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December 8, 2018

"Bias In, Bias Out"

The title of this post is the title of this recent article authored by Sandra Mayson that I just came across on SSRN. Here is its abstract:

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime.  As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies neither in the input data, nor in a particular algorithm, nor in algorithmic methodology.  The deep problem is the nature of prediction itself.  All prediction looks to the past to make guesses about future events.  In a racially stratified world, any method of prediction will project the inequalities of the past into the future.  This is as true of the subjective prediction that has long pervaded criminal justice as of the algorithmic tools now replacing it.  What algorithmic risk assessment has done is reveal the inequality inherent in all prediction, forcing us to confront a much larger problem than the challenges of a new technology.  Algorithms shed new light on an old problem.

Ultimately, the Article contends, redressing racial disparity in prediction will require more fundamental changes in the way the criminal justice system conceives of and responds to risk.  The Article argues that criminal law and policy should, first, more clearly delineate the risks that matter, and, second, acknowledge that some kinds of risk may be beyond our ability to measure without racial distortion — in which case they cannot justify state coercion.  To the extent that we can reliably assess risk, on the other hand, criminal system actors should strive to respond to risk with support rather than restraint whenever possible.  Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that targets the risky for support.

December 8, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Even more great clemency news in Oklahoma in wake of 2016 sentencing reform ballot initiative

In this post a few month ago, I noted the important work of lawyers and law students in seeking commutations for dozens of Oklahoma inmates in the aftermath of the state's passage of Question 780, which  made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies.  And last month in this post I reported that the Oklahoma Pardon and Parole Board had recommended commutations for a sizable group of offender, and this past week Governor Mary Fallin officially approved 21 commutation requests.  This local article reports on these development, and here are excerpts (with some emphasis added): 

Oklahoma Governor Mary Fallin has approved commutation requests for 21 non-violent offenders. The 21, whose names were read off one-by-one Wednesday by the governor, made it to the final step in a three-stage process by receiving a favorable vote from at least a simple majority of the five-member Oklahoma Pardon and Parole Board.

"We can keep people who are dangerous to society locked up, for those who have addiction issues that are non-violent, low-level offenders, there's a better way of doing this in our nation," Fallin said.  "On a personal note, this is just me saying this but, as we prepare for the Christmas holiday season, let's not forget there is a God of second chances."

Those being assisted through the commutation campaign are serving 10 years or longer for crimes that now carry lesser punishments following recent reforms approved by voters and legislators.

One of those was Juanita Peralta. Her daughter, Destiny Pinon, told News 4 that her mother was serving a 15-year sentence after she was arrested for a DUI while in a drug court program. Peralta has served about two years of her sentence in Taft, Oklahoma. "It’s unreal. I mean, it’s a good unreal feeling," Pinon said.  "When they said her name, it was just a rush of emotions."...

The 21 offenders were sentenced to a cumulative 349 years of incarceration. Wednesday’s action shaved 306 years off those incarcerated.

Richard Quillen, along with other parents and family members, was able to break the news over the phone to his daughter, Peyton Quillen. She had been serving time in Tulsa for a drug-related offense. "Governor Mary Fallin just signed your release papers and, as of this moment, you are a free woman," Richard told his daughter over the phone. "Okay, I love you."

Edmond resident Alyshea Rains, the mother of commuted offender Alexis Rains, told News 4 that the past two years without her daughter has been nothing short of tough. Alexis, now 24, was sentenced to 10 years for drug possession. She will return home to her now 5-year-old daughter....

News 4 spoke with Kayla Jeffries on Wednesday moments after she was released from the Kate Barnard Correctional Center. Her 20-year sentence was commuted after she was arrested for drug infractions at the age of 18. Jeffries served two and a half years at Mabel Bassett Correctional Center and six months at the Kate Barnard Correctional Center. “It’s surreal. I’m praising God. I’m thanking God every step I take,” she said. “I had my youngest daughter at Mabel Bassett, so I haven’t really had any bonding or or one on one time with her so I’m really looking forward to that and to just being a good mom and telling my story.”

Next Wednesday, the Oklahoma Pardon and Parole Board will consider sending eight more commutation applicants to the governor.

Prior related posts:

December 8, 2018 in Clemency and Pardons, Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

December 7, 2018

Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten

The US stock market probably can lay claim to being the most volatile and unpredictable metric since last months election, but the ups and downs surrounding the possible enactment of the FIRST STEP Act during the lame duck Congress have certainly been knocking me for a loop.  As of yesterday evening, as reflected in this post, I was ready to put a folk in reform efforts and conclude they were done for now.  But a new day brings all sorts of new developments: (1) Senator Ted Cruz issued this press release reporting "the White House and the sponsors of this bill ... have decided to accept [his] amendment" to exclude violent offenders from being released early so that now he believes "the Senate should take up and pass this important legislation, and (2) Prez Donald Trump posted this tweet:

This new Politico article, headlined "Trump leans on McConnell to vote on criminal justice reform," provides the latest full update, including these mostly encouraging details:

President Donald Trump pressured Senate Majority Leader Majority Leader Mitch McConnell on Friday to pass criminal justice reform, hoping to push a reluctant McConnell to put it on the floor during a crowded lame duck session. After going mostly silent on the bill for several weeks, Trump touted the bill at an event in Kansas City and then singled McConnell out on Friday on his Twitter feed....

A person familiar with the conversations between the two men said the president was using a light touch on the bill, but would call McConnell out if he felt the bill was drifting away. “McConnell said if we’ve got 65 votes then he would allow the bill to get on the floor. And we’ve far exceeded that. And now the president is pushing the president to get the floor time," the person said. "We need to figure out exactly how this fits in in the floor time. Until we can answer that question all the pressure in the world won’t make a difference. What [Trump has] done is he’s expressed very clearly to McConnell that he wants him to figure it out."

Senate Judiciary Chairman Chuck Grassley (R-Iowa) also talked to Trump on Friday and tweeted that "Trump told me he wants it done THIS CONGRESS."

The Trump tweet came on top of a day of rising public support for the bill, with Sen. Ted Cruz (R-Texas) endorsing a revised version of criminal justice reform. The legislation, which would relax some federal sentencing guidelines and reform the federal prison system, is being amended to “exclude violent offenders from being released early,” the Texas Republican said in a statement....

Four other senators endorsed the bill on Friday as it faces a time crunch on the Senate calendar. Sens. Thom Tillis (R-N.C.), Tina Smith (D-Minn.), Michael Bennet (D-Colo.) and Steve Daines (R-Mont.) backed the bill.  Those senators plus Cruz give the bill more than 30 official supporters in both parties, though almost the whole 49-member Democratic caucus is expected to back the bill if it comes up for a vote.

The real issue is on the Republican side, where advocates argue that about 30 of the 51 senators support it, but GOP leaders say the bill’s support is much lower.  Though conservatives like Tom Cotton (R-Ark.) have led the public charge against it, there are quieter opponents of the bill like Sen. Dan Sullivan (R-Alaska), who says his state is in the midst of a “crime wave” from similar legislation.  “It’s a very challenging time in Alaska to be focused on criminal justice reform,” Sullivan said in an interview. He said the bill should not come up this year.

The internal disagreements and opposition from the National Sheriffs’ Association have made McConnell reluctant to bring the bill to the floor, especially with just two weeks left to pass legislation to fund the government. McConnell has repeatedly indicated to the White House and his conference that finding a window to pass the criminal justice reform bill would be challenging. “Until we can kind of figure out how to get the sheriffs on board, we still have a lot of opposition in our ranks,” said Sen. John Thune of South Dakota, the No. 3 GOP leader. “Then, from a timing standpoint, how would we process that in the next two weeks?”...

