Monday, May 27, 2019

Is Joe Biden really "one of the most progressive federal lawmakers in terms of criminal justice policy"?

In part because there are so many Democratic candidates, I have not yet been following all too closely the various discussions surrounding various candidates' statements and histories on crime and punishment.  But because Joe Biden has apparently emerged as a front-runner, and because he has quite the track-record on these issues, I cannot resist some (still very early) coverage of Uncle Joe's place in this space.  In particular, I find notable this recent USA Today commentary by Prof James Alan Fox, which is headlined "Joe Biden reduced murders, reformed criminal justice policy and made America safer." A line from the piece prompted the question in the title of this post, and here is the context:

[R]ecent allegations that Biden bears responsibility for the nation’s mass incarceration problem is not only inaccurate, but downright insulting to a man who has distinguished himself as one of the most progressive federal lawmakers in terms of criminal justice policy.

The years leading up to the much-discussed 1994 Crime Bill were challenging, to say the least, with violent crime rates soaring to record levels.  From 1990 through 1993, for example, nearly 100,000 Americans were murdered, two-thirds by guns, more than in any other similar time span, before or after.  Something had to be done, and Biden had the political will and skill to translate good ideas into effective policy.

As early as 1990, Biden, as chair of the Senate Judiciary Committee, recognized and responded to the growing crisis by holding hearings on the nation’s homicide epidemic.  In his introductory remarks, he talked of the 3-Ds — deadly weapons, drugs and demographics.

Biden’s observations were spot on.  The surge in homicide at that time was exclusively among teens and young adults, completely gun-related, and linked to the emerging crack cocaine markets in major cities from New York to Los Angeles.  While the subsequent concern for sentencing disparity between crack and powder cocaine was legitimate, it was crack, not powder, that drove the crime surge some three decades ago.

Biden’s approach was clearly more preventative than punitive.  At the 1990 hearing, for example, he called for investing in drug education for youth and drug treatment for addicts.  In contrast, Sen. Alan Spector, the ranking Republican on the Judiciary Committee, argued instead for tougher prosecution and expanding the death penalty.

While it is true that Biden had a major hand in crafting the Crime Bill, his was not the only one, as passage of the massive piece of legislation required bipartisan support and thus much compromise. Reflecting Biden’s influence, the final version of the Crime Bill included over $7 billion for a basket of prevention programs.  However, once Republicans took control of Congress in the 1994 midterms, it became more like a trash basket of prevention.

The Republican “Contract with America” set a new path, shifting the emphasis from early prevention to harsh punishment.  The Contract promised “an anti-crime package including stronger truth-in-sentencing, ‘good faith’ exclusionary rule exemptions, effective death penalty provisions, and cuts in social spending from this summer’s ‘crime’ bill to fund prison construction and additional law enforcement to keep people secure in their neighborhoods and kids safe in their schools.”  It had become a political liability to advocate prevention.

Whatever share of responsibility that Biden may own for the growth in prison populations over the next decade or more, he should be praised for his central role in pushing legislation that saved thousands of lives.  He was instrumental in helping to get the Brady Law through Congress, after which the nation’s rate of gun homicide started its long-term slide.  He was the chief proponent and author of the Violence Against Women Act, an initiative that helped lower the rate of women murdered by their intimate partners by more than 25% in subsequent years.

The streets of American cities are much safer today than a quarter-century ago before wide-ranging changes in federal crime control policy were enacted. Taken together, Joe Biden deserves credit, not criticism, for all that he has done throughout this career to reduce the number of crime victims and for providing assistance to those unfortunate to become one.

This commentary provides an important reminder that crime rates were so very much higher in the 1980s and 1990s, and thus any look back at crime and punishment policy (and crime and punishment politics) has to be attentive to that reality.  But calling Biden "one of the most progressive federal lawmakers in terms of criminal justice policy" still seems a little rich.

UPDATE: Intriguingly, Prez Trump yesterday afternoon and evening tweeted the following:

I doubt Prez Trump reads this blog, so I am not going to assert that these tweets were a direct response to the question in the title of this post.  But I do think it is an interesting and important indication that Prez Trump is inclined to promote his criminal justice reform record in any battles with Joe Biden.  It also perhaps provides an important opportunity for reform advocates to urge Prez Trump and his Administration to keep moving forward with critical follow-ups to the FIRST STEP Act.

May 27, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (4)

Monday, May 06, 2019

Urging Prez candidates to urge bold criminal justice changes looking beyond incarceration levels

Sara Wakefield and Kristin Turney have this notable new Hill commentary headlined "In 2020, we need bold ideas for criminal justice reform too."  Here are excerpts:

As the 2020 election quickly approaches, Democratic candidates are presenting bold ideas about a wide variety of issues including climate change, inequality, national paid leave, filibuster reform, student loans, and Medicare for All. Few ideas are too ambitious for the base, even though many would require major structural changes to American institutions and civic life.

Then, there’s the issue of justice. Criminal justice reform and mass incarceration get talked about, correctly, as racial justice issues that need to be addressed, but no one has proposed radical changes to how we approach crime and punishment in America. It’s time for 2020 candidates to think as boldly about criminal justice as they are about health care and climate change.

