Monday, March 01, 2021

Great and distinctive accounting of a modern evidence-based criminal law reform agenda

Jon Gould and Pamela Metzger have this interesting and important new Hill commentary headlined "Evidence-based paths toward criminal justice reform." I recommend the full piece, and here is how it gets started:

As recent events at the Capitol make clear, criminal legal reform is a moral and civic imperative for the new Biden administration.  President Joe Biden ran, in part, on a promise of reducing the United States’ outsized reliance on incarceration, correctional supervision and fines and fees and committed himself to addressing systemic racism in the criminal system.  Recent events have only increased the urgency for smart, compassionate criminal legal reforms that are based on empirical evidence, rather than on instinct or past practice.

Evidence-based criminal law reform — which draws on lessons learned from medicine and other disciplines — advocates policies driven by the results of research, rather than by anecdote or collective assumptions.  Evidence-based reform is widely known in corrections policy and police investigations and new research has led recent reforms of bail, sentencing and the death penalty.

But if the Biden administration wants to truly move the needle, it must direct its attention to widespread reform opportunities in venues that have often been overlooked.  We suggest that the Biden justice agenda include a focus on research and evidence-based reform in three key areas: prosecutorial charging discretion, participatory defense efforts and the needs of small, tribal and rural, or STAR, communities.

March 1, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Saturday, February 27, 2021

What kind of "behind the scenes" clemency moves might Prez Biden's staff be working on?

The question in the title of this post is prompted by a sentence in this Vox piece by German Lopez (strangely) headlined "Biden’s secret weapon for criminal justice reform."  The article is about the power of the President to grant clemency, and I think it a bit strange to call that power a "secret weapon" given all the attention that clemency has received in recent years and given that there has already been a number of prominent calls for Prez Biden to use this power in prominent ways (examples blogged here and here and here and here).  I guess the headline speak to the tendency of some to look past the clemency power as a means to address systemic issues like mass incarceration, and the piece is still a worthwhile read.  Here is an excerpt that includes the sentence that prompts the question in the title of this post:

[S]ome advocates have argued for a ground-up rethinking of clemency: The president could reform the whole process to systematically cut sentences for federal inmates caught in the frenzy of America’s drug war and mass incarceration....

[T]he president or his advisory board could set standards, targeting inmates with long sentences (especially for nonviolent crimes), those under mandatory minimums, or people who have been rehabilitated in prison.

Biden, at least, supports using clemency powers for some of these ends — saying in his criminal justice reform plan that he’d use his clemency powers “to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.”

But since taking office, Biden hasn’t made any public moves in this area — although his staff is reportedly working on it behind the scenes.

Biden could be waiting for his attorney general nominee to get Senate approval. Or he could be concerned about the political risks: If an inmate he releases goes on to commit a crime, it could fuel a backlash. (The White House didn’t respond to a request for comment.)

Prez Biden should have his Attorney General nominee approved next week, so perhaps reported "behind the scenes" work will become public in short order. I remain hopeful that significant use of the clemency power will be part of a multi-prong criminal justice reform push by the Biden Administration, but I will only believe it when I see it.

A few of many prior related posts:

February 27, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, February 26, 2021

Federal prosecutors still pursuing capital charges over a month into Biden Administration

There has been considerable advocacy from progressives urging Prez Biden to commute federal death row and to halt all capital prosecutions (examples here and here).  Against that backdrop, I thought this new Justice Department press release was notable under this full headline: "Death Penalty Sought For Murder Of Fort Campbell Soldier; Victim's murder occurred on the Fort Campbell, Kentucky military installation."   Interestingly, the start of the release specifies that former Prez Trump's last Attorney General was the one who authorized this prosecution in the Western District of Kentucky:

The United States filed Notice of Intent to Seek the Death Penalty for Victor Everette Silvers, in connection with the death of Brittney Niecol Silvers, announced Acting United States Attorney Michael A. Bennett.  Former Acting Attorney General Jeffrey A. Rosen authorized and directed the United States Attorney’s Office for the Western District of Kentucky to seek the death penalty.

According to the superseding indictment, returned on Tuesday, February 23, 2021, Victor Everette Silvers murdered Brittney Niecol Silvers on October 14, 2018, by shooting her with a firearm at the Fort Campbell, Kentucky military installation.  Brittney Niecol Silvers was, at the time of her death, assigned to the 96th Aviation Support Battalion at Fort Campbell, Kentucky.  The penalty for First-Degree Murder (Premediated) is Death or Life Imprisonment.

Victor Everette Silvers is also charged with Attempted First-Degree Murder, Domestic Violence, Violation of a Protection Order, Possession of a Firearm by a Prohibited Person, and two counts of the Use/Carry/Discharge of a Firearm During and in Relation to a Crime of Violence.

This press release is a useful reminder that, while it may not be essential for Prez Biden to make an immediate decision about whether to commute the sentences of persons already on federal death row, there is more immediate urgency for the Biden Administration about whether to continue seeking to add to the number of persons on federal death row.

February 26, 2021 in Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Wednesday, February 24, 2021

New commentary calling for Prez Biden to revive the US Sentencing Commission

In this post earlier this month, I wondered aloud about when we might reasonably expect Prez Biden to make needed appointments to the US Sentencing Commission.  This issue remained on my mind when I was recently asked to write a commentary for ASU's new Crime and Justice News site.   Specifically, I decided to write on "Reviving the U.S. Sentencing Commission," and here is an excerpt from this commentary (links from original):

[F]ederal sentencing politics and policy development have transformed dramatically in recent years.  Presidents Obama and Trump did not agree on much, but they both supported and signed major federal sentencing reform legislation designed to reduce punishment levels.  Huge majorities in Congress passed the Fair Sentencing Act in 2010 and the FIRST STEP Act in 2018, demonstrating strong bipartisan support for impactful changes to federal sentencing laws and practices.  Congress even titled its 2018 legislation to signal the law was to be just the first in a series of reform steps for the federal justice system.  Meanwhile, a global pandemic and heightened concern about racial injustices in 2020 have only increased calls for change and further heightened the moral and practical imperatives for the U.S. Sentencing Commission to pursue big and bold sentencing reforms.

But, problematically, the U.S. Sentencing Commission presently cannot advance any reforms because persistent vacancies have crippled its ability to function.  Open commissioner slots were left unfilled in the final years of the Obama Administration, and new nominees advanced by President Trump in March 2018 were controversial and got a cold shoulder from the Senate.  Remarkably, the agency Congress created to advance sound “sentencing policies and practices” lacked a quorum for much of the Trump Administration as Congress debated, enacted and oversaw the initial implementation of the landmark FIRST STEP Act.  As of this writing, the Commission currently has only a single Commissioner; the agency now needs six new confirmed members to get back to full strength and at least three new commissioners to be somewhat functional.

The current vacancies not only create a critical need for President Biden to revive the U.S. Sentencing Commission, but also provide a critical opportunity to reimagine who serves on this Commission and how it approaches its work.  Circa 2021, we have not just bipartisan political support for meaningful criminal justice reforms at local, state and federal levels, but also a wide and diverse array of individuals with a deep reserve of sentencing expertise and experiences.  President Biden must make it a priority to nominate a full slate of new commissioners with diverse backgrounds and experiences who will advance an ambitious, grand view of how the Commission can and should seek to meet our current criminal justice moment.

In a letter to Democratic Senators following his election, President Biden signaled an interest in nominating for judgeships “individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”  This sentiment can and must carry over to nominations to the U.S. Sentencing Commission, which has historically been dominated by persons with prosecutorial backgrounds.  With millions of persons federally prosecuted in recent decades and with a third of all U.S. adults burdened with some kind of criminal record, representing “Americans in every walk of life” in this context must include individuals involved in the justice system.

In his pioneering 1972 book, Criminal Sentences: Law Without Order, Judge Marvin Frankel first advocated for a “Commission on Sentencing” to include “lawyers, judges, penologists, and criminologists, ... sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates.”  As Judge Frankel explained, having justice-involved persons on a sentencing commission “merely recognizes what took too long to become obvious—that the recipients of penal ‘treatment’ must have relevant things to say about it.”  Judge Frankel’s insights remain ever so timely a half-century later, and the federal system can now follow a recent sound state example: Brandon Flood was appointed Secretary of the Pennsylvania Board of Pardons in 2019, not despite but largely because of his lived experience as an inmate and his numerous encounters with the criminal justice system.  President Biden’s could and should consider going even further by including multiple persons with diverse, direct experiences with U.S. justice systems in his nominations to the U.S. Sentencing Commission.

February 24, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Potent call for new Attorney General to address how "mass detention creates mass incarceration"

Alison Siegler and Kate M. Harris have this notable new New York Times op-ed under the headline "How Did the ‘Worst of the Worst’ Become 3 Out of 4?: Merrick Garland can bring bail reform to the federal justice system."  Here is how the efective piece gets started and concludes:

Few see Judge Merrick Garland, President Biden’s pick for attorney general, as a progressive who will reform the criminal legal system. But the Biden administration recently acknowledged that mass incarceration does not make us safer.  And as the nation’s chief federal prosecutor, if confirmed, Judge Garland will have the power to prioritize federal bail reform and reduce sky-high rates of pretrial jailing.  Doing so will decrease mass incarceration, advance racial justice and enable Mr. Garland to stake his claim as a progressive prosecutor.  In fact, federal bail reform is an area where he may have already shown an appetite for change.

In November, voters across the nation overwhelmingly chose reform-oriented progressive prosecutors over “law and order” challengers.  Red and blue districts elected prosecutors who ran on a promise to use their office to enact change. Some of these prosecutors promised to stop pursuing low-level drug crimes.  And at least one has since ended the use of cash bail for certain crimes.  But while the progressive-prosecutor movement has gained momentum at the state and county levels, it hasn’t gotten any traction in the federal system.

Mr. Garland will be able to change this by disrupting the culture of detention that pervades the ranks of federal prosecutors and, to some degree, the federal judiciary.  During his time as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, Mr. Garland was a member of the Judicial Conference of the United States, the main policymaking organization for the federal bench.  Since 2017, the Judicial Conference has repeatedly called on Congress to reform the federal bail law by eliminating what is known as the “presumption of detention” for many drug cases.

While the Supreme Court famously said that freedom should be the default for people awaiting trial, current law directs judges to assume that people charged with certain crimes — including most drug crimes — will flee and endanger the community if released.  That exception has now swallowed the rule, becoming a built-in bias for incarceration that feeds the federal system’s colossal detention rates and stark racial disparities....

As Judge James Carr of the U.S. District Court for the Northern District of Ohio has observed, “Mass detention creates mass incarceration.”  Instead of maintaining a default position that most people awaiting trial should be jailed, Mr. Garland should enact policy changes that limit pretrial jailing to cases where it is genuinely necessary, eliminate all financial considerations from the detention calculus and aim to reduce racial disparities in pretrial detention.

These common-sense changes would mark the true beginning of a progressive-prosecutor movement at the federal level. Prosecutors fostered the culture of detention. Now they must help dismantle it.

February 24, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Monday, February 22, 2021

Notable quotables on criminal justice issues from AG-nominee Merrick Garland during his confirmation hearing

This new Reuters piece provides some choice quotes from U.S. Attorney General Nominee Garland on criminal justice policies during his Senate confirmation hearing today. I sense advocates of criminal justice reform will be pleased with these comments:

DEATH PENALTY

Garland told Congress he used to support the death penalty, including the execution of Oklahoma City bomber Timothy McVeigh, a case he prosecuted.  He said his views have evolved due to concerns about executing innocent people and its disparate impact on communities of color.

“I have had a great pause about the death penalty.  I am very concerned about the large number of exonerations that have occurred through DNA evidence and otherwise,” he said. “The data is clear that it has an enormously disparate impact on Black Americans and members of communities of color.”

MARIJUANA PROSECUTIONS

Garland revealed he will not seek to prioritize marijuana possession prosecutions. “We can focus our attention on violent crimes and other crimes that put great danger in our society, and not allocate our resources to some things like marijuana possession.”

ON SENTENCING REFORM

“We should do as, as President Biden has suggested, seek the elimination of mandatory minimum.  So that we once again give authority to district judges and trial judges to make determinations based on all of the sentencing factors that judges normally apply.”

“We don’t have to seek highest possible offense with the highest possible sentence. ... Legislatively, we should look at equalizing ... what’s known as the crack powder ratio, which has had an enormously disproportionate impact on communities of color.”

This CNN article about the hearings suggests that Garland is on his way to being confirmed as the next U.S. Attorney General, and it will be interesting to see just how he goes about operationalizing these sentiments though DOJ's work and through advocacy to Congress.

February 22, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (3)

Monday, February 15, 2021

Any guesses for when we might again have a fully functioning US Sentencing Commission?

