Sentencing Law and Policy

Lots of interesting discussions of FIRST STEP Act (and Jeffrey Epstein) during Senate Judiciary's BOP oversight hearing

This morning, the US Senate Committee on the Judiciary held an hearing titled "Oversight of the Federal Bureau of Prisons" with a single witness testifying.  That witness was Dr. Kathleen Hawk Sawyer, the new Director of the Federal Bureau of Prisons, and the full two-hour hearing can be watched at this link.  

Dr. Hawk Sawyer submitted this lengthy written statement, and it covers a lot of BOP ground.  It also concludes with an extended discussion of FIRST STEP Act implementation efforts, and here is a snippet from that part of the written testimony:

The Bureau has made great progress in implementing the FSA.  We appreciate the considerable work of the Department of Justice (Department) in the implementation process, as well.  In particular, the Department’s National Institute of Justice has been instrumental in collaborating with us as we move forward aggressively to ensure this important criminal justice reform is appropriately and effectively implemented.  We similarly appreciate the ongoing work of the Independent Review Committee as they advise the Attorney General on the new risk and needs assessment systems required under the FSA.

We have listened to the important comments of the many interested stakeholders — from crime victims to a broad array of advocacy groups.  The statutory timelines in the FSA were formidable, and placed before us many challenges, but I am proud to say that the Bureau and the Department rose to that challenge.  And we continue to remain focused on the full, fair, and balanced implementation of the FSA....

With the President signing the FSA into law on December 21, 2018, several provisions became immediately effective. Despite the government shutdown, the Bureau rapidly developed guidance and policies to ensure appropriate implementation.  The retroactive application of sentence reductions under the Fair Sentencing Act resulted in over 2,300 orders for release, with the release thus far of over 1,600 of those inmates.  Staff also immediately began the challenge of re-programming our Good Conduct Time (GCT) sentence computations to reflect the change.  As a result, on July 19, 2019, when the GCT change took effect commensurate with the Attorney General’s release of the Risk and Needs Assessment System, the Bureau executed timely releases of over 3,000 inmates.

Guidance regarding the expanded Reduction in Sentence (RIS or compassionate release) provisions were issued in January 2019. Since the Act was signed into law, 109 inmates have received Compassionate Release.  The re-initiation of the Elderly Offender Pilot from the Second Chance Act of 2008 was issued in April 2019.  We currently have 358 inmates approved for the pilot, with 273 already on Home Confinement. The balance are pending their Home Confinement placement....

In accordance with the FSA, the Attorney General on July 19, 2019, released the Department’s report on the Risk and Needs Assessment System.  The new Risk Assessment system — the Prisoner Assessment Tool Targeting Estimated Risk and Needs or PATTERN — has been developed by the Department and is currently undergoing fine-tuning as we consider feedback from stakeholders.  In the interim, the BOP has conducted extensive training for its staff on the key elements of the tool such that they are prepared to assess inmate risk in accordance with statutory deadlines.  The Bureau already has in place a robust Needs Assessment system, and we are working with experts in the field and research consultants to further enhance it.

During the hearing, FIRST STEP Act implementation issues were raised by a number of Senators. And lots and lots of other topics were also covered.  This AP article published yesterday, headlined "Federal Prison System Plagued by Abuses," provides a review of the range of BOP management issues were brought up during the hearing.  And this ABC News piece, headlined "Bureau of Prisons director set for grilling on Capitol Hill in wake of Epstein, Bulger deaths," names in its headline some of the high-profile prisoners of concerns to lawmakers.   Not surprisingly, especially with news of charges being brought against two guards for falsifying records, the death of Jeffrey Epstein was raised by a number of Senators.

As criminal justice nerd, I enjoyed all the issues raised throughout the entire oversight hearing, and I was encouraged by both the questions raised by many Senators and the answers provided by Dr. Hawk Sawyer.  And I especially enjoyed the surprising discussion during the early part of the hearing (starting just before minute 34) of Senator Lindsay Graham asking about "reinstituting parole in the federal system."  I am not sure why Senator Graham is now saying that reinstating parole is "something [Congress] should look at," but I am really intrigued by and supportive of any such efforts.  A couple of years ago, in this article titled "Reflecting on Parole’s Abolition in the Federal Sentencing System," I explained why I thought "parole might serve as an efficient and effective means to at least partially ameliorate long-standing concerns about mandatory minimum statutes and dysfunctional guidelines" and why sentencing reformers "ought to think about talking up the concept of federal parole anew."  Here is hoping Senator Graham might become a full-throated champion of giving serious consideration to bringing parole back to the federal system.

So much worthy of comment ... so let's round up some commentary

These are busy times in the criminal justice arena and elsewhere, and I never have enough time to keep up with, let alone blog about, all the notable news and commentary that sentencing fans might find interesting.  So, looking to cover a lot of ground quickly, here is a round-up of (mostly commentary) pieces that seem worth checking out.

From The Atlantic, "The Repurposing of the American Jail: Jails and prisons are becoming substance-abuse treatment facilities — even for those who haven’t been accused of a crime"

From The Appeal, "Ayanna Pressley Hopes The U.S. Can Reduce Its Prison Population By Over 80 Percent"

From The Hill, "Prison to proprietorship: The path to real second chances"

From the New York Times, "A Sad Last Gasp Against Criminal Justice Reform: Prosecutors and police should honor the will of the voters and implement long-overdue changes."

From Slate, "The Punishment Bureaucracy Has Nothing to Do With Justice"

From Vox, "The battle for voting rights in the age of mass incarceration: Ex-prisoners are getting their voting rights back. But the backlash has already started."

From the Washington Post, "Algorithms were supposed to make Virginia judges fairer. What happened was far more complicated."

Interesting look at a federal sentencing judge (and claims of judge shipping) in college admissions scandal cases

This new Los Angeles Times article, headlined "In sentencing Del Mar father, key judge in admissions scandal offers insight into future decisions," provides an interesting behind-the-scenes looks at one of the judges now at the center of upcoming sentencing in the Varsity Blues case. And toward the end of the piece there is an interesting discussion of purposed efforts to "judge shop." Here are excerpts:

It was a sentencing hearing for Toby Macfarlane, a Del Mar insurance executive who will spend six months in prison for conspiring to have his children admitted to USC as bogus athletic recruits. But on Wednesday, all eyes were on U.S. District Judge Nathaniel M. Gorton, who is also overseeing the cases of 15 other parents who’ve maintained their innocence in an investigation of fraud, graft and deceit in the college admissions process.

Lori Loughlin’s legal fate will be decided in Gorton’s courtroom. So, too, will those of many other high-profile names embroiled in the scandal, among them Loughlin’s husband, fashion designer Mossimo Giannulli, and Bill McGlashan, a San Francisco Bay Area financier.

Six attorneys for other parents charged in the scandal filled a bench in Gorton’s third-floor courtroom, taking notes and trying to gain insight into how the 81-year-old jurist views the allegations of fraud and bribery the government has brought against clients of William “Rick” Singer, the Newport Beach consultant who oversaw a scheme to defraud some of the country’s most elite universities with rigged entrance exams, fake athletic credentials and bribes.

They got their answer. In Gorton’s first sentencing in the case, he delivered a withering dressing-down and a penalty to match. Macfarlane’s conduct — paying Singer $450,000 to slip his son and daughter into USC as phony athletes — was “devastating,” Gorton said. Macfarlane’s crimes may have been possible because of his wealth, Gorton said, but his actions were no different than those of “a common thief.”

Gorton doubled the sentencing range recommended by the court’s probation department, and committed Macfarlane to prison for six months — the longest sentence handed down in a scandal that erupted in March....

While he didn’t agree with the prosecution’s argument that the high-dollar amount of Macfarlane’s payment should lengthen his sentence, Gorton said Macfarlane’s crimes were nonetheless “serious and caused real harm,” deserving of a harsher sentence than the range recommended by the probation department....

