Sunday, August 01, 2021

Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action)

The news a few weeks ago that the Biden Justice Department is not disputing the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic continues to generate coverage and commentary.  Here is a round-up of just some recent pieces I have seen:

From Common Dreams, "Advocates Condemn Biden Plan to Send 4,000 Inmates Back to Prison After Pandemic"

From The Hill, "Inmates grapple with uncertainty over Biden prison plan"

From The Intercept, "Biden Has Said Pot Prisoners Should Be Free.  Now He’s Poised To Send Some Back To Prison."

From Politico, "Biden's prisoner's dilemma"

From The Root, "Biden Needs to Grant Clemency to the Over 4,000 People on Home Confinement"

It is understandable, but I still think quite unfortunate, that all of these stories focus almost exclusively on Prez Biden and his potential place in this story.  Most advocates have been talking up blanket clemency as the most efficient way to resolve this issue in order to keep the home confinement cohort from being sent back to prison after the COVID pandemic is over.  But, as I have highlighted in various posts, and stressed in this post titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?," Congress readily could (and I think should) enact a statute that provides for the home confinement program to be extended beyond the end of the pandemic.  This problem is fundamentally a statutory one created by Congress in the CARES Act, and it could be readily fixed by Congress simply by adding a sentence or two to pending pieces of legislation.

In addition, as I highlighted in this other post, another important option for case-by-case relief for members of this cohort is through compassionate release motions.  This is how Gwen Levi got relief, and such motions have the potential to reduce lengthy sentences and not merely allow these sentences to be served at home.  Consider the story told here by Jeanne Rae Green, who was transferred to home confinement in May 2020 after serving serving 6.5 years of a 12.5 year sentence for meth distribution.  It sounds like she and other members of this home confinement cohort could bring strong sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).  The legal limbo in which Jeanne and others now find themselves could be perfectly described as constituting "extraordinary and compelling reasons" for a sentence reduction, especially if prosecutors cannot show how the 3553(a) factors would be better served by a return to prison.  (Indeed, as I have previously mentioned, I think federal prosecutors could and should actively promote and support sentence reduction motions for now on home confinement at risk of being sent back to prison.)

I am pleased to see so many working so hard to ensure this issue garners continued attention, and I am hopeful that Prez Biden will use his clemency pen to bring relief to the home confinement cohort ASAP.  But in the meantime, I also hope that pressure will be brought to bear on all the others — from members of Congress to members of DOJ to members of the judiciary — who can and should also be doing more help this cohort.

Some prior recent related posts:

August 1, 2021 in Criminal justice in the Biden Administration, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Friday, July 30, 2021

Highlighting how the Biden Administration could and should start reforming federal BOP

I have lamented in post after post that the Biden Administration has so far failed to seize the opportunity to advance federal sentencing reforms by making needed appointments to US Sentencing Commission, and I will continue to be troubled by (and complain about) its failings in this space for as long as it lasts.  In the meantime, I am pleased to see this new AP article highlighting another so-far-missed Biden Administration missed opportunity under the headline: "Is Biden overlooking Bureau of Prisons as reform target?".  Here are excerpts from a long piece worth a full read:

Biden is overlooking a prime -- and, in some ways, easier -- target for improving the conditions of incarcerated people: the federal Bureau of Prisons. While most criminal justice overhauls require action from local officials or legislation, reforming the federal prison system is something Biden and his Justice Department control. And there are crying needs there for improvement.

Even before the coronavirus, federal prisons were plagued by violence, suicide, escapes, understaffing and health concerns. The pandemic made things worse. And now these facilities are set to absorb even more prisoners from private institutions that are no longer in business with the government....

Meanwhile, the number of federal prisoners is rising. Defendants end up in federal prison usually because their crime crossed state lines, or they violated a specific federal law. There are about 156,000 federal inmates. In total, 38% are Black and 57% are white, 1.5% Asian and 2.4% Native American. Most are serving sentences between 5 and 20 years, and 46% of those sentences are for drug offenses. Another 20% are for weapons, explosives or arson charges.

The administration can’t control the laws that get someone sent to prison. But it can control staffing, transparency, health care, the use of solitary confinement and, most of all, agency leadership. The head of the Bureau of Prisons is a Trump holdover, Michael Carvajal, who has been in charge as the coronavirus raged behind bars, infecting more than 43,000 federal inmates. He also oversaw an unprecedented run of federal executions in the last six months of Donald Trump’s presidency that was a likely virus super spreader.

Administration officials have been mulling whether to replace him, but no decision has been made, according to officials who spoke to The Associated Press.

One question they should be asking, according to Andrea Armstrong, a Loyola Law School professor who studies prisons, is whether the director’s role is to do more than keep operations running smoothly. “Real leadership,” she says, “would be convening people incarcerated, wardens and programming staff together to say, OK, we have an enormous problem ... how do we address this?”....

The “First Step Act,” approved in 2018, gives judges more discretion when sentencing some drug offenders, eases mandatory minimum sentences and encourages inmates to participate in programs designed to reduce the risk of recidivism, with credits that can be used to gain an earlier release.

But those programs can’t be completed right now, because there are not enough workers to facilitate them. Nearly one-third of federal correctional officer jobs in the United States are vacant, forcing prisons to use cooks, teachers, nurses and other workers to guard inmates. “There need to be enough people working in a prison to keep people housed in a prison safe. And they must be able to get access to the programs that should allow their release,” said Maria Morris of the American Civil Liberties Union’s National Prison Project.

A few of many prior related posts:

July 30, 2021 in Criminal justice in the Biden Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Monday, July 26, 2021

Reviewing Biden Administration's uninspired criminal justice reform efforts

Law360 has this lengthy new article, headlined "Advocates Frustrated By Biden's Silence On Justice Reform," that provides a lengthy review of various criminal justice reform efforts to date by the Biden Administration.  As the headline suggests, advocates are so far underwhelmed.  Here are excerpts from a piece worth reading in full:

One of President Joe Biden's most powerful tools for advancing criminal justice reform is his voice and yet, despite his campaign promises, he has been mostly silent on the issue while in office, frustrating criminal justice reform advocates.

Advocates for ending mass incarceration and mandatory minimum sentencing would have liked Biden to do more than just talk about criminal justice reform in his first six months in office, but they are even more frustrated by the fact that he isn't loudly advocating for reform and isn't letting people know when he will act on his reform promises....

Criminal justice advocates acknowledge that Biden started his presidential term with a full plate of pressing issues to address: the COVID-19 pandemic, an economic downturn, extreme political division and a migrant crisis at the southern border that could have sidelined criminal justice reform in his administration's early days.  And now, six months later, Biden's administration is still grappling with these issues in addition to combating a spike in homicides and surges in coronavirus cases in areas with low vaccination rates.

But advocates and experts say that Biden could at least publicly support more criminal justice reform legislation that has been introduced in Congress and dispel myths being perpetuated by some Republican lawmakers that releasing people from prison increases crime....

Biden alluded to criminal justice reform in his inaugural speech and in a presidential address marking his first 100 days in office.  He also included snippets of criminal justice reform in his plans for revitalizing jobs, helping American families and fighting gun violence....

Udi Ofer, director of the American Civil Liberties Union's justice division, said that Biden's crime prevention plan doesn't recognize that the majority of what police do is arrest people for low-level offenses like drug possession, and these arrests don't stop homicides and gun violence. "President Biden has invested so much political capital in laying out his crime prevention plan, and we have not seen the same sort of commitment laid out for criminal justice reform and for police accountability," Ofer said.

A lot of people are waiting to hear him say loud and clear that he recognizes the flaws in the justice system and genuinely wants to help fix them.

Some experts say that Biden's silence on criminal justice reform could be a calculated political move to straddle party lines and keep members of his own party together.  Republicans and Democrats are in disagreement about police reform. Progressive Democrats are calling for defunding the police and older party members fear that is too radical a move, according to Jacinta Gau, a criminal justice professor at the University of Central Florida....

Rumblings of Biden's early plans for handling criminal justice reform-related issues has already sparked outcry from lawmakers and advocates.  A coalition of 20 advocacy organizations sent a July 19 letter to Biden urging him not to reimprison people who were released to home confinement during the pandemic and instead commute their sentences....

Even though advocates and experts want Biden to move more quickly on criminal justice reform, they also don't want him to make reactionary "tough on crime" policies that have been devastating for communities of color and led to mass incarceration.  However, they say Biden and his administration don't need to "reinvent the wheel" on criminal justice reform because organizations and scholars have already done the research on what works and what doesn't work.  The administration just needs to follow their lead, they say.

Though I am not surprised it goes unmentioned in this article, I have to bring up again in this context that the Biden Administration has so far missed the opportunity to appoint reform-minded persons to the US Sentencing Commission.  Of course, as I have lamented in post after post, the Biden Administration has so far failed to appoint anyone to the USSC.  As I stressed here, the US Sentencing Commission, when functional, has the power and the ability to be a significant agent for federal criminal justice reform.  But, unless the Biden Administration makes a lot of appointments very soon, I fear this important agency might not be functional until 2022 or perhaps even later.  Sigh. 

