Sentencing Law and Policy

Could we really see Trump "run to Biden’s left on criminal justice reform"?

The question in the title of this post is prompted by this notable new Hill commentary authored by Max Burns and headlined "What happened to Biden’s promises on criminal justice reform?". The whole piece is interesting, and here are some excerpts:

Back in his 2020 run for the White House, Joe Biden won over the skittish left in part because of his willingness to take big, bold stances on hot-button issues like criminal justice reform.  From interrupting the so-called “school to prison pipeline” through boosts to mental health funding to ending all incarceration for simple possession of drugs, the former vice president imagined a ground-up reworking of the carceral state....

A lot has changed in four years.  Biden’s old criminal justice pitch has since been scrubbed from his website.  He now faces regular criticism not only from the progressive left but also from experts within the criminal justice system for his often contradictory approach to the issue.  Biden isn’t alone: across the party, one of Democrats’ biggest issues in 2020 is all but invisible this year. What happened?

In researching this column I reached out to two dozen House Democrats, including multiple progressive lawmakers who staked prominent criminal justice reform positions in 2020.  Not a single office responded.  The situation wasn’t much better among the criminal justice reform nonprofits that vaulted to national prominence during 2020’s heated national debate on race, policing and prison reform.  Of the 10 organizations I reached out to, I received responses from only two.

From those willing to speak, the message was clear.  “The only hesitancy we’re seeing is from inside-the-beltway politicians who aren’t in touch with what their voters want,”  Justice Action Network Executive Director Jenna Bottler told me. “If the president wants to rejoin the criminal justice conversation, it’s simple: listen to the voters who are smarter than election-year soundbites.”...

That creates the bizarre circumstances for 2024, where Republican presidential front-runner Donald Trump can run to Biden’s left on criminal justice reform.  The former president’s First Step Act marked its fifth anniversary last month, with the Bureau of Prisons reporting that more than 26,000 incarcerated Americans have been released under First Step provisions.  The First Step Act is even held in high regard by criminal justice leaders who share no other common ground with Trumpism.

“Trump has a strong and overwhelmingly popular track record on these issues. The first candidate that rejects the dated political rhetoric of the 70s and 80s …will be rewarded by voters,” Bottler said....

Critically, Trump’s First Step Act also proved that federal criminal justice reform does work. Republicans who supported the bill now proudly share news stories about how incarcerated people released under the FSA are 37 percent less likely than their peers to reoffend. The success and broad national popularity of the First Step Act should open the door for even bolder action by Biden, including a follow-up bill that expands on what FSA began. Instead, Democrats have ceded that ground to Trump, who will certainly make political hay of Biden’s limited action during the exhausting campaign ahead.

It may seem crazy that Trump could score political points with voters by scolding Biden for failing to release enough incarcerated people. But polls have remained consistent since 2018, even if Democrats haven’t. Supermajorities of Americans still support a host of commonsense prison and criminal justice reforms.

Jenna Ellis latest attorney to plead guilty (and avoid jail time) in Georgia election case

Serious students of the modern criminal justice system know that many, many more criminal charges get resolved through plea deals than through full trials, and the high-profile Georgia election fraud case is now showcasing this reality in recent weeks.  Specifically, after three other recent guilty pleas to reduced charges, this new AP article reports on another plea from another lawyer.  Here are some details:

Attorney and prominent conservative media figure Jenna Ellis pleaded guilty on Tuesday to a reduced charge over efforts to overturn Donald Trump’s 2020 election loss in Georgia, tearfully telling the judge she looks back on that time with “deep remorse.”

Ellis, the fourth defendant in the case to enter into a plea deal with prosecutors, was a vocal part of Trump’s reelection campaign in the last presidential cycle and was charged alongside the Republican former president and 17 others with violating the state’s anti-racketeering law.

Ellis pleaded guilty to a felony count of aiding and abetting false statements and writings.  She had been facing charges of violating Georgia’s Racketeer Influenced and Corrupt Organizations Act and soliciting the violation of oath by a public officer.

She rose to speak after pleading guilty, fighting back tears as she said she would have not have represented Trump after the 2020 election if she knew then what she knows now, claiming that she she relied on lawyers with much more experience than her and failed to verify the things they told her.  “What I did not do but should have done, Your Honor, was to make sure that the facts the other lawyers alleged to be true were in fact true,” the 38-year-old Ellis said.

The guilty plea from Ellis comes just days after two other defendants, fellow attorneys Sidney Powell and Kenneth Chesebro, entered guilty pleas.  That means three high-profile people responsible for pushing baseless legal challenges to Democrat Joe Biden’s 2020 election victory have agreed to accept responsibility for their roles rather than take their chances before a jury.

She was sentenced to five years of probation along with $5,000 in restitution, 100 hours of community service, writing an apology letter to the people of Georgia and testifying truthfully in trials related to this case.

The early pleas and the favorable punishment — probation rather than jail — could foreshadow similar outcomes for additional defendants who may see an admission of guilt and cooperation as their best hope for leniency....

Before her plea, Ellis, who lives in Florida, was defiant, posting in August on X, the social media platform formerly known as Twitter, “The Democrats and the Fulton County DA are criminalizing the practice of law. I am resolved to trust the Lord.” But she has been more critical of Trump since then, saying on conservative radio in September that she wouldn’t vote for him again, citing his “malignant, narcissistic tendency to simply say that he’s never done anything wrong.”...

Powell pleaded guilty to six misdemeanors accusing her of conspiring to intentionally interfere with the performance of election duties.  Powell will serve six years of probation, will be fined $6,000 and has to write an apology letter to Georgia and its residents.

Chesebro pleaded guilty to one felony charge of conspiracy to commit filing false documents just as jury selection was getting underway in his trial.  He was sentenced to five years’ probation and 100 hours of community service and was ordered to pay $5,000 in restitution, write an apology letter to Georgia’s residents and testify truthfully at any related future trial.

A lower-profile defendant in the case, bail bondsman Scott Graham Hall, pleaded guilty last month to five misdemeanor charges.  He was sentenced to five years of probation and agreed to testify in further proceedings.

Because I do not know Georgia law well, I am unsure if it means much that Ellis and Cheseboro pleaded guilty to felonies, while Powell and Hall pleaded guilty to multiple misdemeanors.  For the attorney criminals, one concern has to be whether they might lose their law licenses (though I am unsure where any of these lawyers are barred).

In addition to law licenses, I cannot help but wonder about the full range of collateral consequences — both formal and informal — that these particular convicted individual now face.  As a matter of federal law, I do know that the felony/misdemeanor distinction is quite important with respect to gun rights: under federal criminal statute 18 USC 922(g)(1), felons are forever prohibited from possessing a firearm (or ammunition).  So Ellis and Cheseboro have now lost forever any and all gun rights (except maybe in the Third Circuit given its Second Amendment Range ruling), whereas Powell and Hall can keep their gun under federal law.

Do the Georgia run-off Senate results dramatically shift the criminal justice reform landscape?

With Georgia election results this morning suggesting hat we will soon have a 50-50 Senate that puts Democrats functionally in control of all of Congress, I think the answer to the question in the title of this post has to be yes.  That said, I was reasonably bullish on at least some federal criminal justice reforms in the next Congress even if the GOP held a slim majority in the Senate.  But, as this Axios piece highlights, the results in Georgia may have an immediate impact on the look of Prez-elect Biden's Justice Department:

Between the lines: It'd be tough to go big with a 50-50 Senate, so don't assume a substantial shift.  But Democratic control would be a massive blow to Republican hopes of blowing up anything they truly loathe.

👀 What we're watching: Biden sources tell Axios he now can go more progressive on remaining Cabinet picks, notably attorney general and secretary of Labor.

Sally Yates, the former acting attorney general who was fired by Trump, could now go back on the table to be Biden's attorney general.

Aside from who is in charge at the Justice Department, I think a 50-50 Senate makes it somewhat more likely that DOJ would be somewhat more willing to take somewhat more progressive positions on an array of criminal justice reform issues.  And, of course, lots of appointments that require Senate confirmation, from judges at all levels to nominees to the US Sentencing Commission to all sort of other impactful governmental roles, can perhaps now be a bit more progressive.

Most fundamentally, all the agenda items that have been suggested by various reform groups (including the Biden-Sanders Unity Task Force) would seem just that much more politically viable as a result of the Georgia outcomes.  I have listed here just some of my prior postings on these topics, and I suspect my future posting will necessarily incorporate heightened expectations now that Democrats seem to have even more power thanks to the Georgia run-off results.

Some prior related posts on CJUTF recommendations:

• Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force 
• Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?
• Tomorrow can be today for some Biden-Sanders Unity Task Force criminal justice recommendations 
• Reviewing Criminal Justice Unity Task Force Recommendations: a new series to welcome a new President 
• Reviewing CJUTF Recommendations: will the Biden Administration go all in with progressive prosecutors?
• Reviewing CJUTF Recommendations: how might the Biden Administration seek to abolish the death penalty?
• Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board? 

Some additional prior posts on CJ reform prospects in a Biden Administration:

• Pondering next steps in federal sentencing reform on the second anniversary of the FIRST STEP Act
• Lots of recommendations for criminal justice reform for the incoming Biden Administration 
• Exploring what Prez-elect Biden might (or might not) get done for criminal justice reforms
• "Here's One Thing Republicans and Democrats Agree on: Criminal Justice Reform"
• "What Biden’s Win Means for the Future of Criminal Justice" 

Further reflections on reform after "war on drugs" loses big in 2020 election

Rightly so, folks are still chatting about the meaning and impact of the election results ushering significant drug reforms.  Here are some of many pieces covering this interesting ground:

• From Marketplace, "The war on drugs lost this election. Now what?"

• From Stat, "Decriminalization could help ease the nation’s drug epidemic, but the devil is in the details"

• From WBUR, "Why Voters Are Rejecting The War On Drugs" 

• From The Hill, "50 years after the start of the war on drugs, Americans have a chance to fix the harm it created"

• From NBC News, "2020 election results prove America's war on drugs is finally ending"

• From KATU, "Oregon's drug decriminalization vote gets national attention, praise, scrutiny"

"Drug Policy Implications: Elections 2020"

The title of this post is the title of this panel discussion taking place (on Zoom) next Monday afternoon, November 16, 2020 from 1-2:15 pm EST, sponsored by the Drug Enforcement and Policy Center.  Here is the basic description of the event and the planned speakers:

The 2020 election will have a monumental impact on how the United States addresses a broad range of policy issues, and drug enforcement and policy is no exception.  Numerous states approved medical or full marijuana legalization via ballot initiative, and voters in other states weighted in on drug-related criminal justice ballot initiatives.  At the federal level, marijuana reform has been gaining momentum and federal officials will undoubtedly take cues from the nationwide election results to determine the pace of reform on an array of drug enforcement and policy issues.

Join our panel of experts for a post-election discussion of the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

Speakers

• John Hudak, deputy director of the Center for Effective Public Management and a senior fellow in Governance Studies, Brookings Institution
• Maritza Perez, director of the Office of National Affairs, Drug Policy Alliance
• Tamar Todd, legal director, New Approach PAC

Moderated by:

Douglas A. Berman, executive director, Drug Enforcement and Policy Center

Tomorrow can be today for some Biden-Sanders Unity Task Force criminal justice recommendations

Now that former VP Joe Biden is starting to begin work as Prez Elect Joe Biden, I started thinking about some of Dr. Martin Luther King's famous words about the persistent and pressing need for urgent action to advance justice.  As MLK put it in one 1967 speech:

We are now faced with the fact, my friends, that tomorrow is today.  We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history, there is such a thing as being too late.  Procrastination is still the thief of time.

With the fierce urgency of now in mind, I looked through the criminal justice reform recommendations [available here] from the Biden-Sanders Unity Task Force (discussed here) to see which ones might be acted upon ASAP.  Many of the recommendations involve matters that will require congressional action (e.g., "End the federal crack and powder cocaine disparity in sentences") or that must await Prez Elect Biden officially taking office (e.g., "Direct DOJ to collect data on federal prosecution practices").  But there are at least two notable recommendations involving the creation of an independent task force or board which could begin work right away: 

Task Force on Prosecutorial Discretion: Create a new task force, placed outside of the U.S. Department of Justice, to make recommendations for tackling discrimination and other problems in our justice system that result from arrest and charging decisions.

Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds. Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences.

Notably, Prez Elect Biden has now promised to announce on Monday a COVID task force. I am pleased he is acting fast on this critical front; but in this unfolding conundrum of life and history, I am always going to be urging leaders to treat tomorrow as today with regard to criminal justice reforms.

Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?

The question in the title of this post, which I am most eager to answer in the affirmative, results from reading this new Politico article headlined "America's new power couple: Mitch and Joe; How a Biden presidency and McConnell-led Senate might actually get along."  It still feels a bit too early, since lots of votes are still being counted, to start mapping out possible legislative agendas for the next two years.  But these passages have me thinking about the prospects for more (badly needed) federal criminal justice reforms:

During Barack Obama’s presidency, Joe Biden’s propensity for cutting deals with Mitch McConnell became a running source of aggravation for liberals. Now it will be the key to getting anything done at all.  “Some of the Democrats would say, ‘Joe always wants to make a deal. Joe always wants to make a deal.’ And I’m thinking: ‘Hell, yeah, that’s his job.’” Sen. Joe Manchin (D-W.Va.) said in an interview Thursday. “Why wouldn’t he want to make a deal?”...

McConnell and Biden may have reason to find some common ground.  Under Trump, McConnell has already succeeded in his longtime goal of reshaping the judiciary; soon his role will shift to the most powerful Republican in Washington who must also defend a razor-thin majority.  And Biden was elected running not on the most liberal agenda but in part on his ability to work with the other side, predicting “you'll see an epiphany occur among many of my Republican friends” if Trump loses...

Democratic officials are already acknowledging that their legislative ambitions are much smaller than they were a week ago, but they think there is room for agreement on things like a coronavirus aid package, infrastructure, higher education and rural broadband.  Republicans mostly agree....

The Biden team and Biden himself are thinking through how McConnell as majority leader will reshape his administration and wondering if McConnell will be a deal-maker or the kind of antagonist who said making Obama a one-term president was his top priority, according to an official close with the Biden team.

I am disappointed that this article does not list criminal justice reform as a subject matter where "there is room for agreement," but long-time readers know how criminal justice has become an arena for important bipartisan discussion and work.  And looking back at the notable criminal justice reform recommendations [available here] from the Biden-Sanders Unity Task Force (discussed here), there are at least a few of the listed priorities that ought to be able to garner some bipartisan support (though some are a lot more likely than others):

Mandatory Minimums: Empower judges to determine appropriate sentences, by fighting to repeal mandatory minimums at the federal level and give states incentives to repeal their mandatory minimums.

Retroactive Reforms: Make all sentencing reforms retroactive to allow for individualized resentencing.

Crack/Cocaine Sentencing Disparity: End the federal crack and powder cocaine disparity in sentences, and make the change retroactive....

Compassionate Release: Reinvigorate compassionate release so that the sick and elderly are transitioned out of incarceration so long as they do not pose a public safety risk....

Removing barriers to reentry: Remove restrictions on access to public housing, employment, occupational licenses, driver’s licenses, and public benefits.  Create a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible.  Include recommendations for reforming parole and probation, including preventing reincarceration for technical violations, as well as expungement and sealing of convictions.

The line in the Politico article noting that "McConnell has already succeeded in his longtime goal of reshaping the judiciary" has me wondering whether Senator McConnell might be less adverse to giving federal judges significantly more sentencing discretion now that he views so many as the product of his own king-making.

An effective disquisition on the drug war's descent

This lengthy new New York Times article provides a thoughtful review of how diverse coalitions have now come together to start unwinding the war on drugs. The full title of this piece highlights its themes: "This Election, a Divided America Stands United on One Topic: All kinds of Americans have turned their back on the destructive war on drugs." I recommend the full piece, and here is how it starts and ends:

It can take a while to determine the victor in a presidential election.  But one winner was abundantly clear on Election Day. Drugs, once thought to be the scourge of a healthy society, are getting public recognition as a part of American life. Where drugs were on the ballot on Tuesday, they won handily.

New Jersey, South Dakota, Montana and Arizona joined 11 other states that had already legalized recreational marijuana. Mississippi and South Dakota made medical marijuana legal, bringing the total to 35.

The citizens of Washington, D.C., voted to decriminalize psilocybin, the organic compound active in psychedelic mushrooms. Oregon voters approved two drug-related initiatives. One decriminalized possession of small amounts of illegal drugs including heroin, cocaine and methamphetamines. (It did not make it legal to sell the drugs.) Another measure authorized the creation of a state program to license providers of psilocybin.

