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.

ACLU releases new poll showing broad support for clemency for home confinement cohort

This new press release reports that "the American Civil Liberties Union released a poll today showing broad bipartisan support for President Joe Biden to issue clemency to those who were selected to be transferred home under the CARES Act."  Here are more details from the press release:

During the pandemic, thousands of people have been released from prison to finish their sentences on home confinement, many of whom are elderly or especially vulnerable to COVID-19.  Now, thousands are at risk of being sent back to prison when the pandemic recedes if President Biden does not take action.  Sending all of these people back to federal prison would be the single largest act of incarceration in U.S. history....

Among the poll’s findings:

• 63 percent of voters nationally support clemency for those who are serving their sentences at home due to COVID-19;
• Among voters in swing House districts, 70 percent of voters support allowing those who were transferred home to serve the reminder of their sentences at home to help prevent the spread of COVID-19;
• 68 percent of voters nationwide and 58 percent of voters in swing House districts agree that it’s not fair to return people to prison after they have been successfully released to their families and communities and re-entered society;
• 53 percent of Republican voters agree that it’s unfair to release people back to their families and communities and then return them to prison;
• 64 percent of voters nationwide — including 84 percent of Democrats — support using the president’s power of clemency to end or shorten prison sentences of people deemed safe for release; and
• While only 38 percent of independents approve of Biden’s job as president, a majority of them (57 percent) say they would support the president using clemency.

I am a bit surprised that these numbers are not stronger, though it is unclear from the ACLU "fact sheet" just how the poll questions were presented and how much the average poll participant fully knows or understands about all those in the "CARES home confinement cohort."   In fact, I still have not seen a lot of detailed data on just how many persons are still serving time on home confinement whose sentences goes beyond 2022 and would be at risk of a return to prison if the pandemic (miraculously) ends in the next few months.  I have also not seen much information about the sentences still to serve, the offenses of conviction and other details regarding exactly who would benefit from mass clemency om behalf of the home confinement cohort.  Though these details likely would not undermine my general support for bringing relief to this low-risk group, they might shape my view of whether everyone ought to have their sentences commuted to time served or if some perhaps ought to be receive some other form of relief in some cases.

Given that we are now into the final holiday weeks of the year, I am now getting close to giving up any hope that  that Prez Biden will grant even a single clemency in 2021.  (Of course, holiday season clemencies late into December are not uncommon.  Four years ago today, for example, Prez Trump granted a commutation to Sholom Rubashkin.)  And, of course, the omicron surge of the COVID pandemic now suggests that we are clearly many months away, and perhaps even years away, from a return to normal BOP operations when the CARES home confinement cohort would be at risk of a return to prison.  All these realities lead me to think we will be discussing these issues (and doing more polling?) well into 2022.

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
• 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
• Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action) 
• 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 
• Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence 
• Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort 
• Law enforcement and prosecutor groups urge Prez Biden to commute sentence of all in home confinement cohort 

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.

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

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

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

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

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

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

1. Revise Charging Policies...

2. Reform Clemency...

3. Commit to Compassionate Release...

4. Ensure First Step Act Programming Credit...

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

6. Abolish the Death Penalty...

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

8. Support Reform at the Sentencing Commission...

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

10. Implement Forensic Science Reform...

11. Revise Discovery Policies...

12. Support Legislative Reform...

13. Support Release Through Parole...

14. Eliminate Financial Incentives to Charge Cases...

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

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

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

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

A few recent prior related posts:

• Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP? 
• Federal prison population closes out 2020 at new modern low of 152,184 according to BOP 

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

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

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

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

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

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

Lots of notable death penalty stories at the state, federal and international level

While the execution spree conducted in the last six months of the Trump Administration has justifiably garnered a lot of attention from the press and others, I have noticed in recent days a number of notable new capital headlines that go beyond just federal death penalty stories.  In an effort to cover a lot of ground, here is a round-up with links:

From Bloomberg, "Boston Marathon Bomber Appeal Is Early Biden Test on Death Penalty"

From Equal Justice Initiative, "Dr. Martin Luther King’s Moral Opposition to the Death Penalty"

From the Gazette, "Bill that would reinstate limited death penalty advances in Iowa Senate"

From NBC News, "'This is not justice': Justice Sonia Sotomayor offers fierce dissent in death penalty case"

From the Richmond Times-Dispatch, "Virginia Senate committee backs bill to abolish the death penalty"

From Salon, "Amid Trump killing spree, MLK's family joins chorus demanding: 'Abolish the death penalty'"

From the San Francisco Chronicle, "Biden campaigned on eliminating death penalty — we could soon see how that turns out"

From the Washington Post, "Saudi Arabia says it executed 27 people in 2020, the lowest number in years, rights groups say"

Some notable (and mostly heartening) criminal justice discussion in final Prez debate of 2020

Few months ago in this post I wished that we could somehow arrange for one of the then-planned Prez debates to be entirely about criminal justice issues.  Of course, that did not happen (and only two of the three planned debates even happened).  Still, during the final Prez debate of this election cycle, criminal justice issues received more discussion than in any other Prez debate in recent memory, and I am tempted to call the discussion heartening for a variety of reasons.

For starters, Prez Trump bragged repeatedly about his role in achieving "criminal justice reform and prison reform," and he also criticized former VP Biden for his past role in enacting federal criminal justice legislation in the 1980s and 1990s that "put tens of thousands of mostly Black young men in prison."  It was not that long ago that candidates were regularly competing to claim they were tougher than their opponents, but tonight Prez Trump assailed Biden for his tough-on-crime past while claiming credit for most progressive federal criminal justice reform in a generation (the FIRST STEP Act).

Meanwhile, VP Biden stated that the drug offense part of federal criminal legislation in the 1980s and 1990s was "a mistake," and he bragged that during the Obama administration "38 thousand prisoners [were] released from federal prison [and] over 1000 people given clemency."  And even more notable was Biden's plain statement that "there should be no minimum mandatories in the law."  Again, it was not that long ago that politicians were eager to brag about enacting mandatory minimums and about putting more people in prison.  Now the talking points focus on releasing prisoners and the pledge it to repeal mandatory minimums.

For these reasons and others, I remain mildly optimistic that we will see some measure of progress on some kind of follow up to the FIRST STEP Act or some other form of criminal justice reform in the coming years no matter who prevails in the coming election.  But I think the scope and contents of reform will surely look a look different, and the pace and implementation of any reform will surely transpire a lot differently, depending on who is in the White House and who is in charge in Congress.  Interesting times.

Can we somehow arrange for one of the upcoming Prez debates to be entirely about criminal justice issues?

Long-time readers know that, every four years, I cannot stop complaining that the Prez-election-season discourse and debates do not give nearly enough attention to a range of important criminal justices issues.  (Here are just a few example of this complaining in posts from 2008 and from 2012 and from 2016.)  For many reasons, it seems likely that the 2020 election season will have considerably more discussion of criminal justice issues from the candidates and in the media.  For example, this morning I saw this new NPR piece headlined "Fact Check: Trump's And Biden's Records On Criminal Justice," and here are excerpts:

For four nights, speakers at the Republican National Convention pilloried Democrat Joe Biden over his alleged weakness on crime and painted a dystopian future if he were to be elected in November. Biden and Democrats were "completely silent about the rioters and criminals spreading mayhem in Democrat-run cities," during their convention, President Trump charged on Thursday.  The previous evening, Vice President Pence warned, "The hard truth is you will not be safe in Joe Biden's America."... Pence claimed that Biden would "double down in the very policies that are leading to violence in American cites," to which Biden responded with a reminder that "right now ... we're in Donald Trump's America."...

Trump — who promised in his 2016 acceptance speech that "the crime and violence that today afflicts our nation will soon, and I mean very soon, come to an end" — has a spotty record when it comes to criminal justice reform.

His signature achievement on the issue, the widely touted First Step Act signed in 2018 and passed with bipartisan support in Congress, instituted sentencing reforms, including reducing harsh penalties for crack cocaine possession.  And on Friday, Trump pardoned Alice Johnson, a criminal justice reform advocate who delivered a powerful address at the Republican National Convention this week, and whose cause had been espoused by Kim Kardashian West. But some parts of the law have fallen short, activists say.

In June, following the unrest after George Floyd's killing, Trump signed an executive order that would provide federal grants to improve police training, and create a national database of police misconduct complaints. But it fell well short of what activists say is needed. Congress was unable to reconcile police reform proposals earlier this summer....

As Republicans were fond of noting during their convention, Joe Biden has a 47-year record as a U.S. senator and then vice president. During much of his Senate career, he was a member of and chairman of the Judiciary Committee, and in 1994 sponsored the Violent Crime Control and Law Enforcement Act.  It came in a different era, as Democrats set out to prove that they, too, were "tough on crime."  The bill included a 10-year ban on assault-style weapons as well as the Violence Against Women Act, which Biden points to today as a signal of his commitment to ending domestic violence.  But the act also included harsh penalties for drug-related crimes and money to construct new prisons, which critics said led to the mass incarceration of Black men. It also included funding to hire 100,000 additional police officers.

Now, Biden has backed away from some of the provisions in that bill, while at the same time rejecting calls by some in his party to defund police departments. He's proposed a ban on police chokeholds, a new federal police oversight commission, new national standards for when and how police use force, more mandatory data collection from local law enforcement and other steps.

There are three Presidential debates scheduled to begin in late September, and I am sure this season will bring at least a few questions on crime, police reform and racial justice issues.  But there are so many issues in the criminal justice arena that merit attention and that are likely to be of considerable interest to voters.  Clemency policies and practices, for example, could and should merit focused debate discussion.  So, too, should the operation of the death penalty, especially now that the Trump Administration has carried out five federal executions while the Biden policy task force calls for abolishing the death penalty "at the federal level, and incentiviz[ing] states to follow the federal government’s example."

And let's not forget marijuana and other drug policy issues.  At least six states in 2020 will be voting on state-level marijuana reforms, and other forms of reform concerning other drugs are also on various other ballot.  The Trump Administration has given some attention to the opioid crisis, and we ought to have both candidates discuss drug overdoses which still result in many, many more deaths of young people than has the coronovirus (NIDA reports over 4600 overdose deaths for persons aged 15-24 in 2018; the CDC reports under 400 COVID deaths for that same age group in 2020).

And the list of important topics for debate and discussion could go on and on: the operation and oversight of the federal Bureau of Prisons; reform of mandatory minimum sentencing provisions; voting rights for those with past convictions; the policies and practices of so-called progressive prosecutors; appointments to the US Sentencing Commission; barriers to effective reentry due to collateral consequences; the timeline and possible substance for a Second Step Act (and a Third Step Act).  The great new Council on Criminal Justice (CCJ) released a few months ago this big new report titled "Next Steps: An Agenda for Federal Action on Safety and Justice."   This report had 15 thoughtful recommendations for federal reform, each of which could justify extended debate discussion.

I will not belabor this point here, but in the coming months I likely will keep returning to the idea that an entire Prez debate should be devoted exclusively to discussing criminal justice issues.  The candidates' histories and well as their campaigns, not to mention the moment we are living through, justify more than just one or two questions on these topics.  As in years past, I expect to be disappointed on this front.  But, as in years past, I will keep using this platform to push what I think is a sound debate agenda for voters and the nation.

Federal prison population, due seemingly to COVID responses, hits another modern low (which is still very high)

Every Thursday morning, one can see at this webpage an official refreshed count of the total number of federal inmates as calculated by the Federal Bureau of Prisons. That page also has a chart and data on the total number of federal inmates for each fiscal year going back to 1980.  A quick look at these data show that in FY 2013 the federal prison population hit a modern high of 219,298.

But this morning, we are down to a federal prison population of "only" 173,686 inmates.  I put "only" in quotes because back in 1980 we had only 24,640 federal prisoners.  But the next 30+ years, through the heart of the "tough-and-tougher," the federal prison population grew by 900% as both Democratic and Republican administrations invested more and more money on more and more federal prosecutions while generally asking for longer and longer sentences for those who were federally convicted.

But, after 2013, a range of political, social and practical realities helped create a new and steady trend of reduced federal incarceration levels.  Notably (though not often noted), data here from the US Sentencing Commission shows there were roughly 20,000 fewer offenders being sentenced in the federal system between 2011 (when 86,201 persons were sentenced in federal courts) and 2017 (when "only" 66,873 persons were sentenced).  In addition, retroactively applied reductions in crack sentences and then in all drug sentences contributed to further federal decarceration. 

But, starting in 2018, the number of offenders being sentenced in the federal system started to tick back up; in 2019, according to the USSC, we were all the way back up to 76,538 sentenced federal offenders.  Yet, working the other way, the new good-time credit flowing from the FIRST STEP Act and other reforms in that Act helped to thwart a complete reversal in the downward trends of the total number of persons in federal prison.  I commented in this post back in July 2019 that, thanks in part to Obama era developments and the FIRST STEP Act, the federal prison population had dropped under 180,000 prisoners for the first time since way back in FY 2003.  At that moment, I was truly unsure how various cross-cutting trends might impact the federal prison population in the months and years to come.  I made these concluding points in that prior post:

I have been following these numbers closely for a number of years, and I have been especially focused on week-to-week changes during the years of the Trump Administration because I feared that an uptick in federal prosecutions and various new sentencing directives begun under then-Attorney General Jeff Sessions might reverse the trend of prison population reduction that started during the second part of the Obama Administration.  But it seems that a lot of forces worked in various ways to kept the federal prison population at just over 180,000 inmates for much of the last three years.  And now, thanks to the FIRST STEP Act's "good time fix" finally kicking in, we are this week significantly below that 180,000 inmate threshold.

I would love to be able to predict that the FIRST STEP Act will ensure that the federal prison population keeps going down, but I am not sure that would be a sound prediction.  It is possible that the continued robust implementation of various components of the FIRST STEP Act will keep the downward trends moving.  But continued increases in the number of cases prosecutors by the Justice Department could get us back to an era of federal prison population growth (though that growth would likely be relatively modest).

Of course, we are in a whole new world of federal crime and punishment now.  We are in a COVID world.  It is waaaaaaay too early to make any long-term predictions.  But I wanted to flag today that we are at a new modern low with the federal prison population at "only" 173,686 inmates.  Just two weeks ago, before judges were starting to reduces sentences in response to compassionate release motions and before Attorney General Barr urged the Bureau of Prisons to move more offenders into home confinement, this population count was over 175,000.  Given this new COVID trend, I am inclined to predict we will see the federal population below 170,000 before the end of this month (though we should all know now how uncertain all COVID-related predictions must be).

Long term, as my prior comments are meant to highlight, what will likely matter most for the federal prison population is how many new offenders are getting sentenced and for how long.  Will federal prosecutors be bringing thousands more federal fraud and firearm prosecutions in the months ahead?  Will they be bringing thousands fewer federal drug and immigration prosecutions?  Will federal sentencing judges be inclined to be more lenient (or less lenient) in a COVID world?  As we see these prosecution and sentencing trends develop, we will know if the modern trend of federal decarceration will keep unfolding.

"Searching for A Kardashian: Kim helped get clemency for Alice Johnson, who will help me?"

The title of this post is the title of this notable commentary authored by Christopher Hunter and recently posted to Medium.  The piece is a poignant accounting of what it is like to be serving a lengthy federal prison term for a drug offense while there is on-going talk of clemency prospects.  I recommend the piece in full, and here is an excerpt:

In 2005, a federal judge sentenced me to 420 months in prison for selling cocaine.  That’s 35 years.  I never believed I would do all that time.  Call me crazy, but I think the Universe sets your body in the direction of your mind. So I constantly hoped that something would give.

Eventually, something did.  Between winning an appeal and a change in the sentencing laws, my time was reduced by 8 years.  But I still have too much time, and there’s no parole in federal prison.  In the 13 years I’ve spent in prison so far, I have always been searching for some way to reduce my time.

The last President understood that because of harsh mandatory minimums people received too much time in prison.  He granted around 1,700 federal commutations, specifically for non-violent drug offenses, through the Clemency Project.

I remember each month a list of his pardons would come out.  The President was like Willy Wonka, giving out “Golden Tickets.” 100 here, 89 there. I remember an older guy I worked with was turned down initially.  The Clemency Project suggested he file directly with the President.  Within a few weeks, he got a letter saying his petition was accepted. Some of the men who were pardoned left prison within week while others had to stay an complete a drug program.