In a sign that defense attorneys see Gorton as handing down harsher sentences than his peers at the courthouse, lawyers for 17 parents charged in the scandal wrote an unusual letter in April to Patti B. Saris, the chief judge for the district of Massachusetts, protesting the government’s intent to add their clients to an indictment that had already been assigned to Gorton.

Calling it “a clear form of judge shopping,” the attorneys said prosecutors so wanted to try their cases before Gorton that they had circumvented the process that assigns cases to judges at random. They qualified their complaint by saying, “To be sure, we deeply respect Judge Gorton.”

But Andrew Lelling, the U.S. attorney for Massachusetts, said in a letter of his own that what those attorneys “fail to say — but of course mean — is that they want a different judge because they perceive Judge Gorton as imposing longer sentences in criminal cases than other judges in this district.” Such a gripe, Lelling said, was a “hail Mary by people who know better.” The parents whose attorneys signed the letter were not, in the end, reassigned to a different judge.

Gorton will sentence four parents early next year who reversed their not-guilty pleas last month: Douglas Hodge, the former chief executive of bond giant Pimco; Michelle Janavs, a philanthropist whose family created the Hot Pocket; Manuel Henriquez, a Bay Area financier, and Henriquez’s wife, Elizabeth. The four changed their pleas after coming under pressure from prosecutors, who warned they could be charged with an added felony count of bribery if they didn’t plead.

U.S. District Judge Indira Talwani, who determined punishments for 11 of the 12 parents sentenced before Macfarlane, handed down sentences ranging from no time at all for Peter Sartorio, a Menlo Park, Calif., frozen foods entrepreneur, to five months in prison for Agustin Huneeus, a Napa, Calif., vintner.

A third judge, Douglas P. Woodlock, sentenced Jeffrey Bizzack, a Solana Beach entrepreneur and the longtime business partner of surfer Kelly Slater, to two months in prison.

"Movements in the Discretionary Authority of Federal District Court Judges Over the Last 50 Years"

The title of this post is the title of this new paper authored by Susan Klein now available via SSRN.  Here is its abstract:

From my vantage point, judges’ individual control over their courtrooms remains largely stable.  Updated but similar versions of the problems encountered (and created) by Judge Julius Hoffman now confront our newer, younger, and perhaps better qualified judges.  While federal judges may be less likely to encounter radical, overtly political defendants and government officials trying to wrest control (and public opinion) from them in court, they are more likely to see minority defendants along with accompanying “courtwatchers” who want inequities in the criminal justice system noticed in individual cases.  I will first describe the Chicago Eight (soon to become the Chicago Seven) trial and then explain the new courtwatchers in Part I.

I have witnessed federal judges having lost, primarily since the mid-1980s, much of their earlier control over the criminal justice process in general, but in particular over charging and sentencing decisions.  Judicial discretion and control over a criminal trial is obviously less important when 97.2 percent of federal felony sentences are imposed by the district judge pursuant to a guilty plea negotiated between the government and the defendant, and only 2.8 percent of the sentences that judges impose are after a jury or bench trial.  The power players in the criminal justice system are the folks who determine whether to offer a plea and what plea terms to include.  We live in a world of guilty pleas controlled by prosecutors.  Federal prosecutors determine whom to investigate, whom to charge, and how much punishment to impose.  However, the pendulum has begun to swing back, and federal district judge discretion over criminal sentencing is now on the rise.  I will support these observations, as well as offer some good sentencing news post-Booker, in Part II.

Finally, in Part III, I will raise a relatively new phenomenon — federal district court judges imposing nationwide temporary restraining orders against the federal government. Though this last trend is not limited to or primarily about criminal trials, I think it fairly covered by the topic for today — most of these injunctions involve controversial policies that can, like with the Deferred Action for Childhood Arrivals case, lead to criminal charges.  This legal device allows a single federal judge in a single judicial district to determine federal policy for the entire country, at least until the matter can be resolved by the Supreme Court.  This is one of the few areas where I have seen federal district judicial authority expand over the last few decades.  The Supreme Court has taken very recent notice of this trend, and will likely have something to say about the matter soon.

Texas Court of Criminal Appeals issues stay of execution so trial court can examine Rodney Reed's "Brady, false testimony, and actual innocence claims"

As noted in this prior post, many questions have been raised about the guilt of Texas death row inmate Rodney Reed, who had been scheduled to be executed on November 20.  But, as this Hill piece reports, that execution was stayed late Friday:

The Texas Court of Criminal Appeals ruled Friday to stay indefinitely the upcoming execution of Texas inmate Rodney Reed, who had been convicted in a 1996 slaying.

Citing an appeal filed by Reed’s attorney’s this week that claimed, among other things, that the state provided false testimony, the court ruled to halt the execution scheduled for Wednesday “pending further order of this Court.”

The decision came shortly after the Texas Board of Pardons and Paroles on Friday unanimously recommended delaying Reed’s execution.

The developments come amid national scrutiny over Reed’s case, as supporters of the inmate say newly uncovered evidence raises serious doubts about his guilt in the case of the killing of 19-year-old Stacey Stites.

Prosecutors accuse Reed of raping and strangling Stites in Bastrop, Texas, more than 20 years ago. However, in an application for clemency, Reed’s attorneys wrote that new evidence has “contradicted and, in all key respects, affirmatively disproven, every aspect of the State’s expert-based case against Mr. Reed” and implicates Stites’s then-fiance.

Efforts to stop the execution have been aided by high-profile calls from celebrities including Beyoncé, Kim Kardashian West, Oprah Winfrey, Rihanna, Questlove and more.

The TCCA's oder is available at this link, and here is a key passage:

On November 11, 2019, Applicant filed the instant subsequent writ application in the convicting court.  Applicant raises four claims in this application: (1) that the State suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) that the State presented false testimony in violation of due process; (3) that Applicant’s trial counsel were ineffective; and (4) that Applicant is actually innocent.

After reviewing the application, we find that Applicant’s Brady, false testimony, and actual innocence claims satisfy the requirements of Article 11.071 § 5.  Accordingly, we remand those claims to the trial court for further development.

Another District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing sentence by 40 years under 18 U.S.C. § 3582(c)(1)(A)

I am pleased to be able to report on a great new district court ruling granting a sentence reduction using 18 U.S.C. § 3582(c)(1)(A) in order to under the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  (As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I see this provision as such a big deal because I think, if applied appropriately and robustly, this provision could and should enable many hundreds, and perhaps many thousands, of federal prisoners to have excessive prison sentences reduced.)

This new ruling comes in US v. Urkevich, No. 8:03CR37, 2019 WL 6037391 (D. Neb. Nov. 14, 2019). In this case, Judge Camp begins by noting that because of the severe stacking rules in place at the time of the crime, Urkevich's sentence "(848 months) is forty years longer than the sentence he likely would have received (368 months) if he were sentenced under the law (18 U.S.C. § 924(c)(1)(C)) as it now exists." Then, after noting that the "Government does not dispute that Urkevich has demonstrated post-offense rehabilitation, and the Government does not argue that he poses a current danger to the safety of any other person or to the community," Judge Camp concludes:

If this Court reduces Urkevich’s sentences on Counts III and V to 60 months each, consecutive, he will not be eligible for immediate release.  His sentence would total 368 months, and he would have served somewhat more than half that sentence.  Nonetheless, the Court does not consider the Motion premature.  A reduction in his sentence is warranted by extraordinary and compelling reasons, specifically the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed. A reduction in the sentence at this juncture will help Urkevich and the Bureau of Prisons plan for his ultimate release from custody and may assist him in his pending efforts to seek clemency from the Executive Branch.  This Court will not intervene in that process.

After consideration of all the factors set forth in 18 U.S.C. § 3553(a), especially § 3553(a)(2)(A) (“the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”) and § 3553(a)(6) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”), as well as applicable Sentencing Commission policy statements, the Court finds extraordinary and compelling reasons for a reduction of the Defendant’s sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).  The Court further concludes that the Defendant has demonstrated that he poses no current danger to the safety of any other person or to the community. Accordingly, the Defendant’s sentences on Counts III and V of the Indictment will be reduced to 60 months each, consecutive.