It has been far too long since the US Sentencing Commission has been fully functional, and this post is my indirect way of saying that I hope getting the USSC back in action with a full slate of Commissioners is a top priority for the Biden Administration.  But, given that we still do not yet have a new confirmed Attorney General nearly a month into the new administration, and especially with other business (and other judicial openings) sure to be a higher priority, I am wondering if it may still be months before we can start talking seriously about what the "new Commission" ought to be doing to advance criminal justice reform.

Former Prez Donald Trump's track record with respect to the US Sentencing Commission was quite spotty.  As noted in this April 2017 post, the USSC had only two of seven commissioner slots filled at the start of 2017 (which led the Commission not to advance any formal amendments to the guidelines in that year).  Senate confirmation of two nominees gave the USSC a functioning quorum to be able to move forward with 2018 guideline amendments.  But a slate of new nominees to the Commission by former Prez Trump in March 2018 were controversial and got a cold shoulder from the Senate leaving the USSC again with only two Commissioners (and thus without a quorum) as it entered 2019.  Prez Trump  thereafter did not announce new nominees until August 2020 and, according to this recent Law360 piece, those names were never even formally sent to the Senate.

Long story short, the US Sentencing Commission was only somewhat functional for a small portion of the last four years, and the USSC has not had complete set of commissioners firmly in place for the better part of a decade.  The USSC staff has completed lots of research and has churned out many reports in the interim, but the FIRST STEP Act's passage in December 2018 made it particularly problematic for the USSC to have been non-functional in terms of formal amendments or agendas in recent years.

As reveled on this official US Sentencing Commission page, right now the USSC currently has only a single Commissioner and so will need six new confirmed members to be back to full strength (and it needs at least three new commissioners to have a quorum to even be somewhat functional).  All these vacancies present Prez Biden with an important opportunity to revive and reshape the work of the Commission at a time when the work of the Commission could and should be especially important.  And, as I noted in this post in November, the criminal justice reform recommendations of the Biden-Sanders Unity Task Force (first discussed here; available here pp. 56-62) included this notable recommended agenda for the USSC:

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.

I am hopeful that the Biden Administration is already working toward developing a list of nominees for the Commission (which, by statute, have to be bipartisan). I am especially hopeful that the Biden team might be already getting input on this list from key folks in the Senate so that any eventual slate of nominees will be well-received and quickly confirmed.  But, as suggested at the outset, because of various competing priorities and the (usual and unusual) inside-the-Beltway distractions, I really do not have a good guess to the question in the title of this post.

February 15, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Thursday, February 11, 2021

How about some clemency grants from Prez Biden while his team works on grander clemency plans?

I am very pleased to see this lengthy new Politico piece shining a light on federal clemency under this full headline: "Trump left behind a clemency mess.  The clock’s ticking for Biden to solve it. Lawyers and criminal justice advocates are pushing Biden to act swiftly.  But Covid and the economy are pushing action back."  I recommend the whole piece, and here are excerpts:

Biden’s White House counsel’s office has started to reach out to attorneys and advocates for suggestions on reforms, what could be done about the backlog, and mistakes they believe were made in previous administrations, according to the people familiar with the conversations.  Roy Austin, an Obama administration veteran who served on the Biden transition team on Justice Department issues, has spoken to advocates as well.  Biden’s new adviser on criminal justice issues at the Domestic Policy Council, Chiraag Bains, is expected to play a role too, according to two people familiar with the situation.

But the White House has revealed little about its own plans. And attorneys and advocates still worry that Biden’s team lacks a comprehensive plan for dealing with the enormous backlog.  Perhaps for good reason: A former Obama aide said that while Biden’s team is familiar with the clemency problems it faces, it has been too busy with nominations, executive orders and proposed legislation, including those designed to tackle the coronavirus pandemic and cratered economy.  “They couldn’t have had time to formulate a plan,” the person said.

More than 100 progressive groups working on criminal justice issues are urging Biden to overhaul the arduous clemency process and start resolving cases right away.  One of them, the ACLU, launched an ad campaign to push him to grant clemency to 25,000 people and make good on his pledge to tackle criminal justice issues amid a national reckoning on racial injustice.  Among those who have met with Biden’s team are Cynthia Roseberry, deputy director of policy at the American Civil Liberties Union's Justice Division, and Nkechi Taifa, convener of the Justice Roundtable, an umbrella organization on criminal justice issues....

“The time to figure out how to do this should’ve been during the transition,” said Mark Osler, a former federal prosecutor who serves as a law professor at the University of St. Thomas in Minneapolis who is pushing for a change. “The danger is that they’ll replicate the mistake the past several administrations have done of never focusing on it until it’s too late and it’s a mess.”

The White House did not respond to questions but released a statement. “President Biden has laid out an ambitious agenda to address problems in our criminal justice system that have resulted in overincarceration and miscarriages of justice, and he has a talented team of attorneys working to examine appeals for clemency to ensure sentences are consistent with the values he’s articulated,” White House spokesman Michael Gwin said.

In modern history, presidents have treated clemency as an afterthought, granting it in their waning days, often as a gift to friends and associates. Trump was no exception and took that a step further. In most cases, Trump bypassed the lengthy, multilevel process for clemency that has been conducted for more than a century. Instead, he made decisions through an ad hoc system where politically connected allies and well-paid lobbyists tried to persuade him in person and on TV to use pardons to help friends and hurt enemies.

In total, Trump granted 237 pardons or commutations and denied 180 cases. Many of those he acted on were headline-grabbing: former members of Congress, numerous people convicted in Robert Mueller’s probe into Russia’s 2016 election interference, and security contractors convicted for massacring Iraqi civilians in 2008. He failed to act on thousands of other cases, leaving 13,750 behind for Biden. But the current backlog — the largest on record, according to the Justice Department and experts — can’t be blamed on Trump alone.

Barack Obama waited well into his second term to act. When he urged federal prisoners to apply for leniency under his clemency initiative, which allowed certain inmates to make their case for getting their sentences commuted, petitions soared. He received more than 36,000 requests, the largest total of any president on record. And he acted on an historic amount — more than 22,000 cases — granting clemency 1,927 times, including 212 pardons and 1,715 commutations.

But Obama didn’t take care of all the pending cases, leaving behind 13,000 of them when he left office. And when his final pardon attorney, Deborah Leff, resigned in January of Obama’s final year in office, she lamented that the clemency initiative didn’t have enough resources. “In his clemency initiative, President Obama focused significant resources on identifying inmates, most of them people of color, who had been sentenced to excessive and draconian sentences,” said Neil Eggleston, who served as White House counsel for Obama. “The president would have liked to clear the backlog in pending petitions, but resources spent in achieving that goal would have resulted in fewer inmates who were serving those excessive sentences for relatively minor drug crimes being released.”...

Obama’s aides say they began talking about the pardon process during the transition but they didn’t take Bush’s advice because they had other priorities, including health care. Advocates and lawyers hope Biden learns the lessons of history and makes clemency a first term priority.

“We hope he’ll break from what folks have done in the past and do things at the last minute or as a gift,” Roseberry said. “Our position is it should be used now and as much as necessary to correct all of the wrongs that we now acknowledge from our past criminal legal system. ... It takes courage to do it this year.  We are ready for this.  It’s time. It’s past time.”

Biden didn’t campaign aggressively on the issue of clemency. But supporters of his and Sen. Bernie Sanders (I-Vt.) did address the topic in its 110-page list of recommendations designed to try to unite the two camps ahead of the November election. One of the main proposals that the task force put forward also is one of priorities of criminal justice reform advocates: the creation of an independent clemency board.

The Biden-Sanders task force proposed a 60-person agency composed of people with diverse backgrounds to review cases.  The Democratic Party’s 2020 platform, likewise, called for an independent clemency commission, taking the process out of the Justice Department, which, some activists argue, is ill-suited to submit clemency recommendations to the White House since it also prosecutes the cases.

Rep. Steve Cohen (D-Tenn.), who chairs the House Judiciary subcommittee with jurisdiction over pardons, lobbied Obama and Trump to issue more pardons. He said he plans to do the same for Biden. “There are ... more and more people in jail, and a lot of those people have been there forever and they have been there for long draconian sentences,” Cohen said. “They’re basically wasting their lives, wasting the federal government’s finances ... and destroying lives and families. It’s a total loser, but we do it.”

Regular readers will not be surprised to hear me endorse the sentiments of Cynthia Roseberry, namely that "It’s time. It’s past time."  I also share Mark Osler's view that this could have and should have been a transition priority for the Biden team.  Still, I am not inclined to aggressively criticize the Biden Administration if it currently has advisers and insiders talking to and working with advocates about how to put together a "comprehensive plan" for effective clemency reform.  But, as the title of this post is meant to highlight, taking a careful and deliberative process toward grander reform of the entire clemency process should not be an excuse for Prez Biden to hold back entirely on the use of his clemency pen.

I am certain that there must be many dozens, and probably many hundreds, of cases that ought to be federal clemency "no-brainers."  (For example, women and men on the CAN-DO site or the lifer marijuana offenders assembled at Life for Pot or person highlighted by NACDL’s Trial Penalty Clemency Project.)  I am pretty confident that only a relatively little amount of time would be needed for members of the Biden team to identify at least a handful of compelling cases that could and should allow clemency grants to be part of Prez Biden's 100-day agenda and legacy.  As Senator Cohen highlights, every day of delay is another day "wasting their lives, wasting the federal government’s finances, and destroying lives and families."

A few of many recent related posts:

February 11, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, January 30, 2021

So what's a reasonable expectation for how many of Prez Biden's judicial nominees will be criminal defense or civil rights lawyers?

There is a long-standing concern, especially among criminal justice reform advocates and civil rights groups, that the federal judiciary is badly skewed because of the disproportionate number of judges who are former prosecutors or former government lawyers or have only private practice experience.  As noted in this post, Clark Neily at Cato has done great work on this front with this report from late 2019 with these core findings:

[I]t is generally perceived that a disproportionate number of federal judges served as government lawyers before donning a robe.  Until now, however, no one had ever examined the professional background of every sitting federal judge to see whether that perception is true.  So Cato’s Project on Criminal Justice devised a methodology for coding judges’ prior professional experiences and went through the federal judiciary judge by judge to test that perception.

What we found confirms the conventional wisdom: Former government lawyers — and more specifically, lawyers whose formative professional experiences include serving as courtroom advocates for government — are vastly overrepresented on the federal bench.  Looking only at former prosecutors versus former criminal defense attorneys (including public defenders), the ratio is four to one.  Expanding the parameters to include judges who previously served as courtroom advocates for government in civil cases as well as criminal cases, and comparing that to judges who served as advocates for individuals against government in civil or criminal cases, the ratio is seven to one.

Taking a slightly different approach to these issues, the Center for American Progress produced this August 202 study with an even more stark accounting of professional imbalance in the federal circuit courts:

[P]rofessional diversity on the federal appellate courts is severely lacking, with significant implications for the type of legal expertise underlying the opinions these judges issue. Only about 1 percent of sitting circuit court judges have spent the majority of their careers as public defenders or within a legal aid setting.  In contrast, the federal appellate bench is swamped with those who spent the majority of their careers in private practice or as federal prosecutors — making up more than 70 percent of all sitting appellate judges.  No sitting judge spent the majority of their career with a nonprofit civil rights organization.

Notably, though I can think of a few prominent former criminal defense attorneys that Prez Barack Obama placed on the federal bench, this recent article highlights that he did not significantly improve these historic imbalances: "Around 14% of President Obama’s nominees for federal district and appeals court judges had experience working in public defense. Meanwhile, 41% of his nominees had experience working as prosecutors."

Encouragingly, there is now considerable chatter and seemingly considerable effort focused on Prez Biden making sure a much greater number of his judicial nominees are criminal defense or civil rights lawyers.  Here is just some of the recent press discussions on this front:

From The Hill, "Biden team asks Senate Democrats to recommend public defenders, civil rights lawyers for federal bench"

From NBC News, "After Trump, Democrats set out on a mission to 'repair the courts'"

From Reason, "Biden's Judicial Picks Should Include Lawyers Who Battled the Government in Court"

From the San Diego Union-Tribune, "Judges with criminal defense or civil rights backgrounds are rare in federal court. We need more."

Given the existing imbalances, I do not think it would be problematic or misguided for Prez Biden to aspire to have all of his judicial nominees, at least during his first year in office, be persons with criminal defense or civil rights backgrounds.  Certainly, I hope his very first judicial nominee should have this professional history (and elevating U.S. District Judge Ketanji Brown Jackson to fill Merrick Garland's seat on the DC Circuit, as has been discussion, would be a great way to start).  And I am certain there is an existing pool of many thousands of qualified potential nominees with significant criminal defense and/or civil rights experience from which to pick for the roughly 50-100 federal judicial nominees he may be able to make in the coming year.