Election night represented a significant victory for three forces pushing for drug reform for different but interlocking reasons. There is the increasingly powerful cannabis industry. There are state governments struggling with budget shortfalls, hungry to fill coffers in the midst of a pandemic.

And then there are the reform advocates, who for decades have been saying that imprisonment, federal mandatory minimum sentences and prohibitive cash bail for drug charges ruin lives and communities, particularly those of Black Americans.

Decriminalization is popular, in part, because Americans believe that too many people are in jails and prisons, and also because Americans personally affected by the country’s continuing opioid crisis have been persuaded to see drugs as a public health issue....

If states are the laboratories of democracy, then, as Mr. Pollan put it, some of the measures passed on Tuesday will set up interesting experiments.  Neighboring states will watch as Montana and New Jersey create regional cannabis destinations to be envied, imitated or scorned; unlike some other states, Montana and New Jersey do not directly border states where marijuana is fully legal, so they could draw more customers from out of state (though it is illegal to bring marijuana into a state where it is criminal). 

And it’s not entirely clear that marijuana is always the fiscal boost its champions say it is, even as cannabis tourism has helped states like California and Colorado. A state assessment of the financial impact of legalization in Montana, for example, showed that the state expected significant revenue — as much as $48 million a year in 2025 — but that its implementation costs would be nearly as high.

Policy wonks will assess the performance of Oregon’s health authority as it creates its program to license psilocybin distributors, an unusual function for a state department of health regardless of the drug in question.  And Americans all over the country will note — warily or hopefully — what happens in Oregon, now that possession of all controlled substances has been decriminalized.

Adam Eidinger, an activist in Washington, D.C., who proposed the ballot measure that pushed to legalize marijuana there, was also the treasurer of the campaign to decriminalize psilocybin.  (The campaign operated out of his house in the Kalorama neighborhood, home to the Obamas and Jared Kushner and Ivanka Trump.)

Next year, Mr. Eidinger plans to campaign for an initiative in D.C. to decriminalize possession of all controlled substances, much like the one that passed in Oregon. “People want to end the drug war,” he said.

Mr. Sabet, the former White House drug policy adviser, did not expect the nation to follow in Oregon’s footsteps — at least not immediately. “I don’t know if I’d put my money on America wanting to legalize heroin tomorrow,” he said.

"Drugs Won Big During the U.S. Election"

The title of this post is the title of this Vice piece highlighting one clear pattern of clear winners during election 2020. Here are excerpts:

Despite the uncertainty over the outcome of the U.S. presidential race Wednesday morning, Mississippi cannabis advocate Natalie Jones Bonner was feeling “absolute joy.”  Jones Bonner, 59, was celebrating the passing of Initiative 65, a ballot measure that will establish a medical cannabis program in the state.

Mississippi is one of a handful of states to pass drug reform measures last night.  In a groundbreaking decision, Oregon voted to support Measure 110, which will decriminalize all drugs, including cocaine and heroin.  Oregon also voted to legalize access to psychedelic mushrooms for medicinal purposes.

Arizona, Montana, New Jersey, and South Dakota all voted to legalize cannabis for recreational purposes.  South Dakota additionally voted yes to establishing a medical cannabis regime. Voters in the District of Columbia passed a measure to decriminalize shrooms.

The outcomes are a boon for drug reform advocates and the cannabis industry, making the possibility of federal weed decriminalization more feasible.  Currently, 33 states allow medical cannabis and 11 have recreational regimes.  Several of the states that passed measures last night have historically been proponents of the war on drugs, with Black people disproportionately arrested for drug crimes....

Matt Sutton, spokesman for the Drug Policy Alliance, said the support of drug reform is crucial in the context of wider conversations around police brutality and the failings of the criminal justice system.  He said Oregon’s decriminalization measure could result in a 95 percent decrease in racial disparities in arrests, according to the Oregon Criminal Justice Commission.

Sutton said it’s “remarkable” that weed legalization would pass in states like Montana, which has the highest rate of racial disparities in weed arrests, and South Dakota, where 10 percent of all arrests are tied to cannabis.

Economic gains, particularly as the pandemic is draining state resources, are in part behind the bilateral support of cannabis reform.  Sutton said he expects New Jersey’s decision to legalize cannabis to light a fire under New York, which has stalled in setting up its legal recreational regime.

Over at Marijuana Law, Policy & Reform I have been blogging a few reactions to marijuana's big election night via these two new posts:

• Some (too early) speculations on the (uncertain) future of marijuana reform after big state wins Election Night 2020

• After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?

California voters reject ballot initiatives to roll back sentencing reforms and to eliminate cash bail among other notable votes

As reported in this AP piece, there were some notable mixed results on a number of California criminal justice ballot initiatives.  Here is the AP accounting of the two biggest items:

California has upheld several criminal justice changes, endorsing recent efforts to ease mass incarceration by reducing penalties and allowing for earlier releases. Voters also appeared likely to maintain the state’s current cash bail system as a majority opted for the status quo on both criminal justice ballot measures.

Voters on Tuesday defeated Proposition 20, rejecting supporters’ pleas to address what they called the “unintended consequences” of two previously approved ballot measures. One lowered penalties for drug and property crimes in 2014, while the second two years later allowed the earlier parole of most felons.

Voters by a 63% to 37% margin rejected proposals that would have barred criminals convicted of certain serious offenses from earlier release, increased penalties for repeated retail thefts, toughened parole standards and allowed for broader DNA collections.  Opponents said the measure would have set back reforms just as the nation focuses on a criminal justice system that has treated people of color inequitably.

Jay Jordan, executive director of Californians for Safety and Justice that backed the reforms, called the proposition’s defeat “a significant milestone in California’s ongoing effort to make its criminal justice system more effective” and said it would advance national reform efforts. Former governor Jerry Brown championed the 2016 ballot measure that allowed most felons to seek earlier parole and put $1 million of his remaining campaign funds into contesting Proposition 20....

Voters were also leaning toward keeping the state’s current cash bail system, with 55% rejecting a law passed in 2018 that would substitute risk assessments to decide who should remain in jail awaiting trial. The law stalled when the bail industry went to the ballot box.

Even some prominent civil rights groups agreed the system is broken but said the proposed fix might be even worse because it relies on risk assessments that The Bail Project says “codify systemic racism and could lead to higher rates of incarceration in some jurisdictions.”

State Sen. Bob Hertzberg, a Democrat from Los Angeles who wrote the law, said before Election Day that ending cash bail would put California “on the path to a more fair and more safe justice system that treats everyone equally under the law.” While most states recently have altered their pretrial release laws or policies, voters’ approval of Proposition 25 would make California “the only state with a complete prohibition on fiscal conditions of release,” according to National Conference of State Legislatures criminal justice expert Amber Widgery.

Under the new system, no one would pay bail and most misdemeanor suspects would remain free. Those charged with felonies or misdemeanor domestic violence, sex offenses or driving while intoxicated would be evaluated for their perceived risk of committing another crime or not appearing in court. Most would eventually be released, unless they are accused of certain crimes like murder or arson, or if a judge finds there are no conditions like electronic monitoring that could ensure their appearance at future hearings.

All the results of the California propositions can be found on in this article, which notes that another notable criminal justice reform passes:

Proposition 17 –  Allow Felon Parolees to Vote (Yes = 59.0%, No = 41.0%)

The passage of Proposition 17 grants the right to vote to parolees with felony convictions. Imprisoned convicted felons remain disqualified from voting.

And this Los Angeles Times piece, headlined "From George Gascón to jail diversion, criminal justice reform got a big boost in California," highlights the criminal-justice-reform-minded votes in Los Angeles bringing in a new DA and a local measure requiring "that 10% of locally generated, unrestricted county money — estimated between $360 million and $900 million — be spent on a variety of social services, including housing, mental health treatment and investments in communities disproportionally harmed by racism [while] the county would be prohibited from using the money on prisons, jails or law enforcement agencies."

Sentencing reform ballot initiative in Oklahoma, SQ 805, appears likely to lose badly

I have been following closely, as highlighted by prior posted noted below, the interesting ballot initiative in Oklahoma seeking to limit the impact of nonviolent criminal history on sentencing outcomes.  Notably, back in 2016, Oklahoma voters approved a ballot initiative downgrading drug possession and a slate of minor property crimes from felonies to misdemeanors.  So state voters have a history of backing sentencing reform via ballot initiative.  But it seems that SQ 805 did not garner comparable support from Sooner voters.

Specifically, as of 10:15pm EST as reported here, there are over 88% of precincts reporting, and the NO vote has nearly 61% while the YES votes is just over 39%.  So it looks like this ballot initiative will not just lose, but lose by a sufficiently large margin that it might discourage other related reform efforts in the near future.

Prior related posts:

• Oklahoma ballot initiative (State Question 805) seeks to block non-violent prior convictions from enhancing statutory range of punishment
• Fascinating Oklahoma initiative seeking to block non-violent prior convictions from enhancing statutory range of punishment qualifies for ballot
• Might a notable celebrity endorsement help move a notable criminal justice reform ballot initiative toward passage in Oklahoma? 
• Will problematic definition of "violence" convictions impact Oklahoma sentencing reform initiative SQ 805? 

Some places to watch for results on criminal justice ballot initiatives

The folks at Vox have created this webpage which will help track "live results" from some of the criminal justice ballot initiatives that voters are considering today around the country. Here is the set up:

In Oklahoma, voters could ban harsh sentencing enhancements that can keep people in prison longer for nonviolent crimes. In California, voters will consider three measures: one to affirm the end of cash bail, another to let people vote while on parole, and a third to roll back recent criminal justice reforms. In Nebraska and Utah, voters could prohibit slavery as a criminal punishment, including forced prison labor.  And in Kentucky, voters could approve a controversial crime victims’ rights law.

Not all of these are for reform as many people think of it today. Some of the initiatives, particularly in California and Kentucky, have been criticized by activists seeking to end mass incarceration and the war on drugs. But depending on how voters decide on these initiatives, they could continue the broader work of the past decade to fix America’s punitive criminal justice system.

The Vox page leaves out the large number of drug reform initiatives, but thankfully the folks at Marijuana Moment have created this great webpage with tracking tools to follow all the marijuana and drug reform ballot initiatives that voters are considering today around the country.  Here is how its set up:  

Marijuana Moment is tracking 11 separate cannabis and drug policy reform measures on ballots in seven states.  Stay tuned to this page for results as votes are counted.

Make sure to follow Marijuana Moment and our editors Tom Angell and Kyle Jaeger on Twitter for live news and analysis, and check our homepage for individual articles about each ballot measure as races are called.

Thanks to support from ETFMG | MJ, we have a single tracker tool below that lets you cycle through all of the key measures as well as separate standalone tools for each initiative.

And do not forget about this great web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  

Though I am interested in all these results, I am especially eager to see how Oklahoma's novel criminal history reform measure, how South Dakota's marijuana legalization initiative, and how Oregon's drug decriminalization measure fare. The nature of the issues and the states in which they are taking place strike me as especially interesting and important.

As always, I would be interested to hear from readers about what issues or races they are following especially closely tonight.

Reviewing just some of many Campaign 2020 posts

My very first post this election cycle, which for which I created the category archive Campaign 2020 and sentencing issues, was way back in February 2019.  Over 20 months and nearly 100 posts later, I am so very glad that Campaign 2020 is now so very close to being over.  And I am also glad that Election Night eve gives me an excuse to review posts from this election cycle and flag 10 posts now worth highlighting again:

From February 2019, Brennan Center produces policy brief on "Ending Mass Incarceration: A Presidential Agenda" 

From April 2019, Spotlighting how "politicians are catching up with American voters" on criminal justice reforms 

From July 2019, Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice" 

From September 2019, Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement

From January 2020, Might the 2020 campaign bring back "law and order" as a political wedge issue?

From February 2020, Noting political import and impact of Prez Trump's Super Bowl ad touting criminal justice reform 

From July 2020, Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force 

From August 2020, "The RNC Can't Figure Out Where It Stands on Criminal Justice Reform" 

From October 2020, Some notable (and mostly heartening) criminal justice discussion in final Prez debate of 2020 

From October 2020, Covering just some of many criminal justice reforms stories percolating in 2020 election

Digging carefully into what the FIRST STEP Act has, and has not, really achieved

Malcolm C. Young, a long-time justice reform advocate, sent me an interesting new report he has completed titled "How Much Credit Should Trump be Given for the First Step Act?".  This new report, which I recommend in full, is a continuation of some research which was recently published in the Journal of Community Corrections under the title "The First Step Act and Reentry."  That Fall 2019 article makes the case that "as a law intended to improve federal reentry, the FSA falls short."  Young's new report, which can be downloaded below, is a detailed effort to pushback on some of Prez Trump's claims about "his" achievements through the FIRST STEP Act.  Here is an excerpt from the start of the report:

Trump is entitled to take credit for signing the FSA into law and the reductions in the federal prison use that followed. But the FSA, which was drafted by legislators, is neither the first nor the largest reform in recent years.  For examples, a reform in sentences for crack cocaine at the close of the George Bush administration reduced the use of federal prisons by close to three-quarters of the reduction obtained from the FSA.  A downward adjustment in drug sentences that cleared the United States Sentencing Commission (USSC) during the Obama administration resulted in nearly half-again as much a reduction in prison use (146%) as resulted from the FSA at the end of its first year.  And, finally, including the downward adjustment in drug sentences, Obama-era reforms resulted in more than double (230%) the FSA’s reduction in prison use in its first year.

As to benefits for Black Americans, the FSA’s reductions in sentences for crack cocaine benefited Black individuals disproportionally, as intended, yet very little more than did three similarly structured reforms intended to alleviate racial disparities in federal drug sentencing.  The FSA’s other provisions benefit smaller proportions of Black individuals.

As to reentry, the Trump administration's claim that, “[t]he landmark First Step Act enacted commonsense criminal justice reform that is helping prisoners gain a new lease on life and is making America safer” is, regrettably, simply not true.  These aspects of the FSA are not working.  But the fault lies more with Congress than Trump.

Download Trump and the First Step Act October 2020

More great coverage of criminal justice players and issues on the 2020 ballot

In a few prior posts (here and here), I have flagged some effective reviews of many of the big races and issues appearing on state ballots this November.  I have now seen two more great accounts of the votes criminal justice fans should be following:

From The Appeal: Political Report, "Criminal Justice on the 2020 Ballot." The set up:

Thousands of prosecutors, sheriffs, governors, and attorneys general will be elected in 2020, on the heels of a series of wins by candidates who ran on fighting mass incarceration in 2019.  These offices set the policies that shape the prison population, the criminal legal system, cooperation with ICE, and much more.  This page features The Appeal: Political Report’s reporting and analyses of these often-overlooked but crucial elections.

From The Brennan Center for Justice, "Justice on the Ballot 2020." The set up:

With criminal justice on the ballot nationwide, we’ve compiled a list of 40 ballot initiatives and law enforcement electoral races worth watching on Election Day.  Our resource page provides short summaries of each criminal justice ballot initiative or race, with fresh and updated links to media coverage of the contests culled from reliable news sources.

From police oversight to immigration roundups in “sanctuary” jurisdictions, November’s election will have far-reaching consequences not just for federal criminal justice issues but also for state and local policies.  We hope our new page will serve as a handy guide leading up to Election Day and beyond to help you monitor key down-ballot races and causes.

UPDATE: I now see The Marshall Project has an additional new piece in this spirit headlined "7 States Where Voters Could Change the Future of Criminal Justice."

A few prior related posts:

• "Drug Reforms on the 2020 Ballot"
• Covering just some of many criminal justice reforms stories percolating in 2020 election

Covering just some of many criminal justice reforms stories percolating in 2020 election

Every election is important for the fate and future of criminal justice reform, but every even-year Fall it is hard not to get caught up in the notion that this year's election is uniquely significant and consequential.  As I noted in this prior post, the discussion at the last Prez debate leads me to be (foolishly?) hopeful that we will see some follow up to the FIRST STEP Act or some other form of of federal criminal justice reform in the coming years no matter who prevails at the federal level.  But surely the scope and contents of possible federal reform will depend not only on who is in the White House and who is in charge in Congress, but also on what kinds of reforms move forward and prove successful at the state and local level.   

Because the FIRST STEP Act at the federal level was made possible in part by the political and practical successes at the state level, even those focused primarily on the federal system ought to keep a close eye on state and local criminal justice reform and election realities.  Helpfully, there is a lot of good press coverage on all these topics these days, and here is a sampling:   

Some National Perspectives:

From The Appeal, "Your Guide To 30 Sheriff And Prosecutor Elections That Could Challenge Mass Incarceration: These are key local elections where criminal justice reform is on the line next month."