The statement above by Judge Camp that the sentence reduction motion here is not premature is a reference to (and disagreement with) the reasoning of Judge Pratt in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), a similar case noted and lamented in this post.  In Brown, the court seemed to essentially conclude that the movant had demonstrated extraordinary and compelling reasons for a sentence reduction and seemed to conclude the 3553(a) factors justified such a reduction, but the court rejected the motion for a reduced sentence seemingly because conforming a reduced sentence based on the terms of current statutory law would not lead to the defendant's immediate release.  I am quite pleased that this Urkevich case recognizes why a congressionally-authorized sentence reduction that is statutorily justified is always timely.

Some prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? 
• Sad start to what should become happier compassionate release tales after passage of FIRST STEP Act 
• Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act
• Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act 
• Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case 
• Is anyone collecting and analyzing sentence reduction orders under 3582(c)(1) since passage of the FIRST STEP Act?
• Good day for thinking hard about sentencing second looks and second chances
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)
• District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing LWOP sentence under 3582(c)(1)(A)
• Another notable (but ultimately disappointing) ruling about sentence reductions under 3582(c)(1)(A) after FIRST STEP Act
• Another LWOP federal drug sentence reduced under 3582(c)(1)(A) after FIRST STEP Act

Prez Trump grants clemency to three military men subject to various war crime prosecutions

As reported in this Military Times piece, "President Donald Trump on Friday granted clemency to three controversial military figures embroiled in charges of war crimes, arguing the moves will give troops 'the confidence to fight' without worrying about potential legal overreach."  Here is more about these grants:

Army 1st Lt. Clint Lorance, convicted of second degree murder in the death of three Afghans, was given a full pardon from president for the crimes.  Army Maj. Mathew Golsteyn, who faced murder charges next year for a similar crime, was also given a full pardon for those alleged offenses.  Special Warfare Operator Chief Edward Gallagher, who earlier this fall was acquitted of a string of alleged war crimes, had his rank restored to Chief Petty Officer by the president.

All three cases had been championed by conservative lawmakers and media personalities as an overreaction to the chaos and confusion of wartime decisions.  But critics have warned the moves could send the message that troops need not worry about following rules of engagement when fighting enemies abroad.

“The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted,” the White House said in a statement. “For more than 200 years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history.”

Pentagon leaders privately had expressed reservations about the moves, but Defense Secretary Mark Esper has declined comment on the rumored actions in recent days. Last week, he said that he had a “robust” conversation with Trump about the proposed pardons and clemency and that “I do have full confidence in the military justice system and we’ll let things play out as they play out.”

The Army announced it will implement Trump’s pardons.... In the wake of Trump’s decision, the official twitter account of Rear Adm. Charles Brown, the Chief of Naval Information, indicated that Navy leaders “acknowledge his order and are implementing it.”

While Gallagher was acquitted of murder and obstruction of justice charges in July, a panel of his peers recommended he be reduced in grade for posing with the body of a detainee, a crime he never denied.

Lorance’s case dates back to a 2012 deployment to Afghanistan, when he ordered his soldiers to fire on three unarmed men riding a motorcycle near their patrol. Members of his platoon testified against him at a court-martial trial, describing Lorance as over-zealous and the Afghans as posing no real threat. He was sentenced to 19 years in prison at Fort Leavenworth, Kansas. In recent years, Lorance and his family had waged a long campaign against his sentence, and found a receptive ear in Trump.

Golsteyn’s case had not yet been decided. He was scheduled for a December trial on charges he murdered an alleged Taliban bomb maker, and burned his remains in a trash pit during a 2010 deployment with 3rd Special Forces Group. Trump’s action effectively puts an end to that legal case before any verdicts were rendered....

Trump overturned a decision by Chief of Naval Operations Adm. Mike Gilday announced on Oct. 29 that preserved Gallagher’s demotion to petty officer first class. Gallagher’s legal team had urged the four-star to show mercy for a highly decorated SEAL whose case was plagued by allegations of corruption inside the Judge Advocate General’s Corps and the Naval Criminal Investigative Service. Gallagher’s court-martial trial for murder and other alleged war crimes collapsed and a panel of his peers convicted him on the sole charge of positing for a photo next to a dead Islamic State detainee, a charge he never denied.

Before the trial kicked off, a military judge booted Cmdr. Christopher Czaplak, the lead prosecutor, for his role in a warrantless surveillance program cooked up with NCIS to track emails sent by defense attorneys and Navy Times. Prosecutors and agents also were accused of manipulating witness statements; using immunity grants and a bogus “target letter” in a crude attempt to keep pro-Gallagher witnesses from testifying; illegally leaking documents to the media to taint the military jury pool; and then trying to cover it all up when they got caught.

In a prepared statement sent to Military Times by attorney Phil Stackhouse, Golsteyn’s family said they were “profoundly grateful” that the president ended the soldier’s prosecution. Stackhouse said Golsteyhn spoke with the president by telephone “for several minutes” on Friday.

“We have lived in constant fear of this runaway prosecution," Golsteyn said in the statement. "Thanks to President Trump, we now have a chance to rebuild our family and lives. With time, I hope to regain my immense pride in having served in our military. In the meantime, we are so thankful for the support of family members, friends and supporters from around the nation, and our legal team.”...

Trump has exercised his pardoning powers often during his administration, including in the case of another soldier earlier this year. Former 1st Lt. Michael Behenna had been paroled from Leavenworth in 2014, after receiving a 15-year sentence for murdering an alleged al-Qaida operative in Iraq in 2009.

And in 2018, he pardoned former Machinist’s Mate 1st Class Kristian Saucier, who spent a year in jail after pleading guilty in 2016 to taking cell phone photos of his work space on board the attack submarine Alexandria ― prohibited, as the entirety of a submarine is considered a classified area.

This official statement from the White House about these clemency grants discusses the cases further and concludes with this paragraph:

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted.  For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country.  These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

SCOTUS grants cert on yet another ACCA case and also on statute of limitation on military rape charges

Via this new order list, the Supreme Court has added four new cases to its merits docket.  The big one of the bunch is a case involving Google and copyright issues concerning computer code, but the others are criminal cases.  One has SCOTUS focused on the application of the Armed Career Criminal Act yet again, and two combined others deals with statutes of limitation.  Here are descriptions of the new criminal cases via this post at SCOTUSblog (with paragraphs rearranged): 

In Walker v. United States, the justices will consider whether a criminal offense that can be committed merely by being reckless can qualify as a “violent felony” under the Armed Career Criminal Act, a 1984 law that extends the sentences of felons who commit crimes with guns if they have been convicted three or more times of certain crimes.

The question comes to the court in the case of James Walker, an elderly Tennessee man who was sentenced to 15 years in prison under the ACCA after police discovered 13 bullets — which Walker had found while cleaning the rooming house that he managed — when responding to reports of drug sales at the house.  Walker argues that the ACCA should not apply to his case. He contends that one of his prior convictions, for robbery in Texas, does not qualify as a “violent felony” because a defendant could be convicted if he recklessly caused injury during a theft.

The federal government agrees with Walker that the justices should weigh in on the issue, but it maintains that the lower court was correct in deeming Walker’s robbery conviction a “violent felony” for purposes of the ACCA.

The justices also granted two requests by the government to weigh in on the statute of limitations for old rape charges against members of the armed forces.  The question arises in the case of Michael Briggs, a captain in the U.S. Air Force who in 2014 was charged with the 2005 rape of a member of his squadron.  Under the version of the Uniform Code of Military Justice that was in effect when Briggs was charged, there is no statute of limitations for rape.  At his court-martial proceeding, Briggs was found guilty, but an appeals court later ordered that the charge be dismissed.  It reasoned that under a 2018 ruling by the same court, the five-year statute of limitations for the version of the UCMJ in effect in 2005 applied to Briggs’ offense.  The court also ruled that a 2006 law that specifically provides that there is no statute of limitations for rape does not apply to rapes committed before 2006.

