty in the 2016 election.  In this environment, building support among Republicans and conservatives likely will prove critical for taking further steps toward limiting and eventually ending the death penalty in the U.S.

July 31, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (8)

Friday, June 23, 2017

"People keep voting in support of the death penalty. So how can we end it?"

The title of this post is the notable headline of this notable new commentary by noted death penalty abolitionist Austin Sarat.  The first sentence of the headline highlights an important political reality, and the commentary goes on to review recent political developments and to emphasize the political challenges that abolitionists face.  I recommend the commentary as a modern recap on the state of capital politics and as providing insights on how abolitionists can seek to develop a claim that capital abolition is not anti-democratic.  I found found this little piece of political history especially interesting:

Since the beginning of the 20th century, when states across the country first adopted ballot initiative and referenda processes, 14 of them have put the death penalty on the ballot, some more than once.  From 1912 to 1968, there were 11 such direct votes. Another 23 have occurred since 1968, during the height of America’s tough-on-crime, law-and-order era.

In a few of those elections, voters have been asked only to approve technical changes in their state’s death penalty law. In others, like last year in Oklahoma, they had to decide whether to change their state constitutions to protect or reinstate the death penalty.

Sometimes death penalty abolitionists have led the way in pushing for a referendum. More often, especially since 1968, voters have been asked to respond to a legislative, judicial or executive action which threatened to end, or ended, the death penalty. In those circumstances, the issue generally has been put on the ballot by pro-death penalty politicians.

Yet whatever the form of the question, or the reasons for putting the death penalty to a vote, abolitionists have consistently taken an electoral beating. They lost 31 of the 34 times when voters were offered the chance to express their views.

Let’s consider the three times opponents of capital punishment won. In Oregon, abolitionists prevailed in 1914. But, just six years later, another referendum brought the death penalty back — only to have it voted down again in 1964. Arizona voters rejected the death penalty in 1916, but brought it back in 1918.

Abolitionists have consistently lost in even supposedly progressive states like Massachusetts, which voted in favor of the death penalty in 1968 and 1982.

June 23, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Tuesday, May 23, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, May 17, 2017

Progressive defense attorney wins key primary and now seems poised to become Philadelphia District Attorney

As reported in this local article, a notable and unlikely figure won a Democratic primary and seems poised now to become the most remarkable of modern big city prosecutors.  Here are the basics:

Larry Krasner was the unlikeliest of candidates for district attorney in Philadelphia. That turned out to be just the ticket for victory in the unlikeliest of Democratic primary elections Tuesday.

Progressive voters demanded reform for an office currently held by a man under federal indictment. And the local race was nationalized by a growing sense of resistance among many Democrats in the city to President Trump’s every move.

Krasner, 56, easily defeated six other contenders Tuesday, in a campaign that went from low-key to high-profile last month with a $1.45 million investment from billionaire George Soros in a pro-Krasner independent political action committee. With nearly 98 percent of the vote tallied Tuesday night, Krasner held nearly an 18-point lead on his closest Democratic rival. Krasner will face in the Nov. 7 general election Beth Grossman, the lone Republican in her party’s primary Tuesday.

Krasner, a defense attorney for three decades best known for taking on civil rights cases for Black Lives Matter and Occupy Philadelphia members, AIDS activists and protesters arrested at political conventions, has never served a day in his career as a prosecutor. That became his pitch -- that he was more likely to reform the District Attorney’s Office because he had no ties to the institution, unlike most of the other Democrats in the race.

That message appealed to several hundred people who filled the John C. Anderson Apartments community room and an outdoor courtyard in Center City on Tuesday night for Krasner’s victory party. It got a little rowdy as the results rolled in. Chants of "No good cops in a racist system" and against the Fraternal Order of Police were quickly shut down by Krasner campaign staffers.

Krasner, who lives in West Mount Airy, told the crowd they shared a vision of “a criminal justice system that makes things better, that is just, that is based on preventing crime and is based on building up society rather than tearing it apart." And he reached out to the office he hopes to lead. "To the good people of the District Attorney's Office, I want you to know, you could have made more doing something else, but you became district attorneys because you wanted justice,” he said. “You know what I want? I want what you want. I want justice."

Krasner had a remarkable impact on the primary, pulling the field to the left, leading that movement with a pledge to stop seeking death-penalty sentences if elected. He joked Tuesday night that his position on capital punishment had been described as “political suicide.” As he ended his speech, the crowd launched into a booming chant of "This is what democracy looks like."

Krasner’s primary victory is certain to set off rumblings of uncertainty in the District Attorney’s Office. He has described it as “a place with a mad zeal for the highest charge, for the highest level of conviction, a culture that can find no flaw in police misconduct, that is drunk on the death penalty.” Krasner has also sued law enforcement agencies or the government more than 75 times.

His rise prompted a group of two dozen former District Attorney’s Office employees to endorse former city and federal prosecutor Joe Khan on Friday. Khan finished second in the race, followed by former city Managing Director Rich Negrin, former First Assistant District Attorney Tariq El-Shabazz, former city and state prosecutor Michael Untermeyer, former assistant district attorney Jack O’Neill, and former Municipal Court Judge Teresa Carr Deni.

Krasner, the son of a crime-fiction author and an evangelical Christian minister, grew up in St. Louis and graduated from Stanford Law School, starting his career as a federal public defender before launching his own firm in 1993. He is married to Common Pleas Court Judge Lisa M. Rau.

Krasner’s victory was fueled by biographical television commercials paid for with Soros’ cash. That helped him far outpace Untermeyer, who invested $1.3 million of his own money in the race, and Khan, who outperformed all the other candidates in fund-raising from individual donors.

May 17, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Wednesday, May 10, 2017

Highlighting that conservative voters say they support criminal justice reform efforts

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

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

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

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

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

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

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

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

Recent prior related post:

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

Wednesday, April 26, 2017

ACLU announces "new multi-year initiative to overhaul the power wielded by prosecutors"

Logo-revision2_0Via email I learned of this notable new ACLU press release describing a notable new ACLU initiative.  Here are the details from the release:

As part of its effort to achieve a 50 percent reduction in the U.S. jail and prison population, the ACLU Campaign for Smart Justice today announced a new multi-year initiative to overhaul the power wielded by prosecutors.  District attorneys are major drivers of mass incarceration, lacking accountability and transparency, and posing obstacles to criminal justice reform. The ACLU's initiative includes a series of high-impact, locally driven prosecutorial reform campaigns in a number of states across the country, beginning in Philadelphia where #VoteSmartJustice is underway to educate voters about the district attorney race in the May 16 primary. #VoteSmartJustice is working closely with the ACLU state affiliate and on-the-ground advocates to pursue litigation, legislative advocacy, and nonpartisan voter education — a model that other prosecutorial reform campaigns will follow.

“We will never truly transform our nation’s criminal justice system and end our addiction to mass incarceration until we hold prosecutors accountable,” said Udi Ofer, director of the ACLU’s Campaign for Smart Justice.  “Prosecutors are the most powerful, unaccountable, and least transparent actors in the criminal justice system.  This new effort seeks to not only rid our justice system of bad actors who exploit and abuse unchecked powers, but also to elevate and empower a new generation of prosecutors committed to reducing incarceration.  Particularly during the era of President Trump and Attorney General Sessions, the nation needs local prosecutors who will stand up to unjust federal initiatives and build a smarter and fairer criminal justice system.”

Approximately 3,000 prosecutors throughout the country are responsible for making decisions that affect the lives of millions of people.  The public knows too little about prosecutors and their impact on communities.