Sen. Cory Booker’s (D-N.J.) “Next Step Act” currently comes closest to a bold proposal, taking on police officer training, the conditions of confinement, and expungement procedures. Yet, even this proposal includes the sentencing reforms and reentry assistance proposals we’re used to seeing. Our collective focus, and the focus of popular criminal justice reform laws like the FIRST STEP Act, remains on a late stage of criminal justice contact: incarceration.

Prison incarceration is, of course, a consequential event, but many more millions of people engage with our inefficient and repressive criminal justice system — through arrests, misdemeanor convictions, parole and probation, the bail industry, and the accumulation of fines and fees. People don’t have to be sentenced to prison to have life-altering interactions with the criminal justice system, and our leaders need to think about these experiences too. In 2016, for example, 70 percent of the roughly 646,000 Americans in local jails on any given day had not been convicted of anything, largely remaining in jail due to their inability to make bail or because they violated the conditions of probation and parole....

Presidential candidates should also consider how much our criminal justice system impacts lives after someone has served time. In 2016, almost 7 million people were under some form of correctional supervision, such as parole or probation. The most common reentry proposals are aimed at improving the labor market prospects of the formerly incarcerated. We applaud these efforts, but people who lack health care and a stable home may struggle to find and keep a job. Discussions of health care and housing policy that ignore the formerly incarcerated ignore a population with the most significant health care problems and housing instability in the country....

By focusing on reforming incarceration only, we are obscuring a broader landscape of pain for millions of Americans. To truly begin on a path toward criminal justice reform, we need our leaders to think in terms of new deals, guarantees, and sweeping legislation that could impact more Americans, like they do on climate and health care. The type of country we want to have depends on these decisions.

May 6, 2019 in Campaign 2020 and sentencing issues, Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, May 05, 2019

Assembling criminal justice questions for the 2020 Prez field

Writing in the Washington Post, the Radley Balko is playing a great game of 20 questions in the form of this commentary headlined "Here are 20 criminal-justice and civil liberties questions for the 2020 contenders." I recommend the piece in full, in part because he lists a lot more than 20 questions (as my partial imprint reveals).  Here is part of its lead-in and a few of my favorite questions:

The 2020 campaign will likely present voters with the sharpest contrast on criminal-justice and civil-liberties policy in recent memory.  Most of the announced candidates for the Democratic nomination are pro-immigration and gun regulation and anti-death penalty and mass incarceration — all stances that put them at odds with President Trump. Many also have said they believe there is racial bias in the criminal-justice system and have expressed sympathy for police critics such as Black Lives Matter, again in sharp contrast to Trump.

So here’s a list of the questions I would pose to the Democratic field as a whole. (I’ll posit individualized questions based on the candidates’ records at a later date, when the field narrows down a bit.)  Feel free to leave your own questions in the comments....

5. Almost all of you favor the legalization of marijuana. Would you consider pardoning everyone who has been convicted in federal court on charges exclusively related to possession, sale or transport of marijuana?  What is your more general opinion of the pardon power?  Should it be used more often, less often?  Should it be used to grant mercy and redemption on guilty people, or as a check against injustices against potentially innocent people?...

10.  Numerous surveys and studies have shown that for much of the country, public defenders are underfunded, understaffed and overworked.  Some would argue that this imperils the Sixth Amendment rights of criminal defendants, and that under the Fourteenth Amendment, the federal government is obligated to step in to protect those rights. Do you agree?  If so, what should the federal government do to guarantee an adequate defense for indigent defendants?...

14.  Most of you say you are against the death penalty.  As president, you will have the power to commute sentences. For those of you who are against the death penalty, will you commit to commuting the sentences of everyone on federal death row? Will you vow that your administration will not seek any new death sentences?....

18.  Nearly all of you say you support reforming the criminal-justice system and ending mass incarceration. The criminologist John Pfaff, among others, has shown that to truly end mass incarceration, we’ll need to not just release nonviolent offenders but also rethink how we treat violent offenders.  We now know that from about the age of 25 on, the probability of recidivism among violent offenders drops significantly.  Would you support a policy that allows for the release of or shorter sentences for some violent offenders?

19.  There hasn’t been a justice on the Supreme Court with criminal defense experience since Thurgood Marshall retired.  Only a few justices since Marshall have had any criminal law experience at all. Do you think this is a problem? Would you consider appointing someone to the court with a significant criminal defense background?

I have a lot more questions in mind for the 2020 field with much more of a sentencing focus, but it still feels a bit too early for getting them all revved up. But readers should not feel shy about chiming in now.

May 5, 2019 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

Sunday, April 07, 2019

Are more re-enfranchised former offenders now registering as Republicans rather than as Democrats?

The question in the title of this post is prompted by this notable New York Sun piece headlined "Trump’s ‘First Step’ Toward 2020."  Here are excerpts:

Could President Trump’s bipartisan criminal justice reform — known as the First Step Act — prove to be a first step in a political revolution?  We ask because of a startling disclosure by one of the President’s shrewdest lieutenants in the campaign for First Step, Jared Kushner.  It turns out, he said, that greater numbers of ex-cons being granted suffrage in Florida are registering as Republicans.