At least five of the guys I worked with in the clerk’s office got out.  Everyone acted happy for them, but it was a strange feeling too.  I remember thinking, “How can they do this? How can the let some out and not others?  How?  We all deserve a second chance.  Where is the grace?” It hurt me to the bone.

I filed for clemency toward the end of Obama’s presidency, but I was not granted a “Golden Ticket.” I wasn’t denied one either.

The very first day the new president came into office, the pardon attorney contacted my counselor here and requested additional information. It was as if I was on deck. I thought, “Okay, here we go! It’s on! They are going to continue helping people.”

It had been extremely difficult watching random guys with identical charges getting out and having to smile and congratulate them while being envious as hell on the inside. I told my counselor to keep me informed.  As I watched the news of Kim’s advocacy, I got the strangest feeling.  I felt as though I was already supposed to have been on top of this. Of course I didn’t know anything about what was going to happen.  It was just a weird feeling.

I realize I was day-dreaming, and routine kicks in, and I rush to my cell to put it in perfect order before making the 7:45 work call. That morning, the Kim K White House sit down was a hot topic. The general consensus of my coworkers is, “Man, Trump ain’t about to do nothing for nobody!”  Almost everyone agrees that because of Attorney General Sessions, “we ain’t got nothing coming.”

For some reason, even though I know I should agree, I just don’t. It’s that strange feeling again.  My pending pardon flashes in my mind. As I shake it off, I have to admit I didn’t think Alice Johnson was getting out anytime soon.  What happens the next day blows my mind. The news is reporting that Alice Johnson’s sentence was commuted and she was being released immediately....

The evening news flashed between Kim K’s side of the story and Alice Johnson’s reaction to being released. I felt a lump in my throat. I was genuinely happy for her. Willie Wonka gave her a “Golden Ticket.”

The next morning things seemed to get even better.  The news was reporting that the president would be doing dozens more commutations.  By the time we left work that day, everyone was tripping. The president had announced that he would be doing a lot more commutations, looking from a list of 3,000 cases similar to Ms. Johnson’s.  He also reached out to the NFL players telling them to bring him names of people who had been treated unfairly.

After hearing the news, I made up my mind that I was going to get my request for clemency in that list of 3,000.  I had to find a celebrity like Kim or an NFL player. I knew NFL players like Doug Baldwin, Malcolm Jenkins, and Anquan Boldin were standing up for prison reform.  I wondered how I could get in touch with someone or convince them that I was worthy of being helped.

I rushed to the law library, a place I know well.  The room is filled with the noise of people pecking desperately away on ancient typewriters hoping for good news.  I wrote the pardon attorney telling him of the additional programs I’ve completed since he had contacted my counselor.  I wrote the President and explained all I’ve done, and asked him for help.  I told him I don’t know any celebrities or football players, but I need help. M y pardon has been pending for two years.  I explained that I’ve been a model prisoner, how I’ve taken drug programs and many more. I explained that I work and I’ve become a part of the church. I explained I’ve been locked up 13 years on a non-violent drug charge, that I’m not a career offender, and never have had a violent charge. I wrote how I now understand that drugs poison our communities.

I asked for help from anyone.  I made 30 copies of each letter, and all the certificates I’ve accumulated. I was elated to be putting my energy into something positive. To be working and fighting.  I emailed a copy of the letter to several friends and asked them to begin emailing it to celebrities and NFL players, people like Kid Rock and Van Jones. I have a Facebook page and I’ve posted it on my wall. I got the address for as many attorneys and advocates as possible.

I remember perceiving that another inmate was skeptical of all I was doing.  I sensed him scoff at my work.  “Listen to me, bro, you never know what can happen,” I said. “Kim K didn’t get Alice Johnson out, her family who was fighting and tweeting for her did.”  I told him my pardon is right there at the top of that stack and it could be a pastor, athlete, broadway star, gas station worker, housewife, or anyone that does the one thing that propels my name forward.

If the universe sees you fight for freedom, the universe may just help you get it.  If the universe sees you’ve changed, then someone’s heart can be moved.  Without the slightest bit of doubt, I said a prayer and began mailing out my little SOS’s.

I am still waiting.

A few of many recent related posts: 

• Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!
• Prez Trump suggests to reporters there will be more episodes of "Celebrity Clemency" 
• "Pardon System Needs Fixing, Advocates Say, but They Cringe at Trump’s Approach"
• Prez Trump reportedly "obsessed" with pardons and "may sign a dozen or more in the next two months"
• Prez Trump now says he is looking at "3,000 names" for possible clemency and will seek more 
• Another notable report on clemency suggesting Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn’t do"
• Is all the recent Trump clemency action creating (unhealthy?) excitement among federal prisoners? 
• Will Prez Trump deliver on all the clemency "tidal wave" of hopefulness he has engendered?
• How about a few clemency grants, Prez Trump, to really honor vets in need on Veterans Day?
• "The process to pardon turkeys is more rational than the one used for humans"
• New letter urges Prez Trump "to make lasting reforms to the clemency process by removing its administration from the Department of Justice" 
• "The Clemency Process Is Broken. Trump Can Fix It."

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

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

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

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

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

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

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

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

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

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

A few prior related posts from years past:

• Making (belated) case for a Prez to "choose nominees who will help dismantle mass incarceration" (from 2019)
• "There hasn’t been a criminal defense lawyer on the Supreme Court in 25 years. That’s a problem." (from 2016)
• Might any Prez candidate pledge to put a criminal defense attorney on the Supreme Court? (from 2015)
• Noticing the biggest bias in the federal judiciary (from 2009)
• Developing a SCOTUS short list of district court judges (from 2008)
• Will the next SCOTUS nominee have any criminal law background? (from 2005)

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

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

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

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

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

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

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

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

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

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

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

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

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

I do not think Prez Trump meant this tweet as a compliment to the Attorneys General, but it kinda is

President Donald Trump was tweeting up a storm yet again this morning, and this particular tweet struck me as especially ironic (and thus blogworthy):

“ERIC Holder could be running the Justice Department right now and it would be behaving no differently than it is.” @LouDobbs

— Donald J. Trump (@realDonaldTrump) September 11, 2018

The irony, of course, is that Prez Trump obviously means this tweet to be a criticism of current Attorney General Jeff Sessions (and likely also of former Attorney General Eric Holder).  And yet, as is so often heard from Attorneys General and others in the Justice Department, a commitment to the rule of law should often mean that the Department of Justice is to operate largely the same way no matter which person or party is formally at the helm.  In other words, from a different speaker at a different time, this statement really could be an extraordinary compliment to officials within the Justice Department.

Of course, as sentencing fans know, it is not actually accurate at all that the Justice Department is being run now just like it was run under former AG Holder.  Current AG Sessions was fairly quick to rescind any number of Holder-era guidance memos and policies on topics ranging from private prisons to charging and sentencing directions to marijuana enforcement.  And, of course, AG Sessions is reportedly trying to prevent significant sentencing and prison reforms in Congress, while former AG Holder supported various reforms (though not sufficiently, in my view). 

So, like so much this current Prez says, this tweet is wrong is more ways that the Prez even realizes. 

Interesting reflections on modern clemency realities

I flagged in this prior post an interesting star-studded event in DC yesterday discussing federal clemency's past, present and possible future.  This Washington Examiner piece reports on some of the interesting things said at the event under the headline "Alice Johnson recalls 'feeling of betrayal' from Obama, urges working with Trump."  Here are excerpts:

Former prison inmate Alice Johnson said Wednesday she had a "feeling of betrayal" when former President Barack Obama left office with her still behind bars, urging other clemency aspirants to put aside their qualms and work with President Trump to win their release.

Johnson, who Trump freed last month from a drug-related life sentence, spoke at a gathering of clemency advocates at George Washington University, saying her case should give hope to others. "From what everyone was saying, the Obama administration would be the one that would set you free, but I was still not set free. So to put your faith in a man was not a good thing to do," Johnson said.

"And not only was I left behind, but many others were left behind also," Johnson said. "There was a feeling of betrayal because I had so much hope that I was going to come out." Johnson, who addressed the gathering before a series of panels, and then again as a panelist, said she thinks there was a divine purpose in her wait. "It didn't happen for a reason. It happened for this time in history so that you will know that hearts can change, so that you will know that you should never stop fighting either, that you are not to look at what administration is in power, who is in office," she said....

Panelists at the clemency-themed event at points debated the merits of former President Barack Obama's late-second-term spree of prison commutations, which went overwhelmingly to drug convicts, a large share of whom were convicted for crack cocaine.  "The initiative missed a ton of people," said Rachel Barkow, a law professor and member of the U.S. Sentencing Commission. Barkow argued that a major flaw was relying on the Justice Department, saying that prosecutors are disinclined to recognize mistakes. "The deputy attorney general was saying 'no' in a lot of these cases," she said.

Roy Austin, a White House official in the Obama administration, defended Obama's late-term commutation push, saying "I'm biased, [but] we got it pretty dang right." Austin said he "loves" Trump's openness to recommendations from influential people, but that "the problem is that that's helping too few," and lacks a standardized process to ensure fairness.

Van Jones, an early-term Obama adviser who helps lead the clemency campaign #Cut50, offered positive views on the Trump administration, saying that at first "I was hopeless on election night" about clemency. "He took one step and got positive feedback," Jones said about Johnson's release, Trump's second prison commutation and his first for a drug convict.

Trump's subsequent invitation for professional athletes to submit the names of people worthy of clemency — an offer with few respondents — was "a remarkable development," Jones said. "He literally ran out of the White House saying, 'I want to do more.'"...

Several panelists discussed ideas for moving the vetting work of the Office of the Pardon Attorney out of the Justice Department, to streamline clemency applications and remove a possible conflict of interest.

Amy Povah, a Clinton clemency recipient who leads the CAN-DO Foundation, said that she's optimist about the Trump administration. "I think we have a huge opportunity because of [Johnson's] case, and I hope the Trump administration does something historic," Povah said.

Mark Holden, general counsel of Koch Industries, said clemency transcends the typical conservative-liberal divide in politics. "These are fundamental liberty issues," he said, arguing that Johnson's case "shocks the conscience" regardless of political affiliation.

I sincerely want to be as optimistic and hopeful as Amy Povah about Prez Trump doing something historic in this arena.  But all of his clemency chatter needs to become clemency action before too long if he wants to avoid creating a "feeling of betrayal" among a whole lot of federal prisoners now surely eager to benefit from all his encouraging talk.

A few of many recent related posts about recent Trumpian clemency activity:

• As Kim Kardashian heads to White House, I hope she advocates for many federal offenders excessively sentenced 
• Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!
• Prez Trump reportedly "obsessed" with pardons and "may sign a dozen or more in the next two months"
• "Kim Kardashian West pushes White House for more drug sentence commutations"
• Prez Trump now says he is looking at "3,000 names" for possible clemency and will seek more 
• Any suggestions for Prez Trump's "growing list of potential pardons or commutations"? 
• "Trump asks for clemency names and lists promptly arrive at White House" 
• Former US Pardon Attorney explains why "Trump’s pardons are really not out of the ordinary" 
• Another notable report on clemency suggesting Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn’t do"
• "N.F.L. Players to Trump: Here’s Whom You Should Pardon"
• "The Quest to Get a Pardon in the Trump Era: ‘It’s Who You Know’" 
• "Setting the Record Straight: The Pardon Power is Part of the Rule of Law" 
• "Pardon System Needs Fixing, Advocates Say, but They Cringe at Trump’s Approach"

Interesting data from the US Courts on federal criminal justice caseloads in FY 2017

The Administrative Office of the U.S. Courts yesterday released here is Annual Report on "Judicial Business 2017" providing lots of statistics on the work of the federal Judiciary for the fiscal year ending September 30, 2017. Here are some criminal justice-related items from data pages here and here that caught my eye:

This year, filings in the U.S. courts of appeals declined 16 percent to 50,506. Total filings in the U.S. district courts decreased 7 percent to 344,787 as civil case filings dropped 8 percent to 267,769, although filings for criminal defendants remained relatively stable at 77,018....

Filings in the regional courts of appeals, which rose 15 percent the previous year, dropped 16 percent to 50,506 in 2017. Filings by pro se litigants, which accounted for 50 percent of new cases, went down 20 percent. Civil appeals grew 1 percent. Criminal appeals fell 14 percent.

Filings for criminal defendants (including those transferred from other districts) remained stable, decreasing less than 1 percent to 77,018.

The biggest numeric decline was in filings for defendants charged with property offenses, which fell 6 percent to 10,115 filings and accounted for 13 percent of total criminal filings.  Filings for defendants charged with fraud, which constituted 9 percent of total filings and 71 percent of property offense filings, dropped 5 percent to 7,165.  Fraud filings related to identification documents and information, which are often associated with immigration crimes, decreased 16 percent to 639.

Drug crimes remained the offenses prosecuted most frequently in the U.S. district courts, constituting 32 percent of all defendant filings. Filings for defendants charged with crimes related to marijuana decreased 19 percent to 4,181.  Filings for non-marijuana defendants rose 4 percent to 20,175.  Filings related to the sale, distribution, or dispensing of illegal drugs decreased 17 percent to 2,249 for marijuana and rose 1 percent to 17,560 for all other drugs.

Criminal filings for defendants charged with immigration offenses fell 2 percent to 20,438 and accounted for 27 percent of criminal filings. This was the lowest total since 2007. Defendants charged with improper reentry by an alien decreased 3 percent to 16,554, and those charged with improper entry by an alien dropped 12 percent to 172.  Immigration filings in the five southwestern border districts declined 7 percent to 15,638 and constituted 77 percent of national immigration defendant filings, compared to 81 percent in 2016.  Filings fell 32 percent in the District of New Mexico, 16 percent in the Southern District of Texas, and 5 percent in the District of Arizona, but rose 51 percent in the Southern District of California and 6 percent in the Western District of Texas.

General offense defendants declined 5 percent and amounted to 2 percent of total criminal filings. Reductions also occurred in filings related to violent offenses (down 1 percent) and sex offenses (also down 1 percent); each of these categories constituted 4 percent or less of total criminal filings.

Filings for defendants prosecuted for firearms and explosives offenses rose 11 percent to 9,672 and represented 13 percent of total criminal filings. Filings involving justice system offenses, which increased 5 percent, constituted 1 percent of total criminal filings. Defendants charged with regulatory offenses grew 3 percent and accounted for 2 percent of total criminal filings. Traffic offense filings increased 2 percent to 2,292 and accounted for 3 percent of total criminal filings.

Because FY 2017 ending in Sept 2017 really represents a big transition year at the executive branch, it is way too early to draw too much from these data concerning the patterns of prosecution we might expect during the Trump years. But these data present an interesting baseline from which to look for notable patterns that might develop in the years ahead.

An accounting of how criminal justice has changed as the folks inside the Beltway have changed

The Marshall Project has this notable new piece headlined "Trump Justice, Year One: The Demolition Derby; Here are nine ways the law-and-order president has smashed Obama’s legacy." Here is how the piece sets up its listing (readers can click through to review the particulars):

On criminal justice, Donald J. Trump’s predecessor was a late-blooming activist.  By the end of President Barack Obama’s second term, his administration had exhorted prosecutors to stop measuring success by the number of defendants sent away for the maximum, taken a hands-off approach to states legalizing marijuana and urged local courts not to punish the poor with confiscatory fines and fees.  His Justice Department intervened in cities where communities had lost trust in their police.

After a few years when he had earned the nickname "Deporter-in-Chief," Obama pivoted to refocus immigration authorities — in effect, a parallel criminal justice system — on migrants considered dangerous, and created safeguards for those brought here as children.  He visited a prison, endorsed congressional reform of mandatory minimum sentences and spoke empathetically of the Black Lives Matter movement.  He nominated judges regarded as progressives.

In less than a year, President Trump demolished Obama's legacy.

In its place, Attorney General Jeff Sessions has framed his mission as restoring the “rule of law,” which often means stiffening the spines and limiting the discretion of prosecutors, judges and law officers. And under President Trump’s “America first” mandate, being tough on crime is inextricably tied to being tough on immigration.