July 26, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Friday, July 23, 2021

Across political spectrum, insightful folks saying in insightful ways that Prez Biden must do better on criminal justice reform

The news to start this work week that the Biden Justice Department is not disputing the legal opinion that federal prisoners released into home confinement would be returned to prison after the pandemic has likely contributed to the end of this work week bringing a number of effective commentaries rightly asserting that Prez Biden continues to come up short on criminal justice issues.  Notably, these commentary are coming from across the political spectrum as evidenced by these pieces:

From Samantha Michaels at Mother Jones, "Biden Said He’d Cut Incarceration in Half. So Far, the Federal Prison Population Is Growing."

From Lars Trautman at The Washington Examiner, "Biden’s criminal justice inaction is nothing but malarkey"

I recommend both of these shorter pieces, but I especially want to encourage everyone to read this lengthy Washington Post magazine commentary by Piper Kerman headlined "She accidentally provided the ‘Lose Yo Job’ soundtrack to Biden victory memes this fall.  He could learn a lot from hearing her story."  In fact, we can all learn a lot from her story, as brilliantly told and contextualized by Piper Kerman, and her piece is a useful reminder that Vice-President Harris ought not be left out of discussions and criticisms of the tepid criminal justice reform efforts of the Biden Administration to date.

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

Thursday, July 22, 2021

Noticing Biden Administration's withdrawal of pursuit of the death penalty in many cases

This new New York Times article, headlined "U.S. Won’t Seek Death Penalty in 7 Cases, Signaling a Shift Under Biden," reports on a notable set of pending case developments suggesting one way that the Biden Administration is making good on its stated antipathy toward capital punishment.  Here are excerpts:

One man was charged in Orlando, Fla., with kidnapping and fatally shooting his estranged wife. Another man was indicted in Syracuse, N.Y., in the armed robbery of a restaurant and the murders of two employees. And a third man was charged in Anchorage with fatally shooting two people during a home invasion.

Those cases and four others prosecuted in federal courts around the country all had a common theme — they were among cases in which the Justice Department under President Donald J. Trump directed federal prosecutors to seek the death penalty if they won convictions.

But now, under a new presidential administration, the Justice Department has moved to withdraw the capital punishment requests in each of the seven cases. The decisions were revealed in court filings without fanfare in recent months. The decision not to seek the death penalty in the cases comes amid the Biden administration’s broad rethinking of capital punishment — and could signal a move toward ending the practice at the federal level....

Some legal experts said it was too early to tell what the seven scattered cases signified, and one lawyer suggested Mr. Garland could have been even more assertive. “I think it’s a good and important step by the attorney general, but there’s no question that it’s not far enough,” said Cassandra Stubbs, director of the Capital Punishment Project at the American Civil Liberties Union. “President Biden should issue a much broader moratorium,” Ms. Stubbs added. “He should ask for a moratorium on all death penalty prosecutions.”

But Michael Rushford, president of the Criminal Justice Legal Foundation, a nonprofit group in Sacramento, Calif., that supports crime victims and the death penalty, was critical of Mr. Garland’s decisions in the seven cases. “The families of murder victims are clearly not included in the calculus when ordering U.S. attorneys not to pursue capital punishment in the worst cases,” he said.

Under Mr. Garland, the Justice Department has continued to fight the appeal of the death sentence imposed on Dylann Roof, the white supremacist who murdered nine Black churchgoers in Charleston in 2015. And in the case of Dzhokhar Tsarnaev, who was convicted of helping to carry out the 2013 Boston Marathon bombing, which killed three people and injured more than 260, the Justice Department has asked the Supreme Court to reinstate the death penalty, which had been overturned on appeal.

July 22, 2021 in Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Monday, July 19, 2021

New report highlights how various federal agencies other than DOJ can advance criminal justice reform

The Center for American Progress has this intriguing new report titled "Beyond the U.S. Department of Justice: An Intersectional Approach To Advancing Criminal Justice Reform at the Federal Level." The report discusses the work that leading federal agencies other than the Justice Department could do to improve criminal justice systems. Here is part of the report's introduction:

The nation urgently needs to rethink justice system operations, from policing and prosecution to probation and parole. But a comprehensive approach to U.S. criminal justice reform must also look beyond the justice system. The nation must re-examine the web of policies that intersect with public safety and criminal justice — from education to economic development to health care and beyond. Only through an intersectional approach can the government truly redress the harms of the past and build a fairer, more just, and equitable future....

While the DOJ will undoubtedly play a significant role in reforming criminal justice policy and regulations during the next four years, other federal agencies will also be crucial to these efforts. From the Department of Agriculture to the Department of Veterans Affairs, every corner of President Biden’s administration will be essential in shaping the future of America’s approach to safety and justice. As the new administration works toward its promise to “strengthen America’s commitment to justice,” there are several agencies that can take meaningful action toward implementing progressive criminal justice reforms, reducing the footprint of the justice system, and removing barriers for formerly incarcerated individuals.

This report highlights some of the agencies beyond the DOJ that can have significant impacts on reforming the criminal justice system and outlines measures that they could take to establish policies and regulatory practices that would support a more fair and equitable justice system in the long term.

July 19, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Thursday, July 15, 2021

Federal prison population starting to grow again as we approach six months into Biden Administration

The day after Joe Biden was inaugurated, I authored this post posing this question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable realities about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population (surprisingly?) increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term, this population count (surprisingly!) decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021.

Of course, lots of factors play lots of expected and unexpected roles in shaping federal prosecutions and sentencings, and broader phenomena like the COVID pandemic can impact the federal prison population more than specific justice policies.  Consequently, I was disinclined to make any bold predictions about what we might see in the Biden era, though I suggested we should expect the federal prison population to be relatively steady at the start because it could take months before we saw any major DOJ policy changes and many more months before any policy changes started impacting the federal prison population count.  

Sure enough, when we hit the "100 days" milestone for the Biden Administration, I noted in this May 6, 2021 post that the federal prison population clocked in at 152,085 according to the federal Bureau of Prisons accounting.  In other words, no significant prison population growth early on in the Biden era.  But two months later, as we approach the six month mark for the Biden Administration, the federal prison population is starting to really grow again according to the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage.  Specifically, as of the ides of July 2021, the federal prison population clocks in at 154,596.

A BOP-measured growth of over 2500 federal inmates in just over two months strikes me as pretty significant, although I would guess that an easing of the COVID pandemic is the primary explanation.  The number of federal sentencings and the number of persons required to report to begin serving federal sentences have likely increased significantly in the last few months; I doubt any new Biden Administration (or AG Garland) policies or practices account for the (now 2%) growth in the federal prison population during the first six months of Joe Biden's presidency.

That said, I hope I am not the only one watching this number closely.  Especially given that the COVID pandemic is not really over and that a lot more surely could be safely "cut" from a bloated federal prison population, it will be quite disappointing if the Biden first term replicates the Obama first term marked by quite significant federal prison population growth.

July 15, 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)

Thursday, July 01, 2021

When might we expect appointments to a new — a truly new — US Sentencing Commission?

As the calendar turns to July, it seems a good time to express my frustration that we are now nearly six months into the Biden Administration and there has not yet been any nominations to the US Sentencing Commission.  As I have noted in a number of prior posts (some linked below), due to a lack of Sentencing Commissioners, the USSC has been only somewhat functional for only a small portion of the last five 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 useful research and reports in the interim, but the FIRST STEP Act's passage in December 2018 makes it particularly problematic for the USSC to have been completely non-functional in terms of formal amendments or agendas in recent years.

Of course, the federal sentencing system can and does march on without a fully functioning USSC.  But the lack of Commissioners is a significant lost opportunity for this significant agency to this particular moment.  When functioning well, the USSC can and should be part of a hearty and healthy dialogue with Congress and the Justice Department, especially when these political branches are interested in criminal justice reforms.  As I stressed in a recent post, "Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional," even small changes to the US Sentencing Guidelines by the USSC can have a huge impact on criminal justice practices and the federal prison population.  Moreover, as noted in this recent Bloomberg Law piece, headlined "Near-Vacant Sentencing Panel Gives Biden Chance for Fresh Start," the USSC these days could and should be thinking about a lot more than small guideline changes:

Six of seven possible seats on the U.S. Sentencing Commission remain empty, giving President Joe Biden an opportunity to remake the panel at a time when overhauling criminal justice is a rare example of bipartisan consensus....  In addition to taking up issues that have been unaddressed, a new set of commissioners could help review the decades-old sentencing guidelines wholesale to reflect a modern understanding of criminal justice, observers say.