Mr. Kushner, the President’s son-in-law, dropped that surprise almost in passing toward the end of an interview with Laura Ingraham. The interview was mainly about the First Step Act celebrated Monday at the White House. Toward the end of the interview, though, they chatted about the Democratic field. Ms. Ingraham popped one of those classic one-word questions: “Socialism?”

“I don’t think that’s where the country is,” Mr. Kushner said. “One statistic that I found very pleasing is that in Florida they passed a law where former felons can now vote. We’ve had more ex-felons register as Republicans than Democrats, and I think they see the reforms . . .”  Ms. Ingraham cut in: “Whoa, whoa, whoa. You’ve had more ex-felons register as Republicans than Democrats?”

“That’s the data that I’ve seen,” replied Mr. Kushner. “I think that will surprise a lot of people when they see the new coalition that President Trump is building for what the Republican Party has the potential to be.”

No doubt it would be a mistake to make too much of this.  It’s been but months since Florida amended its constitution to restore voting rights to felons.  It will take years for the effects to show up in voter registration and at the polls.  Yet it would be a mistake to make too little of it, as well.  Particularly because we’ve had some — not to put too fine a point on it — close races in the Sunshine State.

Florida’s constitutional amendment, after all, restored, at least de jure, suffrage to something like 1.5 million ex-cons, according to the various press accounts. The Democrats were the party pushing for putting these men and women back on the voting rolls.  That brings Florida in line with most states.  The party seems to have taken for granted that they will reap the advantage.

That could prove to be yet another underestimation of Mr. Trump.  We’re not predicting that, just marking the possibility.  The video of the event at the White House to celebrate the the First Step Act underscores the point. It is, we don’t mind saying, breathtaking and worth watching in full. It illuminates the President’s abilities as an inclusive, bipartisan leader....

It’s not our purpose to suggest that the First Step Act is without issues (it was opposed by a number of the most conservative senators). Our purpose is to mark that while the Democrats are trying to get out of first gear — they’re still focused on the Mueller report — Mr. Trump is setting up his 2020 strategy in a highly premeditated way, one that the Democrats seem determined to underestimate yet again.

I am really drawn to this New York Sun piece for a host of reasons.  First and foremost, I agree with the assertion that, as I noted here, last week's event at the White House to celebrate the the FIRST STEP Act was breathtaking and worth watching in full (via this twitter link).  In addition, though I would like to see first-hand data out of Florida on re-enfranchised registrations, the specifics may matter less than that Jared Kushner believes (and is surely telling his father) that criminal justice reform and re-enfranchisement efforts have real political potential for the Republican party. 

Many years ago, I urged in posts and in Daily Beast commentary that then-Prez-candidate Mitt Romney should embrace "Right on Crime" rhetoric about the need for criminal justice reforms in order to help the Republican party appeal more to younger voters and voter of color.  Jared Kushner clearly seems to tapping into these ideas when talking up a "new coalition that President Trump is building for what the Republican Party has the potential to be."  The event celebrating the FIRST STEP Act suggests a willingness, even an eagerness, for this White House to double down on criminal justice reform because they sense a distinct political opportunity as good politics starts to match up with better policies in this space.  This reality bodes well for future reform efforts no matter who is truly getting the bulk of the benefit from re-enfranchised voters.

Finally, politics aside, there is no good reason in my view to disenfranchise categorically any class of competent voters (and my basic thinking on this front was effectively explained in this Big Think piece years ago headlined "Let Prisoners Vote").  The long-standing perception that re-enfranchisement efforts would help Democrats a lot more than Republicans has contributed to political divisions over doing what is right and just, namely letting everyone have proper access to the franchise.  I hope development in Florida and elsewhere can undermine the belief that only one party benefits from re-enfranchisement efforts so that both parties can fully support the fundamental commitment to democracy that re-enfranchisement represents. 

A few prior related recent posts:

April 7, 2019 in Campaign 2020 and sentencing issues, Collateral consequences, Criminal justice in the Trump Administration, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Saturday, April 06, 2019

"Making Jail a Last Resort" or "If Prisons Don’t Work, What Will?"

The title of this post are the two somewhat different (bad) headlines I have seen for this great New York Times commentary authored by Emily Bazelon (whose great timely new book is titled "Charged: The New Movement to Transform Prosecution and End Mass Incarceration.")  I am much more partial to the first headline than the second, but neither comes close to capturing effectively the spirit and themes of the wide-ranging piece.  So, go read the full piece, and here are some extended excerpts:

The United States spends far too much money locking up far too many people for far too long. A few years ago, a politician had to be brave to say anything like that out loud. Now it’s a mainstream and bipartisan view....  It’s all pretty head-spinning after decades of elected officials competing to lock more people up and spotlight the scariest crimes. Now, with public opinion shifting far and fast and politicians hurrying to catch up, you could even argue that criminal justice reform has become the new marriage equality in terms of the turnaround in public attitudes.