But I am prepared to admit that it is likely unrealistic for anyone to expect all of Prez Biden's 2021 judicial nominees to be criminal defense or civil rights lawyers.  But what is realistic?  Would it be crazy to hope and expect that there are four judicial nominees with this kind of professional history for every one without such a history?  At least two?  I suspect (and fear) that the Biden team will garner considerable praise if even 50% of its judicial nominees have some criminal defense or civil rights background, but I will likely be disappointed if it is not even higher.

January 30, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (3)

Friday, January 29, 2021

Interim Attorney General releases new "Interim Guidance on Prosecutorial Discretion, Charging and Sentencing"

601446752800005c00974ec2Via this HuffPost piece, headlined "DOJ Pulls Trump Administration’s Harsh Charging And Sentencing Policy," I see that the failure of the Biden Administration to yet have a new confirmed Attorney General is not keeping it from having a new prosecutorial charging and sentencing policy.  Well, actually, the Biden Justice Department now has an old charging and sentencing policy, as explained by HuffPost:

In a memo to all federal prosecutors obtained by HuffPost, acting Attorney General Monty Wilkinson rescinded a May 10, 2017, memo from then-Attorney General Jeff Sessions.  At the time, Sessions told federal prosecutors across the country to always pursue to harshest charges and penalties possible unless they received specific permission from their supervisors.

“The goal of this interim step is to ensure that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts while longer-term policy is formulated,” Wilkinson wrote.

Under Donald Trump-era policies, prosecutors were instructed to always disclose any facts that would trigger mandatory minimum sentences during the sentencing process.  If a prosecutor wished to recommend a departure or variance to a judge during the sentencing process, they were also told to get a supervisor’s approval.

For now, the Justice Department is reverting back to a 2010 charging and sentencing policy issued by former Attorney General Eric Holder.  Under Holder’s guidelines, federal prosecutors were encouraged to focus on “individualized justice” and decision-making based on “the merits of each case.”

This change is not unexpected, but it is still a big deal (and really a much bigger deal than the recent Executive Order on private prisons). Because this is a big deal, I am quite disappointed this change is announced on a Friday afternoon and without seemingly any official statement (yet) from the Justice Department.  Because we are still awaiting confirmation hearings for AG-nominee Merrick Garland, I suppose I can understand why this is getting a "soft launch" and is merely a partial reversal back to prior Obama-era policies.  But, at a time when there is a real interest and concern for criminal justice reform, this memo could be a real "teaching moment" if handled differently.  Sigh.

January 29, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Lots of commentary and advice for Prez Biden's criminal justice reforms task one week in

Prez Biden has been on the job for only a little more than a week, but lots of folks already have lots of thoughts and advice for what he (and his party) should be doing in the criminal justice reform arena.  Here is a round up of just some of the discussions I have seen in recent days:

From Al Jazeera, "Biden and prison reforms – a soft target?"

From The American Prospect, "How Biden Should Prosecute Corporate Crime: In top-to-bottom criminal justice reform, let’s not forget the top."

From The Appeal, "Why The Biden Administration’s Choice To Lead The Bureau Of Prisons Matters"

From Bloomberg Law, "Criminal Justice Changes Need Harris to Lead, Advocates Say"

From the Boston Globe, "Biden must not miss the urgency of the moment on criminal justice reform"

From The Hill, "True criminal justice reform requires family support"

From HuffPost, "After Trump’s Execution Spree, Criminal Justice Leaders Urge Biden To End Death Penalty"

From Reason, "Democrats Have No Excuse Not to Reform the Criminal Justice System"

From Time, "‘Much More Work To Be Done.’ Advocates Call for More Action Against Private Prisons After Biden's ‘First Step’ Executive Order"

From USA Today, "Biden's executive orders on criminal justice should extend to inmates sent home by COVID"

January 29, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Tuesday, January 26, 2021

Prez Biden signs Executive Order "to Eliminate the Use of Privately Operated Criminal Detention Facilities" in the federal prison system

I had heard reports that today was going to be a day for Prez Biden to sign a number of executive orders related to criminal justice, but it seems as though only one such order was actually signed today during an event that was focused more broadly on racial equity.  Still, as reported in this AP piece, the one criminal justice executive order signed today is still notable:

President Joe Biden on Tuesday ordered the Department of Justice to end its reliance on private prisons and acknowledge the central role government has played in implementing discriminatory housing policies. In remarks before signing the order, Biden said the U.S. government needs to change “its whole approach” on the issue of racial equity. He added that the nation is less prosperous and secure because of the scourge of systemic racism....

Beyond calling on the Justice Department to curb the use of private prisons and address housing discrimination, the new orders will recommit the federal government to respect tribal sovereignty and disavow discrimination against the Asian American and Pacific Islander community over the coronavirus pandemic....

The order to end the reliance on privately-run prisons directs the attorney general not to renew Justice Department contracts with privately operated criminal detention facilities. The move will effectively revert the Justice Department to the same posture it held at the end of the Obama administration. “This is a first step to stop corporations from profiting off of incarceration,” Biden said.

The more than 14,000 federal inmates housed at privately-managed facilities represent a fraction of the nearly 152,000 federal inmates currently incarcerated. The federal Bureau of Prisons had already opted not to renew some private prison contracts in recent months as the number of inmates dwindled and thousands were released to home confinement because of the coronavirus pandemic.

GEO Group, a private company that operates federal prisons, called the Biden order “a solution in search of a problem.” “Given the steps the BOP had already announced, today’s Executive Order merely represents a political statement, which could carry serious negative unintended consequences, including the loss of hundreds of jobs and negative economic impact for the communities where our facilities are located, which are already struggling economically due to the COVID pandemic,” a GEO Group spokesperson said in a statement.

David Fathi, director of the American Civil Liberties Union’s National Prison Project, noted that the order does not end the federal government’s reliance on privately-run immigration detention centers. “The order signed today is an important first step toward acknowledging the harm that has been caused and taking actions to repair it, but President Biden has an obligation to do more, especially given his history and promises,” Fathi said.

The full EO, which is titled "Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities," can be found at this link, and it has this interesting "preamble" in its first section:

Policy.  More than two million people are currently incarcerated in the United States, including a disproportionate number of people of color.  There is broad consensus that our current system of mass incarceration imposes significant costs and hardships on our society and communities and does not make us safer.  To decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities. 

We must ensure that our Nation’s incarceration and correctional systems are prioritizing rehabilitation and redemption.  Incarcerated individuals should be given a fair chance to fully reintegrate into their communities, including by participating in programming tailored to earning a good living, securing affordable housing, and participating in our democracy as our fellow citizens.  However, privately operated criminal detention facilities consistently underperform Federal facilities with respect to correctional services, programs, and resources.  We should ensure that time in prison prepares individuals for the next chapter of their lives. 

The Federal Government also has a responsibility to ensure the safe and humane treatment of those in the Federal criminal justice system. However, as the Department of Justice’s Office of Inspector General found in 2016, privately operated criminal detention facilities do not maintain the same levels of safety and security for people in the Federal criminal justice system or for correctional staff.  We have a duty to provide these individuals with safe working and living conditions. 

January 26, 2021 in Criminal justice in the Biden Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Saturday, January 23, 2021

"What a Libertarian Attorney General Could Do"

The title of this post is the title of this new Cato commentary by Clark Neily.  I recommend the whole piece, and here are some excerpts:

Inauguration Week seems like an opportune time to think how much more just the Department of Justice could be if President Biden took the bold step of putting a libertarian in charge of it.  As I've written before, our criminal justice system is fundamentally rotten — it punishes vast amounts of morally blameless conduct, uses coercion-fueled mass adjudication to perpetuate mass incarceration, and insists upon a policy of near-zero accountability for its own transgressions.  Indeed, it is doubtful whether any American institution inflicts more injustice than our so-called criminal "justice" system.

One might argue that because the vast majority of criminal enforcement occurs at the state level there's not much point in focusing on the federal system.  I disagree.  The U.S. Department of Justice looms large over the entire criminal-justice landscape by establishing norms, setting examples, providing oversight, and offering — or withholding — financial incentives to other agencies and jurisdictions.  For better or worse, DOJ represents a kind of industry gold standard for criminal justice.  And that's disturbing because, as discussed below, many of DOJ's standard practices are astonishingly unjust.

DOJ is a sprawling, $30 billion-a-year agency that wears many hats.  Accordingly, it would be impossible to provide a comprehensive list of proposed reforms in a single blog post.  But one of the most consequential things DOJ does — and an area in particular need of fundamental reform — is the enforcement of federal criminal laws.  On that front, a libertarian attorney general would be well-advised to address three specific issues: accountability, prosecutorial tactics, and institutional culture.

1. Accountability.  The lack of accountability among federal prosecutors is simply astonishing.  Perhaps the most stark — but by no means isolated — illustration is the Ted Stevens case, in which prosecutors systematically cheated their way through the prosecution of a sitting U.S. senator, got caught, and were subjected to no meaningful discipline of any kind....

2. Prosecutorial tactics.  Many of the tactics used by DOJ prosecutors — especially to induce people to waive their constitutional right to a jury trial and plead guilty, which more than 90 percent of federal defendants end up doing—are simply shocking....

3. Institutional culture.  A major part of the problem is that people who work within the criminal justice system come to accept as perfectly normal and unobjectionable the kinds of policies and tactics described above, such as letting misbehaving prosecutors off with a slap on the wrist (if that) and applying such extraordinary pressure on defendants to plead guilty that almost no one chooses to exercise their constitutionally guaranteed right to a trial anymore....

The bad news is that our criminal justice system is fundamentally broken and unjust.  The good news is that criminal justice reform represents a vast orchard of low-hanging fruit—policies that could be adopted overnight and would ameliorate some of the system's worst pathologies and realign many of its most perverse incentives.

Maybe putting someone whose core value is liberty in charge of an agency whose core mission is depriving people of it isn't such a crazy idea after all.

January 23, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Friday, January 22, 2021

37 Democratic member of Congress call on Prez Biden to "commute the sentences of all those" on federal death row

Via this letter, more than three dozen congressional Democrats has urge to communte the federal death sentences of all 49 condemned men on federal death row.  Here are excerpts from the letter:

We write to you today with grave concerns regarding the federal death penalty.  As members of Congress, we stand ready to work with you on your commitment to rebuilding the dignity of America.  We believe that rebuilding the dignity of America requires that we recommit ourselves to the tradition of due process, mercy, and judicial clemency when it comes to matters related to the criminal legal system.  For this reason, we urge you to immediately commute the sentences of all those on death row....

We appreciate your vocal opposition to the death penalty and urge you to take swift, decisive action. After referring to the death penalty as “deeply troubling,” President Obama halted federal executions and commuted the sentences of two federal prisoners on death row.  However, the Obama administration’s reticence to commute more death sentences has allowed the Trump administration to reverse course and pursue a horrifying killing spree over the final seven months of his presidency. Commuting the death sentences of those on death row and ensuring that each person is provided with an adequate and unique re-sentencing process is a crucial first step in remedying this grave injustice....

As President, you can exercise your executive clemency power by commuting the sentences of all those on death row and ensuring a fair re-sentencing process.  This moment demands a series of meaningful actions to ensure that no President can authorize the killing of Americans through the death penalty.  This includes dismantling death row at FCC Terre Haute, and establishing clear executive guidelines prohibiting federal prosecutors from seeking the death penalty.  In addition to those steps, you can call on the U.S. Congress to pass H.R. 262, the Federal Death Penalty Prohibition Act, sponsored by Representative Ayanna Pressley and Senator Dick Durbin, which would end the death penalty once and for all. Until that legislation is law, it is incumbent upon the executive branch to end the barbaric practice of federal executions as quickly as possible.

Beyond the substantive basics of seeking capital commutations for all on federal death row, I find it quite interesting that this letter calls upon Prez Biden to "ensur[e] that each person is provided with an adequate and unique re-sentencing process."  Typically, death row commutations by governors change death sentences to life without parole, and the two federal death sentences commuted by Prez Obama were both turned into LWOP sentences.  But many progressives now view an LWOP sentence as just a functional death sentence by another name, and so it seems these membrs of Congress are eager to have these now condemned men to have a chance to receive sentences less than life.  Relatedly, I am not aware of any commutation that has come with an instruction for a judge to conduct a full resentencing.  But because the clemency power is broad, I presume it would be permissible for a Prez to commute a sentence with these terms. 

As regular readers know, I am eager for any and every president to make regular and robust use of the historic clemency power.  But it might be wiser for the very first clemencies from Prez Biden to involve cases less likely to garner widespread controversy and involving persons who have not committed the most aggravated of crimes.

January 22, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

Thursday, January 21, 2021

Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?

Regular readers know that I have been following federal prison population data quite closely during the COVID era and giving particular attention to the numbers the federal Bureau of Prisons updates weekly at this webpage.  This morning, which just happens to be the first full day of the new Biden Administration, BOP reports "Total Federal Inmates" at 151,646.  I am very curious to hear predictions as to what this number might be a year from now, or two years from now, or four years from now.

