Monday, November 23, 2020

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

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

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

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

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

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

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

Prior related posts:

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

Friday, November 20, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 17, 2020

So much great data and analysis from the Prison Policy Initiative

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

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

Monday, November 09, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, November 08, 2020

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

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

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

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

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

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

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

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

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

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

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

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

November 8, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (7)

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

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

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

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

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

The Death Penalty

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

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

Mandatory Minimums

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

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

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

Clemency

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

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

Private Prisons

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

Reducing The Prison Population

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

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

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

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

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

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

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

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

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

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

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

November 8, 2020 in Campaign 2020 and sentencing issues, Clemency and Pardons, Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)