Sentencing Law and Policy

New ACLU memo paints dark vision of "Trump on the Criminal Legal System"

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. 

Prison releases and the slow-down in justice systems in 2020 in large part account for most of the dramatic drop in the federal prison population during Prez Trump's time in office, but I believe federal incarceration level had dropped over 5% in the Trump Adminstration years before COVID.  Updating this tale of a particular incarceration metric, the BOP website now reports, as of July 11, 2024, that there are "158,479 Total Federal Inmates."   In other words, federal incarceration has increase 4.5% during Prez Biden's term in office, so far.

I raise these notable (and rarely reported or discussed) data in part because the ACLU has today released this detailed 14-page memo titled "Trump on the Criminal Legal System" which carries the subtitled "Threatening a New Era of Mass Incarceration."  Here is how this memo begins and ends, which highlights its tone throughout:

A second Trump administration threatens to accelerate mass incarceration, further dehumanize people in our criminal legal system, engage in a death penalty “killing spree,” and reverse many reforms gained over the last two decades.

Trump’s proposals are dangerous on two levels.  First, with respect to the federal system, Trump will seek to double down on the failed policies of the past: encouraging brutal policing practices, pursuing extreme sentences, and expanding the use of the death penalty.  Second, Trump’s racist and extremist rhetoric may embolden states that have previously embraced reform to return to failed crime policies, fueling mass incarceration and widening racial inequality....

The ACLU will defend against Trump’s efforts to bring in a new wave of mass incarceration, including by fighting against his attempts to encourage police abuses, grow our federal prison population — going so far as to reincarcerate people in home confinement — and expand the federal death penalty. We will advocate for congressional oversight to prevent potential harms threatened by Trump. And we will take a Trump administration to court if necessary to protect our civil liberties.

While we defend the hard-won reforms from the last few years to improve the system, we will also continue our long-term fight to end the country’s carceral epidemic and advocate for our long-term vision of public safety.

I do not want to suggest criminal justice reform advocate are wrong to worry about possible future policies of a second Trump Administration.  But, with a focus on the federal prison population and sentencing realities, I still think it critical to note that many  "hard-won reforms from the last few years" came during the Trump Adminstration in the form of the First Step Act (as well as the CARES Act). 

I expected to see federal incarceration levels to increase in Prez Trump's first term, and so I do not think it misguided for refrom advocates to be concerned about the potential for increases in another Trump term.  But the actual data of federal prison populations should serve as a reminder that almost all criminal justice stories are predictable unpredictable.  And I still strongly believe there are many important opportunities to build the kind of bipartisan reforms that culminated in the First Step Act and more recently in the Federal Prison Oversigh Act.   But maybe that's my naive optimism kicking in again.

Homicides still way down as weather (and crime politics) heats up in 2024

A few days ago, I received an alert from my local paper about this article reporting that "data from the Columbus Division of Police showed that the city is experiencing some of the lowest levels of violence in a decade."  According to this press piece, the biggest city in Ohio has recorded only 18 murders in this calendar year, compared to 41 at this time last year.  The article also flagged that a number of other cities have also seen significant homicide declines.  

Conveniently and encouragingly, Jeff Asher posted yesterday this new substack entry detailing that Columbus, Ohio is not alone in experiencing a significant homicide decline to start 2024.  Folks should read his full posting for lots more context and details, but here are some highlights:

[M]urder is down around 20 percent in 2024 in more than 180 cities with available data this year compared to a comparable timeframe last year (as of the moment of this piece's publication).  Murder is down 20.5 percent in 183 cities with available data through at least January, down 20.2 percent in 174 cities with data through at least February, and down 20.8 percent in 59 cities with data through at least March 20....

We could still see, and perhaps should expect to see the sample's murder decline to regress towards a more normal rate of decline as the year goes on.  It's only April and there is a ton of time left in 2024 for these figures to regress, but murder is down roughly twice as much with a sample that’s twice as large as what we had last year at this time.... Murder is down more than 30 percent at the moment in Washington DC, New Orleans, Las Vegas, Cleveland, Milwaukee, Detroit, Columbus, Nashville, Philadelphia, and I could keep going....

It's not just murder data in cities pointing to a large decline.  Shooting data from the Gun Violence Archive shows a decline of around 12 percent in terms of shooting victims through March compared to 2023.  This matches the trend of declining shootings in 20 of the 25 cities with available shooting data through at least February this year. 

As readers may recall from prior posts, 2023 brought a considerable (perhaps historic) decline in homicides in the US compared to 2022 (which saw a small decline in homicides after very significant increases in homicides throughout the US in 2020 and 2021).  And my check today at the latest AH Datalytics' collection of homicide data for 2024 from 250+ US cities shows now an 18.8% cumulative decline(!) in murders across the nation's cities through more than the first third of 2024.  And a number of big cities are showing even bigger 2024 declines from police reports: Washington DC and Milwaukee homicides are down around 25%; Cleveland, Dallas and Phoenix homicides are down nearly 30%; Baltimore, Columbus, New Orleans and Philadelphia homicides are down more than 40%.

I am not sure criminologists have a clear story for why we are not seeing historicthe  homicide declines, but the many hundreds of fewer murders to start 2024 is certainly something to celebrate and to hope continue.  (I noted in a prior post that the 2023 and 2024 declines in homicide come at a time of relatively low use of the death penalty and relatively lower rates of incarceration by US standards.)  Of course, these remarkable homicide numbers could change in the months ahead, and the hotter weather of summer months historically bring an uptick in homicides.

Also sure to heat up this summer are crime politics.  I flagged in this post yesterday a recent Politico article quoting aides of President Biden suggesting the Pesident was planning to embrace tougher approaches on crime and immigration.  And today bring this lengthy New York Times piece headlined "Even as Violent Crime Drops, Lawlessness Rises as an Election Issue."  Here is a small excerpt:

Homicide rates are tumbling from pandemic highs in most cities, funding for law enforcement is rising, and tensions between the police and communities of color, while still significant, are no longer at a boiling point. But property crime, carjackings and smash-and-grab burglaries are up, adding to a sense of lawlessness, amplified on social media and local online message boards.

Mr. Trump is re-upping his blunt, visceral appeal to voter anxieties. He declared recently that “crime is rampant and out of control like never before,” promised to shoot shoplifters, embraced the “back the blue” slogan against liberal changes to police departments — and even falsely accused the F.B.I. of fabricating positive crime data to bolster Mr. Biden.

Mr. Biden, in response, is taking a more low-key approach.  He has spotlighted improving violent crime rates, promoted vast increases in funding to law enforcement under his watch and pointed to an aggressive push on gun control, as well as a revived effort to hold local departments accountable for discriminatory and dangerous policing practices in Black and brown neighborhoods. 

Elections, past and future, have consequences for criminal justice reform policies and plans

Politico has this notable new article on criminal justice reform "vibes" coming from the White House headlined "The White House to the left: We told you so on crime."   Folks who follow criminal justice politics will not be surprised by much in the article, but it serves as an important reminder about political takes on the national mood as we head toward the heart of the election season.  Here is how:

The defeat of a liberal Portland prosecutor at the hands of a tough-on-crime challenger has hardened a view among top White House officials that Democrats need to further distance themselves from their left flank on law-and-order issues.

In the wake of the voter backlash over public safety in Oregon, Joe Biden’s aides this week argued the results served as validation of their long-running concerns that crime and an immigration crisis at the southern border risk overwhelming the president’s case for reelection — especially if the broader party is seen as soft on both fronts.

“Particularly right now, Americans don’t want to feel like things are out of control,” said one Biden official, who was granted anonymity to offer candid views about tensions within the party. “Well-meaning ideas have gone too far, and we need a sensible approach.”

The White House is banking on the idea that voters will reward them for public efforts to crack down on immigration and boost spending on law enforcement — and, perhaps as importantly, that the liberal forces that so effectively moved the party away from those planks in 2020 won’t punish the president come November.  Inside the West Wing, senior counselor Steve Ricchetti has been among the leading voices making this case, while also advocating for more toughness on the border, according to the Biden official and one other, both granted anonymity to discuss private conversations.

But the president has not needed much convincing, the officials said, having personally favored an approach that emphasizes more traditional support for law enforcement alongside criminal justice reforms. Biden spent much of his half century in politics as an ardent advocate for law enforcement and anti-crime measures, a reputation that complicated his path to the 2020 Democratic nomination amid scrutiny over his role in passing a controversial 1994 crime bill.

Justice Department formally gives BOP discretion to decide who moved to home confinement during pandemic will be returned to federal prison

Pandemic-era readers are likely familiar with the long-running legal saga surrounding what I called the "home confinement cohort," those people released due to COVID concerns from federal prison to serve their sentences on home confinement pursuant to the CARES Act.  These folks seemed to be at risk of being sent back to prison, en masse, at the end of the pandemic because the US Justice Department's Office of Legal Counsel (OLC) issued a 15-page opinion on Jan 15, 2021 that the CARES Act required as much.  But, later that same year, with some noew folks in charge of sorting out and executing the law, a new OLC 15-page opinion from Dec 2021 concluded that "a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there." (See some of many prior posts concerning the "home confinement cohort" are linked below.)

Of course, back in 2021, the end of the pandemic still seemed far away.  But, thankfully, far away is here, at least legally:  Prez Biden intends to end the COVID national emergency and related health emergencies in mid-May.  In turn, the Justice Department today issued this official "final rule" concerning how to handle folks still serving sentences on home confinement.  Here is how the lengthy explanation of the "rule" starts:

The Coronavirus Aid, Relief, and Economic Security Act (‘‘CARES Act’’) authorizes the Director of the Bureau of Prisons (‘‘Director’’), during the covered emergency period and upon a finding by the Attorney General that emergency conditions resulting from the Coronavirus Disease 2019 (‘‘COVID– 19’’) pandemic materially affect the functioning of the Bureau of Prisons (‘‘Bureau’’ or ‘‘BOP’’), to lengthen the maximum amount of time for which a prisoner may be placed in home confinement. The Department of Justice (‘‘Department’’ or ‘‘DOJ’’) promulgates this final rule to affirm that the Director has the authority and discretion to allow prisoners placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period.

There are lots of interesting elements to the DOJ explanation of this rule, but I found this accoutning of the number of persons impacted by the CARES Act's authorization of expanded home confinement to be notable:

Since March 2020, the Bureau has significantly increased the number of inmates placed in home confinement under the CARES Act and other preexisting authorities.  Between March 26, 2020, and January 23, 2023, the Bureau placed in home confinement a total of 52,561 inmates.  The majority of those inmates have since completed their sentences; as of January 23, 2023, there were 5,597 inmates in home confinement.  According to the Bureau, 3,434 of these inmates were placed in home confinement pursuant to the CARES Act.