Here is some notable recent historical perspective.  Thanks to the wayback machine, we can see here that during Prez Trump's first week in office in late January 2017, BOP was reporting 189,212 total federal inmates.  Because I cannot find parallel data going back to the Obama inaugural months, I can just link to BOP historical data showing the federal prison population was reported at 201,668 at the end of 2008 and was at 218,687 at the end of 2012.  So, roughly speaking, the federal prison population increased by 17,000 persons during Prez Obama's first term (roughly 8%), and then it declined nearly 20,000 persons during Prez Obama's second term (roughly 9%).  And then the federal prison population decreased by nearly 38,000 persons(!) during Prez Trump's term (nearly 20%).

Gosh knows I would not have predicted that the federal prison population would have increased so significantly during Prez Obama's first term, and I also would not have predicted that this prison population would have decreased so much more significantly during Prez Trump's time in office.  Of course, the unpredictable COVID pandemic is a big part of this Trump era story, but BOP data shows that the federal prison population was declining at a pretty steady clip even in the pre-COVID years of the Trump era despite the fact Trump's Justice Department back in 2017, as noted here, was forecasting prison population increases. 

In short, hindsight shows that the direction of the federal prison population is quite hard to predict.  So, all the more reason for me to want to hear any and all new predictions now.  I am tempted to predict the federal prison population will be relatively steady during the Biden years, at least initially.  Though I would like to see Biden's Justice Department do a lot more to get a lot more vulnerable inmates out of federal prisons, I suspect it may be many months before we see any big DOJ policy changes and likely many more months before any big policy changes start to impact the federal prison population.  (I would love to see the Biden Administration have the gut to set a target of a federal prison population under 100,000, but I will save discussion of that idea for a future post.)

So, dear readers, any federal prison population predictions for the Biden era?

January 21, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Wednesday, January 20, 2021

Reviewing some old but still timely advice for new presidents past

As regular readers know, I have already done a lot of posts on what I and others believe new Prez Biden should be doing to reform our criminal justice systems.  For now, as I watch Prez Biden give his innaugural speech and related festivities, I thought to look back on some blogging in years past when former Prez Obama and former Prez Trump first took office.  Here is a small sampling of posts from January 2009 and from January 2017 that still feel timely:

From Jan 2009:

From Jan 2017:

January 20, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Monday, January 11, 2021

Interesting accounting of the "Top 5 Criminal Justice Reforms Advocates Want Under Biden"

Law360 has this notable new piece under the headline "Top 5 Criminal Justice Reforms Advocates Want Under Biden." Here is the preamble to the annotated Top 5 list, as well as the list itself:

Joe Biden's election as president has sparked hope among criminal justice advocates and organizations that his administration will overhaul the U.S. criminal justice system and implement reforms they have been seeking for years.

Biden's campaign website promises that the Democratic president-elect will "strengthen America's commitment to justice and reform our criminal justice system," and includes dozens of proposed changes to be made under his administration. But whether he will achieve all of these promises is unclear.

Advocates told Law360 that Biden's biggest challenge will be fighting political opposition and uniting Congress. However, they believe having a president who prioritizes criminal justice reform could sway lawmakers to pass legislation that has been collecting dust on their desks.

"Even though there's bipartisan consensus around the need for criminal justice reform, what that means in practice, what the fine print is, is where all the challenge is, and there isn't necessarily consensus right now," said Kara Gotsch, director of strategic initiatives for The Sentencing Project, a nonprofit research organization seeking to reduce incarceration rates.

Here are the top five criminal justice reforms that advocates told Law360 they want under Biden's administration and what the president-elect has promised he will do:

1.  Address COVID-19 in Prisons and Jails...

2.  End Mandatory Minimum and Life Sentences...

3.  Expand Decriminalization of Drug Use...

4.  More Policing Accountability and Alternatives...

5.  Expand Incarceration Alternatives and Community Programs...

Especially because there are three federal executions scheduled for this week, I am a bit surprised that this list did not include abolishing the federal death penalty.  I also know many advocates are eager to see clemency reform as part of the Biden agenda (though the commentary includes suggestions that aggressive use of clemency by Prez-elect Biden could help achieve these other goals).

Because there is so much criminal justice reform work to do, it will be quite interesting to see what CJ issues are given priority in the weeks and months ahead.  Of course, what gets prioritized and what actually gets done will not just be shaped by Biden's appointments to the Justice Department, but also by what folks on Capitol Hill might have in mind.  Especially with certain GOP legislators now talking about the importance of "unity," perhaps federal legislators can unify around getting some significant criminal justice reform enacted in the first 100 days of the Biden Adminstration.

Some prior related posts:

January 11, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, January 06, 2021

Prez-elect Biden's slate of nominees for the Justice Department revealed, with Judge Merrick Garland tapped for Attorney General

As reported in this new AP piece, "President-elect Joe Biden has selected Merrick Garland, a federal appeals court judge who in 2016 was snubbed by Republicans for a seat on the Supreme Court, as his attorney general, two people familiar with the selection process said Wednesday."  Here is more on who is slated to help run a new Justice Department:

Biden is expected to announce Garland’s appointment on Thursday, along with other senior leaders of the department, including former homeland security adviser Lisa Monaco as deputy attorney general and former Justice Department civil rights chief Vanita Gupta as associate attorney general.  He will also name an assistant attorney general for civil rights, Kristen Clarke, the president of Lawyers’ Committee for Civil Rights Under Law, an advocacy group.

Garland was selected over other finalists including Alabama Sen. Doug Jones and former Deputy Attorney General Sally Yates.  The people familiar with the process spoke on condition of anonymity.  One said Biden regards Garland as an attorney general who can restore integrity to the Justice Department and as someone who, having served in the Justice Department under presidents of both political parties, will be respected by nonpartisan career staff.

If confirmed, Garland would confront immediate challenges, including an ongoing criminal tax investigation into Biden’s son, Hunter, as well as calls from many Democrats to pursue inquiries into Trump after he leaves office.  A special counsel investigation into the origins of the Russia probe also remains open, forcing a new attorney general to decide how to handle it and what to make public.  Garland would also inherit a Justice Department that has endured a tumultuous four years and would likely need to focus on not only civil rights issues and an overhaul of national policing policies after months of mass protests over the deaths of Black Americans at the hand of law enforcement.

It was unclear how Garland’s selection would be received by Black and Latino advocates who had advocated for a Black attorney general or for someone with a background in civil rights causes and criminal justice reform.  But the selection of Gupta and Clarke, two women with significant experience in civil rights, appeared designed to blunt those concerns and offered as a signal that progressive causes will be prioritized in the new administration....  Monaco brings to the department significant national security experience, including in cybersecurity — an especially urgent issue as the U.S. government confronts a devastating hack of federal agencies that officials have linked to Russia.

I have sensed that Garland's record as a relative moderate on criminal justice issues while serving as a judge on the DC Circuit has led many criminal justice reform advocates to not be especially excited by the prospect he could become Attorney General.  But, as this AP article suggests, the naming of Vanita Gupta as associate attorney general should exciting CJ reformers.  In forthcoming confirmation hearing and in other setting, it will be very interesting to see what tone a future AG Garland and other new DOJ members will set as to criminal justice reform efforts generally and as to what sets of CJ issues may be initially given the most attention.

January 6, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (5)

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:

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

January 6, 2021 in Campaign 2020 and sentencing issues, Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (1)

Friday, January 01, 2021

Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62); I stressed in one of those posts that Prez-elect Biden could get started right away in implementing recommendations calling for creating a new "Task Force on Prosecutorial Discretion" and a "Clemency Board."  Especially with so much clemency chatter as Prez Trump's term comes to a close, I am eager to again amplify attention on the clemency recommendation.  Helpfully, this lengthy new Bloomberg piece, headlined "Biden Gets Unlikely Advice on Pardons: Copy Trump, Sideline DOJ," provides some useful background and context.  Here are excerpts:

President Donald Trump’s pardons of some of his closest allies have sparked a political firestorm, but criminal justice reform advocates believe he has done one thing right: sideline the Department of Justice from clemency decisions.  But rather than use that control the way Trump has, those advocates want to see President-elect Joe Biden use it to help non-violent drug offenders with questionable convictions or harsh sentences.  Relying on the DOJ’s Office of the Pardon Attorney to review and make recommendations on clemency requests, they say, is bureaucratic and puts those decisions in the hands of the department that put the offenders behind bars....

Biden’s criminal justice plan proposes a number of reforms and says he will “broadly use his clemency power for certain non-violent and drug crimes.” The campaign would not comment past the plan’s language.  In addition to removing the sole oversight of the Office of the Pardon Attorney, Biden could improve the process by creating a permanent independent advisory panel that includes criminal justice reform activists, defense attorneys and pardoned convicted offenders, alongside federal prosecutors, supporters say.

“It should certainly include people who are formerly incarcerated because they know that walk better than anybody,” said Cynthia W. Roseberry, deputy director of policy in the Justice Division of the American Civil Liberties Union.  “Also include criminal justice reform experts and members of the community who can opine about the fact that we want people to come home.  I’m not suggesting leaving DOJ out,” Roseberry added.  “They can definitely have a prosecutor at the table.  But it should look like the community.”

Though the Biden campaign language does not commit to creating a new clemency infrastructure, the criminal justice reform recommendations from the Biden-Sanders Unity Task Force expressly proposes doing so:

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.

Long-time readers should not be surprised to hear me vocally advocate for a clemency board given that way back in 2010, I urged then-Prez Obama to structurally change the federal clemency system in this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."  Here is a snippet from that piece:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, ... [the] basic idea is ... to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice."

Many others have been talking for many years in many better ways about the idea of an DOJ-independent clemency board or commission, and I especially think of the tireless work of Rachel Barkow and Mark Osler in promoting an improved clemency infrastructure (see, e.g., here and here and here and here).  And I want to here promote all ideas about clemency reform because I now believe when the Biden Administration gives attention to this matter is much more important than exactly how. 

As I noted in this recent post, among the many problems with the modern exercise of the federal clemency power is the modern tendency for Presidents to entirely ignore this power until late in their terms.  As detailed in this DOJ data, Prez Trump at least thought to use his clemency power, and did so nearly a dozen times, during his first couple years in office; Barack Obama and George W. Bush and Bill Clinton could not be bothered to pick up the clemency pen for a single individual during their first two calendar years in office.  If clemency work and reform is not made a priority in the weeks and months ahead, I fear that real reforms are unlikely to get done at all. 

At this moment, I am drawn to the notion of starting with a "clemency czar," particularly because appointing one initial advisor should be easier and quicker than creating a full clemency board.  And the aforementioned Rachel Barkow and Mark Osler and Cynthia Roseberry are all great names surely ready to serve in this role on day one.  And while ruminating on this topic, other great names of great people long doing great work in the criminal justice space come to mind, like Michelle Alexander and David Singleton and Bryan Stevenson.  (Heck, add in folks like Weldon Angelos, Brittany Barnett, Beth Curtis, Mark Holden, Shon Hopwood, Jessica Jackson and Amy Povah, and I guess it is not too hard to quickly envision a "Dream Team" for a badly-needed clemency board.) 

Some (of many) prior recent related posts on clemency reform:

Some prior related posts on CJUTF recommendations:

January 1, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, December 29, 2020

Rounding up some notable recent criminal justice commentary

There are lots and lots of interesting criminal justice issues floating around these days, and these recent commentary catching my eye capture just a slice of what some folks are talking about:

From the Boston Globe, "What Trump’s pardons say about criminal justice"

From CNN, "How Joe Biden can root out racism in criminal justice"

From CNN Business, "Criminal justice reform can start with employers who give felons a second chance"

From The Hill, "Joe Biden should eliminate federal death row on his first day in office"

From The Hill, "Five ways Biden can jumpstart criminal justice reform immediately"

From Lawfare, "Are Trump’s Pardons a Blessing in Disguise?"

From USA Today, "COVID-19 compels America to rethink who we lock up in prison"

From Vice, "2020 Was the Year That Momentous Drug Reform Became Normal"

December 29, 2020 in Clemency and Pardons, Criminal justice in the Biden Administration, Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Saturday, December 26, 2020

"Trump pardoned us. But pardons don’t replace criminal justice reform."

The title of this post is the title of this Washington Post commentary authored by Christopher 2X and Topeka K. Sam.  Here are excerpts:

In this holiday season, in a year of racial unrest, record gun violence in our cities, and a devastating pandemic, we received a blessing — a presidential pardon for our drug convictions.

We are extremely grateful. We’re fortunate to have many friends who have supported our work for justice, second chances and nonviolence since we left prison.  They vouched for us even though a pardon wasn’t something we requested for ourselves.

The blessing of a pardon, however, comes with a stark reminder of so many thousands who are not as fortunate as we are.  They are still stuck in a still flawed justice system that prizes the punitive over the rehabilitative — and they should not be.  For every one of us, there are thousands who are powerless and voiceless, who do not deserve the harsh punishment and treatment they’ve received in our criminal justice system, and whose names will never appear before a president for a pardon.