The government filed a separate petition for review in the case of two other members of the Air Force.  Richard Collins was an instructor at an Air Force base in Texas.  In 2016 he was found guilty of the August 2000 rape of a student in his course.  As in Briggs’ case, an appeals court reversed Collins’ conviction, pointing to a 2018 decision by the same court.  Humphrey Daniels was convicted in 2017 of the 1998 rape of a civilian near the North Dakota Air Force base where he was stationed; his conviction was also reversed.

The government appealed to the Supreme Court, asking the justices to grant both petitions.  The government told the justices that sexual assault is “devastating to the morale, discipline, and effectiveness of our Armed Forces, but also difficult to uncover.”  The request was supported by a “friend of the court” brief by Harmony Allen and Tonja Schultz — the victims of Collins and Daniels. Today the justices agreed to take up the case.

You be the federal judge: what sentence for Roger Stone after his conviction on all seven counts including obstruction, witness tampering and making false statements to Congress?

The question in the title of this is prompted by this criminal justice news emerging from a federal courthouse in DC today: "Roger Stone, an ally of President Donald Trump, was found guilty Friday of lying to Congress and obstructing an investigation into Russia to protect Trump and his presidential campaign."  Here is some more about the case and convictions:

The jury's verdict came after about eight hours of deliberation.  Stone, a fixture in GOP politics, has worked on campaigns stretching back to Richard Nixon's.  Stone is the latest Trump ally to be found guilty in cases sprouting from a special counsel's investigation into Russia's interference in the 2016 election.

The verdict, reached by a jury of nine women and three men, comes amid an impeachment inquiry into allegations that Trump sought to pressure Ukraine into investigating a political rival....  Trump took to Twitter shortly after the verdict was announced. He decried a "double standard" and said law enforcement officials lied, including Robert Mueller, the special counsel who headed the Russia investigation.

Stone's trial ends after a week marked with Nixon quotes, references to the Mafia movie "The Godfather" and a colorful witness who offered to do a Bernie Sanders impression before an unamused federal judge.  The proceedings attracted the attendance of controversial figures, including alt-right firebrands Milo Yiannopoulos and Jacob Wohl.

Michael Caputo, a former Trump campaign adviser who attended the trial, said he was escorted out of the courtroom by a federal marshal for turning his back on the jurors as they walked out.  "Normal Americans don’t stand a chance with an Obama judge and a Washington jury," he tweeted.

U.S. District Judge Amy Berman Jackson allowed Stone to go home as he awaits his sentencing, scheduled for Feb. 6.  A gag order preventing him from talking about the case remains in effect. He and his attorneys did not comment as they left the courthouse....

The proceedings revealed information about the Trump campaign's efforts to seek advance knowledge of emails stolen from the Democratic National Committee, which hurt Democratic presidential candidate Hillary Clinton when Trump was trailing in the polls.  Testimony indicated these efforts involved the candidate himself.

Stone, 67, stood trial on accusations that he repeatedly lied to Congress about his back-channel efforts to push for the release of those emails. He was accused of urging a possible congressional witness to either lie or scuttle his testimony.

"Roger Stone lied … because the truth looked bad for the Trump campaign and the truth looked bad for Donald Trump," Assistant U.S. Attorney Aaron Zelinsky told jurors.

Defense attorneys urged jurors to focus on Stone's state of mind, arguing he did not willfully mislead Congress.  The claim that Stone lied to protect the Trump campaign was "absolutely false," Bruce Rogow told jurors.  "It makes no sense," Rogow said, adding that the campaign was long over and Trump was already president when Stone testified before Congress in 2017. "Why would Stone lie, why would he make stuff up? ... There is no purpose, there is no reason, there is no motive."

Stone was found guilty of seven charges: one count of obstruction of an official proceeding, five counts of false statements and one count of witness tampering. The maximum penalty for all counts totals 50 years in prison, though first-time offenders generally receive significantly lower sentences.

Jurors heard from five government witnesses and saw dozens of emails and text messages that prosecutors said proved Stone lied.  His defense attorneys did not call any witnesses, and Stone, known for his flamboyance and combativeness, did not testify.  The charges stemmed from Stone's interactions with the Trump campaign in the summer of 2016, around the time that WikiLeaks, an anti-secrecy group, began publishing troves of damaging emails about the Democratic National Committee and Clinton.

Prosecutors said Stone lied to the House Intelligence Committee about his efforts to push for the release of those emails.  They said he lied about the identity of the person who tipped him off about WikiLeaks' plans — his so-called intermediary.  They said he falsely denied talking to the Trump campaign about what he learned and falsely told Congress he did not have text messages and emails in which he talked about WikiLeaks.

Prosecutors said Stone sought to silence a witness who could expose these lies by using threatening references from "The Godfather" movie.  Stone urged the witness in multiple emails to follow the steps of Frank Pentangeli, a character in "The Godfather II" who lied to Congress to avoid incriminating Mafia boss Michael Corleone.

In some settings, I would be inclined to predict that an elderly nonviolent first(?) offender is quite unlikely to get a lengthy prison term or even any prison time at all.  But these days and in these kinds of high-profile case, I am never quite sure what to expect or predict.

So, dear readers, what sentence do you think you would be inclined to impose?

New Jersey commission releases big report recommending numerous big sentencing reforms

As reported in this local article from New Jersey, an "advisory panel that was reinvigorated by Gov. Phil Murphy to study racial and ethnic disparities in the state criminal justice system issued its report Thursday, calling for the elimination of mandatory sentences for those convicted of nonviolent drug and property crimes." Here is more:

The 13-member New Jersey Criminal Sentencing and Disposition Commission — chaired by retired state Supreme Court Justice Deborah Poritz — also recommended that those still incarcerated under such sentences be allowed to apply for early release. In addition, the group is urging lawmakers to adopt a new mitigating sentencing factor for young offenders, as well as a “compassionate release” program for those sentenced to terms of 30 years or more as juveniles.

The commission, which includes designees of senior lawmakers on both political parties, reached its conclusions unanimously, according to the report. “The Commission’s recommendations … reflect a consensus-driven, policy making process that incorporates a wide range of perspectives, including those of judges, prosecutors, defense attorneys, community stakeholders, corrections officials, faith organizations, and victims’ rights advocates,” the report reads.

Murphy on Thursday hailed the work of the commission, and urged the Legislature to put the reforms into bills during the current lame duck session, noting that he will sign them. “This is a comprehensive set of reforms. They will ensure the criminal justice system not only works, but works better and for all communities,” he said. “They meet the call of justice but also our broader goal of fairness.”  State Senate President Steve Sweeney called the recommendations in the report “a long-time overdue.”...

The commission was initially created by Gov. Jon Corzine a decade ago, but his successor, Chris Christie, never made any appointments and the group did not meet. Murphy jump-started the effort in February of last year, a month after he took office, noting that New Jersey “has the nation’s worst disparity in the rates of incarceration between black and white offenders” and that, “We can and must do better.”

The report also recommends a loosening of sentencing restrictions for two more serious crimes, second-degree robbery and second-degree burglary, which currently fall in a classification alongside offenses like murder, carjacking and aggravated arson. According to the report, both offenses are frequently charged even though they incorporate a broad range of conduct, including that which results in no physical injury to the victim.

Under the commission’s recommendation, the period of parole ineligibility for those convicted of such crimes would be reduced to half the sentence, down from the current 85%. The commission said it hoped its recommendations would “replicate the success” of the state’s recent bail reform initiative, in which monetary bail was largely replaced by an assessment of whether someone charged with a crime was likely to show up in court or be a danger to the community if released.

This press release from the Office of Gov Murphy includes supportive quotes from all sorts of state political and criminal justice leaders. I am eager to believe that the widespread support for the work of this state commission increases greatly the likelihood that some or all of its recommendations will become law.

The NJ commission's full report is available at this link, and it is a worthwhile read in full.  Here is the report's "Summary of Recommendations":

1. Eliminate mandatory minimum sentences for non-violent drug crimes.

2. Eliminate mandatory minimum sentences for non-violent property crimes.

3. Reduce the mandatory minimum sentence for two crimes – second degree robbery and second degree burglary – that previously have been subject to penalties associated with far more serious offenses.