Here is some additional context from some of the press coverage of this official DOJ rule:

From Forbes, "End Of CARES Act Home Confinement Is Near For Many Federal Prisoners"

From Fox News, "Prisoners in home confinement due to COVID measures can stay there even after emergency ends, says DOJ"

From Reuters, "US rule to allow some inmates to stay home after COVID emergency lifts"

As detailed in toms of the posts linked below, data suggest a remarkably low rate of recidivism for those released into home confinement under the CARES Act.  In addition to hoping BOP will not return anyone to prison absent a good public safety reason for doing so, perhaps a range of federal officials and research can effectively investigate what helped make this program seemingly so successful.

Some of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison 
• Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort 
• New OLC opinion memo concluding CARES Act "grants BOP discretion to permit prisoners in extended home confinement to remain there" 
• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort
• More notable details on the remarkable success of those released from federal prison under CARES Act  
• Spotlighting again the decarceral success of the CARES Act 
• With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority? 

Continuing criticism for Prez Biden's Justice Department for attending to the rule of (capital) law

Last month, as discussed here, the Washington Post published a lengthy article engaging in considerable hand-wringing about federal death penalty developments under the headline "Justice Department standards on federal death penalty called confusing."  This month, the AP has this lengthy article with some similar hand-wringing under the headline "Biden’s Justice Dept. keeps hard line in death row cases."  Here are excerpts:

Death penalty opponents expected Biden to act within weeks of taking office to fulfill his 2020 campaign promise to end capital punishment on the federal level and to work at ending it in states that still carry out executions. Instead, Biden has taken no steps toward fulfilling that promise.

But it’s not just inaction by Biden.  An Associated Press review of dozens of legal filings shows Biden’s Justice Department is fighting vigorously in courts to maintain the sentences of death row inmates, even after Attorney General Merrick Garland temporarily paused executions.  Lawyers for some of the over 40 death row inmates say they’ve seen no meaningful changes to the Justice Department’s approach under Biden and Trump.

“They’re fighting back as much as they ever have,” said Ruth Friedman, head of the defender unit that oversees federal death row cases.  “If you say my client has an intellectual disability, the government ... says, ‘No, he does not.’ If you say ‘I’d like (new evidence),’ they say, ‘You aren’t entitled to it.’”

Administration efforts to uphold death sentences for white supremacist Dylann Roof, who killed nine Black church-goers, and Boston Marathon bomber Dzhokhar Tsarnaev are better known. Lower-profile cases ... have drawn less scrutiny.  The Justice Department confirmed that since Biden’s inauguration it hasn’t agreed with a single claim of racial bias or errors that could lead to the overturning of a federal death sentence....

In announcing the 2021 moratorium, Garland noted concerns about how capital punishment disproportionately impacts people of color and the “arbitrariness” — or lack of consistency — in its application.  He hasn’t authorized a single new death penalty case and has reversed decisions by previous administrations to seek it in 27 cases.

Garland recently decided not to pursue death for Patrick Crusius, who killed nearly two dozen people in a racist attack at a Texas Walmart. His lawyers have said he had “severe, lifelong neurological and mental disabilities.” He could still be sentenced to death under state charges.  Garland also took the death penalty off the table for a man accused in 11 killings as part of a drug trafficking ring.... 

Prosecutors decide before trial whether or not to seek the death penalty, and current death row inmates were all tried under previous administrations. Prosecutors have less leeway after a jury’s verdict than before trial.  Court challenges after trials are also often not about whether it was appropriate to pursue the death penalty, but whether there were legal or procedural problems at trial that make the sentence invalid.  “It’s a very different analysis when a conviction has been entered, a jury has spoken,” said Nathan Williams, a former Justice Department lawyer who prosecuted Roof. “There has to be a respect for the appellate process and the legal approaches that can be taken.”

A Justice Department spokesman said prosecutors “have an obligation to enforce the law, including by defending lawfully obtained jury verdicts on appeal.” The department is working to ensure “fair and even-handed administration of the law in capital-eligible cases,” he said.  Inmate lawyers dispute that prosecutors have no choice but to dig in their heels, saying multiple mechanisms have always existed for them to fix past errors.

Justice officials announced this month that they wouldn’t pursue death in the resentencing of Alfonso Rodriguez Jr., convicted of killing North Dakota student Dru Sjodin.  But that only happened after a judge vacated the original death sentence.  Notably in 2021, the department agreed with lawyers for Wesley Coonce, sentenced to death for killing a fellow inmate in a mental health unit, that lower courts should look again at intellectual disability questions in his case. But the Supreme Court disagreed, declining to hear his case or remand it to lower courts....

Garland’s criteria for letting some capital cases proceed isn’t clear, though the department often consults victims’ families. Some feel strongly that suspected or convicted killers should face death.  Inmate attorneys have asked for all capital cases to get a fresh look. Garland has appeared to take one step in that direction.

The department this year restored written guidance emphasizing that staff can be proactive in fixing egregious errors in capital cases, though none has invoked that option.  Garland also re-set processes in which capital defendants can, in certain circumstances, ask the department to consent to their bids for relief.

Even though this article primarily higlights various ways in which AG Garland has not kept a "hard line" on capital cases, the headline and theme of the piece seems to be focused on the notion that DOJ ought not be seeking to uphold presumptively lawful death sentences. 

Prior related post:

• Is it really so hard to make sense of AG Garland's federal capital punishment administration?  

With Prez Biden's blessing, majority of Senate Dems vote to reject DC criminal code reforms

The state of federal politics on crime and punishment came to the fore this week as the US Senate voted last night on whether to reject a proposed new District of Columbia criminal code.  This New York Times piece, headlined "Senate Clears Bill to Block D.C. Crime Law, Sending It to Biden After Reversal."  Here are excerpts:

The Senate on Wednesday voted overwhelmingly to block a new District of Columbia criminal code that reduces mandatory minimum sentences for some violent offenses, with Democrats bowing to Republican pressure to take a hard line on crime in a move that underscored the rising political potency of the issue ahead of the 2024 elections.

The 81-to-14 vote, with one senator voting “present,” cleared the Republican-written measure to undo the District’s law, sending it to President Biden, who after initially opposing it abruptly changed course last week and said he would sign it.

It was a sudden turn of events for the District’s council and its overhaul of local sentencing laws. Just a few weeks ago, Mr. Biden weighed in against congressional action to block the measure, accusing Republicans of meddling in local affairs.

But the high-profile incidence of carjackings and homicides in the capital and growing nationwide evidence that voters were casting their ballots based on candidates’ response to violent crime spurred a rapid retreat.  Dozens of House Democrats joined Republicans in opposing the District’s criminal code, and a growing number of Senate Democrats signaled they were inclined to follow suit, prompting Mr. Biden’s turnabout.

On Wednesday, 31 Democrats and two independents joined Republicans in supporting a resolution of disapproval of the criminal code, sending it to the president for his signature. Senator Raphael Warnock, Democrat of Georgia, voted “present.”

Republicans, using the authority of Congress to review all District laws, forced the showdown in an effort to paint Democrats as weak on law enforcement. They said the outcome demonstrated that any trend toward leniency was at an end. “We need to make certain that we send a strong message that the American public have had it with crime in America,” said Senator Bill Hagerty of Tennessee, the chief Republican author of the resolution. “The crime spree that is happening in our major cities must come to an end.”

But if Democrats were hoping that their opposition to the new criminal code would stop Republican attacks on their party’s image on crime in next year’s elections, they were likely to be disappointed based on comments made by Senator Mitch McConnell, Republican of Kentucky and the minority leader.  “Nobody will confuse Washington Democrats’ last-minute reversal on this one resolution for a road-to-Damascus moment on the crime issue,” Mr. McConnell said. “The American people are a lot smarter than that.”...

Local officials lamented the interference and even tried to pull back the criminal code before it was rejected by the Senate.  But the process to block it had already been set in motion, and Congress ignored the attempt to short-circuit the outcome.

The rewrite of the criminal code, which was years in the making, had split local officials as well.  The law was vetoed by Mayor Muriel E. Bowser, who was overridden by the District council. Her opposition, however, opened the door to Democrats abandoning their usual support of the District and voting in favor of overturning the law.

The White House’s handling of the issue angered House Democrats, who felt they were hung out to dry by the president after he said early last month that he would oppose the resolution of disapproval.  As a result, when the matter came before the House in early February, most Democrats backed the District council and voted against the effort to rescind the sentencing package, believing they were siding with the president, who would veto it.

Instead, Mr. Biden arrived on Capitol Hill last week and told Senate Democrats in a private luncheon that he would sign the measure if it reached his desk, undercutting House Democrats and District officials.  He said the crime legislation had gone too far even though he supported autonomy for the District of Columbia.  White House officials noted that the president had never explicitly pledged to veto the measure, only that the administration opposed it.

Some Senate Democrats stood by the District and argued that its democratically elected officials should be free to write their own laws without being subjugated to Congress. Senator Cory Booker, a New Jersey Democrat who has been active on criminal justice issues, mounted a defense of the District’s law in a party luncheon on Tuesday, according to senators who attended....

But the president’s reversal, the mayor’s veto and rising public unease with violent crime drove most Democrats to rally behind blocking the law, including Senator Chuck Schumer of New York, the majority leader, as well as both senators from neighboring Virginia, Mark Warner and Tim Kaine.  Mr. Kaine is among the senators up for re-election next year.  Both Democrats from Maryland, the other adjoining state, Senators Benjamin L. Cardin and Chris Van Hollen, voted “no.”

I was not familiar enough with all of the particular of the proposed DC Code reform to have a detailed and nuanced view of its pros and cons.  But I am certain that very few member of Congress voted on this matter based on any nuanced particulars of the proposed DC Code reform.  This issue turned into a "tough" versus "soft" on crime vote (with a hint of DC independence), and the political winds — which Prez Biden feels and also impacts — blew this vote a particular way.  It will be interesting to see if and how this vote and these winds shape future policy and politics, not only with respect to the work of Congress but also as campaign 2024 picks up steam.