Sen. Lindsey Graham (R-S.C.) said he spoke to President Donald Trump on Friday and that the president wants the bill to pass, potentially as part of the spending bill along with more money for the border wall. But that plan would surely draw broad Democratic opposition over funding for the wall. And McConnell has mentioned taking up the bill next year after Democrats take the House. But the bill's supporters say that's akin to starting all over after building a fragile compromise this year.

Some of the most recent of many prior related posts:

December 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Feds request for Michael Cohen a "substantial term of imprisonment" though with a "modest downward variance" from Guideline range of 51-63 months in prison

Michael Cohen is scheduled to be sentenced by US District Judge William Pauley in New York City on December 12 after his guilty plea to charges including campaign finance fraud and lying to Congress.  As noted in this prior post, late last Friday, Cohen's lawyers filed this 30-page sentencing memorandum making a plea for leniency and a sentence of "time-served and restitution to the IRS."  Today it was time for federal prosecutors to weigh in, and the Acting US Attorney for the Southern District of New York has now delivered this 40-page government sentencing memorandum making a case for a "substantial prison term."  Here is this latest filing's preliminary statement:

Defendant Michael Cohen is scheduled to be sentenced on December 12, 2018. The United States Attorney’s Office for the Southern District of New York (the “Office”) respectfully submits this memorandum in connection with that sentencing and in response to the defendant’s sentencing memorandum dated November 30, 2018 (“Def. Mem.”). 

Cohen, an attorney and businessman, committed four distinct federal crimes over a period of several years.  He was motivated to do so by personal greed, and repeatedly used his power and influence for deceptive ends. Now he seeks extraordinary leniency — a sentence of no jail time — based principally on his rose-colored view of the seriousness of the crimes; his claims to a sympathetic personal history; and his provision of certain information to law enforcement. But the crimes committed by Cohen were more serious than his submission allows and were marked by a pattern of deception that permeated his professional life (and was evidently hidden from the friends and family members who wrote on his behalf).

Cohen did provide information to law enforcement, including information that assisted the Special Counsel’s Office (“SCO”) in ongoing matters, as described in the SCO’s memorandum to the Court, and the Office agrees that this is a factor to be considered by the Court pursuant to Title 18, United States Code, Section 3553(a).  But Cohen’s description of those efforts is overstated in some respects and incomplete in others.  To be clear: Cohen does not have a cooperation agreement and is not receiving a Section 5K1.1 letter either from this Office or the SCO, and therefore is not properly described as a “cooperating witness,” as that term is commonly used in this District.

As set forth in the Probation Department’s Presentence Investigation Report (“PSR”), the applicable United States Sentencing Guidelines (“Guidelines”) range is 51 to 63 months’ imprisonment.  This range reflects Cohen’s extensive, deliberate, and serious criminal conduct, and this Office submits that a substantial prison term is required to vindicate the purposes and principles of sentencing as set forth in Section 3553(a).  And while the Office agrees that Cohen should receive credit for his assistance in the SCO investigation, that credit should not approximate the credit a traditional cooperating witness would receive, given, among other reasons, Cohen’s affirmative decision not to become one.  For these reasons, the Office respectfully requests that this Court impose a substantial term of imprisonment, one that reflects a modest downward variance from the applicable Guidelines range.

Prior related posts:

UPDATE:  My posting above initially failed to note that there big sentencing memo linked above came from the Southern District of New York.  I have clarified this above because there was another filing from the Special Counsel's Office to address Cohen's offense of lying to Congress.  This SCO sentencing filing runs only seven pages, and it paints Cohen in a somewhat better light, concluding this way:

The defendant’s crime was serious, both in terms of the underlying conduct and its effect on multiple government investigations.  The sentence imposed should reflect the fact that lying to federal investigators has real consequences, especially where the defendant lied to investigators about critical facts, in an investigation of national importance.

However, the defendant has made substantial and significant efforts to remediate his misconduct, accept responsibility for his actions, and assist the SCO’s investigation. Accordingly, the Government respectfully submits that the Court should give due consideration to the defendant’s efforts set forth above and that it would be appropriate to allow the defendant to serve any sentence imposed in this case concurrently with any sentence imposed in United States v. Cohen, 18-cr-602 (WHP).

December 7, 2018 in Booker in district courts, Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (15)

So what does Bill Barr now think about federal criminal justice reforms or state marijuana reforms?

The question in the title of this post is prompted, of course, by this news as reported here by CNN: "President Donald Trump has decided to nominate former Attorney General William Barr to be the next permanent head of the Justice Department, the President told reporters Friday." Here is more:

"He will be nominated for the United States attorney general and hopefully that process will go very quickly," Trump added.

Barr previously worked at the CIA in the 1970s and served in several leadership roles at the Justice Department serving under President George H.W. Bush. He ultimately served as attorney general from 1991 through 1993. He subsequently served in several executive and leadership positions at corporations, including Verizon Communications. Barr also served as a board member on CNN's parent company, Time Warner, Inc., (now Warner Media) from 2009 until 2018....

Officials at the DOJ are thrilled with Trump's selection of Barr, multiple current and former officials told CNN. He's universally seen as solid, reliable conservative, but also someone who can get confirmed. Deputy Attorney General Rod Rosenstein was "elated" by Trump's selection of Barr, according to a source close to him.

One Justice Department lawyer who had been nervous about who the President might pick praised the choice of Barr, saying it is good for morale. "As compared to other potential picks, this is a great choice," said the official. The source called Barr a "very mature choice," and said when Barr emerged as the front runner people at Justice were hoping he'd be the pick "because he's tough he's principled and he's independent."...

As for how quickly Barr could be confirmed, one congressional source notes it's usually at least two months from nomination to confirmation and said if the appropriate paperwork gets to the Hill in time, a hearing could be held in January.

South Carolina Republican Sen. Lindsey Graham, a leading contender to become the next chairman of the Senate Judiciary Committee, praised the President's selection of Barr, saying he "will provide new and much-needed leadership for the Department of Justice."...

Democratic congressional leaders criticized the President's choice. Nancy Pelosi, who is running to be the next speaker of the House, called Barr's proposed nomination "deeply concerning," adding that he "has spent the past two years auditioning for this job by stoking partisan attacks on our nation's law enforcement community, and encouraging the President to use the Justice Department as a political weapon to pursue his rivals and undermine investigations into Trump and his family's scandals."

Senate Minority Leader Chuck Schumer said Barr "will have a steep hill to climb in order to be confirmed by the Senate." Schumer demanded that Barr commit to allowing the Mueller investigation "proceed unimpeded" and that the special counsel's final report be available to Congress and the public after the investigation is completed.

As highlighted in this prior post, Barr's past history on issues of incarceration are not encouraging for advocates of federal criminal justice reform.  But lots of folks who adopted "tough-and-tougher" approaches to crime and punishment a few decades ago have become significant modern voices for all sorts of reforms.  So, I am hopeful that the coming weeks will bring thoughtful inquiries and questions concerning how would-be AG Barr would approach federal criminal justice reforms or state marijuana reforms circa 2019.

December 7, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

"George H.W. Bush’s biggest failure? The war on drugs."