From the Drug Enforcement and Policy Center, "Drug Reforms on the 2020 Ballot: A closer look at drug policy reform decisions voters will make during the 2020 election"

From Fox News, "Marijuana-legalization supporters tout economic benefits in new voter pitch: Advocates argue sales and excise taxes would help bail out states crushed by coronavirus"

From Reason: "On Criminal Justice, Trump and Biden Are Running Against Their Own Records: The progressive who helped usher in mass incarceration is running against the law and order conservative who let prisoners go free."

From Vox, "How 2020 voters could change the criminal justice system, in 6 ballot measures: Voters in several states have a chance to change the criminal justice system in 2020."

From Vox, "2020’s psychedelic drug ballot measures, explained: Oregon and Washington, DC, voters may relax their laws for psychedelic drugs."

 

Some State Specifics:

From the Denver Post, "Half of Colorado’s district attorneys will be replaced after election, setting scene for future of criminal justice reform"

From Governing, "California to Vote on What’s Next for Criminal Justice Reform: The state’s Proposition 20 would expand felonies which are ineligible for parole and collect DNA samples of misdemeanor offenders. Californians must decide if it assures public safety or is backward progress."

From The Oklahoman: "Five things to know about Oklahoma State Question 805"

From Vox, "Oregon’s ballot measure to decriminalize all drugs, explained: The ballot measure is trying to move the state from a criminal justice to a public health approach on drugs."

Some notable (and mostly heartening) criminal justice discussion in final Prez debate of 2020

Few months ago in this post I wished that we could somehow arrange for one of the then-planned Prez debates to be entirely about criminal justice issues.  Of course, that did not happen (and only two of the three planned debates even happened).  Still, during the final Prez debate of this election cycle, criminal justice issues received more discussion than in any other Prez debate in recent memory, and I am tempted to call the discussion heartening for a variety of reasons.

For starters, Prez Trump bragged repeatedly about his role in achieving "criminal justice reform and prison reform," and he also criticized former VP Biden for his past role in enacting federal criminal justice legislation in the 1980s and 1990s that "put tens of thousands of mostly Black young men in prison."  It was not that long ago that candidates were regularly competing to claim they were tougher than their opponents, but tonight Prez Trump assailed Biden for his tough-on-crime past while claiming credit for most progressive federal criminal justice reform in a generation (the FIRST STEP Act).

Meanwhile, VP Biden stated that the drug offense part of federal criminal legislation in the 1980s and 1990s was "a mistake," and he bragged that during the Obama administration "38 thousand prisoners [were] released from federal prison [and] over 1000 people given clemency."  And even more notable was Biden's plain statement that "there should be no minimum mandatories in the law."  Again, it was not that long ago that politicians were eager to brag about enacting mandatory minimums and about putting more people in prison.  Now the talking points focus on releasing prisoners and the pledge it to repeal mandatory minimums.

For these reasons and others, I remain mildly optimistic that we will see some measure of progress on some kind of follow up to the FIRST STEP Act or some other form of criminal justice reform in the coming years no matter who prevails in the coming election.  But I think the scope and contents of reform will surely look a look different, and the pace and implementation of any reform will surely transpire a lot differently, depending on who is in the White House and who is in charge in Congress.  Interesting times.

"Drug Reforms on the 2020 Ballot"

The title of this post is the title of this great new web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  Here is introduction to the detailed state-by-state materials:

A closer look at drug policy reform decisions voters will make during the 2020 election

On election day 2020, voters will decide more than the next United States President. Drug policy and enforcement reforms will appear on numerous state-level ballots. Five states have qualifying initiatives that attempt to legalize marijuana for medical or adult-use consumption, including some states that will ask voters to decide on multiple pathways to a legal market. And marijuana reform is not the only drug-related issue on ballots. Initiatives in a few states and Washington, D.C. will ask voters to modify existing sentencing laws, decriminalize all drugs, or legalize psychedelics for adult-use and therapeutic reasons.

To gain a better understanding of what this election could mean for drug policy across the U.S., the Drug Enforcement and Policy Center (DEPC) has developed a list of key ballot initiatives reaching voters in 2020. Read on for a list of initiatives we will be watching this November in the areas of marijuana legalization, psychedelics, and criminal justice.

Plus, don’t miss our post-election event Drug Policy Implications of the 2020 Elections on November 16, 2020. Our panel of experts will discuss the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

Understanding Proposition 20, the latest chapter of California's experiments with sentencing reform via initiative

I have noticed more than a few recent media pieces about the notable sentencing reform measure on the ballot in California this year, Proposition 20, and here is a sample:

• From the Los Angeles Times, "Prop. 20 sparks debate over effects of criminal justice reform in California"

• From The Mercury News, "Proposition 20: Will California go back to its ‘tough on crime’ past?: Measure will test voters’ commitment to criminal justice reforms"

• From KSBY, "Prop 20 looks to get tough on crime & roll back some criminal justice reforms"

The start of the LA Times piece seems to provide a pretty clear account of the range of complicated state reform realities connected to Prop 20:

As much of the country weighs changes to the criminal justice system, California has had a head start, adopting a series of laws in the last decade that, among other things, helped reduce the state’s prison population by more than one-third, or 50,000 people.

Now a group of prosecutors and law enforcement leaders has placed Proposition 20 on the November statewide ballot, which would expand the list of felonies for which the convicted are ineligible for early parole; increase penalties for repeat shoplifters; and collect DNA samples from adults convicted of some misdemeanors.

Proponents argue that it is needed to fix flaws in past measures that they say are putting the public’s safety at risk, including the early release of potentially violent criminals. But opponents of the measure, who include civil rights leaders, Gov. Gavin Newsom and former Gov. Jerry Brown, say it wrongly rolls back necessary criminal justice reforms as crime has declined in recent years. “California is ahead of the game — we’ve done so many great reforms,” said Assemblyman Jim Cooper (D-Elk Grove), a retired sheriff’s captain and proponent of Proposition 20. “But there have been unintended consequences with these reforms.”

Brown, who led past reform efforts, called the initiative “very inhuman.” He said it takes away hope and incentives for prison inmates to pursue educational opportunities and demonstrate good behavior to improve their chances of getting out early. “Proposition 20 is supported by a very narrow group of people who don’t accept even the modest prison reforms that I was able to achieve,” Brown said. “It’s driven by ideology and, in some cases, by a total lack of understanding of human nature and no sense of redemption or allowing people to put their lives on track. It’s vindictive.”

Brown was governor when the U.S. Supreme Court ruled in 2011 that California’s prisons were overcrowded in violation of constitutional protections.  That year, he signed Assembly Bill 109 into law to reduce the state prison population by requiring that many people convicted of felonies not involving violence or sex offenses serve their sentences in county jails instead of state prison.

In 2014, California voters approved Proposition 47, which reclassified many lower-level drug and property crimes from felonies to misdemeanors.  Before then, thefts could be considered a felony if stolen merchandise was valued at $450 or more, but Proposition 47 raised the threshold to $950.

Proposition 57, which Brown developed and was approved by California voters in 2016, increased parole and good behavior opportunities for those convicted of nonviolent felonies.

The new initiative to be voted on Nov. 3 makes key changes in the previous three laws.

The measure would broaden the list of crimes that make inmates ineligible for early release from state prison through the parole program in Proposition 57, adding 22 offenses, including trafficking a child for sex and felony domestic violence.

The measure also would increase penalties for people who commit multiple thefts, including serial shoplifting, to address a spate of such crimes, and would mandate the collection of DNA samples from adults convicted of crimes newly classified as misdemeanors under AB 109, including forging checks and certain domestic violence crimes.

In addition, Proposition 20 would require the state Board of Parole Hearings to weigh an inmate’s entire criminal history when deciding parole, not just the most recent offense, which was the standard set by AB 109.

The nonprofit, nonpartisan group CalMatters has this helpful page about Prop 20 which includes a two-minute video seeking to summarize the initiative.  This Ballotpedia page on Prop 20 reveals a lot of money has been donated to both the proponents and opponents of this reform, but it does not report on any polling on the topic.  I have seen other reports on polling calling this ballot issue a "coin toss" because of so many undecideds.  In other words, as always seems to be the case, California in Nov 2020 is yet again a state to watch for those interested in the state of criminal justice reform efforts.

Should we be rooting for or against some criminal justice discussions during the VP debate?

The question in this title of this post is my sincere question as I think about tonight's scheduled debate between the 2020 vice presidential candidates, current VP Mike Pence and Senator Kamala Harris.  Especially after the many ugly dimensions of last week's Prez election debate, I find myself wondering too much about whether we can even have effective civil discourse in this nation.  That depressing fundamental concern aside, it is perhaps worth recalling that almost exactly four years ago at the last VP debate, then-Gov Pence advocated for national criminal reform in this exchange (as reported in my Oct 2016 blog posting with my emphasis added):

[Moderator] QUIJANO:  Your fellow Republican, Governor Pence, Senator Tim Scott, who is African-American, recently spoke on the Senate floor.  He said he was stopped seven times by law enforcement in one year....  He said, "I have felt the anger, the frustration, the sadness, and the humiliation that comes with feeling like you're being targeted for nothing more than being just yourself."  What would you say to Senator Scott about his experiences?

PENCE:  Well, I have the deepest respect for Senator Scott, and he's a close friend.  And what I would say is that we — we need to adopt criminal justice reform nationally.  I — I signed criminal justice reform in the state of Indiana, Senator, and we're very proud of it.  I worked when I was Congress on a second chance act.  We have got to do a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice.

I would love a four-years-later follow up question to now-VP Pence that explores whether he thinks the Trump Administration has been doing "a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice."  That said, if there are questions focused on criminal justice issues in this VP debate, we might expect that they may be first directed toward Senator Harris given her long (and somewhat controversial) record on these issues resulting in part from her service as a local prosecutor and then Attorney General in California.

In this post some weeks ago, I made a pitch for an entire Prez debate focused on criminal justice issues.  Now I am finding myself just hoping for a debate that does not make me sick. The question in the title of this post is driven by the fact that I am sincerely not sure if the candidates ignoring or discussing these issues tonight are more or less likely to be nauseating.

A few prior recent related posts:

• Any suggestions for sharp Prez debate questions on criminal justice issues? 
• Can we somehow arrange for one of the upcoming Prez debates to be entirely about criminal justice issues? 

Any suggestions for sharp Prez debate questions on criminal justice issues?

Tonight begins the Prez debate season, though I am probably more looking forward to the MLB post-season.  I made the case in this post last month for why I think we ought to somehow arrange for one of the upcoming debates to be entirely about criminal justice issues, but that seems unlikely to happen either formally or informally.  Still, though these topics never get enough attention for my taste, I am hopeful  that the issues that consume this blog could be end up being discussed at some length and with some real bite tonight or at one or more of the coming debates.

Ever eager to help those with the challenging task of executing these debates, I am now eager to hear from readers in the comments  about what criminal justice issues they hope to see raised in the debates.  I would be especially eager, as the title of this post highlights, to read in the comments actual suggested questions that are crafted in sharp ways to try to help ensure the candidates cannot get away with fuzzy answers.   I genuinely doubt that any of the debate moderators are regular readers of the comment section of this blog, but you never know.

So, dear readers, what are your sharp suggestions for sharp Prez debate questions on criminal justice issues?

Interesting accounting of Facebook spending and advertising by presidential campaigns

The Marshall Project has this fascinating lengthy new piece on criminal justice advertising by the presidential candidates during the 2020 election cycle so far.  The full headline of the piece, which highlights its themes, is "Trump’s Crime and Carnage Ad Blitz Is Going Unanswered on Facebook: The president has spent millions on misleading Facebook ads targeting undecided voters, while Joe Biden has been virtually silent."  I recommend the piece in full, and here are excerpts:

To understand how Republicans and Democrats are using criminal justice issues to reach voters, the Marshall Project analyzed hundreds of thousands of political campaign advertisements on Facebook from December 2019 to this month. Arguably the most powerful political messaging platform in history, Facebook allows candidates to microtarget tailored messages to demographic groups and even to individual voters by name.  Probing that data lets us see how candidates reach voters, with a level of detail that earlier generations of strategists and political pundits could only dream of.

Our analysis found that of the $82 million Trump’s reelection campaign has spent on Facebook ads this year, $6.6 million paid for ads about crime and policing — a top focus of his Facebook campaign. Almost all of it came since George Floyd was killed by police in Minneapolis in May.  More than one-third of those ad buys were aimed at key battleground states and many sought to persuade specific undecided voters, and married women in particular.  The Biden campaign?  It didn’t spend a cent on criminal justice ads on Facebook until late August, choosing instead to focus on the COVID-19 pandemic and economic recovery.  Yet Biden had, during the Democratic primaries, articulated a more progressive criminal justice platform than any of his party’s recent nominees....

Trump’s message on criminal justice began with a focus on reform.  Last December, his campaign ran ads featuring the First Step Act, the criminal justice reform bill he signed in 2018, boasting that the president was “helping prisoners gain a new lease on life and is making America safer.”

Then in May, for three days before Memorial Day — when George Floyd would die on a Minneapolis street — Trump spent more than $175,000 on ads criticizing Biden for his role in policies like the 1994 crime bill: “Mass incarceration has put hundreds of thousands behind bars for minor offenses.”

It’s not clear who those ads were meant to reach as they sought to capitalize on Biden’s “If you have a problem figuring out whether you’re for me or Trump, then you ain’t Black” quote in a May interview.  They disappeared quickly as protests against police brutality began in cities across the country.

By early July, as the protests continued, the Trump campaign had decisively shifted its tone.  In one ad, a 911 call is picked up by an answering machine that says, “You have reached the 911 police emergency line.  Due to defunding of the police department, we’re sorry but no one is here to take your call.  If you’re calling to report a rape, please press 1.”

Around that same time, Biden’s Facebook ads focused on praising essential workers dealing with the coronavirus pandemic and on vague messages of national unity.

You wouldn’t have seen any of these ads if you live in a state like California or Oklahoma that is considered a firm lock for one party.  Biden’s were shown in a narrow group of swing states, including Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin.  The Trump campaign paid Facebook about $1.5 million to show its “911” ads only to people in a slightly wider list of battleground states that included Ohio and Texas.  Since June, Trump’s campaign has spent about $2.6 million on criminal justice–related ads targeted to battleground states.

In the battleground states, these persuasive ads are not aimed at every voter.  The power of Facebook for campaigns is that it allows them to show ads directly to the specific voters they think are most likely to be on the fence.  The Trump campaign asked Facebook to show its “911” ad to at least two separate groups of people: first, to married women—the “suburban housewives” Trump has said he hopes to reach — and, second, to people specified by their name or phone number on a spreadsheet the campaign uploaded to Facebook. 

There are two main kinds of political ads on Facebook: ones intended to win votes and ones intended to encourage donations. That Trump’s “911” ad was presented to users in toss-up states suggests the goal was to persuade people to change their minds, according to digital political strategists.  When either campaign wants to raise money, they show ads to their own supporters in uncontested states like deep blue New York where they’d be unlikely to pick up additional electoral votes.

Lots and lots of government lawyers on Prez Trump's latest SCOTUS (not-so-)short list

As reported via this release from the White House, this afternoon Prez Trump announced the 20 additions to "his Supreme Court List."  There are a number of perhaps predictable names (e.g., Gregory Katsas) and perhaps surprising names (e.g., Daniel Cameron) on the list, but what I noticed was how many were current or former government lawyers.  Though not too many on the list were actually former criminal prosecutors, all but a few worked for departments of justice and/or in attorney general offices.  I do not believe any of the persons on the list ever served in a public criminal defense role (although some may have provided private or pro bono defense while with a law firm).

This lengthy Politico article discusses the and some of the politics surrounding it.  Here are a few excerpts:

President Donald Trump on Wednesday added 20 names to his existing list of 25 potential picks to fill a future Supreme Court vacancy, including Republican Sens. Ted Cruz, Tom Cotton and Josh Hawley. By doing so, Trump reprised a strategy that many credit with bringing skeptical social conservatives into the fold in 2016 and paving the way for his upset victory over Hillary Clinton.

Calling the appointment of Supreme Court justices “the most important decision a president can make,” the president cast the decision to release his potential picks up front as an obligation White House hopefuls have to their voters, though he was the first candidate to do so, in 2016....

Trump’s decision to nearly double his existing pool of choices could upset those who favored slashing the original list by as much as half, arguing for a more stringent vetting process, as well as the removal of those with limited records from which to judge the consistency of their judicial philosophy. Those in favor of expanding the list argued that Gorsuch departed from such consistency in his ruling this summer. “The whole purpose of the list is to give hard-line conservatives a guarantee that we will not be betrayed again,” one Republican close to the White House told POLITICO in July....

The president’s campaign blasted out appreciative messages from members of Trump’s gun owners and Catholics advisory boards, as well as the campaign’s legal advisers. Democrats and progressive groups, meanwhile, held up Trump’s new list as their own measure of the stakes in the coming election....