Pre-gaming the State of the Union with a few White House Fact Sheets talking a bit about crimes and punishment

I may not get a chance to watch Prez Biden's State of the Union address tonight, and I am not really expecting it will cover any big sentencing issues (or small sentencing issues for that matter).  That said, I do expect some crime and punishment matters to get some air time during a speech that likely will make some mention of policing practices and the nation's drug overdose problems.  And my expectations have already been somewhat confirmed even hours before the SotU speech via these releases from the White House:

FACT SHEET: The Biden-⁠Harris Administration’s Work to Make Our Communities Safer and Advance Effective, Accountable Policing

FACT SHEET: In State of the Union, President Biden to Outline Vision to Advance Progress on Unity Agenda in Year Ahead

Here are some items pulled from these "fact sheets" — which, I must say, do not actually read as "fact sheets — that may be of particular interest to sentencing fans:

Investing in Crime Prevention. The President’s Safer America Plan calls on Congress to invest $15 billion in services that help prevent crime from occurring in the first place, including: mental health and substance use disorder services, such as co-responder and alternative responder programs where social workers and other professionals respond to calls that should not be the responsibility of law enforcement; job training and employment opportunities, including for teenagers and young adults; housing and other supportive social services to individuals who are homeless; and reentry services so people leaving prison can stabilize their lives and avoid recidivism.  The Plan also incentivizes the reform of laws that increase incarceration without reducing public safety and lift almost all federal restrictions on eligibility for vital benefits (such as food, income, and disability-based assistance) for people with prior convictions....

Addressing a failed approach to marijuana and crack cocaine. The criminalization of marijuana possession has upended too many lives — for conduct that is now legal in many states. While white, Black and brown people use marijuana at similar rates, Black and brown people are disproportionately in jail for it. In October 2022, the President announced a full, unconditional, and categorical pardon for prior federal simple marijuana possession offenses.  This pardon lifts barriers to housing, employment, and educational opportunities for thousands of people with prior convictions under federal and D.C. law for simple marijuana possession.  The President also called on every state governor to follow his lead, as most marijuana prosecutions take place at the state level.  And because this Administration is guided by science and evidence, he called on the Secretary of HHS and the Attorney General to review how marijuana is scheduled under federal law.

In addition, the Safer America Plan calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.  This step would provide immediate sentencing relief to the 10,000 individuals, more than 90 percent of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.  As an initial step, the Attorney General has issued guidance to federal prosecutors on steps they should take to promote the equivalent treatment of crack and powder cocaine offenses, but Congress still needs to act....

Beating the Opioid and Overdose Epidemic by Accelerating the Crackdown on Fentanyl Trafficking and Public Health Efforts to Save Lives
Last year, President Biden announced his plan to beat the opioid epidemic as part of his Unity Agenda, because opioid use and trafficking affect families in red communities and blue communities and every community in between.  Under President Biden’s leadership, overdose deaths and poisonings have decreased for five months in a row — but these deaths remain unacceptably high and are primarily caused by fentanyl....  [T]he President will announce in the State of Union that his administration will:...

• Work with Congress to make permanent tough penalties on suppliers of fentanyl.  The federal government regulates illicitly produced fentanyl analogues and related substances as Schedule I drugs, meaning they are subject to strict regulations and criminal penalties.  But traffickers have found a loophole: they can easily alter the chemical structure of fentanyl — creating “fentanyl related substances” (FRS) — to evade regulation and enhance the drug’s impact.  The DEA and Congress temporarily closed this loophole by making all FRS Schedule I.  The Administration looks forward to working with Congress on its comprehensive proposal to permanently schedule all illicitly produced FRS into Schedule I.  Traffickers of these deadly substances must face the penalties they deserve, no matter how they adjust their drugs.

"Joe Biden Hasn’t Kept His Promise to Reduce the Prison Population"

The title of this post is the title of this new opinion piece in the Daily Beast authored by Nazgol Ghandnoosh and Bill Underwood.  Here are excerpts:

For thousands of people in federal prisons and their loved ones, the last session of Congress ended on a heartbreaking note.  Despite high hopes and bipartisan support for several sentencing bills, Congress failed to pass any meaningful reform during 2022.

That repeated failure — coupled with the Bureau of Prisons’ refusal to make adequate use of compassionate release, and President Joe Biden’s limited use of executive clemency — has translated into the federal prison population increasing for the past two years (after nearly a decade in decline), despite the president’s promise to cut it by half.

This year, Congress must do better.  It’s time to pass the EQUAL Act, the First Step Implementation Act, and the COVID-19 Safer Detention Act.

We know firsthand the profound need for sentencing reform.  One of us served 33 years of a life sentence in federal prison before receiving compassionate release.  The other is a sentencing researcher who has documented the growth and harms of lengthy prison sentences. We’ve lived and studied the dramatic rise in the federal prison population and we know the urgency of finding solutions.

Federal prisons imprisoned 25,000 people in 1980.  Today, they imprison more than six times that — nearly 160,000 people. (Fortunately, today’s count does represent a 27 percent reduction from 2013, when the population was at its peak of 219,000 people.)

The past decade of legislative reforms and policy changes, amplified during the early pandemic, have downsized federal prisons. But in the absence of new reforms by Congress and bold action by the administration, the federal prison population has grown again for the past two years.

Brennan Center assesses "Criminal Legal Reform Halfway Through the Biden Administration"

The Brennan Center has this notable new analysis of some of the criminal justice work of the Biden Administration and it reaches the mid-point of Prez Biden's current term.   The piece is filled with lots of context and links and is worth a full read.  Here is how it starts and closes, with its headings along the way as a kind og summary:

A year ago, we reviewed progress made by the Biden administration toward building a fairer and more effective criminal legal system, as well as missed opportunities. Here we outline major developments since then, including setbacks and steps in the right direction.

Retrenchment on the Federal Death Penalty...

Limited Progress on Prison Reform...

Notable Nominations and Confirmations...

Updates to DOJ Charging Policy...

Limited Progress on Clemency...

Mixed Record on Immigration Detention...

New Investments in Community Violence Interventions...

Critically, the administration can continue to make progress in many of the areas named above without the need to navigate complex congressional dynamics. The power to restructure the federal clemency power, for example, lies wholly within the president’s discretion. The DOJ has already begun to significantly revamp its approach to implementing the First Step Act, and it should continue to do so. And the president could effectively suspend the death penalty on his own initiative by commuting existing federal death sentences to life in prison.

While the president must continue to work with Congress on major legislative priorities, all of these steps and more would represent significant progress on their own.

October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!

About a half hour ago as of this writing, President Joe Biden has announced a set of remarkable new marijuana policy moves on this Twitter thread, which starts this way:

President Biden @POTUS

As I’ve said before, no one should be in jail just for using or possessing marijuana.

Today, I’m taking steps to end our failed approach. Allow me to lay them out.

First: I’m pardoning all prior federal offenses of simple marijuana possession.  There are thousands of people who were previously convicted of simple possession who may be denied employment, housing, or educational opportunities as a result.  My pardon will remove this burden.

Second: I’m calling on governors to pardon simple state marijuana possession offenses.  Just as no one should be in a federal prison solely for possessing marijuana, no one should be in a local jail or state prison for that reason, either.

Third: We classify marijuana at the same level as heroin – and more serious than fentanyl.  It makes no sense.  I’m asking @SecBecerra and the Attorney General to initiate the process of reviewing how marijuana is scheduled under federal law.

This is very big news (though not quite massive news), with lots of formal and informal ripples for criminal justice systems and sentencing.  The legal, policy, political and practical consequences of these moves are going to be fascinating (and a bit unpredictable, I suspect).

Wow!

UPDATE: Here is a fuller official statement from the White House, with the federal pardon talk at the start:

As I often said during my campaign for President, no one should be in jail just for using or possessing marijuana.  Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit.  Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities.  And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.
 
Today, I am announcing three steps that I am taking to end this failed approach.
 
First, I am announcing a pardon of all prior Federal offenses of simple possession of marijuana.  I have directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals.  There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result.  My action will help relieve the collateral consequences arising from these convictions.

According to this New York Times piece, headline "Biden Pardons Thousands of People Convicted of Marijuana Possession Under Federal Law"  the promised pardons have already been issued:

President Biden on Thursday pardoned all people convicted of marijuana possession under federal law and said his administration would review whether marijuana should still be a Class 1 drug like heroin and LSD.

The pardons will clear about 6,500 people who were convicted on federal charges of simple possession of marijuana from 1992 to 2021 and thousands more who were convicted of possession in the District of Columbia, officials said. Officials said the president would urge governors to follow his lead for people convicted on state charges of possession.

Noting that the Biden Administration in a high-profile case "has decided to continue to seek the death penalty"

Chris Geidner has this new Substack posting, titled "The Biden administration supports the death penalty," that effectively flags a notable new capital case filing by the Biden Administration's Department of Justice.  The subheadline of the piece summarizes the key points:  "Although Biden's campaign promised to 'eliminate the death penalty,' his administration told a court in a case last week that AG Merrick Garland 'has decided to continue to seek the death penalty'."  I recommend the full piece, and here are excerpts:

On Friday, Sept. 16, the US Attorney for the Southern District of New York filed a one-page notice in a pending capital case for Sayfullo Saipov, the man accused in the October 2017 terror attack along a bike path in Manhattan that killed 8 and injured many more. In its key sentence, the DOJ notice stated: “We were notified today that the Attorney General has decided to continue to seek the death penalty.”...

[I]n July 2021, Attorney General Merrick Garland announced a moratorium on executions pending a review of execution procedures — echoing a DOJ policy during then-President Barrack Obama’s administration. The administration has done little since to “eliminate the death penalty,” and Garland’s decision in Saipov’s case does the opposite....

One of the people who most closely tracks the death penalty across the country, Robert Dunham, the executive director of the Death Penalty Information Center, told Law Dork that this news shows — at the least — a disconnect between the White House and Justice Department. “The Department of Justice’s pursuit of the death penalty in this case — along with the its continued defense of the death penalty in other cases on appeal — indicates that, if the White House has a policy of working to end the federal death penalty, the Department of Justice certainly isn’t acting on it,” Dunham told Law Dork.

Garland — in cases involving Dzhokhar Tsarnaev’s 2013 Boston Marathon bombing death sentence and Dylann Roof’s death sentence for 2015 murder of nine Black people at a Charleston church — has supported previously issued death sentences in court, but Saipov’s case would be the first trial of the Biden administration where the federal government is seeking to impose a new death sentence.

To be clear, Garland did not initially make the decision to seek death in this case. That was done in the Trump administration, under then-Attorney General Jeff Sessions. But, in the aftermath of Biden’s election and Garland’s execution moratorium, there was a request from Saipov that DOJ withdraw its intent to seek the death penalty in his case.

Formerly incarcerated and advocacy groups write to new head of federal BOP

This webpage at the Sentencing Project has the full text of this letter from formerly incarcerated individuals and advocacy organizations to new Federal Bureau of Prisons Director Colette Peters advocating for various reforms.  The full letter is worth a full read, and here are a few excerpts:

As people formerly incarcerated in US Bureau of Prisons facilities and organizations dedicated to civil rights and justice, we know well the challenges that await you and hope to share with you our concerns and advice for advancing the systemic reform you have pledged to achieve.  We have all witnessed the Bureau’s failure to provide adequate medical care, safe conditions, and rehabilitative programs.  We ask you to bring the Bureau into compliance with federal law and to lead the Bureau toward a more humane future grounded in transparency and accountability....