That presents a major opportunity for Democratic presidential candidates.  But for all the energy behind reform, no presidential candidate has articulated a big, comprehensive vision for transformational change.  There’s a consensus that the system is broken, but no agreement on how to fix it.  The presidential candidate looking to distinguish herself might start by looking at a new wave of reform-minded district attorneys who are challenging conventional law-and-order approaches in red states and blue ones.

For the candidates, thematically, a starting point should be that wealth should not determine a person’s fate in court, and profit should not drive the system.  Bail bonds, privatized probation and corporate-run prisons are parasitic features of the justice system.  Ending cash bail should be at the top of every candidate’s criminal justice agenda.  So should getting rid of fines and fees that help fund local governments but trap people in cycles of debt....

To end mass incarceration, however, exempting nonviolent offenses from jail time isn’t enough.  People convicted of violent crimes make up more than half of the country’s state prison population. But the image of prisons overflowing with murderers and rapists is wrong.  In many states, “violent felonies” include offenses like breaking into an empty house or snatching a purse or iPhone on the street.  Reducing sentences for these offenses — and changing what counts as a violent felony to begin with — is a good way to start lowering this share of the prison population.

And that fits in with a second theme for candidates: People deserve a second chance, because many grow and change. They robbed to feed an addiction and then got sober. They assaulted someone because they were mentally ill and then got treatment and stabilized. They mature as they age beyond their teens and early 20s.  That’s why it makes sense to reconsider how long a person should stay in prison after doing some time....

Parole offers another opening for second chances. In Texas, says Scott Henson, an activist who blogs at the site Grits for Breakfast, “our parole rates have gone from 15 percent to the high 30s in the last decade,” He said the increase is “having more impact than any bill we’ve passed even through the legislature.” He thinks the reason for the rise is a humdrum logistical one: The state unofficially uses parole as a way to reduce prison overcrowding.

We should also focus on redefining the terms of the public safety debate.  Ending mass incarceration, and ensuring fairness throughout the criminal justice system, aren’t in tension with public safety.  They’re integral to it.  People tend to uphold the law when they believe it’s reasonable and applied evenly.  When people have that faith, they are more likely to help the police solve crimes....

Finally, incarceration should be the last resort, not the default.  In Brooklyn, District Attorney Eric Gonzalez has said this idea is central to his tenure.  His counterpart in Boston, Rachael Rollins, last month instructed prosecutors to ask for jail only “when any other recommendation would compromise” safety.  When no other option than jail or prison will do, it’s important to remember that the vast majority of people who go in also get out. Making sure they have the tools to lead productive lives when they emerge — like job training and access to decent housing — is a public good.

Presidents don’t actually control the key levers of the American punishment machine.  About 80 percent of the people who are locked up today are in state and local jails and prisons.  But presidents, and presidential campaigns, can raise the profile of an issue and set a tone.  The way they talk about repairing our broken criminal justice system speaks loudly to broader issues about racial and wealth inequality. Presidents can also shape the behavior of states and cities with funding and other incentives, like redirecting money to treatment and prevention programs.

Were I in charge of devising a headline for this piece, I might go with something like "How Prosecutors and Presidential Candidates Advance Criminal Justice Reform." But this is not the first, nor will it be the last, great newspaper piece without a headline to serve it well.  Of course, the piece itself leaves out some important stories like the achievement of the FIRST STEP Act and the need for clemency reform (points recently stressed by Senator and Prez canadide Amy Klobuchar).  But there is so much getting done and needing to be done in this space now, it is hard to fault any piece of writing for not covering everything.

April 6, 2019 in Campaign 2020 and sentencing issues, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Friday, April 05, 2019

Senator Klobuchar talking up "second step" criminal justice reforms with a focus on the clemency process

Senator Amy Klobuchar, who is running for President and who served as a local prosecutor for eight years, has this notable new commentary at CNN running under the headline "On criminal justice reform, it's time for a second step." Here are excerpts:

Our criminal justice system is broken. Today we know that our country has more than 20% of the world's incarcerated people, even though we have less than 5% of the world's population.  And we know racial disparities at every level of our system have removed millions of people of color from our society, destroying families and communities for generations.

Thanks to the work of countless reform advocates, we have finally started to acknowledge that there is racism in our criminal justice system and that we need to take action to fight it.  But the next president will have to do more than just talk about these issues.  She will have to take action.

Our criminal justice system cannot lose sight of the principles of fairness and compassion -- for victims, yes, but also for offenders.  Our Founding Fathers understood this point when they gave the president the power to grant clemency....

As president, I would create a clemency advisory board as well as a position in the White House -- outside of the Department of Justice -- that advises the president from a criminal justice reform perspective.  Law professors such as Rachel E. Barkow from New York University and Mark Osler from the University of St. Thomas in Minnesota have described what a better clemency system could look like.  Currently, the Department of Justice includes an Office of the Pardon Attorney, tasked with investigating and reviewing all requests for clemency for federal offenses and ultimately preparing a recommendation for the president.  Although the voices of our prosecutors and law enforcement officials are important and should continue to advise the president, there are additional voices that a president needs to hear.