Yet, many Republicans noted — and some left-leaning activists lamented — that the issue of the high court and judicial nominees generally was essentially ignored at the Democratic National Convention last month.

Thus far, Biden has declined to follow in Trump’s footsteps and release his own list of potential Supreme Court nominees. He has promised to appoint a Black woman to the court and has said his campaign is compiling a shortlist of such picks “who are qualified and have the experience to be on the court,” but would not release their names “until we go further down the line in vetting them.”

Trump slammed that decision on Wednesday, calling on Biden to release a list of potential Supreme Court picks and musing that Biden’s refusal to do so was “perhaps because he knows the names are so extremely far left that they could never withstand public scrutiny or receive acceptance.” Biden, Trump said, “must release a list of justices for people to properly make a decision as to how they will vote.”

As detailed in post linked below, I have been suggesting for quite some time that Joe Biden should be able to produce a SCOTUS list which could excite progressives and highlight that there diversity of impressive legal talent in our nation which includes persons who have worked on behalf of criminal defendants. 

Prior related post:

• Will Joe Biden release a SCOTUS short-list and will it excite criminal justice reformers? 
• You be the political consultant: Should Joe Biden release a SCOTUS short-list? 

Can we somehow arrange for one of the upcoming Prez debates to be entirely about criminal justice issues?

Long-time readers know that, every four years, I cannot stop complaining that the Prez-election-season discourse and debates do not give nearly enough attention to a range of important criminal justices issues.  (Here are just a few example of this complaining in posts from 2008 and from 2012 and from 2016.)  For many reasons, it seems likely that the 2020 election season will have considerably more discussion of criminal justice issues from the candidates and in the media.  For example, this morning I saw this new NPR piece headlined "Fact Check: Trump's And Biden's Records On Criminal Justice," and here are excerpts:

For four nights, speakers at the Republican National Convention pilloried Democrat Joe Biden over his alleged weakness on crime and painted a dystopian future if he were to be elected in November. Biden and Democrats were "completely silent about the rioters and criminals spreading mayhem in Democrat-run cities," during their convention, President Trump charged on Thursday.  The previous evening, Vice President Pence warned, "The hard truth is you will not be safe in Joe Biden's America."... Pence claimed that Biden would "double down in the very policies that are leading to violence in American cites," to which Biden responded with a reminder that "right now ... we're in Donald Trump's America."...

Trump — who promised in his 2016 acceptance speech that "the crime and violence that today afflicts our nation will soon, and I mean very soon, come to an end" — has a spotty record when it comes to criminal justice reform.

His signature achievement on the issue, the widely touted First Step Act signed in 2018 and passed with bipartisan support in Congress, instituted sentencing reforms, including reducing harsh penalties for crack cocaine possession.  And on Friday, Trump pardoned Alice Johnson, a criminal justice reform advocate who delivered a powerful address at the Republican National Convention this week, and whose cause had been espoused by Kim Kardashian West. But some parts of the law have fallen short, activists say.

In June, following the unrest after George Floyd's killing, Trump signed an executive order that would provide federal grants to improve police training, and create a national database of police misconduct complaints. But it fell well short of what activists say is needed. Congress was unable to reconcile police reform proposals earlier this summer....

As Republicans were fond of noting during their convention, Joe Biden has a 47-year record as a U.S. senator and then vice president. During much of his Senate career, he was a member of and chairman of the Judiciary Committee, and in 1994 sponsored the Violent Crime Control and Law Enforcement Act.  It came in a different era, as Democrats set out to prove that they, too, were "tough on crime."  The bill included a 10-year ban on assault-style weapons as well as the Violence Against Women Act, which Biden points to today as a signal of his commitment to ending domestic violence.  But the act also included harsh penalties for drug-related crimes and money to construct new prisons, which critics said led to the mass incarceration of Black men. It also included funding to hire 100,000 additional police officers.

Now, Biden has backed away from some of the provisions in that bill, while at the same time rejecting calls by some in his party to defund police departments. He's proposed a ban on police chokeholds, a new federal police oversight commission, new national standards for when and how police use force, more mandatory data collection from local law enforcement and other steps.

There are three Presidential debates scheduled to begin in late September, and I am sure this season will bring at least a few questions on crime, police reform and racial justice issues.  But there are so many issues in the criminal justice arena that merit attention and that are likely to be of considerable interest to voters.  Clemency policies and practices, for example, could and should merit focused debate discussion.  So, too, should the operation of the death penalty, especially now that the Trump Administration has carried out five federal executions while the Biden policy task force calls for abolishing the death penalty "at the federal level, and incentiviz[ing] states to follow the federal government’s example."

And let's not forget marijuana and other drug policy issues.  At least six states in 2020 will be voting on state-level marijuana reforms, and other forms of reform concerning other drugs are also on various other ballot.  The Trump Administration has given some attention to the opioid crisis, and we ought to have both candidates discuss drug overdoses which still result in many, many more deaths of young people than has the coronovirus (NIDA reports over 4600 overdose deaths for persons aged 15-24 in 2018; the CDC reports under 400 COVID deaths for that same age group in 2020).

And the list of important topics for debate and discussion could go on and on: the operation and oversight of the federal Bureau of Prisons; reform of mandatory minimum sentencing provisions; voting rights for those with past convictions; the policies and practices of so-called progressive prosecutors; appointments to the US Sentencing Commission; barriers to effective reentry due to collateral consequences; the timeline and possible substance for a Second Step Act (and a Third Step Act).  The great new Council on Criminal Justice (CCJ) released a few months ago this big new report titled "Next Steps: An Agenda for Federal Action on Safety and Justice."   This report had 15 thoughtful recommendations for federal reform, each of which could justify extended debate discussion.

I will not belabor this point here, but in the coming months I likely will keep returning to the idea that an entire Prez debate should be devoted exclusively to discussing criminal justice issues.  The candidates' histories and well as their campaigns, not to mention the moment we are living through, justify more than just one or two questions on these topics.  As in years past, I expect to be disappointed on this front.  But, as in years past, I will keep using this platform to push what I think is a sound debate agenda for voters and the nation.

An effective (and only partial) look at complicated criminal justice records of Trump and Biden

Newsweek has this effective new piece headlined "Trump and Biden Both Have Complicated Records on Criminal Justice Reform," and here are excerpts:

Despite billing themselves as the best bet voters have for criminal justice reform, neither former Vice President Joe Biden nor President Donald Trump has a strong record to fall back on.

The Republican National Convention kicked off on Monday with Senator Tim Scott and Georgia state Representative Vernon Jones, a Democrat, lauding Trump for the First Step Act, a criminal justice reform bill the president signed in 2018. Trump — who pardoned on Tuesday night Jon Ponder, a former bank robber who started a nonprofit in 2010 to help formerly incarcerated individuals — and other speakers contrasted that accomplishment with Biden's involvement in tough-on-crime legislation....

A bipartisan bill, the First Step Act resulted in the release of 3,100 people from prison in July 2019 as part of the act's "good time credit fix," and an additional 3,000 people were resentenced to shorter prison terms, according to the Brennan Center for Justice.  It's an aspect of the Trump administration's legacy that some experts say should be praised, but it's all Trump has to point to in terms of criminal justice reform legislation.

"Yes, he signed and supported an important piece of legislation, but that seems to be where the story ends," Kara Gotsch, director of strategic initiatives at the Sentencing Project, told Newsweek. "I think a lot of people in my community, after the commutation of Alice Johnson, hoped that it would lead to significant numbers of commutations."

Trump granted Johnson clemency in June 2018 after she served 21 years in prison for a first-time nonviolent drug offense. Two years later, he commuted the sentences of Crystal Munoz, Tynice Hall and Judith Negron, three women who served prison time with Johnson, and on Thursday, she's expected to speak at the GOP convention.

For all the lambasting of Biden's criminal justice record and praise of the First Step Act, Trump's also taken a hard stance in favor of law enforcement, labeled protesters "anarchists" and characterized himself as a "law and order" president. Trump also pushed for the death penalty for the Central Park Five, a group of young men wrongly convicted of a 1989 murder. He supported the same punishment for drug dealers just three months after signing the First Step Act, making it unclear where he truly stands on criminal justice reform....

Trump's sending "mixed signals" to different audiences with regard to criminal justice reform, according to Rachel Barkow, author of Prisoners of Politics: Breaking the Cycle of Mass Incarceration.  While Biden isn't her "dream candidate," he's the "more promising" option, in her opinion, because both his and vice presidential nominee Kamala Harris' recent actions indicate they'll be supportive of such reform. Harris' "trajectory is going in the right direction, and Biden at least is claiming that he is going to support more criminal justice reform efforts," Barkow said.

In the 1980s and 1990s, Biden sponsored and supported laws that created mandatory minimum sentences for certain drug-related crimes and increased funding for states to build prisons.  Two laws, the 1986 Anti-Drug Abuse Act and the 1994 Violent Crime Control and Law Enforcement Act, have gotten the bulk of the attention for the disproportionate impacts on the African American community....

Biden has called his role in passing tough-on-crime legislation a "big mistake," and in June he said concerns about the 1994 crime bill were "legitimate" during a virtual NAACP forum.  But he said people should base their opinion on his current actions and comments. Biden's plan if elected includes increased rehabilitation for formerly incarcerated people, creating a $20 billion grant program for states that eliminate mandatory minimums for nonviolent crimes, decriminalizing the use of marijuana and eliminating sentencing disparities between crack and powder cocaine....

Barkow said she hopes if Biden wins, he appoints a new crop of U.S. attorneys and that people who are appointed to sentencing commissions and federal judgeships are from the public defense and civil liberties sector, because bringing that side of the system into the fold is likely to result in better criminal justice reform.... Although she is confident Biden would be more in favor of criminal justice reform than Trump, Barkow said if Biden doesn't take responsibility for the mistakes he's made in the past and commit to using his clemency powers, it will show there were "no lessons learned."

There is so much more to the criminal justice records of both these men, this story only really scratches the surface (though does so well). I am hopeful that these topics get significant attention in the upcoming debates, in part to get both candidates on the record promising to do more in this arena.

Highlighting disorder under an administration trying to lay claim to "law and order"

Miriam Aroni Krinsky and Roy L. Austin, Jr. have this notable new Hill commentary headlined "Bad law and failed order." I recommend the piece in full, and here are excerpts:

As the Republican National Convention plays out this week, a public service warning to all Americans: Don’t buy the hype you are hearing when it comes to crime in America....

First, we must level-set.  More than 178, 000 people in the United States have died from COVID-19 in the last nine months, and that number is likely an undercount.  On the other hand, in 2018, the last full year of available data, there were 16,214 homicides in the U.S. — less than 10 percent of the deaths from a virus this president has largely ignored.  In fact, homicide is not even in the top 10 causes of death in America....

The average number of annual homicides under President Obama (15,177) was more than 1,000 fewer than under President Trump (16,754).  At the same time, Trump has overseen a dramatic increase in hate crime.  In Trump’s two years for which data is available, there were 7,175 and 7,120 hate crimes — significantly more than in any year that President Obama was in office.  And police officers have statistically been no safer from felonious death under Trump (50 per year) than under Obama (51).

This administration’s hypocrisy over local rule must also be examined.  President Trump, Attorney General William Barr and their allies regularly attack reform-minded prosecutors and encourage federal intervention.  But these local prosecutors were elected by their communities explicitly because of their commitment to reform the system.  Yet, when it comes to COVID-19, where federal leadership is critical, this administration hypocritically insists on deferring to local rule....

What these reform-minded prosecutors understand is that past “tough on crime” practices didn’t work.  For more than two decades, regardless of what party has held the presidency, homicide numbers have remained at historic lows. Despite annual state and local law enforcement and corrections spending of close to $200 billion, the homicide rate has barely moved and the clearance rate for homicides and other crimes remains pathetically low. The number of people law enforcement officers annually kill — more than 1,000 — also remains stubbornly consistent.

Despite the Trump administration’s attempt to spread fear among suburban voters, we know that we can significantly reduce the footprint of law enforcement while also enhancing community safety and constitutional policing.  In New York City, there were 685,724 police stops in 2011.  From 2014 through 2017, that number was below 50,000, and the number of homicides and violent crimes trended down significantly throughout that period.

While under a federal consent decree, New Orleans had its lowest homicide numbers in decades. While it is too early to determine whether we are seeing any significant uptick in violent crime, the economic consequences of Trump’s failed COVID-19 response, his refusal to address the proliferation of firearms and his encouragement of police violence would be the most likely causes.

Those fighting for dramatic changes to our criminal system recognize that, to truly enhance public safety, we must address underlying societal problems and fortify community trust.  We must treat substance use disorder as the public health issue that it is.  We must ensure people have jobs paying decent wages.  We must reduce homelessness and provide quality, affordable housing.  We must be smarter about education spending and eliminate school police who propel Black and Brown kids into the justice system.  We must stop the disparate searches, arrests, detention, use of force and incarceration of people of color.  And we must not ignore racism in all systems, because only when there is equality and justice will there be safety.

"The RNC Can't Figure Out Where It Stands on Criminal Justice Reform"

The title of this post captures my own thinking about the somewhat confusing messages being delivered so far from the Republic convention (after the Democratic convention, sadly, barely discussed the issue).  The title of this post is also the headline of this effective new Reason piece by C.J. Ciaramella, which includes these passages:

Speakers at the first night of the 2020 Republican National Convention tried to navigate two competing messages on the criminal justice system.  One was that Joe Biden was an architect of mass incarceration and lock-em-up policies, which Donald Trump rightfully rolled back.  The other message was that only Republicans will stand up for police and the law.

Sen. Tim Scott (R–S.C.), the only black Republican in the Senate, assailed Joe Biden for his role in the 1994 crime bill and creating sentencing disparities between crack and powder cocaine. "Trump fixed many of the disparities that Biden created and made our system more fair and just for all Americans," Scott said, referring to the passage of the 2018 FIRST STEP Act.  Georgia Democrat Vernon Jones, venturing into hyperbole, claimed that Trump "ended once and for all the policy of incarceration of black people." (Although the legislation did result in the release of several thousand federal inmates, it did not abolish the federal prison system, Reason regrets to report.)

But at the same time that speakers were lauding Trump for criminal justice reforms that rolled back some of the laws that Biden helped pass, they were making constant references to riots, violent criminals being let loose on the street, and the threat of antifa mobs coming to your suburban neighborhood once the Marxist Democrats defund the police....

Backing the blue has been one of the centerpieces of Trump's "LAW AND ORDER!" reelection campaign.  Trump's campaign released a 2nd term agenda Sunday night, seeking to put to rest questions of what exactly, if anything, the president and Republicans stand for.  The list of about 50 bullet points includes five under the heading "Defend Our Police."

• Fully Fund and Hire More Police and Law Enforcement Officers
• Increase Criminal Penalties for Assaults on Law Enforcement Officers
• Prosecute Drive-By Shootings as Acts of Domestic Terrorism
• Bring Violent Extremist Groups Like ANTIFA to Justice
• End Cashless Bail and Keep Dangerous Criminals Locked Up until Trial

The Republican Party decided to forgo releasing a party platform this year, instead simply saying it supports Trump's agenda.  So this thin gruel, along with speeches at this week's RNC, are what constitute the Republican positions on criminal justice....

Although it will probably come to nothing but more culture war fodder, the inclusion of a pro-cash bail item in Trump's 2nd term agenda is a clearer sign of the Trump administration's priorities on criminal justice than a bill signed two years ago.

Should we expect to hear much on criminal justice reform during the Democratic National Convention?

This evening marks the start of the Democratic National Convention, and I am unsure if its virtual nature makes me more or less likely to watch a lot of it. But I am sure that I will be eager to hear whether and how criminal justice issues are discussed. The salience of criminal justice reform issues seems to be growing every quadrennial, and heightened concerns about both racial justice and gun violence would seem to ensure that both parties will be discussing crime and punishment during their nominating events.

Here is a partial round-up of recent pieces I have seen about the Democratic ticket and criminal justice issues as we enter the final phase of the 2020 campaign:

• From Fox News, "Kat Timpf: Biden-Harris on criminal justice – what they have in common may surprise you"

• From The Hill, "Black Lives Matter movement to play elevated role at convention"

• From Mic, "'We're out here": Formerly incarcerated activists are bringing their voices to the DNC"

• From New York magazine, "The ‘Tough on Crime’ Ticket"

Some on many prior related post:

• Am I crazy to think Joe Biden's pick of Senator Kamala Harris for his running mate bodes well for federal criminal justice reform? 
• Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force 
• Notable criminal justice reform discussion in draft 2020 Democratic Party Platform 
• A few interesting accounts of Joe Biden on criminal justice 
• Might the 2020 campaign bring back "law and order" as a political wedge issue? 
• Progressive groups demand that Joe Biden "put forward a transformative and comprehensive policing and criminal justice platform"
• Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice" (from July 2019)
• Senator Kamala Harris releases her plan "to fundamentally transform our criminal justice system" (from September 2019)

Am I crazy to think Joe Biden's pick of Senator Kamala Harris for his running mate bodes well for federal criminal justice reform?