Federal prisons are plagued by inadequate medical care, overcrowding, staff shortages, unsanitary conditions, violence, and abuse.  These conditions are well-documented in media coverage, Office of Inspector General and Bureau reports, and congressional testimony.  Following a recent oversight hearing on July 26, Senator Ossoff observed within FCI Atlanta that “conditions for inmates were abusive and inhumane” and that “stunning failures of federal prison administration” “likely contributed to the loss of life.”5) FCI Atlanta is not unique; all federal prisons urgently need reform....

Compassionate release can save the lives of medically vulnerable people, ease staff shortages by reducing the prison population, and provide mercy.  Yet the Bureau rarely uses its power to file motions for compassionate release in extraordinary or compelling circumstances.... [O]ver the first 13 months of the pandemic, the Bureau only ultimately approved 36 compassionate release requests, fewer than in 2019.  You have the power to change that.  We urge you to normalize the use of compassionate release to save lives, reunite families, and make federal prisons safer....

In 2018, Congress passed the First Step Act, a vital piece of legislation that gave many people hope.  Congress recognized that people grow and change, and that it was in the interest of the American people and public safety to allow individuals to earn the ability to come home sooner by completing rehabilitative programs.  But today, almost five years later, the Bureau has still failed to fully implement the First Step Act....

Abuse, corruption, and misconduct have been apparent within the Bureau for decades, but leadership has too often failed to act. In 2019, the House Subcommittee on National Security found that misconduct in the federal prison system is widespread and routinely covered up or ignored, including by senior officials.  The recent oversight hearing on FCI Atlanta highlighted decades of corruption and abuse and inaction by the Bureau Director.  We urge you to set a new standard and lead the Bureau towards transparency and accountability.

At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden's nominees to Sentencing Commission

In this post in February, 2021, I asked "Any guesses for when we might again have a fully functioning US Sentencing Commission?".  If anyone guessed August 4, 2022, well done: the US Senate tonight voted to confirm all seven of Prez Biden's nominees to the USSC.  This Bloomberg Law piece, headlined "US Sentencing Commission Restocked After Senate Confirmations," starts its report on this exciting news this way:

The Senate confirmed President Biden’s seven nominees to the US Sentencing Commission, fully restocking the panel and giving it the quorum needed to create guidance for the first time since 2019.

The bipartisan group of nominees were confirmed by voice vote, or without a formal tally, Thursday night. The new panel will be led by US District Judge Carlton Reeves, who is the first Black chair in the commission’s history.

As a reminder, this post lists all the folks who tonight are officially US Sentencing Commissioners, and congrats to them all.

As I have noted in prior posts, not only has the USSC gone nearly four years without a quorum needed to complete official actions, it has not had a complete set of seven commissioners in place for the better part of a decade.  But now, thrillingly, the Commission is fully loaded (and I hope ready to roll like Herbie).

Historically, as can be seen at this USSC webpage, back when the US Sentencing Commission was functional, the Commission would usually announce its yearly proposed priorities in June and then finalize those priorities in August.  It will be interesting to see if the new fully loaded Commission will seek to move forward with announced priorities and possible amendments in the coming months or will need considerable time to get up and running effectively.  There are lots of matters, big and small, that need the attention of a functioning Commission, but doing it right is more critical than doing it fast.   

A few prior related posts:

• Any guesses for when we might again have a fully functioning US Sentencing Commission? 
• New commentary calling for Prez Biden to revive the US Sentencing Commission
• When might we expect appointments to a new — a truly new — US Sentencing Commission? 
• Bipartisan call from members of Congress for Prez Biden to make US Sentencing Commission nominations 
• Spotlighting guideline circuit split, two Justices express "hope" US Commission will be back "in near future"
• Prez Biden finally announces a full slate of nominees to the US Sentencing Commission 

UPDATE: I am pleased to see this official USSC news release about the confirmations titled "Acting Chair Judge Charles Breyer, Incoming Chair Judge Carlton W. Reeves Applaud Senate Confirmation of New Commissioners." Here are excerpts:

The US Senate has confirmed a group of seven bipartisan members to serve on the US Sentencing Commission, providing the independent judicial branch agency with a voting quorum for the first time in more than three years. The Commission is charged with promoting transparency and proportionality in federal sentencing and reducing sentencing disparities.

The newly confirmed members of the Commission are District Judge Carlton W. Reeves, who will serve as Chair of the Commission; Circuit Judge Luis Felipe Restrepo, Laura Mate and Claire McCusker Murray, who are expected to be designated as Vice Chairs; District Judge Claria Horn Boom; former District Judge John Gleeson; and Candice Wong.

Upon appointment of the new Commissioners, current Acting Chair Senior District Judge Charles Breyer will step down from his position at the agency.

Judge Breyer said of the new Commissioners, “It is great news that the Senate has confirmed a full slate of seven bipartisan Commissioners. The lack of a quorum at the Sentencing Commission has created a void in the criminal justice system. As Senior US District Judge for the Northern District of California and Acting Chair of the Sentencing Commission, I know all too well the difficulty judges have faced in implementing the criminal justice reforms enacted by the First Step Act in 2018.”

“In addition, the Commission has been unable to provide guidance on a number of recent sentencing policy challenges, leaving the courts without uniform sentencing standards. The Sentencing Commission is vital to ensuring fairness and effectiveness of federal sentencing guidelines and policy.”

“These new Commissioners have an important task ahead of them. I am grateful to all of them for their willingness to serve in this important capacity, and I am honored and look forward to working with them.”

Incoming Chair Carlton W. Reeves, US District Judge for the Southern District of Mississippi said, “The criminal justice system has some troubling divisions that have emerged among courts on sentencing issues during the years the Commission lacked a quorum.”

“My new Commission colleagues are all highly experienced professionals with vast knowledge of and broad expertise in the criminal justice system.”

“Our diverse backgrounds and expertise will bode well as the Commission works to address these complex issues in a bipartisan matter.”

Prez Biden "Safer America Plan" seeks more cops and fewer (state) mandatory minimums with a federal drug sentencing kicker

Via this new "Fact Sheet," the While House today provides lots and lots more details on the "Safer America Plan" that Prez Biden announced a few weeks ago.  There are far too many particulars to summarize them here, and here are the points emphasized at the outset of this Fact Sheet:

Today, the President is providing greater details regarding the Safer America Plan. President Biden’s fiscal year 2023 budget requests a fully paid-for new investment of approximately $35 billion to support law enforcement and crime prevention -- in addition to the President’s $2 billion discretionary request for these same programs.  The Safer America Plan details how this $37 billion will be used to save lives and make communities safer.

Specifically, the Plan:

1. Funds the police and promotes effective prosecution of crimes affecting families today, including by funding 100,000 additional police officers who will be recruited, trained, hired, and supervised consistent with the standards in the President’s Executive Order to advance effective, accountable community policing in order to enhance trust and public safety;
2. Invests in crime prevention and a fairer criminal justice system, including by investing $20 billion in services that address the causes of crime and reduce the burdens on police so they can focus on violent crime, and by incentivizing the reform of laws that increase incarceration without redressing public safety;
3. Takes additional commonsense steps on guns to keep dangerous firearms out of dangerous hands, including by calling on Congress to require background checks for all gun sales and ban assault weapons and high-capacity magazines.

The request to fund 100,000 additional police officers and to advance various gun control measure will surely garner the most attention, but there are some items that ought to be of particular interest for sentencing fans. For example:

The Plan establishes a new $15 billion over 10 years Accelerating Justice System Reform grant program that jurisdictions can use to advance strategies that will 1) prevent violent crime and/or 2) ease the burden on police officers so they do not have to respond to non-violent situations that may not merit police intervention.  Doing so not only enhances public safety, but also delivers evidence-based criminal justice reform that advances racial equity....

[I]n order to receive these critical grants, jurisdictions must repeal mandatory minimums for non-violent crimes and change other laws that contribute to increased incarceration rates without making our communities safer.  The Plan calls on Congress to appropriate $14.7 billion in mandatory funding for this new program, which will add on to the $300 million request in the President’s FY23 discretionary budget to fully fund this effort.

In addition, this Plan address drug enforcement and sentencing in two ways:

Impose tough penalties on all forms of fentanyl.  Over 100,000 people have died from drug overdoses in the past 12 months, many of them from the synthetic opioid fentanyl. The federal government regulates fentanyl as a Schedule I drug, meaning it is subject to strict regulations and criminal penalties.  But drug suppliers have found a loophole: they can easily alter the chemical structure of fentanyl — creating “fentanyl related substances” — to enhance the drug’s psychoactive properties and try to evade regulation of fentanyl. The Drug Enforcement Administration and Congress temporarily closed this loophole, but it will reopen in January 2023 unless Congress acts.  The Safer America Plan includes the Administration’s 2021 proposal to permanently schedule all fentanyl related substances into Schedule I so traffickers of these deadly substances face the penalties they deserve....

End the crack-powder disparity and make the fix retroactive. The Safer America Plan calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.  This step would provide immediate sentencing relief to the 10,000 individuals, more than 90 percent of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.

I cannot help but note that federal law includes lots of mandatory minimum provisions for non-violent crimes (such as drug offenses) that contribute to increased incarceration rates without any clear evidence that those provisions make our communities safer.  Notably, when on the campaign trail, candidate Joe Biden stated that he "supports an end to mandatory minimums" and that "as president, he will work for the passage of legislation to repeal mandatory minimums at the federal level."  Though I am pleased to see Prez Biden fulfill a campaign promise to "give states incentives to repeal their mandatory minimums," I hope he might before too long focus needed attention on federal mandatory minimum repeal as well.

New Executive Order from Prez Biden, though mostly on policing, includes some sentencing and corrections matters

This new "FACT SHEET" from the White House, titled "President Biden to Sign Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety," provides an overview of what the latest presidential EO will cover in the criminal justice space. Though focused mostly on policing issues, I was intrigued to see this passage at the very end of the fact sheet:

Reforms Our Broader Criminal Justice System

Directs a government-wide strategic plan to propose interventions to reform our criminal justice system.  A new committee with representatives from agencies across the federal government will produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry.  The Attorney General will also publish an annual report on resources available to support the needs of persons on probation or supervised release.

Improves conditions of confinement. The Attorney General, in consultation with the Secretary of Health and Human Services, will update procedures as necessary to increase mitigation of Covid-19 in correctional facilities; expand the publication and sharing of vaccination, testing, infection, and fatality data disaggregated by race, ethnicity, age, sex, disability, and facility; and to identify alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission.  The Attorney General will also report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.