4. Apply Recommendations #1, #2 and #3 retroactively so that current inmates may seek early release.

5. Create a new mitigating sentencing factor for youth.

6. Create an opportunity for resentencing or release for offenders who were juveniles at the time of their offense and were sentenced as adults to long prison terms.

7. Create a program, called “Compassionate Release,” that replaces the existing medical parole statute for end-of-life inmates.

8. Reinvest cost-savings from reductions in the prison population arising from these reforms into recidivism reduction and, to the extent available, other crime prevention programs.

9. Provide funding to upgrade the Department of Corrections’ existing data infrastructure to better track inmate trends and to develop partnerships with academic institutions to analyze this data.

"Is it me, or is the government releasing less data about the criminal justice system?"

The question in the title of this post is the title of this notable new posting by Wendy Sawyer over at Prison policy Initiative.  I recommend the full extended posting, and here is part of its start and conclusion:

We’ve heard this question from a few advocates and journalists who, like us, depend on the Bureau of Justice Statistics (BJS) and other government data sources for timely information about the justice system.  And while monitoring changes in federal data collections isn’t a core part of our work, we have observed a troubling trend: Since 2017, data releases are slowing down.

We aren’t the only ones who have noticed.  Last month, a coalition representing thousands of academic and nonprofit researchers and advocates wrote to the Office of Justice Programs with questions about missing and delayed data releases as well.

I probably don’t have to convince our regular readers that timely data is essential for identifying both social problems and effective policy solutions — and that it’s especially important in the context of criminal justice, where the human costs are so high.  And admittedly, it’s not news that government justice data has long been less well-funded, less timely, and less comprehensive than, say, labor statistics.

Even so, these publications have slowed even further — and even been curtailed — under the current administration.  To see the extent of this trend, I went through the BJS’ list of publications since 2000 and compared the time between the data collection reference dates and the corresponding report publication dates for six annual report series. I found that there has indeed been a dramatic change in the past several years....

The reasons behind these decisions and delays are unclear — is it funding problems?  Staff shortages?  Changes in leadership?  It could well be any, or all, of these problems.

BJS has been “flat funded” for years, despite the massive growth in the number and size of the correctional agencies they survey, and despite increasing demands for justice system data under laws mandating annual data collection, like the Prison Rape Elimination Act and the Deaths in Custody Reporting Act.  A National Academies publication explains that this has been a problem under both Democratic and Republican administrations, going back decades.

The Crime and Justice Research Alliance and COSSA — the coalition that wrote the October letter to the DOJ I mentioned earlier — suggest that staffing problems may explain the delays.  They write, “[M]any in the criminal justice research community have heard of an alarming decline in the number of BJS staff as a consequence of hiring freezes, staff attrition, and failure to replace departing staff and experts.”  Again, this is an agency that has been chronically underfunded and understaffed relative to the herculean task of collecting and analyzing the nation’s decentralized justice system data.

And then there is the issue of leadership.  With its mandate to produce reliable, large-scale studies with national, state, and local policy implications, effective leadership at BJS requires “strong scientific skills, experience with federal statistical agencies, familiarity with BJS and its products, [and] visibility in the nation’s statistical community,” among other qualities.  That’s according to four former BJS Directors and the President of the American Statistical Association, who wrote to former Attorney General Sessions in 2017 to encourage the appointment of an experienced research director to head up BJS.

That didn’t happen.  Instead, since late 2017, the Bureau of Justice Statistics has been under the leadership of Jeffrey Anderson, whose only prior statistical experience appears to be the co-creation of a college football computer ranking system in 1992.  On criminal justice, all I could find in his history were a handful of 2015-2016 articles in which he argues against criminal justice reform.  In a National Review article, he called Obama-era Washington “tone-deaf on crime,” despite the widespread bipartisan support of criminal justice reform.  Sadly, the problems we’re seeing with data delays and politicized language suggest that the current leadership may not agree about the importance of the agency they lead.

Tales of extreme state drug mandatory minimums (and non-retroactive reforms) from Florida

The Miami Herald has this lengthy article discussing an array of extreme sentences resulting from Florida's (now somewhat reformed) mandatory minimum drug laws.  The piece is headlined "Hundreds languish in Florida prisons under outdated mandatory minimum drug sentences, " and I recommend it in full.  Here is a taste:

It’s not enough that Jomari DeLeon calls every day, asking her 8-year-old daughter about school and reminding her that “mommy misses you.” The child still asks when she’s coming home, believing her mom’s been gone all these years because of a stint in the military. That would explain the barbed wire surrounding the compound that she visits every month.

In reality, DeLeon is four hours away in this privately run women’s prison in the Panhandle town of Quincy, serving the third year of a 15-year sentence. If she had committed her drug crime in 2016, rather than eight years ago, she would be free by now. Up to 1,000 Florida inmates find themselves in the same legal purgatory....

[DeLeon was involved in two small non-violent drug] deals — a grand total of 48 pills for $225.... Under Florida law in 2013, the possession or sale of about 22 hydrocodone pills — less than one prescription’s worth — would trigger a trafficking sentence of 15 years...

Similar drug cases were playing out across the state. In Orange County in 2009, a man named William Forrester was handed a 15-year sentence for oxycodone trafficking after he was caught falsifying prescriptions to support his habit....

In 2010, a woman named Nancy Ortiz asked an Osceola judge that rehabilitation be included in her sentence to ease her addiction to crack. She had sold two bottles of hydrocodone pills to an undercover cop. Instead, the judge sentenced her to 25 years. “I take no pleasure in imposing this sentence,” the judge told Ortiz. “But I don’t have any discretion in the matter.”

For years, people caught with prescription painkillers in Florida received tougher penalties than those with the same weight in street drugs. In some cases, they received five times the sentence because that’s what the law required....

[P]ublic defenders from around the state went to Tallahassee to lobby the Legislature to change the law .. [and] even the state prosecutors’ association — those pursuing convictions for drug crimes — joined the public defenders in pursuit of lighter sentences for those selling prescription pills. MO<Finally, lawmakers listened. Sen. Rob Bradley, R-Fleming Island, a former prosecutor, sponsored a bill in 2014 that increased the number of hydrocodone or oxycodone pills needed to trigger the lengthy mandatory sentences. To get 15 years for hydrocodone, for example, would now take about 77 pills, rather than about 22....

The Legislature’s 2014 law could not apply to DeLeon’s sentence because, at the time, the Florida Constitution explicitly prohibited changes in sentencing laws to apply retroactively.... [That was changed in 2018 when] voters approved Amendment 11 last year.

At Gadsden Correctional Facility, it was cause for celebration. Another prisoner serving 15 years, also for hydrocodone, told DeLeon that the change in Florida’s Constitution could mean their freedom. “This is exactly what’s going to help us get out of here,” she told DeLeon. DeLeon’s family was so excited for her re-sentencing hearing, they started preparing for her to come home, buying canvasses for her to paint.

In July, however, the judge explained his hands were tied. Her motion for a new sentence was denied because state lawmakers first need to lay out a framework for judges to follow. It’s unclear when, or if, lawmakers will do so.

Earlier this year, lawmakers again increased the number of hydrocodone pills required to trigger mandatory sentences. Bradley, the state senator who sponsored the 2014 drug sentencing change, said he would be open to easing sentences for old drug cases. But he said he doesn’t consider it a priority....

Hundreds of people like DeLeon are in prison serving outdated sentences for hydrocodone or oxycodone trafficking that would not have been handed down if they committed the same crimes today.

One analysis by the Crime and Justice Institute, a nonpartisan group that’s done policy analysis for the Florida Senate, found that up to 640 current inmates fall into this category, while researchers with the Project on Accountable Justice housed at Florida State University found up to 935 inmates. Both estimates have not been previously published.