“It is a great opportunity for the administration,” said Mark Osler, a law professor at the University of St. Thomas in St. Paul, Minnesota, who focuses on policy surrounding clemency, sentencing, and narcotics. “Because if you want a great shot at really creating reform in the federal system, the guideline commission is one place to start.”   And the bipartisan consensus on the need to overhaul sentencing gives a new commission “a chance to do things like simplify the guidelines,” Osler said....

During the 2020 presidential race, Biden’s campaign recommended tasking the Sentencing Commission with “conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges.”  

The guidelines were drafted 40 years ago at a time when the emphasis was on punishment rather than rehabilitation, said Nancy Gertner, a former federal district judge in Massachusetts and a senior lecturer at Harvard who teaches law and neuroscience and has written about sentencing.  Since then, the connection between the guidelines and mass incarceration is clearer and people have a better understanding of the science behind the issues that impact crime, such as mental health, she said.  “In my view, these are guidelines that need to be reexamined and reevaluated,” Gertner said.

Back in February, I wrote a commentary, "Reviving the U.S. Sentencing Commission," which noted that the USSC has historically been dominated by persons with prosecutorial backgrounds; I also lamented that the USSC now needs six new confirmed members to get back to full strength and at least three new commissioners to even be somewhat functional.  At that time, I did not reasonably expect to see needed nomination to the US Sentencing Commission until at least some Circuit and District Judge nominees were put forward.  But yesterday, Prez Biden announced his fifth round of judicial nominees.  The USSC, which is also in the judicial branch, needs to get appointments soon or there will be reason to fear we will not get confirmed Commissions in place until 2022 or even later. 

I especially hope the frustrating wait for nominations will be rewarded soon with some terrific nominees for the Sentencing Commission who will be committed to thinking big about how to make federal sentencing sounder.  Especially in light of the FIRST STEP Act and other national criminal justice developments, we need not just new US Sentencing Commissioners.  The country  could and would benefit from a truly new US Sentencing Commission committed not just to monitoring and managing the federal sentencing guidelines, but also to being a powerful advocate for humane, evidence-based sentencing systems throughout this great nation.  Notably, what I wish to imagine today is what Judge Marvin Frankel ably urged a full 50 years ago when he first set out his ideas for a "Commission on Sentencing" at the very end of Criminal Sentencing: Law Without Order:

The uses of a commission [should be as] to marshal full-time wisdom and power against the ignorance and the barbarities that characterize sentencing for crimes today....  The need for change is clear.  Our justly proud awareness that "we the people" have the power should carry with it a corollary sense of duty.  It is our duty to see that the force of our state, when it is brought to bear through the sentences of our courts, is exerted with the maximum we can muster of rational thought, humanity, and compassion. 

A few prior recent related posts:

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

Sunday, June 27, 2021

Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?

In many prior posts (some linked below), I have discussed the Office of Legal Counsel memo released at the end of the Trump Administration which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  I see that there are two more notable new press articles on this topic:

From The Hill, "Biden faces criticism for not extending home confinement for prisoners"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

The somewhat scattered Post article focuses on persons sent from home confinement back into federal prison for minor technical violations while also noting that the Biden Administration could seek to rescind the OLC memo or use clemency powers to keep folks home after the pandemic is deemed over.  The lengthy Hill article is more focused on the political discussion around this issue, but my post title reflects my growing frustration with this discourse.  Here are excerpts:

President Biden is under fire for not announcing an extension of a home confinement program for prisoners that was started during the coronavirus pandemic.  Progressives and criminal justice advocates have pressured the administration for months to rescind a Trump-era policy that kills the program when the pandemic ends.  They are frustrated that Biden's remarks this week didn’t address it....

Rep. Bonnie Watson Coleman (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said....

The home confinement program during the coronavirus pandemic was launched in response to the CARES Act in March and directed the federal Bureau of Prisons to prioritize home confinement for certain inmates in an effort to limit the spread of the coronavirus.  Roughly 24,000 inmates since have been sent to home confinement.

In the final days of the Trump administration, the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.  Biden and Attorney General Merrick Garland could rescind that policy....

Advocates also argue that those inmates transferred to home confinement have been monitored and largely have not violated the conditions of their situation. “If they’re so low risk and they haven’t violated the conditions, it’s hard to imagine any reason why they should be sent back,” said Maria Morris, senior staff attorney at the ACLU National Prison Project, adding that it would be a “ridiculous waste of resources.”

Many of the inmates placed in home confinement are elderly or in a vulnerable situation due to COVID-19, which posed a threat to them if they stayed inside a prison.  [Holly] Harris calls it “bad government” to send those inmates back to prisons. “At this point, the president just needs to grant them clemency and let them move on.  They are out because the Trump Administration felt it was safe enough to let them go home.  What more cover does he need?” she said.

I agree entirely with advocates saying it would be "bad government" and a "ridiculous waste of resources" to send back to prison thousands of vulnerable people who have been successful serving their sentences at home during the pandemic.  But I do not think it entirely right to describe the OLC memo as a "Trump-era policy" that is readily changed by the Biden Administration.  The OLC memo is not really a "policy" document; it is an elaborate interpretation of how the CARES Act alters BOP authority to place and keep persons in home confinement.  Though the OLC statutory interpretation requiring a return of persons to federal prison is debatable, the fact that this interpretation of the CARES Act amounts to bad policy does not itself give the Biden Administration a basis to just ignore statutory law.

Of course, statutory law notwithstanding, Prez Biden could (and I think should) use his clemency authority to extended home confinement for those at risk of being sent back to federal prison post-pandemic.  But if members of Congress are "disappointed" that the home confinement program is not being extended, they should amend the CARES Act to do exactly that with an express statutory provision!  This difficult issue stems from the text of the CARES Act; if the statutory text Congress passed when COVID first hit now is clearly operating to creates wasteful, bad government, Congress can and should fix that statutory text.  Put simply, this matter is a statutory problem that calls for a statutory fix. 

I surmise that advocates (not unreasonably) assume that getting a gridlocked Congress to "fix" this CARES Act home confinement problem through statutory reform is much less likely than achieving some other fix through executive action.  But, as I see it, exclusive focus on executive action to fix what is fundamentally a statutory problem itself contributes to legislative gridlock.  Indeed, I am more inclined to criticize the Biden Administration for not urging Congress to fix this CARES Act problem, especially because the notable success of home confinement policies during the pandemic could and should justify statutory reforms to even more broadly authorize ever greater use of home confinement in "normal" times.

Notably, three sentencing-related bill made their way through the Senate Judiciary Committee earlier this month (basics here).  Because I am not an expert on either legislative procedure or inside-the-Beltway politics, I do not know if it would be easy or impossible to include add "home confinement fix" to one of these bills.  But I do know that I will always want to believe that Congress at least has the potential to fix problems of its own creation.  But, as this post is meant to stress, I think it important not too lose sight of the fact that this is a fundamentally a congressional problem, not a presidential one.      

Some prior recent related posts:

UPDATE:  Achieving a media troika, the New York Times also published this lengthy article on this topic under the headline "Thousands of Prisoners Were Sent Home Because of Covid. They Don’t Want to Go Back."  Like the Post article, this piece is a bit scattered in its focus while also directing most of the attention on the Justice Department and Biden Administration rather than highlighting Congress's critical role in this story.  This passage is especially notable:

Changing the prison system is one of the few areas that has drawn bipartisanship agreement in Washington. Senator Charles E. Grassley, Republican of Iowa, joined Democrats in criticizing the Justice Department memo, which was issued in January.

“Obviously if they can stay where they are, it’s going to save the taxpayers a lot of money,” Mr. Grassley said at the hearing [before the Senate Judiciary Committee in April]. “It will also help people who aren’t prone to reoffend and allows inmates to successfully re-enter society as productive citizens.”

The next sentence of this article, if it were telling the full story, should at the very least note that Congress could "fix" the OLC memo through a simple statutory change. I agree with Senator Grassley that it would be wrong to send all these folks back to prison after they have done well on home confinement, and so I think Senator Grassley should get together with his pals on the Capital Hill and pass a statute to that the law no longer could be interpreted to require sending them all back to prison at taxpayer expense.

June 27, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 23, 2021

Biden Administration stresses reentry in its new public safety efforts

I was intrigued to see that the new "strategy" to combat gun violence announced today by the White House includes significant discussion of reentry issues.  This fact sheet, titled "Biden-Harris Administration Announces Comprehensive Strategy to Prevent and Respond to Gun Crime and Ensure Public Safety," includes a bunch of items under the heading "Help formerly incarcerated individuals successfully reenter their communities."  Here are the headings of items discussed thereunder:

Investments to help formerly incarcerated individuals find quality jobs. 

Expanding Federal Hiring of Formerly Incarcerated Persons.

Implementing “ban the box” policy.

Hiring Second Chance Act Fellow.

Leveraging tax credits to incentivize hiring of formerly incarcerated individuals. 

Addressing the housing needs of returning citizens. 