Because pardons alone can’t solve what needs fixing....  We incarcerate too many Black people, with horrible impacts on Black communities and families that last for generations — including distrust of government and police, and an inability for many to see the humanity in each other, even at early ages.  To young Black people, understandably, and tragically, the government is the demon.

It doesn’t have to be that way, and if we want safer, more just communities, it’s unsustainable.  But if we are ever going to coexist in peace so all children can reach their potential, we must reverse our history of racial injustice — a history, and a present, in which Black and Brown people have been excluded from the economy and society....

We’re grateful to be pardoned for our convictions.  We strived, when we left prison, to atone for the pain we inflicted on our family and friends, which gave us the motivation to work for justice and peace.

We plan to use our pardons as an example to others that there is such a thing as redemption in this country.  But we intend to keep fighting for change, in our laws and across society.  We must keep working intentionally and with determination to build a more equitable, just society, one in which everyone is treated with dignity and respect.

I am hopeful (though not optimistic) that Prez-elect Joe Biden will have the good sense to nominate to the US Sentencing Commission at least on person with direct expereince with the federal criminal justice system as a defendant. The commentary has me thinking that it could be especially meaningful and valuable for Biden to nominate to the uSSC persons like Christopher 2X and Topeka K. Sam who received pardons from Prez Trump.

December 26, 2020 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Thursday, December 24, 2020

A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month

It is hardly surprising that Prez Trump has kicked off his final weeks in office with sets of clemency grants that include all sorts of friends and family and politically-charged defendants (basics here and here).  It is perhaps even less surprising that Trump's latest flourish of clemency grants is garnering lots and lots of criticisms from lots and lots of quarters (just a few examples are here and here and here and here and here). 

But particularly notable in the first wave of reaction was US Senator Chris Murphy tweeting here that "It’s time to remove the pardon power from the Constitution."  Many tweeters have pushed back, and Rachel Barkow's tweet thread here is especially effective and I wanted to highlight some of what she says.  I recommend the whole thread, but these portions (with my bolding) partially motivated the title of this post:

[T]he Congress of which he is a part has established no functioning second-look mechanisms for shortening sentences or expunging convictions, commutations and pardons are the only mechanisms for correcting injustices in the federal system.  And it's not as if those injustices are rare.

Go to any federal correctional facility, and take time to learn who is there and about their cases, and you find literally thousands of people whose sentences were grossly excessive given their offenses.  Those people need commutations as a corrective because there is no parole or other second look in place to address that....

Pardons are essential as well because the collateral consequences of convictions can be devastating for people trying to get housing, employment, and education after being convicted. There is no other way to clear a federal conviction than a pardon....

The solution to what's happening now is to get a better leader, which we've done.  And my hope is that leader will see that the pardon power's utility is critical, and he'll show everyone what a real leader does when wielding it.

While I fully understand frustrations with how Prez Trump has been using his pardon power, I think much energy now should go to urging Prez-elect to do better and to do better right away! Among the many problems with the modern exercise of the federal clemency power is the modern tendency for Presidents to entirely ignore this power until late in their terms.  Notably, as detailed in this DOJ data, Prez Trump at least thought to use his clemency power, and did so nearly a dozen times, during his first couple years in office.  Neither Barack Obama nor George W. Bush nor Bill Clinton bothered to pick up their clemency pen for a single individual during their first two calendar years in office. 

As regular readers likely know, I think disuse of clemency powers is always a much bigger problem than the misuse of this power.  And disuse, not misuse, has defined the start of modern presidencies.  So this post presents my suggestion for what those troubled by Trump's final month clemencies ought to do — namely help identify for the incoming Biden Administration persons currently in federal prison and/or burdened by a federal conviction who should get a clemency grant during Biden's first month in office because they are at least as worthy as some of Trump's final-month clemency recipients.  Helpfully, Jack Goldsmith and Matthew Gluck have this current list of all Trump clemency recipients, and I would urge advocates to demand that Prez Biden grant many "good" clemencies as he gets situated in the Oval Office to balance Trump's "bad" use of this power on his way out the door.

I will start this process by flagging a group of federal prisoners that should be easy first cases for a Biden Administration, namely the "Life for Pot" crowd.  I do not think it is entirely misguided to describe persons still serving extreme federal terms for marijuana offenses as political prisoners, especially now that so many states have fully legalized marijuana and the US House has likewise voted to do so.  The Life for Pot website spotlights those Serving Sentences of Life without Parole in Federal Prison for Marijuana and those Serving De Facto Life.  I hope Senator Murphy will become an advocate for some of these kinds of prisoners and the thousands more who need the historic clemency power used more and better rather than needing it removed from the Constitution.

December 24, 2020 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Monday, December 21, 2020

Pondering next steps in federal sentencing reform on the second anniversary of the FIRST STEP Act

The FIRST STEP Act, which is fully titled the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, was signed by Prez Trump into law on Dec. 21, 2018.  That means today is the second anniversary of what many have rightly called the biggest federal criminal justice reform legislation in a generation — while others have also rightly called this law a relatively small modification to the federal criminal justice system.  Because I consider the FIRST STEP Act a very big deal and also a very small start of needed federal sentencing reform, I am inclined to ponder today just what could and should be the next steps after the FIRST STEP.

I am not quite sure if future big federal reform bills should be called the NEXT STEP or the SECOND STEP, but I am quite sure some of the criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62) would make a good starting point for the next Congress.  Here are just a few proposals that I would be eager to prioritize:

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.

Bureau of Prisons Oversight: Create a Bureau of Prisons ombudsman position for people who are incarcerated and their families to make complaints and get prompt redress.

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.

Juvenile Sentencing Reform: Abolish life without parole for juveniles.

There are lots of other good ideas in the Biden-Sanders Unity Task Force recommendations, but I have highlighted a few proposals which would largely require action by Congress (rather than reforms that might be achieved just though executive action or other means).  I am sure readers may have other ideas for legislative sentencing reforms that the next Congress should prioritize.

Though the FIRST STEP Act is now two years old, and though I do not think it is too early to think about the NEXT STEP or the SECOND STEP, I also think it critical that the next Congress and the Biden Adminstration keep working hard on robust application of the FIRST STEP Act.  Helpfully, the implementation picture is informed by the US Sentencing Commission's recent intricate data report (and this infographic) on “First Step Year One,” and the federal Bureau of Prisons and the National Institute of Justice have useful webpages about various other aspect of the Act.  But there is much more work still to do to ensure the FIRST STEP Act fulfills its full potential and has its maximum impact; I hope in 2021 that FIRST STEP work can move forward while another reform bill gets going.

A few of many, many prior related FIRST STEP Act posts:

December 21, 2020 in Criminal justice in the Biden Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

Thursday, December 17, 2020

Lots of recommendations for criminal justice reform for the incoming Biden Administration

The PBS News Hour has this recent piece headlined "What a Biden administration could mean for criminal justice reform," and it does a nice job providing a broad overview of the wide array of issues of concern to criminal justice reform advocates.  Here is the first paragraph of the extended piece:

President-elect Joe Biden will face pressure when he takes office to make swift changes to the Department of Justice.  But while he’ll be able to implement some reforms on his own, expected pushback from Congress and legal fights could make it hard for Biden to deliver many of the sweeping criminal justice reforms that advocates say are necessary.

I recommend the PBS piece for a quick and summary account of "the sweeping criminal justice reforms that advocates say are necessary."  But anyone interested in a fuller accounting of criminal justice issues of interest and concern on the eve of a new administration, be sure to check out these three big recent reports from prominent reform organizations setting forth ideas and recommendations for the incoming Biden Administration:

There reports collectively run well over a hundred pages, which serves to highlight just how robust and agenda some groups have for criminal justice reform as we anticipate a new administration and Congress.  I would welcome reader input and feedback (in the comments or via email) about whether any particular pieces of advice and specifics recommendations in these reports seem especially astute (or especially misguided).

December 17, 2020 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (5)

Tuesday, December 15, 2020

Reviewing CJUTF Recommendations: how might the Biden Administration seek to abolish the death penalty?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62, called the CJUTF hereinafter).  A few weeks ago, as explained here, I decided to start a series of posts to spotlight and amplify some recommendations from the CJUTF that ought to be of particular interest to sentencing fans.  In the wake of two more notable federal executions last week (noted here and here), this post will focus on a recommendation that speaks of abolition, and here it is:

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

This new CNN article, headlined "Dozens of members of Congress call on Biden to end the federal death penalty," reports that a number of members of Congress (but surely not a majority) are eager to see Prez-elect Biden operationalize this recommendations:

More than three dozen members of Congress are calling on Joe Biden's incoming administration to prioritize abolishing the death penalty in all jurisdictions, according to a letter sent Tuesday to the transition team for the President-elect and Vice President-elect Kamala Harris.  While Biden has pledged to abolish the federal death penalty and to give incentives to states to stop seeking death sentences as a part of his criminal justice reform plan, 40 members of Congress and three congresspersons-elect want to make sure the practice ends on his first day in office.

"The current administration has weaponized capital punishment with callous disregard for human life. In the middle of our current public health crisis, the Department of Justice resumed federal executions and executed more people in six months than the total number executed over the previous six decades," Massachusetts Rep. Ayanna Pressley wrote in a letter first obtained by CNN.

The letter was authored by Pressley less than a week after calling for President Donald Trump to stop pending federal executions that are scheduled to take place during his lame duck period.  She specifically joined celebrities, bipartisan politicians and anti-death penalty advocates' call to stop Brandon Bernard's execution as his trial had allegations of prosecutorial misconduct that only surfaced two years ago.

Pressley, a Democrat, introduced legislation on July 25, 2019 -- the same day Attorney General William Barr announced federal executions, which had been stalled since 2003, would resume -- to rid the federal level of the practice and require resentencing for those currently on death row.  The bill has not had any action in the House since August 2019....

"With a stroke of your pen, you can stop all federal executions, prohibit United States Attorneys from seeking the death penalty, dismantle death row at FCC Terre Haute, and call for the resentencing of people who are currently sentenced to death," wrote Pressley.  "Each of these elements are critical to help prevent greater harm and further loss of life."

Executive Director of the Fair and Just Prosecution Miriam Krinsky told CNN after a meeting with the Justice Department's transition team earlier this month that stopping federal executions "doesn't really require congressional action."...

To date, there are 52 people on federal death row and 18 pending state executions, according to the Death Row Information Center.

This CNN piece rightly suggests that Prez-elect Joe Biden could clear out the federal death row on January 20, 2021, by commuting the death sentences (presumably to life without parole) of all persons still on federal death row on his first afternoon in office.  Because there are three pending federal execution scheduled for January that seem likely to go forward, there may only be 49 persons left on federal death row by January 20.  But that number will include, inter alia, mass killers like the Boston Marathon bomber and the Charleston Church shooter.

Of course, commuting all of federal death row, and even instructing his Justice Department not to seek any new death sentences, does not fulfill a commitment to "abolish the death penalty at the federal level."  Doing that will take legislation passed by Congress, and that would seem to be a long-shot in the near-term.  Prez-elect Biden likely could try to include death penalty abolition in a bigger bill about many criminal justice reforms, but doing so would likely generate extra opposition because most Republicans (and still many modern Democrats) strongly  support the death penalty in extreme cases.  I doubt Prez-elect Biden will be eager to use his political capital on this issue in the early days of his presidency, and I wonder if he will want to focus on this issue at all.

Perhaps even more interesting is to imagine how a Biden Administration might seek to "incentivize states to follow the federal government’s example."  Will a Prez Biden really try to encourage states to abolish the death penalty if he does not himself work actively to do so at the federal level?  More generally, would a Prez Biden really seek to condition or restrict funding to states — which is the most obvious way to "incentivize" them — based on whether they abolish the death penalty?  He might need help from Congress to tie federal funding to state capital punishment practices, and I am disinclined to expect Congress to be keen on such a project.

That all said, I sense that death penalty abolition is a high-profile and high-priority concern for many progressive activists and policy-makers.  As such, this issue is one worth watching closely as an indication of how much energy and political capital a Biden Administration may be willing to spend on controversial matters to appease the left flank of his party.

Prior related posts:

UPDATE: Over at Crime & Consequences, Kent Scheidegger highlights in this post that a high-profile federal case presents a high-profile opportunity for the incoming Biden Administration to show a commitment to capital abolition.  Kent's post is titled "The Marathon Bomber, the Death Penalty, and the Biden Administration," and it ends this way:

Are you really opposed to the death penalty in all cases, Mr. President-elect?  If so, this is the case to take the action. This is the case that poses the question in its starkest terms.  Don’t chicken out and announce it in some borderline case on the ragged edge of deserving the death penalty.  Man up and announce it in the case that screams for it.  Direct the Solicitor General to stipulate to the dismissal of the certiorari petition, and announce to the nation that you will not seek a new death sentence for Tsarnaev on remand.