A diverse, bipartisan clemency advisory board -- one that includes victim advocates as well as prison and sentencing reform advocates -- could look at this from a different perspective. And a criminal justice reform advocate in the White House will ensure that someone is advising the president on criminal justice reform.  That's why I'm committed to making these important changes during the first month of my presidency, should I be elected.

But we cannot solve the many problems associated with mass incarceration through better and smarter use of the presidential pardon alone.  Last year, we in Congress passed the First Step Act, which changed the overly harsh sentencing laws on nonviolent drug offenders and reformed our federal prisons.  But now it's time for the Second Step Act.

The reforms in the First Step Act only apply to those held in the federal system.  The new law doesn't help the nearly 90% of people incarcerated in state and local facilities.  One of my top priorities will be to create federal incentives so that states can restore some discretion from mandatory sentencing for nonviolent offenders and reform the unconscionable conditions in state prisons and local jails.

We have to do more to reduce inflexible mandatory minimums and add safety valves, building on the federal reforms we made last year.  True criminal justice reform includes the cash bail system, expanding funding for public defenders and eliminating obstacles to re-entering and participating fully in society.  That's why we also need better educational and job training programs that can help people both before and after they are released.

I'm also working to change the dialogue on drug and alcohol treatment and mental health services.  I did this in Minnesota as Hennepin County attorney, I've fought for expanded drug courts as a senator, and I'll make this a priority as president.

Regular readers will not be surprised to hear me praise the Senator's eagerness to change the clemency process. As long-time readers know, I started urging more clemency action from Prez Obama on the day he was elected and in 2010, I authored this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders," which closed with a recommendation that the president "seriously consider creating some form of a 'Clemency Commission'."   The advocacy in this commentary for the creation of a "diverse, bipartisan clemency advisory board" is truly music to my ears.

April 5, 2019 in Campaign 2020 and sentencing issues, Clemency and Pardons, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, April 04, 2019

Spotlighting how "politicians are catching up with American voters" on criminal justice reforms

Alex Busansky and Eli Lehrer have this notable new Hill commentary under the headline "Voters are driving justice reform."  Here are excerpts:

When crime rates soared between the 1970s and early 1990s, Democrats and Republicans alike did everything possible to avoid being labeled “soft on crime.”  As crime has dropped, however, reforms that ease punitive measures, reduce correctional populations from the current level of more than 2.2 million, and give people who are formerly incarcerated a fresh start have become a bipartisan cause.  Results from the 2018 midterms, particularly ballot measures backed by voters, should provide important advice for gearing up for the 2020 cycle.  Criminal justice reform has become a winning issue with voters and advocates should pay heed.

Polling data make it clear how voters feel nationally. In a recent article, pollster Celinda Lake says that by a two to one margin, voters believe that our country relies too much on incarcerating people.  A national poll last year by Public Opinion Strategies showed that 68 percent of Republicans, 78 percent of Independents, and 80 percent of Democrats support significant reform.  Places across the nation with very different politics have followed suit and moved towards significant justice system reforms....

This trend has lessons for what works at the state level and ought to give a significant tailwind to those looking to organize for the next cycle.  Efforts are already underway to make Nebraska and Mississippi the latest states to legalize medical marijuana.  This decriminalization of a drug that is now widely accepted is an important step because it reduces justice system involvement for many, particularly people of color, who are simply not dangerous to anyone.  Likewise, Los Angeles County recently approved a plan to close the downtown Men’s Central Jail, while killing a proposal to convert a detention facility into a women’s jail.  Next year, Los Angeles County voters will decide whether to pass a jail reform ballot measure.

Looking to 2020, citizens are already hearing justice reform touted by candidates of both parties. That is not surprising, and it is only going to increase.  Politicians are catching up with American voters, who have already realized that both easing some unnecessarily harsh measures and helping those who have made mistakes become productive members of society is not just a good and right idea, it is a winning campaign issue.

This piece gives some important (though necessarily incomplete) attention to the vole of ballot initiatives in the criminal justice reform movement. Especially in light of recent election cycles in which significant criminal justice reform has been enacted at the ballot in red states like Oklahoma and Florida, I think this is a story that cannot get too much attention and is worth of extended analysis.

April 4, 2019 in Campaign 2016 and sentencing issues, Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, March 25, 2019

Another useful reminder of the need for more criminal justice diversity on the federal bench

Long-time readers know I have been talking a long time about the prosecutorial tilt that impacts who gets nominated and confirmed for seats on the US Supreme Court and lower federal courts.  Encouragingly, the need for more balance in the courts is getting more attention as criminal justice reform continues to garner attention (especially among would-be Democratic Prez candidates).   Consider, for example, this piece on this topic at Slate by Kyle Barry under the headline "Democratic Presidential Candidates Should Promise to Appoint This Kind of Judge to the Federal Courts."  Here are  excerpts:

The lawyers who best understand the importance of [the Constitution's] basic protections, of course, are public defenders.  And the Supreme Court hasn’t had a justice with significant experience representing indigent criminal defendants since Thurgood Marshall, who founded the NAACP Legal Defense Fund, retired in 1991.  Two current justices — Samuel Alito and Sonia Sotomayor — worked as prosecutors.  The rest have no hands-on experience with the criminal justice system, creating what Washington Post columnist Radley Balko has called a “massive blind spot” in the court’s decision-making.