This extended CNN piece discusses the initiative more generally, providing this summary:

The crime prevention strategy institutes a number of measures among federal agencies and it also relies on allowing states to use American Rescue Plan dollars for more flexible applications, including hiring law enforcement above pre-pandemic levels or using the funds toward community violence intervention programs.

According to the White House, Biden's "Comprehensive Strategy to Prevent and Respond to Gun Crime and Ensure Public Safety" will focus on five main pillars: stem the flow of firearms used to commit violence, including by holding rogue firearms dealers accountable for violating federal laws; support local law enforcement with federal tools and resources to help address summer violent crime; invest in evidence-based community violence interventions; expanding summer programming, employment opportunities, and other services and supports for teenagers and young adults; and help formerly incarcerated individuals successfully reenter their communities.

June 23, 2021 in Criminal justice in the Biden Administration, Reentry and community supervision | Permalink | Comments (0)

Monday, May 10, 2021

Effective review of (just some) issues surrounding home confinement for the Biden Justice Department

This new extended Hill article, headlined "DOJ faces big decision on home confinement," provide an effective accounting of the building discussion around the status of home confinement in the federal system as it appears the pandemic is winding down.  I recommend the full piece, and here are excerpts:

The Biden administration will soon have to decide whether to send back to prison thousands of inmates who were transferred to home confinement after the start of the COVID-19 pandemic.  President Biden and Attorney General Merrick Garland have been facing mounting calls to rescind a policy implemented in the final days of the Trump administration that would revoke home confinement for those inmates as soon as the government lifts its emergency declaration over the coronavirus.

Advocates and lawmakers argue that the program has been a resounding success, and that it would be unjust to reincarcerate thousands of individuals who abided by the terms of their home confinement.  “If you're one of these people, you're trying to figure out, 'Do I go back to college? Do I start a new job? Do I start a family? Do I sign a lease? I mean, what can I do, not knowing where I'm going to be in six months?’ That's cruel to keep somebody in that doubt and uncertainty for this long and to say, ‘You know, don't worry about it, it's not going to happen tomorrow,’” said Kevin Ring, president of the advocacy group Families Against Mandatory Minimums.

Last year, in response to the CARES Act, then-Attorney General William Barr directed the federal Bureau of Prisons (BOP) to prioritize home confinement for certain inmates in order to limit the spread of the coronavirus within the prison system.  According to the BOP, about 24,000 inmates have been released to home confinement since the beginning of the pandemic. Advocates say there are now about 4,500 people facing uncertainty about whether they might have to go back to prison after months of reintegrating into society.

BOP Director Michael Carvajal told a House Appropriations subcommittee in March that just 21 inmates released to home confinement were sent back to prison for alleged rule violations. And in the program overall, only one person has committed a new crime....

The uncertainty about the program’s fate began in January, a few days before President Biden's inauguration, when the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.

Randilee Giamusso, a BOP spokesperson, said the Biden administration had recently expanded the eligibility for home confinement.  “This is an important legal issue about the language Congress used in the CARES Act,” Giamusso said in a statement.  “It is important to recognize even under the Office of Legal Counsel's (OLC) reading of the statute, the BOP will have discretion to keep inmates on home confinement after the pandemic if they’re close to the end of their sentences.  For the more difficult cases, where inmates still have years left to serve, this will be an issue only after the pandemic is over.”

Giamusso added that Biden recently extended the national emergency regarding COVID-19, and that the Department of Health and Human Services expects the public health crisis to last at least through December.  “The BOP is focused right now on expanding the criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred,” Giamusso said.

Still, some lawmakers and advocates argue that the Trump-era policy would unnecessarily upend the lives of those deemed low-risk enough to be sent home and who have since abided by the terms of their home confinement.  Biden and Garland are facing pressure to rescind the policy memo, receiving letters from Sen. Dick Durbin (D-Ill.), the chairman of the Senate Judiciary Committee; a bipartisan group of 28 House lawmakers; and a coalition of advocacy groups....

This past week, the White House told advocates that Biden is preparing to use his clemency powers, in what would be a rare early exercise of the power to commute or pardon incarcerated people.  Ring said rescinding the home confinement policy, or using another tool to keep those affected by it out of prison, is an easy way for Biden to show that he’s serious about taking on mass incarceration.

“They've said they want to use the clemency authority more robustly to let people out of prison who don't need to be there,” said Ring, who has served time in federal prison. “Well, here's 4,500 people that Bill Barr and Donald Trump cleared as the lowest of low risk. So if you can't find a way to keep these people home, I mean, how discouraging will it be for those who are hoping for clemency?”...

Experts and advocates alike see the home confinement policy as a radical experiment that yielded positive results, potentially adding more momentum to criminal justice reform efforts that have seen a growing bipartisan consensus against the tough-on-crime policies of the late 20th century.  Ring, of Families Against Mandatory Minimums, said lawmakers should consider the success of the home confinement program as a potential alternative to incarceration.  “I think this is still a good model or a good use of natural experiment to show that we can keep more people in the community, and not keep them in prison,” he said. “Congress should use what happened here as evidence for expanding home confinement going forward.”

But in the meantime, Ring said, the priority is for the Biden administration to make clear that it does not intend to re-incarcerate those who are serving their sentences out at home. “Not only do they need to fix it, they need to fix it immediately,” he said. “They need to announce to these people, ‘You're not going back. We're not making you go back. We'll rescind the memo or we'll use some other authority we have to fix this.' But these people need to get on with their lives.”

I am grateful for this effective review of not just the COVID-driven home confinement changes, but also the broader issue of whether this unfortunate "natural experiment" justifies a robust rethinking of home confinement as an alternative punishment.  And I think that issue need to be explored even further because I surmise that home confinement can end up meaning lots of different things for lots of different persons.  And, in addition to the wonderfully low number of problems with the COVID home confinement transfers, it will be interesting and important to track long-term recidivism rates for these groups. 

Some prior recent related posts:

May 10, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Monday, May 03, 2021

Interesting and critical accounting of Biden Administration's criminal justice work over first 100 days

Biden-thermometer-2This new lengthy Law360 piece, headlined "Biden Falls Short On Criminal Justice Reform In First 100 Days," provides a fittingly critical review of the Biden Administration's criminal justice work over its first 100 days in office.  I recommend the piece in full, and here are some highlights (along with an interesting graphic):

President Joe Biden made a slew of campaign promises on the criminal justice reform front that he has made little progress on in his first 100 days in office, disappointing some advocates who believed he would prioritize criminal justice reform.

Advocates say that even though Biden entered his presidential term with a full plate of pressing issues to tackle, including the COVID-19 pandemic and economic downturn, he could have easily taken more steps to advance criminal justice reform at the beginning of his administration.

Kara Gotsch, deputy director of the Sentencing Project, a nonprofit research organization seeking to reduce incarceration rates, said she is especially disappointed with the Biden administration because it supported renewing a policy that subjects individuals to mandatory minimum sentences for having trace amounts of fentanyl in their systems.

The policy was enacted under former President Donald Trump and goes against Biden's campaign promise to end mandatory minimum sentences for federal drug offenses, according to Gotsch.  Gotsch said she is outraged that Biden's administration ignored advice from lawmakers, the legal community and criminal justice organizations to not support the policy when Congress was weighing whether or not to re-up the rule. Congress voted last week to renew the policy. "It's just mind-boggling that we are having this conversation that is a repeat of conversations that I personally have been having for decades," Gotsch said.

Biden supports criminal justice reform in his speeches and public statements, which sets an important tone for his administration, but his words are not leading to action on criminal justice reform, advocates say.

In Biden's March proclamation about "Second Chance Month" in April, he said his administration supports giving second chances to people by "diverting individuals who have used illegal drugs to drug court programs and treatment instead of prison" and "eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be."

"So why are we literally doing the opposite, which is to expose more people to the harshest mandatory minimums on the books?" Gotsch said.

One of the biggest actions Biden took was issuing an executive order in his second week of office ending the use of privately operated federal prisons.  That move reinstated an order first issued by former President Barack Obama, which Trump had reversed.  Even that action from Biden, however, didn't go far enough to reform the criminal justice system, advocates say.

Brandon Buskey, deputy director of the American Civil Liberties Union's Criminal Law Reform Project, explained that one of the problems with Biden's order is that it doesn't immediately end federal prison contracts with private operators. Instead, the order phases out these contracts, which are usually for five to 10 years, by preventing them from being renewed when they expire, he said....

Advocates also say that Biden should have extended his executive order to privately operated civil immigration detention centers rather than limiting it to criminal detention facilities under the purview of the Federal Bureau of Prisons.

Biden's inaction so far doesn't mean that he won't keep his criminal justice reform promises though, scholars say. Professor Andrew Sidman, chair of the political science department at John Jay College of Criminal Justice, said it is common for modern presidents to overpromise during their presidential campaigns and underdeliver in their first 100 days in office and beyond.  But Sidman said he believes that Biden will eventually get to criminal justice reform during his time in office....