Although the mandate of prosecutors is to advance justice, many district attorneys have focused on punishment at any cost.  This approach has increased the jail and prison population; led to sentences that are too severe for the offenses; produced more wrongful convictions and more death sentences; and sent people with addictions, disabilities, and mental health conditions into jails and prisons who should receive treatment or other social services instead. These consequences of unchecked prosecutorial power burden people of color and the poor disproportionately.

To redirect prosecutors’ focus towards reducing mass incarceration, the Campaign for Smart Justice will use its prosecutorial reform initiative to pursue a series of high-impact, locally driven efforts. Together with the ACLU’s state affiliates and on-the-ground advocates, the initiative will follow a three-prong strategy:

Litigation: The initiative is hiring new litigators to file ten lawsuits aimed at holding prosecutors accountable and changing their policies and practices.

Legislative advocacy: The initiative will serve as a clearinghouse for prosecutor reform legislation, actively supporting the passage of key reform measures in ten states.

Voter education: The initiative will engage in nonpartisan efforts in ten prosecutorial elections, conducting voter education about the role that local prosecutors play in fueling mass incarceration.

The first of the initiative’s efforts is underway in Philadelphia, where the Campaign for Smart Justice is working closely with the ACLU of Pennsylvania to conduct an aggressive voter education effort before the May 16 primary.  Dubbed #VoteSmartJustice, this effort has trained dozens of canvassers, most of whom are formerly incarcerated individuals advocating for criminal justice reform, to blanket neighborhoods throughout the city to inform voters about the election and underscore the importance of holding prosecutor candidates accountable for their records.  Among the people to be targeted are the 11,000 ACLU members who are registered to vote in Philadelphia.

“Pennsylvania has the highest rate of incarceration in the Northeast, costing taxpayers $2.5 billion on prisons in 2015 alone,” said Reggie Shuford, of the ACLU of Pennsylvania.  “The impact of that staggering high incarceration rate is felt the hardest here in Philadelphia, and prosecutors have been a major driver of that reality.  This campaign will ensure voters are equipped with information about where the candidates stand on critical issues, and encourage them to demand that, in exchange for their support at the ballot box, candidates must commit to using their power responsibly, fairly, and justly.”

For more information about #VoteSmartJustice: https://votesmartjustice.org/home

April 26, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Saturday, April 01, 2017

"Conservatives Are Leading the Way as States Enact Criminal Justice Reform"

The title of this post is the headline of this extended Slate commentary (which is not an April Fool's Day joke). The piece is authored by LawProf Brandon Garrett, and it carries this subheadline: "Can their enthusiasm stop Donald Trump from pushing his backward 'tough on crime' agenda?". Here are excerpts:

The United States incarcerates its citizens at a higher rate than any other country in the world, but over the past few years, there’s finally been some progress. Rates of incarceration have finally begun to decline, mostly due to sweeping changes made in progressive states like California, New Jersey, and New York. According to Pew Charitable Trusts, adult incarceration has declined 13 percent since its peak in 2007, from 1 in 100 to 1 in 115.  Of course, this progress is threatened by Donald Trump and his administration: The president has not only promised to reinstate a long-outdated approach to criminal justice, he’s also made Jeff Sessions, who holds similarly antiquated views, his attorney general.  The two of them are preparing a task force to study violent crime — despite the fact that it’s already at historic lows — and are aiming to focus resources on drug cartels and drug use. They seem determined to return the federal government to the tough-on-crime era of the 1980s and 1990s, the height of the war on drugs.

But criminal justice reform is still marching forward—and the momentum is largely coming from conservatives, working in their state governments.  The conservative case for reform is obvious: Spending billions of dollars on prison expansion and lengthy sentences is outdated and ineffective. And the state level is where reform will be the most effective — the majority of people are incarcerated in state systems. Reducing that number helps states balance their budgets, said Lenore Anderson, president of Alliance for Safety and Justice, a criminal justice reform organization that centers on crime victims. “Continued budget problems mean that regardless of who’s in the White House, [criminal justice] is going to continue to be a ripe issue for reform.”...

Texas is one of several red states, along with Georgia, Kentucky, Mississippi, Oklahoma, and South Carolina, that has adopted a range of progressive initiatives in the past decade. Texas’ reputation as a gung-ho death penalty state may make its reform efforts a surprise, but in the past decade, fiscal conservatives joined forces with civil libertarians and reduced the state’s incarceration rate by 14 percent.  Part of that was thanks to forensic science and eyewitness identifications reforms that ended up putting fewer people behind bars. And rather than spend a half-billion dollars on building three new prisons, Texas instead invested in rehabilitation and re-entry, which has allowed it to close three prisons and saved billions. Crime has fallen to the lowest levels seen in Texas since 1968.

More than 30 other states have passed justice reinvestment legislation similar to Texas’. These laws divert low-level offenders from prison, use evidence-based risk methods to determine who really needs to be behind bars, reduce penalties for crimes, and aim to make it easier to get work after leaving prison. The cost savings from these reforms is then invested in rehabilitation and mental health and drug treatment, reducing crime even further....

But even with all this progress, a 10 percent to 20 percent drop in people going in won’t change the fact that our prisons are still vastly overstuffed — incarceration has risen 500 percent since the 1970s. Currently, more than half of the state prisoners in the country are serving time for violent crimes. Reducing prison populations to a manageable size must also include a closer look at how we legally define, prosecute, and punish violent crimes....

With Trump in charge, it’s possible that [some] will feel more empowered to push back against the progress that was starting to seem inevitable. The states that go back to this approach will likely see higher incarceration rates, and the costs — both human and fiscal — will fall on the public. But most lawmakers (not to mention the public) seem to have learned that these “tough” approaches failed in every way. We wasted billions to become the world’s leading incarceration nation. Such policies are simply an expensive and self-defeating type of posturing by politicians who value their own self-image over the well-being of the constituents. We already know what type of leader Trump is — let’s hope the state resistance is enough to fight him.

Though I support the sentiments of much of this commentary, I am disappointed that it fails to directly confront the tangible increase in violent crime over the last few years and the various ways in which this increase provides critical fodder for those eager to resist a move away from past "tough and tougher" approaches to crime and punishment. I surmise that AG Sessions and many of those around him sincerely believe crime remains low today only because of the laws, policies and practices of the "tough-on-crime era of the 1980s and 1990s," and these folks can and do now readily suggest that recent reforms to these laws, policies and practices may account in large part for recent crime increases. Past crime declines and now recent crime increases will likely lead these folks to persistently resist even the suggestion that a commitment to tough-and-tougher approaches is "self-defeating" in any way. In turn, they will contend that academics and other reformers are far too eager to put the interests of criminals ahead of victims.

April 1, 2017 in Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

Friday, March 31, 2017

Perspectives on some changing prosecutorial perspectives

This New York Times article, headlined "Lock ’Em Up? Prosecutors Who Say ‘Not So Fast’ Face a Backlash," discusses the debate over a new local Florida prosecutor's announcement that she will not pursue capital cases together with the broader dynamic that more local prosecutors are running and winning on a criminal justice reform platform. (The companion piece briefly profiles "5 Prosecutors With a Fresh Approach.") Here are excerpts:

In Tampa, the top prosecutor says too many children are charged as adults. In Houston, the district attorney will no longer press charges in low-level marijuana cases. And in Chicago, prosecutors will no longer oppose the release of many nonviolent offenders who cannot afford to post bond. Two more newly elected prosecutors, in Denver and Orlando, have vowed not to seek the death penalty, even for the most egregious killers.