The title of this post is the headline of this Washington Post commentary authored by historian Matthew Pembleton.  Here are excerpts:

And Bush’s complicated legacy does include much good, from his handling of the end of the Cold War to his support for climate science and the Americans With Disabilities Act. But it also includes some bad — specifically, a profound escalation in the War on Drugs. Ronald Reagan may have reoriented public attitudes about drugs when he pronounced in 1982, “Drugs are bad, and we’re going after them . . . And we’re going to win the war on drugs.” But, it was Bush — and later, Bill Clinton — who put real resources into the effort.

When Bush took office, the federal drug control budget was around $5 billion. When he left office in 1993, it was over $12 billion. This was the sharpest escalation in the history of the drug war and it locked the country into a strategy of punishment, deterrence and intolerance. Based on instinct rather than evidence, Bush’s approach did little to alleviate the public health crisis of addiction or halt the flow of drugs to American shores. And we remain trapped within this largely punitive approach today. So while we remember Bush as a “gentle soul,” we should also remember his role in fomenting a drug war that harmed millions of American citizens, particularly in communities of color.

In a tale retold quite a bit over the last few days, one of those citizens was an 18-year-old D.C. resident named Keith Jackson, who was arrested as part of a White House publicity stunt. In September 1989, Bush astonished the American public by brandishing a bag of crack cocaine during a nationally televised address. The drug, a seemingly bemused president remarked, “looked like candy, but it’s turning our cities into battle zones, and it’s murdering our children.”

Rather than address the underlying poverty, despair or thrill-seeking that drives destructive drug use, Bush sought to wipe out the drug menace by punishing everyone involved to the fullest extent of the law and doubling down on policing. The solution, Bush said, was “more prisons, more jails, more courts, more prosecutors,” and a $1.5 billion increase in federal police spending, the greatest single increase in the history of drug enforcement.

Jackson, meanwhile, was a hapless pawn in Bush’s theatrics. When the DEA learned that Bush’s people wanted to use crack seized near the White House as a prop for the speech, they lured the local high school student to Lafayette Square, even giving him directions to get him there. An obvious setup, the case was subsequently thrown out by two juries, but Jackson was eventually sentenced to a mandatory 10 years for selling to an undercover agent in the months leading up to his fateful September arrest.

Bush was widely mocked for the incident but remained unrepentant and paid little price. That’s because the fundamental strategy of escalating the War on Drugs enjoyed widespread bipartisan support, including significant buy-in from the black political class.... The instinct to punish drug users, particularly the poor, runs deep in American political thought, and the consensus supporting these tough-on-crime attitudes continued to harden as Bush championed the growing War on Drugs. On the first anniversary of Bush’s speech, Los Angeles police chief Daryl Gates told the Senate that casual drug users “ought to be taken out and shot.” This wholly punitive approach reached its apotheosis with the 1994 Clinton crime bill and its notorious “three-strikes” provision.

December 7, 2018 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

December 6, 2018

Tennessee completes execution by electric chair

As reported in this local piece, "David Earl Miller was pronounced dead at 7:25 p.m. CST on Thursday after Tennessee prison officials electrocuted him with the electric chair. He was 61." Here is more:

He is the third person executed this year and was the longest-serving inmate on Tennessee's death row. Miller was sentenced to death for the May 1981 murder of 23-year-old Lee Standifer of Knoxville, who was mentally disabled.

Miller brought her to a pastor's home where he was staying and struck her across the face with a fire poker. He hit her with enough force to fracture her skull, burst one of her eye sockets and leave imprints on the bone. He stabbed her over and over — in the neck, in the chest, in the stomach and in the mouth.

Both the U.S. Supreme Court and Gov. Bill Haslam on Thursday declined to intervene and stop the scheduled execution....

With no emotion in his voice, Miller said his last words but at first could not be understood. The warden asked to him to repeat himself. With "Beats being on death row," the execution began.

An expressionless Miller stared ahead as he was held down by buckles and straps. His cream colored pants were rolled up and electrodes were fastened to his feet. His fingernails and toenails were untrimmed. Cuts were seen on his legs.

Prison staff placed a large wet sponge soaked in saline solution and a metal helmet on his shaved head. Solution dripped down his face and chest. One of the prison staff wiped Miller's face with a towel.

A black shroud was placed over his head. The warden gave the signal to proceed. At 7:16, the first jolt of 1,750 volts of electricity was sent through Miller's body. Witnesses could see him stiffen and his upper body raise up on the chair.

It was quiet. He made no sound but his hands were in fists and his pinkies stuck out over the arm rest of the seat. After he lowered on the chair, he wasn't seen moving again. A second jolt was administered for 15 seconds.

The doctor overseeing the death checked on Miller's vitals. He was dead. The curtain came down. "Miller cleared" came over the speakers.

The execution occurred similarly to Edmund Zagorski's electrocution a month prior. Down to the clenched fists, strained pinkies and no signs of breathing after the first jolt of electricity.

December 6, 2018 in Death Penalty Reforms | Permalink | Comments (3)

Yet one more round-up of news and notes as debate over the FIRST STEP Act rages on

I sincerely wish Senate Leader Mitch McConnell would schedule a vote on the FIRST STEP Act so that I would not have to keep blogging round-ups of stories and commentary surrounding the prospects of the FIRST STEP Act. But since I have seen lots of notable developments and discussion even since I did this post this morning, here goes:

UPDATE: Saving the worst for last, here are two more recent pieces suggesting the odds of enactment are growing ever bleaker:

I fear it is getting dangerously close to dust off the old Don Meredith saw, "Turn out the lights, the party's over...."

December 6, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Who Sentences | Permalink | Comments (0)

Tennessee Supreme Court rule in high-profile case that juve life sentence allows for possible release after 51 years

As reported in this local article, "Tennessee Supreme Court said Thursday that Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16, could be eligible for release after she serves 51 years in prison." Here is more about a notable ruling in a high-profile case:

Brown, now 30, has been locked up since 2004, when she was convicted of shooting 43-year-old Nashville real estate agent Johnny Allen. Her legal team launched a challenge to her life sentence in the federal court system, pointing to a 2012 ruling from the U.S. Supreme Court saying that giving juveniles life sentences without parole was cruel and unusual in most cases.

The Sixth Circuit Court of Appeals, which is considering Brown’s case, said Tennessee sentencing laws are unclear. Some sections suggested Brown's conviction should lead to life without parole while others suggested she should eventually be released.

During a hearing this summer, Sixth Circuit judges suggested that if Brown would never be eligible for release under state law, her sentence could be overturned. The appeals court asked Tennessee's high court to weigh in before it made a final decision.

The Tennessee Supreme Court’s unanimous answer that Brown would eventually be eligible for release sometime after her 69th birthday could complicate her legal team’s argument.

In its eight-page decision released Thursday, the state Supreme Court determined that a defendant sentenced to life in prison for a first-degree murder committed on or after July 1, 1995, will become eligible after serving a minimum of 51 years in prison. The rule also applies to 14 other offenses including rape, kidnapping and aggravated child abuse. The opinion will be handed over to the federal appeals court for review.

Brown also is asking Gov. Bill Haslam for clemency. The state parole board, which was split in its recommendations, sent the case file to the governor's office in July....

At 16, Brown climbed into a pickup truck on Murfreesboro Pike with Allen, a stranger, drove to his home, got into his bed — then shot him in the back of the head with a .40-caliber handgun as he lay naked beside her. Brown's advocates say she was forced into prostitution in fear of her life and wronged by the legal system. Prosecutors say Brown killed the man to rob him. Following her trial in 2006, Brown was convicted of Allen's murder.

Pop stars such as Rihanna and Kim Kardashian West have taken to social media encouraging Brown's freedom.