As reported in this AP piece, headlined "Biden selects California Sen. Kamala Harris as running mate," Joe Biden has finally made his VP choice. And, perhaps unsurprisingly, my Twitter feed is already chock full of criminal justice reform advocates lamenting various aspects of Senator Harris's criminal justice reform record.  Though I understand the basis for these criticisms, I have been rooting for Harris to get the nod because I think she may have the greatest interest and greatest ability to help advance federal criminal justice reform of any of the folks Biden was seriously considering for the VP slot.

Though many had hoped she would be significantly more progressive while serving as California's Attorney General, Harris's track record and experience in that role will surely give her considerable insights and credibility on various issues if and whenever she gets a chance to advance reforms from the VP's office.  Moreover, since her time in the U.S. Senate, Harris has been quite vocal about the need for criminal justice reform and has likely built many relationships with Senators on both sides of the aisle that might enable her to play an important role in building bipartisan support for various reform initiatives.

Most fundamentally, I want to believe that Senator Harris is likely to be among those most likely to be seriously committed to making progress on criminal justice reform. Someone like Susan Rice would likely be most concerned with foreign affairs in the VP role, and someone like Elizabeth Warren would likely to be most concerned with economic issues.  Harris surely will be and will need to be concerned with lots of issues if she is elected as VP, but I have an inkling that she will really want to help advance some form of federal criminal justice reform early in her tenure.

Last but not least, I can think of at least one notable former California AG who ended up having an extraordinary impact on criminal justice reform (and lots more) after being picked for an important nation position.

Some prior posts on Kamala Harris:

• Senator Harris and Representative Jeffries write to AG Barr to express "concern about the process for transferring incarcerated individuals to home confinement" (from 2020)
• Senator Kamala Harris releases her plan "to fundamentally transform our criminal justice system" (from 2019)
• Senators Orrin Hatch and Kamala Harris write to AG Jeff Sessions to push for more medical marijuana research (from 2018)
• Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform (from 2018)
• Senators Kamala Harris and Rand Paul make the case for bail reforms (from 2017)
• Interesting review of the (too cautious?) work of California's Attorney General (from 2014)

Can someone send Prez candidate Kanye West the Booker ruling making the federal sentencing guidelines advisory?

The question in the title of this post is part of my reaction to seeing the criminal justice items appearing on this quirky 10-point platform coming from quirky presidential candidate Kanye West.  Though I am inclined to dismiss West's candidacy as a stunt, i believe he will be appearing on some state ballots.  And so here are two of his platform points addressing criminal justice concerns:

5. Reform the legal system to provide true justice, equitable for all citizens, regardless of race or ability to defend oneself in court.  Recognize the disparity in verdicts and prison sentences, caused by the lack of financial resources or legal assistance.

There will not be differing weights and differing measures.  Proverbs 20:10

6. Reform the approach to policing in a manner that treats all Americans the same, regardless of race, color, or ethnicity.  Refocus police forces on real crime.  Eliminate federal sentencing guidelines that tie the hands of judges, resulting in ridiculous sentences for the most minor offenses.

We will speak for those who cannot speak for themselves.  Proverbs 31:8

If the reference here to "federal sentencing guidelines" was instead to "federal mandatory minimum statutes" it would be accurate to lament how they can "tie the hands of judges, resulting in ridiculous sentences for the most minor offenses."  Recall, for example, the case of Edward Young serving a 15-year mandatory minimum Armed Career Criminal Act sentence for the crime of possessing seven shotgun shells in a drawer.  But, as most readers surely know, since the 2005 Booker ruling made the federal sentencing guidelines advisory, these guidelines no longer formally "tie the hands of judges" (though they certainly still influence lots of judges at sentencing).

Notable criminal justice reform discussion in draft 2020 Democratic Party Platform

As reported in this NPR piece, "Democrats met remotely Monday afternoon to approve a lengthy policy platform that seeks to balance the interests of the Democratic Party's more moderate and liberal factions."  Here is a bit more about the meeting and its product:

The virtual meeting came three weeks ahead of what will be one of the strangest party conventions in U.S. history: No delegates and few Democratic dignitaries will travel to Milwaukee to nominate former Vice President Joe Biden to be the party's standard-bearer. Instead, the convention will be held mostly remotely, with only Biden and a few other speakers appearing from Milwaukee.

The draft platform, released last week, draws heavily from a report issued this month by joint task forces organized by Biden and his onetime campaign rival, Vermont Sen. Bernie Sanders. It tries to bridge the gap between Sanders' progressive politics and Biden's more moderate approach to governing.

The criminal justice discussion and recommendations, which appear at pp. 32 to 35 of this 80-page draft DNC platform, includes a number of reform proposals that track ideas and language emerging from the 110-page Biden-Sanders Unity Task Force recommendations discussed here.  Here are some sections that should be of special interest to sentencing fans:

Democrats know we can end the era of mass incarceration and dramatically reduce the number of Americans held in jails and prisons while continuing to reduce crime rates, which have fallen steadily from their peak nearly three decades ago....

A growing number of states have recognized it is unjust — and unjustifiable — to punish children and teenagers as harshly as adults. We believe that if you aren’t old enough to drink, you aren’t old enough to be sentenced to life without parole. The federal government will incentivize states to stop incarcerating kids, and develop community-based alternatives to prison and detention centers for youth and invest in after-school programs, community centers, and summer jobs to provide opportunities for young people at risk....

It is past time to end the failed “War on Drugs,” which has imprisoned millions of Americans — disproportionately people of color — and hasn’t been effective in reducing drug use. Democrats support policies that will reorient our public safety approach toward prevention, and away from over-policing — including by making evidence-based investments in jobs, housing, education, and the arts that will make our nation fairer, freer, and more prosperous....

Substance use disorders are diseases, not crimes.  Democrats believe no one should be in prison solely because they use drugs.  Democrats will decriminalize marijuana use and reschedule it through executive action on the federal level.  We will support legalization of medical marijuana, and believe states should be able to make their own decisions about recreational use.  The Justice Department should not launch federal prosecutions of conduct that is legal at the state level.  All past criminal convictions for cannabis use should be automatically expunged.  And rather than involving the criminal justice system, Democrats support increased use of drug courts, harm reduction interventions, and treatment diversion programs for those struggling with substance use disorders....

Sentencing decisions should be based on the facts of each case, including the severity of the offense and individuals’ circumstances. Democrats support allowing judges to determine appropriate sentences, which is why we will fight to repeal federal mandatory minimums, incentivize states to do the same, and make all sentencing reductions retroactive so judges can reconsider past cases where their hands were tied.  We believe it is long past time to end the federal sentencing disparity between crack and powdered cocaine, which has contributed to the disproportionate imprisonment of people of color.  And Democrats continue to support abolishing the death penalty....

Democrats are proud that the Obama-Biden Administration commuted the sentences of more than 1,700 people serving unjust sentences following thorough review of their individual cases, and we support the continued use of the President’s clemency powers to secure the release of those serving unduly long sentences.  We denounce President Trump’s inappropriate use of clemency to help his friends and political cronies avoid justice.  We also support establishing an independent clemency board to ensure an appropriate, effective process for using clemency, especially to address systemic racism and other priorities.

Democrats support ending the use of private prisons and private detention centers, and will take steps to eliminate profiteering from diversion programs, commercial bail, electronic monitoring, prison commissaries, and reentry and treatment programs.  Democrats believe prisoners should have a meaningful opportunity to challenge wrongful convictions and unconstitutional conditions in prisons. We also believe that too many of our jails and prisons subject people to inhumane treatment, and will work to end practices like solitary confinement for adults and juveniles and ban the use of restraints on pregnant federal inmates.  Incarcerated people must not be denied access to vital medical care or unnecessarily exposed to disease, as they have been during the COVID-19 pandemic.  And Democrats will pursue a holistic approach to rehabilitation, increasing support for programs that provide educational opportunities, including pursuing college degrees, for those in the criminal justice system, both in prison and upon release.

Democrats believe in redemption.  We must deepen our commitment to helping those who have served their time re-enter society, earn a good living, and participate in our democracy as the full citizens they are.  We will aim to ensure access to transitional housing for returning citizens, support expanded access to mental health and substance use treatment, and will stop the practice of reincarcerating people for technical violations of probation or parole. Democrats support federal and state efforts to “ban the box” and will make it easier for returning citizens to access work opportunities through the Job Corps.  The formerly incarcerated should not be blocked from exercising their voting rights or accessing public services, including Pell Grants and nutrition assistance, available to other free citizens of the United States.  Continuing to punish a person after they have rejoined the community is both cruel and counterproductive.

There are lots of consequential (and politically and practically challenging) reforms being proposed here, ranging from pledging to try to do away with the death penalty and all mandatory minimum sentencing provisions to significant marijuana reforms to the creation of a clemency board to making "all sentencing reductions retroactive."  If the Democrats could achieve even a portion of what's called for in this document in the coming years, it would make for a truly historic period in federal criminal justice reform.

And yet, though I like a lot of what I see here, I am still sad some of the most interesting aspects of the Biden-Sanders Unity Task Force recommendations being left out.  Specifically, that document called, inter alia, for "issu[ing] new federal guidelines that advise prosecutors not to overcharge cases in order to coerce plea deals, or to pursue harsher sentences in order to penalize citizens for exercising their right to a jury trial"; for "encourag[ing] states to invest tax revenue from legal marijuana industries to repair damage to Black and brown communities hit hardest by incarceration"; for "task[ing] the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation"; for "creat[ing] a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible." 

A number of progressives were concerned that the Biden-Sanders Unity Task Force recommendations were too moderate on a number of matters, and it seems that this draft 2020 Democratic Party Platform is reining in the reform vision and ambition still further at least in the criminal justice arena.  That said, both the language and the proposals of this document are far more far-reaching and reform-minded than any comparable document in recent decades.  Though not as bold as some might hope, the fundamental boldness of this draft platform should not be underappreciated.

Prior related post:

• Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force 

Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force

As reported in this NPR piece, a "joint effort by former Vice President Joe Biden and Vermont Sen. Bernie Sanders to unify Democrats around Biden's candidacy has produced a 110-page policy wish list to recommend to the party's presumptive presidential nominee."  Here is a bit more context:

The policy document [available here] — the work of six joint task forces appointed by Biden and Sanders in May — would give the former vice president a road map to that goal. "The goals of the task force were to move the Biden campaign into as progressive a direction as possible, and I think we did that," Sanders told NPR. "On issue after issue, whether it was education, the economy, health care, climate, immigration, criminal justice, I think there was significant movement on the part of the Biden campaign."...

Biden's campaign has yet to publicly commit to doing anything other than "reviewing" the recommendations. If he adopts them, the recommendations would shift Biden to the left, but they would not completely transform the platform he's been running on for more than a year.

The criminal justice discussion and recommendations, which are lengthy and appear at pp. 6-10 and 56-62 of this huge document, cannot be easily summarized. But these prosecutorial, sentencing and rentry reform recommendations are among the ones I find most notable and salutary:

Federal Prosecutorial Guidelines: Immediately withdraw the Trump Administration’s guidance advising prosecutors to pursue the harshest penalties possible, even for low-level offenses. Reinstate the Obama-Biden Administration's Smart on Crime Initiative, and issue new federal guidelines that advise prosecutors not to overcharge cases in order to coerce plea deals, or to pursue harsher sentences in order to penalize citizens for exercising their right to a jury trial....

Support Progressive Prosecutors: Support new state prosecutors through funding and technical support in their efforts to ensure public safety while reducing incarceration....

Marijuana: Decriminalize marijuana use and legalize marijuana for medical purposes at the federal level.  Allow states to make their own decisions about legalizing recreational use. Automatically expunge all past marijuana convictions for use and possession.  Lift budget rider blocking DC from taxing and regulating legal marijuana and remove marijuana use from the list of deportable offenses.  Encourage states to invest tax revenue from legal marijuana industries to repair damage to Black and brown communities hit hardest by incarceration.

Support Diversion Programs: Reduce criminal penalties for drug possession and support increased use of drug courts and treatment diversion programs instead of incarceration for those struggling with substance use disorders.

Death Penalty: Abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example.

Mandatory Minimums: Empower judges to determine appropriate sentences, by fighting to repeal mandatory minimums at the federal level and give states incentives to repeal their mandatory minimums.

Retroactive Reforms: Make all sentencing reforms retroactive to allow for individualized resentencing.

Crack/Cocaine Sentencing Disparity: End the federal crack and powder cocaine disparity in sentences, and make the change retroactive.

Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds.  Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences.

Compassionate Release: Reinvigorate compassionate release so that the sick and elderly are transitioned out of incarceration so long as they do not pose a public safety risk....

Sentence Length and Early Release: Task the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation.  The Commission should make recommendations regarding early release options, including expanding good time credits, reinstating federal parole, and creating a “second look” mechanism permitting federal judges to reevaluate sentences after a certain amount of time served.  Any such options should use a systematic, evidence-based approach that reduces risks to public safety, prevents racially disparate implementation, reduces the total number of people under federal custody and supervision, and limits the duration and conditions of supervision....

Removing barriers to reentry: Remove restrictions on access to public housing, employment, occupational licenses, driver’s licenses, and public benefits.  Create a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible.  Include recommendations for reforming parole and probation, including preventing reincarceration for technical violations, as well as expungement and sealing of convictions.

Was Prez Trump's real political mistake not going bigger on criminal justice reform?

The question in the title of this post is prompted by this Axios piece headlined "Scoop: Trump regrets Kushner advice."  Here are some excerpts:

President Trump has told people in recent days that he regrets following some of son-in-law and senior adviser Jared Kushner's political advice — including supporting criminal justice reform — and will stick closer to his own instincts, three people with direct knowledge of the president's thinking tell Axios.

Behind the scenes: One person who spoke with the president interpreted his thinking this way: "No more of Jared's woke s***." Another said Trump has indicated that following Kushner's advice has harmed him politically.

Why it matters: This could be the final straw for federal police reform legislation this year, and it could usher in even more incendiary campaign tactics between now and November.

Details: The sources said the president has resolved to stick to his instincts and jettison any policies that go against them, including ambitious police reform.

• Trump dipped his toe into police reform under pressure after a Minneapolis police officer killed George Floyd — with an executive order that activists considered toothless — but he will likely go no further to restrain law enforcement officers, according to senior administration officials.
• Trump has made clear he wants to support law enforcement unequivocally, and he won't do anything that could be seen as undercutting police....

• In response to this reporting, White House press secretary Kayleigh McEnany said in a statement, "President Trump is very proud of the historic work that he's done to benefit all communities.  The First Step Act made historic strides toward rectifying racial disparities in sentencing while his executive order to secure America's streets works with our nation's heroic police officers to ensure we have safe policing and safe communities."...

Between the lines: Trump never really wanted criminal justice reform, according to people who have discussed the subject with him privately.  He's told them he only supported it because Kushner asked him to.  Though he has repeatedly trumpeted it as a politically useful policy at times.

• Trump now says privately it was misguided to pursue this policy, undercutting his instincts, and that he probably won't win any more African American support because of it.
• "He truly believes there is a silent majority out there that's going to come out in droves in November," said a source who's talked to the president in recent days.

Anyone who has followed Prez Trump through the years should not be surprised by reporting that he has never been a real fan of criminal justice reform or that he is eager to praise and promote the police.  But Prez Trump did play a key role in getting the FIRST STEP Act enacted back in 2018 and it has seemed his campaign had wanted to make this fact a significant talking point in the 2020 political season.  But, in light of Prez Trump's poor recent poll numbers and his disaffinity for bold racial justice efforts, this story suggests he may be giving up on the prospect of securing any political advantage from criminal justice reform efforts.

But, as the question in the title of this post is meant to suggest, I think Prez Trump may be getting little political credit for criminal justice reform because he failed to really go big and because his frequent "tough" talk eclipses his reform efforts.  Had Prez Trump pushed dramatic and historic reforms — by, say, advocating for federal marijuana reforms and pushing for a federal expungement statute and creating a clemency council in the White House — he might well have burnished a real reputation as a real reformer.  And if Prez Trump stressed how these kinds of reforms advanced racial justice and racial equity in our criminal justice system, I really think he could have secured significant political benefits from being much more progressive on these issues than Joe Biden has historically been.