They are part of a new vanguard that has jettisoned the traditional lock-’em-up approach, instead winning over voters by embracing alternatives to harsh punishment. But in their eagerness to enact changes, some are facing a backlash from law enforcement groups and more conservative politicians.

In Texas, Lt. Gov. Dan Patrick, a Republican, warned that failing to punish drug crimes would make Houston akin to a “sanctuary city” for illegal enterprise. In Chicago, a suburban police chief warned that a move to classify more shoplifting cases as misdemeanors was “a slippery slope.”

But nowhere has there been more vitriol than in Florida, where a battle over the death penalty shows just how volatile an issue capital punishment remains, especially when the death of a police officer is involved....

The new breed of prosecutors was helped into office by voters skeptical of wrongful convictions, mass incarceration and evidence of racial bias in law enforcement. As candidates, many received help from the liberal billionaire George Soros, who spent millions on campaigns in states including Arizona, Mississippi and Missouri. Of the 15 candidates supported by his political action committees (including one for sheriff), 12 were victors.

But some change-minded prosecutors won without Soros money, showing that attitudes across the country are changing regardless of outsize political contributions, said David A. Sklansky, a professor at Stanford Law School who closely follows the issue. “It’s now possible in at least some places for district attorneys to campaign successfully and win office on a platform that’s not just harsher, harsher, more, more punishment,” he said. “That was unheard-of 10 years ago.”

Bob Ferguson, the attorney general of Washington State, said, “I think our public’s view of our criminal justice system has evolved.” Speaking out against the death penalty, he added, “is not the third rail people think it is.”

March 31, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, February 25, 2017

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

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

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

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

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

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

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

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

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

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

Recent prior related post:

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

Tuesday, February 21, 2017

A few notable criminal justice panels at CPAC

It is around that time of year for the annual Conservative Political Action Conference (CPAC), and the misbehavior of one conservative is generating all the pre-CPAC buzz. But, as has been the story for the last few years, sentencing fans should be intrigued by some of the criminal justice reform programming appearing on the CPAC 2017 agenda. Specifically, I found notable these two panels scheduled for Friday this week:

Prosecutors Gone Wild

Moderator: Pat Nolan, ACU Foundation Center for Criminal Justice Reform

David A. Keene, The Washington Times

Sidney Powell, Former U.S. Attorney

Kevin Ring, Families Against Mandatory Minimums


Conservatives Leading the Way on Criminal Justice Reform in State Capitals

Moderator: David Safavian, ACU Foundation Center for Criminal Justice Reform

State Rep. Julie Emerson (LA-39)

Marc Levin, Right on Crime, Texas Public Policy Foundation

Pat Nolan, ACU Foundation Center for Criminal Justice Reform

February 21, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Tuesday, February 14, 2017

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

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

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

Here’s what they agree on:

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

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

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

• Jailing people is really, really expensive.

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

• There are alternatives to imprisonment that keep Americans safe.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, January 30, 2017

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

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

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

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

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

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

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

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

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

Thursday, January 19, 2017

"Dear President Trump: Here’s How to get Right on Crime, Part 2"

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

The second in the series here is authored by Vikrant Reddy and carries the subheadline "End overcriminalization, reward success, pay attention to the heroin crisis." Here are excerpts:

Criminal justice reform advocates are pessimistic about the prospects for federal sentencing reform under the new presidential administration. Federal sentencing, however, is only one component of America’s vast criminal justice system. There are several other areas where the administration and reformers could find common cause.  Here are just three reforms widely supported by advocates which are also consistent with a “Trumpian” worldview.  They should be at the forefront of a serious federal reform agenda over the next four years.

Scaling Back Overcriminalization

There are now over 5,000 obscure federal crimes, such as shipping lobster in plastic rather than cardboard boxes, that are more appropriately treated as administrative or regulatory matters. Furthermore, the mens rea or “state of mind” portions of many criminal statutes (which specify whether the conduct must be purposeful, knowing, reckless, or negligent) are frequently left out when laws are drafted. Reversing this “overcriminalization” has long been a priority for conservatives. Yet it has also been a priority for prominent progressive voices, such as the National Association of Criminal Defense Lawyers and U.S. Representatives John Conyers and Bobby Scott....

Performance-Incentive Funding

One of the most widely-admired strategies for improving criminal justice outcomes is performance-incentive funding (PIF). The idea is simple: Governments should fund prisons (and community corrections programs, for that matter) based on outcomes achieved, not merely on the number of people incarcerated. A government that contracts for lower recidivism rates and increased restitution payments to victims is more likely to find that its prisons are encouraging education and job training behind bars. People from the business world who are more concerned with results than with ideologies — such as Donald Trump — are likely to understand this truth intuitively: You get what you pay for....

Combating Heroin Addiction

On Election Day, Trump performed unusually well in communities ravaged by heroin abuse. He seemed to understand that he owes it to these voters — his base — to take the issue seriously. His administration will likely pursue a law enforcement solution that attacks the “supply side” of the heroin problem, as Trump frequently promised on the campaign trail. There is also a “demand side” to the problem, however, and Trump must treat this side of the problem with equal urgency.  This means redirecting scarce resources from incarceration to less costly and more effective diversion programs that treat addiction.

Prior related post:

January 19, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Wednesday, January 18, 2017

"Dear President Trump: Here’s How to get Right on Crime, Part 1"

The title of this post is the headline of this notable new Marshall Project piece that is the start of a timely three-part series.  Here is how the Marshall Project editors set up the series:

The election of Donald Trump, who ran a swaggering tough-on-crime campaign, disheartened many advocates of bipartisan criminal justice reform.  The Marshall Project invited conservatives active in that cause to make a case to the president-elect — a conservative case — for ways to make the system more fair, humane and effective.  This is the first of three commentaries.

The commentary to kick this off comes from Pat Nolan and carries the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration."  Here is how it gets started:

Conservatives believe that the core function of government is keeping the public safe from harm within the constraints of individual liberty and limited government. We know it is the nature of bureaucracy that government agencies grow in size and inefficiency. The justice system must be held accountable for wise use of tax dollars just as it holds offenders accountable for their actions.

Crime is more than lawbreaking — it is victim harming. Victims should be involved at all stages of the justice process, and the system should aim to repair the harm caused by the crime whenever possible. Offenders should be held accountable to make restitution to their victims.

Evil intent (mens rea) has long been an essential element of all crimes. In recent years, however, the mens rea requirement has been dropped in favor of finding criminality even if there is no intent to break the law. Thus, an act committed in good faith can become the basis for a criminal conviction and a prison sentence. This is wrong, and mens rea must be restored as a key element of every crime.

The greatest power we cede to government is the ability to put someone in prison. While prisons are necessary to isolate offenders who threaten the safety of the community, there is a growing tendency to overuse prisons even when the public is not endangered. There are proven ways to hold non-dangerous offenders accountable without sending them to prison. We should use costly prison beds for the truly dangerous. Prisons are for people we are afraid of, but too often they are used for people we are merely mad at.

Cases should be decided individually, not as an assembly line of one-size-fits-all sentences. The harm done by a sentence should never be greater than the harm caused by the crime.

Crime that crosses state lines and national borders is the proper purview of federal laws. Other than those limited situations, crime is an inherently local problem and should be governed by local and state laws. However, in recent years Congress has federalized many crimes such as carjacking which have no national scope merely to strike a politically popular pose.  Only those crimes that have a national reach should be federalized. Other crimes should be left to local law enforcement that is more responsive to their residents.