When Law360 asked the White House about Biden fulfilling his criminal justice reform promises, a spokesperson pointed to several public statements that press secretary Jen Psaki has made about the president still being committed to criminal justice reform.  Psaki has said that Biden is waiting on Congress to pass reform legislation.

But Biden could have easily granted clemency to hundreds of incarcerated individuals serving lengthy sentences for minor drug offenses, commuted the sentences of federal inmates on death row and issued a moratorium on federal executions — all actions that he promised to take during his presidency — within his first 100 days without Congress, experts say....

Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice, a nonprofit research and policy organization, said that Biden immediately addressing the pandemic was important for criminal justice reform.... Ann Jacobs, executive director of the John Jay College Institute for Justice and Opportunity, added that prioritizing public health and the economy are crucial for crime prevention because research shows that people are more likely to commit crimes when they are desperate or unemployed.

Jacobs said that Biden has created a solid foundation for criminal justice reform within his 100 days by appointing top officials within the departments of Homeland Security, Education and Justice who understand criminal justice reform....

Rahman said the next six months will be a better indicator of how the Biden administration is doing on criminal justice reform.  The administration has lots of upcoming opportunities to reaffirm its commitment to criminal justice reform, including by not sending individuals released on home confinement during the pandemic back to prison and allocating money from the American Rescue Plan to reform efforts, she said.

Congress allocated $1.5 billion in the American Rescue Plan to the U.S. Department of Health and Human Services for community-based mental health services that could be used as alternatives to incarceration and would be a substantial investment in criminal justice reform, Rahman said. "The devil is in the details, and truly, it's an opportunity for the administration to put money where their mouth is on criminal justice reform," Rahman said.

A few prior recent related posts:

May 3, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Saturday, May 01, 2021

Assessments and concerns regarding Biden Administration's early criminal justice efforts

This past week brought the end of the first 100 days of Joe Biden's presidency along with a big speech from Prez Biden to Congress.  In this prior post, I lamented a bit that the big speech did not devote much attention to criminal justice reform issues.  And here is a round-up of some recent articles and commentary reviewing the work of the first 100 days and urging the Biden team to lean into criminal justice issues more:

From Christina Carrega at CNN, "Biden vowed to end the death penalty. Activists are demanding action as he nears the 100-day mark"

From Morgan Chalfant at The Hill, "White House officials meet virtually with criminal justice reform advocates"

From Marc Levin and Khalil Cumberbatch at USA Today, "On racial and criminal justice, Biden has shown some promise, but little progress"  

From Billy Binion at Reason, "If Biden Is Serious About Criminal Justice Reform, He Needs To Get Serious About Qualified Immunity"

From Shaun King at Newsweek, "Joe Biden Must Fix the Racist Criminal Justice System He Helped Create"

From Erica Zunkel and James Zeigler at USA Today, "Biden administration needs to walk the walk on second chances for prisoners; The Department of Justice routinely opposes releases, doing so in clearly meritorious cases."

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

Friday, April 30, 2021

Prez Biden gets timely reminder that criminal justice reform presents unique bipartisan opportunity

I complained in this post that Prez Biden did not have all that much to say about criminal justice issues in his lengthy speech to Congress this week. But I now see from a number of news reports that criminal justice reform got some brief, but especially notable, bipartisan attention after the speech.  This Washington Post piece, headlined "GOP lawmaker who voted to overturn Biden’s election win wants to help him on criminal justice reform," provides these details:

Moments after President Biden concluded his first speech to a joint session of Congress on Wednesday, he was greeted by lawmakers aiming to get in some coveted face time with the president.  Among them was Rep. Troy E. Nehls (R-Tex.), who helped barricade the entrance of the House Chamber during the insurrection Jan. 6 but still voted to overturn the election that Biden won.

But in a brief exchange Wednesday night, Nehls, wearing a Texas-flag mask, introduced himself to Biden as “a sheriff from Texas” and offered his experience policing Fort Bend County to help with the president’s efforts on criminal justice reform.  “I want to help with the criminal justice reform. I want to be a part of it. It’s needed,” he said to the president. “I don’t know how to reach out to you, but I have the experience.”

In response, Biden assured him they’d be in touch, saying, “I’ll reach out to you.”... A White House official told The Washington Post on Thursday that Biden “appreciated Rep. Nehls’s offer and their conversation.”...

During last year’s GOP primary for an open seat in Congress, Nehls painted himself as a fierce Trump advocate.  Texas Monthly reported that he stated on his campaign website how he would “stand with President Trump to defeat the socialist Democrats, build the wall, drain the swamp, and deliver on pro-economy and pro-America policies.”  After he secured the nomination, Nehls pivoted to a more moderate approach for the general election, focusing on health care and criminal justice reform.  He also removed the “Standing with Trump” section from his website as Trump’s approval among Republicans was waning, according to the Houston Chronicle.  He went on to defeat his Democratic opponent, Sri Preston Kulkarni, by seven percentage points in November....

On Wednesday night, Nehls tweeted during the speech about the president’s handling of the southern border and slammed Democrats for reportedly handing out masks in the Chamber that were made in China. But in their exchange on criminal justice reform, Nehls took on a much different tone than the one he used on Twitter.

“I don’t want to hurt your reputation,” the president said to Nehls of his offer, according to video of the moment. Before Biden went to talk to another lawmaker, Nehls made his final plea: “I can do a whole lot of good in that conversation.”

This Texas Tribune article, headlined "Freshman GOP Texas congressman made a personal pitch to Joe Biden: Let me help with criminal justice reform," provides some more details concerning the type of reforms that Rep Nehls seems eager to champion:

Biden administration staff reached out to Nehls' office on Thursday morning, according to Nehls spokesman Daniel Gribble.  Gribble added that Nehls is "optimistic about common sense reforms they can accomplish" and the congressman's focus is "recidivism reduction through inmate training programs."

"As Sheriff, Rep Nehls implemented HVAC and welding programs for non-violent inmates at the county jail," Gribble said.  "He had wild success reducing the 2 year re-arrest rate with participating inmates.  He’d like to see similar programs available in County jails across the country and is working on legislation that will make that possible."

April 30, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (11)

Wednesday, April 28, 2021

Not even much lip service about sentencing reform in Prez Biden's first address to Congress

Prez Joe Biden gave a very lengthy speech this evening (full text here), but it only included a precious few sentences about criminal justice reform.  Here are these sentences:

We have all seen the knee of injustice on the neck of Black America. Now is our opportunity to make real progress.

Most men and women in uniform wear their badge and serve their communities honorably.  I know them.  I know they want to help meet this moment as well.

My fellow Americans, we have to come together.  To rebuild trust between law enforcement and the people they serve. To root out systemic racism in our criminal justice system.  And to enact police reform in George Floyd’s name that passed the House already.

I know the Republicans have their own ideas and are engaged in productive discussions with Democrats.  We need to work together to find a consensus.  Let’s get it done next month, by the first anniversary of George Floyd’s death.

The country supports this reform.  Congress should act.

Though I was pleased to hear small mention of policing reform by Prez Biden, I was disappointed (though not really surprised) that there was not any other mention of any other criminal justce reform efforts.  And this new NPR piece, headlined "Activists Wait For Biden To Take Bold Action On Criminal Justice Reform," picks up this theme.  Here are excerpts:

President Biden campaigned on a plan to remake the criminal justice system. He admitted that many of the tough-on-crime positions he staked out 30 years ago just did not work.  He said he would focus on drug treatments and on cutting long mandatory prison sentences.  NPR's Carrie Johnson has been talking to progressive activists who are waiting for that to happen....

JOHNSON: The Biden White House has been talking regularly with [Inimai] Chettiar and others who want to overhaul the justice system. Kevin Ring advocates for people in prison at the group Families Against Mandatory Minimums.

KEVIN RING: FAMM's been around 30 years. I don't know that we've ever had that kind of outreach from the White House or the Justice Department.

JOHNSON: Ring says he had a guarded optimism about Biden based on his campaign rhetoric.

RING: But there was also some skepticism that he was going to have to tear down the house that he built in some ways through the sentencing laws and prison policies he not only sponsored but bragged about.

JOHNSON: Ring says it's still early, but the White House seems to be trying to lay the groundwork for more foundational change. Kara Gotsch of the Sentencing Project isn't so sure about that.

KARA GOTSCH: The lip service is good, but we need more, more action....

JOHNSON: Other advocates credit the Biden team for supporting bipartisan legislation that would finally equalize the penalties for people caught with crack cocaine.  Since the 1980s, offenses involving crack have been punished 100 times more harshly than the powder form of the drug, which has been more popular with white people.  Chettiar of the Justice Action Network thinks that bill could become law this year.  With Congress so closely divided between the two political parties, the odds of legislation that would transform the justice system are pretty slim.  That's why advocates are pushing the White House and DOJ to go big now before time runs out.