Requires full implementation of the FIRST STEP Act. The Attorney General will update DOJ policy as necessary to fully implement the FIRST STEP Act and to report annually on implementation metrics, including an assessment of any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.

UPDATE: Here is the full detailed "Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety" from the Biden White House.

An (incomplete) account of the dynamic state of federal criminal justice reform politics

This new Politico article, headlined "Trump’s criminal justice reform bill becomes persona non grata among GOPers," provides an interesting (but I think incomplete) account of the current state of federal criminal justice reform politics.  I recommend the full piece, and here are some excerpts:

The First Step Act was not just hailed as a rare bipartisan achievement for the 45th president but as the beginning of a major shift in GOP politics, one that would move the party past the 1980s tough-on-crime mindset to a focus on rehabilitation, racial fairness and second chances.

Three-and-a-half years later, few Republicans — Trump included — seem not at all interested in talking about it. With spikes in crime registering as a top concern for voters, Republicans have increasingly reverted back to that 1980s mindset. Talk of additional legislation has taken a back seat to calls for enhanced policing and accusations that Democratic-led cities are veering toward lawlessness....

For some advocates, the Republican Party’s cooling to criminal justice reform confirms the belief the interest wasn’t ever sincere. But for lawmakers and advocates on the right who worked on the First Step Act, the shift has been similarly disconcerting, raising concern it freezes political momentum for further reform.

“I personally think there’s just as many people that want to do criminal justice reform as the last several years, but I think their voices are quiet now, and those that are opposed to the First Step Act are still opposed and have gotten louder,” said Brett Tolman from the conservative group Right on Crime.  Tolman added that much work continues behind the scenes. “It feels like we just have to bide our time a bit and get past when the emotion of all of the political rhetoric is at the forefront.”...

Republicans who support reforms say the party can be both in line with that vision and adopt a tough-on-crime posture — that voters will be able to differentiate between crackdowns on violent crime and accountability in the justice system. “Reform and calling out truths can coexist. It’s not a binary decision.  And there are achievable solutions available,” said Zack Roday, a Republican political strategist.

But trends aren’t helping the reformer’s cause. In the past year, violent crime rates have risen dramatically, with at least 12 major U.S. cities breaking annual homicide records in 2021.  Recent polling reflects public concerns about rising crime rates and dissatisfaction with how public leaders are addressing the problem.  Republicans pointed to the trends as evidence of a Democratic failure....

Despite the changing political winds, reform advocates still say they are optimistic that Congress will pass the EQUAL Act, which would end federal sentencing disparities between crack and cocaine offenses.  Supporters of the bill, which the House passed in September with the support of some of the most conservative members, say it would address racial disparities, noting 90 percent of those serving federal time for crack offenses are Black....

So far, the bill has the support of 11 Republican senators, the National District Attorneys Association, the Major Cities Chiefs Association and the American Civil Liberties Union.  But congressional aides warn the legislation is not a slam dunk, especially without the support of Grassley, now the top Republican on the Judiciary Committee.  This week, the senator introduced a separate bill tackling crack and cocaine sentencing disparities.  And in a midterm election year when public focus is on rising crime in communities, some conservatives say they do not see a path forward for federal reforms.

“From the federal government I don’t see anything passing this year on criminal justice reform, I think they’re done. I think the politics of it are too difficult,” said Charles Stimson, a crime expert at the conservative Heritage Foundation. “People will probably be motivated in the fall to vote for folks who take the law and order approach and they’re not going to believe people who say they don’t have a crime problem.”

Though covering a lot of ground well, this Politico piece seem to me to fail to highlight how much crime and punishment had become a part of this era's broader culture wars.  Of particular note, I think George Floyd's murder, which brought "defund the police" to the forefront of the political arena, served to derail some of the bipartisanship that got the FIRST STEP Act to the finish line.  And thereafter with rising crime concerns, the GOPs recent affinity for a certain brand of populism makes it ever more likely for a return to the classic tough-on-crime tune.  (It also bears noting, in this context and others, that while Prez Trump leaned into prison reforms all through 2018 and actively helped get the FIRST STEP Act done, Prez Biden has made no public effort to push criminal justice reforms others than politically-fraught policing reforms.) 

And yet, adding ever more nuance to a complicated political story, there still seems to be persistent bipartisan energy for not just the EQUAL Act, but also for other smaller reforms. For example, as noted here, just six weeks ago, the US House overwhelmingly voted, by a margin of 405-12, for the Prohibiting Punishment of Acquitted Conduct Act of 2021.  And various modest proposed marijuana reforms, such as the SAFE Banking Act and a variety of bills to enhance research or expand expungements, are garnering bipartisan support in one form or another.     

Stated differently, I share Brett Tolman's general view that there are still plenty of folks on both sides of the aisle that are considerably interested in considerable criminal justice reforms.  But, critically, as political and criminal justice realities on the ground have changed, leaders of Congress must change their vision of the possible circa May 2022.  More modest bills may have to get more attention, and the "best" cannot be the enemy of the "good enough."   Small reform victories are still victories, and I would hope that the type of criminal justice reform bills that pass by a margin of 405-12 in one chamber should be able to make some progress in the other.  But hoping for Congress to do better obviously does not mean it will anytime soon.  

Prez Biden finally uses his clemency pen to grant three pardons and 75 commutations

Because I always am inclined to say better late than never, I was quite pleased to wake up to the news that President Joe Biden is finally starting to make good on his  campaign promise to "broadly use his clemency power for certain non-violent and drug crimes."  This USA Today piece, headlined "Biden to pardon three felons, commute sentences of 75 others, in first grants of clemency," provides these details:

The nation's first Black Secret Service agent on a presidential detail, now 86 years old living in Chicago, who has worked decades to clear his name for a crime he has said he didn't commit. A 51-year-old woman from Houston who served seven years in prison for attempting to transport drugs for her boyfriend and accomplice – neither of whom faced charges. And a 52-year-old man from Athens, Georgia, who partners with schools to employ youth at his cellphone repair company, two decades after he was charged for letting pot dealers use his pool hall to sell drugs.

Three convicted felons – Abraham Bolden Sr., Betty Jo Bogans and Dexter Eugene Jackson – are receiving presidential pardons from President Joe Biden, along with 75 others whose sentences the president is commuting Tuesday, in the first use of clemency power of the Biden presidency.  All of Biden's commutations target individuals serving sentences for low-level drug offenses, some of whom have served on home confinement during the COVID-19 pandemic.  Many are Black or brown, and the White House said each has displayed efforts to rehabilitate themselves.

The clemency announcements, which coincide with national "Second Chance Month," come as Biden will also announce new actions aimed at improving outcomes for felons who reenter society. That includes $145 million for a federal program to train the incarcerated for future employment and the removal of criminal history in applications for Small Business Administration grants.

"America is a nation of laws and second chances, redemption, and rehabilitation," Biden said in a statement. "Elected officials on both sides of the aisle, faith leaders, civil rights advocates, and law enforcement leaders agree that our criminal justice system can and should reflect these core values that enable safer and stronger communities. During Second Chance Month, I am using my authority under the Constitution to uphold those values by pardoning and commuting the sentences of fellow Americans."...

The individuals granted clemency came at the recommendation of the Department of Justice's pardon attorney, according to senior Biden administration officials who briefed reporters about the announcement. It marks a return of a practice that was largely bypassed by former President Donald Trump, whose clemency requests often came through close aides. Biden said the three people pardoned have each "demonstrated their commitment to rehabilitation and are striving every day to give back and contribute to their communities."...

Nearly one-third of the 75 commutation recipients would have received lower sentences if they had been charged today under the Trump-era criminal justice law, the First Step Act, according to senior Biden administration officials. They have served an average of 10 years in prison and have "shown resilience" in seeking a productive path forward, a White House official said.

The official statement from Prez Biden on these grants is available at this link, and its start provides links to all those granted clemency and other executive action on the reentry front:

America is a nation of laws and second chances, redemption, and rehabilitation. Elected officials on both sides of the aisle, faith leaders, civil rights advocates, and law enforcement leaders agree that our criminal justice system can and should reflect these core values that enable safer and stronger communities.  During Second Chance Month, I am using my authority under the Constitution to uphold those values by pardoning and commuting the sentences of fellow Americans.

Today, I am pardoning three people who have demonstrated their commitment to rehabilitation and are striving every day to give back and contribute to their communities.  I am also commuting the sentences of 75 people who are serving long sentences for non-violent drug offenses, many of whom have been serving on home confinement during the COVID-pandemic — and many of whom would have received a lower sentence if they were charged with the same offense today, thanks to the bipartisan First Step Act.  

My Administration is also announcing new steps today to support those re-entering society after incarceration.  These actions include: a new collaboration between the U.S. Department of Justice and the U.S. Department of Labor to provide job training; new grants for workforce development programs; greater opportunities to serve in federal government; expanded access to capital for people with convictions trying to start a small business; improved reentry services for veterans; and more support for health care, housing, and educational opportunities. 

Though I am still a bit salty that it took Prez Biden 15+ months in office before using his clemency pen, I am pleasantly surprised to see a large number of grants and many commutations to persons serving lengthy terms terms for drug offenses.  From a quick scan, it looks like perhaps more than a third of those who received commutations are women, which reminded me of the statements of Prez Trump clemency recipient Alice Marie Johnson that there were thousands of persons like her in prison who deserved commutation.  (BOP data show the federal prison population is comprised of less than 7% women, though I sense that much more than 7% of the most mitigated cases involve women.)

A few of many prior recent related posts:

• "When Will Joe Biden Start Using His Clemency Powers?"
• A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"
• Justice Department has new Pardon Attorney who is a former public defender ... which means ...? 

With SCOTUS nominee now on path to confirmation, time to fret again about the lack of USSC nominees from Prez Biden

As we approach a full 15 months into the Biden Administration, I must yet again return to expressing my frustration that 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 not been fully functional for the better part of five years, and the USSC has not had complete set of commissioners in place now for nearly a decade.  The USSC staff continues to produce lots of useful research and reports, but the FIRST STEP Act's passage in December 2018 makes it particularly problematic for the USSC to have been completely non-functional for now three+ years since that law's enactment.

Though I harped on this front a lot last year, I did not complain too much recently about the persistent lack of nominees while the Biden Administration was selecting and seeking the confirmation of a replacement for US Supreme Court Justice Breyer.  But, after yesterday's developments (news here), it seem quite clear that Judge Ketanji Brown Jackson will be confirmed to replace Justice Breyer.  So, with this SCOTUS transition now seemingly settled, I will return to full-time fretting about the lack of USSC nominees from Prez Biden.