“I think all roads in Trump's rhetoric and Sessions’ rhetoric sort of lead to immigration,” said Ames Grawert, an attorney in the left-leaning Brennan Center’s Justice Program who has been studying the administration’s ideology.  “I think that's going to make it even harder for people trying to advance criminal justice reform because that's bound up in in the president's mind, in the attorney general's mind, as an issue that they feel very, very passionately on -- restricting immigration of all sorts.” 

Here are nine ways Trump has transformed the landscape of criminal justice, just one tumultuous year into his presidency.

"How smart was Obama's 'Smart on Crime' initiative? Not very"

The title of this post is the headline of this new Fox News commentary authored by Lawrence Leiser (president of the National Association of Assistant United States Attorneys), Nathan Catura (president of the Federal Law Enforcement Officers Association), Bob Bushman (president of the National Narcotics Officers’ Associations’ Coalition), Al Regnery (chairman of the Law Enforcement Action Network), and Ron Hosko (president of the Law Enforcement Legal Defense Fund). The piece largely serves as a defense of the new Sessions charging/sentencing policies, and here is the bulk of what this impressive quintet have to say:

Department of Justice policies since the 1980s directed federal prosecutors to charge the most serious readily provable offense, unless justice required otherwise.  It’s undisputed that this charging practice, applied over the course of several Republican and Democratic administrations in recent decades, contributed to the reduction of violent crime by half between 1991 and 2014.

The Obama administration’s “Smart on Crime” initiative — touted by former Deputy Attorney General Sally Yates in a recent oped in the Washington Post titled “Making America scared again won’t make us safer” — undermined those hard-fought gains in public safety, and ushered in significant increases in violent crime.  In 2015, violent crime rose 5.6 percent — the greatest increase since 1991 — and included a shocking 10.8 percent increase in homicide rates.  And, although the final numbers for 2016 have not been published, the preliminary data suggests another substantial increase in the violent crime rate.

Among the policies championed by then Attorney General Eric Holder and Deputy Attorney General Yates was one that reversed long-standing charging policies and directed federal prosecutors to avoid minimum sentences against drug traffickers, as mandated by Congress, and instead pursue lesser charges.  Despite the well-known and deadly violence associated with drug cartels, gangs and their networks, the Holder-Yates policies directed federal prosecutors in certain cases to under-charge drug trafficking cases and avoid triggering statutory minimum penalties by not pressing charges on the actual amount of drugs that traffickers distributed, such as heroin, crack cocaine, and methamphetamine.

Changes in federal law enforcement policy can ripple through communities across the country and affect their safety.  “Smart on Crime” was part of a larger policy shift within the Obama administration from drug abstinence and accountability to drug acceptance and victimization.  Since its inception, correlative increases in drug abuse, overdose deaths and violent crime have had a devastating impact on every community, regardless of sex or demographics.  The reduced charging and sentencing of thousands of drug traffickers and their early release from prison — all hallmarks of the Holder-Yates policies of the Obama years — have begun to leave their devastating mark downstream on the safety of communities across the nation.  The surge in violent crime should not be surprising.  Drug trafficking by its very nature, is a violent crime.

Take the recent account of Michael Bell, a former federally-convicted methamphetamine dealer who, when facing new state charges in Tennessee for kidnapping and domestic assault, shot two sheriff’s deputies during a court proceeding.  Bell would have still been in federal prison had he not been released in 2015, three years earlier than scheduled, because of the across-the-board sentencing reductions prior administration leaders pushed the U.S. Sentencing Commission to impose.

Not surprisingly, those former officials continue to use the term “low level, non-violent offender” to promote a sanitized narrative of drug trafficking for profit.  Law enforcement professionals know that drug trafficking enterprises are comprised of integrated networks of street corner dealers, mid-level traffickers, distributors, producers and cartel leaders, whose collective efforts inherently rely on violence and have contributed to the deaths of over 50,000 Americans last year in drug overdoses alone.

Despite the evocative “second chance” narrative that stirs support among sentencing reformers, law enforcement professionals also know that the people who end up in federal prison work hard to get there.  Few offenders go to prison for their first offense, or even the second or third.  Many of the people who end up in federal prison have committed violent crimes, are members of drug trafficking and criminal organizations or simply have chosen to continue to disregard our laws. Because the majority of criminals admit their guilt, plea bargaining involves the dismissal or reduction of related charges, which greatly reduces the criminal histories and sentences of countless criminals. That means the numbers and types of crimes for which many of them are arrested, but never charged or convicted, are incalculable.  Criminals are committing thousands of crimes and violent acts against our citizens for which they are never held accountable.

Seeking justice and keeping the peace, it is federal law enforcement agencies and their state and local partners who will strive to enforce the laws that Congress enacted to protect our country and its citizens.  The surest way to preserve public safety is to honor the laws the people have passed and to enforce them to the fullest.

Trump Administration says it "strongly supports" latest Kate’s Law to increase penalties on illegal reentry

The Trump Administration yesterday released this (unusual?) "statement of administration policy" concerning a bill in the House of Representatives known as Kate's Law. Here is its full text:

The Administration strongly supports H.R. 3004, Kate’s Law. This bill commemorates Kate Steinle, the 32-year-old woman who was shot and killed two years ago in San Francisco as she walked along a pier with her father. The alleged shooter, Francisco Sanchez, was an illegal immigrant who had already been deported five times and had seven felony convictions.

H.R. 3004 would increase the penalties that may be imposed on criminal aliens convicted of illegal reentry, deterring reentry and keeping criminal aliens off our streets. The bill is consistent with the Administration's broader efforts to strengthen enforcement of our immigration laws and improve the security of our Nation's borders.

If H.R. 3004 were presented to the President in its current form, his advisors would recommend that he sign the bill into law. 

Notably, as this White House statement indicates and as detailed in this recent Cato commentary by David Bier titled "Kate’s Law: A Waste of Federal Resources," the latest version of Kate's Law (H.R. 3004, available here) does not include the five-year mandatory minimum prison term that has appeared in some prior versions of "Kate's Law."  Rather, the version that the Trump Administration now "strongly supports" serves to raise the maximum prison term for various illegal reentry offenders with particular criminal histories.  Consequently, I do not think this version of Kate's Law would really have too much of an impact on too many illegal reentry cases.  In turn, advocates of federal sentencing reform who are justifiably concerned about great more use and reliance on federal mandatory minimum sentencing provisions should be pleased to see a version of Kate's Law apparently gaining steam that does not include any new mandatory minimum sentencing provisions.

One last cheeky comment combined with a final observation about this statement from the Trump Administration.  I was tempted to title this post, "Unlike Obama, Prez Trump formally expresses strong support for federal sentencing reform."  I decided not to use such a post title because, though I think it would be in many ways accurate, the phrasing would have a "fake news" quality to it.  Modern conversations about and references to "federal sentencing reform" are generally about lowering possible prison terms, not increasing them.  Moreover, the Obama Administration in various ways at various times over the course of the two terms did express support for federal sentencing reform.

That all said, I was tempted to title this post, "Unlike Obama, Prez Trump formally expresses strong support for federal sentencing reform," because this statement on Kate's Law showcases the kind of express and aggressive support that a White House can (and I think should) put behind criminal justice reform legislation it supports.  Though I am certain Prez Obama and his team worked behind the scenes in various ways and gave various speeches to support various sentencing reform efforts, I do not recall the Obama team ever issuing any formal "statement of administration policy" like this one from the Trump team in support of any particular sentencing reform proposal in Congress.  Of particular note, especially if we consider parallel points in a first Term, Prez Obama to my knowledge never formally expressed support from the White House as President in 2009 for bills in Congress that sought to completely equalize crack and powder cocaine sentencing (though the Holder DOJ did testify in support of complete equalization in front of the then Democratically controlled Congress).

UPDATE: I just now have seen that Attorney General Jeff Sessions is also adding his voice in support of Kate's Law via this official statement which includes these passages:

Countless families and communities have suffered as a result of these ‘sanctuary’ policies, which undermine federal law by safeguarding criminal illegal aliens from federal law enforcement. One victim of these policies was Kate Steinle, who was killed by an illegal alien who had been deported five times and yet still walked the streets freely. Her death was preventable, and she would still be alive today if only the City of San Francisco had put the public’s safety first. How many more Americans must die before we put an end to this madness?

Kate’s Law and the No Sanctuary for Criminals Act would penalize criminal illegal aliens who break our laws and the jurisdictions that attempt to shield them from justice. These bills can restore sanity and common-sense to our system by ending abusive attempts to undermine federal law, and they can prevent future tragedies by empowering law enforcement.

Fascinating new OIG report examines implementation of former AG Holder's "Smart on Crime" initiative

I just came across this fascinating new report from the US Justice Department's Office of the Inspector General. The title of the lengthy report itself spotlights why the report is both fascinating and timely: "Review of the Department’s Implementation of Prosecution and Sentencing Reform Principles under the Smart on Crime Initiative." The full report runs 70 dense pages and even the executive summary is too lengthy and detailed to reproduce fully here. But these excerpts should whet the appetite of all sentencing nerds:

In August 2013, the U.S. Department of Justice (Department) and then Attorney General Eric H. Holder, Jr., announced the Smart on Crime initiative, which highlighted five principles to reform the federal criminal justice system. Smart on Crime encouraged federal prosecutors to focus on the most serious cases that implicate clear, substantial federal interests. In the first principle, the Department required, for the first time, the development of district-specific prosecution guidelines for determining when federal prosecutions should be brought, with the intent of focusing resources on fewer but the most significant cases. The second principle of Smart on Crime announced a change in Department charging policies so that certain defendants who prosecutors determined had committed low-level, non-violent drug offenses, and who had no ties to large-scale organizations, gangs, or cartels, generally would not be charged with offenses that imposed a mandatory minimum prison sentence.

The Office of the Inspector General (OIG) initiated this review to evaluate the Department’s implementation of the first two principles of Smart on Crime, as well as the impact of those changes to federal charging policies and practices. We assessed the 94 U.S. Attorney’s Office districts’ implementation and the impact of the Smart on Crime policy on not charging drug quantities implicating mandatory minimum sentences in circumstances where the defendants were low-level, non-violent offenders with limited criminal histories. We also assessed the implementation and impact of the policy that required prosecutors to consider certain factors before filing a recidivist enhancement that would increase the sentence of a drug defendant with a felony record pursuant to 21 U.S.C. § 851.

On May 10, 2017, the Attorney General issued a new charging and sentencing policy to all federal prosecutors that effectively rescinds the specific charging policies and practices outlined by Smart on Crime. We did not review this new policy as part of this review, which examined the implementation of the prosecution and sentencing reform principles under the Smart on Crime initiative....

We found that the Department made progress implementing the first two Smart on Crime principles, but we also identified several shortcomings in its efforts, including some failures to update national and local policies and guidelines and a lack of communication with local law enforcement partners regarding changes to these polices and guidelines in some instances.

We found that, while the Department issued policy memoranda and guidance to reflect its Smart on Crime policies, the U.S. Attorneys’ Manual (USAM), a primary guidance document for federal prosecutors, was not revised until January 2017, more than 3 years after Smart on Crime was launched, even though Department officials established a deadline of the end of 2014 to do so. Further, we determined that 74 of 94 districts had developed or updated their local policies to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions. Of the remaining 20 districts, some provided incomplete information to the OIG as to whether they had updated their prosecution guidelines or policy memoranda to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions in drug cases; in others, the district policies provided appeared to be inconsistent with the Smart on Crime policies in whole or in part; and some told us that they relied on the Holder memoranda for direction but did not develop or update any of their district policies or guidance documents to reflect the Smart on Crime policy changes.

We also found that 70 of 94 districts had incorporated Smart on Crime recidivist enhancement policy changes into their districts’ prosecution guidelines or policy memoranda. However, of the remaining 24 districts, 20 provided information to the OIG with respect to recidivist enhancements that appeared to be inconsistent with the 2013 Holder memoranda in whole or in part, or reported to the OIG that they followed the Holder memorandum but did not specifically revise their district policies to reflect Smart on Crime policy changes. The four remaining districts provided information that did not reflect the Smart on Crime policy changes on filing recidivist enhancements. Finally, we found that 10 districts failed to update their policies to reflect Smart on Crime policy changes with regard to both mandatory minimum charging decisions and recidivist enhancements....

We further found that the Department’s ability to measure the impact of the first two Smart on Crime principles is limited because it does not consistently collect data on charging decisions. For example, while the Legal Information Office Network System (LIONS), the U.S. Attorneys’ Offices’ case management system, allows federal prosecutors generally to track information about their cases, data fields relevant to Smart on Crime were not always present or updated.

Due to these limitations, the Department has relied on U.S. Sentencing Commission (USSC) data to assess the impact of the first two Smart on Crime principles. However, using USSC data to measure the impact of Smart on Crime’s charging policies is challenging because the USSC collects data from courts on sentencing decisions by judges and does not receive data from prosecutors about their charging decisions. In that regard, the USSC data does not allow assessments regarding charges that prosecutors could have brought but chose not to bring.

Nevertheless, based on our own analysis of USSC sentencing data over the period from 2010 through 2015, we found that sentencing outcomes in drug cases had shifted in a manner that was consistent with the first two principles of Smart on Crime. This was reflected by significantly fewer mandatory minimum sentences being imposed in drug cases nationwide, as well as a decrease in mandatory minimum sentences for those defendants who might otherwise have received such a sentence in the absence of the 2013 Holder memoranda....

We also found that some regions in the country diverged from these overall national trends. For example, while drug convictions decreased nationally by 19 percent, the decrease was far larger in the Southwest Border region. Further, the West, Pacific Northwest, and Hawaii and Island Territories regions actually showed increases in the number of drug convictions. As a result, we determined that national trends should not be interpreted in such a way as to conclude that Smart on Crime had a uniform impact across all the nation’s districts.

Intricate disputation of AG Sessions' recent defense of his new tougher federal charging/sentencing policy

As noted in this weekend post, the US Attorney General today took the the editorial pages of the Washington Post to make the case for his new tough charging and sentencing guidance for federal prosecutors via this opinion piece.  Today, the Washington Post has this new opinion piece by Radley Balko under the the headline "Here are all the ways Jeff Sessions is wrong about drug sentencing."  

The headline of the Balko piece serves as something of a summary of its contents, which involves an intricate "a line-by-line review" of all the key points made by AG Sessions in his piece.  Rather than try to capture all the particulars of the Balko piece here, I will just quote some of his closing commentary: 

Certainly, drug trafficking lowers the quality of life in a community.  Turf wars between drug gangs can make those communities more dangerous.  But again, Sessions himself concedes that prohibition itself creates these problems.  It’s pretty rare that liquor store employees erupt in gun fights over turf.  And if prohibition begets violence, the only way the solution to an increase in violence can be more prohibition is if the new prohibition wipes out drug trafficking entirely.  Otherwise, more prohibition usually just means more violence.  Knock out one major dealer, and new dealers will emerge and go to war to take his place.

We all know that rescinding the Holder memo isn’t going to end drug trafficking.  It isn’t going to affect the opioid crisis.  It isn’t going to move the needle either way on the violence in Chicago or Baltimore.  The most likely outcome is that a few hundred more nonviolent offenders spend a lot more time in federal prison than they otherwise would have.  I suppose it will also give Sessions the satisfaction of having rolled back one of the few substantive criminal-justice reforms of the Obama administration.  But the crime rate and the violence in America’s cities will rise or fall independent of the Holder memo.

The one thing we can all depend on — the one sure thing: Illicit drugs will continue to be available to pretty much anyone who wants to use them.

Prior recent related post:

AG Jeff Sessions makes the case for his new tougher federal charging/sentencing policy

Reviewing Prez Trump's judicial nomination success so far (and noting Prez Obama's early relative failings)

The New Republic has this notable and important article which highlights one big reason why notable and important members of the GOP are unlikely to defect from Team Trump anytime soon.  The full headline of the article accounts in part for my post title (with my emphasis added): "Trump’s Judicial Picks Are Keeping Republicans Happy — and Quiet: In a rare show of competency, he's tapped five times as many judges as Obama had at this point — and conservatives are delighted." Here are excerpts:

The most critical government document released on Wednesday — the one that’ll have the most wide-ranging impact in the future — was not James Comey’s prepared testimony for the Senate Intelligence Committee about his interactions with Donald Trump.  It was a simple press release, issued by the White House, announcing a “fourth wave” of judicial nominations since the Trump inauguration.  The eleven nominations included four district court judgeships, three for the U.S. Circuit Court of Appeals, three for the Court of Appeals for Veterans Claims, and one for the Court of Federal Claims.  Conservatives were uniformly delighted.