April 28, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (14)

Thursday, April 22, 2021

"A Courts-Focused Research Agenda for the Department of Justice"

The title of this post is the title of this notable new Brennan Center report.  Here is its introduction:

Millions of individuals interact with the U.S. criminal and civil legal system every year. Many of them look to the courts to defend their rights and ensure fair outcomes — and all too often, courts are falling short.

As a candidate, President Biden committed to combatting mass incarceration, ending the criminalization of poverty, rooting out racial disparities, and refocusing our criminal and civil legal systems on the key principles of equality, equity, and justice. State and federal courts are critical to achieving these goals, but there is much that we don’t know about how they currently function and where reform is most acutely needed.

In order for the Department of Justice (DOJ) to effectively support states, local jurisdictions, tribal governments, territories, and the federal government in refashioning our courts into more just institutions, research and data are urgently required.

There must be an understanding not only of who is entering the court system, but why they are brought into it, and what their experiences illustrate about our vast system of local, state, and federal courts. For example, the Biden administration has emphasized its intention to end the practice of incarcerating people for their inability to pay court debt, yet we still know very little about how these and other predatory court practices function across the country. The Covid-19 pandemic prompted an unprecedented experiment with remote court proceedings in jurisdictions across the country, but we still know very little about how remote court impacts access to justice and the fairness of proceedings.

President Biden has also emphasized the importance of racial, ethnic, gender, and professional diversity on the bench — including nominating judges who bring diversity to the bench. But while the judiciary publishes diversity data about Article III judges, we lack basic information about the demographics or professional experience of many judges in state and Article I federal courts. These are just a few of the data and research gaps that make our courts problematically opaque.

Although just scratching the surface, we offer some recommendations for the Office of Justice Programs (OJP) and National Institute of Justice (NIJ) to collect additional data and perform research to better understand how our courts do or don’t work for millions of Americans, as well as setting forth a research agenda that could shed more light on how to improve our nation’s vast system of local, state, and federal courts. 

April 22, 2021 in Criminal justice in the Biden Administration, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, April 20, 2021

Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement?

The question in the title of this post is what I keep wondering as days pass since I saw this FAMM press release from last Friday and yet still fail to see any updated official information from the Department of Justice or the the Bureau of Prisons.  The FAMM press release, dated April 16, 2021, starts this way (my emphasis added):

FAMM President Kevin Ring released the following statement in response to the Department of Justice (DOJ) releasing a memo expanding the criteria for home confinement.

“We’re grateful that that the new administration heeded the widespread calls to make more people eligible for home confinement,” Ring said. “The original criteria were too narrow. These changes will protect vulnerable people in federal prisons.

“We are extremely disappointed, however, that the administration has not rescinded or overruled the legal memo that could force people on home confinement back to prison when the pandemic subsides.  Thousands of families are rightfully anxious that they will be separated again soon.  We worry that today’s announcement will result in more families being in the same boat.”

I understand why the FAMM release expresses concern that the Biden Administration has not yet addressed the worrisome OLC memo discussed in this post that would require returning some folks to prison post-pandemic.  But, in the short term, I am quite concerned that an important memorandum expanding the criteria for home confinement seemingly has not yet been made widely publicly available.

Notably, on this DOJ coronavirus page, there is no link to or any reference to a new DOJ memo on home confinement criteria.  And this BOP COVID page still states expressly that "eligibility requirements for an inmate to be considered for Home Confinement are set forth in the Attorney General's March 26 and April 3, 2020 Memoranda."  Given these webpages, one might say that DOJ and BOP are now not just guilty of a lack of transparency on an important matter of public concern, but they are actually providing misleading information about what the current home confinement criteria are right now.

Misleading information about home confinement criteria is not just problematic for persons in federal prisons and their families who might think they ought to be eligible for home confinement.  It is also problematic for federal judges around the country who are considering compassionate release motions and who might be influenced by the new home confinement criteria in their decision-making.  And, most fundamentally, it is problematic for the American people who have every right to expect and demand that consequential criminal justice decisions by government actors will be transparent and clear, not hidden and opaque.

UPDATE:  The folks at FAMM have posted here what looks like the full text of the new "Updated Home Confinement Guidance under the CARES Act  [as of] April 2021"  Here is how this document gets started:

On Wednesday, April 14, 2021, FAMM received the text of a memo outlining new criteria for home confinement under the CARES Act.  As of this time, the memo has not been shared online by the BOP or Justice Department, but a BOP spokesperson confirmed to The Marshall Project that this memo was sent to all BOP facilities.

Frustratingly, it is hard to tell from the text of this still-officially-secret DOJ memo just how the criterial for home confinement has been changed and how many current federal prisoners might be impacted by the change.  Moreover, the memo also says that it "provides updated guidance and direction and supercedes the memorandum dated November 16, 2020," but I am not sure that November 16 memo was ever made public.  Sigh. 

April 20, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (7)

Tuesday, April 13, 2021

Any interesting new insights about the interesting new folks tapped by Prez Biden for DEA and AAG positions at the Department of Justice?

As detailed in this press release, Prez Biden yesterday announced "His Intent to Nominate 11 Key Administration Leaders on National Security and Law Enforcement."  Two of the nominees could prove be particularly impactful in sentencing and other federal criminal justice reform arenas: 

Anne Milgram, Nominee for Administrator, Drug Enforcement Administration, Department of Justice

Anne Milgram has had a distinguished career as a state, local, and federal prosecutor.  As New Jersey’s Attorney General from 2007-2010, Milgram was New Jersey’s chief law enforcement officer and led the 9,000-person Department of Law & Public Safety, overseeing the New Jersey State Police and the State Division of Criminal Justice....

Kenneth Polite, Nominee for Assistant Attorney General for Criminal Division, Department of Justice

Kenneth A. Polite is currently a partner at Morgan, Lewis & Bockius LLP.  During the Obama/Biden administration, he served as the United States Attorney for the Eastern District of Louisiana, where he championed prevention, reentry, and enforcement in improving public safety, and advised Department of Justice leadership as a member of the Attorney General’s Advisory Committee.... 

I do not know all that much about either of these folks, but I do know that lots of criminal justice advocates are going to be urging them to be reform minded.  Here is some early press coverage of these nominations providing some background:

UPDATE:  A helpful reader commented that Anne Milgram gave this notable TED talk in October 2013 titled "Why smart statistics are the key to fighting crime."  Here is how the 12-minute talk, which has been viewed more than 1 million times, is described:

When she became the attorney general of New Jersey in 2007, Anne Milgram quickly discovered a few startling facts: not only did her team not really know who they were putting in jail, but they had no way of understanding if their decisions were actually making the public safer.  And so began her ongoing, inspirational quest to bring data analytics and statistical analysis to the US criminal justice system.

Because I believe the DEA could and would likely benefit from using more "smart statistics," I hope these ideas become part of DEA operations in the years ahead.

April 13, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (2)

Friday, April 02, 2021

ONDCP releases "Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One"

The Executive Office of The President Office Of National Drug Control Policy yesterday released this detailed 11-page document titled "The Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One."  For folks interesting in the potential future of the drug war at the federal level, the document makes for an interesting read.  Here is how it gets started (endnotes omitted):

The overdose and addiction crisis has taken a heartbreaking toll on far too many Americans and their families.  Since 2015, overdose death numbers have risen 35 percent, reaching a historic high of 70,630 deaths in 2019.  This is a greater rate of increase than for any other type of injury death in the United States.  Though illicitly manufactured fentanyl and synthetic opioids other than methadone (SOOTM) have been the primary driver behind the increase, overdose deaths involving cocaine and other psychostimulants, like methamphetamine, have also risen in recent years, particularly in combination with SOOTM.  New data suggest that COVID-19 has exacerbated the epidemic, and increases in overdose mortality6 have underscored systemic inequities in our nation’s approach to criminal justice and prevention, treatment, and recovery.

President Biden has made clear that addressing the overdose and addiction epidemic is an urgent priority for his administration.  In March, the President signed into law the American Rescue Plan, which appropriated nearly $4 billion to enable the Substance Abuse and Mental Health Services Administration and the Health Resources and Services Administration to expand access to vital behavioral health services.  President Biden has also said that people should not be incarcerated for drug use but should be offered treatment instead.  The President has also emphasized the need to eradicate racial, gender, and economic inequities that currently exist in the criminal justice system.

These drug policy priorities — statutorily due to Congress by April 1st of an inaugural year — take a bold approach to reducing overdoses and saving lives.  The priorities provide guideposts to ensure that the federal government promotes evidence-based public health and public safety interventions.  The priorities also emphasize several cross-cutting facets of the epidemic, namely by focusing on ensuring racial equity in drug policy and promoting harm-reduction efforts.  The priorities are:

  • Expanding access to evidence-based treatment;
  • Advancing racial equity issues in our approach to drug policy;
  • Enhancing evidence-based harm reduction efforts;
  • Supporting evidence-based prevention efforts to reduce youth substance use;
  • Reducing the supply of illicit substances;
  • Advancing recovery-ready workplaces and expanding the addiction workforce; and
  • Expanding access to recovery support services.