This absence of experience extends beyond the Supreme Court to the entire federal judiciary.  Former public defenders are woefully underrepresented on both the trial-level district courts and the circuit courts of appeal, while experience as a prosecutor remains a common and largely unquestioned career path to the federal bench.

The issue is cross-partisan and deeply systemic.  Much like how the policies that created America’s mass incarceration crisis were bipartisan — with Republicans and Democrats competing to appear most tough on crime — so too has been the impulse to tap prosecutors over public defenders as federal judges.  According to the advocacy group Alliance for Justice, more than 40 percent of President Barack Obama’s judicial nominees were prosecutors, outnumbering public defenders by three to one.

The problem has only worsened under President Donald Trump.  Trump’s judicial appointees lack diversity along any metric.  They are 91 percent white and 76 percent male.  Just one of his 91 confirmed judges is black.  Still, the lack of criminal defense experience is extreme.  By reviewing the Senate Judiciary Committee Questionnaires for all of Trump’s 143 confirmed or pending judicial nominees who have submitted one (a handful of recent nominees have not), I learned that not one has worked full-time as a state or federal public defender.  One, Clifton Corker, a pending nominee to the U.S. District Court for the Eastern District of Tennessee, reports one year as a “volunteer” federal defender.  That’s it.

By contrast, more than one-third of Trump’s nominees have worked as prosecutors, including 38.3 percent of his district court nominees and 33.3 percent of his circuit court nominees.  And that’s with a narrow definition of “prosecutor” that excludes lawyers, like Gorsuch, who served in high-level executive branch positions but did not personally prosecute cases....

Obama’s penchant for choosing prosecutors culminated in the nomination of Merrick Garland, a former prosecutor, over Jane Kelly, a former public defender, to the Supreme Court in 2016.  Once Kelly, a judge on the 8th U.S. Circuit Court of Appeals, was reported to be a finalist, conservative groups used her public defense experience to launch a smear campaign and paint her as a threat to law and order; an especially offensive tactic given that Kelly was herself the victim of a violent assault.  Yet it also betrayed an important truth: While Gideon’s promise of robust public defense is both celebrated and stigmatized, the stigma is baked into traditional notions of the ideal, critique-proof judicial nominee.  Prosecutors have faced no such hurdle.

For progressives, the Trump era has ignited perhaps unprecedented interest in the courts and judicial nominations.  On issues from immigration to the environment to voting rights, just to name a few, the federal courts have been the primary check on the Trump administration’s often cruel and discriminatory policies.  And Trump’s nomination of Brett Kavanaugh to the Supreme Court, along with a flock of far-right and in many cases grossly incompetent nominees to the lower courts, sparked outrage that has echoed through the halls of Congress and beyond.

But what is the flip side of that outrage?  What kind of judicial nominees should progressives demand?  Part of the answer is obvious: more public defenders.  Indeed, a pledge to appoint at least as many public defenders as prosecutors to the federal bench is a tangible way for presidential candidates to show commitment to dismantling mass incarceration while at the same time charting a path forward for the courts.  There is now real opportunity to start a new narrative around judicial selection, one that rejects the stigma attached to public defenders and the mythical neutrality of prosecutors.

A few prior related posts from years past:

March 25, 2019 in Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, March 11, 2019

Making (belated) case for a Prez to "choose nominees who will help dismantle mass incarceration"

James Forman has this notable new New York Times op-ed about Supreme Court nominations and the field of potential challengers to Prez Trump under the full headline "The Democratic Candidates Should Tell Us Now Who They’ll Put on the Supreme Court. And they should choose nominees who will help dismantle mass incarceration."  I recommend the piece in full, and here are excerpts:

In a country that locks up more of its citizens than any other, we should demand that candidates for president have a plan for how they will confront mass incarceration and repair the harms it has caused.  While most of the action in our criminal system takes place at the state and local level — almost 90 percent of prisoners are incarcerated in state, county, or local prisons or jails — the federal government still has an important role to play.

As Rachel Barkow, a law professor at N.Y.U., argues in her important new book, “Prisoners of Politics: Breaking the Cycle of Mass Incarceration,” judicial appointments are one of the most powerful ways that a president can influence criminal justice policy. Federal judges make rules that govern nearly every aspect of our system, from police at the beginning of the criminal process to sentencing and prison at the end.

Over the past 50 years, those rules have facilitated mass incarceration.  Judges have held that the Fourth Amendment doesn’t prohibit police from racially profiling drivers during traffic stops, that the Sixth Amendment permits trials with underfunded defense lawyers who present little evidence or argument, and that the Eighth Amendment is no bar to outrageous sentences like life without parole for drug possession.

How did our legal landscape become this anti-defendant?  In part because so many federal judges are former prosecutors. Ms. Barkow reports that 43 percent of federal judges have been prosecutors, while 10 percent have been public defenders.