I have heard buzz from a variety of sources leading me to believe a slate of nominations could be imminent.  These nominations cannot come soon enough, especially given that already three month have passed since Justice Sotomayor, joined by Justice Barrett, issued a statement respecting the denial expressing "hope in the near future the Commission will be able to resume its important function in our criminal justice system."  As all my posts below detail, I have shared this hope, so far still unfulfilled, for quite some time.

One of many reasons sentencing fans should now hope for imminent nominations for the US Sentencing Commission is the inherently uncertain (and political) nature of the confirmation process.  I am hopeful that, because nominations to the USSC have to be bipartisan, there will be Senators from both parties eager to move the eventual nominees through the confirmation process efficiently.  But I am perhaps naive to believe that good government functioning could come before possible political opportunism in this setting (especially during an election year).  Moreover, even if the confirmation process goes quickly and smoothly, the process is still likely to take months, while more than a thousand federal defendants are getting sentenced in federal courts every week. 

A few of many prior related posts:

• Any guesses for when we might again have a fully functioning US Sentencing Commission? 
• New commentary calling for Prez Biden to revive the US Sentencing Commission
• Might we be getting closer to (needed) new nominees for the "frozen" US Sentencing Commission? 
• Getting antsy for US Sentencing Commission appointments after another slate of impressive judicial nominees from Prez Biden
• Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional 
• When might we expect appointments to a new — a truly new — US Sentencing Commission? 
• When might we expect advocacy groups to push Prez Biden make needed appointments to the US Sentencing Commission? 
• Should I give up hoping Prez Biden will soon make long needed nominations to US Sentencing Commission? 
• Bipartisan call from members of Congress for Prez Biden to make US Sentencing Commission nominations 
• Spotlighting guideline circuit split, two Justices express "hope" US Commission will be back "in near future" 

Judge Ketanji Brown Jackson's distinct criminal justice background garnering attention as she tops SCOTUS short list

Long-time readers may recall that, six years ago after the surprise death of Justice Antonin Scalia, I started to talk up then-US District Judge Ketanji Brown Jackson as my favorite SCOTUS short-lister.  Though Judge Jackson was only 45 years old back in 2016 and had then served only three years as a federal district judge, I felt that her impressive professional history and especially her criminal justice experiences — as a federal public defender, as a member of the US Sentencing Commission, and as a sentencing judges — would make her an especially valuable addition to the Supreme Court.

Fast forward six years, and I still think now-US Circuit Judge Ketanji Brown Jackson would be a great pick for an open seat on the Supreme Court.  And because Judge Jackson now is on the very top of nearly every SCOTUS short list, major papers are already robustly covering her criminal justice experiences.  Specifically, this past weekend brought these two notable pieces:

From the New York Times, "For Ketanji Brown Jackson, View of Criminal Justice Was Shaped by Family; The story of an uncle’s cocaine conviction formed only part of Judge Jackson’s understanding of the system’s complexities; She is now seen as a contender to be President Biden’s Supreme Court pick"

From the Washington Post, "Possible Supreme Court nominee, former defender, saw impact of harsh drug sentence firsthand"

Both of these pieces focus a bit more on the personal than on the professional, but I suppose that is inevitably the main currency in these sorts of pieces.  I will be interested to see, in the weeks leading up to Prez Biden's selection and especially if Judge Jackson gets the nomination, how her professional history as a federal public defender and as a member of the US Sentencing Commission garners additional attention.  Interesting times.

Brennan Center reviews "Criminal Legal Reform One Year into the Biden Administration"

I received via email news this morning that the Brennan Center for Justice had published this notable new short report titled "Criminal Legal Reform One Year into the Biden Administration." Here is the first part of the email, which serves as an overview of the report's coverage:

During his campaign, President Biden pledged to “strengthen America’s commitment to justice and reform our criminal justice system.” Brennan Center experts conclude that, after his first year in office, some progress has been made — but significant missed opportunities remain.  They identify eight key federal reform measures that the administration could achieve easily, in many cases without needing to rely on Congress, and detail the progress that has been made (if any), ranking them as follows:

Little or no progress

• Overhauling federal clemency process
• Empowering the U.S. Sentencing Commission

Limited policy changes

• The First Step Act and the Bureau of Prisons
• Federal death penalty
• Private, for-profit prisons and detention centers

Notable progress

• Federal home confinement
• Nominations for U.S. Attorney positions and federal judgeships
• Commitment to funding community anti-violence programs

Advocacy groups giving poor first-year grades to Prez Biden on criminal justice reform

This new Law360 piece, headlined "At 1-Year Mark, Groups Discontent With Biden Justice Reform," reports on an interesting effort to "grade" the Biden Administration for its criminal justice record at the end of its first year. I recommend the piece in full, and here are excerpts:

President Joe Biden's progress on criminal justice reform after nearly one year in office has dissatisfied some advocacy leaders who were once hopeful that the president would prioritize this reform.

During Biden's presidential campaign, he made more than 100 criminal justice reform promises, including to end mandatory minimum prison sentences, stop use of the death penalty and eliminate cash bail. However, the president hasn't fulfilled these reforms or many of his other justice campaign promises, advocates say.

In a recent Law360 poll of 13 organizations, seven organizations gave Biden a grade of "D" or "F" for his policy and legislative actions in his first year, and the majority of respondents reported being "dissatisfied" or "very dissatisfied" with his reform progress....

The 13 organizations were mixed about Biden's rhetoric on criminal justice reform. Roughly half of them gave the president a grade of "A" or "B" and the other half gave him a grade of "D" or "F." One organization gave his rhetoric a grade of "C."

But the majority of organizations gave Biden's overall progress on criminal justice reform in his first year a grade of "D" or "F." Three organizations said his overall progress was "above average" or "very good" and two groups said his progress was "average."

In the early days of Biden's administration, the president did take quick action on justice reform by issuing an order phasing out the use of privately operated prisons. Later, he also restored the U.S. Department of Justice's Office for Access to Justice, implemented restrictions on chokeholds and no-knock warrants for federal law enforcement and opened up access to re-entry services for people who were formerly incarcerated.

After much pleading from criminal justice reform groups, Biden's Justice Department reversed course on a previous decision and said in December that individuals who were released on home confinement because of the COVID-19 pandemic could stay out of prison.

Advocates, however, say that in Biden's first year, the president missed several opportunities to make key reforms including ending unjust prison sentences through the clemency process and dispelling the narrative that justice reforms will lead to more crime....

A spokesperson for the White House did not respond to a request for comment about Biden's progress on criminal justice reform.

According to Law360's poll, the majority of respondents were "hopeful" or "very hopeful" that when Biden first took office, he would prioritize criminal justice reform. However, after Biden's first year in office, only three organizations reported that they were "hopeful" or "very hopeful" the president would prioritize justice reform during the rest of his administration....

Not all advocates have lost hope though. Miriam Krinsky, a poll participant and executive director of Fair and Just Prosecution, told Law360 that she remains hopeful because of the people that Biden has appointed to be federal prosecutors, sit on the federal judicial bench and lead the DOJ. "I think [Biden] is taking seriously the need to reset the legal system, and putting people in place in criminal justice positions that are thinking differently," Krinsky said.

A few of many prior recent related posts:

• Two new NPR pieces spotlight frustrations with Biden Administration among criminal justice reform advocates 
• Reviewing Biden Administration's uninspired criminal justice reform efforts 
• Across political spectrum, insightful folks saying in insightful ways that Prez Biden must do better on criminal justice reform
• Highlighting how the Biden Administration could and should start reforming federal BOP 

Senator Cotton criticizes new OLC opinion on CARES home confinement and asks AG Garland lots of follow-up questions

Though the season of the Grinch may be over, US Senator Tom Cotton is starting the new year full of grinchy grouchiness about various criminal justice issues.  I noted here his recent foolish op-ed fretting about a "jailbreak" and an "under-incarceration crisis," and now a helpful colleague made sure I did not miss this press release from the Senator's office titled "Cotton Demands Answers from DOJ About Releasing Criminals to Home Confinement."  Here is how the release starts:

Senator Tom Cotton (R-Arkansas) today wrote to U.S. Attorney General Merrick Garland regarding the Department of Justice’s recent decision to ignore the clear limits placed by Congress on pandemic-related home confinement of convicted federal criminals.

In part, Cotton wrote, “The Department’s Office of Legal Counsel correctly concluded in January 2021 that the only tenable reading of the CARES Act is that the Bureau of Prisons (BOP) could only exercise expanded home confinement placement authority during the coronavirus national emergency, and that the law requires that the BOP return such inmates to prison and follow the limits of longstanding federal law following the end of the emergency.”

“Unfortunately, it seems that you have now decided to bow to the pressure from political activists rather than do your job.  The Office of Legal Counsel, at your direction, issued a slapdash opinion reversing itself in December 2021.  That new opinion is not based on the law, but rather on the policy goals of criminal leniency,” Cotton continued.

The full three-page letter may be found here at this link, and there is more Tom Cotton "tough and tougher" bluster at the start of the letter.  But the questions that make up the heart of the letter are intriguing on a number of fronts, and I would be especially interested to see if and how AG Garland and his team responds to these closing queries:

Please provide a list of all inmates who are currently placed on home confinement under the temporary authority granted by the CARES Act, broken down by primary offense, total sentence length, and the number of months remaining under their sentence. 

How many inmates who were placed on home confinement under the temporary authority granted by the CARES Act have had their home confinement rescinded or have been rearrested for a new offense?  Please provide a description of the offenses for which any such inmates have been rearrested, or the reasons for which their home confinement was rescinded.

Just a few of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence 
• New OLC opinion memo concluding CARES Act "grants BOP discretion to permit prisoners in extended home confinement to remain there"
• With new OLC memo allowing home confinement cohort to stay home, what now of Prez Biden's nascent clemency efforts?

Might we celebrate this Festivus with a polite airing of sentencing grievances?

I am not quite sure if Festivus is still something in the pop culture ether, but I am sure that I still get a kick out of reviewing the faux-holiday's grand traditions,   And I am especially sure that, thanks to a seemingly endless pandemic and a toxic political environment, the Festivus tradition of airing grievances seems to be now an almost daily ritual for many. 

That all said, especially as another notable sentencing year winds down, I am eager to yet again welcome and encourage any and all readers eager to air their sentencing grievances in the comments.  As the title of this post suggests, I urge everyone to make extra efforts to be extra polite in any Festivus grievances being aired.  I hope that is not too much to ask in a holiday season.  

I will try to set the tone with a grievance that will be familiar to regular readers: I am disappointed we did not get nominations to the US Sentencing Commission in 2021.  But I am quite optimistic that we will be getting nominations in early 2022, and I am hoping a new USSC will demonstrate all sorts of "feats of strength" as it gets to work on long overdue federal sentencing reform projects.

Others?