For one year, it costs Florida $20.7 million to incarcerate 935 people, according to “full operating cost” data from the Department of Corrections. Multiply that expense over their entire sentences, and the cost to taxpayers balloons to more than a hundred million dollars.

Georgia completes execution after federal courts turn back final appeals

As reported in this AP piece, a person "convicted of killing a Georgia convenience store clerk 25 years ago was put to death late Wednesday night."  Here is more:

Inmate Ray Jefferson Cromartie, 52, was pronounced dead at 10:59 p.m. Wednesday after an injection of pentobarbital at the state prison in Jackson.  He made no last statement but requested a prayer to be recited before the drugs began flowing.

Cromartie was convicted and sentenced to die for the April 1994, slaying of Richard Slysz at a convenience store in Thomasville, near the Georgia-Florida line.  The state said Cromartie also had shot and gravely wounded another convenience store clerk days before the killing.

Wednesday's execution came shortly after the U.S. Supreme Court, without explanation, rejected two appeals by the inmate's attorneys....  Cromartie had insisted through his attorneys that he didn't shoot either clerk.  The defense lawyers had also recently asked state and federal courts to allow DNA testing of evidence collected from the shootings that they say could prove he wasn't the shooter.  Lawyer Shawn Nolan called the denial of DNA tests "so sad and frankly outrageous" in a statement after the execution....

The state countered that the DNA evidence being sought couldn't prove his innocence.  Evidence at trial showed Cromartie borrowed a handgun from his cousin April 7, 1994, entered the Madison Street Deli that night and shot clerk Dan Wilson in the face, seriously injuring him.  Wilson couldn't describe his attacker and surveillance camera footage wasn't clear enough to conclusively identify the shooter.

Days later on April 10, Cromartie and Corey Clark asked Thaddeus Lucas to drive them to another store to steal beer, testimony showed.  Lucas parked, and the other two entered the Junior Food Store.  Cromartie shot Slysz twice in the head, prosecutors said.  Unable to open the cash register, Cromartie and Clark fled after Cromartie grabbed two 12-packs of beer.  In both cases, Cromartie told others he had shot the clerks, evidence showed.

Lucas and Clark testified against Cromartie at the September 1997 trial that concluded with his death sentence.  Lucas and Clark each pleaded guilty to lesser charges, served prison time and were released....

Cromartie's attorneys filed a complaint in federal court challenging the constitutionality of the Georgia law governing post-conviction DNA testing and the way the state's courts apply it.  That filing also sought an order to allow DNA testing. Last week, lawyers filed a statement from Lucas in federal court in Valdosta claiming he overhead Clark tell someone else he shot Slysz.

U.S. District Judge Mark Treadwell, in an order Tuesday, rejected that move, writing that Lucas' statement was "not new reliable evidence of Cromartie's actual innocence."  A three-judge panel of the 11th U.S. Circuit Court of Appeals upheld Treadwell's decision late Wednesday before the U.S. Supreme Court rejected a request to intervene....

Cromartie was the third person executed by Georgia this year.  The state says it uses the sedative pentobarbital for injections, but Georgia law bars the release of any information about the drug's source.

Longest prison sentence (six months) imposed in college admission scandal on big-spending dad

As reported in this USA Today piece, today in Boston "Toby MacFarlane, a former real estate and title insurance executive from California, was sentenced to six months in prison Wednesday for paying $450,000 to get his daughter and son admitted into the University of Southern California as fake athletic recruits."  Here is more:

It marks the longest prison sentence so far handed down among 13 parents and one college coach in the nation's college admissions scandal.

U.S. District Judge Nathaniel Gorton stressed that MacFarlane participated in the nationwide admissions scheme led by college consultant Rick Singer "not once, but twice," taking seats at USC away from two deserving students. He told MacFarlane his actions should be tolerated no more than a common thief's actions, "because that's what you are — a thief."...

Gorton also sentenced MacFarlane to two years of supervised release, 200 hours of community service and a $150,000 fine....

Addressing the court, MacFarlane, himself a USC graduate, apologized to his family, friends, former business partners and his alma mater, as well as "all of the students who applied and didn't get in."...

Gorton opted to impose a harsher sentence than called for in sentencing guidelines, citing the “fraudulent, deceitful" nature of MacFarlane's conduct. The judge's decision could be a preview of how he will approach other parents who go before him — including actress Lori Loughlin — who have pleaded not guilty.

MacFarlane, a former senior executive at WFG National Title Insurance Company, made two separate payments of $200,000, one in 2014 and on in 2017, to the sham nonprofit operated by Singer. Singer, in turn, facilitated his children's admissions into USC through bribes to one current and two former USC employees. MacFarlane also made a $50,000 payment to USC athletics.

The first transaction involved the admission of MacFarlane's daughter into USC as a fake soccer recruit. He then paid Singer again to admit his son into USC posing as a basketball recruit. "The defendant knew what he was doing was wrong. He knew it wasn't accepted at the school," Assistant U.S. Attorney Eric Rosen told the judge. "So what does he do? He does it again with his son.”

Rosen said MacFarlane deserved prison because he was the first parent who paid into Singer's "side-door" recruitment scheme twice. He asked the judge to "send a message" as a result.

MacFarlane's defense attorney, Ted Cassman, sought a lighter sentence, arguing his client was less culpable than other parents sentenced in the admissions scheme. Unlike other parents, he said MacFarlane did not seek out Singer for cheating but for his consulting services. He said MacFarlane already suffered "swift and severe" collateral consequences from his conduct. He also pointed to MacFarlane's divorce, which separated his family and pressured him to buckle to Singer's offer....

The toughest prison sentence previously ordered was five months for Agustin Huneeus, a Napa Valley, California winemaker. Huneeus, who agreed to pay Singer $300,000 is the only defendant to take part in both the recruitment scheme and Singer's plot to cheat on college entrance exams. U.S. District Judge Indira Talwani handed down the sentence of Huneeus and 11 other parents while Judge Douglas Woodlock sentenced one other parent.

Twenty-nine defendants, including 19 parents, have either pleaded guilty in court or agreed to plead guilty to charges in the historic admissions case. Igor Dvorsiky, a former administrator for the ACT and SAT, pleaded guilty in court Wednesday to racketeering charges for accepting nearly $200,000 in bribes to opening a private school he operated in Los Angles for cheating in Singer's scheme. He admitted to opening it on 11 occasions, involving 20 students, for cheating.

Prior related Varsity Blues posts:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Summer sentencing (with notable particulars) for first college admission scandal parents to enter pleas in court
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal
• Gearing up for the federal sentencing of Felicity Huffman and others involved in college bribery scandal 
• Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal 
• Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases
• Gearing up for the next round of sentencings in college admissions scandal
• Next parent sentenced in college admission scandal gets four months in federal prison
• Next parent up in college admission scandal sentencing also gets four months in federal prison
• BigLaw partner gets one month federal time as latest parent sentenced in college admissions scandal 
• Napa Valley winemaker gets five months of imprisonment, the longest sentence so far in college admissions scandal
• US Attorney in college admission scandal makes plain how trial penalty works even for celebrity actresses
• Catching up with another round of sentencings in "Operation Varsity Blues"
• The trial penalty on fine display as parents in college admissions scandal get hit with new federal bribery charges
• Reviewing the sentencing dynamics as more parents get (minimal) prison time in "Operation Varsity Blues" college admissions scandal 

Attorney General Barr announces "Project Guardian" as part of plan to reduce gun violence

As reported in this Hill piece, the "Department of Justice (DOJ) on Wednesday unveiled a program that aims to reduce gun violence including through the creation of guidelines to prosecute those who make false statements while trying to get a gun." Here is more:

The five-point plan includes coordinated prosecution, enforcing the background check system, improved information sharing, a coordinated response for mental health denials, and crime gun intelligence coordination, according to a DOJ statement.

The department seeks to coordinate prosecution under the "Project Guardian" program by considering federal prosecution for those who were arrested for possessing a firearm, are believed to have used a firearm while committing violence or drug trafficking, or who is suspected of actively committing violent crimes in connection with a criminal organization.