ONDCP will work closely with other White House components, agencies and Congress to meet these priorities.  ONDCP will also work closely with State, local, and Tribal governments, especially around efforts to ensure that opioid lawsuit settlement funds are used on programs that strengthen the nation’s approach to addiction.

April 2, 2021 in Criminal justice in the Biden Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, March 30, 2021

Prez Biden announces his first group of judicial nominees reflecting diverse backgrounds

As partially detailed in this CBS News piece, headlined "Biden announces first slate of judicial nominees with picks that would make history," Prez Joe Biden has formally announced a first set of planned nominations for judicial openings. Here are basics: 

President Biden on Tuesday rolled out his first slate of judicial nominees, announcing candidates with diverse backgrounds and professional qualifications as he begins to make his own stamp on the nation's district and circuit courts. Of the president's 11 judicial picks, three set to be nominated to the federal district courts would make history if confirmed by the evenly divided the Senate. The White House said the candidates underscore Mr. Biden's commitment to diversity on the federal bench.

"This trailblazing slate of nominees draws from the very best and brightest minds of the American legal profession," Mr. Biden, a former chairman of the Senate Judiciary Committee, said in a statement. "Each is deeply qualified and prepared to deliver justice faithfully under our Constitution and impartially to the American people — and together they represent the broad diversity of background, experience, and perspective that makes our nation strong."

The president intends to nominate three Black women to fill vacancies on a trio of circuit courts: Judge Ketanji Brown Jackson to the U.S. Court of Appeals to the District of Columbia Circuit; Tiffany Cunningham to the U.S. Court of Appeals to the Federal Circuit; and Candace Jackson-Akiwumi to the 7th U.S. Circuit Court of Appeals....

In addition to announcing nominees to the circuit courts, Mr. Biden also revealed his candidates to fill open seats on federal district courts in Maryland, New Jersey, the District of Columbia and New Mexico, as well as the Superior Court of the District of Columbia.

Three of Mr. Biden's nominees to the district courts would make history if confirmed by the Senate: Judge Zahid Quraishi, tapped for the district court in New Jersey, would be the first Muslim-American federal judge; Judge Florence Pan would be the first Asian-American woman on the district court in D.C.; and Judge Lydia Griggsby would be the first woman of color to serve as a federal judge in Maryland.

With 72 vacancies on the federal courts and another 28 seats set to become open in the coming weeks and months, Mr. Biden has been under pressure to prioritize judicial nominees and mount his own effort to reshape the federal bench after former President Donald Trump succeeded in appointing more than 230 judges to the courts, most of them white men. The president has also been pushed by progressive groups to select nominees with not only diverse backgrounds, but also an array of legal experience, including public defenders, civil rights lawyers and legal aid attorneys.

The full list of the nominees is available via this White House press release.  The nine women and two men on this list seem to represent an array of diverse professional histories as well as personal backgrounds (e.g., I count ten different law schools represented).  Long-time readers know I have been a long-time fan of Judge Ketanji Brown Jackson, in part because she served on the US Sentencing Commission and was once a federal public defender.  I was not surprised at all to see her name on this list, and it is great to see a good number of additional nominees with significant public defender histories (Judges Jackson-Akiwumi and Boardman, Margaret Strickland). And I was pleasantly suprised to see the list include someone I attended high school with (Judge Griggsby) and a fairly recent graduate of The Oho State University Moritz College of Law (Judge Puttagunta). 

March 30, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Friday, March 19, 2021

Small, and not quite steady, reform progress in a not quite new era for criminal justice reform

An interesting set of new press pieces highlight ways in which the criminal justice times seem to be a-changing during the Biden era, but not yet quite as much or as fast as lots of advocates might be hoping or expecting.  Here they are with a brief excerpt:

From BuzzFeed News, "COVID-19 Has Torn Through Prisons. Advocates Want Biden To Act Now"

Nearly all of the groups who spoke with BuzzFeed News said that they’ve participated in briefings and have had conversations with White House staff to raise concerns about BOP policy, including compassionate release and underused policies to thin prison populations during the pandemic.  Advocates have specifically pushed the administration to direct the BOP to use its expanded authority to grant home confinement under last year’s coronavirus relief plan.

Advocates have had a mixed response to those conversations, with optimism about prospective change mingled with frustration about slow-moving progress.

From Slate, "The Biden Administration Takes a Step Toward Undoing the Damage of the War on Drugs"

In September, [Tarahrick] Terry petitioned the Supreme Court saying he qualified for a sentence reduction [of his 188-month sentence for possessing 3.9 grams of crack cocaine in 2008], because the First Step Act made 2010’s Fair Sentencing Act retroactive. His case got a boost earlier this week, when President Biden’s Justice Department informed the Supreme Court they believe that Terry, and others who were incarcerated for low-level crack cocaine offenses, should have their sentences reduced under the First Step Act. The court plans to hear the case later this year.

From Vox, "The EQUAL Act would finally close the cocaine sentencing disparity"

Reps. Don Bacon (R-NE) and Kelly Armstrong (R-ND) have already cosponsored [the EQUAL Act]. But in a statement to Vox, Bacon was less optimistic about the timeline, even as he said that eliminating the cocaine sentencing disparity is only one part of a broader justice reform push he wants to tackle.

“While I am optimistic it will be voted on in the House this Congress, I don’t have a projected timeline for the bill at this stage and hope to gain more bipartisan support as it makes its way through the legislative process,” he said. The Senate is where it will be more critical to find Republican support, considering the chamber’s 50-50 split. Thus far, only Sens. Cory Booker and Sen. Dick Durbin (D-IL) have signed on.

Sen. Chuck Grassley, who worked with Durbin to introduce and shepherd the First Step Act through the Senate, would be a critical part of any bipartisan negotiation. In a statement to Vox, a spokesperson for Grassley said he was receptive to working with Democrats on the EQUAL Act, but that that process had not begun yet.

March 19, 2021 in Criminal justice in the Biden Administration, Drug Offense Sentencing, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, March 15, 2021

"14 Steps Biden’s DOJ Can Take Now to Reform America’s Criminal Legal System"

The title of this post is the title of this notable new commentary at The Appeal authored by Rachel Barkow and Mark Osler. I highly recommend the full piece, and here are parts of the preamble and the listed "14 steps":

As the Biden Administration takes shape and the nation recovers from four years of Donald Trump, there may be a temptation to return to “normal.”  That could be especially true at the Department of Justice, where so many longstanding norms — independence from politics, high ethical standards, a commitment to facts — took a beating.  With many Obama-era appointees back in high-level positions, there is likely a desire to go back to the way things were when the same people were last in power.  But that’s setting the bar too low.  While it’s critical that the department rededicate itself to its core values, it’s not sufficient to simply create an “Obama Lite” initiative.  Instead, the DOJ, with its vast authority and discretion, and its power to unilaterally shape the federal criminal legal system, should be a driving force for dramatic, high-impact change.

President Biden’s Executive Order stating that the DOJ will not renew contracts with private prison companies is a prime example of largely symbolic but practically useless reform.  It is a positive step that builds off an Obama-era policy, but it is only a tiny step forward.  It does not get to the heart of what really needs to change.  No one will be released or serve less time because of this order.  Private prisons account for a small percentage of where people in federal prisons are housed, and most of the private contracts at the federal level are with the Department of Homeland Security, which is not covered by the Executive Order.  In addition, many of the private contracts have long time periods, so another administration might undo this order before it ever takes effect.  It is therefore possible the order will not change anything at all.

The Obama Administration, just like administrations before it, had fatal flaws when it came to criminal justice, and the Biden Administration should aim to cure them.  This isn’t just important for better criminal justice policies and public safety.  It’s also important because of the institutional weakness that Trump put into stark relief.  For too long, the DOJ has relied on the notion that it should have broad discretion because good people work at the department.  While we agree that competent, well-meaning people generally do work at the DOJ, the Trump Administration showed why that isn’t enough.  For example, Obama’s Department might have opposed abolishing mandatory minimum sentences because of its own policy to curb their use (though even that policy was inconsistently enforced), but preserving those laws enabled the Trump Administration to use them far more aggressively.  If the Biden Administration wants both a lasting legacy of real criminal justice reform and to show a commitment to the rule of law, it needs to pursue critical institutional reform at the Department even if at the expense of its own discretion.

With those goals in mind, we propose the following 14 policy recommendations.  These are largely aimed at structural issues that can be addressed without legislation that would have the biggest impact in reducing prison populations and remedying disportionate punishments and discriminatory policies.  These reforms cover different topics, but they are all backed by empirical evidence as being in the interest of public safety, reducing racial disparities, and giving the DOJ back its good name.  These include substantive policy changes and personnel priorities, and we will cover those first precisely because they can be done without Congress.  Other reforms require Congress’s cooperation.  While there is no guarantee Congress will agree, this is the time to pursue these shifts, with Democratic leadership and bipartisan support for criminal justice reform.  But legislation will not move without DOJ support.  DOJ opposition has been a chief impediment for more significant criminal justice reforms, so it’s long past time for it to take the lead on breaking the logjam.