All told, Trump has nominated 22 judges to fill vacancies across the federal bench.  Thus far, only two — Supreme Court Justice Neil Gorsuch and Sixth Circuit Court Judge Amul Thapar — have been confirmed.  But the prospect of filling vacancies over time explains a lot about why congressional Republicans have stood by Trump, despite the erratic and stormy start to his presidency.  As long as Trump keeps funneling a steady supply of conservative jurists to the Senate, in a bid to dramatically reshape the federal courts, Republicans can go to bed happy that they’re fulfilling at least one major element of their political project.

Judicial nominations are the one area where the Trump administration is “running like a fine-tuned machine,” as the president boasted in February.  In fact, Trump’s team has far outstripped the efforts of his predecessor.  By this date eight years ago, President Obama had made just four judicial nominations: Supreme Court Justice Sonia Sotomayor, and three nominations for the Court of Appeals.

It is true that Trump was blessed — thanks mostly to a virtual freeze on judicial confirmations in the last two years of the Obama presidency — with more opportunities than Obama.  According to the American Bar Association, at the beginning of June 2009 there were 72 judicial vacancies; today there are 132.  But even given that, if you want to do this by percentages, President Trump, at this point in his presidency, has nominated replacements for 16.7 percent of all judicial vacancies; President Obama by this time had nominated replacements for just 5.6 percent.

What accounts for this rare outburst of competency from the Trump White House?  Certainly, judicial nominations are a lighter lift than legislation; thanks to changes to the Senate filibuster made by both parties, judges at all levels now need only 50 votes for passage, meaning Republicans can confirm them without Democratic support.  Those rules were still in place in 2009, and throughout Obama’s first term. He did have a filibuster-proof majority for brief periods, from July–August 2009 and September 2009–February 2010.  But the former president certainly had less margin for error....

In the judicial arena, at least, Trump is fulfilling the duty laid out by Grover Norquist when he said that conservatives just need a president “with enough working digits to handle a pen.” His unpopularity and the overarching Russia investigation aside, he’s signing off on the nominations that conservatives want. If Republicans in Congress manage to get their act together on legislation, he’ll sign those bills into law as well. The GOP won’t abandon him because he’s giving them what they want.

I have left out some of the political spin that this article adds to this discussion largely because I think it most worth stressing how relatively successful Prez Trump has been in this arena despite difficulties elsewhere especially in contrast to where the Obama Administration was at this point.  The particular irony, of course, is that Prez Trump was a businessman before getting into politics while Prez Obama was a lawyer and law professor.  But this point may provide an explanation rather than an irony: Prez Trump may be much more willing to accept and move forward with judicial recommendations from others than Prez Obama might have been.  (Also, the Trump team gave themselves a kind of running start by putting together a SCOTUS possibilities list during the 2016 campaign.)

The challenge of taking stock of impact of Holder Memos to gauge possible impact of new Sessions Memo

As reported and reviewed a bit here, Attorney General Jeff Sessions issued on Friday this important new charging and sentencing memorandum to direct the work of federal prosecutors.  As I stated in my first post about what will be known as the Sessions Memo, I think this is a very big deal in terms of both the substantive instructions and enforcement tone being set for federal prosecutors by the new Attorney General.

But just how big a deal is the Sessions Momo?  This is a critical question that really cannot be answered for years, and all the nuanced particulars involved here cannot be unpacked in a single blog post.  But I still thought it might be useful this morning to explain what I see as the challenge of figuring out how big a deal the Sessions Memo really is.  And part of that story relates, as the title of this post suggests, to the uncertainty that must still attend any assessment of the impact and import of different charging memos released by former Attorney General Eric Holder.

To begin, I think nearly everyone who follows modern crime and punishment generally accepts what John Pfaff has been stressing for a decade concerning the impact and import of prosecutors on the severity of our criminal justice system and the size of our prison populations.  At the risk of oversimplification, Pfaff has effectively highlighted that how prosecutors do their work matters so much practically to who goes into prison and for how long.  Consequently, new DOJ instructions about how federal prosecutors must do their work would seem to be a very big deal.  (Of course, Pfaff also stresses that the federal criminal justice system prosecutes and imprisons less than 10% of all those subject to prosecution throughout the US, so there is necessarily some ceiling on how much new guidance toward federal prosecutors will impact the nation as a whole.)

Because prosecutors matter a lot, federal prosecutorial policies matter a lot.  But just how much?  Notably, former Attorney General Eric Holder issued at least three significant guidance memos to federal prosecutions: a first one in May 2010 allowing more charging/sentencing discretion, a second one in Aug 2013 urging less use of certain mandatory minimums, and a third one in Sept 2014 cautioning again using certain charges to induce a plea in drug cases.  Arguably, the May 2010 general charging/sentencing memo was the most consequential and far-reaching of AG Holder's instructions to federal prosecutors.  But if you look at the basic data assembled in this NBC News discussion of the Sessions Memo, federal prosecutorial charging practices did not appear to change all that much until after AG Holder in Aug 2013 really delivered aggressively and consistently the message that DOJ was now taking a much different approach to drug cases and others.

In some subsequent posts, I hope to unpack more fully the data on federal prosecutorial practices in the Obama years under AG Holder's guidance.  For now, my goal was to highlight that we did not see a massive sea change in federal prosecutions or sentences as soon as AG Holder first announced new guidance in May 2010.  (I also must note for those eager to praise Prez Obama and AG Holder for their reform efforts, note how Holder was not so quick off the dole.  AG Sessions set forth his policy by May of his first year in office; AG Holder took until May of his second year in charge.)  Importantly, it seems it was really only when AG Holder fully doubled down, in speeches and policy directives and other actions, on charting a much different prosecutorial path starting in August 2013 that the numbers in the federal system saw some real significant movement.  I hope to discuss that movement and its meaning in coming posts as well.

So, after a lot of words, my message here is stay tuned:  stay tuned to this blog for some coming number crunching about the Holder legacy and Sessions course change, and also stay tuned to see how AG Sessions and others inside DOJ and other parts of the Trump Administration follow up on this initial memo.  What follows may prove to be much more important than what we have seen so far.

Prior recent related posts: 

• New buzz about AG Sessions considering new tougher charging guidance for federal prosecutor
• AG Sessions issues new tougher charging and sentencing guidelines to federal prosecutors
• Misreporting of the Sessions Memo and the challenge of nuance in prosecutorial charging policies
• Some notable first-cut reactions to the Sessions Memo
• Some more notable reactions to the Sessions Memo

"Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform"

The title of this post is the title of this notable new paper authored by Rachel Barkow and Mark Osler now available via SSRN. Here is the abstract:

One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress.  We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice.  In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting commonsense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety.

These examples and basic institutional design theory both point in the same direction: real criminal justice reform requires putting the right institutions in charge of criminal justice policymaking.  This Article offers institutional changes that would help future presidents make the system less punitive and reduce prison populations to achieve the broad transformation that Obama desired but did not attain.  A critical move is to place criminal justice policymaking in the hands of individuals who can advise the president independent of the institutional interests of prosecutors.

Taking a critical perspective on the work of former US Attorney for SDNY Preet Bharara

David Patton, executive director of the Federal Defenders of New York, penned this notable commentary for the Daily News concerning the work of fired SDNY US Attorney Preet Bharara.  The piece is headlined "An honest assessment of Preet Bharara's record: Harsh prosecutions put more African-Americans and Hispanics behind bars," and here are excerpts:

Last week the U.S. attorney for the Southern District of New York, Preet Bharara, was fired by President Trump, and the news media rushed to characterize his seven-year tenure.  Was he the "sheriff of Wall Street" for his insider trading prosecutions, a "showy pragmatist" for his affinity for television cameras, or the drainer of political swamps for his political corruption cases?  At least in part, he was surely all of those things.

But none of the tags do much to describe the actual work of his office and the overwhelming number of prosecutions it brings that have nothing to do with Wall Street or Albany.  Federal criminal cases rarely involve the rich or powerful.  Consistent with the rest of the country, 80% of federal defendants in the Southern District of New York are too poor to hire a lawyer.  Seventy percent are African-American or Hispanic.  The most commonly prosecuted offense type, by far, is drugs.

Last year, 45% of all federal criminal prosecutions in the Southern District were for drugs.  Two other leading offense types are firearms and immigration. The firearms cases are mostly gun possession cases transferred from state prosecutions in the Bronx.  They arise when NYPD officers search a car, apartment or person and claim they find a gun. Those arrested are plucked out of state court and brought to federal court for the express purpose of imposing lengthier sentences.  The immigration cases, so-called "illegal re-entry" cases, are prosecutions of people who were previously deported from the United States and came back.  Depending on their criminal history they typically face anywhere from two to seven years in prison before being removed from the United States again.

Bharara surely deserves credit for his efforts to clean up the financial industry and the political system.  But federal prosecutors should be judged primarily on how wisely, or not, they use the awesome power of their office to impose the many years of imprisonment on the thousands of people they choose to prosecute.  

And choose to prosecute they do. Unlike state and local prosecutors who largely react to police investigations and arrests, federal prosecutors have enormous discretion to decide who and what to prosecute.  Their jurisdictions are wide-ranging and overlapping, and many of the people they charge would otherwise be prosecuted in state court under less punitive laws.

Judging Bharara by those standards, his tenure was decidedly mixed.  His office greatly increased the prosecution of poor people of color using sprawling conspiracy and racketeering statutes to charge many low level drug dealers and addicts together with bigger players in the same indictments.  Some of the people charged were already serving time in state prisons for the same conduct.  Many others were caught up in "sting" operations in which the criminal conduct was initiated by agents and informants.

He also continued the programs begun by his predecessors in the Bush administration of prosecuting people for street crimes that were once considered the exclusive province of state courts.  Once again, those charges are brought almost entirely against poor people of color from the Bronx.  And across the board in drug and immigration cases, his office too often sought unnecessarily severe sentences....

When we evaluate the performance of top prosecutors, we should pay attention to whether they advance the goals of maintaining public safety while also reducing unnecessary and unequal terms of punishment.  And we should spend a lot less time concerned about how they handle the small sliver of cases that make the headlines.

Interesting commentary on Prez Obama's Harvard Law Review article and his criminal justice legacy

As noted in this prior post, last month the Harvard Law Review published this lengthy article authored by Barack Obama titled "The President’s Role in Advancing Criminal Justice Reform."  Today I saw at the interesting new site Carceral Complex this pair of follow-up commentaries:

President Obama’s Criminal Justice Legacy: What Went Wrong by Dustin Palmer

Commentary on “President Obama’s Criminal Justice Legacy: What Went Wrong” by Brett Diehl

The themes of the potent and extended first piece by Dustin Palmer are summarized toward its conclusion:

Law reviews are an excellent place for professorial musings, but the weight of the law (and its failures) is borne by the people. After combing through the legalese, it is important to evaluate actions, not words. Obama’s rhetoric fits comfortably within the narrative of what supporters might have hoped would happen when a young former community organizer and constitutional law professor was elected president. The article itself, and its length, surely attempts to function as a “final word” on his justice reform efforts. Anecdotes about taking clemency participants to lunch or visiting a federal prison paint images of the compassionate, hopeful campaigner.

His actual record – on fundamental, defining aspects of the justice system – is much to the contrary. Failures to reform the War on Drugs, immigration abuse, police militarization, civil asset forfeiture, and the surveillance state left the criminal justice system not “smarter, fairer, and more effective” but undeniably worse. They are a national tragedy, and this failure will define his legacy.

The second shorter piece by Brett Diehl is somewhat less harsh, but not really less damning:

One is left with a sense that the HLR article may represent more of an attempt to construct an individual legacy than to empower actual reform. It was clear by January 2017 that many of the gains in rethinking criminal justice policy of the previous eight years would be rolled back under Trump and his Attorney General Jefferson Beauregard Sessions. Yet Obama’s piece ends, like most of his speeches, with an optimistic declaration that, “I remain hopeful that together, we are moving in the right direction.” Ever an optimist, not once does he mention the incoming administration.

Yes, Obama’s administration made important gains in specific geographic and policy areas. But overall, it failed to shift the paradigm around criminal justice in our nation. In writing to the audience of the HLR, this failure was perpetuated. While it may reach the occasional lay reader, the piece’s formatting, length, and density surely scared off many potential readers (myself included). In this, Obama’s presidency proves to be more words over actions: rhetorical power, fit for us to remember fondly, without bold progress.

After reviewing tens of thousands of requests, Obama Administration reportedly finds a few hundred more prisoners worthy of clemency

Anyone hoping Prez Obama would go out of office this week with a huge clemency bang will likely be disappointed to see this new Washington Post report headlined "Obama to commute hundreds of federal drug sentences in final grants of clemency."  I have been assuming Obama would make news with a few hundred more grants, but I know some advocates were hoping there would be perhaps thousands of commutations as Obama heads for the Oval Office exit.  Here instead is what we can expect after seemingly a whole lot of work by a whole lot of lawyers and DOJ officials:

Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to President Obama, who is set to grant hundreds more commutations to nonviolent drug offenders during his final days in office.

“Everyone has killed themselves here to get the final recommendations to the president,” Deputy Attorney General Sally Q. Yates said in an interview. “We were in overdrive. We were determined to live up to our commitment. It was 24-7 over the Christmas break.” U.S. Pardon Attorney Robert A. Zauzmer has not taken a day off since Yates brought him on in February 2016 to sift through the backlog of thousands of petitions. From her home in Atlanta, Yates said she reviewed hundreds of petitions during the holidays.

As President-elect Donald Trump prepares to take office, Justice officials worry that his administration will dismantle Obama’s clemency initiative, which has resulted in the early release of 1,176 drug offenders who were sentenced under the severe mandatory minimum laws passed in the 1980s and 1990s during the nation’s “war on drugs.” More than 400 were serving life sentences. Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. Several people close to the process said it will be several hundred.

Those officials also fear that the next attorney general may undo new criminal justice policies. Then-Attorney General Eric H. Holder Jr. put in place a policy three years ago to reserve the most severe drug-offense penalties for high-level or violent drug traffickers — and no longer charge low-level, nonviolent drug offenders with crimes that impose severe mandatory minimum sentences. Justice Department data indicate that prosecutors are now focusing on more-serious drug cases, and there have been fewer charges that carry mandatory sentences.

Neither Trump nor his attorney general-nominee, Sen. Jeff Sessions (R-Ala.), has said what actions might be taken on drug charging policy or clemency, but during his campaign, Trump criticized Obama’s initiative to grant commutations. “Some of these people are bad dudes,” he said. “And these are people who are out, they’re walking the streets. Sleep tight, folks.”...

At several points during the past two years, it appeared that Obama’s clemency initiative might have been derailed, partly by a lack of resources but also by a cumbersome review process. After Holder and then-Deputy Attorney General James Cole began the effort in the spring of 2014, thousands of inmates applied. To help them with their petitions, outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers.

About 4,000 volunteer lawyers signed up to help in what has become one of the largest pro bono efforts in the history of the legal profession in the United States. Once the lawyers submitted the petitions, the U.S. pardon attorney made recommendations to the deputy attorney general, who reviewed the cases and sent them to the White House counsel, who also reviewed them before choosing which ones went to Obama.

When Yates arrived at Justice in the spring of 2015, the clemency program was overwhelmed and bogged down. Advocates criticized the inefficient process and urged the Obama administration to pick up the pace for the inmates waiting for relief from unfair sentences. “There wasn’t an apparatus set up,” Yates said. “When I arrived, they were doing the best they could . . . but we didn’t really have a playbook.”

Early last year, more than 9,000 clemency petitions were pending, and the pardon attorney at the time was so frustrated that she quit.  Yates brought on Zauzmer, a longtime federal prosecutor, who prioritized applications so that Justice lawyers could focus on inmates who met the criteria: Inmates had to have served at least 10 years; had no significant criminal history; no connection to gangs, cartels or organized crime; and probably would have received a “substantially lower sentence” if convicted today.