To enforce background checks, attorneys general, in connection with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will create or renew guidelines for prosecuting those who make false statements while trying to get a firearm. Those who have been convicted of violent felonies and domestic violence misdemeanors, among others, will be given special emphasis....

Attorney General William Barr said in a statement that the plan shows the DOJ's commitment to reducing gun violence. "Project Guardian will strengthen our efforts to reduce gun violence by allowing the federal government and our state and local partners to better target offenders who use guns in crimes and those who try to buy guns illegally,” he said.

He also said during a press conference in Memphis, Tenn., that the program would be applied with exceptional "vigor" in areas with high levels of gun violence. "We're going to apply it with special vigor where gun violence is the highest, in places like Memphis," he said....

The attorney general said Wednesday that the administration came up with a series of related legislative proposals, but added they could not move forward due to the probe into the president's dealings with Ukraine. “Unfortunately, our discussions on the legislative aspects of this have been sidetracked because of the impeachment process on the Hill and so we are going forward with all of the operational steps,” Barr said.

“We certainly are always willing to pursue legislative measures that will enhance the fight against violent crime but right now it does not appear to things in Washington are amenable to those kinds of negotiations and compromises,” he added.

Gun violence prevention group March for Our Lives, which was founded after a mass shooting at a school in Parkland, Fla., criticized the program as a "racialized" tough-on-crime plan. "We’ve seen racialized ‘tough on crime’ plans before. It doesn’t work," the group tweeted. "We ought to be tough on injustice, economic oppression and inequality. Our country has a gun violence problem. It’s sources vary, but the common factor is easy access to guns."

I cannot help but wonder if, among the shelved legislative proposals, was some follow up on the talk from a few months ago of draft legislation to expedite the death penalty as part of package response to mass shootings. Even without legislative proposals, the announced "Project Guardian" initiative (set forth in this press release with this linked DOJ guidance memo) provides plenty to wonder about in terms of coming prosecutions and sentencings in the federal system.

As noted in this post, just this past Friday Deputy Attorney General Jeffrey Rosen highlighted in a speech that the current Justice Department has "increased federal firearm prosecutions by over 40 percent compared to the last two years of the previous administration."  I presume that this uptick in firearm prosecutions will continue and perhaps even accelerate as a result of "Project Guardian."  I would welcome comments from anyone working "on the ground" in the federal criminal justice system about whether and how they think  "Project Guardian" could prove consequential.

UPDATE: The Justice Department has released the text of Attorney General William Barr's remarks in Memphis at the launch of Project Guardian. Here is a snippet:

What we are trying to do is take those Triggerlock principles that were successful in the past and revamp this program, resuscitate it, and double down on it nationwide.

This is a national program.  It will be in every district.  The idea is to use our existing gun laws to incapacitate the most dangerous and violent offenders.  As most of you know, with Project Safe Neighborhoods, which is one of the flagship programs of the Department of Justice, we do go after the armed felons.  But that program is regionally based; we go after particular areas.

Project Guardian is a national initiative to comprehensively attack gun violence through the aggressive enforcement of existing gun laws.

This will be implemented nationwide in every federal district.  We are going to apply pressure with vigor where gun violence is the highest in places like Memphis. Local agencies will be involved, but ATF will be leading this effort.  It will involve all federal law enforcement agencies working closely with our state and local colleagues.

"Defending Progressive Prosecution"

The title of this post is the title of this new book review by Jeffrey Bellin now available via SSRN.  Here is its abstract:

“Progressive prosecutors” are taking over District Attorney’s Offices in cities across the nation, with a mandate to reform the criminal justice system from the inside.  Emily Bazelon’s new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, chronicles this potentially transformative moment in American criminal justice.

This Book Review Essay highlights the importance of Charged to modern criminal justice debates, and leverages its concrete framing of the issues to offer a generally applicable theory of prosecutor-driven criminal justice reform.  The theory seeks to reconcile reformers’ newfound embrace of prosecutorial discretion with long-standing worries, both inside and outside the academy, about the dangerous accumulation of prosecutorial power.  It also offers the potential to broaden the movement’s appeal beyond progressive jurisdictions.

Two upcoming executions with still lots of questions swirling

As noted in this recent NBC News piece, a lot of officials and celebrities are raising a lot of questions about the guilt of Texas death row inmate Rodney Reed. Reed is scheduled to be executed by Texas next week, on November 20, based on his conviction in the 1996 rape and murder of Stacey Stites.

But tonight there is an execution scheduled in Georgia, and it is not without questions as well as detailed in this local article headlined "As execution nears, co-defendant says condemned man likely isn’t killer." Here are the basics:

A co-defendant of Georgia death row inmate Ray “Jeff” Cromartie, sentenced to be executed for murder, said recently he had no idea who pulled the trigger.... [T]he co-defendant says he's been keeping a secret the past 25 years that makes him believe Cromartie most likely wasn’t the gunman.

“I keep hearing that Jeff Cromartie is the shooter and I know that is probably not true,” Thad Lucas wrote in an affidavit released Monday, claiming he overheard another man confess to the shooting.  Lucas was the getaway driver for the 1994 store robbery turned shooting in South Georgia.  He and fellow defendant Corey Clark testified for the state, avoiding the death penalty and murder charges.

At the time, Clark testified that Cromartie was the gunman. Cromartie said it was Clark.  Now Lucas, who is Cromartie’s half-brother, says he overheard Clark confess to the crime. He said he didn’t come forward before now because he feared no one would listen....

Cromartie is scheduled to die at 7 p.m. Wednesday.  His attorneys are fighting for new DNA testing that they say could prove Cromartie didn’t pull the trigger.  Cromartie doesn’t deny involvement in the robbery, but he has maintained he wasn’t the shooter.

Generally speaking, Georgia’s party to a crime law could have made Cromartie eligible for the death penalty whether he pulled the trigger or not.  But his attorneys said the party to a crime law doesn’t apply now because prosecutors explicitly argued at trial that Cromartie fired the fatal shots.

On Monday, Cromartie’s attorney Shawn Nolan said the defense team was preparing a filing for the U.S. Supreme Court, asking it to halt the execution based on Lucas’ statement. “No court has ever heard or considered this new evidence of Ray Cromartie’s innocence,” Nolan said.  “The state has denied his requests for DNA testing for years.  Mr. Cromartie’s jury sentenced him to death based on their conclusion he was the shooter. If he was not the shooter, his death sentence is not valid and his execution must not proceed."

"Usual Cruelty The Complicity of Lawyers in the Criminal Injustice System"

The title of this post is the title of this notable new book authored by former public defender, Alec Karakatsanis.  The publisher, The New Press, provides this accounting of the book: 

From an award-winning civil rights lawyer, a profound challenge to our society’s normalization of the caging of human beings, and the role of the legal profession in perpetuating it.

Alec Karakatsanis is interested in what we choose to punish.  For example, it is a crime in most of America for poor people to wager in the streets over dice; dice-wagerers can be seized, searched, have their assets forfeited, and be locked in cages. It’s perfectly fine, by contrast, for people to wager over international currencies, mortgages, or the global supply of wheat; wheat-wagerers become names on the wings of hospitals and museums.

He is also troubled by how the legal system works when it is trying to punish people.  The bail system, for example, is meant to ensure that people return for court dates. But it has morphed into a way to lock up poor people who have not been convicted of anything.  He’s so concerned about this that he has personally sued court systems across the country, resulting in literally tens of thousands of people being released from jail when their money bail was found to be unconstitutional.

Karakatsanis doesn’t think people who have gone to law school, passed the bar, and sworn to uphold the Constitution should be complicit in the mass caging of human beings — an everyday brutality inflicted disproportionately on the bodies and minds of poor people and people of color and for which the legal system has never offered sufficient justification. Usual Cruelty is a profoundly radical reconsideration of the American “injustice system” by someone who is actively, wildly successfully, challenging it.