The full ruling from the Tennessee Supreme Court is available at this link.  Given the SIxth Circuit's existing jurisprudence applying Miller, it now seems quite unlikely Brown will succeed with an Eighth Amendment challenge to her sentence.

December 6, 2018 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Talk of William Barr for Attorney General (and his "Case for More Incarceration")

73EAIRHZP4I6RBSCZFYYUJLMXUThis new Washington Post article reports that "Former attorney general William P. Barr is President Trump’s leading candidate to be nominated to lead the Justice Department."  Here is more: 

Barr, 68, a well-respected Republican lawyer who served as attorney general from 1991 to 1993 under President George H.W. Bush, has emerged as a favorite candidate of a number of Trump administration officials, including senior lawyers in the White House Counsel’s Office, these people said.  Two people familiar with the discussions said the president has told advisers in recent days that he plans to nominate Barr.

One person familiar with the discussions cautioned that while Barr is the leading candidate, the decision is not final and the president could decide to pick someone else.  Another person familiar with the discussions said Barr is “a really serious contender and possibly the front-runner” for the job but stressed it was impossible to predict Trump’s pick definitively until it was announced publicly.

That person said those advising the president viewed Barr as someone who knows the department well and is a good manager. Barr, this person said, also had a bluntness that is likely to resonate with the president. “He’s a serious guy,” the person said. “The president is very, very focused on [a candidate] looking the part and having credentials consistent with the part.”

Barr declined to comment.  Those familiar with the discussions said Barr, having already been attorney general, doesn’t feel a particular ambition for the position, but does feel a sense of duty to take it if offered....

Even if Barr were announced as the president’s choice this week, it could take months for a confirmation vote, given the congressional schedule.  In the meantime, acting attorney general Matthew G. Whitaker would still serve as head of the Justice Department...

Administration officials expect Barr’s nomination would be received positively by Republicans who respect his experience and Democrats who would likely view him as an old-school GOP lawyer with no particular personal loyalty to the president....

After leaving the Justice Department, Barr served in a variety of high-level corporate positions, including as general counsel and executive vice president of Verizon Communications.  He is currently a lawyer at Kirkland & Ellis and does work advising corporations on government enforcement and regulatory actions.

Any confirmation hearing for a new attorney general will likely be dominated by questions about how the nominee would handle political pressure from the White House, and oversee the ongoing Russia probe into whether any Trump associates conspired with Russian officials to interfere in the last presidential election.

Barr shares at least one of the president’s views on the probe being conducted by special counsel Robert S. Mueller III.  In 2017, when asked by The Washington Post about political donations made by lawyers on the special counsel’s team, Barr said “prosecutors who make political contributions are identifying fairly strongly with a political party” and added: “I would have liked to see [Mueller] have more balance on this group.”

Barr also wrote last year that the administration’s decision to fire James B. Comey as FBI director was “quite understandable” because, in his view, Comey had usurped the power of the attorney general when he publicly announced his recommendation not to charge former secretary of state Hillary Clinton during the investigation of her private email server.

Barr’s daughter, Mary Daly, is a senior Justice Department official overseeing the agency’s efforts against opioid abuse and addiction.

Of course, I would be even more interested to hear about Barr's views on the FIRST STEP Act than about his views on the Special Counsel. A number of folks I follow on Twitter have been quick to note this notable document coming from the Justice Department in 1992 titled "The Case for More Incarceration." Then-AG Barr said this in a brief note at the start of that document:

[T]here is no better way to reduce crime than to identify, target, and incapacitate those hardened criminals who commit staggering numbers of violent crimes whenever they are on the streets.  Of course, we cannot incapacitate these criminals unless we build sufficient prison and jail space to house them.

Revolving-door justice resulting from inadequate prison and jail space breeds disrespect for the law and places our citizens at risk, unnecessarily, of becoming victims of violent crime.

Notably, as this BJS document highlights, at the end of 1992, the federal prison population was "only" just over 80,000 and the national prison population was just over 883,000.  This subsequent BJS document two dozen years later details that by year end 2016, the the federal prison population clocked in at over 196,000 and the national prison population was over 1,526,000.  I am not at all keen to see more early 1990s era thinking about imprisonment at the Justice Department, but I certainly would like to see a return to early 1990s incarceration levels.

December 6, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Latest seemingly encouraging news on debate over FIRST STEP Act

As lots and lots of folks keep discussing and debating the FIRST STEP Act in various fora, this new Washington Examiner article brings something close to new news about the prospects for the legislation.  The lengthy piece is headlined "Influential First Step Act opponent backs some key provisions, offering hope to supporters," and here are excerpts:

A leading opponent of President Trump's push for criminal justice reform has admitted that he supports key planks of the legislation, giving reformers hope it can pass by the end of the year.

Larry Leiser, president of the National Association of Assistant U.S. Attorneys, told the Washington Examiner he supports in principle three of four major sentencing reforms included in the Trump-backed First Step Act.

Provisions to reduce prison sentences were added last month to satisfy senators pushing for deeper reform after less-controversial prison reform and societal reentry measures passed the House of Representatives in May. Leiser opposes the underlying bill, but said there's merit to the additions.

"This is significant because Larry has been among the loudest and most persistent critics of criminal justice reform and the First Step Act," said Koch Industries general counsel Mark Holden, a supporter of the legislation. "Having him on board with these reforms should help ease any concerns some senators may have about making our sentencing laws more proportional and just."

The First Step Act faces a tight deadline before Democrats retake the House of Representatives in January. Reform advocates fear that a divided Congress will lead to an impasse that results in no reform. Republicans are split on the bill, and Senate Majority Leader Mitch McConnell, R-Ky., has not committed to a vote. Bill supporter Sen. Lindsey Graham, R-S.C., said last month that it would get 80 votes in the Senate, but that the push would likely die when Democrats retake the House and advocate for even farther-reaching changes.

As time dwindles, Holden shared with the Washington Examiner details about a private conversation he had with Leiser, a leader of the opposition, alongside Sen. Tom Cotton, R-Ark. Holden said that nearly a year ago, Leiser said he supported three of four major sentencing changes ultimately added to the bill. In a phone call Wednesday, Leiser confirmed the account, but said that he opposes the overall package, mainly due to concerns about process and provisions that passed the House.

"What Mark Holden is trying to do is pick off the things we agree on and say we support the overall bill, [but] there are parts of the bill that we think are adverse to public safety,” Leiser said. Leiser said he supports repeal of a three-strikes life sentence for drug crimes and an expanded sentencing “safety valve” to allow judges to deviate from harsh drug penalties, though he believes the Senate bill sets the bar too low.

Leiser said he opposes a fourth major sentencing addition to the First Step Act that would retroactively reduce sentences for crack cocaine convicts punished under a since-changed law. Many such sentences, however, already were cut by former President Barack Obama.

Although he supports some of the reforms, Leiser opposes seemingly less-contentious provisions in the bill that passed the House, notably allowing inmates who participate in anti-recidivism programs to transfer early to supervised release, such as living in a halfway house. He said there's no evidence programs reduce recidivism at the federal level and that he suspects reformers are downplaying the bill's potential effects.

December 6, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

December 5, 2018

Previewing SCOTUS (re)consideration of "separate sovereigns" Double Jeopardy exception in Gamble v. US

After delaying a day for honoring a deceased former Prez, on Thursday morning, the Supreme Court will hear oral argument in Gamble v. United States to “separate sovereigns” doctrine providing that different sovereigns can prosecute for the same conduct without violating the Constitution's double jeopardy prohibition. Here are links to some folks discussing this case:

The Atlantic: "There’s an Exception to the Double-Jeopardy Rule: The Supreme Court will hear a challenge to the “separate sovereigns” doctrine in Gamble v. United States."