We recommend greater use of problem-solving courts, such as drug courts, veterans’ courts and mental health courts tailored to the special problems faced by these populations.

Prisons should do more than warehouse inmates. They should prepare offenders for their return to society by providing educational programs such as GED classes, drug treatment, anger management, and job skills. The cost of these programs is far exceeded by the savings from the resulting drop in crime rates.

January 18, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, January 11, 2017

Great political and practical "state of reform" reviews via Jacobin

ImagesThe magazine Jacobin has recently run two effective pieces by two effective writers about the politics and practicalities of modern sentencing reform efforts. Here are links to the lengthy pieces, both of which I recommend in full, with their introductions:

"Conservatives Against Incarceration?: Fiscal conservatives were never going to bring down the carceral state. A broader fight against social inequality is needed." by Marie Gottschalk

Many are mourning the death of comprehensive criminal justice reform at the federal level in the wake of the election of Donald Trump, who unabashedly campaigned as the law-and-order candidate. They fear we may be at the beginning of the end of the “smart-on-crime” era, in which historic adversaries across the political spectrum joined forces to reverse the punitive policies and politics that have turned the United States into the world’s leading warden.

Some have sought solace in the belief that Trump’s victory will have a limited impact because most people are apprehended, tried, and sentenced subject to state and local statutes and authorities, not federal ones, and that 90 percent of the more than 2 million people incarcerated today in the United States are serving their time in state prisons and county jails, not federal penitentiaries. They view Trump as a political meteorite that may have blown up the elite bipartisan reform coalition in Washington as it blazed through an uncharted political universe but left promising reform coalitions at the state and local levels largely intact.

This conventional postmortem paradoxically overestimates Trump’s responsibility for imperiling criminal justice reform at the national level while underestimating his likely impact on state and local reform efforts.

Trump’s outsized personality and spectacular victory obscure the reality that the smart-on-crime approach had severe limitations and weaknesses that have been hiding in plain sight for years. The politics that gave birth to this strange bedfellows coalition engineered by Right on Crime — a group of brand-name conservatives and libertarians that included Newt Gingrich, Grover Norquist, and Charles and David Koch — helps explain both its limited accomplishments and the triumph of Trumpism.

"America’s Durable Monstrosity: New figures show that the US prison population has dropped. But mass incarceration remains firmly intact." by Daniel Denvir

A ray of sunshine recently poked through the otherwise gloomy holiday headlines: “US prison population falling as crime rates stay low.”  The prison population has indeed fallen, and crime rates are still down.  But while the crime that politicians exploited to create mass incarceration has plummeted, the number of prisoners locked up in the name of public safety has only budged.

Mass incarceration, in short, remains a durable monstrosity.

As of 2015, an estimated 2,173,800 Americans were behind bars — 1,526,800 in prison and 728,200 in jails — according to recently released data from the Bureau of Justice Statistics.  That’s 16,400 fewer people in jail and 35,500 fewer prisoners than in 2014 — a 2.3 percent decline and, for prisoners, the largest single-year drop since 1978. The 2015 figure also marks the lowest overall prison population since 2005. Crime rates have plunged, falling “to levels not seen since the late 1960s.”

But even as the US becomes a much safer country, it still incarcerates its citizens at much higher rates than most any other on earth.  To put things in perspective, our prison archipelago today confines a population similar in size to the city of Houston or the borough of Queens.

At the dawn of mass incarceration in 1980, the US’s already-quite-large prison population was estimated at 329,821. To return to that number, the governments would have to replicate the recent 35,500-prisoner reduction for roughly thirty-four years in a row.  That’s a very long time to wait for the poor communities — particularly but not exclusively brown and black ones — that mass incarceration devastates.

The criminal justice reform movement has stopped losing. But it hasn’t really started to win.

January 11, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, December 21, 2016

Detailing how global financier George Soros has been funding efforts to take out local prosecutors

161215_soros-map_v1I often think about the slogan "Think globally, act locally," and that phrase jumped to mind when I saw this fascinating Daily Signal article headlined "The ‘Staggering’ Campaign of Liberal Billionaire George Soros to Swing Local Prosecutor Elections." Soros is a "global player" in many respects, and yet this lengthy article highlights his latest local efforts. Here are excerpts:

Soros, 86, an American hedge fund manager and philanthropist, is No. 22 on the Forbes list of the world’s billionaires, with a net worth estimated at $20 billion. He finances a variety of liberal political causes, including ones related to education, immigration, climate change, and the environment. Soros’ philanthropic network, the Open Society Foundations, has spent more than $13 billion over the past three decades on initiatives to defend human rights abroad and shape the democratic process in Eastern Europe.

Soros gave an unprecedented $27 million to various 527 groups trying to defeat President George W. Bush in his 2004 re-election campaign, describing the effort as a “matter of life and death.” Soros also helped launch the Democracy Alliance, a group of major liberal donors seeking to advance progressive policymaking by investing in organizations such as Center for American Progress, Media Matters for America, and Organizing for Action, which was set up to advance the agenda of President Barack Obama.

Soros has not personally spoken with or met any of the candidates he supported in district attorney races this year and last, his advisers say. In most of the dozen prosecutor races he helped finance, Soros did not coordinate at all with the candidate he supported, they said. Instead, he operated independently by giving money to various state-level political action committees (PACs) and a national “527” unlimited-money group, each identified by a variation on “Safety and Justice.”

The form of his contributions depended on local and state campaign finance laws, Soros’ advisers say, and in some cases, as in Harris County, the collaboration was more direct.

Soros’ efforts are part of a new, broader push by progressives to locate, prepare, and fund challengers to unseat incumbent prosecutors. Such upsets are notoriously difficult to achieve in local district attorney races, where name recognition and outside interest are usually low and voters give deference to the candidate with a record. “Criminal justice reform efforts must take many forms,” Whitney Tymas, an adviser on Soros’ project challenging sitting prosecutors, said in a statement to The Daily Signal. Tymas added:

Changing laws and redirecting funding streams is critical. Because of the enormous discretion vested in those who enforce the laws, including prosecutors, it is also important to elect officials who are committed to public safety and equal justice. These officials are a key leverage point in a complicated system.

David Alan Sklansky, a Stanford University professor and former federal prosecutor, told The Daily Signal that only a “handful” of races for the 2,500 district attorneys’ offices nationwide included candidates with “reform-oriented” agendas, and of those that did, most did not involve contributions from Soros. “In a number of high-visibility district attorney races around the country, incumbents this year were unseated by challengers who promised a more moderate approach to criminal justice, backing away from a simple ‘tough on crime’ agenda and paying more attention to fairness, proportionality, and equity,” Sklansky said. “Many of these successful candidates also pledged to improve the investigation of police shootings, to rein in prosecutorial misconduct, and to be more vigilant in avoiding and correcting wrongful convictions.”

Still, Soros’ role in local prosecutor races is significant. It touches counties big and small, urban and rural; northern, southern, western, eastern, and midwestern. In total, Soros spent nearly $11 million on 12 district attorney races this election cycle, campaign filings show. A Democrat candidate supported by Soros ultimately won in 10 of the 12 races.

The trend of outside funding worries opponents of Soros’ tactics, including veteran district attorneys who say the outsize contributions threaten prosecutorial independence, which is especially important in a role as powerful and all-encompassing as theirs. “The amount of money we are talking about is staggering,” said Joshua Marquis, the district attorney of Clatsop County, Oregon, since 1994 and a board member of the National District Attorneys Association. “And it’s amplified because it’s extremely difficult to raise money as a prosecutor,” Marquis told The Daily Signal...