Two new NPR pieces spotlight frustrations with Biden Administration among criminal justice reform advocates

This weekend has brought these two versions of NPR coverage of a topic familiar to readers of this  blog, namely the failure to see much tangible criminal justice reform action from the Biden Administration so far:

"Criminal justice advocates are pressing the Biden administration for more action"

"Activists wanted Biden to revamp the justice system. Many say they're still waiting"

Here are excerpts from the second piece:

People working to overhaul the criminal justice system say they're frustrated with the Biden administration after they've waited nearly a year for the White House to take major steps on clemency and sentencing reform. "I think we're at a point where we're saying, mere lip service isn't enough," said Sakira Cook, senior director of the justice reform program at the Leadership Conference on Civil and Human Rights. "We want to see some concrete action."

For them, concrete action could include granting clemency to the few thousand people who were released to home confinement by the Trump administration at the start of the pandemic. President Biden could ensure those people remain free with the stroke of a pen. But he hasn't done that yet, despite months of pressure....

Michael Gwin, a White House spokesman, told NPR in a written statement that the president has taken steps to reform the system "since his first day in office." "This includes restoring the Department of Justice's Office for Access to Justice, implementing new restrictions on chokeholds and no-knock warrants for federal law enforcement, ending contracts with private detention facilities, and expanding access to re-entry services for formerly incarcerated individuals," Gwin said.

The advocates say they're happy to give credit where it's due.  They praised the Justice Department for rescinding a Trump-era memo that directed prosecutors to pursue the most serious charges they could for any crime. And they're happy the DOJ has launched four big civil rights investigations of police departments.

But they've also taken note of this fact: the federal prison population has increased by some 5,000 people during Biden's tenure, according to Nazgol Ghandnoosh, a researcher at the Sentencing Project....  While homicides and shootings have increased in many parts of the country, the vast majority of those crimes are handled by state and local authorities, not the federal government.  Most people in federal prison are there for breaking drug or immigration laws, Ghandnoosh said.

Ghandnoosh had expected to see more than "small tinkering" by the new team in Washington. "We would expect to hear from the attorney general and the president very vocal and unequivocal support for federal sentencing reform that's being considered right now and that could help to give those initiatives an important boost," she added.

Another criticism is about personnel.  The White House hasn't taken any action to fill vacancies on the Sentencing Commission, which sets federal sentencing guidelines for many crimes.  "In the past, some of the best reforms [that] have been achieved in the last 10 years have been at the Sentencing Commission and they haven't even nominated people to fill this vacant body," said Ring of FAMM.

Meanwhile, key allies of the White House, including Senate Judiciary Committee Chairman Dick Durbin, D-Ill., are going public with their demand that the Justice Department fire the head of the federal prison system.  They say the Federal Bureau of Prisons mismanaged the pandemic and that there are several other serious problems in the system.

Democrats control both chambers of Congress with small majorities.  But the administration hasn't used the bully pulpit to promote the EQUAL Act, a bill that would equalize the penalties for crack and powder cocaine.  Those laws have punished Black people more harshly than white people for decades for essentially the same crime.

When exactly in "early 2022" might we expect Prez Biden's nominees to the US Sentencing Commission?

The question in the title of this post is prompted by this new Law360 article, which discusses the quorum-less status of the US Sentencing Commission and includes a prediction from the last remaining Commissioner as to when new USSC nominations may be forthcoming. The piece is headlined "Biden's Inaction Keeps Justice Reform Group Sidelined," and here are a few excerpts:

In November, Reps. Kelly Armstrong, R-N.D., and Jamie Raskin, D-Md., sent a letter to Biden urging him to fill vacancies on the Sentencing Commission, saying that the commission's inability to issue sentencing guidelines for the First Step Act could result in "uneven application of the law."

"It is imperative that the vacancies are expeditiously filled so the commission can continue its work to improve the federal criminal justice system," the pair said in the Nov. 22 letter.

Armstrong told Law360 that he sent the letter to Biden because having the commission's input would be beneficial as the Senate considers advancing the EQUAL Act, or Eliminating a Quantifiably Unjust Application of the Law Act — a proposed law that would completely eliminate sentencing disparities between crack and powdered cocaine offenses.  The bill has passed in the House.

"Nobody's ever lost an election being tough on crime, so if you want reasonable smart policy changes, you need experts to give you the advice, because then, you can utilize that, and you don't take as much political heat," Armstrong said about the Sentencing Commission.

Congress is currently considering several sentencing reform bills in addition to the EQUAL Act.  Though lawmakers are running out of time to pass the proposed laws with its winter recess scheduled to start Dec. 11.  Four of the proposed sentencing reform bills — the Smarter Sentencing Act, the Preventing Unfair Sentencing Act, the RAISE Act and the Ending the Fentanyl Crisis Act — specifically call on the Sentencing Commission to review and revise its sentencing guidelines, if necessary to comply with the legislation.  However, the commission wouldn't be able to comply with these directives as long as it lacks a quorum.

A White House spokesperson did not respond to a request for comment about why Biden hasn't nominated commissioners for the Sentencing Commission yet or when he will announce his nominees.

Breyer, the sole remaining commissioner, told Law360 that he has been in contact with the White House and believes it is currently vetting candidates. He said that he is hoping for a slate of nominees in early 2022.  The White House is "certainly overworked, but I still think that there is some priority in getting this taken care of," Breyer said.

If there truly was "some priority" in staffing the US Sentencing Commission, I think we would have and could have already seen some USSC nominees now 11 months into the Biden Administration.  But I suppose this setting justifies the old saying "better late than never." 

I sincerely hope Judge Breyer's prediction of "nominees in early 2022" means sometime in January or February.  The process of Senate confirmation likely takes a few months even under the best of circumstances, and the prospect of confirmations would seem to diminish as we get closer to the midterm elections.  So even uncontroversial nominations made in January might not result in a full and functioning Commission until Spring 2022.  I fear later and/or controversial nominees could mean we do not get a full and functioning Commission at all in 2022.     

A few of many prior recent related posts:

• Any guesses for when we might again have a fully functioning US Sentencing Commission? 
• New commentary calling for Prez Biden to revive the US Sentencing Commission
• Might we be getting closer to (needed) new nominees for the "frozen" US Sentencing Commission? 
• Getting antsy for US Sentencing Commission appointments after another slate of impressive judicial nominees from Prez Biden
• Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional 
• When might we expect appointments to a new — a truly new — US Sentencing Commission? 
• When might we expect advocacy groups to push Prez Biden make needed appointments to the US Sentencing Commission? 
• Should I give up hoping Prez Biden will soon make long needed nominations to US Sentencing Commission? 
• Bipartisan call from members of Congress for Prez Biden to make US Sentencing Commission nominations 

Bipartisan call from members of Congress for Prez Biden to make US Sentencing Commission nominations

Regular reader who recall my regular advocacy for Prez Biden to make nominations to the now-dormant US Sentencing Commission will know that this new Reuters story made me smile:

Two Democratic and Republican lawmakers in a letter on Monday urged President Joe Biden to prioritize filling vacancies that have left the U.S. Sentencing Commission without a quorum, saying the situation has stalled criminal justice reform.

U.S. Representatives Kelly Armstrong, Republican of North Dakota, and Jamie Raskin, Democrat of Maryland, said the vacancies have "forestalled the important work of updating and establishing new sentencing guidelines."

A White House spokesperson had no immediate comment.

The commission lost its quorum in January 2019, a month after former Republican President Donald Trump signed into law the First Step Act, bipartisan legislation aimed at easing harsh sentencing for non-violent offenders and at reducing recidivism.

Armstrong and Raskin said the lack of quorum also meant the commission cannot update the advisory sentencing guidelines needed to help implement the law, resulting potentially in its uneven application by judges across the country. "It is imperative that the vacancies are expeditiously filled so the Commission can continue its work to improve the federal criminal justice system," the lawmakers wrote.

The seven-person panel's lone remaining member, Senior U.S. District Judge Charles Breyer, told Reuters this month he would be "surprised and dismayed" if Biden did not pick nominees by early 2022 and urged him to help restore its quorum.  Breyer's own term expired on Oct. 31 but he can remain on the commission for up to a year more unless a replacement is confirmed.  Armstrong and Raskin cited his potential departure as another reason to act.

The full letter can be found here.  I am ever hopeful that we will finally get nominations from Prez Biden no later than early 2022, though that will still be a year later than would have been ideal.  And I sincerely hope the Biden Administration will work effectively with Senate leaders to ensure his eventual nominees get a swift confirmation.  But even if this process gets going, it now seems unlikely a full USSC will be functioning before the May 1, 2022 deadline for the 2022 guideline amendment cycle, and so November 2023 could end up the earliest date for any guideline changes to become effective.

A few of many prior recent related posts:

• Any guesses for when we might again have a fully functioning US Sentencing Commission? 
• New commentary calling for Prez Biden to revive the US Sentencing Commission
• Might we be getting closer to (needed) new nominees for the "frozen" US Sentencing Commission? 
• Getting antsy for US Sentencing Commission appointments after another slate of impressive judicial nominees from Prez Biden
• Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional 
• When might we expect appointments to a new — a truly new — US Sentencing Commission? 
• When might we expect advocacy groups to push Prez Biden make needed appointments to the US Sentencing Commission? 
• Should I give up hoping Prez Biden will soon make long needed nominations to US Sentencing Commission? 

Federal prison population has now grown more than 4,300 persons (almost 3%) in just last six month

Prez Joe Biden campaigned on a promise to "take bold action to reduce our prison population."  But I cannot think of a single action he has taken over his first 10 months in office, let alone any "bold action," to reduce the federal prison population.  And the latest numbers from the federal Bureau of Prisons tell a notably story of federal prison population growth, not reduction, so far in the the Biden era.

The day after Joe Biden was inaugurated, I authored this post posing a 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 numerical realties 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 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 in office, this population count decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021.

At the 100 day mark of the Biden Administration, I noted in this post that the prison population in the first few months of the Biden era had held pretty steady.  Specifically, as of May 6, 2021, the federal prison population clocked in at 152,085, an increase of just over 500 persons in inauguration day.  But now the BOP update of the federal prison population as of Nov. 4, 2021 reports 156,428 "Total Federal Inmates."  Thus, over the last six months, the total federal prison population has grown nearly 3% with more than 4,300 additional inmates.

This prison growth, I suspect, is mostly a function of the federal criminal justice system returning to more case-processing normalcy as COVID concerns recede.  (The reduction in COVID concerns also likely is resulting in fewer grants of compassionate release and perhaps a greater willingness of some judges to order the start of prison terms.)  Increased concerns about violent crime might also be playing a role, directly or indirectly, in the flow of prisoners in and out of federal facilities.