"Investing in Failure: 2020 Ballot Initiative to Repeal Justice Reform Would Come at a High Cost to Californians"

The title of this post is the title of this recent report from the Center on Juvenile and Criminal Justice making the case against a ballot initiative before California voters this year.  Here is the report's introduction:

In November 2020, Californians will vote on a ballot initiative titled Restricts Parole for Non-Violent Offenders.  Authorizes Felony Sentences for Certain Offenses Currently Treated Only as Misdemeanors.  Initiative Statute (“the initiative”), which would roll back key elements of the state’s recent justice reforms, including Public Safety Realignment, Proposition 47, and Proposition 57 (AB 109, 2011; Prop 47, 2014; Prop 57; 2016; SOS, 2018).  In recent years, the Center on Juvenile and Criminal Justice (CJCJ) has analyzed the effects of other major reform initiatives, including the “Three Strikes” law reform, Proposition 47, and Proposition 57 (CJCJ, 2008; 2011; 2014; 2014a; 2014b; Ridolfi et al., 2016; 2016a).  This report considers the current initiative’s effects on budgets, jail and prison populations, and crime rates.  Our analysis suggests that the initiative’s passage could siphon scarce state resources and increase populations in jails and prisons to critical levels.

Progressive groups demand that Joe Biden "put forward a transformative and comprehensive policing and criminal justice platform"

As reported in this Hill piece, dozens of "liberal groups have signed on to a letter warning presumptive Democratic presidential nominee Joe Biden that he could lose the November election to President Trump if he doesn’t adopt more progressive policing policies." Here is more:

The letter, which is signed by leading national progressive groups, including the Working Families Party, Our Revolution and Black Voters Matter, urges Biden to adopt a 21-page policy proposal released by The Movement for Black Lives to promote reducing incarceration and scaling back police forces across the country.

The groups are also asking Biden to drop his recent proposal to add $300 million in funding for the Community Oriented Policing Services (COPS) program, which would hire and train additional police officers to patrol within the communities where they live.

“We make these demands first and foremost because we seek justice for George Floyd and Breonna Taylor — as well as all the other Black lives lost — and policies like these are what justice looks like in practice,” the letter says. “But we also make them with an eye toward the November election. … You cannot win the election without the enthusiastic support of Black voters, and how you act in this moment of crisis will play a big role in determining how Black voters — and all voters concerned with racial justice — respond to your candidacy. A ‘return to normalcy’ will not suffice,” they wrote.

The progressive groups were scathing in their assessment of Biden’s record on criminal justice issues. “In the course of your political career, you have designed and endorsed policies that have significantly exacerbated these problems,” the letter states. “As a Senator, you not only supported, but in many cases authored and championed laws that expanded mass incarceration, increased police powers, and exacerbated racial disparities in surveillance and sentencing. These laws … are a part of the history that has led us to this moment, and their ongoing fallout has contributed to the outpourings of grief and anger we are seeing today,” they wrote.

The full letter, which is datad June 11, is available at this link. 

A few related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration (from this month)
• A few interesting accounts of Joe Biden on criminal justice (from this month)
• Might the 2020 campaign bring back "law and order" as a political wedge issue? (from Jan 2020)
• Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice" (from July 2019)

You be the political consultant: Should Joe Biden release a SCOTUS short-list?

I continue to think that then-candidate Donald Trump's decision in May 2016 to release a list of people he would consider as potential Supreme Court appointments was a quite clever and consequential campaign strategy.  Among other political benefits, the list honored and vindicated the decision by Senate Republicans to refuse of consider then-Prez Obama's nomination to the Court and reminded voters that the first critical act of whomever was to be elected in 2016 was to reshape the composition of SCOTUS. 

As Joe Biden looks to take over the role of nominating Supreme Court Justices, I know I would like to see him produce some kind of SCOTUS short-list.  As I have said before, as a court-watcher and a voter, it can be quite informative and important to get a view of what kinds of individuals a potential President would expect to appoint to our highest court.  But this new Hill article, headlined "Democrats warn Biden against releasing SCOTUS list," details that Biden's political allies are not keen on him taking a page from the candidate Trump playbook:

Senate Democrats are warning former Vice President Joe Biden against releasing a list of potential Supreme Court picks. Then-candidate Trump, in 2016, released a list of names he said he would pick from to fill a Supreme Court vacancy, and Biden is facing calls from activists on both the right and left to do the same.  But several Democratic senators are warning Biden, who previously chaired the Judiciary Committee, against doing so.

Sen. Dick Durbin (D-Ill.), the No. 2 Senate Democrat and a member of the panel, told The Hill that Biden should not emulate Trump, who broke political norms with his list. “I sincerely hope he does not do that,” Durbin said.  “We ought to go back to the regular order of things.  If and when vacancies occur he can look for the very best person at that moment.”...

Senate Minority Leader Charles Schumer (D-N.Y.) told reporters during a conference call that he also did not think Biden should release a list. “I have a lot of faith in Joe Biden. ...I’ve talked to him a little bit about this and I think he understands the gravity of the issue,” Schumer said.

The push for Biden to provide more details, and specific examples, of who he might pick for the Supreme Court comes as the federal judiciary is viewed as a key issue for the Democratic base in the wake of Republicans changing the rules for confirming Supreme Court nominees in 2017 and a controversial, vitriolic confirmation battle over Justice Brett Kavanaugh in 2018....

Biden has signaled he’s concerned about the courts’ direction, and that the GOP could seek to keep filling seats until the end of the year even if Trump loses reelection. During a NAACP event, Biden said he was “very concerned” that Senate Majority Leader Mitch McConnell (R-Ky.) was going to pressure older judges to retire....

His campaign didn’t respond to a request for comment on Thursday about calls for him to release a list of who he would pick from if he wins the White House and there is a Supreme Court vacancy.  Two Supreme Court Justices, Ruth Bader Ginsburg and Stephen Breyer, are in their 80s.  Two others, Clarence Thomas and Samuel Alito, are in their 70s.

Biden has committed to naming a black woman to the Supreme Court, which would mark a historic first. “I commit it that if I’m elected president and have an opportunity to appoint someone to the courts, I’ll appoint the first black woman to the courts. It’s required that they have representation, now it’s long overdue,” Biden said earlier this year during a debate against Sen. Bernie Sanders (I-Vt.).  Biden said during an interview with ABC’s “The View” that there were at least four women who he viewed as qualified to serve on the Supreme Court, but did not name names.

But some progressives say specifying a list of who he would pick from could be an olive branch to voters who might be wary of him as the party’s standard bearer.  “We think he should take the next step and say who those people are, so we have a more concrete sense of who he would nominate, sort of what the values are that he hopes those people might bring to the Supreme Court,” Christopher Kang, the chief counsel for Demand Justice, told The Hill in a recent interview.

Kang added it would be “reassuring” to get more details on who Biden is considering. “I think it could be an opportunity for him to really help consolidate the Democratic base by showing that the people he’s thinking about are people who have not only led exemplary legal careers but are inspiring for the work that they’ve done,” he said.

It’s not just progressives who want to see who Biden could be looking at for the Supreme Court.  Carrie Severino, the president of the conservative Judicial Crisis Network, wrote in an op-ed that Biden would rather “prefer to play hide the ball” than say who he will nominate.  “Independents and the right would be just as interested to know who Biden has in mind. If he becomes President Biden, they fear the Supreme Court may be radicalized, perhaps to deliver an America of the kind that Alexandria Ocasio-Cortez and the far left dream of,” she added, referring to the progressive New York House member.

Notably, neither Neil Gorsuch nor Brett Kavanaugh appeared on Donald Trump's initial SCOTUS short-list; these names were added later and that history highlights that Biden would not really be locking himself in to particular potential nominees with an initial list.  Most fundamentally, a short list would serve as a kind of statement of vision and values for the Supreme Court's future, and I think all voters benefit from getting a view of the types of people Biden would be inclined to seriously consider for the Court.  (And, of course, I am interested in seeing a list full of persons with backgrounds and legal careers suggesting they would be likely to help produce more and better criminal justice rulings from the Supreme Court.)

Because I am always interested in more transparency (and more blog material), I know I still would urge Biden to release a SCOTUS short-list ASAP.  But I would be eager to hear from any would-be (or actual) political consultants: do you think it would be politically wise for Joe Biden to release a SCOTUS short-list during his campaign?

Prior related post:

• Will Joe Biden release a SCOTUS short-list and will it excite criminal justice reformers? 

A few interesting accounts of Joe Biden on criminal justice

In the criminal justice arena, I have come to think of Joe Biden as a Zelig-like figure: out of a desire to fit in politically, Biden seems to be inclined to take on the criminal justice character of the era. For that reason, I expect he would prove to be somewhat reform-minded (though still pretty mainstream) were he to become President in 2021.  My framing and thinking here is reinforced by a number of new press articles on Biden and criminal justice:

From the AP, "Joe Biden says questions about 1994 crime bill are ‘legitimate’"

From CNN, "Biden repeatedly pushed bill in Senate that critics said would have made investigating police officers for misconduct more difficult"

From NPR, "Joe Biden Has Come A Long Way On Criminal Justice Reform. Progressives Want More"

From Slate, "The Protests Haven’t Changed Joe Biden Yet. They Will Change the Democratic Party."

While there are a lot of interesting elements to these pieces, I especially liked this portion of the NPR piece:

Chiraag Bains, who worked in the Department of Justice's Civil Rights Division during the Obama administration [and who] Bernie Sanders tapped to co-chair the criminal justice reform committee the Sanders and Biden campaigns set up at the end of their primary contest [wants more].  "It's not enough to speak to people's pain and utter the right words," said Bains, who emphasized he was speaking for himself, not the task force.

Bains said Biden's statements and speeches have been the right start and have been well-received — especially when contrasted to the president. "But we need a specific agenda and it needs to be bold," he said. "I do see that the vice president is moving that direction. I just think we need to do more."  Bains wants Biden to expand on already-announced proposals on ending mandatory-minimum prison sentences and ramping up the use of clemency.  He's also pushing for the restoration of federal parole and the legalization of marijuana, among other policies.

More clemency, eliminate mandatory minimums, restore federal parole and legalize marijuana is a pretty good accounting of my priority wish list for federal criminal justice reform.  If Biden were to champion all these reforms in the months ahead, I would need a better adjective for him than Zelig-like.

With his return to blogging, is Bill Otis no longer a potential nominee for the US Sentencing Commission?

Long-time readers should be familiar with the name Bill Otis, not only because he was for years a regular commentor on this blog, but also because he is a prominent former federal prosecutor who often prominently shared his (tough-on-crime) sentencing perspectives in many media.  We have not heard much from Bill in a few years; his recent quietness seemed a direct result of Bill being tapped to be one of Prez Trump's notable March 2018 nominations to the US Sentencing Commission. 

I surmise that when anyone is a Presidential nominee (or thought likely to be a nominee), it is considered good form for that nominee to stay relatively mum during the confirmation process.  And Bill Otis was not just any nominee: though usually only hard-core sentencing nerds pay much attention to USSC nominations, Prez Trump's entire slate of nominees, and especially the naming of Bill Otis, prompted considerable critical commentary from various sources (covered in posts here and here).  Perhaps in part because these nominees were controversial, the Senate never acted on them in 2018 and the nominations lapsed when the "old" Senate officially adjourned.  But, as noted in this post from January 2019, the folks at FAMM were so troubled by the notion of Bill Otis potentially being nominated again, they produced this press release and sent this long letter to Prez Trump "discouraging the re-nomination of William Otis to the U.S. Sentencing Commission." 

Because Bill Otis was remaining quiet through 2019 and early 2020 amidst all sorts of notable and high-profile federal sentencing stories (from Michael Cohen to Felicity Huffman to Paul Manifort to Roger Stone), I figured the folks at FAMM were right to think there remained a real possibility of Bill Otis being nominated again to the USSC.  But, to my surprise, yesterday Bill started blogging again at Crime & Consequences, and he now has posted these two lengthy new entries on the Flynn kerfuffle: "Five Bad Arguments for Gen. Flynn" and "The Winning Argument for Gen. Flynn."  I consider Bill a friend, and I have previously noted how Bill and I have spent considerable time disagreeing on many sentencing matters without being too disagreeable. 

Especially because the fate of the U.S. Sentencing Commission matters a lot more than the fate of one high-profile, white-collar defendant, I am struck more by the fact that Bill Otis is blogging again after a 27-month hiatus than about his latest posts.  And his blogging leads me to wonder, as my post title indicates, whether this tells us something important about potential future USSC nominations.  With the general election now just over five months away, perhaps everyone, including Bill, is now just assuming we will not get any new USSC nominations until 2021 and until after the 2020 election clarifies or recasts political thinking about federal sentencing law and policy.  But maybe there is even more to this story, and maybe even Bill will tell us in his blogging.  Stay tuned.

Prior related posts:

• Prez Trump makes (tough) nominations to US Sentencing Commission 
• Lots of notable reaction to Prez Trump's nominations to the US Sentencing Commission
• Another round of criticisms of Prez Trump's decision to nominate Bill Otis to US Sentencing Commission 
• FAMM writes extended letter to Prez Trump to "strongly discourage" re-nomination of Bill Otis to US Sentencing Commission 

"Voting in Jails"

The title of this post is the title of this notable new report by Nicole Porter at The Sentencing Project. Here is the report's overview:

Felony disenfranchisement laws bar millions of Americans from voting due to their felony conviction.  Among those excluded are persons in prison, those serving felony probation or parole, and, in 11 states, some or all persons who have completed their sentence.  While these disenfranchisement laws have been closely documented for years by advocacy organizations, academics, and lawmakers, the de facto disenfranchisement of people legally eligible to vote in jails has received less attention.

In local jails the vast majority of persons are eligible to vote because they are not currently serving a sentence for a felony conviction.  Generally, persons are incarcerated in jail pretrial, sentenced to misdemeanor offenses, or are sentenced and awaiting transfer to state prison.  Of the 745,0001 individuals incarcerated in jail as of 2017 nearly two-thirds (64.7%), or 482,000, were being held pretrial because they had not been able to post bail.  Of the 263,000 who were serving a sentence, the vast majority had been convicted of a misdemeanor offense that does not result in disenfranchisement.

Despite the fact that most persons detained in jail are eligible to vote, very few actually do.  Jail administrators often lack knowledge about voting laws, and bureaucratic obstacles to establishing a voting process within institutions contribute significantly to limited voter participation. Indeed, acquiring voter registration forms or an absentee ballot while incarcerated is challenging when someone cannot use the internet or easily contact the Board of Elections in their community.  In addition, many persons in jail do not know they maintain the right to vote while incarcerated, and there are few programs to guarantee voting access.

Problems with voting in jail disproportionately impact communities of color since almost half (48%) of persons in jail nationally are African American or Latino.  Other racial groups, including Native Americans and Asians, comprise about 2% of the jail population, or 13,000 persons as of 2017.

In recent years, some jurisdictions have adopted policies and practices to ensure voting access for persons incarcerated in local jails because of initiatives developed by jail leadership and advocacy organizations.  This report examines six programs designed to expand voting access for eligible incarcerated citizens.  The success and expansion of these efforts will improve democracy.

Will Joe Biden release a SCOTUS short-list and will it excite criminal justice reformers?

As revealed in this way back link, it was mid May 2016 when then-candidate "Donald J. Trump released the much-anticipated list of people he would consider as potential replacements for Justice Scalia at the United States Supreme Court."  Notably, neither Neil Gorsuch nor Brett Kavanaugh appeared on the first Trump SCOTUS short-list, but these names were added later and now they are fixed as part of the Trump Supreme Court legacy.

This recent CBS article, headlined "Democrats push Joe Biden to release Supreme Court short list and run on future court battles," highlights "calls for Biden to copy the playbook of then-candidate Donald Trump, who in May 2016 released a list of 11 people he would pick from to nominate to take the late Justice Antonin Scalia's seat."  Here are some excerpts:

Several lawyers and activists told CBS News that Biden, a former public defender, should run on protecting the popular liberal legacy of Ruth Bader Ginsburg.  Progressives warn if Biden is not elected, the Supreme Court's current 5-4 conservative tilt could balloon into a potential 7-2 majority if Ginsburg, 87, and  Stephen Breyer, 81, choose to retire or face greater health troubles....

Ginsburg is an enormously popular figure in the Democratic Party, a truth that has been evident throughout the Democratic primary process — her portrait is frequently seen beaming on colorful t-shirts and tote bags. Some suggest that by tying his campaign to protecting her legacy, Biden would also highlight his previous pledge to nominate the first black woman justice if he is elected.

Demand Justice, a progressive court reform group, already has a list of several women who they view as qualified, including NAACP Legal Defense Fund Director Sherrilyn Ifill and California Supreme Court Justice Leondra Kruger.