The Economist: "The Supreme Court considers nixing a “double jeopardy” loophole"

SCOTUSblog: "Argument preview: Justices to reconsider potentially far reaching double-jeopardy exception"

The Volokh Conspiracy: "Dual Sovereign Doctrine Under Attack in the Supreme Court: Strong originalist arguments exist for overruling the dual sovereign doctrine in a case being argued before the Supreme Court today."

December 5, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Timely reminder that now would be the perfect time for Prez Trump to make good on his clemency talk

The Washington Examiner has this notable recent article headlined "The criminal justice reform Trump can achieve without Congress." Here are excerpts:

President Trump unveiled one of his top legislative priorities before Democrats take over the House of Representatives: passage of the First Step Act, which would reduce some prison sentences. Though he still must win a tug-of-war within the Republican Party to get that bill through, he has a Plan B — and he doesn't need Congress for it.

That would be the creation of a White House clemency commission to supplement or replace the Justice Department’s opaque Office of the Pardon Attorney, which critics say is inherently biased in favor of prosecutors.

A new clemency commission can be created without Congress. The idea has support from both left-wing and conservative advocates, who note Trump’s repeated musing about the unfairness of the criminal justice system, including a remark in October that “a lot of people” are in prison for “no reason” and that he was “actively looking” to address that.

Trump has nearly unchecked power to pardon or release federal inmates — an authority he’s already used in unconventional ways, breaking with stingy recent predecessors to give nine early-term pardons or commutations, including the first pardons to currently incarcerated inmates since the 1800s.

“The reason you haven’t seen anything done yet is that there are only 24 hours in the day, and this requires some thought,” said Heritage Foundation scholar Paul Larkin, who advocates a clemency review process headed by the vice president.

Larkin attended a September meeting at the White House hosted by Jared Kushner and Ivanka Trump. Kim Kardashian West joined a dozen reformers around a Roosevelt Room table, where guests discussed commission ideas.

U.S. Sentencing Commission member and New York University law professor Rachel Barkow, who also attended the White House meeting, offered a similar assessment. “My guess is institutional resources might be focused on the First Step Act, so clemency reform could be on hold,” she said....

Mark Osler, a University of St. Thomas law professor also involved in talks about a commission, doesn't expect the clemency board to be used as a Plan B but rather as a second step: “I suspect it will get more attention once the First Step Act is dealt with,” though he declined to say if he’s been in touch with the White House. “It’s important to reform the clemency process, and I think the project will come to the front of the agenda when President Trump wants to or does grant more clemencies. The September meeting was a great start,” he said....

The pending First Start Act would, among other reforms, expand good-time credit, allow judges greater sentencing flexibility, and retroactively shorten some crack cocaine sentences. But it wouldn’t reduce many already imposed terms.... Amid uncertainty over the bill’s fate, some advocates have recommended greater unilateral action to a potentially jilted Trump.

“Now is the perfect opportunity for President Trump to show Senate Majority Leader Mitch McConnell who's the boss," CAN-DO Foundation founder Amy Povah said recently. "He can commute the sentences of hundreds, if not thousands of prisoners who would qualify for an immediate release if First Step passes with one stroke of the pen."

A few of many recent related posts: 

December 5, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Texas completes execution for escapee involved in killing during crime spree

As reported in this local article, headlined "'Texas 7' escapee Joseph Garcia executed in Huntsville," the Lone Star State completed yet another execution last night.  Here are the basics:

Nearly two decades after the brazen prison break-out and cross-state crime spree that landed him on America's Most Wanted and eventually on death row, Texas 7 prisoner Joseph Garcia was executed Tuesday night in Huntsville....  He was pronounced dead at 6:43 p.m., 13 minutes after the lethal dose began.

In recent weeks, the 47-year-old convicted in the Christmas Eve killing of a North Texas police officer launched a slew of appeals, lawsuits, pleas for reprieve and requests for clemency. His last-minute legal moves raised questions about his initial conviction, the controversial "law of parties" and the source of the state's lethal injection supplies.

But on Friday, the parole board rebuffed the condemned man's request for clemency, and lower courts turned down appeal after appeal. By Tuesday morning, he still had a number of claims in front of appeals courts and the U.S. Supreme Court, and a long-shot bid for reprieve sitting on the governor's desk.  "I am on death row because of the actions and intent of others and because I am one of the Texas Seven, case closed," he wrote the Chronicle weeks before his scheduled execution.  "Is it right that I should be murdered for something that I did not do?"

To some friends and family of the slain policeman — Officer Aubrey Hawkins – the answer is clear.  "Whatever participation he had, he went along with it," said Seagoville police Sgt. Karl Bailey, a long-time friend of the Hawkins family. "The whole thing was sparked by the escape from prison, the burglaries - it was a crime spree."

Though Garcia offered no apology in his final statement, he sent out a message of remorse through his attorneys. "I want to offer my heartfelt apology to the family of Officer Hawkins, and the workers at Oshman's in Dallas," he said. "None of this was supposed to happen. I wish it didn't."

At the time of the breakout in December 2000, the Bexar County native was locked up in a prison south of San Antonio, serving a 50-year sentence stemming from a boozy fight that ended with one man dead. Garcia was convicted of murder, but he has long maintained that it was the other man — Miguel Luna — who attacked him, and that the fatal stabbing was only in self-defense.

Behind bars, he made friends with a charismatic thief named George Rivas.  First, they bonded over a "poor man's spread" of prisoner-made food. Then, they plotted an escape. Inspired by a book, their plan took months to prepare.  They picked a crew, spread rumors among the guards, surveyed the grounds and gathered supplies.  On Dec. 13, they made good on their plot....  

After pulling off a pair of robberies to load up with cash and supplies in the Bayou City, the fleeing prisoners left and headed north.  In the Dallas suburb of Irving, the seven escapees staked out an Oshman's sporting goods store....  They took hostages and stole guns, money and supplies.  But before they left, a lone police officer showed up.

Garcia says he was still inside the building when he heard the shots, but some of the other men offered different accounts.  In all, five men fired shots. Rivas admitted he was one of them – but the state never proved that Garcia was. He still maintains that he was inside the building when the shooting started. 

Afterward, they fled to Colorado, driving straight into a blizzard. They stopped at motels along the way, then holed up in a trailer park near Colorado Springs.  For a month, they posed as Christian missionaries before they were finally captured.  One of the men — Larry Harper — killed himself rather than be taken back to prison.

The other six were sent to death row, and three have since been executed.  To the former prosecutor who handled all six of the trials, a fourth execution date comes as a welcome relief.  "It's been almost 18 years," attorney Toby Shook told the Chronicle earlier this year. "It's satisfying that the actual sentence will actually be carried out."

In his final weeks, Garcia has launched an array of appeals. In one claim, he argued that his original Bexar County killing was actually self-defense and not murder. If so, he said, it shouldn't have been used as evidence of future dangerousness — something the state is required to show to secure a death sentence.  Among Garcia's other pending legal actions is a challenge to the state's lethal injection procedures in light of recent reporting about the alleged source of the drugs. In recent days, he'd also tried lobbing a lawsuit at the parole board, arguing the seven-member panel had too many former law enforcement members to be representative of the general public....

He was the 12th Texas prisoner executed this year. Another death date is scheduled for next week.