Soros so far has backed only Democrats in district attorney races, but his advisers insist his support for candidates isn’t based on political party and say Soros would consider making a large contribution to a “reform-minded” Republican prosecutor....

Prosecutors drive critical decisions in the criminal justice system, choosing when, whether, and against whom to bring criminal charges, as well as making recommendations for sentencing and setting the terms of plea negotiations. These decisions are receiving more scrutiny at a time where there is a growing bipartisan consensus around the need to reduce incarceration, provide more alternative punishments, and expand rehabilitation opportunities for low-level drug offenders.

As part of this effort, Soros, along with progressive groups advocating racial justice and gender equality, is trying to elect more minority prosecutors in response to what he sees as an insufficient response by incumbent district attorneys to the fatal shootings of black men by police officers. Several candidates who Soros backed are members of minority groups.

The Reflective Democracy Campaign, an arm of the progressive Women Donors Network, found in a 2015 study that 95 percent of elected local prosecutors were white. “Of course, what was happening with Black Lives Matter and police shootings was a huge wake-up call [for progressives, who began] realizing how much power these offices have and the need for us to be focused on getting great people elected,” Andrea Dew Steele, president of Emerge America, a candidate-training organization for Democratic women, said in an interview with The Daily Signal. “District attorney races have historically just been completely ignored, like most down-ballot races, in the progressive and Democratic community,” Steele said. “I am just thrilled to see that if you give a little bit of love to these races, a small investment yields a huge outcome.”

In Chicago’s Cook County, Soros funded one of several groups that helped Kim Foxx, who is black, defeat the incumbent state’s attorney, Anita Alvarez, in the Democratic primary. Foxx then easily beat her Republican general election opponent. Alvarez drew widespread criticism for her handling of the 2014 fatal police shooting of Laquan McDonald, a black 17-year-old. She took 13 months before charging the Chicago police officer who shot and killed McDonald, a delay that sparked protests.

“Soros’ funding was a big factor in my loss, obviously,” Alvarez, the first female and first Hispanic candidate to be elected as Cook County’s top prosecutor, said in an interview with The Daily Signal. “Some people want to say I lost my election simply because of the McDonald video, but I felt this movement prior to my charging that officer. When you have these outside influences, it’s scary because they don’t know the climate—that Chicago has a serious violent crime problem, a serious gun problem.”...

Soros and allied progressive groups say they will continue grooming and supporting prosecutor candidates who share their goals. Steele, of Emerge America, says she already is looking ahead to the 2018 elections, with plans to recruit and train at least 25 Democratic women to run in district attorney races.

Women, she says, are uniquely sensitive to the consequences of incarceration and, as prosecutors, are likely to use their powers more carefully. “I am hopeful that Emerge will have women running for district attorney in 2018 and make it onto Soros’ radar screen,” Steele said. “The George Soroses of the world can’t get the outcomes they desire unless you have great candidates. So what we are doing is a critical piece.”

She does not apologize for the aggressive outreach, arguing that because a state’s top prosecutors are elected, the process to become one is inherently political. “All of these races are political,” Steele said

Marquis, of the National District Attorneys Association, says he doesn’t doubt the sincerity of Soros and of progressive groups. He emphasizes that many members of the association, which represents state-level district attorneys across the U.S., support reform. Indeed, the National District Attorneys Association made headlines earlier this year when it endorsed compromise legislation in Congress meant to reduce mandatory minimum sentences for low-level drug offenders in the federal prison system.

Yet Marquis said he worries that despite these efforts, some incumbent members of the association could lose their jobs to better-funded challengers. “This is the source of great conversation among district attorneys,” Marquis said. “A lot of us are sitting around saying, ‘What if it’s me next? What if I am targeted?’”

December 21, 2016 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Tuesday, December 20, 2016

"Free the Vote: Unlocking Democracy in the Cells and on the Streets"

The title of this post is the title of this new short publication from the NAACP Legal Defense and Educational Fund, Inc. (LDF) and The Sentencing Project.  This webpage review the publication's contents and mission:

The NAACP Legal Defense and Educational Fund, Inc. (LDF) and The Sentencing Project have issued Free the Vote: Unlocking Democracy in the Cells and on the Streets, reporting on the racially discriminatory and ever-growing problem of felony disenfranchisement. The denial or abridgement of the right to vote for 6.1 million people with felony criminal convictions is a stain on our democracy.

The millions of Americans who are currently prevented from voting due to felony convictions are more than twice the difference of the popular vote in the contentious 2016 presidential election. Particularly striking is that one in 13 Black Americans of voting age is disenfranchised because of a felony conviction—a rate four times greater than non-Black Americans.

The issue is compounded by the fact that often, for redistricting purposes, incarcerated people are counted as residents of largely white rural areas where prisons are predominately located (i.e., prison-based gerrymandering). Thus, Black urban communities, from which the incarcerated population disproportionately comes, lose the critical voices of persons with felony convictions, who not only are denied a fundamental stake in the democratic process, but also who could provide insight into issues of criminal justice reform, employment, and educational opportunities.

“Felony disenfranchisement laws are shamefully nothing new,” said Leah Aden, Senior Counsel at LDF. “In the era following slavery disenfranchisement laws were tailored to limit the political power of newly-freed Black people. These racially discriminatory laws gained steam in recent decades as the failed ‘war on drugs’ and “tough on crime” policies incarcerated millions of Black and Latino Americans, continuing to weaken the voting power of communities of color.”

“Disenfranchisement policies are fundamentally at odds both with democracy and with the need to support individuals in their reentry from prison,” says Marc Mauer, Executive Director of The Sentencing Project. “By extending the right to vote to people in prison and with criminal records, we can both build a more inclusive democracy and make our communities safer.”

Among its findings, Free the Vote highlights:

◾ The impact of felony disenfranchisement laws on Black voting strength at the state level. In Florida, for example, more people with felony convictions are disenfranchised than in any other state, with Black disenfranchisement rates exceeding a fifth (21%) of the adult Black voting age population. Similar data comes out of other states such as Kentucky, Tennessee, and Virginia.

◾ Prison-based gerrymandering exacerbates the negative effects of felony disenfranchisement. In the city of Anamosa, Iowa, a councilman from a prison community was elected to office from a ward which, per the Census, had almost 1,400 residents—about the same as the other three wards in town. But 1,300 of these “residents” were prisoners in the Anamosa State Penitentiary. Once those prisoners were subtracted, the ward had fewer than 60 actual residents.

◾ Only Maine and Vermont do not restrict voting based on a felony conviction. Both states allow individuals to vote from prison via absentee ballot. Recently, there have been successful efforts to reform felony disenfranchisement policies in Maryland, Virginia, and California.

◾ Following the historic and substantial participation of people of color in the 2008 and 2012 elections, felony disenfranchisement laws that curb voting power remain a barrier to expanding America’s voting population. These laws discourage future generations from exercising the learned behavior of voting and receiving the benefits of having their voices reflected in the political process.

LDF and The Sentencing Project aim to not only ameliorate felony disfranchisement laws, but also to eradicate them. Together, we can free the vote for people who have been made vulnerable by harmful and discriminatory laws and in turn, strengthen our collective democracy.