“These are big decisions that you’re making,” Yates said, alluding to the public-safety risks and the need to provide a “sophisticated analysis” to the president. “If it’s to let someone out of prison early, earlier than what their original sentence was, you’ve got to be careful about those decisions,” she said. “There’s lots of people whose current offense or conviction is a nonviolent drug offense . . . but you have to look at their past as well and at their criminal history.  You have to look at their conduct [in prison].”

Not all inmates who have been granted clemency will be released immediately or even in a number of months. Last summer, the Obama administration began granting clemency to some inmates by reducing their sentences; in some cases, they will remain in prison for years.  At the end of August, Yates announced that she would review and give Obama a recommendation on every petition from a drug offender that was still in the department’s possession at that time — about 6,195 petitions.  She did that, and included several hundred petitions received through Sept. 15, after her cutoff date.  She also reviewed petitions that came in as late as Nov. 30 from drug offenders serving life sentences. By last Friday, the final number of petitions reviewed was 16,776. “Sally deserves a lot of credit,” Holder said in an interview. “She set this goal of looking at every drug-clemency petition, and they accomplished that.”

I want to give DAG Yates and Pardon Attorney Zauzmer lots and lots of credit for all their efforts, and I will also give some credit to Prez Obama for ultimately making clemency an 11th hour priority.  But given that Prez Obama set of modern record for fewest clemencies during his first term in office, and especially because he leaves in place the same troublesome clemency process that has contributed to problems in the past, I will still look at Obama's tenure largely as an opportunity missed.  

Great political and practical "state of reform" reviews via Jacobin

The magazine Jacobin has recently run two effective pieces by two effective writers about the politics and practicalities of modern sentencing reform efforts. Here are links to the lengthy pieces, both of which I recommend in full, with their introductions:

"Conservatives Against Incarceration?: Fiscal conservatives were never going to bring down the carceral state. A broader fight against social inequality is needed." by Marie Gottschalk

Many are mourning the death of comprehensive criminal justice reform at the federal level in the wake of the election of Donald Trump, who unabashedly campaigned as the law-and-order candidate. They fear we may be at the beginning of the end of the “smart-on-crime” era, in which historic adversaries across the political spectrum joined forces to reverse the punitive policies and politics that have turned the United States into the world’s leading warden.

Some have sought solace in the belief that Trump’s victory will have a limited impact because most people are apprehended, tried, and sentenced subject to state and local statutes and authorities, not federal ones, and that 90 percent of the more than 2 million people incarcerated today in the United States are serving their time in state prisons and county jails, not federal penitentiaries. They view Trump as a political meteorite that may have blown up the elite bipartisan reform coalition in Washington as it blazed through an uncharted political universe but left promising reform coalitions at the state and local levels largely intact.

This conventional postmortem paradoxically overestimates Trump’s responsibility for imperiling criminal justice reform at the national level while underestimating his likely impact on state and local reform efforts.

Trump’s outsized personality and spectacular victory obscure the reality that the smart-on-crime approach had severe limitations and weaknesses that have been hiding in plain sight for years. The politics that gave birth to this strange bedfellows coalition engineered by Right on Crime — a group of brand-name conservatives and libertarians that included Newt Gingrich, Grover Norquist, and Charles and David Koch — helps explain both its limited accomplishments and the triumph of Trumpism.

"America’s Durable Monstrosity: New figures show that the US prison population has dropped. But mass incarceration remains firmly intact." by Daniel Denvir

A ray of sunshine recently poked through the otherwise gloomy holiday headlines: “US prison population falling as crime rates stay low.”  The prison population has indeed fallen, and crime rates are still down.  But while the crime that politicians exploited to create mass incarceration has plummeted, the number of prisoners locked up in the name of public safety has only budged.

Mass incarceration, in short, remains a durable monstrosity.

As of 2015, an estimated 2,173,800 Americans were behind bars — 1,526,800 in prison and 728,200 in jails — according to recently released data from the Bureau of Justice Statistics.  That’s 16,400 fewer people in jail and 35,500 fewer prisoners than in 2014 — a 2.3 percent decline and, for prisoners, the largest single-year drop since 1978. The 2015 figure also marks the lowest overall prison population since 2005. Crime rates have plunged, falling “to levels not seen since the late 1960s.”

But even as the US becomes a much safer country, it still incarcerates its citizens at much higher rates than most any other on earth.  To put things in perspective, our prison archipelago today confines a population similar in size to the city of Houston or the borough of Queens.

At the dawn of mass incarceration in 1980, the US’s already-quite-large prison population was estimated at 329,821. To return to that number, the governments would have to replicate the recent 35,500-prisoner reduction for roughly thirty-four years in a row.  That’s a very long time to wait for the poor communities — particularly but not exclusively brown and black ones — that mass incarceration devastates.

The criminal justice reform movement has stopped losing. But it hasn’t really started to win.

"The Obama Legacy: Chipping Away at Mass Incarceration" ... but ...

The quoted portion of the title of this post is the headline of this notable new commentary authored by Marc Mauer.  Perhaps appropriately given the "Obama Legacy" label, the piece is focused mostly on the federal sentencing system.  And, in my view inappropriately, the piece gives Prez Obama a little too much credit for some of what I consider to be his "day late and dollar short" work in this arena.  With that set up, here are excerpts (with two lines emphasized that really rankles me, as I will explain after the excerpt):

As President Obama prepares to leave office, the United States still holds the dubious honor of having the highest incarceration rate in the world, with 2.2 million people behind bars. In order to assess his impact on the criminal justice system, it’s necessary to examine the policy shifts that got us here in the first place.

In 1980 there were 24,000 people in the federal prison system, about 25% of whom were serving time for a drug offense. By the time Obama was elected in 2008, that number had ballooned to 201,000 people, nearly half of whom were locked up for a drug offense.

There are two key reasons for the population explosion — both rooted in the war on drugs.  First, President Reagan encouraged federal law enforcement agencies and prosecutors to emphasize drug arrests. Second, Congress adopted mandatory sentencing policies — frequently applied to drug offenses — that established a “one size fits all” approach to sentencing. Federal judges were obligated to impose prison terms of 5, 10, 20 years — or even life — largely based on the quantity of drugs involved. They were not permitted to take any individual factors, such as histories of abuse or parenting responsibilities, into account to mitigate those sentences. The racial disparities from these sentencing policies were particularly extreme.

The most egregious of these policies were tied to crack cocaine offenses.  Someone possessing as little as five grams of the drug (about the weight of a sugar packet) would face a minimum of five years in prison.  That threshold was significantly harsher than the mandatory penalty for powder cocaine, which required a sale of 500 grams of the drug (a little over a pound) to receive the same penalty.  Since 80% of crack cocaine prosecutions were brought against African Americans, the racial disparities from these sentencing policies were particularly extreme.

Momentum for reforming the crack cocaine mandatory minimum laws predated the Obama administration, and had growing bipartisan support when the President took office.  The President signed the Fair Sentencing Act into law in 2010, reducing sentencing severity in a substantial number of crack cases.  Then in 2013, Attorney General Eric Holder issued a memorandum to federal prosecutors calling on them to avoid seeking mandatory prison terms in low-level drug cases, which has cut the number of cases with such charges by 25%.

While the changes in sentencing laws have helped to reduce the federal prison population, the highest profile of Obama’s reforms is his use of executive clemency to reduce excessively harsh drug sentences.  That is a story of both politics and policy.  During Obama’s first term he used his clemency power far less than his predecessors — a pattern that was sharply criticized by many reform groups and editorial  boards. But after launching a “clemency initiative” in 2014, the President has commuted the drug sentences of more than 1,100 individuals (with promises of substantially more by the time he leaves office).  Notably, in about a third of these cases, the individuals had been sentenced to life without parole due to mandatory sentencing policies....

Perhaps the most significant aspect of President Obama’s work in regard to criminal justice reform has been his role in changing the way we talk about the issue. After a disappointing first term in which these issues received only modest attention, Obama’s last years in office framed criminal justice reform as a top priority. Among a series of high-profile events during his second term was the President’s address on mass incarceration at the NAACP national convention, at which he concluded that “mass incarceration makes our country worse off.”

Mass incarceration did not come about because there is a shortage of ideas for better approaches to public safety — it was the result of a toxic political environment where legislators favored political soundbites over evidence. By using the bully pulpit to frame justice reform as a major issue, Obama provided some coverage for mainstream legislators to support sound policy options.

It is difficult to be optimistic that the incoming administration will look favorably on criminal justice reform.  Leading Republicans, such as House Speaker Paul Ryan, may be persuasive in making the conservative argument for reform.  But President-elect Trump’s “tough on crime” rhetoric, which paints many incarcerated people as “bad dudes,” suggests progress at the federal level will be a challenge.  Realistically, opportunities for justice reform are more likely at the state level. Many local officials are already convinced of the need for sentencing reform and reentry initiatives, and they may be less influenced by the political climate in Washington. If so, such changes at the local level may ultimately gain traction in a Trump White House as well.

1.  The first line emphasized above makes me extra crazy because it falsely portrays Prez Obama as a bold leader who used the bully pulpit in order to provide "coverage for mainstream legislators to support sound policy options."  This could not be more backwards: Prez Obama was a timid and disappointing follower here, as his July 2015 NAACP speech about the need for reform came only AFTER "mainstream" politicians ranging from Rand Paul to Corey Booker, from Ted Cruz to Patrick Leahy, from Rick Perry to Deval Patrick, from Bobby Jindal to Jim Webb, from Chuck Grassley to Dick Durbin, from Jim Sensenbrenner to Bobby Scott, from Raul Labrador to Elijah Cummings, from Judy Chu to Mia Love, from Newt Gingrich to even Chris Christie had all spoken in some significant ways about the need for significant criminal justice reform and especially sentencing reform (and I am sure I am leaving out many others).

2.  The second line emphasized above makes me crazy for more "inside baseball" reasons: given that this commentary makes much of the "egregious" crack/powder cocaine sentencing policies that were only partially fixed by the FSA, the commentary ought to take a moment to note that Prez-Elect Trump has nominated as Attorney General the most prominent and vocal GOP Senator who was complaining loudly about the 100-1 crack/powder laws before doing so was popular or comment.  As noted in this post and recently reported by the Wall Street Journal, " Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime."  

I really respect so much of the work Marc Mauer does in his commentary and through The Sentencing Project, but these troublesome statements reflect what I am seeing as the worst tendencies of the "commentariat class" since the election.  Specifically, even though Prez Obama's record on sentencing reform is relatively unimpressive (especially as compared to his record on lots of other issues), many on the left seem eager to assert that Prez Obama really achieved a lot in this arena and then go on to gnash teeth about reform momentum being halted now that there is a new sheriff in town.  This narrative entirely misses, in my opinion, not only (a) the reality that Prez Obama himself retarded reform momentum in many ways (e.g., by getting such a late start on clemency, by resisting mens rea reforms that could have been included in bipartisan sentencing reform bills), but also (b) the (significant?) possibility that many GOP leaders in Congress who have actively promoted and worked hard on federal sentencing reform bills will keep up that work in the years to come.

Prez Obama grants another large bunch of commutations as well as a big batch of pardons

Big pre-holiday news on the federal clemency front is reported in this new White House blog posting: "President Obama Grants 153 Commutations and 78 Pardons to Individuals Deserving of a Second Chance." Here are the details as reported by White House Counsel Neil Eggleston:

Today, President Obama granted clemency to 231 deserving individuals — the most individual acts of clemency granted in a single day by any president in this nation’s history. With today’s 153 commutations, the President has now commuted the sentences of 1,176 individuals, including 395 life sentences. The President also granted pardons to 78 individuals, bringing his total number of pardons to 148. Today’s acts of clemency — and the mercy the President has shown his 1,324 clemency recipients — exemplify his belief that America is a nation of second chances.

The 231 individuals granted clemency today have all demonstrated that they are ready to make use — or have already made use — of a second chance. While each clemency recipient’s story is unique, the common thread of rehabilitation underlies all of them. For the pardon recipient, it is the story of an individual who has led a productive and law-abiding post-conviction life, including by contributing to the community in a meaningful way. For the commutation recipient, it is the story of an individual who has made the most of his or her time in prison, by participating in educational courses, vocational training, and drug treatment. These are the stories that demonstrate the successes that can be achieved — by both individuals and society — in a nation of second chances.

Today’s grants signify the President’s continued commitment to exercising his clemency authority through the remainder of his time in office. In 2016 alone, the President has granted clemency to more than 1,000 deserving individuals. The President continues to review clemency applications on an individualized basis to determine whether a particular applicant has demonstrated a readiness to make use of his or her second chance, and I expect that the President will issue more grants of both commutations and pardons before he leaves office. The mercy that the President has shown his 1,324 clemency recipients is remarkable, but we must remember that clemency is a tool of last resort and that only Congress can achieve the broader reforms needed to ensure over the long run that our criminal justice system operates more fairly and effectively in the service of public safety.

This news is sure to bring holiday cheer to all those advocating for Prez Obama to go big on this front before he heads home.  These grants now have me thinking Obama may end his time in office with more than 2000 clemency grants.

Some recent (post-Election Day) posts on Prez Obama and clemency:

• How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
• "Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
• Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
• Terrific content and context for Prez Obama's clemency work at Pardon Power
• Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
• At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push
• Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home
• Anyone eager to predict how many last-month clemencies Prez Obama will grant? 

"Why Congress May Bring Criminal Justice Reform Back to Life"

The title of this post is the headline of this effective new Marshall Project analysis by Bill Keller, which carries the subheadline " Four reasons a bipartisan bill has a better chance than you think." Here are excerpts:

It’s no wonder criminal-justice reformers woke up from Election Day 2016 with a sense of existential gloom. Given candidate Donald J. Trump’s law-and-order bluster, his dystopian portrayal of rising crime and an ostensible war on the police, and a posse of advisers who think the main problem with incarceration is that we don’t do enough of it, the idea that justice reformers have anything to look forward to is at best counterintuitive.

It is reasonable to expect that President Trump and his choice for attorney general, Jeff Sessions, will dismantle at least some of what their predecessors leave behind. Based on what they have said, the Trump-Sessions Justice Department may well roll back federal oversight of troubled police forces, escalate the war on drugs, enlarge the share of the corrections business that goes to private companies, accelerate deportations of undocumented immigrants and use the threat of financial sanctions to challenge so-called sanctuary cities....

But those inclined to look for silver linings may find one on Capitol Hill.... I can think of four reasons the prospects of federal reform are actually better in 2017.

First, it is not an election year. Nothing makes members of Congress squirm like the specter of attack ads portraying them as coddlers of criminals. There is reason to think those Willie Horton-style gotchas have lost some of their potency, but the prospect tends to make members of Congress more risk-averse in even-numbered years. And the lobbying alliance in favor of reform has grown and diversified and offers supportive candidates some political cover. It now includes significant numbers of police executives and prosecutors, who say our tendency to over-criminalize and over-punish wastes money and human potential without making us safer.

Second, President Obama will be gone. Some of the resistance to this year’s sentencing bill was a reluctance to give the president a parting victory. His heartfelt embrace of criminal-justice reform in the final years of his presidency was — through no fault of his own — the kiss of death in a hostile Congress.

Third, at least one of the hard-core Senate opponents of sentencing reform will no longer be there. That would be Jeff Sessions, the Republican senator from Alabama. True, as attorney general he will be in a position to encourage a presidential veto. But he will not be joining the obstructionists who this year never let a bill come to a vote at all. The chairman of the Senate Judiciary Committee, Charles Grassley, said in October that if his party leadership had brought the bill to the floor, it would have garnered 65 to 70 votes — enough to override a veto.

And fourth, the Republican leadership will be looking very hard for bipartisan successes to demonstrate that Washington is no longer in a state of ideological paralysis. On the short list of things Congress could do to reassure voters that government is back in business, criminal justice ranks near the top. The subject attracts libertarians who have come to see the machinery of criminal justice as another example of overbearing government, conservative Christians who see the criminal justice morass as dehumanizing, fiscal conservatives who have noticed that incarceration is expensive, and policy wonks who see a “corrections” system that largely fails to correct.

Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home

This new Business Insider article, headlined "Prisoners set free by President Obama are urging him to expand his clemency program before he leaves office," reports on the latest interesting pitch to Prez Obama concerning his clemency work.  Here are the basics:

The day Ramona Brant walked out of prison after serving 21 years of what was supposed to be a life sentence, she felt an overwhelming mixture of emotions — elation and gratitude for her freedom, and sadness for the inmates she was leaving behind. Many of them had stories like hers. They had in one way or another gotten involved in selling drugs, often through boyfriends or husbands who would eventually testify against them in conspiracy trials. L

ike Brant, many were there to serve decades, or even life sentences without the possibility of parole. “I was not comfortable being free knowing that there were so many people who weren’t free to experience the same opportunities that I was experiencing,” Brant told Business Insider. “I’m not saying I want to go back to prison — what I’m saying is my heart is still with my sisters that I left behind, and my brothers.”

Brant was granted a sentence commutation by President Obama last February, as part of an unprecedented clemency initiative that has now reduced more than 1,000 federal inmates’ sentences. She is one of more than 40 clemency recipients who signed an open letter sent to the president on Monday pleading for mercy for nonviolent drug offenders serving lengthy sentences who have demonstrated clear conduct in prison. “We ask for your immediate intervention for thousands more prisoners who will continue to suffer needlessly unless a broader clemency plan is implemented,” the letter said.

“We have remained largely silent in appreciation of your compassion to many suffering under draconian sentencing laws passed during the crack hysteria of the late 1980s and 1990s. But with only six weeks of your presidency left, we must speak out.”

The letter, also signed by dozens of clemency advocates and former inmates, recommends the president adopt a broad amnesty program in place of the current case-by-case review of inmates’ petitions. It suggests that all nonviolent drug offenders with clear conduct have their sentences reduced to five, 10, or 15 years for first-, second-, and third-time offenders, respectively. It also specifically asks that clemency be granted to female inmates, who the letter argues are more likely than men to be serving lengthy sentences because of drugs their partners or spouses sold, and who make up less than 10% of the inmates to whom Obama has granted clemency....

The Office of the Pardon Attorney, which reviews clemency applications and recommends them to the president, the White House, and the Department of Justice did not immediately respond to Business Insider’s requests for comment on the letter....

Although Deputy Attorney General Sally Yates has previously said “every single drug petition” received before Aug. 31 will be reviewed by the Obama administration, activists and clemency advocates have been urging the president for months to quicken the pace of approvals.

Last month’s presidential election, too, has only added to the pressure. President-elect Donald Trump, who has previously called the inmates released by Obama “bad dudes,” has not expressed interest in continuing his clemency initiative. Nor has Jeff Sessions, Trump’s nominee for Attorney General, who supports harsh drug laws and mandatory minimum sentencing.

It is estimated that at least 2,000 federal prisoners serving nonviolent drug offenses were eligible for sentence reductions under the requirements laid out under Obama’s program, which stipulate that inmates have served at least 10 years of their sentences. Even more could be eligible should the Obama administration consider inmates who have served less than a decade, as it has already done in some cases.

Some recent (post-Election Day) posts on Prez Obama and clemency:

• How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
• "Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
• Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
• Terrific content and context for Prez Obama's clemency work at Pardon Power
• Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
• At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push

US Sentencing Commission proposes many guideline amendments as many USSC members complete service

This extended press release from the US Sentencing Commission reports on the significant activities of the USSC at its public meeting yesterday.  The press release also explains a bit why these activities took place at this time and why the USSC is on the verge of a big transition.  Here are highlights (with links from the original):

Today the United States Sentencing Commission unanimously voted to publish proposed amendments to the federal sentencing guidelines.

The public meeting afforded the current commissioners the opportunity to work together for the last time, as the terms of Chief Judge Patti B. Saris (Chair of the Commission), Judge Charles R. Breyer (Vice Chair), and Commissioner Dabney L. Friedrich will expire at the end of the current congressional session.  Praising her colleagues, Chair Saris remarked, “Commissioner Friedrich and Judge Breyer demonstrated a remarkable commitment to improving federal sentencing policy and brought a wealth of knowledge and experience to the Commission.  I am deeply honored to have worked with them, and all of the commissioners, these past six years to make the guidelines more efficient, effective, and just. The proposed amendments were evidence-based, data-driven, and adopted in a collegial and bipartisan fashion. I thank all the commissioners and staff for their hard work. I am confident that the future Commission and its staff will remain dedicated to this serious and important mission” (full remarks).

In her final statement as Chair, Chief Judge Saris stated, “Next year marks the 30th anniversary of the federal sentencing guidelines. So much bipartisan progress has been made in criminal justice reform. I am hopeful that the 115th Congress will pass meaningful legislation, adopting the Commission’s unanimous recommendations to reduce the statutory mandatory minimum penalties for drug trafficking and to expand the so-called ‘safety valve,’ the mechanism to reduce sentences for non-violent, low level offenders.” The Commission will announce a new Acting Chair at the conclusion of this session of Congress.

The Commission proposed an amendment that could increase the use of alternatives to incarceration for first-time offenders. The Commission remains committed to its work to make the guidelines and federal sentencing fairer and more proportionate while maintaining an ongoing commitment to public safety.  In 2010, the Bureau of Prisons inmate population was 37% over capacity, and now it is around 15%.  Consistent with the ongoing statutory mandate to address overcrowding, the proposed amendment would reduce penalties for first-time offenders and increase the availability of alternatives to incarceration.  In a 2015 study, the Commission found that alternative sentences were imposed in only 13% of federal cases.  In a more recent research report, the Commission further found that offenders with zero criminal history points had the lowest rates of recidivism.

The commissioners also agreed to conduct a two-year study of synthetic drugs, which may result in establishing drug equivalencies for controlled substances not yet referenced at the drug quantity table in §2D1.1. To contribute to the study, commissioners voted to seek comment on offenses involving synthetic cannabinoids, synthetic cathinones (more commonly known as bath salts), and MDMA, also known as Ecstasy.

In a May 2016 report, the Commission’s Tribal Issues Advisory Group (TIAG) identified the treatment of youthful offenders as an area needing further examination. As a result of this study and the Commission’s subsequent research, commissioners voted unanimously to publish a proposed amendment that would exclude juvenile sentences from being considered in the calculation of the defendant’s criminal history score.

Another proposed amendment responds to the Bipartisan Budget Act of 2015. The Commission is considering a proposed amendment that reflects Congress’s changes to the Social Security Act by increasing penalties for social security fraud. In putting forth this proposed amendment, Chair Saris stated, “I would like to acknowledge the important years of work, as well as the continued oversight, led by the House Judiciary Committee, the Senate Committee on Finance and the House Ways and Means Committee to ensure aggressive implementation of these new penalties relating to Social Security fraud.” Other changes relate to the treatment of revocation sentences under §4A1.2(k) and a possible departure provision at §4A1.3 based on an offender’s criminal history category.

Over the past six years, the current Commission took a number of actions to address unwarranted sentencing disparities and to reduce federal prison costs and populations. The Commission reduced disparities in federal cocaine sentencing policy by giving retroactive effect to the guideline changes resulting from the Fair Sentencing Act of 2010, resulting in reduced sentences for 7,748 federal offenders. In 2014 the Commission changed the offense levels associated with the drug quantity table (often referred to as the “Drugs Minus Two” amendment)—as a result, 28,544 prison sentences were reduced, following the review of each case by a federal judge. These actions have contributed to a significant decrease in the federal prison population, leaving more funding for law enforcement, crime prevention and reentry programming, and victim services....

By statute, commissioners are appointed by the President and confirmed by the Senate, and serve six-year terms. At least three of the commissioners must be federal judges and no more than four may belong to the same political party. Other Commissioners include Circuit Judge William H. Pryor, Jr., Commissioner Rachel E. Barkow, Commissioner J. Patricia Wilson Smoot (ex-officio, U.S. Parole Commission), and Commissioner Michelle Morales (ex-officio, U.S. Department of Justice). The Commission must have at least four voting Commissioners for a quorum.

At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push

As regular readers may recall, and as I cannot help but highlight these days, I was aggressively calling for Prez Obama to make significant use of his clemency power from literally his first day in office.  This January 20, 2009 post was titled "Is it too early to start demanding President Obama use his clemency power?" and in 2010 I authored this article in the New England Journal on Criminal and Civil Confinement under the title "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."

I suppose I should be happy that, with Prez Obama on his way out the door, a lot of other folks are now finally joining this call for action with some urgency.  This New York Times editorial, headlined "President Obama’s Last Chance to Show Mercy," is today's example of the clemency chorus now growing. Here are excerpts:

The Constitution gives presidents nearly unlimited authority to grant pardons and commute sentences — decisions that no future administration can reverse. Unfortunately, for most of his presidency, Barack Obama treated mercy as an afterthought. Even as thousands of men and women endured outrageously long sentences for low-level, nonviolent drug offenses as a result of the nation’s misguided drug war, Mr. Obama granted relief to only a tiny handful.

In the last two years, however, Mr. Obama has changed course. In 2014 he directed the Justice Department to systematically review cases of people serving out sentences that would be far shorter had they been convicted under new, more lenient sentencing laws.

While that clemency process has moved far too slowly — beset by both administrative obstacles and bureaucratic resistance — grants have been accelerating throughout 2016. Mr. Obama has now shortened or ended the sentences of more than 1,000 prisoners, and he will most likely be the first president since Lyndon Johnson to leave office with a smaller federal prison population than he inherited.

There are thousands more people deserving of release, but their prospects under the next administration don’t look good. President-elect Donald Trump ran on a “law and order” platform that sounded a lot like the punitive approach that led to exploding prison populations in the first place. His choice for attorney general, Senator Jeff Sessions of Alabama, has fiercely opposed criminal sentencing reform and called Mr. Obama’s grants of clemency an abuse of power. In other words, for many federal inmates, their last hope lies in Mr. Obama’s hands.

Up to now, the president has reviewed clemency requests on a case-by-case basis. With only weeks left in office, Mr. Obama should consider a bolder approach: blanket commutations for those inmates still serving time under an old law that punished possession or sale of crack cocaine far more harshly than powder cocaine — a meaningless distinction that sent disproportionate numbers of young black and Latino men to prison for decades....

The idea of blanket commutations is being pushed by a coalition of criminal-justice reform advocates, including former judges and prosecutors, who urged the president in a letter last week to use his clemency power aggressively while he still can.  The group called for the release of thousands more nonviolent offenders in low-risk categories, including elderly inmates, who are the least likely of all to commit new crimes, and those with convictions for drugs other than crack.  The coalition argues that it is possible to make these grants in the short time remaining, if the administration is committed to getting it done.

Mr. Trump may well dismantle a lot of Mr. Obama’s legacy, but he can’t touch grants of clemency.  Mr. Obama has taken important steps toward unwinding the decades-long imprisonment binge.  With much of that progress now at risk, he has only a few weeks left to ensure a measure of justice and mercy for thousands of people.

Lame (duck) Obama Administration announces series of "sweeping" reforms at the Federal Bureau of Prisons

I suppose the cliche phrase "better late than never" should keep me calm when I see notable news these days from the Obama Administration concerning criminal justice reform.  But this DOJ press release from yesterday, which carries the heading "Justice Department Announces Reforms at Bureau of Prisons to Reduce Recidivism and Promote Inmate Rehabilitation," prompts frustration rather than calm because it announces reforms that seem so sound and yet so late.  Here are the substantive highlights:

Today, the Department of Justice announced a series of reforms at the Federal Bureau of Prisons (BOP) designed to reduce recidivism and increase the likelihood of inmates’ safe and successful return to the community. These efforts include building a semi-autonomous school district within the federal prison system, reforming federal halfway houses, covering the cost of obtaining state-issued photo IDs for federal inmates prior to their release from custody and providing additional services for female inmates.

“Helping incarcerated individuals prepare for life after prison is not just sound public policy; it is a moral imperative,” said Attorney General Loretta E. Lynch. “These critical reforms will help give federal inmates the tools and assistance they need to successfully return home as productive, law-abiding members of society. By putting returning citizens in a position to make the most of their second chance, we can create stronger communities, safer neighborhoods and brighter futures for all.”

“The sweeping changes that we are announcing today chart a new course for the Bureau of Prisons that will help make our prisons more effective, our communities safer and our families stronger," said Deputy Attorney General Sally Q. Yates. “One of the best ways to prevent crime is by reducing recidivism, and one of the best ways to reduce recidivism is by equipping inmates with the tools they need to successfully reenter society."

Last year, with the department’s support, BOP retained outside consultants to review the agency’s operations and recommend changes designed to reduce the likelihood of inmates re-offending after their release from prison. As part of today’s announcement, the department is launching a new website, www.justice.gov/prison-reform, that compiles current and ongoing reforms at BOP, and includes the final reports from the outside consultants.

The department announced additional details regarding these efforts:

Building a school district within the federal prison system....

Reforming federal halfway houses....

Covering the cost of state-issued IDs prior to inmates’ release....

Enhancing programs for female inmates....

These initiatives are part of the department’s deep commitment to a fair, effective criminal justice system that promotes public safety and prepare inmates for their return to the community, thereby reducing the likelihood that a cycle of crime will continue.  

I think it neither naive nor unfair to assert that seeking to reduce recidivism and promote inmate rehabilitation should be a very top criminal justice priority for any and every Administration as they take over the reins of the Department of Justice and its (very expensive) Federal Bureau of Prisons.  And I see nothing in these "sweeping" BOP reforms that could not have been effectively pioneered eight years ago in the first few months of the Obama Administration rather than only now in the last few (lame duck) months of the Obama Administration.  in other words, though I am pleased to see these late-in-the-day federal prison reform efforts, I cannot help but respond to these new developments with the frustrating feeling that DOJ and BOP during the most of the Obama years were mostly "asleep at the wheel" when it came to critical public safety prison reform priorities.  

Sigh and Grrr.

Prez Obama grants 79 move commutations, taking his total over 1000 for his administration

As reported in this new Washington Post article, headlined "Obama grants 79 more commutations to federal inmates, pushing the total past 1,000," the outgoing President has decided to make some clemency news before turning torward Turkey Day festivities. Here are the basics from the start of this article:

President Obama granted commutations to another 79 federal drug offenders Tuesday, pushing the number of inmates he has granted clemency past 1,000.

Obama’s historic number of commutations was announced as administration officials are moving quickly to rule on all the pending clemency applications from inmates before the end of the year. The Trump administration is not expected to keep in place Obama’s initiative to provide relief to nonviolent drug offenders.

“The President’s gracious act of mercy today with his latest round of commutations is encouraging,” said Brittany Byrd, a Texas attorney who has represented several inmates who have received clemency since Obama’s initiative began in 2014. “He is taking historic steps under his groundbreaking clemency initiative to show the power of mercy and belief in redemption. Three hundred and forty two men and women were set to die in prison. The President literally saved their lives.”

The White House and the Justice Department were criticized by sentencing reform advocates earlier this year for moving too slowly in granting commutations to inmates serving harsh sentences who met the criteria for clemency. The administration has greatly picked up the pace, but advocates still want them to move faster before time runs out.

“At the risk of sounding ungrateful, we say, “thanks, but please hurry,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We know there are thousands more who received outdated and excessive mandatory sentences and we think they all deserve to have their petitions considered before the president leaves office. Petitioners are starting to get anxious because they know the president is, in prison parlance, a short-timer.”

On a press call this afternoon (which is available here), Deputy Attorney General Sally Q. Yates delivered remarks that included these sentiments:

As of this morning, President Obama has granted clemency to over 1,000 men and women who were incarcerated under outdated sentencing laws.

The number 1,000 is significant, but it’s important to remember that this is more than a statistic. There are 1,000 lives behind that number, 1,000 people who had been sentenced under unnecessarily harsh and outdated sentencing laws that sent them to prison for 20, 30, 40 years, even life, for nonviolent drug offenses. It's part of my job to review the petitions for each of these individuals, and I've been struck by the common threads woven through many of them — lack of access to education or real economic opportunity, absence of parents, drug addiction, hopelessness.  But in these petitions I've also seen something else — remarkable introspection, a real sense of responsibility for their conduct, and a dogged determination not to repeat the mistakes of the past and to ensure that they, and especially their children, chart another path.

The President has given these 1,000 individuals that opportunity. And while we are a nation of laws, and those who violate those laws must be held accountable, we are also a nation of second chances.  The mission of the Justice Department not only supports but demands that we do everything in our power to ensure that our criminal justice system operates fairly. In this case, that means reducing disproportionate sentences imposed under out-of-date laws. And we are privileged to serve a President who has not only taken on this responsibility himself, but who has given us the chance to fulfill our core charge to seek justice....