December 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Sentencing Project launches campaign to "End Life Imprisonment" with new book and other resources

Meaning_of_life_finalThe folks at The Sentencing Project this week officially kicked off what they are calling here a "Campaign to End Life Imprisonment." The website for the campaign has a facts, figures and stories about life imprisonment, and this four-page fact sheet has lots of data and graphs and includes these particulars:

While people of color are over-represented in prisons and jails; this disparity is even more evident among those sentenced to life imprisonment, where one of every five African American prisoners is serving a life sentence.

Over 6,000 women are serving life or virtual life sentences. The number of women serving life sentences has risen at a faster rate than for men in recent years. Between 2008 and 2016, women lifers increased by 20%, compared to a 15% increase for men.

Juveniles serve life sentences at alarming rates as well. In fact, the U.S. is unique in the world in its use of life imprisonment without parole for crimes committed by teenagers.

In addition to the more than 2,000 people serving life without the possibility of parole, there are more than 7,000 juveniles serving life with parole and another 2,000 serving “virtual life” prison terms of 50 years or more.

In conjunction with this launch, the New Press has published this new book authored by Marc Mauer and Ashley Nellis, with contributions by Kerry Myers, titled "The Meaning of Life: The Case for Abolishing Life Sentences." Here is how the publisher's website describes the book:

Most Western democracies have few or no people serving life sentences, yet here in the United States more than 200,000 people are sentenced to such prison terms.

Marc Mauer and Ashley Nellis of The Sentencing Project argue that there is no practical or moral justification for a sentence longer than twenty years.  Harsher sentences have been shown to have little effect on crime rates, since people “age out” of crime — meaning that we’re spending a fortune on geriatric care for older prisoners who pose little threat to public safety.  Extreme punishment for serious crime also has an inflationary effect on sentences across the spectrum, helping to account for severe mandatory minimums and other harsh punishments.

A thoughtful and stirring call to action, The Meaning of Life also features moving profiles of a half dozen people affected by life sentences, written by former “lifer” and award-winning writer Kerry Myers.  The book will tie in to a campaign spearheaded by The Sentencing Project and offers a much-needed road map to a more humane criminal justice system.

December 5, 2018 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

December 4, 2018

Special Counsel says non-incarceration sentence for Michael Flynn is "is appropriate and warranted"

As reported in this Politico article, headlined "Mueller: Flynn gave ‘substantial assistance’ to probe, recommends little to no prison," the Special Counsel tonight submitted a memorandum in aid of sentencing defendant Michael Flynn. Here are the basics:

Michael Flynn, President Donald Trump’s former national security adviser, provided “substantial assistance” to the ongoing investigation of Russian interference in the 2016 election and should be sentenced to little if any prison time for making two “series of false statements” to the FBI, special counsel Robert Mueller's team recommended in a court filing on Tuesday.

Flynn participated in 19 interviews with the special counsel and other Justice Department prosecutors and aided multiple investigations, Mueller’s prosecutors said in a heavily redacted filing that offered limited insight into the information Flynn provided.

“The defendant deserves credit for accepting responsibility in a timely fashion and substantially assisting the government,” Mueller’s team wrote in a seven-page memo. MO “The defendant provided firsthand information about the content and context of interactions between the transition team and the Russian government,” prosecutors add later. “Additionally, the defendant’s decision to plead guilty and cooperate likely affected the decisions of related firsthand witnesses to be forthcoming with the [special counsel] and cooperate,” they write.

U.S. District Court Judge Emmet Sullivan, a Bill Clinton appointee, is scheduled to sentence Flynn on Dec. 18. Before that, Flynn’s lawyers have their own Dec. 11 deadline to file a memo describing his cooperation and outlining whatever other factors they think the judge should consider in handing down the sentence.

The full filing is available at this link, and it begins this way:

The United States of America, by and through Special Counsel Robert S. Mueller, III, respectfully submits this memorandum in aid of sentencing defendant Michael T. Flynn.  On December 1, 2017, the defendant pleaded guilty to one count of making materially false statements to the Federal Bureau of Investigation (“FBI”), in violation of 18 U.S.C. § 1001(a).  As calculated by the United States Probation Office, the defendant’s applicable Total Offense Level is 4, Criminal History Category I, resulting in an advisory guideline range of 0-6 months.  That offense level and guideline range, however, do not account for a downward departure pursuant to Section 5K1.1 of the United States Sentencing Guidelines reflecting the defendant’s substantial assistance to the government, which the government has moved for contemporaneously.  Given the defendant’s substantial assistance and other considerations set forth below, a sentence at the low end of the guideline range — including a sentence that does not impose a term of incarceration — is appropriate and warranted.

Prior related post (from Dec. 1, 2017):

December 4, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, White-collar sentencing | Permalink | Comments (0)

"Tipping Point: A Majority Of States Abandon Life-Without-Parole Sentences For Children"

The title of this post is the title of this new document from the The Campaign for the Fair Sentencing of Youth. Here is its executive summary:

A majority of states now ban life without parole for children or have no one serving the sentence.  A combination of judicial decisions and state legislative reforms have reduced the number of individuals serving by 60 percent in just three years, and that number continues to decline.  Today, approximately 1,100 people are serving life without parole for crimes committed as children.

For the approximately 1,700 individuals whose life-without-parole sentences have been altered through legislative reform or judicial resentencing to date, the median sentence nationwide is 25 years before parole or release eligibility.  Nearly 400 people previously sentenced to life without parole for crimes committed as children have been released from prison to date.  Despite national momentum rejecting life-without-parole sentences for children, racial disparities continue to worsen; of new cases tried since 2012, approximately 72 percent of children sentenced to life without parole have been Black — as compared to approximately 61 percent before 2012.

December 4, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

"What the Feds Can Do to Rein in Local Mercenary Criminal Justice"

The title of this post is the title of this new article authored by Wayne Logan now available via SSRN.  Here is its abstract:

Although physical and psychological harms caused by local police are the most common bases for federal intervention and reform efforts, this Article focuses on the financial harms local police can cause.  As the U.S. Department of Justice’s Ferguson Report and numerous other studies highlight, local police departments are front-line players in a broader governmental strategy to generate revenue from individuals ensnared in the criminal justice system.  The strategy is problematic for a variety of reasons, including the skewing effect it has on enforcement priorities and the major negative personal impact it has on those targeted (very often, people of color and economically disadvantaged individuals).  Aggravating matters, the mercenary practices of local criminal justice system actors are complemented by private business entities that secure significant profits from the business local governments send their way.  This Article surveys the adverse consequences of local mercenary criminal justice for governance, residents and their communities; the many, quite distinct obstacles that federal reform efforts face; and the several possible avenues for reform and their likelihood of success.

December 4, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

December 3, 2018

Renewed talk in Ohio of exempting those with "serious mental illness" from the death penalty

As reported in this local article, headlined "Should those with serious mental illnesses be exempt from the death penalty in Ohio?," there is renewed discussion in the Buckeye State of a task force proposal to carve out an exception to the death penalty for those with "serious mental illness." Here are the details:

If Ohio is going to execute convicted murderers, it shouldn't execute individuals with serious mental illnesses, a bipartisan group of lawmakers says.

That is the aim of House Bill 81 [available here], which would prohibit capital punishment for anyone with a clinical diagnosis of schizophrenia, schizoaffective disorder, bipolar disorder, major depressive disorder or delusional disorder.  The proposal has stalled for years in the Ohio House but could advance this week for the first time after gaining support from a handful of Republicans....