A judge’s career background doesn’t always predict her rulings — Justice Sonia Sotomayor, a former prosecutor, often stands up for the accused.  But she is the exception.  Federal judicial opinions typically read as if their authors have given little thought to how an excessively punitive criminal justice system can ruin lives, decimate families and lay waste to entire communities.

To upend this dynamic, Democratic presidential candidates must commit themselves to appointing federal judges who will work to challenge mass incarceration.  This will mean going beyond anything President Barack Obama attempted. When Mr. Obama wrote a 55-page law review article on what a president could do to push criminal justice reform, he made no mention of judicial appointments.  Worse, his appointments displayed almost the same pro-prosecution bias as his predecessors’: About 40 percent of his judicial nominees had worked as prosecutors, while some 15 percent had been public defenders.

Democratic candidates should promise to eliminate this bias by reshaping the federal bench so that it has as many former public defenders as it does former prosecutors.  The Supreme Court is a good place to start.  Remember when Donald Trump courted the conservative right by announcing the names of possible nominees several months before the 2016 election?  Any Democratic candidate who wants to win the votes of a Democratic electorate increasingly focused on criminal justice reform should make a similar announcement — and populate the list with lawyers who have seen the criminal system from the standpoint of the accused.

There is no shortage of quality names.  High on my list would be Bryan Stevenson, a career death penalty opponent, consummate Supreme Court litigator and founder of the Equal Justice Initiative in Alabama.  Or Michelle Alexander, former law clerk for Justice Harry Blackmun, civil rights lawyer and author of the canonical “The New Jim Crow.” (Ms. Alexander is also an opinion columnist for The New York Times.)  Or Sherrilyn Ifill, a voting rights expert and head of the NAACP Legal Defense Fund, the civil rights firm founded by Thurgood Marshall in 1940.

These aren’t the names that typically appear on Democratic short lists. They aren’t sitting judges, and unlike many who now serve on the federal bench, they’ve taken unpopular stands, sometimes at great risk.  As a result, my list might sound unconventional, even outlandish, to those accustomed to the traditional approach to judicial selection.  But it shouldn’t.  With impeccable credentials, unassailable legal acumen and a fierce determination to take down mass incarceration, these are the future nominees whose names should start rolling off the tongues of Democratic candidates who want to be taken seriously as criminal justice reformers.

I am very pleased to see this issue getting attention as the 2020 race starts to heat up. But, as long-time readers know, I think this issue should have been a focal point for reformers for more than a decade and should lead to distinctive analysis of the work of recent Presidents. I am pleased to see some very justified criticisms of Prez Obama on this front (though the failure to mention the Garland appointment blunder is telling), but how about also criticizing Hillary Clinton for not creating a nominee list to compete with the one put out by candidate Trump? How about noting, though this does not play to political bases, that Justice Neil Gorsuch had a smidgen of defense lawyering experience in law school and he has already show a willingness to vote for more defendants' rights than his conservative colleagues?

I could go on and on, but I mostly want to praise Prof Forman for elevating these issues, issues that I hope all the Prez candidates feel bound to engage.

March 11, 2019 in Campaign 2016 and sentencing issues, Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Friday, March 08, 2019

Senator (and Prez candidate) Cory Booker introduces "Next Step Act of 2019" with wide array of sentencing and criminal justice reforms

As set forth in this press release, "U.S. Senator Cory Booker (D-NJ), a member of the Senate Judiciary Committee, and Congresswoman Bonnie Watson Coleman (D-NJ) today introduced a sweeping criminal justice bill — the Next Step Act  — that would make serious and substantial reforms to sentencing guidelines, prison conditions, law enforcement training, and re-entry efforts."  Here is more about this new (lengthy) legislative proposal from the press release:

The Next Step Act is the most comprehensive criminal justice bill to be introduced in Congress in decades. "It's been 75 days since the First Step Act was signed into law, and already, it's changing lives," Booker said.  "But the First Step Act is just as its name suggests — it is one step on the long road toward fixing our broken criminal justice system. There's more that remains to be done so that our justice system truly embodies those words etched onto our nation's highest court â?“ 'equal justice under law.' That's exactly what the Next Step Act does. It builds off the gains of the First Step Act and pushes for bolder, more comprehensive reforms, like eliminating the sentencing disparities that still exist between crack and powder cocaine, assisting those coming out of prison with getting proper work authorization and ID documents, reducing the barriers formerly incarcerated individuals face when they try to find jobs, and ending the federal prohibition on marijuana."...

Specifically, the Next Step Act would:

  • Reduce harsh mandatory minimums for nonviolent drug offenses: the 20-year mandatory minimum would be reduced to 10 years, the 10-year mandatory minimum would be reduced to 5 years, and the 5-year mandatory minimum would be reduced to 2 years.

  • Eliminate the disparity between crack and powder cocaine sentences (currently it is 18:1)

  • End the federal prohibition on marijuana, expunge records, and reinvest in the communities most harmed by the War on Drugs.

  • "Ban the Box" by prohibiting federal employers and contractors from asking a job applicant about their criminal history until the final stages of the interview process, so that formerly incarcerated individuals get a fairer, more objective shot at finding meaningful employment.