And a lot of work has gone into the clemency initiative to get us to this historic announcement today. Since the initiative was announced in 2014, thousands of petitions have been submitted and reviewed by the hard working attorneys in the Office of the Pardon Attorney, my office, the Office of the Deputy Attorney General, and the White House to identify nonviolent drug offenders whose sentences would be significantly lower if they were sentenced today.  While we are proud of the progress we’ve made so far, as I have said before, our work is still not done.  We will continue to make recommendations on clemency applications until the end of the Administration, fulfilling the goals we set more than two and a half years ago when we launched the clemency initiative.

A few (of many, many, many) reasons I am rooting really, really, really hard for Ted Cruz to be our next Attorney General

I am so excited by this developing news that Ted Cruz is perhaps going to be our nation's next Attorney General.  Let me report the basic news and then set out just a few reasons why I think all Americans who are committed to the rule of law — including the most ardent Trump supporters and especially the most ardent Trump haters — should want Prez-Elect Trump to be calling Cruz, rather than, "Lyin' Ted," Attorney General Rafael Edward Cruz:

President-elect Donald Trump is considering nominating Texas Senator Ted Cruz to serve as U.S. attorney general, according to a person familiar with the matter.

Cruz, 45, was at Trump Tower in New York on Tuesday. When approached by reporters on his way out, Cruz said the election was a mandate for change but didn’t say he was under consideration for a job.

Cruz unsuccessfully sought the Republican presidential nomination. He and Trump were at odds during the primary, viciously attacking one another. Trump nicknamed Cruz “Lyin’ Ted.” Cruz didn’t endorse Trump during a speech at the Republican National Convention in Cleveland. In September, relations between the two men seemed to improve when Cruz said he would vote for Trump.

I could likely write a hundred posts explain why everyone interested in criminal justice reform generally, or sentencing reform and marijuana reform in particular, should be much more excited about Ted Cruz as Attorney General than any of the other names that have been floated. For now, I will just start with the three main reasons I am so thrilled:

1. The profoundly personal: Like far too many people, I tend to assume people who have a similar background to me think a lot like me. Ergo, I must admit that my (unhealthy?) "man love" for Ted Cruz may have a lot to do with these aspects of his background (via Wikipedia):

Cruz graduated cum laude from Princeton University in 1992 with a Bachelor of Arts in Public Policy from the Woodrow Wilson School of Public and International Affairs.... Cruz's senior thesis at Princeton investigated the separation of powers; its title, Clipping the Wings of Angels, draws its inspiration from a passage attributed to US President James Madison: "If angels were to govern men, neither external nor internal controls on government would be necessary." Cruz argued that the drafters of the Constitution intended to protect the rights of their constituents, and that the last two items in the Bill of Rights offer an explicit stop against an all-powerful state.

After graduating from Princeton, Cruz attended Harvard Law School, graduating magna cum laude in 1995 with a Juris Doctor degree. While at Harvard Law, he was a primary editor of the Harvard Law Review...

Cruz married Heidi Nelson in 2001. The couple has two daughters, Caroline and Catherine.... She is currently taking leave from her position as head of the Southwest Region in the Investment Management Division of Goldman, Sachs & Co. and previously worked in the White House for Condoleezza Rice and in New York as an investment banker. Cruz has joked, "I'm Cuban, Irish, and Italian, and yet somehow I ended up Southern Baptist."

As some readers may know, I graduated from the same university and law school as Senator Cruz (two years earlier, so I never met him), and I also was extremely lucky to meet and marry a beautiful blonde woman who is a lot different than me (and smarter than me) and who has blessed me with two daughters.

2. The principled political: I have long been impressed with Cruz's willingness and eagerness to combine political acumen with principled commitments. Though I tend not to be a fan of the tactic of shutting down the government, I am a fan of anyone who will be driven even to the point of serious career risk to make a principled stand based on principled beliefs.  This Cruz character was on display throughout the 2016 campaign: at first, before the voting started, Cruz worked with Donald Trump because he say Trump as a voice for outsiders.  Once the voting started, Cruz treated Trump with respect and also tried to highlight how he was more principled and had more personal character than Trump.  Then, rather than avoid going to the Republican National Convention (as did Gov John Kasich and other establishment types that Trump defeated), Cruz went into the Trumpian lion's den and told all Republicans and all Americans to vote their conscience.

Now that Americans in key states have all voted their conscience and Trump is Prez-Elect, Cruz is not licking his wounds and plotting how to make Trump fail.  Instead, Cruz is apparently willing and perhaps eager to serve all Americans in the Executive Branch after a number of years in which he served only Texans in various ways as a state official and then as a US Senator.  Moreover, this past political history (not to mention his Princeton University senior thesis) would seem to ensure that Cruz would not serve as a Trump toady as Attorney General.  I make this point because I think the last two Presidents first selected (ground-breaking) accomplished lawyers to serve as attorney general (Alberto Gonzales and Eric Holder) who were, in my view, not-very-successful in part because they were perceived to be (and likely were) far too cozy personally and politically with the President.

3. Criminal justice reform:  There are dozens of reasons I think an Attorney General Cruz would be great for adding momentum to the criminal justice reform movement.  I will not try to list all those reasons here and will just instead link to prior posts on this blog highlighting some reasons I sincerely hope I get to talk about Attorney General Cruz on this blog in the coming months and years, with a few posts emphasized that I think everyone MUST read ASAP:

"On Criminal Justice Reform, Ted Cruz Is Smarter Than Hillary Clinton"

Are Senators Mike Lee and Ted Cruz now back on the same page with respect to sentencing reform?

Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?

"The Prison Reformer Who Champions Ted Cruz"

Shouldn't true fiscal conservatives question a federal program with 600% recent spending growth?

"Criminal Sentencing Reform: A Conversation among Conservatives"

Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform

"Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"

The title of this post is the headline of this astute new BuzzFeed News article that flags some issues and raises various questions that I have been thinking a lot about ever since last Wednesday around 2am. Here are highlights:

In recent months, President Obama has stepped up the pace of federal clemency — issuing three large batches of commutations in the month before the presidential election. The White House has regularly pushed those numbers as evidence that Obama has done more than his predecessors to address unfairness he has criticized in criminal sentencing.

But now that he is due to be replaced by Donald Trump, who ran in part by saying he would be a “law and order” president, leading advocates of the clemency process say it is the time for Obama to step up and do more. “[I]f President Obama believes these sentences are unjust, it is his constitutional responsibility to fix them,” Rachel Barkow, a member of the United States Sentencing Commission and NYU law professor, told BuzzFeed News this week....

To that end, the group, co-founded by Van Jones, will be in Washington this week, holding a series of events — including a vigil in front of the White House on Monday evening — urging Obama to take “unprecedented” action on clemency in the coming months.

Mark Osler, a law professor at the University of St. Thomas School of Law, acknowledged that time is short. “I think there will be — and should be — a sense of urgency,” he said on Friday. “I think the clearest thing is to find efficiencies — find ways to look at more people over these last weeks in a way that’s consistent and effective, in terms of evaluation. And that means, probably, looking at categories of people and identifying them specifically.”

Specifically, he pointed to “people who did not get the benefit of the Fair Sentencing Act in 2010” — which addressed cocaine-to-crack sentencing disparities in federal law, but was not retroactive. As such, Osler explained, many people “were stuck with a life sentence or the 10-year mandatory [minimum]” who could not receive that sentence today....

There has, though, been an election — one that likely will reflect at least somewhat different values on criminal justice issues, Osler acknowledged. “It’s fair to say that those people within this administration are very aware that the amount of care that they give to criminal law — and the excesses of criminal law — probably won’t be reflected in the next administration,” he said. Nonetheless, Osler said that Obama’s two elections more than suffice as a rationale for why Obama should continue pressing forward with the Clemency Project in his final months in office. “He’s the elected president until January 20, 2017,” he said. “I don’t think you sit back and don’t make full use of every day that you have.”

Barkow put it in similarly broad terms — but with a historical context. “Clemency is critical to an effective federal criminal justice system,” Barkow noted, pointing out that Alexander Hamilton wrote in The Federal Papers about the important role clemency plays in the American system. “The President has only a couple months to reach everyone. The fate of these people and their loved ones rests in his hands, and one of his lasting legacies can be to reaffirm Hamilton’s view that both ‘humanity and good policy’ require the broad use of the pardon power.”

In addition to my adoration for Rachel Barkow's always-timely Hamilton reference (and how it made me think of one of my favorite songs), I especially like Mark Osler's discussion of both the challenges and justifications for Prez Obama going bold on clemency over the next two months. For reasons I have explained in this Veterans Day post, I would especially love to see Prez Obama go bold in granting clemency for any and all veterans serving distinctly long federal sentences or still burdened by a federal conviction long after any public safety rationales for continued punishment have been extinguished.

Sing along with me Prez Obama and fellow clemency fans (with apologies to Lin-Manuel Miranda):

Prez Washington:

I wanna talk about [clemency righting]

I want to warn against partisan fighting

Pick up a pen, start writing

I wanna talk about what I have learned

The hard-won wisdom I have earned...

The people will hear from me

One last time

And if we get this right

We’re gonna teach ‘em how to say Goodbye

You and I—

Sec. Hamilton:

Mr. President, they will say you’re weak

Prez Washington:

No, they will see we’re strong

Sec. Hamilton:

Your position is so unique

Prez Washington:

So I’ll use it to move them along

Sec. Hamilton:

Why do you have to say goodbye?

Prez Washington:

If I say goodbye, the nation learns to move on

It outlives me when I’m gone

Like the scripture says:

“Everyone shall sit under their own vine and fig tree

And no one shall make them afraid.”

They’ll be safe in the nation we’ve made

I wanna sit under my own vine and fig tree

A moment alone in the shade

At home in this nation we’ve made

One last time

A quick take on the Obama sentencing era and its 2016 ending

As I reflect on the emotions and uncertainty resulting from Donald Trump now being our Prez-Elect, my thoughts keep wandering back to this time eight years ago when Barack Obama had just been elected after campaigning on the slogans hope and change.  Due to my intense interest in sentencing reform changes of so many varieties, I was cautiously optimistic that the Obama era might usher in a profound new world order for the operation of federal and state criminal justice systems.  

But now I look back and have to conclude that the Obama sentencing era, generally speaking, was filled with way too much hope and not nearly enough change.  And it strikes me that for a lot of voters this past week who rejected Democratic candidates, the Obama era for them was perceived to be filled with way too much change and not nearly enough hope.

How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?

The question in the title of this post are inspired by today's national holiday, Veterans Day.  Here are some general data thoughts/realities as part of an effort to try to answer these questions:

1.  According to these latest BJS statistics, we can reasonably estimate that at least 5% of the current federal prison population are veterans.  The BJS report starts by noting that "In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."  But a variety of demographic realities would suggest that veterans are probably underrepresented among the types of prisoners serving time in federal prison. 

2. So, to answer my first question based on this working estimate of at least 5%, we should expect that nearly 50 of the 944 federal prisoner commutations by Prez Obama have been to veterans.  But this is really a statistical guess because there could be direct or indirect reasons why veteran status made a candidate more likely to garner Prez Obama's attention or why the pool of long-sentenced drug offenders now only getting clemency these days are less likely to include veterans. 

3. And, to answer my second question based on this working estimate of at least 5%, we should expect that nearly 10,000 veterans make up of current federal Bureau of Prisons population which totals over 191,000.  If we were to entertain the supposition that only 1 out of every 100 current veteran federal prisoners are likely to be good candidates for clemency, that would still mean 100 current federal prisoners would now be commutation-worthy.  (And, if we want to think about all veterans with a federal conviction who might seek or merit a pardon, there could well be thousands of good veteran clemency candidate worth thinking about on this Veterans Day.)  

Though the day is still young, I am not expecting that Prez Obama will celebrate his last Veterans Day in the Oval Office by making a special effort to grant commutations or pardons to a special list of veterans.  But Prez-Elect Trump, who made taking care of the vets a consistent campaign theme, perhaps might be encouraged by sentencing reform advocates to plan to celebrate his future Veterans Days in the Oval Office by looking to use his clemency powers in this kind of special and distinctive way.  After all, a key slogan for this day is to "honor ALL who served," not just those who stayed out of trouble after serving.

Some very old prior related posts: 

• Thinking about sentenced troops on Veterans Day
• How many vets, after serving to secure liberty, are now serving LWOP sentences?
• My amicus effort to support our troops 
• Should prior military service reduce a sentence?
• How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?
• Are special jail facilities for veterans (and other special populations) key to reducing recidivism?

"Revitalizing the Clemency Process"

The title of this post is the title of this recent lengthy article authored by Paul Larkin which is available via SSRN (and which I hope someone can now put on the required reading list for the Trump transition team).  Here is the abstract:

St. Anselm once asked how a perfectly just God could also be merciful, since perfect justice and almighty grace could not seemingly coexist.  Fortunately, the criminal justice system does not need to answer that question, one that has proven inscrutable for theologians and philosophers, because its assumptions do not apply to our system.  An earthly judicial system will never be able to administer justice perfectly and cannot disburse mercy even approaching the quality of the divine.  But the clemency power can try to achieve as much of an accommodation between those two goals as any human institution can.  Unfortunately, however, our recent span of presidents, attuned more to political than humanitarian considerations and fearing the electoral wrath of the voters for mistaken judgments, have largely abandoned their ability to grant clemency in order to husband their political capital for pedestrian undertakings.  Far worse, others have succumbed to the dark side of “the Force,” have used their power shamefully, and have left a stain on clemency that we have yet to remove.

We now have reached a point where that taint can be eliminated.  There is a consensus that the clemency process can and should be reformed.  The problem lies not in the power itself, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions.  The Office of the Pardon Attorney should be transferred from the Department of Justice to the Executive Office of the President, and the President should select someone to fill that position.  That revision to the clemency process should help us see a return of the necessary role that clemency can play in a system that strives to be both just and merciful.

Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election

In my effort to make sense of the various Election 2016 realities, these early stories and data points caught my attention:

1. Popular vote realities in 2012 and 2016

Popular vote totals in 2012: Obama 65,915,795; Romeny 60,933,504; Johnson + Green 1,745,579  (total vote = 128.6 million)

Popular vote in 2016 (as of now): Trump 59,007,205; Clinton 59,132,664; Johnson + Green 5,195,998 (total vote = 123.3 million)

In other words, as of this writing, there were roughly 5 million fewer voters total in 2016 compared to 2012 and also roughly 3.5 million more of those who did vote in 2016 voted for one of the third party candidates.  

2.  Younger voters in 2016

As Nate Silver flagged here: "While the third-party vote wasn’t all that high tonight overall, an exception came among younger voters. According to the national exit poll, 9 percent of voters ages 18 to 29 went for third parties, as did 8 percent of voters ages 30 to 44." And until I see data to the contrary, I would guess that younger voters (especially younger minority voters) comprise a large portion of the roughly 5 million "missing" voters in 2016.

As the title of this post is meant to reveal, I already have my own (self-serving?) theories for why so many fewer folks showed up to vote in 2016 and for why so many younger progressive voters were much more eager to vote for third-party candidates.  Put simply, the tendency this cycle for Democrats (a) to nominate cautious insiders — like HRC for Prez and Ted Strickland for Senate in Ohio — and (b) to make cautious insider moves on a number of major high-salience law and policy issues — like Prez Obama nominating Merrick Garland for SCOTUS and HRC not taking up the populist cause of marijuana reform — led to a whole lot of folks not being excited enough to show up to vote and led to a whole lot of those folks showing up not being excited enough by Democrats to vote for their candidates.

In some prior posts in this space, I have highlighted some reasons why I considered the Merrick Garland nomination to be a big political mistake for Democrats:

• New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson   
• After a month, Prez Obama makes ("consensus"?) pick of DC Circuit Chief Judge Merrick Garland for SCOTUS opening
• Does anyone want to speculate about SCOTUS politics if Prez Obama had nominated, say, Judge Ketanji Brown Jackson?