If a judge or jury finds the person was impaired at the time of the murder, the defendant could not be sentenced to death.  They could still face life in prison.  The idea came from a 2014 task force of judges, prosecutors, defense attorneys and academics who recommended several changes to Ohio's death penalty.  It builds on U.S. Supreme Court decisions.

The bill, sponsored by Republican Rep. Bill Seitz of Green Township and Democratic Rep. Nickie J. Antonio of Lakewood, has bipartisan support. Groups such as the National Alliance on Mental Illness of Ohio and Ohio Psychiatric Physicians Association agree that certain people shouldn't face the death penalty. “If we are going to have a death penalty, it should be reserved only for those who are the worst of the worst, not for those who are suffering from impaired judgment due to a severe mental illness," said Richard Cline, chief counsel with Ohio Public Defender's death penalty department, during a Nov. 27 hearing.

Convicted killers could be exempt from the death penalty even if they are found competent to stand trial and don't meet the standards for being found not guilty by reason of insanity.

Prosecutors and some GOP lawmakers aren't convinced that the changes are needed. Under the bill, those already on death row could ask a judge to take another look at their mental state at the time of the offense and possibly have their death sentence vacated.

Some worry that every inmate on death row would claim some mental illness to escape execution. “It would be a substantial miscarriage of justice for someone convicted and sentenced to death years ago to be able to now claim that they had a serious mental illness at the time and should, therefore, be excluded from the death penalty,” said Lou Tobin, executive director of the Ohio Prosecuting Attorneys Association.

Opposition from prosecutors has stalled the proposal once before. Still, the bill could get a vote in committee Tuesday. From there, the proposed law would need approval from the Ohio House and Ohio Senate before heading to Gov. John Kasich. The Legislature has only a handful of sessions remaining.

December 3, 2018 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (1)

"21 Principles for the 21st Century Prosecutor"

The title of this post is the title of this notable new report from the folks at Fair and Just Prosecution, Brennan Center for Justice, Emily Bazelon, and The Justice Collaborative.  Here is its introduction:

Prosecutors are charged with addressing violations of criminal law and promoting public safety. In carrying out these responsibilities, they must also bear in mind their role as ministers of justice and consider the rights, needs, and interests of all members of their community — including victims and individuals who are charged with criminal conduct.

Prosecutors wield enormous influence at every stage of the criminal process, from initial charging decisions to the sentences sought and imposed Along the way, they often control decisions about plea bargains and whether mandatory minimum sentences will be triggered, and thus greatly impact whether (and for how long) defendants remain in jail and prison.

Over the last four decades, the total incarcerated population in the United States has quintupled, to 2.2 million, or nearly 1 out of 100 adults. About 10.6 million people cycle in and out of jail each year.  While the causes are complex, it’s clear that punitive policies have contributed to the incarceration build-up.  These policies have included the war on drugs, over-policing of poor and minority communities, and harsh directives from legislators, like mandatory-minimum sentencing laws.  Putting so many people behind bars imposes great costs and burdens on them, their families, and our country.

In recent years, the role of prosecutors has received increasing attention.  Given their powers, prosecutors are well positioned to make changes that can roll back over-incarceration.  They can use their discretion to improve the overall fairness and efficacy of the criminal justice system and champion priorities that improve the safety and well-being of our communities.

Fairness is paramount It helps achieve the mission of public safety by building trust, which in turn aids police and prosecutors in solving crime The 21 principles below offer practical steps prosecutors can take to transform their offices, and collectively, their profession.

The principles include examples of innovative endeavors by prosecutors around the nation, not necessarily as endorsements, but as illustrations of new approaches.  We recognize that prosecution is local, and some of these recommendations and examples won’t be suited to all jurisdictions.  We nonetheless hope that these ideas generate conversation, creative thinking, and change.

The central aspiration of these principles is at once simple and profound: that prosecutors will adopt a new and bold 21st Century vision for meting out mercy and justice.

December 3, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

The faulty and foul thinking continuing to thwart a vote on the FIRST STEP Act

A new week bring a new round of stories about the status of the debate over the FIRST STEP Act.  For example, this morning's Politico piece, headlined "Trump lays off McConnell as criminal justice reform stalls: Advocates fear the president isn’t fully invested in the fight for the bill," is focused on whether Prez Trump should be trying to do more to get the legislation through Congress.  Given that Prez Trump does not work in Congress, I would rather these days to see stories about whether he will ever make good on all his prior clemency talk, but that it a topic for a coming post.

Of course, I understand why Politico and others are inclined to focus on Prez Trump 's role in this process, but I have long been wondering why nobody is talking about whether Senate Judiciary Chair Charles Grassley would be willing to stall/block any and all votes on judicial nominees — not only now in lame duck, but also in the next Congress — until a Senate floor vote is scheduled on criminal justice reform bills.  As this AP story notes, outgoing GOP Senator Jeff Flake is using his judiciary power to block votes on judges to seek a floor vote on a bill to provide protections for the special counsel.  As a Beltway outsider, I do not see why Senator Grassley — or other big GOP reform supporters on the Judiciary Committee like Mike Lee — are not at least talking up a similar move to try to get Senator McConnell to schedule a vote on the FIRST STEP Act.

Meanwhile, this CNN article discussing the discussion of the FIRST STEP Act among GOP Senators provides this glimpse into the faulty and foul thinking that creates challenges for any and all criminal justice reform efforts:

Sens. John Cornyn of Texas and Dick Durbin of Illinois, the number-two ranking Republican and Democrat respectively, discussed in the Senate gym Thursday morning potential compromises that could get wary Republicans on board. "This is a once in a political lifetime opportunity," Durbin said.

In a separate interview, Cornyn said that addressing some of the concerns of one law enforcement group — the National Sheriffs' Association — would "guarantee" the support of some Republicans. Cornyn, the GOP Whip, said his job was to give McConnell "an accurate count of where the votes are," rather than arm-twisting members into voting for it.  He also noted that "our time is limited" in getting it done.

Many Democrats are in favor of the bill — Durbin, the Democratic whip, said his party's "support for this measure is solid." If the Senate can pass it, the House is expected to easily do so too.

This has left the fight to Republican members of the Senate.  Sen. Rand Paul, a Republican from Kentucky, told CNN that there's a generational divide within the party on the issue....  "We had one of the senators in the lunch saying, 'You know how you get no recidivism?  Don't ever let him out of jail.  Zero recidivism!'" added Paul, referring to a closed-door meeting GOP senators held this week.

This contention of "Zero recidivism!" is most obviously faulty because it fails to acknowledge that prisoners can and do commit crimes while in prison, with the most common victims being prison guards and other prisons.  This contention is most obviously foul because it entirely disregards the humanity and social meaning of those persons who become federal prisoners (not to mention all their friends and families).  Fundamental ignorance about prisons and prisoners, along with a easy willingness to dehumanize and disregard the interests of those in our criminal justice system and those who care about those in our criminal justice system, help account for why it can be so very easy for all to many leaders to talk this way when seeking to thwart thoughtful and balanced criminal justice reform efforts.

Of course, though nobody is really serious about making all federal crimes subject to mandatory LWOP terms in the name of recidivism reduction, there is also a telling revelation in this faulty and foul comment imagining permanent imprisonment for everyone.  Opponents of the FIRST STEP Act are fundamentally making the claim that we should fear a bill intended and well-designed to seek to reduce recidivism rates among federal prisoners because the recidivism rates among federal prisoners are currently too high.  