This Amazon page about the book provides a "look inside" that includes the introduction explaining that the book is primarily the collection of three notable essays by Alec Karakatsanis that have been previously published.  This recent Intercept piece has an interview with the author that gets set up this way:

Alec Karakatsanis's “Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System” should be assigned reading for every first-year law student.  Published last month by The New Press, the book is an unusually blunt takedown of a system the author never once refers to as a criminal “justice” system.  Litigated with the intellectual vigor of someone who has won a number of landmark fights in federal court, “Usual Cruelty” clearly lays out a case for why our criminal legal system is not broken, but doing exactly what it was designed to do.

At a time when talk of justice reform has become mainstream but risks becoming hollow, and phrases like “progressive prosecutor” contribute to the deception that we are, in fact, making progress, Karakatsanis is clear-eyed about the bigger picture. But while “Usual Cruelty” is ultimately an abolitionist book that calls on people to imagine a world with fewer laws and in which jails and prisons aren’t the default response to all social problems, Karakatsanis is also keenly aware of how lawyers can use the law’s tools to fight the law’s harm.  At Civil Rights Corps, the nonprofit he founded, Karakatsanis takes on cases challenging systemic injustices in the legal system — like cash bail and the systems of fines and fees that keep poor people in jail — which he says have become so “normalized and entrenched” they barely give us pause.

Lots of victims/families and former officials urge Trump Administration not to move forward with federal executions

The Washington Post has this notable new article headlined "Hundreds of victims’ relatives, ex-officials ask Trump administration to halt federal executions."  Here are excerpts:

Hundreds of relatives of murder victims, current and former law enforcement officials and former judges have signed letters urging the Trump administration to call off its plans to resume federal executions next month.  The letters, which are signed by a wide range of current and former officials across the justice system as well as 175 people whose loved ones were slain, plead with President Trump and Attorney General William P. Barr to stop the executions.

These messages offer several explanations and requests. The relatives of murder victims — the largest single group to sign the letters — call for an end to the death penalty, denouncing the process as wasteful and something that only extends their grieving.  “We want a justice system that holds people who commit violence accountable, reduces crime, provides healing, and is responsive to the needs of survivors,” they write.  “On all these measures, the death penalty fails.”

Barr announced over the summer that the Trump administration would carry out the first federal executions since 2003, scheduling them to resume on Dec. 9.  The move breaks with recent declines in both death penalty activity nationwide as well as public support for the practice.  “The Justice Department upholds the rule of law — and we owe it to the victims and their families to carry forward the sentence imposed by our justice system,” Barr said in a July statement declaring that executions would resume.  The Justice Department said five executions were scheduled for December and January and promised that more would follow.

The letters asking Barr and Trump to stop the executions — intended to arrive at the White House and Justice Department on Tuesday — contain pleas from victims’ families as well as current and former prosecutors, police chiefs, attorneys general, judges and corrections officials, all citing their experiences and perspectives in arguing against resuming executions as scheduled.

Copies of the letters were shared with The Washington Post before they were submitted. A spokesman for the White House did not immediately respond to a message seeking comment Tuesday.  A Justice Department spokesman declined to comment on the letters and referred a reporter to Barr’s earlier statement announcing the resumption of executions.

In one letter, current and former prosecutors and other law enforcement officials express fears about innocent people being convicted, the financial cost of death penalty cases and racial disparities. “We are deeply concerned that the federal government plans to proceed with executions despite serious questions about the fairness and reliability of the system that condemned them,” they write.

The current and former officials — a group including some of the “progressive prosecutors” who won district attorney jobs after campaigning for criminal justice reforms — note that they include a mix of people who support and oppose the death penalty. Rather than calling for an end to capital punishment, they ask for “a comprehensive review of the system” before any federal executions can occur.  “It’s too big a risk and there’s nothing to be gained,” Jim Petro, a Republican and a former Ohio attorney general who signed the letter, said in an interview....

In the letter signed by murder victims’ relatives, they argue that the death penalty “exacerbates the trauma of losing a loved one,” wastes money, does not deter crime and, due to the lengthy appeals process that keeps the cases going, delays the healing process.  Gail Rice — whose brother, Bruce VanderJagt, was a Denver police officer slain in 1997 by a man who killed himself — said she became an active death-penalty opponent after his death. Rice, who signed the letter to Trump and Barr, said her years working in prison and jail ministries showed her that justice is not fairly administered. “I’ll be praying for them,” she said of relatives of victims in the cases that led to the scheduled federal executions. “I would certainly tell them … please don’t listen to judges or prosecutors or legislators that are going to tell you this is wonderful, it brings closure, it brings healing. Because believe me, it doesn’t.”

The message in the letter from victims’ relatives echoes a plea from Earlene Peterson, who has separately asked the Trump administration not to kill Daniel Lewis Lee, the first federal inmate scheduled to be executed.  The Justice Department said Lee killed a family of three, among them an 8-year-old-girl and her mother — Sarah Powell and Nancy Mueller, Peterson’s granddaughter and daughter.  “I can’t see how executing Daniel Lee will honor my daughter in any way,” Peterson said in a video statement released last month. Peterson, noting that she voted for Trump and plans to do so again, said she wants the president to know: “I don’t want this to happen.”

"Why are bureaucrats undermining the president on criminal justice?"

The question in the title of this post is the headline of this notable new Hill commentary authored by Holly Harris.  The piece laments developments, previously reported here and here, relating to the implementation of one part of the FIRST STEP Act.  Here is are excerpts:

Justice Department bureaucrats have been quietly working to undermine President Trump and Congress by obstructing federal criminal justice reforms.  It is not surprising, and it is not the first time.  But it is a shame....

The Justice Department, according to various reports, is inexplicably spending taxpayer resources trying to find ways of bringing some of the prisoners released under the First Step Act back into federal custody.  An investigation by Reuters found dozens of instances in which the Justice Department argued against releasing these prisoners early, usually basing their new cases on some technicality like “the total amount of drugs that were found to be involved during the investigation, rather than the often smaller or more vague amount laid out in the law they violated years ago.”

It is no secret that the Justice Department zealously opposed the First Step Act, but I remained hopeful when its officials promised to fully and faithfully implement the law.  I applauded when they had issued progress reports on each of the provisions of the First Step Act.  But never once in these reports nor anywhere else did the Justice Department publicly disclose their plan to direct prosecutors to oppose release petitions.

Fortunately, most of those attempts to keep these individuals behind bars, or to reincarcerate them after the fact, have been struck down by federal judges.  But that is not stopping obstructionists within Justice Department ranks from continuing to thwart the will of President Trump, the will of Congress, and the will of the people to implement the First Step Act.

The Justice Department has long acted on an island, separate from the administration and accountable to no one.  The surreptitious obstruction of First Step is just the latest in a long line of unilateral actions aimed at undermining badly needed reforms to our broken criminal justice system.  Others questionable federal actions include reopening for profit prisons, directing prosecutors to charge all defendants with the highest provable offenses, and eliminating the investigations of police departments that repeatedly violate the civil rights of those they are sworn to protect.

Predictably, the latest obstruction of the popular First Step Act is not sitting well with leaders on both sides of the aisle. Democratic Senator Richard Durbin of Illinois told Reuters, “The notion that the Department of Justice is just going to keep nagging at them and appealing these cases is not what we have ever had in mind.”  Republican Senator Mike Lee of Utah likewise told the Washington Post, “It would be a shame if the people working under the president failed to implement the bill as written.”...

In the face of this obstruction, Congress may finally be willing to push back hard against Justice Department attempts to act as a fourth branch of government.  Too many are invested in the success of the First Step Act to overlook attempts to undermine it.  I urge the leaders in the House and Senate to vigorously exercise their oversight authority over an institution that has operated on an island for far too long, and ensure that their own groundbreaking efforts to restore some justice to a broken system is not thwarted by the very officials who pledged to faithfully implement it.

Prior related posts:

• Spotlighting how some federal prosecutors are pushing back on some applications of FIRST STEP Act crack retroactivity 
• Spotlighting again how the Justice Department is resisting broad applicability of certain FIRST STEP Act provisions