December 20, 2016 in Collateral consequences, Elections and sentencing issues in political debates, Prisons and prisoners, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Friday, December 16, 2016

"Why Congress May Bring Criminal Justice Reform Back to Life"

The title of this post is the headline of this effective new Marshall Project analysis by Bill Keller, which carries the subheadline " Four reasons a bipartisan bill has a better chance than you think." Here are excerpts:

It’s no wonder criminal-justice reformers woke up from Election Day 2016 with a sense of existential gloom. Given candidate Donald J. Trump’s law-and-order bluster, his dystopian portrayal of rising crime and an ostensible war on the police, and a posse of advisers who think the main problem with incarceration is that we don’t do enough of it, the idea that justice reformers have anything to look forward to is at best counterintuitive.

It is reasonable to expect that President Trump and his choice for attorney general, Jeff Sessions, will dismantle at least some of what their predecessors leave behind. Based on what they have said, the Trump-Sessions Justice Department may well roll back federal oversight of troubled police forces, escalate the war on drugs, enlarge the share of the corrections business that goes to private companies, accelerate deportations of undocumented immigrants and use the threat of financial sanctions to challenge so-called sanctuary cities....

But those inclined to look for silver linings may find one on Capitol Hill.... I can think of four reasons the prospects of federal reform are actually better in 2017.

First, it is not an election year. Nothing makes members of Congress squirm like the specter of attack ads portraying them as coddlers of criminals. There is reason to think those Willie Horton-style gotchas have lost some of their potency, but the prospect tends to make members of Congress more risk-averse in even-numbered years. And the lobbying alliance in favor of reform has grown and diversified and offers supportive candidates some political cover. It now includes significant numbers of police executives and prosecutors, who say our tendency to over-criminalize and over-punish wastes money and human potential without making us safer.

Second, President Obama will be gone. Some of the resistance to this year’s sentencing bill was a reluctance to give the president a parting victory. His heartfelt embrace of criminal-justice reform in the final years of his presidency was — through no fault of his own — the kiss of death in a hostile Congress.

Third, at least one of the hard-core Senate opponents of sentencing reform will no longer be there. That would be Jeff Sessions, the Republican senator from Alabama. True, as attorney general he will be in a position to encourage a presidential veto. But he will not be joining the obstructionists who this year never let a bill come to a vote at all. The chairman of the Senate Judiciary Committee, Charles Grassley, said in October that if his party leadership had brought the bill to the floor, it would have garnered 65 to 70 votes — enough to override a veto.

And fourth, the Republican leadership will be looking very hard for bipartisan successes to demonstrate that Washington is no longer in a state of ideological paralysis. On the short list of things Congress could do to reassure voters that government is back in business, criminal justice ranks near the top. The subject attracts libertarians who have come to see the machinery of criminal justice as another example of overbearing government, conservative Christians who see the criminal justice morass as dehumanizing, fiscal conservatives who have noticed that incarceration is expensive, and policy wonks who see a “corrections” system that largely fails to correct.

December 16, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Thursday, December 01, 2016

NC Republican Senator reiterates his commitment to federal statutory sentencing reform

This notable new local story from North Carolina, headlined "Tillis says he may not return if bills like sentencing changes aren’t passed," provides further reinforcement for my generally positive perspective on the prospects for federal statutory sentencing reform in 2017. Here are excerpts:

Sen. Thom Tillis said Wednesday that he may not seek re-election in 2020 unless a sweeping overhaul of the nation’s prison sentencing system is passed. Tillis, R-N.C., has sought to make revamping the nation’s criminal justice system one of his signature issues since arriving in Washington in 2015, leaning on his experience in pushing through North Carolina’s Justice Reinvestment Act when he was state House speaker in 2011.

Tillis said North Carolina showed that such measures could get done, even over doubts that anything less than a tough-on-crime stance would be politically damaging. He told a forum on juvenile justice in Washington that “I don’t run again until 2020, and if we’re not able to get things like this done, I don’t have any intention of coming back.”...

He expressed frustration that the Senate hasn’t been able to move the Sentencing Reform and Corrections Act of 2015, a bipartisan measure that would reduce prison sentences for some nonviolent drug offenses, give judges more discretion with lower-level drug crimes and provide inmates early release opportunities by participating in rehabilitation programs....

Republicans and conservatives – from Sen. John Cornyn, R-Texas, to Sen. Rand Paul, R-Ky., to the Koch brothers – found themselves largely in agreement with Obama, the NAACP and the American Civil Liberties Union on the need for sweeping changes to reduce prison sentences.

But the Senate bill has been in legislative limbo. Some conservative lawmakers, such as Sens. Tom Cotton, R-Ark., and Ted Cruz, R-Texas, suggested that reducing sentences would lead to dangerous criminals being released. Even a much-heralded compromise in April to ease critics’ concerns failed to get the bill to the Senate floor.

Tillis, who appeared at Wednesday’s forum hosted by The Washington Post with Sen. Chris Coons, D-Del., said he had a solution for breaking the deadlock. “We need to tell the far-right and the far-left to go away and have people in the center solve the problem,” Tillis told the audience. “It is time to tell the far-left and the far-right to get productive or get out of the way because we need to solve this problem.”

December 1, 2016 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Wednesday, November 09, 2016

"Why Donald Trump’s election won’t doom the criminal justice reform movement"

The title of this post is the headline of this lengthy new Fusion commentary authored by Casey Tolan. The piece covers a lot of ground effectively in the wake of yesterday's election results and I recommend the piece in full.  Here are some extended excerpts:

In many ways, Donald Trump as president is a nightmare for criminal justice reformers. He has declared himself “the law and order” candidate and falsely painted American cities as hellholes with skyrocketing crime rates. Hillary Clinton, on the other hand, had pledged to “reform our criminal justice system from end-to-end.”

But Trump’s stunning victory — while scary for many other reasons — isn’t a death blow to the reform movement. While Trump can undo changes President Obama made and prevent serious criminal justice reforms at the federal level for the next four years, the policies that are arguably more important to fighting mass incarceration are happening at the state and local levels.

Overall, it was a mixed-bag election night for criminal justice.  Even while Trump clinched the White House, reformers won important victories in state and local races that could lead to real declines in incarceration. And yet: the death penalty won in all three states where it was on the ballot.

The tension between Trump’s law and order rhetoric and the reform victories down the ballot points to a sometimes overlooked truth: The president does not actually have that much power over the policies that lead to mass incarceration. Only about 12% of prisoners in America are in federal prisons run by the executive branch, while the vast majority are in local jails and state prisons. In many ways, local district attorneys have a bigger impact on criminal justice and incarceration in their districts than the president does.

And reformers had a very good night in DA races. Challengers pledging reform defeated tough-on-crime prosecutors in Houston, Tampa, and Birmingham, and won an open district attorney election in Denver. This is especially good news for Houston, whose incumbent DA Devon Anderson has increased arrests for low-level drug possession, defended seriously flawed death sentences, and once jailed a rape victim during the trial of her rapist. Those results continued a trend from earlier this year of more reform-minded local prosecutor candidates prevailing in primaries.

The president does not actually have that much power over the policies that lead to mass incarceration. Elsewhere on the ballot were other bright spots. In California, voters passed a measure that would make nonviolent offenders eligible for parole and lead to fewer juveniles being tried in adult courts. In Oklahoma, they approved an item reclassifying drug possession and small property crimes from felonies to misdemeanors, and earmarked cost savings from those changes for mental health and rehabilitation programs. Both measures are expected to lead to substantial reductions in incarceration in their states. New Mexico approved a constitutional amendment that prohibits defendants from being jailed just because they can’t pay bail....