Other names floated to CBS News as potential court picks for Biden included federal court judges Kentanji Brown Jackson and Tanya Chutkan, both Obama appointees to the federal bench.

"Clinton and [Tim] Kaine really needed a third person on that ticket to really get out individuals who weren't that excited by them as a team, and I think Joe Biden kind of has the same issue going forward," Melissa Murray, law professor at New York University and host of the Supreme Court-focused podcast "Strict Scrutiny," told CBS News. "Imagine how much more energizing it would be to also pick someone [for SCOTUS] who would excite parts of the Democratic base."...

Asked about the likelihood of releasing a list of potential appointees, Biden's campaign did not directly respond and highlighted his history with the Supreme Court.

Long-time readers may recall, as detailed in this post from Feb 2016, that I was an advocate for Judge Ketanji Brown Jackson to be nominated by Prez Obama for the 2016 opening, in part because of her history as a public defender and her time as a member of the US Sentencing Commission.  I would continue to be excited to see her on any SCOTUS short list, and there are a number of women-of-color on the Demand Justice short-list that ought also excite folks eager to have more Justices who are more skeptical of the modern criminal justice status quo.

For those of us who follow closely the work of courts, I think it can be quite informative and important to get a view of what kinds of individuals a potential President would expect to appoint to our highest court.  I sincerely hope that Joe Biden does come out with a SCOTUS short-list before too long and that it includes people who seem likely to help produce more and better criminal justice rulings from the Supreme Court.

Great new Politico Magazine feature on "Justice Reform: The Decarceration Issue"

The Politico Magazine has a bunch of great new articles on criminal justice reform issued collected here under the heading "Justice Reform: The Decarceration Issue."  Here are the lengthy pieces under this heading with their full headlines:

Biden vs. Trump: Who’s the Actual Criminal Justice Reformer?: Suddenly, both the Republican and Democrat promise big changes. We matched their policies head-to-head, and asked experts for a reality check.

A Republican Crusader Takes on Oklahoma’s Prison Machine: In the state that locks up more of its citizens than any other, a former politician is using the ballot box—and some surprising alliances—to nudge his own party toward change.

How Oklahoma Popped Its Prison Bubble, In Charts: In 2016, Oklahoma incarcerated more people per capita than any other state. Then it began to bring those numbers down.

New York Tried to Get Rid of Bail. Then the Backlash Came. A national movement stalled by backlash politics gets some new wind at its back.

New questionnaire explores what criminal justice reforms Democratic candidates would prioritize

A couple of helpful folks have made sure I did not miss this new New York Times piece that helps thicken our understanding of what leading Democratic candidates for Prez consider the most pressing of their criminal justice reform proposals. The full headline of the piece provide an ideal teaser: "Quandary for 2020 Democrats: Which Criminal Justice Changes Get Priority?: The Democratic presidential candidates are united in seeking a major overhaul of the criminal justice system, but a new questionnaire asked them to choose what they would do first." I recommend the piece in full, and here is a taste:

Justice Action Network — a bipartisan coalition of bedfellows as strange as the Center for American Progress, a liberal think tank, and Grover Norquist’s Americans for Tax Reform, a conservative group — ... asked the Democratic candidates to identify, for instance, the first criminal justice legislation they would propose, the first executive action they would take, and their top priority among several bills pending in Congress.

Five of the six remaining candidates — all but Representative Tulsi Gabbard of Hawaii — completed the questionnaire, and the Justice Action Network shared their responses with The New York Times....

The candidates all spoke about criminal justice as a matter of racial justice, and most said that was the primary reason they supported an overhaul. They argued unanimously for aggressive new policies, not small steps....

The candidates focused heavily on changes to sentencing, such as reversing harsh mandatory minimums and expanding diversion programs to keep low-level offenders out of jail. Most indicated that a top priority would be to give states financial incentives to reduce incarceration: a direct repudiation of the 1994 crime bill, which gave incentives to increase incarceration....

Criminal justice has become a rare point of bipartisan consensus in recent years, leading to the passage in 2018 of the First Step Act, which expanded early-release programs, increased job training and changed mandatory minimums for nonviolent drug offenses. And that bill, a breakthrough at the time, has now become a floor.

The First Step Act “is now the marker of what a conservative reform is,” said Inimai M. Chettiar, legislative and policy director at the Justice Action Network. “So you see all of these candidates going way beyond that.”

Because most of the candidates support similarly expansive suites of policies, the survey pushed them to do something few politicians want to do: to grapple with the reality that presidents rarely pass an entire agenda in one fell swoop, and to identify the specific components of their plans that they believe will make the biggest difference.

Mr. Sanders and Ms. Warren said their first executive actions on criminal justice would be to end the federal use of private prisons, while Mr. Biden and Mr. Bloomberg said theirs would be to repeal directives from former Attorney General Jeff Sessions that require federal prosecutors to seek the harshest possible penalties.

Asked for their top priority among several bipartisan bills now in Congress, Mr. Biden and Mr. Bloomberg chose the REAL Act, which would let prisoners receive Pell grants for higher education. Ms. Warren’s priority was the Smarter Sentencing Act, which would reduce mandatory minimums for drug possession, while Ms. Klobuchar chose the For the People Act, which would restore voting rights for former prisoners.

Former NYC mayor Mike Bloomberg, on eve of his first Prez debate, releases full criminal justice reform plan

In this post from December, I noted this page on the campaign website of Mike Bloomberg that reported on "three criminal justice reform policy proposals" then announced by the then-new Democratic presidential candidate.  Unsurprisingly, that partial plan has not deflected criticisms of Bloomberg's record and past comments on criminal justice matters.  And, also unsurprisingly, Bloomberg has now announced more of a criminal justice platform via this piece headlined "Mike Bloomberg Expands Criminal Justice Reform Plan With Bold Initiatives to End Era of Mass Incarceration."  Here are excerpts (with emphasis and links in the original):

Commits $22.5 billion to reduce prison population by 50% by 2030, will slash youth incarceration by half in four years, and expands funding for public defenders

Invests $1 billion in programs to support young men of color and creates justice reclamation centers at historically black colleges and universities

Democratic presidential candidate Mike Bloomberg today released his comprehensive plan to restructure our country’s criminal justice system. On December 3, 2019, Mike released three key pillars of his criminal justice reform policy as the first policy announcement of his campaign.  In the 12 weeks since, the campaign and Mike have met with leaders, advocates, and activists to receive input and feedback, which culminates in today’s release of Mike’s full criminal justice reform platform. As president, Mike will end the era of mass incarceration by heavily investing federal resources to halve the prison population within the next decade, increase funding for public defenders, and confront deep-seated racial and economic inequities that fall largely on Black, Latino, and other underserved communities.

Mike’s plan promises to protect people at every touchpoint in the justice system, from innovative pre-trial efforts that stop the reliance on incarceration to addressing unjust and excessive sentencing in the courtroom, and from re-imagining our prisons as a place for rehabilitation to a new work program and robust services for people returning to their communities. Mike will also commit $22.5 billion over 10 years for reform at the state and local level, with a new Justice Reform Office at the Department of Justice to fund the most-needed reforms on a state-by-state basis....

Mike’s Plan to Reform America’s Criminal Justice System

The United States has a mass incarceration problem. The U.S. has 5% of the world’s people, yet confines nearly a quarter of the world’s prison population. America’s criminal justice system has dramatic racial disparities: Latino adults are three times more likely to be incarcerated than White adults, and Black Americans make up 13% of the U.S. population but are 40% of all incarcerated people. The system unfairly punishes people for their poverty, often further entrenching them in a vicious cycle of poverty and incarceration.

In Jackson, Mississippi last December, Mike pledged to prioritize juvenile justice, fund local violence interrupter programs, reform the bail system, and bring new re-entry and career-training programming to prisons. Mike’s full plan, announced today, will:

• Protect the public and rebuild community trust: Mike will invest in innovative community-led partnerships, focused deterrence programs and smart and just policing. Mike will sign a bill raising the standard for federal officers’ use of force, ensuring deadly force is used only when necessary to prevent serious injury or death — and will pressure states to enact similar statutes. He will require de-escalation and bias training, body-worn cameras and early intervention for police who present warning signs. He will promote independent police oversight boards, re-invigorate civil rights investigations to keep police accountable and make it a national priority to expand and analyze data on police use of force.
• Cut incarceration rates and re-imagine prison as a place for rehabilitation from day one: Mike will invest $22.5 billion to launch a Department of Justice reform hub to evaluate and fund state-level criminal justice reform efforts, set a goal to reduce incarceration by 50% by 2030 and cut crime across the U.S., and spread the use of alternatives to prison pioneered in New York City. Additionally, he will increase funding to improve health and safety in federal, state and local prisons, along with education and job training.
• Address injustice in the legal system: Mike will boost funding for public defense, end cash bail, court fines and punitive fees and roll back punitive sentencing practices. Public defense is underfunded in the states, leading to longer sentences and wrongful convictions. Mike will fund $2.5 billion over ten years for public defense – requiring grantees to have pay parity for defenders and prosecutors, as well as workload limits that ensure fair representation. He will also end federal cash bail, end court fines and punitive fees and propose new federal sentencing structure to reverse an overly punitive legacy. Mike’s plan will decriminalize possession and use of marijuana nationwide, commute any existing sentences and expunge any records.
• Help formerly incarcerated people re-enter society: Mike will start a federal work program for the formerly incarcerated, including providing employers with a multi-year tax incentive and expanding “ban the box initiatives.” He will bolster federal funding for re-entry services and also expand social services for children whose parents are incarcerated.
• Increase support and services for victims of domestic violence, gun violence, hate crimes and human trafficking: Mike will increase funding to build family justice centers, which provide holistic services for survivors of domestic violence—and make it easier for victims to seek justice. He will also re-authorize the Violence Against Women Act, with necessary improvements; eliminate the national rape kit backlog; start a national helpline for gun violence and make hate crimes and human trafficking a top federal priority.
• Invest in young men of color: Mike’s plan will invest $100 million annually to revive and sustain the My Brother’s Keeper Initiative as a federal program. Using the Neighborhood Equity and Opportunity Office (NEO), proposed in the Greenwood Initiative, Mike will launch a permanent funding stream to invest in young men of color. Building on the Young Men’s Initiative that Mike created as mayor, this national program will focus on creating opportunity while preventing entry into the criminal justice system. He will also establish a National Trauma-Informed Care Task Force to study the effects of early trauma – and to recommend practices to formalize the delivery of quality care across federal agencies that touch low-income families and justice-involved people.
• Create restorative justice centers at historically black colleges and universities (HBCUs): Mike’s plan also includes funding justice reclamation centers at HBCUs across the country. Mike will set up a network of justice reclamation as hubs of history and public education that will chronicle an era, create the conditions for healing based on the best social science and devise constructive strategies for policing, remediation and community involvement. These centers will be a collaborative place to gather existing expertise and develop best new solutions — with a special focus on restorative justice. The centers will partner with local My Brother’s Keeper projects, helping give communities the tools to drive meaningful criminal justice reform.

Given the recent buzz around the Roger Stone sentencing and Prez Trump's latest clemencies, as well as Bloomberg's first appearance on the Democratic debate stage and his "stop and frisk" record, I am thinking tonight's debate in Nevada is likely to include some (perhaps even a lot) of criminal justice issues.  Notably, Nevada is the first state to vote this season that has fully legalized marijuana, so that too could perhaps be a topic for tonight discussion.

Prior related post:

• New Prez candidate Mike Bloomberg releases new (partial) criminal justice reform proposals

Noting political import and impact of Prez Trump's Super Bowl ad touting criminal justice reform

This New York Times article, headlined "Trump and Kushner Saw Super Bowl Ad as Way of Making Inroads With Black Voters," provides more on the context and consequences of the criminal justice reform advertisement from the Trump campaign aired during the Super Bowl.  Here are excerpts:

In front of an audience of 102 million Super Bowl viewers Sunday night, Alice Marie Johnson, a 63-year-old African-American woman, became the unlikely face of President Trump’s re-election campaign.  In a 30-second spot that cost Mr. Trump’s campaign millions of dollars, Ms. Johnson’s face fills up the screen as she tearfully thanks “President Donald John Trump” for her early release from prison. Mr. Trump commuted her sentence in June 2018, after the reality television star Kim Kardashian West personally appealed to the president on her behalf.  Ms. Johnson had been serving a life sentence for a nonviolent drug conviction.

Even before the ad, Ms. Johnson was already something of a touchstone for Mr. Trump, who invited her to attend his State of the Union address last year and highlighted her story in his speech. But elevating the administration’s work on criminal justice reform to Super Bowl status was another effort by Mr. Trump’s son-in-law, Jared Kushner, to reach black voters.

The Johnson ad was made late last year and was tested with focus groups months in advance, aides said. Mr. Trump himself made edits to the spot and ultimately settled on it as the “most impactful” of a flight of ads he was given to choose from in the days leading up to the Super Bowl, people familiar with the process said.

Mr. Trump was not wrong: Salesforce data indicated that online, the ad featuring Ms. Johnson was the most talked about one of the game, and that most of the chatter around it was positive.

But privately, several senior Trump aides expressed skepticism of Mr. Kushner’s belief that broad numbers of black voters, whose views of the president are overwhelmingly negative, are persuadable. Running an ad aimed at black voters — which could also have the effect of reassuring white suburban women, a worrisome demographic for the campaign, that the president is not racist — was a change of strategy from Mr. Trump’s previous efforts to simply energize and turn out his base....

Mr. Kushner has been advising Mr. Trump that black voters can be converted into supporters if they are simply educated on his policies. Mr. Trump’s biggest challenge, Mr. Kushner has told people, is a “knowledge gap” on many of the president’s accomplishments, particularly on the issue of criminal justice reform, which Mr. Kushner has spearheaded....

Jessica Jackson Sloan, the national director of #Cut50, a prisoner advocacy group, said the ad was helpful to her work on the state level, regardless of any political advantage Mr. Trump was trying to achieve.  “We’ve heard many times what happened to this country when the Republican candidate for president was playing Willie Horton ads,” Ms. Sloan said, referring to an infamous ad in the 1988 presidential race that highlighted the story of a black man who had raped a white woman and assaulted her husband while free on a prison-furlough program supported by Michael Dukakis, the Democratic candidate.

“Regardless of what reasons he did it,” she added of Mr. Trump, “the fact we have a sitting Republican president campaigning on criminal justice reform is 180 degrees from where we’ve been in the past. It’s really going to help us with some of these Republican state legislatures.”

Prez Trump's reelection campaign premieres ad focused on criminal justice reform during Super Bowl

As reported in this Washington Times article, headlined "'Trump got it done': Trump's Super Bowl ad highlights criminal-justice reform," there was one especially notable ad during the big game for sentencing fans.  Here are the details and context:

President Trump’s reelection campaign aired a surprise TV ad on criminal-justice reform during the Super Bowl Sunday night featuring the president’s grant of clemency for former inmate Alice Johnson.

Trump campaign manager Brad Parscale contrasted the president’s leadership on criminal-justice reform with NFL players who previously knelt during the Star-Spangled Banner to protest injustices in the legal system. “President Trump strongly disagreed with how some in the NFL chose to disrespect our flag, our country, and the people who serve it, just to express their views of the criminal justice system,” Mr. Parscale said. “The Super Bowl is the perfect place to debut this ad, because it clearly communicates how President Trump expressed his concerns about the issue – he acted and he helped improve people’s lives.”

The 30-second spot in black and white showed Mrs. Johnson, a grandmother who is African-American, expressing jubilation and gratitude to Mr. Trump upon her release from prison after serving 21 years for a first-time drug offense....

The ad states that “politicians talk about criminal justice reform. President Trump got it done. Thousands of families are being reunited.” The campaign had kept the ad under wraps until it aired. The president’s re-election team also paid for a 30-second spot highlighting his efforts to keep America secure and prosperous.

Mr. Trump commuted the sentence for Mrs. Johnson in June 2018. Six months later, he signed into law the First Step Act, which is aimed at providing thousands of prison inmates with a second chance. The law provides inmates with opportunities to take part in vocational training, education, and drug treatment programs to help them gain their release and obtain jobs.

I think all supporters of criminal justice reform should find this ad heartening in the wake of some reports suggesting Prez Trump had soured on reform and viewed the issue now as a political liability (see here).  It seems that at least some folks on Prez Trump's reelection team view criminal justice reform as a winning political issue. 

At the same time, it is a darn shame that Prez Trump is promoting his clemency work when he has still granted relatively few commutations.  Regular readers likely recall that, back in 2018, Prez Trump talked grandly about considering thousands of clemency requests and Alice Marie Johnson potently advocated that the President free "thousands more" federal prisoners like her.  I never really expected Prez Trump to grants thousands of commutations, but I had hoped he would do many more than the six that he has done so far.