  • Removing barriers for people with criminal convictions to receiving an occupational license for jobs, such as hair dressers and taxi drivers.

  • Reinstate the right to vote in federal elections for formerly incarcerated individuals (blacks are more than four times as likely than whites to have their voting rights revoked because of a criminal conviction).

  • Create a federal pathway to sealing the records of nonviolent drug offenses for adults and automatically sealing (and in some cases expunging) juvenile records.

  • Ensure that anyone released from federal prison receives meaningful assistance in obtaining a photo-ID, birth certificate, social security card, or work authorization documents.

  • Improve the ability of those behind bars to stay in touch with loved ones, by banning the practice of charging exorbitant rates for phone calls (upwards of $400-$500 per month) and ensuring authorities take into consideration where someone's kids are located when placing them in a federal facility, a circumstance that acutely impacts women since there are far fewer women's prisons than men's prison.

  • Provide better training for law enforcement officers in implicit racial bias, de-escalation, and use-of-force.

  • Ban racial and religious profiling.

  • Improve the reporting of police use-of-force incidents (currently the Department of Justice is required to report use-of-force statistics to Congress, but states and local law enforcement agencies are not required to pass that information on to federal authorities, creating a significant gap in data that could be used to improve policies and training).

The Next Step Act is an effort to build upon the momentum of the First Step Act, which was signed into law late last year and which represents the biggest overhaul to the criminal justice system in a decade.  Booker was a key architect of the bill — he was instrumental in adding key sentencing provisions to the package after publicly opposing the House-passed version of the First Step Act first released in May 2018.  Booker also successfully fought to include provisions that effectively eliminated the solitary confinement of juveniles under federal supervision and banned the shackling of pregnant women.

The Next Step Act is based upon a number of individual bills Booker has authored, co-authored, or co-sponsored since arriving to the Senate in 2013, including the Marijuana Justice Act, the Fair Chance Act, the REDEEM Act, the Ending Racial Profiling Act, the Smarter Sentencing Act, the Dignity for Incarcerated Women Act, the Democracy Restoration Act, and the Police Reporting Information Data and Evidence Act.

I would be quite excited by a number of the substantive provisions in this bill if it had any chance of moving forward in any form.  But, for a host of political and practical reasons, this bill really serves more as Senator Booker's statement of aspirations rather than as a serious attempt to get something specific passed by Congress in the coming months.  Nevertheless, I am inclined to compliment the Senator for having so many big criminal justice reform aspirations, and the introduction of this bill will help ensure that Senator Booker keeps attention on criminal justice reform as he moves forward with his presidential campaign.

March 8, 2019 in Campaign 2020 and sentencing issues, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Friday, February 22, 2019

Brennan Center produces policy brief on "Ending Mass Incarceration: A Presidential Agenda"

2019_02_21_10AMJusticeAgendaforCandidates-1The Brennan Center for Justice yesterday released this notable new 16-page policy brief authored by Ames Grawert, Bryan Furst, and Cameron Kimble under the title "Ending Mass Incarceration: A Presidential Agenda."  Here is its introduction:

For many voters, the past two years have brought a new awareness of profound, continuing injustices in American society.  Among them is the civil rights crisis of mass incarceration.  Even with recent reforms, more than two million Americans remain behind the bars of jails or prisons.  Black men and women are imprisoned at roughly six times the rate of their white counterparts. The overuse of incarceration perpetuates economic and racial inequality, two issues at the top of the public concern.

Going into the 2020 election, contenders for the Democratic nomination — and the Republican incumbent — must have a plan to meet these challenges, or risk being out of step with the American people.

This report delineates how that can be done, outlining policies that would slash America’s incarceration rate, put people back to work, and reduce racial disparities in the process, while keeping the country safe.  These solutions can be a transformative piece of a presidential campaign and help define a new president’s legacy.

Some consensus for these changes already exists.  Late last year, Congress ended years of deadlock over federal sentencing reform by passing the FIRST STEP Act, which will reduce some of the most extreme and unjust sentences in the federal criminal code.  These changes will put families back together, make prison more humane, and help restore trust in law enforcement.

But the bill also raises the bar for any candidates seeking the Oval Office.  President Trump is already treating the act as a signature accomplishment, touting it among his top achievements in his State of the Union address.  Candidates who are serious about combating racial and economic injustice — and want voters to know it — will have to think bigger.

Rather than focusing on individual reforms, candidates for the presidency should commit to tackling some of the most pervasive and damaging parts of our criminal justice system, including overly punitive sentences, bail practices that favor the rich, and drug policies that unfairly target people of color.  These aren’t intractable problems, but they do call for sweeping changes, far more than what has been introduced to date. And enacting these in Washington can also spur more states to take action.

Incremental reforms will not make the history books.  The time for bold action is now, and this report outlines precisely the type of transformative solutions that candidates can champion to define their campaign or cement their legacy.

The report includes a number of large and small action items, all of which are interesting and important and all of which I hope get robustly discussed on the campaign trail.  The report has all prompted me to start a new blog category: "Campaign 2020 and sentencing issues."

February 22, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)