Of course, Trump will probably have a drastic effect on prospects for federal criminal justice reform. Last year, bipartisan senators introduced to great fanfare a bill that would reshape federal sentencing laws and let nonviolent inmates get out of prison sooner. Even with the wholehearted support of President Obama and substantial compromises that watered down the bill, efforts to pass the measure have failed thanks to a group of conservative senators like Alabama’s Jeff Sessions, Trump’s chief ally in the body. While Trump doesn’t seem to have directly addressed the bill, his past statements don’t make him seem amenable to the idea.

Moreover, Trump could easily undo many of the smaller-scale reforms put into place by the Obama administration. On day one, Attorney General Rudy Giuliani — or whoever Trump picks — could rip up the Obama directive telling federal prosecutors to focus on the most serious drug cases and ask for less mandatory minimum sentences. He could end Obama’s policy to “ban the box” in federal government hiring, which helps formerly incarcerated people get jobs by not making them check a box saying they have a criminal record at the first stage of applications. He could reverse the Justice Department’s plan to phase out federal private prisons (a prospect that has sent private prison company stocks soaring the morning after the election). And most importantly, Trump will almost surely be able to appoint a conservative Supreme Court justice, who could help pivot criminal justice law away from defendants’ rights for a generation.

Trump’s election is a shock for justice reform groups working at the federal level, some of which had already started preparing white papers on reducing mass incarceration for the Clinton administration. Nkechi Taifa, an activist at the Open Society Foundations who helped fight for drug policy reforms, told me she couldn’t believe what had happened. “We’ve always had an uphill battle on criminal justice,” Taifa said. “I just think we need to redouble our efforts. I don’t think we should retreat.”

With 71 days still in office, Obama could lock in some reforms with a broader use of his clemency power. He has already set records by commuting the sentences of more than 900 inmates serving time for drug crimes. But Taifa said he should go further, reducing the sentences of as many inmates as possible before Trump takes the keys to the White House. Clemencies cannot be undone by future presidents. “I’m saying to Obama, ‘What have you got to lose?'” Taifa said. “If he’s going to drop the mic, drop it that way.”

For families waiting to hear back about clemency decisions, Trump’s win was a sucker-punch. Obama “is my only hope,” Miquelle West, whose mother has applied for clemency from Obama, told me in a text message this morning. West said she doubted that her mother, who is serving a life sentence, would have a chance to be released after inauguration day. “I don’t see Trump being compassionate,” she said.

November 9, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates | Permalink | Comments (4)

"Prison stocks are flying on Trump victory"

The title of this post is the headline of this notable new CNBC article, which includes these excerpts:

Private prison stocks soared Wednesday after Republicans won control of Congress and the White House.

Corrections Corporations of America and GEO Group had suffered some of their biggest declines over the last several months. But on Wednesday, both stocks recouped some of those losses.  Corrections Corporation gained 43 percent, while GEO climbed more than 21 percent.

In August, the Department of Justice instructed its Bureau of Prisons to begin phasing out the use of private contractors for federal corrections facilities.  Both stocks tanked on the news, but analysts called the market reaction overblown, and questioned how feasible it would actually be for the federal government to build new housing for displaced prisoners....

The stocks fell particularly far after presidential candidate Hillary Clinton expressed her support for the moves and her intention to build on them. "I'm glad that we're ending private prisons in the federal system," Clinton had said in her first presidential debate with Donald Trump. "I want to see them ended in the state system. You shouldn't have a profit motivation to fill prison cells with young Americans."

Days after Clinton made her remarks, both stocks posted their worst quarters in more than 15 years. Now that Clinton has lost, and Democrats failed to gain control of Congress, it appears investors are more sanguine about the future of the businesses.

November 9, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Effective Marshall Project takes on Election 2016 and criminal justice now and in the future ... UPDATE: and another set of views via Crime & Consequences

The folks at The Marshall Project have four new articles that review and assess what this Election cycle says and suggests about the state and fate of criminal justice issues throughout the United States.  Here are links to these pieces:

UPDATE: For another informed and diverse perspective on criminal justice reform stories, I always check daily Crime & Consequences in addition to The Marshall Project.  Here are some of the early Election 2016 reaction posts from various folks at C&C: 

November 9, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election

In my effort to make sense of the various Election 2016 realities, these early stories and data points caught my attention:

1. Popular vote realities in 2012 and 2016

Popular vote totals in 2012: Obama 65,915,795; Romeny 60,933,504; Johnson + Green 1,745,579  (total vote = 128.6 million)

Popular vote in 2016 (as of now): Trump 59,007,205; Clinton 59,132,664; Johnson + Green 5,195,998 (total vote = 123.3 million)

In other words, as of this writing, there were roughly 5 million fewer voters total in 2016 compared to 2012 and also roughly 3.5 million more of those who did vote in 2016 voted for one of the third party candidates.  

2.  Younger voters in 2016

As Nate Silver flagged here: "While the third-party vote wasn’t all that high tonight overall, an exception came among younger voters. According to the national exit poll, 9 percent of voters ages 18 to 29 went for third parties, as did 8 percent of voters ages 30 to 44." And until I see data to the contrary, I would guess that younger voters (especially younger minority voters) comprise a large portion of the roughly 5 million "missing" voters in 2016.

As the title of this post is meant to reveal, I already have my own (self-serving?) theories for why so many fewer folks showed up to vote in 2016 and for why so many younger progressive voters were much more eager to vote for third-party candidates.  Put simply, the tendency this cycle for Democrats (a) to nominate cautious insiders — like HRC for Prez and Ted Strickland for Senate in Ohio — and (b) to make cautious insider moves on a number of major high-salience law and policy issues — like Prez Obama nominating Merrick Garland for SCOTUS and HRC not taking up the populist cause of marijuana reform — led to a whole lot of folks not being excited enough to show up to vote and led to a whole lot of those folks showing up not being excited enough by Democrats to vote for their candidates.

In some prior posts in this space, I have highlighted some reasons why I considered the Merrick Garland nomination to be a big political mistake for Democrats:

And over at my Marijuana Law, Policy and Reform, here were my posts from last night detailing the remarkably large number of folks in a large number of states who rejected suggestions by all sorts of cautious insiders (of both parties) to slow down the rapidly-moving marijuana reform movement:

November 9, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Tuesday, November 08, 2016

"How Do You Vote in Prison and Jail? For the most part, you don’t."

The title of this post is the headline of this new Slate article which serves as a fitting final Election Day post before I gear up to post about Election Day results.  Here are excerpts:

People who are incarcerated find creative ways to do things the rest of us don’t have to think much about.... But how do they vote in elections?

Well, they mostly don’t. In almost every state, the law states that incarcerated people are not allowed to cast ballots. In fact, most states even impose voting restrictions on former prisoners who are out on parole, and a few states — Kentucky, Florida, Iowa, and Virginia — have lifetime disenfranchisement laws for anyone who has ever been to prison. These laws combine to prohibit an estimated 6.1 million Americans from voting, per one October 2016 estimation.  There is a movement among criminal justice advocates to restore voting rights for felons, but the politics of reform on this issue are notoriously complicated and again, vary state by state.

There are two states that currently afford prison inmates the right to vote while in confinement: Maine and Vermont.  Inmates in both states vote through absentee ballots rather than on-site polling places. Utah, New Hampshire, and Massachusetts also used to allow prisoners to vote, but they don’t anymore. In Massachusetts the change came after a group of inmates tried to form a political action committee in 1997 pressing for better health care and less expensive phone calls, leading then-Gov. Paul Cellucci to propose a constitutional amendment to prohibit inmate voting that passed in 2000.