Prez candidate Tom Steyer releases his plan for "Transforming Criminal Justice"

Back in the fall, it seemed that nearly every week we would see a big new criminal justice reform plan coming from one of the Democratic candidates for President (and I have collected a lot of the posts with this plans below).  But, of course, as the first set of votes approach, we have seen more of these candidates dropping out than proposing big plan.  And yet, excitingly, this press release details that there is now at least one more new reform plan under the heading, "Tom Steyer Will End Cash Bail and School-to-Prison Pipeline: New criminal justice plan will end mass incarceration by focusing on prevention and rehabilitation."  Here is how the press release starts:

Presidential candidate Tom Steyer unveiled a plan to reform the criminal justice system to end mass incarceration breaking the school-to-prison pipeline and fixing the pay-to-play justice system. Steyer’s plan pursues aggressive reforms including doubling the juvenile justice program to keep kids out of prison, and ending the prison industrial complex by closing private prisons, abolishing cash bail and court fees. The plan would reduce the number of individuals entering the criminal justice system, prioritize rehabilitative efforts behind bars, and support individuals when they return to society.  

The full plan runs 17(!) detailed pages, with major section headings that include "Juvenile Justice," "Police Reform," "A Progressive Department of Justice," "Equal Access to Justice in Court," "End Cash Bail," "Release More Rehabilitated People," and "Ensure Returning Citizens Have A Second Chance." There are elements under all these heading that should be of interest to sentencing fans, though the sections on "Ending the War on Drugs" and "Sentencing Reform" and "Improve Prison Conditions" may be of special interest. Here are just a few items from these sections of the Steyer plan:

• End mandatory minimums and expand judicial discretion for non-violent drug offenders.  Mandatory minimum sentences have played a significant role in increasing mass incarceration by reducing the discretion that a judge has in sentencing an individual for a non-violent drug offense based upon their past record. Punishments should be proportional to the crime. Mandatory minimums reinforce racial prejudice in the system and do not increase public safety.  Tom supports the Smarter Sentencing Act, a bill that reduces mandatory minimum sentences for certain non-violent drug offenders and increases judicial review....

• Legalize marijuana use and expunge past records.  Policing marijuana use has led to too many unfair incarcerations and predominantly impacted communities of color. Tom endorses the MORE Act, a bill that will deschedule marijuana at the federal level and let states set their own policies.  This bill will also expunge past records and provide individuals who served time for marijuana convictions the opportunity to participate in the legal market, including access to training programs....

• Eliminate mandatory minimums for non-violent crimes.  As president, Tom will work to eliminate mandatory minimums for all federal non-violent crimes and allow judges more discretion for more serious crimes. And because most people are incarcerated at the state and local level, his administration will incentivize states to eliminate mandatory minimums as well.  Mandatory minimums have been responsible for much of the increase in incarceration.  Tom endorses the Justice Safety Valve Act, a bill that allows judges to use discretion and depart from mandatory minimums when appropriate....

• Revitalize and reform the Sentencing Commission. T om will fully staff the Sentencing Commission with appointees who will strive for a more progressive criminal justice system.  He will direct the Commission to conduct additional studies on mass incarceration and recidivism and update sentencing guidelines to reflect those priorities.  Tom will double the Commission’s funding so it can offer technical assistance to states.

• Eliminate the death penalty.  Tom believes it is a moral, practical, and long overdue imperative to end the death penalty.  He believes these individuals should instead serve life sentences without probation or parole. Tom will abolish the death penalty at the federal level and encourage states to do the same.

A few of many prior related posts:

• Senator (and Prez candidate) Cory Booker introduces "Next Step Act of 2019" with wide array of sentencing and criminal justice reforms 
• Senator Cory Booker sets out "Restoring Justice Initiative" focused on providing clemency relief to thousands of federal offenders 
• Senator Cory Booker proposes bold "second look" resentencing law 
• Mayor Pete Buttigeig's new "Douglass Plan" hit lots of criminal justice reform high points
• Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice"
• An effective critical review of some Prez candidates' new criminal justice reform plans 
• Senator Bernie Sanders releases criminal justice reform plan under banner "Justice and Safety for All" 
• Senator Elizabeth Warren releases her plan for "comprehensive criminal justice reform"
• Senator Kamala Harris releases her plan "to fundamentally transform our criminal justice system"
• Julian Castro sets forth criminal justice agenda as "The First Chance Plan" 
• Mayor Pete Buttigeig releases extensive criminal justice reform plan expanding on prior Douglass Plan
• Prez candidate Beto O'Rourke releases a "comprehensive plan to end mass incarceration"
• New Prez candidate Mike Bloomberg releases new (partial) criminal justice reform proposals

Might the 2020 campaign bring back "law and order" as a political wedge issue?

The question in the title of this post is prompted by this extended new New York Times opinion piece authored by Thomas Edsall. The piece's full headline captures its main point: "Trump Wants Law and Order Front and Center; The president and his allies are trying to make Democratic plans to reform law enforcement a potent campaign issue." The piece merits a full read, and here are excerpts:

Unexpectedly, the 2020 presidential campaign is drilling down on petty crime and homelessness.  Donald Trump and his Republican allies are reviving law-and-order themes similar to those used effectively by Richard Nixon and Spiro Agnew in the late 1960s and early 1970s to demonize racial minorities.

To this end, Republicans seek to discredit liberalized law enforcement initiatives adopted by a new breed of Democratic prosecutors.  These Democratic district attorneys — in cities, counties and suburbs from Philadelphia, Orlando, Chicago and St. Louis to Contra Costa County, Calif., Suffolk County, Mass., and Durham County, N.C. — are pursuing policies intended to decriminalize vagrancy, and eliminate cash bail, and they are aggressively pursuing charges in cases of shootings by police officers.

They are playing a key role in a hotly politicized movement to curb mass incarceration and to roll back what has become known as “the carceral state.”  The decarceration movement is backed by a wide array of organizations tightly aligned with the progressive wing of the Democratic Party: the Real Justice PAC, Black Lives Matter, the Brennan Center for Justice, the ACLU, Justice Democrats, MoveOn.org and Brand New Congress....

At the same time, as this movement has been gaining momentum, it has provided ammunition for a powerful counterattack from President Trump, his attorney general, William Barr, and other law-and-order Republicans.

The result is that the 2020 election is expanding the 50-year-old culture war into new territory as Democrats — often under pressure from younger voters — seek to extend broader rights to those who have been previously stigmatized or marginalized, now moving beyond protection for minorities, women and gays, to provide more freedom to criminal defendants, the homeless, the mentally ill and unknown numbers of men and women imprisoned through prosecutorial misconduct, judicial error or other forms of systemic failure.

Republicans, in turn, are betting that the Democratic presidential candidates have moved substantially farther to the left on issues of crime and punishment than the voting public. Leading Democratic presidential candidates, for their part, are not shying away from the challenge, endorsing in whole or in part the decarceration and decriminalization agenda.

Even Joe Biden, one of the more moderate 2020 candidates, argued at the September Democratic presidential debate that “We should be talking about rehabilitation. Nobody should be in jail for a nonviolent crime” and that “Nobody should be in jail for a drug problem. We build more rehabilitation centers, not prisons.” Once a strong supporter of the death penalty, Biden now calls for its elimination....

While many of the Democratic presidential candidates have effectively joined the decarceration movement, the same unity cannot be found among House and Senate Democrats. At this level, the movement is one more source of conflict between the Alexandria Ocasio-Cortez wing and the many members of the House and Senate who must fight for re-election in more moderate districts and states, including those that cast majorities for Trump in 2016....

Republicans are responding to the initiatives of progressive prosecutors with a vengeance. In a fiery speech on Aug. 12 at the Grand Lodge Fraternal Order of Police’s conference in New Orleans, Barr warned that progressive prosecutors in cities across the nation are “demoralizing to law enforcement and dangerous to public safety.”...

Three days later, William M. McSwain, the Trump-appointed United States Attorney for the Eastern District of Pennsylvania, called a news conference to explicitly attack the Philadelphia district attorney, Larry Krasner.... Most recently, President Trump, at a rally on Dec. 10 in Hershey, Pa., told the crowd “You have the worst district attorney,” referring to the Philadelphia D.A., roughly 95 miles east. “I’ve been hearing about this guy, he lets killers out almost immediately. You better get yourself a new prosecutor.”

Turning the decarceration movement into a 2020 campaign issue fits into Trump’s go-to strategy of inflaming divisive conflicts, especially those involving disputed rights — particularly those benefiting minorities — in order to activate racial resentment, to mobilize his core voters and to goad swing voters into lining up against the Democratic Party....

Over the past four years, many progressive Democrats have turned sharply against the aggressive policing that broken windows enforcement produced, arguing that it has contributed to excessive incarceration that results in the disproportionate imprisonment of African-Americans and other minorities.  At the presidential debate in September, virtually every candidate voiced strong opposition to mass incarceration and support for the release or sentence reduction of those convicted of nonviolent crime....

On this issue, one of Trump’s key allies is Tucker Carlson.  Every night this week, Carlson is devoting segments of his Fox News show to homelessness. His show will reinforce the 2020 Republican election theme that Democrats are fostering endemic social disorder.  On Jan. 3, Carlson tweeted: “Drugs.  Homelessness.  Third world inequality.  San Francisco’s radical left wing government has turned their city into an American Dystopia.”

This week’s series is the second time in less than a year that Carlson has devoted five straight nights to homelessness, with footage of men and women injecting themselves, evidence of public defecation, the vagrant mentally ill, and sidewalks in California lined for blocks with tents....

The Trump campaign is gambling that Democrats are outside the mainstream of public opinion on these issues, while the leading Democratic candidates are convinced that enough of the electorate has become sufficiently skeptical of law-and-order strategies — and the accompanying racial undertones (and overtones) — to produce a Democratic victory on Nov. 3, 2020.  Over the past 50 years, Democratic strategies based on the presumption of increasing liberalism among voters at large have rarely succeeded. Perhaps 2020 will be different.

New Prez candidate Mike Bloomberg releases new (partial) criminal justice reform proposals

This page on the campaign website of Mike Bloomberg reports that yesterday, after "a roundtable discussion with Mayor Chokwe Lumumba and community leaders focused on criminal justice reform in Jackson, Mississippi, Democratic presidential candidate Mike Bloomberg ... unveiled three criminal justice reform policy proposals."  Here is more:

The proposals focus on reducing the U.S. incarceration rate — the highest in the world — and addressing the failings of a criminal justice system that disproportionately harms communities of color. Bloomberg will unveil a comprehensive plan for criminal justice reform in the coming weeks....

The key pillars of Bloomberg’s initial criminal justice reform proposals include:

1. Launching a national initiative to reduce the incarceration of young people, by building on New York City’s success in cutting youth incarceration rates...

2. Expanding federal funding of effective alternatives to adult incarceration and investing in policies that help formerly incarcerated individuals re-enter society, find employment and escape the cycle of crime.

3. Investing in proven, community-based violence-interruption strategies that address the root causes of crime and prevent violent behavior before it occurs.

Notable review and reflection on Prez candidate criminal justice reform forum at Eastern State Penitentiary

Earlier this week, there was an historical (but ultimately disappointing) forum for Democratic Prez candidates at the historic Eastern State Penitentiary.  Here are two links providing an overview of the event: 

• From The Marshall Project, "Democratic Candidates Face Questions Seldom Heard On Campaign Trail"
• From the Philadelphia Inquirer, "Cory Booker slams opponents for skipping Philly prison reform town hall: ‘Where are you? Seriously.’"

The headline of the Inquirer piece highlights the main reason I am inclined to call the event disappointing, though this effective Intercept piece by Alice Speri capture my mood even more fully.  The lengthy piece is headlined "The Presidential Town Hall On Mass Incarceration Was A Historic Moment And A Missed Opportunity," and here are excerpts:

The candidates who showed up on Monday — Sens. Kamala Harris and Cory Booker, and billionaire Tom Steyer — sat close to a few dozen audience members representing a wide range of justice reform organizations led by those who know the system best. There were hugs, selfies, and some hard questions. But most notable was the absence of most of the presidential candidates, including all the frontrunners, and the sometimes evasive answers of the candidates who did show up.

“In that room, you had some of the foremost leaders in the country, folks who have been working for decades to lift the systemic oppression of incarcerated people,” said J. Jondhi Harrell, a Philadelphia activist who spent 25 years in federal prison. “To those who say that they want to be president and have specific ideas about how to reform the system, you have the opportunity to speak to the experts in the field. To just wave this off and say it’s not important really speaks to what you feel not only about justice reform, but also about black and brown people.”

Erica Smith, a California-based organizer with a group that provides transitional housing for formerly incarcerated people, made a similar point. “I was disappointed that some of the other candidates didn’t value what we have to say enough to come have a discussion with us,” she said. “We are 70 million deep in the United States, people who are system-impacted. It’s just the feeling of being discarded once again.”...

In the end, those leaving the event said they were elated that something so unprecedented could have even happened, but they were hardly impressed with candidates’ turnout or commitments....

But while attendees gave the three candidates who showed up in Philadelphia credit for being there to hear them out, several said they left more convinced than ever that any real changes to the system would need to happen without politicians.

“Historically, I’ve seen the United States just ignore our communities and so I won’t feel hopeful until I see results,” said Josh Glenn, who runs a Philadelphia-based group for incarcerated youth and felt that Booker had skirted around a question he had asked about the Juvenile Justice and Delinquency Prevention Act. “I hope whatever president comes into office, that they do the right thing by our communities. But if they don’t, we’re going to stand up for ourselves, and we’re going to make sure that we get what we need on our own.”

Prez candidate Beto O'Rourke releases a "comprehensive plan to end mass incarceration"

Via this extended Medium posting, Beto O'Rourke has released what he titles "Beto’s Comprehensive Plan to End Mass Incarceration and Reform Our Criminal Justice System to Prioritize Rehabilitation." The plan is too lengthy and detailed for ready summary, but here are a few of the sentencing parts:

• Reforming Sentencing and investing in alternatives to incarceration.

• Eliminate mandatory minimum sentencing. Beto will end the sentencing disparity between offenses for crack and powder cocaine, which currently sits at 18:1, establishing a 1:1 ratio.

• Legalize marijuana and expunge the records of those who have been convicted for possession. Additionally, treat substance use disorder as a public health issue — not a criminal justice issue — ensuring individuals receive access to mental health care and substance use disorder treatment and recovery, not punishment.

• Invest $500 million into a pilot program focused on developing alternatives to incarceration, with an emphasis on averting juvenile detention and providing treatment and access to recovery for individuals with substance use disorders, alcohol use disorders, and mental health disabilities.

• Beto will provide incentives to states to reduce sentences by implementing evidence-based sentencing alternatives, allow incarcerated individuals to receive “earned time credits” by participating in more vocational and rehabilitative programs and reform probation to strengthen rehabilitation.

• Repealing and reforming the portions of the 1994 Crime Bill that contributed to mass incarceration and perpetuated the War on Drugs, including the provisions that allowed prosecutors to charge 13-year-olds as adults for certain crimes and expanded the list of crimes where one could receive the death penalty. Beto will also simultaneously champion the reauthorization of the Violence Against Women Act, which is part of the Crime Bill, and provide the resources needed to end the rape kit backlog across the country....

  Promote clemency for individuals incarcerated in federal facilities. A unique power of the President is extending clemency to individuals who, despite being charged for low-level, non-violent offenses, are facing extended sentences or whose sentences would have been different if they occurred today. While clemency is a personal decision by the President, Beto would streamline the process. Beto will set the goal of reducing incarceration by at least 25,000 fewer incarcerated persons during his first term. Granting clemency to 25,000 inmates will save the federal government hundreds of millions since the average annual cost of keeping someone in jail is approximately $36,000. Following the recommendations of the ACLU and modeled on President Obama’s 2014 Clemency Initiative, Beto would prioritize reviewing the sentences of elderly individuals (above age 50 when recidivism rates significantly drop) and those in declining health; individuals with disabilities and chronic illness; those who have been incarcerated solely for drug possession; and individuals subject to extraordinarily long sentences. To achieve this goal, Beto will:

• Expand access to clemency applications by making a uniform clemency application, providing access to needed accommodations, and ensuring that every incarcerated individual is aware of their right to apply for clemency and can access the application online.

• Work with the Administrative Office of the Courts and reform the Criminal Justice Act to allow federal public defenders to represent individuals in clemency petitions.

• Encourage adoption at both the federal and state level of “second look” sentencing laws, allowing a judge to review an individual’s sentence after a period of years, evaluate the individual’s behavior while in prison, and if warranted, reduce excessive sentences.

• Call on Governors to adopt aggressive goals for granting clemency to individuals in their state prison systems.