Though a range of uncertain factors may be driving the significant uptick in federal prisoners over the last six months, I am certainly inclined to now predict that we will see continued increases in the federal prison population unless and until Prez Biden makes an effort to carry out his pledge to "take bold action to reduce our prison population."  I am not holding my breath.

Continuing capital commentary as SCOTUS considers Marathon bomber's capital process

In prior posts here and here, I rounded up press coverage just before and just after the Supreme Court heard oral argument in US v. Tsanaev to consider whether the First Circuit erred when reversing the death sentence given to the bomber who killed three and injured hundreds during the 2013 version of the Boston Marathon.  Not surprisingly, the SCOTUS argument has prompted a number of thoughtful folks to have thoughtful comments on the case and much that surrounds it.  Here is a partial round-up of some of this recent commentary:

From Erwin Chemerinsky, "Biden’s death penalty hypocrisy"

From Chris Geidner, "Supreme Court couldn't consider death penalty case if not for Biden's broken promise"

From Thaddeus Hoffmeister, "Tsarnaev Supreme Court appeal: Do unbiased jurors exist in an age of social media?"

From Karen J. Pita Loor, "The perplexing case of Biden, Tsarnaev and the death penalty"

From Amelia Wirts, "Death penalty can express society’s outrage – but biases often taint the verdict"

Reminders from many Govs to Prez Biden: it is always a good time for good clemency

I noted in this recent post that Prez Biden is now behind Prez Trump's clemency pace as we approach the end of the eighth month of Prez Biden's time in the Oval Office without him having yet used his clemency pen one single time.  As discussed in this post from late last month, there is talk that Prez Biden might use his clemency powers to help ensure that at least some member of the CARES home confinement cohort does not have to return to prison after the pandemic.   With summer now winding down, I thought it might be useful to highlight that at least some state governors understand that any time and every season can be a good time and season for clemency.  So here is a round-up of just some stories and commentaries about state clemency efforts from just this summer: 

From Arkansas: "Governor Asa Hutchinson Announces Intent to Grant Executive Clemency"

From Kansas: "Kelly Commutes 5 Prisoners' Sentences, Pardons 3 Others"

From Missouri: "Governor Parson Grants 12 Pardons, Commutes One Sentence"

From New Mexico: "Pardons for 19 New Mexico criminals, some who were violent"

From Oregon: "Pardons and commutations rising in Oregon"

From Virginia: "Northam was right to grant clemency to the Martinsville Seven. He should extend it to the living, too."

From Washington: "Inslee commutes more convictions to clear backlog left after Washington state’s drug-possession law struck down"

From Wisconsin: "Gov. Evers grants 71 pardons since May"

“The Case for a Presidential Task Force on 21st Century Prosecution"

The title of this post is the title of this notable new white paper produced by Fair and Just Prosecution.  Here is its executive summary:

THE NEED FOR A PRESIDENTIAL TASK FORCE ON 21ST CENTURY PROSECUTION

The United States currently incarcerates its residents at the highest rate of any democratic country in the world.  This system of mass incarceration disproportionately impacts Black and brown Americans, disrupts communities, and bloats budgets, all while impeding the mission of public safety it purports to promote.  Prosecutors wield a vast amount of discretion and authority within the criminal legal system — and therefore share responsibility for those systemic failings — yet they also hold the power to bring about systemic transformation.  The Biden-Harris administration has a vital role to play in catalyzing innovation and helping prosecutors nationwide chart a path to greater justice and equity for their communities.  A new generation of local elected prosecutors are modeling that potential and are reimagining the role of prosecutors. We propose a Presidential Task Force on 21st Century Prosecution to build on — and help perpetuate — that movement.

PROPOSED FOCUS

Seventeen pillars would serve as the basis for a series of hearings and focus the Task Force’s work:

• Understanding the historical legacy of the prosecutor
• Promoting deflection, diversion, and shrinking the system
• Advancing racial and ethnic justice
• Addressing the poverty penalty and bail reform
• Promoting harm reduction, saving lives, and drug policy reform
• Misdemeanor justice
• Better serving crime survivors
• Understanding, preventing, and addressing violence
• Juvenile and young adult justice
• Preventing officer-involved shootings and enhancing police accountability
• Improving conditions of confinement
• Implementing post-conviction justice, fair sentencing, and sentencing review
• Accounting for collateral consequences and promoting expungement
• Addressing mass supervision and improving reentry
• Envisioning success, metrics, and culture change
• Ensuring ethics, accountability, and transparency
• Propelling change and investing in transformation....

GOALS AND OUTCOMES

We recommend that the Task Force produce:

• A final report that identifies successful prosecutorial reforms and innovation, lays out key challenges to implementing change, details promising practices, and offers specific and tangible goals paired with policy and program recommendations that could include improving the safety and well-being of our communities, dramatically reducing jail and prison populations, ending racial disparities, and enhancing transparency and accountability;
• A strategic roadmap to incentivize and fund change and innovation, including by encouraging and enabling specific federal laws, policies, resources, and grants to help support and propel systemic transformation; and
• A concrete implementation plan, including the creation of an implementation oversight group and ongoing technical assistance from key federal government bodies and leaders.

Noticing the notable number of public defenders among Prez Biden's judicial nominations

In this post a few weeks after Prez Biden assumed office, I asked "So what's a reasonable expectation for how many of Prez Biden's judicial nominees will be criminal defense or civil rights lawyers?". In that post, I noted the data showing the federal judiciary is badly skewed with a disproportionate number of judges who are former prosecutors or former government lawyers or have only private practice experience, and I was hopeful Prez Biden would look to bring more balance to the federal bench.

Just over six month later, two new pieces detail that Prez Biden's track record here is pretty good and why this should be celebrated. Consider first this Bloomberg Law piece headlined "Public Defender Bench Aspirations Emboldened by Biden Nominees."  Here is an excerpt:

President Joe Biden’s nomination of several public defenders is part of a broader effort to add professional and demographic diversity to the judiciary.... Many federal public defenders who’d felt shut out from the bench now see their skills getting overdue recognition by the political establishment.  Biden’s nominations also may convince law students that “they’re not closing that door to being a judge just because they might pursue their public defender aspirations,” said Rachel Barkow, a New York University law professor.

Twelve of Biden’s 33 nominees so far for lifetime federal judicial appointments have public defender experience, and a handful of them have been confirmed.  They include Ketanji Brown Jackson, a former D.C. federal trial court judge and federal public defender, who was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit. Candace Jackson-Akiwumi, a former federal public defender in northern Illinois, was confirmed to the Chicago-based Seventh Circuit.

And at MSNBC, Chris Geidner has this new opinion piece headlined "Biden outshines Trump — and Obama — by appointing public defenders as judges." Here are excerpts:

Last weekend, the Senate confirmed Eunice Lee to a judgeship on the U.S. Second Circuit Court of Appeals.... Lee’s confirmation is remarkable for one due the fact that the judicial landscape is completely unrepresentative of the legal profession — and has been for a very long time. Her confirmation is a single, but important, effort to confront this imbalance.

If that sounds dramatic, just look at the number of judges with backgrounds as prosecutors.  As things stand, they overwhelmingly outnumber those with backgrounds as public defenders.  That imbalance is even more dramatic if you’re looking more broadly at whether the judge’s experience before taking the bench was in representing the government in any role or opposing it....

The law as we know it — or, more bluntly, as it is — is dramatically skewed by the experience imbalance among our judges. Broad swaths of the law like the court-created doctrine of qualified immunity — the protection against most lawsuits that government officials, particularly police officers and prison guards, receive — have been created by judges whose experience was often as prosecutors or otherwise representing the government’s interests instead of individual people’s interests....

Biden’s election over Trump raised hopes for a course correction in the federal judiciary. More than that, there also are the beginnings of change on the state level. This week, lawmakers in Virginia approved eight new judges to an expanded appeals court in the commonwealth, adding “two current and former public defenders and a longtime legal aid attorney — professional backgrounds that have never before been represented on one of the state’s high courts.”

These steps are good, but we can’t lose sight of the fact that they are just that: steps. Let’s assume that Biden continues nominating significant numbers of public defenders to the bench and, more unlikely, that other states take Virginia’s lead regarding their state courts. Even then, this imbalance on the bench would continue for the near future. It would take two or three presidencies, and an overwhelming number of governors and state lawmakers working to change their judiciaries, to see a real shift in the scales of justice.

These new judges being added to the mix, though, will nonetheless have an incredible opportunity, a chance to bring new perspectives to their colleagues and, through their opinions, to those of us who live under their rulings. They will be in the position to put some intellectual weight on the other side of the scale.

A few of many recent prior related posts:

• So what's a reasonable expectation for how many of Prez Biden's judicial nominees will be criminal defense or civil rights lawyers?
• "There Are Way Too Many Prosecutors in the Federal Judiciary: It’s time for a moratorium." 
• Another useful reminder of the need for more criminal justice diversity on the federal bench 

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:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration
• New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends
• Across political spectrum, insightful folks saying in insightful ways that Prez Biden must do better on criminal justice reform 

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:

• Federal prison population starting to grow again as we approach six months into Biden Administration 
• When might we expect appointments to a new — a truly new — US Sentencing Commission? 
• Reviewing Biden Administration's uninspired criminal justice reform efforts 
• Across political spectrum, insightful folks saying in insightful ways that Prez Biden must do better on criminal justice reform

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. 

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.

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.

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.

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.

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:

• Any guesses for when we might again have a fully functioning US Sentencing Commission? 
• New commentary calling for Prez Biden to revive the US Sentencing Commission
• Might we be getting closer to (needed) new nominees for the "frozen" US Sentencing Commission? 
• Getting antsy for US Sentencing Commission appointments after another slate of impressive judicial nominees from Prez Biden
• Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional 

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:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Might Prez Biden use his clemency power relatively soon?
• Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement? 
• New detailed polling reveals broad support for broad use of clemency power to commute sentences
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison 

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.

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.

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:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Might Prez Biden use his clemency power relatively soon?
• Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement? 
• New detailed polling reveals broad support for broad use of clemency power to commute sentences

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

This 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:

• Assessments and concerns regarding Biden Administration's early criminal justice efforts 
• Not even much lip service about sentencing reform in Prez Biden's first address to Congress
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform
• "14 Steps Biden’s DOJ Can Take Now to Reform America’s Criminal Legal System" 

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."

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."

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.

"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. 

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. 

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:

• From Marijuana Moment, "Biden’s Pick To Lead DEA Voiced Openness To State Medical Marijuana Program"
• From NOLA.com, "Kenneth Polite, former New Orleans U.S. attorney, gets nod for top Justice Department post"
• From the Washington Post, "Biden picks former New Jersey attorney general to lead DEA"

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.

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.