Let’s see what kind of reaction you get.

December 15, 2020 in Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Tuesday, December 08, 2020

Is Alabama Senator Doug Jones now the front-runner to be Joe Biden's pick for Attorney General?

In this post a few week ago, I asked "Is Sally Yates on track to be the next US Attorney General?," and until tonight I was still thinking she was the front-runner for this key Cabinet position.  But this new AP piece, headlined "Biden's attorney general search is focused on Jones, Garland," suggests that confirmation concerns may be driving Prez-elect Biden in another direction.  Here are the details:

Alabama Sen. Doug Jones and federal appeals court judge Merrick Garland are emerging as the leading contenders to be nominated as President-elect Joe Biden’s attorney general, three people familiar with the matter told The Associated Press.  A decision hasn’t been finalized and the dynamics could shift in the coming days as Biden builds out his Cabinet with an eye to ensuring diverse leadership in the top ranks of his administration.

But Jones, who lost reelection last month, and Garland, whose Supreme Court nomination was snubbed by Republicans, appear increasingly well positioned ahead of other rivals. Democrats are particularly concerned about the prospect of Biden nominating former Deputy Attorney General Sally Yates, fearing she could face a difficult confirmation in the Senate because of her role in issues related to the Russia investigation.

Biden’s thinking was described by people with knowledge of the presidential transition’s internal thinking who were not authorized to speak publicly.  Andrew Bates, a representative for the transition, did not comment for this story.  The president-elect is facing pressure to ensure that Black and Latino leaders are prominently positioned in his administration. He selected retired Army Gen. Lloyd Austin this week to become the first Black secretary of defense.

Jones, who is white, has had a long-standing personal relationship with Biden dating back to Biden’s first presidential campaign in 1988. The former U.S. attorney prosecuted members of the Ku Klux Klan who were responsible for a 1963 church bombing in Birmingham, Alabama, and later served as the U.S. attorney there from 1997 until 2001.

Biden met with civil rights activists on Tuesday to discuss diversity in his Cabinet.  The Rev. Al Sharpton, who attended the meeting, encouraged Biden to select a Black attorney general but gave him room to select someone of another race as long as they had a background in civil rights. “I said the least we could have is someone that has a proven civil rights background that’s someone that’s going to handle this heightened racist bigoted atmosphere,” Sharpton told reporters.

It’s unclear whether Garland would fit that standard as easily.  He is an experienced judge with a reputation for moderation who held senior positions at the Justice Department decades ago, including as a supervisor of the prosecution of the 1995 Oklahoma City bombing.  Garland was put forward by President Barack Obama for a seat on the Supreme Court in 2016 following the death of Justice Antonin Scalia, but Republicans refused to hold hearings in the final year of Obama’s term.  The vacancy was later filled by Justice Neil Gorsuch during the Trump administration.

The incoming attorney general would inherit a Justice Department that has endured a tumultuous four years and would likely need to focus on not only civil rights issues and an overhaul of national policing policies after months of mass protests over the deaths of Black Americans at the hand of law enforcement, but also on concerns from Democrats about politicization of the department in the Trump administration....

Supporters of Yates view her nearly 30-year Justice Department career in both Democratic and Republican administrations, and experience ranging from civil rights cases to national security matters, as making her uniquely qualified to lead the department as it looks to move on from the Trump era.  Still, Republican senators would be likely to focus a Yates confirmation hearing on her final year at the department, when the FBI closed out the Hillary Clinton email investigation and opened an investigation into whether the Trump campaign was coordinating with Russia, which later morphed into special counsel Robert Mueller’s investigation....

Jones would not comment Tuesday on the possibility of a nomination as attorney general.  “They have a process and we’ll let that process play,” he told reporters on Capitol Hill.

The Biden team has also been considering a number of other potential candidates for the post, including former Justice Department official Lisa Monaco.

December 8, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Wednesday, December 02, 2020

Interesting advocacy for Senator Durbin to take over top Dem spot on Senate Judiciary Committee

In my upper-level sentencing class, I spend a lot of time highlighting for students how many different system players have an impact on sentencing law, policy and practice.  Too often, a cursory discussion of sentencing looks only at trial judges and judicial decision-making.  But at the case-specific level, decisions by victims and police and prosecutors and defense attorneys can often have a profound and even controlling impact on sentencing outcomes.  System-wide, players inside and around all levels of legislative, executive and judicial branches can directly and subtly impact sentencing law and policy.  These realities are on my mind upon seeing this recent Hill piece headlined "Criminal justice groups offer support for Durbin amid fight for Judiciary spot."  Here are the details:

A coalition of criminal justice groups is signaling support for Sen. Dick Durbin (D-Ill.) in his bid to take over the top Democratic spot on the Senate Judiciary Committee.  Justice Roundtable, a coalition of more than 100 groups, sent a letter to Senate Democratic Leader Charles Schumer (D-N.Y.), obtained exclusively by The Hill, signaling support for Durbin, citing his previous work on criminal justice reform.

"At this inflection point in the nation’s history, particularly as we confront a devastating pandemic and systemic racial inequality, we are comforted to know Senator Durbin’s long-standing commitment to human rights, fairness and justice will guide him at this critical time.  He is a trusted and experienced leader, and we welcome his ascension in the Judiciary Committee," Justice Roundtable leadership wrote to Schumer.

Durbin, who was recently reelected to serve as the Senate Democratic whip in the next Congress, has worked for years on criminal justice legislation.  Most recently he teamed up with Sen. Chuck Grassley (R-Iowa), who was then the chairman of the Judiciary Committee, on the Sentencing Reform and Corrections Act and the First Step Act.  The First Step Act, which incorporated provisions of the first bill, was passed in 2018 after Senate Majority Leader Mitch McConnell (R-Ky.) agreed to give it a vote amid pressure from the White House and a bipartisan group of senators.

"If not for Dick Durbin sentencing reform would not be a part of the First STEP Act. He was very much an ally of the criminal justice groups and the liberal groups," Inimai Chettiar, the federal legislative and policy director for the Justice Action Network, told The Hill, crediting Durbin with "holding people's feet to the fire."

Durbin and Grassley, who will chair the Judiciary Committee if Republicans keep the majority, have also teamed up this year on legislation reforming compassionate release for federal prisoners amid the coronavirus.

Durbin, who is serving in the No. 2 spot as party whip, announced that he would seek the party's top position on the panel after Sen. Dianne Feinstein (D-Calif.) said she would step down from the spot. Some progressives, however, have signaled support for Sen. Sheldon Whitehouse (D-R.I.), who has also been active on criminal justice and prison reform and has been a leading voice in the caucus on issues like campaign finance reform and the judiciary....

"Anyone who cares about criminal justice reform and its impact on racial justice should want [Durbin] to be the top Democrat on Senate Judiciary," Kevin Ring, the head of the FAAM Foundation, tweeted amid the progressive pushback against Durbin. He added on Monday that "this is madness. You don’t pass over Michael Jordan to shake things up. Dems should pick Durbin if they want to pass bolder criminal justice reform."...

The offers of support for Durbin comes as criminal justice groups are gearing up to try to get additional legislation passed under the incoming Biden administration. Biden, during the White House race, vowed to end the government's use of private prisons, end cash bail and work to end the use of the death penalty.

If Durbin or Whitehouse would be chair or ranking member of the Judiciary Committee remains unclear because which party will control the Senate will come down to the two Georgia runoff elections on January 5. "I think it is critically important who the leadership of the Senate Judiciary Committee is going to be and I think Dick Durbin has a very proven record of being able to fight for criminal justice reforms," Chettiar said.

It is so interesting to see criminal justice reform advocates advocating to a Senate leader about who should ge given a leadership role in the chamber.  These advocates fully understand the importance of having a vocal proponent for criminal justice reform serving in a key Senate role (although how key that role is to be awaits the run-off results next month in Georgia).  As I explained in this post last month, I am cautiously optimistic that some form of sentencing reform will be an arena for important bipartisan discussion and work in the next Congress no matter who is in charge.  But who is in charge still matters a lot, so it will be interesting to see how the new Senate Judiciary Committee takes shape. 

December 2, 2020 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Sunday, November 29, 2020

Reviewing CJUTF Recommendations: will the Biden Administration go all in with progressive prosecutors?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62).  And last week, as explained here, I decided to start a series of posts to spotlight and amplify some recommendations from the CJUTF that ought to be of particular interest to sentencing fans.  This post will focus on prosecutors, and  begin by noting this recent Hill commentary by Miriam Krinsky headlined "Biden can rebuild trust in our justice system by prioritizing prosecutorial reform."  I recommend this piece in full, and here are a few choice passages:

[P]rosecutors wield vast power to determine whether someone comes into the justice system and the course of their case thereafter.  They control which charges to bring and make the high-stakes determination of whether to seek to keep people in jail as they await trial — which, in turn, makes them four times more likely to be sentenced to prison than if released pre-trial....

[T]he new administration’s ability to impact the criminal justice system will depend, in significant part, on its ability to support and work alongside local prosecutors.  To start, a robust task force on “21st Century Prosecution” can propel a new national vision of what it means to be a fair and just prosecutor — and a strategy for how to get there.

In other words, prosecutors are arguably the most consequential players in the criminal justice system, and reform advocates are eager to see the Biden Administration advance a "new national vision of what it means to be a fair and just prosecutor."   So, here is some of what the CJUTF has to say on this front:  

Task Force on Prosecutorial DiscretionCreate 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....

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....

Appointing Prosecutors:  Appoint people committed to criminal justice reform to key prosecutorial positions, including AG, DAG, and U.S. Attorneys.

Transparency & Data Collection: Direct DOJ to collect data on federal prosecution practices and make it public. Include opening investigations, charging, pretrial detention and release, plea offers, and sentence recommendations. Include data on racial disparities....

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

The commitment to reinstate the Obama-Biden Administration's Smart on Crime Initiative strikes me as notable, though not quite game-changing.  A serious commitment to require DOJ to collect comprehensive data about its practices could be a bigger deal than any particular substantive policy change, though it is unclear just how this data might be collected and used.  Perhaps an independent task force on prosecutorial discretion can and will figure out how to effectively gather and operationalize federal prosecutorial data. 

In the end, the biggest game-changer could be if the Biden Administration were really to go all in with the progressive prosecutors movement.  Directing special federal funding and support to local progessive prosecutors could add momentum to an already significant local movement.  And the commitment to appoint reform-minded folks to all "key prosecutorial positions, including AG to DAG, and U.S. Attorneys" sounds like a commitment to having progressive prosecutors throughout the federal criminal justice system.

In the end, I suspect we will see a broad definition of "people committed to criminal justice reform" in key Biden appointments, and I do not think anyone should expect dramatic change in this arena right away.  But I do think there is reason to be hopeful that in coming years the US Department of Justice could become more of an ally, rathen than a persistent opponent, of at least some progressive criminal justice reforms.

Prior related posts:

November 29, 2020 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, November 27, 2020

Exploring what Prez-elect Biden might (or might not) get done for criminal justice reforms

NBC News has this new piece discussing, mostly in vague terms, what criminal justice reform might look like under a Biden Administration. The piece is headlined "Biden was pilloried for his criminal justice record. During his presidency, advocates expect change," and here are excerpts:

Experts told NBC News that now as both political parties appear to have common ground on the issue and significant steps have been made over the past decade, a Biden administration needs to make criminal justice reform more than a talking point.

“The chief cornerstone has already been laid, the groundwork has already been done, the foundation has already been built.  The only thing that he has to go in and do is continue to capitalize off of the momentum,” said Louis L. Reed, the director of organizing and partnerships at #Cut50, a bipartisan criminal justice reform nonprofit.  “Biden needs to hit the ground running on legislation and executive action.”

The Biden transition team did not respond to a request for comment on their plans.  But as a presidential candidate, he proposed sweeping reforms, including ending private prisons, cash bail, and mandatory-minimum sentencing.  He has also been a vocal opponent of the death penalty and police reform.  He has floated, for example, tying federal funds given to police departments to diversity initiatives and community policing, among other areas — rebuffing calls from progressive activists to defund police departments....

Biden’s legislative hopes also hinge on the Democrats winning the majority in the Senate in January.  He has promised a flurry of executive orders on Day 1 in the White House to unwind a number of Trump administration policies and may opt to continue doing so if Republicans obstruct his legislative efforts.  But the effectiveness of executive orders can be limited when it comes to criminal justice reform, which would not affect state and local prisons.

Tackling police reform will be an especially delicate issue after a year in which the deaths of Black Americans at the hands of law enforcement prompted worldwide protests and national reckoning.  Balancing the concerns of police officers and progressive activists looking to slash their budgets and re-imagining policing is one illustration experts say will be one of the hurdles he could face. Biden during the campaign rejected calls to defund the police, angering some progressive activists.  At the same time, he also lost support from police unions, who largely supported Trump.