So that’s prisons.  Local jails are a different story, because most of the people confined in them on any given day are in pretrial detention — meaning they haven’t yet been convicted of whatever crime they’ve been arrested for — or they’ve been convicted of misdemeanors. While there are a handful of states that ban people serving time for misdemeanors from voting, it’s fair to say that most jail inmates and detainees — roughly 750,000 Americans at any given time — are legally allowed to cast ballots as long as they are otherwise eligible. (They will also most likely do so via absentee ballots, though it’s technically possible for jails to have polling places on-site.)

That doesn’t mean a lot of them end up actually doing it, though there are jails around the country that make a special effort to encourage inmates to exercise their right. In the Cook County facility in Chicago, the largest jail in America, a voter drive effort organized this year by lawyer Michelle Mbekeani-Wiley has resulted in about 1,000 new registered voters and 1,600 absentee ballots cast....

Other jails that are known for helping inmates exercise their right to vote include those in Washington, D.C., Philadelphia, and San Francisco. In Suffolk County, Massachusetts, volunteers from the League of Women Voters this year helped register about 300 inmates (out of a total jail population of about 1,600); in New York, jail officials distributed voter registration forms and informational fliers in the facilities’ public areas, including law libraries and barber shops. Such efforts are outliers, however, and typically depend on the initiative of outside advocacy groups.

November 8, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Some Election Day headlines for sentencing fans ... (to read while waiting in line to vote?)

18702169.548e53c77fc3cI am about to head out to vote, and I have the great fortune (and white privilege?) of a local polling place where there is almost never a line to impede or slow down my voting efforts.  (And this year I have the extra excitement of getting to see one of my teenagers serving as a poll worker.  I am so very proud of her willingness to go through the local training and get up at 5am this morning in order to help everyone have an easy and smooth experience exercising the franchise.)

I am certain that starting this evening I will be blogging about results of key elections for those interested in sentencing reform (as partially previewed here), though I fear it will not be until Wednesday until we know about all the big initiative votes in California because polls there do not close until 11pm EST.  Before that time, though, I am hopeful we might have a sense of the outcomes of the big marijuana reform votes on the East Coast (especially in Florida, Maine and Massachusetts) and also of the death penalty votes in the Heartland (Oklahoma and Nebraska).

In the meantime, I have collected here some headlines and links to stories that provide a kind of Election Day starter.  Though I sincerely hope readers do not experience long lines or waits to vote, perhaps these stories can help some pass the time:

November 8, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Monday, November 07, 2016

What are the elections that followers of sentencing reform are (or should be) watching especially closely?

On this Election Day eve, I am debating whether I should be putting together some kind of "Sentencing Reformers' 2016 Election Guide."  There are some obvious elections that everyone will obviously be watching which obviously will impact the fate of major sentencing reform efforts.  Who becomes Prez elect and which party controls the US Senate will, of course, be a focal point for all Election Night coverage, and these representative democracy outcomes will directly influence the direction and shape of future federal statutory sentencing reform developments.

In addition, those who care a lot about the state and fate of capital punishment will be following closely the big repeal/retain votes in California and Nebraska (and perhaps a lower-consequence vote in Oklahoma).  And those who care a lot about about the state and fate of marijuana reform will be following closely the big full legalization votes in five states (Arizona, California, Maine, Massachusetts, Nevada) and the medical marijuana votes in four other states (Arkansas, Florida, Montana, North Dakota).

Not to be overlooked among the higher-profile ballot initiatives are (arguably more consequential) state sentencing reform initiatives in California (Prop 57) and Oklahoma (State Questions 780 and 781).  And, as detailed via this Governing round-up, there are various other "criminal justice" ballot initiatives in various states dealing with victim rights and gun control and a few other issues that surely can echo through sentencing systems.

In addition to all this action, I suspect there may some (lower-profile?) "sleeper" federal, state or local races in which candidates or issues could have a pretty big impact on sentencing reform.  I would be grateful to hear from readers in the comments about any particular races/issues they are following particularly closely with an eye on current and future sentencing realities.  

Are there any of the elections mentioned above that readers think are especially important for sentencing reform?  

Are there elections I have not flagged that ought to be on the radar screens of sentencing reformers?

UPDATE: Via Twitter, I was alerted to this new article from The Nation which spotlights local Arizona DA up for re-election whose race might be of interest to readers of this blog.  The full headline of the article provides a taste of its contents: "This Arizona Prosecutor Is Waging a Strange War on Weed — and That’s Just the Beginning: Bill Montgomery is up for election tomorrow."

November 7, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

Sunday, November 06, 2016

Do we need to worry seriously about voter confusion in the states in which the future of the death penalty is on ballot?

The question in the title of this post is prompted by this recent article from Governing headlined "As Voters Decide Death Penalty's Fate, Ballots Confuse Some: This year's proposals aren't as simple as marking whether you're for or against capital punishment."  Here are excerpts:

The death penalty is legal in 30 states, but a growing number have repealed it in the last decade.  Depending on the election, California and Nebraska could be next.  While voters in those two states decide whether to do away with capital punishment, voters in Oklahoma — where botched executions have led to a temporary moratorium — could strengthen their state's ability to carry it out....

[But] like the issue of capital punishment, this year's ballot measures on the topic are complicated.

In Nebraska, the state legislature overrode their governor to repeal the death penalty in 2015, but the law never went into effect because opponents gathered enough signatures to put a referendum on the ballot.  If voters ultimately uphold the law, it would be the first state under GOP control to ban capital punishment since 1973.

But first, voters will have to figure out which side they stand on — something that could be difficult for many.  The ballot measure gives voters two options: "repeal" or "retain." People who choose "repeal," as confusing as it may be, won't be voting to repeal the death penalty — they'll be voting to repeal the legislature's repeal of the death penalty and thus keep the option of executions available.

Nebraska GOP Gov. Pete Ricketts is campaigning in favor of capital punishment and has contributed about $400,000 to the effort.  In his veto letter to state lawmakers last year, he said their vote on a death penalty ban “tests the true meaning of representative government.”  Though a bipartisan majority of legislators overrode his veto, Ricketts may be correct that the public is with him: An August poll found that about 58 percent of likely voters in Nebraska are in favor of the death penalty.

In California, the ballot features two conflicting propositions — one that would repeal the death penalty and another that would keep it.  If both measures earn a majority of votes, whichever gets more will go into effect.  Most polls suggest the pro-death penalty measure will pass.

And in Oklahoma, the legality of capital punishment isn't up for a vote. Instead, voters will decide whether to add a section to the constitution that affirms the state’s authority to carry out executions, regardless of which method is used.  After several botched executions, the state halted any future ones until further notice. Oklahoma's ballot measure would also exempt the death penalty — but not specific methods of execution — from being invalidated by courts as cruel and unusual punishment.  "It takes away the debate on whether or not we should have capital punishment," said state Rep. John Paul Jordan in an interview with The Oklahoman.  "It allows us to direct our attention as a Legislature towards how we implement it and how we do it in the most humane way possible.”

Critics of the Oklahoma ballot question say the constitutional amendment is unnecessary, undermines the authority of the courts and could invite expensive lawsuits.  Several civil rights experts have raised concerns that the measure would strip citizens of their constitutional protections against cruel and unusual punishment.  Nevertheless, a July poll found that more than 70 percent of likely voters supported the constitutional amendment.

Although polling in all three states suggest that a majority of voters support the death penalty, there's evidence that the framing of the question makes a major difference in how people respond. I n Oklahoma, when likely voters were asked if they supported the death penalty, three-quarters said yes.  But when given the option of eliminating the death penalty and replacing it with a life sentence without parole, along with other financial penalties, a slight majority favored a ban on the death penalty.

November 6, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)