1. Revise Charging Policies...

2. Reform Clemency...

3. Commit to Compassionate Release...

4. Ensure First Step Act Programming Credit...

5. Reform and Move the Bureau of Prisons...

6. Abolish the Death Penalty...

7. Appoint Reformers to Key Positions Within DOJ...

8. Support Reform at the Sentencing Commission...

9. Support Creating a High-Level Criminal Justice Advisor Position...

10. Implement Forensic Science Reform...

11. Revise Discovery Policies...

12. Support Legislative Reform...

13. Support Release Through Parole...

14. Eliminate Financial Incentives to Charge Cases...

March 15, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

Sunday, March 14, 2021

With a new Attorney General now in place, should we expect to see any changes in the federal prison population?

Regular readers know that I have been following federal prison population data quite closely during the COVID era, giving particular attention to the numbers that the federal Bureau of Prisons updates weekly at this webpage.  But I have not blogged on this topic in nearly two months because, after a tumultuous 2020, there has been a notable stability in BOP reports of "Total Federal Inmates" during the Biden era.  As noted here, the day after Prez Biden's inauguration, BOP reported a total population of 151,646; as of March 11, 2021, this population stands at 151,703. 

Back in 2017, when Prez Trump was elected and Jeff Sessions took over as Attorney General and implemented new charging and sentencing policies for federal prosecutors, there was understandable concern (see articles here and here) that reductions in the federal prison population that took place during Prez Obama's second term would get reversed.  Indeed, Trump's Justice Department back in 2017, as noted here, was forecasting and budgeting for federal prison population increases.  But, due to a varety of factors, most notably the passage of the FIRST STEP Act and especially the COVID pandemic, the federal prison population actually dropped dramatically during in Trump era.  Specifically the federal prison population decreased by nearly 38,000 persons during Prez Trump's term (nearly 20%), which highlights that the plans, policies and practices of any Attorney General can be eclipsed by other factors impacting the federal prison population.

Against this backdrop, I am wondering (a) if new Attorney General Merrick Garland is going to implement policies and practices that consciously seeks to continue shrinking the federal prison population, and (b) whether we will see any real changes in the federal prison population anytime soon.  In this January post, I predicted the federal prison population would be relatively steady to start the Biden era because it could take months before we see any major DOJ policy changes and many more months before any big policy changes start impacting the federal prison population. 

A few recent prior related posts:

March 14, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Saturday, March 13, 2021

Are we soon going to start seeing notable judicial nominees from Prez Biden?

This past week was full of big accomplishements for the Biden Administration with the confirmation of Attorney General Merrick Garland and the passage of the big COVID relief bill.  And now, as we approach nearly two months into the new Administration, there is reason to expect we will start seeing Prez Biden announce some judicial nominations.  These recent press articles certainly are raising expections that nomination will be coming soon:

From Axios, "White House primes 'pipeline' of federal judges"

From Buzzfeed News, "Biden Is Considering History-Making Nominees For The Federal Courts"

From CNN, "Get ready for a raft of Biden court nominees"

From Law.com, "Biden's First Judicial Nominees Will Test His Commitment to Diversifying Courts"

As these articles help highlight, many folks are focused on whether and how Prez Biden will focus on racial and gender diversity in his judicial nominees.  And in this post at The Volokh Conspiracy, Josh Blackman wonders: "How old will President Biden's judicial nominees be? Which side of 50 will the nominees be on?".

Regular readers know that I will be rooting for judicial nomines with experience as defense attorneys to balance a federal judiciary now loaded with a disproportionate number of former prosecutors.  Long-time readers may recall that I was, as detailed in this post from Feb 2016, an advocate for Judge Ketanji Brown Jackson to be nominated by Prez Obama for the 2016 SCOTUS opening in part because of her history as a public defender and her time as a member of the US Sentencing Commission.  I am excited to see Judge Jackson being discussed as Prez Biden's likely first pick for the DC Circuit, I am am hopeful she will be just one of many judicial nominees with a notably different personal and professional background.

And, as I have stressed recently, we need great diverse picks to fill long-empty seats on the US Sentencing Commission.

A few prior related posts:

March 13, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Wednesday, March 10, 2021

With Merrick Garland now finally confirmed as the next US Attorney General, might another DOJ charging and sentencing memo be soon forthcoming?

As reported in this CNBC piece, the US Senate "on Wednesday voted to confirm Merrick Garland as attorney general, placing the longtime federal appeals court judge and one-time Supreme Court pick at the helm of an agency central to President Joe Biden’s domestic policy agenda. The vote was 70-30." Here is more:

Garland takes over as the head of the Department of Justices as the sprawling agency continues to investigate the Jan. 6 riot at the U.S. Capitol, one of the largest probes in its history. Garland has called the inquiry his No. 1 priority.

The Justice Department will also be crucial in enacting Biden’s sweeping plans for civil rights enforcement and criminal justice reform. The department is likely to make important decisions in the coming years concerning regulation of the nation’s largest technology companies, which some lawmakers are pushing to break up.

Garland’s pledged to defend the independence of the Justice Department during hearings before the judiciary committee last month. Biden has made restoring the traditional distance between the department and political officials at the White House a top priority....

Before Biden tapped Garland to be attorney general, the centrist lawyer was nominated by former President Barack Obama to a seat on the Supreme Court in 2016 after the death of Justice Antonin Scalia. Republicans at the time controlled the Senate, and refused to hold a hearing on his nomination.

Several other top Justice Department nominees are still being considered by the Senate, including Vanita Gupta, Kristen Clarke and Lisa Monaco.  Gupta and Monaco faced questions from senators on Tuesday. Gupta, who led the Justice Department’s civil rights division under Obama, is nominated to become associate attorney general.  Clarke is nominated to be the head of the civil rights division. Biden nominated Monaco to be deputy attorney general.

As the title of this post ponders, I cannot help but wonder if a new confirmed Attorney General might soon result in a new permanent Justice Department charging and sentencing memorandum.  As noted in this post six weeks ago, less than 10 days after Prez Biden took office, acting Attorney General Monty Wilkinson rescinded the May 2017 charging/sentencing memo put in place by then-Attorney General Jeff Sessions.   This one-page Wilkinson memo said it was an "interim measure before Senate-confirmed leadership is in place at the Department."  Though we still await confirmation of the rest of DOJ leadership, Garland's confirmation brings us much closer to having permanent new DOJ leadership in place for possibly redirecting DOJ sentencing policies and practices.

Some (of many) prior related posts on DOJ charging and sentencing guidance:

March 10, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Tuesday, March 09, 2021

Flagging federal criminal justice reform as great bipartisan legislative opportunity

Van Jones and Louis Reed have this great new CNN piece under the headlie "The one issue that could bring Democrats and Republicans together."  Here are excerpts:

Political commentators continue to wonder whether President Joe Biden can deliver on his promise of national unity and healing.  While his prospects for doing so seem increasingly limited, there is one area that offers some hope: criminal justice reform....

Biden has a unique opportunity to build on his predecessors' progress. To start, he can:

1. Increase funding for the First Step Act. Biden can build on the existing bipartisan consensus by allocating more money to the kinds of educational and job training programs prescribed in the First Step Act. One of the core features of this legislation is "earned time credits," which lets people shorten the length of their sentences by completing various programs.

Demand is high. There is a waiting list of more than 11,000 people even for basic literacy programs. Access to these kinds of programs has been diminished even further during the Covid-19 pandemic. However, it's worth the investment because increasing educational and job training, treatment, and compassionate release programs can significantly reduce the federal prison population and recidivism rates.

2. Fix federal supervision systems.  When people are released from federal custody, many enter an incredibly harsh supervised release system.  Due to laws requiring mandatory supervision sentences and mandatory prison time for noncriminal "violations," many people get saddled with years or even decades of invasive monitoring and additional time behind bars for things like missing a meeting.

Biden could push for smart bipartisan reforms like capping the amount of time people spend under supervision, preventing people from returning to prison for noncriminal violations and allowing people to get off supervision early based on good behavior and participation in educational programs.  Reforms like these are already winning favor in red states (like Louisiana), purple states (like Michigan) and blue states (like California).

3. Back existing bipartisan legislative efforts. There are some measures that already have support from both sides of the aisle. None are perfect; the legislative process would likely strengthen many of them.  But if Biden is looking for common ground issues, these measures offer him a great starting point:

  • Safer Detention Act....
  • Smarter Pretrial Detention for Drug Charges Act....
  • The Driving for Opportunity Act....
  • Reintroduce the Smarter Sentencing Act....
  • Reintroduce the Community First Pretrial Reform and Jail Decarceration Act.

March 9, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

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)