Adam Gelb, the founder of the Council on Criminal Justice, a bipartisan criminal justice nonprofit, is a former Senate Judiciary staffer who worked with Biden on the 1994 crime bill.  He said that he believes Biden’s promise to be a coalition builder is genuine but that he may not be fully prepared to restructure the nation’s sprawling criminal justice system.

“I don't think he sees crime control and justice as a zero-sum game, but will focus on policies that can produce win-wins,” he said, adding that Biden and Vice President-elect Kamala Harris recognize that "many of the policies of the 80s and 90s overshot the mark, and are now way out of step with public sentiment, as well as research about what actually works."...

Gelb said he believes Biden understands that there are social inequalities but does not fully grasp the extent to which the system itself is the root of the problem.  "My sense is that he understands that the criminal justice system is deeply flawed and needs to be fixed, but that he sees the system as a source of solutions, not a fundamental cause of the problems,” he said.  “And that means a balanced strengthening of the systems of enforcement, and prevention, and treatment, and corrections, and the courts."

A few of many prior related posts:

November 27, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (1)

Wednesday, November 25, 2020

"Here's One Thing Republicans and Democrats Agree on: Criminal Justice Reform"

The title of this post is one headline that I have seen for this new New York Times article (which echoes some themes I have stressed in a few posts here and here from election week). I recommend the article in full, and here are some excerpts:

In a video presenting his closing argument for maintaining Republican dominance of the Senate, the majority leader, Mitch McConnell of Kentucky, chose three issues — tax cuts, judicial appointments and criminal justice reform.

Mr. McConnell had resisted bringing the First Step Act, which expanded release opportunities for federal prisoners, to the floor under former President Barack Obama and did so during the Trump administration only under extreme pressure.  Its passage firmly established the allure of reform and is now widely cited as President Trump’s most significant bipartisan achievement....

[C]riminal justice reform offers something for just about everyone: social justice crusaders who point to yawning racial disparities, fiscal conservatives who decry the extravagant cost of incarceration, libertarians who think the government has criminalized too many aspects of life and Christian groups who see virtue in mercy and redemption.

At the federal level, both parties have proposed police accountability bills.  Senator Lindsey Graham, the Republican chairman of the Judiciary Committee, has recently signaled that he is open to reinstating parole for federal prisoners, which was eliminated during the tough-on-crime 1980s.  President-elect Joseph R. Biden Jr. has promised to reduce incarceration and supports abolishing mandatory minimum sentences and expanding mental health and drug treatment.

Relatively few voters ranked the criminal justice system at the top of their list of concerns, even after the killing of George Floyd in May thrust policing into the national spotlight.  But patient work by advocates, buy-in from conservative groups and the United States’s position as a global leader in incarceration have gradually spread the message that the system is broken, and made fixing it a cause with broad appeal. 

A wide array of criminal justice measures did well on the ballot, including increasing police oversight, legalizing drugs and restoring voting rights to those with felony records.

Fewer Americans than ever believe the system is “not tough enough,” according to a recent Gallup poll.  And in a sign of how much attitudes have changed since lawmakers boasted of locking people up and throwing away the key, Mr. Trump and Mr. Biden sparred over who had let more people out of prison.

The fact that it is a niche issue may serve to increase its chances of breaking partisan gridlock....

The pandemic, in which prisons and jails have become some of the biggest viral hot spots, presents an opportunity for advocates, who hope that Covid-19 relief measures like expanded medical release and early parole will outlast the spread of the coronavirus.

Pandemic-related budget shortfalls represent another opportunity. The Texas Criminal Justice Coalition, a progressive group, has called its legislative agenda for next year “Spend Your Values, Cut Your Losses,” arguing that measures like lowering drug penalties and making it harder to revoke probation and parole will save millions of dollars....

Robert Blizzard, a Republican pollster, said that criminal justice reform proposals garner support across the board, and help Republicans reach outside their base to groups like suburban women and people of color.

I am pleased to see this article and like many of its themes.  But amidst generations of mass incarceration and criminalization, data showing a third of US adults has a criminal record, and nationwide 2020 protests focused on racial (in)justice, I am still struck and troubled by the blasé statement that criminal justice reform is just a "niche issue."  (Since I read nine of the first ten Amendments to the US Constitution as setting forth formal or informal safeguards against extreme uses of the police power, I suppose I should be grateful the Framers did not view as "niche" the operation of American criminal justice systems.)

This NY Times piece, coming right after a big transition election, leads me to recall this online article I penned for the Harvard Law & Policy Review almost exactly 12 years ago under the title "Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities."  Among other points, I urged progressives to seek to forge bipartisan coalitions for reform in this way:

[P]rogressives can and should be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration....  If truly committed to their espoused principles of human liberty and small government, modern conservatives and libertarians should be willing and eager to join a serious campaign committed to reversing the incarceration explosion.  Progressives, rather than categorically resisting calls for smaller government, should encourage modern conservatives and libertarians to turn their concerns and energies toward improving America’s criminal justice systems.  Areas where harsh criminal laws appear to be driven by government efforts to hyper-regulate often intangible harms, such as extreme mandatory sentencing statutes related to drug crimes and gun possession, seem especially likely settings for a convergence of views and new alliances for advocacy efforts.  Specific, issue-based advocacy may allow progressives to forge coalitions with unexpected allies in order to work against some of the most unjust modern sentencing laws and policies.

Though a lot of progress has been made in since I wrote these words back in 2008, there is still a whole lot more that needs to get done. I hope political leaders at the federal, state and local levels will continue to keep working together (on this "niche" issue) to continue to move forward aggressively and effectively.

November 25, 2020 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Monday, November 23, 2020

Reviewing Criminal Justice Unity Task Force Recommendations: a new series to welcome a new President

Since the 2020 federal election results became clear a few weeks ago, I have already blogged a bit (here and here) about some of the the notable criminal justice reform recommendations [available here pp. 56-62] from the Biden-Sanders Unity Task Force (first discussed here).  With Prez-elect Biden now starting to announce his planned cabinet appointments, I have decided it is now time to start a new series of posts that spotlight and amplify some  recommendations from the Criminal Justice Unity Task Force that ought to get sentencing fans especially excited. 

I have never been quite sure if Prez-elect Joe Biden views the recommendations that emerged from the Biden-Sanders Unity Task Force as part of his official avowed agenda.  But I am quite sure that I am going to be eager to persistently judge the work of the Biden Adminstraton against the backdrop of what the Criminal Justice Unity Task Force (CJUTF) recommended.  And because soooooo much is recommended by the CJUTF, everyone should be prepared for a lot of coming posts in this series.

With that set up, let me start this series by spotlighting arguably the most exciting and challenging of all the CJUTF recommendations:

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.

This recommendation is so exciting and challenging because it essentialy calls for a top-to-bottom "comprehensive" review of the federal sentencing system.  It is also exciting and challenging because it presupposes a functioning and functional US Sentencing Commission, which has not existed for the better part of two years because of USSC vacancies. 

I have flagged this issue in this first post in this series not only because it is arguably the most far-reaching of the CJUTF recommendations, but also because the incoming Biden Administration needs to be working now on appointments to the US Sentencing Commission if it really wants to hit the ground running.  Sadly, there is a long history of US Sentencing Commission not getting the attention it deserves and that it critically needs if and whenever federal policymakers are seriously committed to federal sentencing reform.  At a time when there is finally sustained bipartisan commitment to continued federal sentencing reforms, the new President and his team should be trying to get all the key players on the field ASAP.  All the other proposed CJUTF sentencing reforms that I will discuss in coming posts can and should be more effectively advanced if and when the Biden Administration does this critical initital appointing work.  

Prior related posts:

November 23, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Friday, November 20, 2020

Is Sally Yates on track to be the next US Attorney General?

E204c9e0-0c25-11eb-a040-3d8028d863aa_1200_630The question in the title of this post is prompted by this new Reuters piece headlined "Biden's possible attorney general pick has moderate track record: progressive critics."  Here are excerpts:

President-elect Joe Biden has pledged to end the federal death penalty and eliminate mandatory minimum sentences, but some progressives say a potential pick for attorney general to carry out those reforms may not be the one to enact bold changes.

Sally Yates, 60, is a leading candidate for the job, according to sources.  The Atlanta native is perhaps best known for being fired from her position as acting attorney general by Republican President Donald Trump in his first month in office when she refused to enforce his first attempt at banning travelers from Muslim-majority nations.

Her history at the Department of Justice (DOJ) — where Democratic President Barack Obama appointed her as deputy attorney general in 2015, and before that as Atlanta’s top federal prosecutor for about five years — make the adviser to the Biden transition team a safe pick for a role subject to confirmation by the U.S. Senate, which may still be under Republican control next year.

Asked for comment, a Yates spokeswoman provided a lengthy list of opinion articles, testimony and other records she said demonstrate Yates’ strong commitment to criminal justice reform.  A Biden transition team spokesman did not respond to a request for comment.

Yates has expressed a measured approach on some criminal justice reforms, including previously voicing some support for the mandatory minimum sentences Biden wants to end — a position some progressives worry may not go far enough at a time of reckoning for the criminal justice system.  “She has done courageous things, but she is a career prosecutor,” said Rachel Barkow, a New York University law professor who previously served on the U.S. Sentencing Commission, which sets federal sentencing guidelines.  “The question will be, if Sally Yates comes in a second time, does she do a better job reading the moment or is she still coming with that DOJ insider lens?”...

Yates, during her 2015 confirmation hearing for deputy attorney general, called mandatory minimum sentences “an important tool for prosecutors,” which could nevertheless be used more judiciously due to the “fiscal reality” facing U.S. prisons.  While she was U.S. attorney in Atlanta, her office also sought the death penalty in some cases, and she testified on the Justice Department’s behalf to urge the U.S. Sentencing Commission to narrowly limit who could qualify to apply retroactively for a drug sentence reduction.

She was also involved in a controversy surrounding a 2014 clemency project, after Pardon Attorney Deborah Leff resigned in protest due to a backlog of 1,000 recommendations sitting in Yates’ office, 100 of which were urging clemency be granted.  In her January 2016 resignation letter, Leff said Yates had blocked her access to the White House, including on cases where Yates had reversed Leff’s clemency determinations.  Yates’ defenders say she was passionate about clemency, and personally reviewed every petition herself.

Some former colleagues say Yates deserves credit for important work that began during the Obama administration, much of which has since largely been undone during Trump’s term.  Yates spearheaded efforts to scale back the federal government’s use of private prisons, revamped the Bureau of Prisons’ education program to better prepare inmates for release and urged limits on solitary confinement.  She also persuaded Obama-era Attorney General Eric Holder to expand on his new policy scaling back the use of mandatory minimums and later publicly rebuked Trump’s first attorney general, Jeff Sessions, after he reversed these policies in 2017.

“Somebody like Sally is very attuned to what has been happening in the country after George Floyd’s murder,” said Vanita Gupta, who headed the DOJ’s civil rights division during Yates’ tenure and now heads the Leadership Conference on Civil & Human rights.  “She is very personally committed to civil rights and criminal justice reform, and I would fully expect that commitment would actually only deepen.”

I sense that Yates' long history as a federal prosecutor and her moderate approach to many reform issues leads some progressives to be rooting against her for the Attorney General position in a Biden Administration.  But I am inclined to view Yates' past criminal justice record somewhat like I view VP-elect Harris' record: I sense they have always been highly attuned to, and quite effective within, the felt legal and political needs of the time, which would suggest at least some ability to step up to the needs of our current criminal-justice-reform-focused times.

I am eager to note here that Sally Yates has recently been actively involved in the Council of Criminal Justice, serving as Co-Chair of the CCJ Board of Trustees and as a member of its federal priorities task force.  As highlighted in this post from May, I was especially impressed with the agenda for reform that the CCJ federal priorities task force produced.   This impressive report, titled "Next Steps: An Agenda for Federal Action on Safety and Justice," included 15 thoughtful recommendations, and I would be thrilled to have a new Attorney General committed to making these particular proposals a reality ASAP:

If the next Attorney General would be able to get even half of these priorities completed in the coming years, that would be quite a set of accomplishments.

November 20, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (2)

Tuesday, November 17, 2020

So much great data and analysis from the Prison Policy Initiative

I have been behind on reading and blogging on various fronts, particularly with respect to a number of notable new items from the Prison Policy Initiative.  I will "catch up" poorly through this set of links to recent PPI works:

November 17, 2020 in Criminal justice in the Biden Administration, Data on sentencing | Permalink | Comments (0)

Monday, November 09, 2020

After Tennessee Gov postpones last scheduled state execution of year, will all three scheduled federal 2020 executions still go forward?

As reported in this local article, "Tennessee Gov. Bill Lee has granted death row inmate Pervis Payne a temporary reprieve due to the COVID-19 pandemic."  Here is more:

Payne's execution was scheduled for Dec. 3, 2020. The reprieve lasts until April 9, 2021. Lee said in a written statement that the reprieve was issued "due to the challenges and disruptions caused by the COVID-19 pandemic," but did not elaborate further.