Some of the most recent of many prior related posts:

December 3, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

December 2, 2018

Michael Cohen makes pitch for "time-served and restitution to the IRS" based largely on his continuing cooperation

Michael-Cohen-pleads-guilty-to-8-chargesMichael Cohen is scheduled to be sentenced by US District Judge William Pauley in New York City on December 12 after his guilty plea to charges including campaign finance fraud and lying to Congress.  Late Friday, Cohen's lawyers filed this 30-page sentencing memorandum which makes a substantial plea for leniency.  Here are two good accountings of the filing:

From Lawfare, "There's a Lot Going On in Michael Cohen's Sentencing Memo"

From the New York Times, "Michael Cohen, Ex-Trump Lawyer, Asks U.S. Judge for Leniency"

Here are excerpts from the document's notable preliminary statement (with cites removed):

Beginning before the entry of his plea on August 21, 2018, and continuing thereafter through late November, Michael participated in seven voluntary interview meetings with the Special Counsel’s Office of the Department of Justice (“SCO”). He intends to continue to make himself available to the SCO as and when needed for additional questioning. He also agreed to plead guilty to an additional count, namely, making false statements to Congress, based in part on information that he voluntarily provided to the SCO in meetings governed by a limited-use immunity proffer agreement. The SCO is expected to submit a letter to the Court describing its assessment of Michael’s cooperation, and the Office of the United States Attorney for the Southern District of New York (“Office”) is expected to join with the SCO in presenting Michael’s cooperation to the Court as a mitigating sentencing factor under 18 U.S.C. § 3553(a).  Michael’s decision to cooperate and take full responsibility for his own conduct well reflects his personal resolve, notwithstanding past errors, to re-point his internal compass true north toward a productive, ethical and thoroughly law abiding life.

For what it says about Michael’s fortitude and fundamental character, the significance of his cooperation with the SCO falls outside of the ordinary framework in which courts routinely assess cooperation in criminal cases. It states the obvious to observe that this matter is unique. Michael is cooperating in a setting in which the legitimacy of the SCO’s investigation – and the rationale for its very existence – is regularly questioned publicly and stridently by the President of the United States.... The President routinely denounces the SCO investigation as politically biased and reliant on excessively aggressive prosecutorial tactics....

In the context of this raw, full-bore attack by the most powerful person in the United States, Michael, formerly a confidante and adviser to Mr. Trump, resolved to cooperate, and voluntarily took the first steps toward doing so even before he was charged in this District.  He took these steps, moreover, despite regular public reports referring to the President’s consideration of pardons and pre-pardons in the SCO’s investigation.... And, he acted knowing that the result would be personal attacks on him by the President, a bevy of advisers and public relations specialists, and political supporters of the President, as well as threats to him.  Although it is true that any decision to cooperate in an investigation directly or indirectly touching a sitting President would be weighty and fraught for any former confidante and associate, here, in the circumstances of this case, at this time, in this climate, Michael’s decision to cooperate required and requires singular determination and personal conviction.  He could have fought the government and continued to hold to the party line, positioning himself perhaps for a pardon or clemency, but, instead — for himself, his family, and his country — he took personal responsibility for his own wrongdoing and contributed, and is prepared to continue to contribute, to an investigation that he views as thoroughly legitimate and vital....

For the reasons set forth below, we respectfully request that the Court, based on (1) the cooperation Michael has provided, (2) his commitment to continue to cooperate, and (3) all of the remaining sentencing factors required to be considered under 18 U.S.C. § 3553(a), impose a sentence of time-served and restitution to the IRS.

As reported in this prior post, Cohen's plea agreement does not allow him to seek a "departure" from the stipulated guideline range — which the plea agreement set at 46 to 63 months' imprisonment  — but it does allow that " either party may seek a sentence outside of the Stipulated Guidelines Range based upon the factors to be considered in imposing a sentence pursuant to Title 18, United States Code, Section 3553(a)."  

Prior related posts:

UPDATE: A helpful reader downloaded from Pacer and just sent me the full Cohen sentencing submission with all 30+ attachments for posting, and here it is:

Download Cohen- Defendant%27s Sentencing Memorandum (11-30-18)

December 2, 2018 in Booker in district courts, Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

En banc Fifth Circuit overrules multiple precedents to clean up (and expand) its "crime of violence" jurisprudence

A helpful reader made sure I did not miss a remarkable en banc opinion handed down by the Fifth Circuit on Friday in US v. Reyes-Contreras, No. 16-41218 (5th Cir. Nov. 30, 2018) (available here).  Regular readers may recall that I suggested in this post that it might feel like dropping through Dante's various levels of hell when seeking to sort through intricate precedents to figure out what is and what is not a "violent felony" or a "crime of violence" for federal sentencing purposes.  There is a hellish-landscape quality to the 30+ pages of Reyes-Contreras, but the start and close of the opinion hints at how the en banc Fifth Circuit is doing its level best to escape (with footnotes omitted):

Fredis Reyes-Contreras pleaded guilty of illegal reentry.  Because he had been convicted of voluntary manslaughter in Missouri, the district court applied a sentencing enhancement for a crime of violence (“COV”).  Well represented by the Federal Public Defender, Reyes-Contreras appealed to challenge the enhancement.  Burdened by binding caselaw that required us to declare that killing a person with a baseball bat is not a COV, the panel vacated for resentencing.  The court granted the government’s petition for rehearing en banc, thus vacating the panel opinion.  Finding it necessary to overrule several of our precedents, we now affirm the judgment of conviction and sentence....

It is high time for this court to take a mulligan on COVs.  The well-intentioned experiment that launched fifteen years ago has crashed and burned.  By requiring sentencing courts and this court to ignore the specifics of prior convictions well beyond what the categorical approach and Supreme Court precedent instruct, our jurisprudence has proven unworkable and unwise.  By employing the term “crime of violence,” Congress and the U.S. Sentencing Commission obviously meant to implement a policy of penalizing felons for past crimes that are, by any reasonable reckoning, “violent,” hence the term.

As with many legal standards, decisions are difficult at the margins.  But this case is nowhere near the margin.  Except as otherwise directed by the Supreme Court, sentencing should not turn on “reality-defying distinctions.” United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017), cert. denied, 139 S.Ct. 63 (2018).  The interests of justice and Congress’s commands are not served by the absurd conclusion that intentionally killing with a baseball bat, and intentionally ramming a vehicle into a car containing a child, are not COVs.  A more realistic approach comports with reason and common sense. 

In sum, we hold that MISSOURI REVISED STATUTES § 565.023.1 is divisible. Using the modified categorical approach, Reyes-Contreras was convicted under Subdivision (1), which is generic manslaughter, a COV.  In the alternative, even if Section 565.023.1 were not divisible, we hold that the statute as a whole is a COV because Subdivision (2) satisfies the use-of-force requirement and thus is independently a COV.

In finding “use of force” for purposes of identifying COVs, the distinction between direct and indirect force is abolished.  Likewise for the now-repudiated distinction between causing injury and using direct force. We show that the Missouri assisted-suicide statute satisfies the use-of-force requirement.  And we hold that, even if it did not, there is not the realistic probability of enforcement.

The holdings just announced, true to Supreme Court precedent, are in conflict with numerous panel and en banc decisions of this court. We therefore overrule, in whole or in part, as explained herein, the following [18] decisions and their progeny....  Reyes-Contreras’s conviction of voluntary manslaughter under MISSOURI REVISED STATUTES § 565.023.1 is a crime of violence that calls for a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).  The judgment of conviction and sentence is AFFIRMED.

December 2, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)