Payne, who is being held on death row in Riverbend Maximum Security Institution in Nashville, is convicted of the 1987 deaths of Millington woman Charisse Christopher, 28, and her 2-year-old daughter, Lacie.  Christopher’s 3-year-old son, Nicholas, survived multiple stab wounds in the brutal attack that took place in Christopher’s apartment.

“This additional time will also allow us to investigate Mr. Payne’s strong innocence claim, together with the Innocence Project," said Kelley Henry, Payne's attorney.  "We are grateful to the 150 faith, legal, legislative, and community groups in Memphis and across the state that support clemency for Mr. Payne. Together with Mr. Payne’s family, we will continue the fight to prove Mr. Payne’s innocence.”

The reprieve also allows time for the Tennessee Black Caucus of State Legislators to potentially pass legislation that would allow a defendant already sentenced to the death penalty and whose conviction is final to still bring a petition regarding a claim of intellectual disability. Although members of the caucus filed the bill Wednesday, it cannot be passed until January at the earliest, initially after Payne's scheduled execution.

Payne has maintained his innocence, and his attorneys have said that he is intellectually disabled, but have been unable to litigate the claim in Tennessee due to procedural reasons. In federal court, Payne’s attorneys have filed a petition asking the court to prevent his execution until hearing his claim that he is intellectually disabled....

During his 1988 trial, Payne said he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment. He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christopher's throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.

The Shelby County District Attorney's Office has maintained that regardless of what DNA testing shows, the evidence to convict Payne of the crimes was overwhelming. An officer saw him leaving the scene of the crime drenched in blood, and Payne admitted to being there.  His baseball cap was found looped around the 2-year-old victim's arm, and his fingerprints were found inside the apartment.

Payne’s case has drawn the support of a large coalition of advocates, led by the Ben F. Jones Chapter of the National Bar Association, urging for the DNA testing.  The coalition includes the Tennessee Black Caucus of State Legislators, Memphis Chapter of the NAACP, the Memphis Bar Association, 100 Black Men of Memphis, National Council of Negro Women (Memphis Chapter), Stand for Children Tennessee, Memphis Interfaith Coalition for Action and Hope (MICAH) and several leaders in the Church of God in Christ (COGIC), of which Payne is a member.

It strikes me as quite notable and ultimately disturbing that, for a crime that took place 33 years ago(!), it seems that a global pandemic was needed to justify a short reprieve to provide time "to investigate Mr. Payne’s strong innocence claim."  Also, if Payne is actually intellectually disabled and thereby categorically ineligible for execution under the Eighth Amendment, it seems quite problematic to preclude him from properly litigating this constitutional issue fully for mere procedural reasons.

These case specifics aside, this Death Penalty Information Center page details that this planned Tennessee execution had been the last state execution scheduled for 2020.  So, due to lots COVID disruptions as well as other factors, it appears the total number of state executions in 2020 will be only seven individuals, marking the lowest yearly total of state executions in almost 40 years.  But, of course, the federal government really revved up its machinery of death in 2020, and there have already been seven federal executions in 2020.  Moreover, there are three more federal executions still scheduled for 2020: as this BOP page details, one execution is scheduled for next Thursday, and two more are scheduled for the second week of December.

Even if we did not have a consequential federal election this month, the federal defendants scheduled for execution in the coming weeks would surely be seeking a reprieve based on COVID concerns and perhaps on other grounds as well.  But, especially given that the Joe Biden campaign talked about seek to abolish the federal death penalty, if these condemned defendants can find a way to get their executions postponed until after January 20, 2021, they might benefit from a new Administration eager to now completely turn off the entire federal machinery of death.

November 9, 2020 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, November 08, 2020

So who are you rooting for to be the next US Attorney General?

I would be eager to hear from readers about who they would like to to see nominated by Joe Biden to be the next US Attorney General.  This Politico article, headlined "Meet the contenders for Biden’s Cabinet," discusses these purported front-runners:

With Tommy Tuberville’s defeat of Sen. Doug Jones (D-Ala.) on Tuesday, Jones will be unemployed come January and available to join Biden’s cabinet. Jones wouldn’t add to the Cabinet’s diversity, but the former U.S. attorney in Alabama has credibility when it comes to civil rights: He led the successful prosecutions of two members of the Ku Klux Klan involved in the 1963 bombing of the 16th Street Baptist Church in Birmingham, nearly 40 years later. Jones also happens to be a friend of Biden’s, dating back to his work on Biden’s first presidential campaign in 1988.

Jones, however, is likely to have competition for the Attorney General post, including from Democratic National Committee Chairman Tom Perez. Perez is “in the mix,” said Oscar Ramirez, a Democratic lobbyist who worked in the Obama administration and is active in Latino Democratic circles. Another person who’s tracked the early jockeying for attorney general said allies of Perez have floated his name.

Perez has Justice Department experience: He served as assistant attorney general for civil rights in President Barack Obama’s administration before Obama tapped him as Labor secretary. But he also faces a potential obstacle with Republicans likely to remain in control of the Senate: No Republicans voted to confirm him as Labor secretary in 2013, and it’s unlikely that his years leading the DNC have endeared him to the GOP.

Another name being mentioned is Sally Yates, a former deputy attorney general in the Obama administration, who became a progressive cause célèbre when President Donald Trump fired her in the early days of his presidency for refusing to defend his executive order barring entry to people several Muslim countries. California Attorney General Xavier Becerra is another potential candidate, Ramirez said, although he’s also been mentioned as a possible Homeland Security secretary. California Gov. Gavin Newsom might also tap Becerra, a former congressman, to fill the Senate seat that Vice President-elect Kamala Harris will vacate in January. (Becerra previously succeeded Harris as California attorney general in 2017 following Harris’ election to the Senate.)

This USA Today article, headlined "President-elect Joe Biden seeks diverse Cabinet to 'look like America' in leading federal departments," throws out these additional names:

Sen. Amy Klobuchar, D-Minn., a white member of the Senate Judiciary Committee where she has been harshly critical of Attorney General William Barr. She dropped her presidential campaign after the South Carolina primary and endorsed Biden....

Stacey Abrams, a Black former member of the Georgia Legislature who was among those considered as Biden’s running mate.  Abrams has been a fierce advocate for voting rights after running an unsuccessful but high-profile campaign for governor of Georgia, a state that was surprisingly competitive for Biden.

Sen. Cory Booker, D-N.J., a Black member of the Senate Judiciary Committee and presidential candidate, was a key sponsor of sweeping criminal justice legislation aimed at cutting mandatory minimum sentences and reducing the federal prison population.

Preet Bharara, who was born in India, a former chief federal prosecutor in Manhattan’s Southern District of New York, was fired by Trump after the then-newly elected president had asked him to remain on the job.  Bharara subsequently described a series of contacts with Trump before his firing that he said threatened the Justice Department’s independence from the White House.

I have always been a big Cory Booker fan, in part because he has long been a vocal advocate for a range of federal sentencing reforms.  So I think he is the candidate I am rooting for, though I sense he may be a relative long shot.  And I am genuinely eager to hear from readers about their thoughts about people on this list or anyone else who might become our nation's next "top law enforcement officer" for the United States.

November 8, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (8)

"What Biden’s Win Means for the Future of Criminal Justice"

The title of this post is the headline of this extended new piece from The Marshall Project, which begins this way:

During his presidential campaign, Joe Biden promised to end private prisons, cash bail, mandatory-minimum sentencing and the death penalty.  Candidate Biden also said the U.S. could reduce its prison population by more than half.  While he didn’t put forward as progressive or as detailed a platform as many of his competitors for the Democratic nomination (including his running mate Kamala Harris), Biden has nevertheless, quietly, been elected on the most progressive criminal justice platform of any major party candidate in generations.  So what can he actually do?

Biden will face the same constraints as all incoming presidents after a campaign of big promises.  Government moves slowly, time and political capital are limited, and his administration will likely need to prioritize the pandemic and the related economic fallout in the early days.  But if he’s serious about tackling criminal justice, here’s what experts say to expect from the Biden administration on key issues.

I recommend checking out the full lengthy discussion, and here are snippets from a few of its sentencing pieces:

The Death Penalty

Biden can’t unilaterally end the death penalty, but he can speed up its demise and use symbolism to signal a new era.  Ultimately, the death penalty is symbolic. It has never been used to punish more than a tiny fraction of the most serious murders, but it makes very long prison sentences appear lenient by comparison.

On the campaign trail, Biden said he’d work to end the federal government’s use of the death penalty.  His record is mixed.... Although only Congress can fully abolish the federal death penalty, the president can do a great deal to speed its yearslong decline across the country.  Trump’s attorney general, William Barr, oversaw the most federal executions of any presidential administration since Eisenhower.  A new attorney general could stop them immediately, and return to the Obama-era practice of seeking no executions. A new attorney general could tell U.S. attorneys to only seek new death sentences for rare crimes like terrorism and mass shootings, which would still apply to defendants like Charleston church shooter Dylann Roof and Boston Marathon bomber Dzhokar Tsarnaev.... — Maurice Chammah

Mandatory Minimums

Biden has said he wants to eliminate mandatory minimum sentences, a legacy of the tough-on-crime ’80s.  To make this happen at the federal level, he’d need to appoint a range of officials who share this view, and get buy-in from Congress....

Biden’s criminal justice platform pledges to eliminate federal mandatory minimums.  Biden hasn’t specified which ones, but advocates say if he does tackle them, he will likely focus on drug crimes.  There are more than 60,000 people currently serving mandatory minimum sentences in federal prison, according to the U.S. Sentencing Commission. 10,000 entered the system last year alone.  A broad clemency effort or a law change, if it were retroactive, could reduce the federal prison population by a quarter almost overnight.

Repealing mandatory minimums — or passing a “safety valve” law that doesn’t repeal them but gives judges the discretion to sidestep them — would require an act of Congress. Part of the problem, say scholars who study the issue, are the Attorney General and the Department of Justice, whose opinions carry a lot of weight with Congress.  So the first step a President Biden could take to signal his commitment to repealing mandatory minimums is to appoint officials who share his view, says Rachel Barkow, a law professor at NYU and a former member of the U.S. Sentencing Commission, which helps draft federal sentencing guidelines.  An Attorney General who is skeptical of mandatory minimums could also instruct federal prosecutors to use them judiciously, as Eric Holder did in 2013.... — Beth Schwartzapfel

Clemency

Biden has lots of power to revamp and supercharge the clemency process — but he hasn’t given much indication that he intends to use it. Clemency, which includes reversing criminal convictions (pardons) and shortening sentences (commutations), is the president’s most direct means to reduce incarceration. Biden made no bold promises on these topics during the campaign. He has promised to “broadly use his clemency power for certain non-violent and drug crimes,” as Obama did at the end of his administration....

Biden could ask Harris to take the lead on clemency since she laid out a more detailed plan than his own during the Democratic primary. Harris said she would remove clemency decisions from the Department of Justice and open a federal sentence review unit, where a team of lawyers would be exclusively tasked with reviewing old sentences and considering reductions.... — Jamiles Lartey

Private Prisons

Biden can move the 14,000 federal prisoners currently held in private facilities without too much struggle. After that it gets harder.  Biden and Harris both pledged to end the federal government’s use of private prisons during the 2020 campaign, a position that is extremely popular among Democrats partywide.  Experts say the incoming administration is likely to build on guidance issued under the Obama administration in 2016, rescinded by Trump, that encourages the director of the Bureau of Prisons to stop renewing contracts with private facilities when they expire, in an effort to ultimately phase out their use.... — Jamiles Lartey

Reducing The Prison Population

Biden can’t implement new programs or rewrite outdated sentencing laws at the state level.  But he can use federal funding to send a message.  Crime prevention is a central feature of Biden’s criminal justice plan.  He has pledged to set aside $20 billion in federal funding to states that adopt evidence-based crime prevention programs and that opt for diversion programs over incarceration....

Under Biden’s plan, states would have access to federal funding if they agreed to implement programs designed to keep people out of prison.  The funding comes with some stipulations: States must eliminate mandatory minimums and they must create earned credit programs for people currently serving time.  It’s unclear what kinds of programs states could or should adopt in order to get the funding.  Biden has emphasized the need for states to invest in programs that address several underlying drivers of crime such as illiteracy and limited early education.  Congress would have to enact Biden’s plan.  — Nicole Lewis

Though indirectly mentioned in the Mandatory Minimum section, I am a bit disappointed that appointments to the US Sentencing Commission is not mentioned. The USSC, with the right appointees, could provide to be a particularly important and consequential agency at a moment in which implementation of the FIRST STEP Act is really still just getting started and during which other legislative reforms are being widely discussed.

November 8, 2020 in Criminal justice in the Biden Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

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.

November 8, 2020 in Campaign 2020 and sentencing issues, Clemency and Pardons, Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)