And over at my Marijuana Law, Policy and Reform, here were my posts from last night detailing the remarkably large number of folks in a large number of states who rejected suggestions by all sorts of cautious insiders (of both parties) to slow down the rapidly-moving marijuana reform movement:

• Florida voters seem poised to legalize medical marijuana via state constitutional amendment
• North Dakota appears poised to pass medical marijuana initiative
• Early Arkansas and Montana results suggesting more winning medical marijuana reforms
• Massachusetts votes to legalize recreational marijuana and Maine might have too 
• California and Nevada on path to legalize recreational marijuana, but Arizona not that into it

Another week and another big batch of clemencies from Prez Obama

As this new USA Today article highlights, "President Obama's decision to grant 72 more commutations Friday — just before getting on Air Force One for a two-city campaign tour of North Carolina — shows how far he's gone in his efforts to "reinvigorate" the pardon process." Here is more:

Just a year ago, it might have been unthinkable for a president to use his constitutional power to shorten sentences so close to an election, regardless of who's on the ballot. "Commutations a week before an election? That's a wow factor of 10!" said P.S. Ruckman Jr., a political scientist who has studied, among other things, the timing of presidential clemency.

Obama has now granted 170 commutations in just the past eight days, bringing the total for his presidency to 944. It's the largest number of commutations in any single year in history, and represents an exceptional "surge" in the president's clemency power in his last year.

"What President Obama has done for commutations is unprecedented in the modern era." White House Counsel Neil Eggleston said in a statement. "The president is committed to reinvigorating the clemency authority, demonstrating that our nation is a nation of second chances, where mistakes from the past will not deprive deserving individuals of the opportunity to rejoin society and contribute to their families and communities."

Most of Obama's pardons have been through his clemency initiative, which seeks to reduce the long mandatory-minimum sentences meted out under sentencing guidelines from the late 1980s through the 2000s....

The frequency with which Obama is now granting commutations has encouraged some advocates who had been urging the president to "vastly increase the pace" of the effort. "The Obama administration has said it was committed to ever more grants, and it seems quite clear that the president’s actions are matching his words," said Cynthia Roseberry, the manager for Clemency Project 2014, a coalition of lawyers working on commutation cases to present to the president....

Of the 72 commutations granted Friday, 17 were for inmates serving life sentences.

Two new Washington Post commentaries making federal sentencin reform sound (way too) easy

The "In Theory" section of the Washington Post now has posted two notable new commentaries about prison reform.  Here are the authors, full titles and links:

• Pat Nolan, "To reform our prisons, follow the states’ lead: Criminal justice reform should be easy for the next president. It's already underway."

• Hilary O. Shelton & Inimai Chettiar, "Want to shrink prisons? Stop subsidizing them. Pay for what works: Give money to states that reduce incarceration and crime."

Here is how the second of these two commentaries gets started:

When our next president enters the Oval Office, she or he will be faced with two questions: First, how to make a mark as president ? Second, how to break through gridlock in Congress?

Prioritizing reducing our prison population is one way to achieve both goals. Most Republicans and Democrats agree: Mass incarceration devastates communities of color and wastes money.  Even Hillary Clinton and Paul Ryan see eye-to-eye. Committing to such reform in the first 100 days would make a lasting and imperative change.

Regular readers will not be surprised to know I support the spirit and much of the substance of these two commentaries.  But the "can-do" talk and the direct or indirect suggestion that this kind of reform should be "easy for the next president" really seem to me to miss the mark.  After all, Prez Obama and House Speaker Paul Ryan and current Senate Judiciary Chair Chuck Grassley all right now largely "see eye-to-eye" on the importance of "reducing our prison population."  And yet, despite diligent work by lots and lots of folks on the federal reform front for more than two years now, Congress has so far been unable to get any kind of significant criminal justice reform bill to the desk of Prez Obama. 

Though I know the 2016 election is certain to disrupt the existing political status quo, I do not know if anything that happens at the voting booth next week can make it that much easier for the folks inside the Beltway to find their way to turn all sorts of talk into actual statutory reforms.  I sure hope advocates like those who authored these commentaries keep talking up the importance of making criminal justice reform a priority in 2017.  But, as I have been saying for too many years already, I am not counting any federal sentencing reform chickens until they are fully hatched.

Terrifically timed Northwestern JCLC symposium to ask "The Death Penalty's Numbered Days?"

I am so very fortunate and pleased and excited that at the end of next week — and less than 100 hours after the most significant and consequential elections for the future of the American death penalty — I am going to have a chance to participate in this amazing symposium being put on by Notherwestern Law's Journal of Criminal Law and Criminology.  The title given to the event is "The Death Penalty's Numbered Days?", and this symposium page provides the schedule of panels and speakers.  Here is how the web coverage introduced the event while also providing this quote from a notable recent SCOTUS dissent:

The Journal of Criminal Law and Criminology, with the significant support of the Irving Gordon Symposia Fund, is proud to announce the upcoming symposium, entitled "The Death Penalty's Numbered Days?"  Since the 1970's, the existence and implementation of the death penalty has changed and evolved, as has the way the legal system and its various actors view and talk about the issue.  This symposium, which includes a diverse group of some of the foremost scholars on the death penalty, will explore recent developments and attempt to provide a prognosis on the future application of the death penalty in the United States.  Attendees will be eligible for up to 5 CLE credits, and no registration is necessary.  Please direct any questions to our Symposium Director, Erica Stern, who can be reached at [email protected].

Friday, November 11, 2016, 9:00 a.m. - 5: 00 p.m.

Thorne Auditorium, Northwestern University School of Law, 375 E. Chicago Avenue, Chicago, IL 60611

“Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court's view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. . . . The circumstances and the evidence of the death penalty's application have changed radically since then. Given those changes, I believe that it is now time to reopen the question.” ~ Justice Stephen Breyer, Dissenting Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015).

Though I am not yet sure about exactly what I will have say at this event, one theme I will be eager to stress in my comments is my strong belief that modern "evidence" concerning "the death penalty's application" actually suggests that this punishment is being imposed much more reliably and much less arbitrarily since President William J. Clinton left office.

As this DPIC chart and data reveal, during the William J. Clinton years (from 1993 to 2001), the United States averaged over 280 death sentences annually nationwide.  Over the course of the next eight years (the George W. Bush years), the annual number of death sentences imposed throughout the United States declined by about 50% down to around 140 death sentences per year.  And, over the last eight years (the Barack H. Obama years), we have seen yet another 50% reduction in annual death sentences imposed as we approach a BHO-term average of around 70 death sentences per year.  The year 2015 hit a remarkable historic low of only 49 total death sentences imposed nationwide, and I believe 2016 is going to see a similar or even smaller number of total death sentence once the year's accounting gets completed.

For a bunch of reasons I hope to explain at this symposium, Justice Breyer's sincere concerns about death sentences being often imposed arbitrarily and unreliably seem to me to have been especially trenchant when he was first appointed to SCOTUS.  At that time, states throughout our nation were imposing, on average, five or six death sentences every week.  Fast forward more than two decades, and the evidence of death sentencing reveals that, circa 2016, states throughout the nation are now imposing less than a single death sentence every week.  I strongly believe our death sentencing systems have become much, much more reliable and much less arbitrary as we have gotten much, much more careful about how gets subject to capital prosecution and about who ultimately gets sent to death row.

Has DOJ's "Smart on Crime" initiative had a big impact in federal white-collar sentencing outcomes in recent years?

It has now been more than full three years since then-Attorney General Eric Holder made his historic speech to the American Bar Association (reported here and here) about excessive use of incarceration in the United States.  In that speech, AG Holder announced the US Justice Department's "Smart on Crime" initiative while making the case that "too many Americans go to too many prisons for far too long and for no good law enforcement reason" and that "widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable." At the time, and subsequently as a result of officials' comments (including 2015 remarks by then AG Holder and 2016 statements by now AG Loretta Lynch and Deputy AG Sally Yates), much has been made about the impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of federal drug offenders.

But recently, as the question in the title of this post suggests, I have been thinking about, and wondering if there is a good way to assess, the possible impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of white-collar offenders.  Critically, as I have noted to a number of courts in a number of ways in a number of settings, DOJ's public "SMART on CRIME" materials uses a lot of language that applies to, and should impact, how non-violent white-collar offenders are sentenced.  For example, DOJ has stressed the importance of alternatives to incarceration for all non-violent offenders while advocating a "shifting away from our over-reliance on incarceration" to reflect the reality that "[f]or many non-violent, low-level offenses, prison may not be the most sensible method of punishment." And AG Holder's speech was not only focused on drug offenses or offenders when he emphasized excessive incarceration "comes with human and moral costs that are impossible to calculate," and when he stressed that "the judiciary [can] meet safety imperatives while avoiding incarceration in certain cases."

Notably, as some links above highlight, DOJ officials have in 2015 and 2016 documented and promoted how DOJ's "Smart on Crime" initiative has impacted the case processing and sentencing of federal drug offenders.  But, perhaps unsurprisingly in these political times, DOJ officials have not said a word (at least that I have seen) about how DOJ's "Smart on Crime" initiative might be impacting white-collar cases (or really any other non-drug cases).

Against that backdrop, I took another look this week at recent US Sentencing Commission data published through its great Quick Facts series on Theft, Property Destruction, & Fraud and Tax Fraud.  These two reports seem to cover, roughly speaking, the pools of white-collar cases I have in mind that might be readily impacted by "Smart on Crime" talk about reduced reliance on lengthy terms of imprisonment.  And, perhaps significantly, two notable parallel sentencing "trends" were reported in these USSC documents:

• During the past five years, the rate of within range sentences for §2B1.1 offenders has steadily decreased (from 54.4% in fiscal year 2011 to 42.4% in fiscal year 2015).
• During the past five years, the rate of within range sentences for tax fraud offenders has decreased (from 37.8% in fiscal year 2011 to 25.8% in fiscal year 2015).

These two data notes are not, of course, conclusive qualitative proof that DOJ's "Smart on Crime" initiative has had a big impact on federal white-collar sentencing outcomes in recent years.  But it does suggest something is helping to "move the sentencing needle" in these kinds of cases in recent years.  Relatedly, I would love to hear in the comments or some other way any and all reports (dare I say "qualitative" evidence) from white-collar sentencing practitioners concerning whether they think what AG Holder said and DOJ did as part of its "Smart on Crime" initiative back in 2013 is having a continual tangible impact on case processing and sentencing in non-violent fraud and other white-collar cases.

Is the death penalty in the United States really "nearing Its end"?

The question in the title of this post is prompted by this notable new New York Times editorial headlined "The Death Penalty, Nearing Its End."  Here is the full text of the editorial:

Although the death penalty is still considered constitutional by the Supreme Court, Americans’ appetite for this barbaric practice diminishes with each passing year.  The signs of capital punishment’s impending demise are all around.

For the first time in nearly half a century, less than half of Americans said they support the death penalty, according to a Pew Research poll released last month.  While that proportion has been going down for years, the loss of majority support is an important marker against state-sanctioned killing.

At the same time, executions and new death sentences are at historic lows, and each year they go lower. In 2015 only 49 new death sentences were handed down, the lowest one-year total since the Supreme Court reinstated capital punishment in 1976.

Since there were about 14,000 murders around the country last year, it’s easy to imagine that the small number of newly condemned people shows that the justice system is focusing on the “worst of the worst.”  But that’s wrong. In fact the crimes of the people sentenced to death are no worse than those of many others who escape that fate. Rather, nearly all of last year’s death sentences came from a tiny fraction of counties with three common features: overzealous prosecutors; inadequate public defenders; and a pattern of racial bias and exclusion. This was the key finding of a two-part report recently issued by the Fair Punishment Project at Harvard Law School.

Even in the most death-friendly counties, public support appears to be fading. In two of the worst — Duval County in Florida and Caddo Parish in Louisiana — local prosecutors lost elections at least partly due to voters’ concerns about their stance on the death penalty. In other counties around the country, prosecutors are finding that aggressive advocacy for death sentences isn’t the selling point with the public that it once was.

In some of the biggest states, death-penalty systems are defunct or collapsing. Earlier this month, the Florida Supreme Court struck down a terrible state law that allowed nonunanimous juries to impose death sentences — increasing the likelihood that innocent people and those with intellectual or mental disabilities would be condemned.  A large number of Florida’s 386 death-row inmates could now receive new sentencing trials, or have their sentences thrown out altogether.

In California, which hasn’t executed anyone since 2006 even though more than 740 inmates sit on death row, voters will decide in November whether to eliminate capital punishment for good. A similar ballot initiative in 2012 was narrowly defeated. In 2014, a federal judge ruled that the state’s decades-long delays in capital cases violated the Eighth Amendment’s ban on cruel and unusual punishment. (The decision was overturned by an appeals court on technical grounds the following year.)

While capital punishment is used rarely and only in some places, only a definitive ruling from the Supreme Court will ensure its total elimination. How close is the court to such a ruling? In recent dissenting opinions, three of the justices — Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor — have expressed deep misgivings about the death penalty’s repeated failure to meet the requirements of due process and equal protection. Justice Breyer has said it is “highly likely that the death penalty violates the Eighth Amendment,” and has called for the court to consider whether it is constitutional at all.

The death penalty has escaped abolition before, but there are no longer any excuses: The nation has evolved past it, and it is long past time for the court to send this morally abhorrent practice to its oblivion.

I wonder if anyone who is a strong supporter of capital punishment will write (and get published) a response to this editorial which might be headlined something like "The Death Penalty, Poised for a Big Comeback."  That response might highlight that, according to polls in deep blue California, voters there are seemingly going to provide "majority support" for making more efficient in California "state-sanctioned killing."  That response might highlight that, in swing state Ohio, executive officials have been working extra hard to get the state's machinery of death operative again and have execution dates scheduled for nearly two dozen condemned murderers in 2017 and 2018.  That response might highlight that, in swing state Florida, the state legislature has been quick and eager to retain and revise its death penalty statutes every time a court has found constitutional problems with its application.  That response might highlight that, in deep blue Massachusetts, a federal jury in 2015 wasted little time in deciding that “worst of the worst” capital defendant Dzhokhar Tsarnaev should be condemned to die for his crime.  And that response might highlight that, in the most liberal national criminal justice administration of my lifetime, federal prosecutors of the Obama Administration were seemingly eager to pursue capital charges against the Charleston Church shooter Dylann Roof.

I could go on and on (mentioning, inter alia, developments in Alabama, Oklahoma, Nebraska and elsewhere), but my main point here is highlight the critical reality that the description of "death-penalty systems [as] defunct or collapsing" is largely a product of effective litigation by abolitionists and the work of courts, not really a reflection of a sea-change in public opinion or radical changes in the work of most legislatures and prosecutors in key regions of the United States.  The NYTimes editorial board my be right that we may soon see litigation by abolitionists achieve the ultimate success in the courts by having the Justices of the Supreme Court declare the death penalty per se unconstitutional.  But, absent some surprising political and social developments over the next few years, would-be abolitionists ought to be careful about counting chickens too soon.

Prez Obama commutes 102 more federal prison sentences

I just saw via various news sources that President Obama issued 102 more commutations this afternoon.  This blog post by the White House counsel reports the basics, and here is how it gets started:

Today, President Obama granted commutations to another 102 individuals who have demonstrated that they are deserving of a second chance at freedom.  The vast majority of today’s grants were for individuals serving unduly harsh sentences for drug-related crimes under outdated sentencing laws. With today’s grants, the President has commuted 774 sentences, more than the previous 11 presidents combined.  With a total of 590 commutations this year, President Obama has now commuted the sentences of more individuals in one year than in any other single year in our nation’s history.

While he will continue to review cases on an individualized basis throughout the remainder of his term, these statistics make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process. Beyond the statistics, though, are stories of individuals who have overcome the longest of odds to earn this second chance.  The individuals receiving commutation today are mothers and fathers, sons and daughters, and in some cases grandparents.  Today, they and their loved ones share the joy of knowing that they will soon be reunited.

"Why Nobody's Talking About the Supreme Court"

The title of this post is the headline of this timely and interesting post-debate Bloomberg View piece by Noah Feldman. Here are excerpts:

The U.S. Supreme Court didn’t come up Monday in the first presidential debate, and so far, it hasn’t been an important campaign issue. Given the unprecedented vacancy during an election season, that seems weird. But there is an explanation: The election’s consequences for the court are asymmetrical for the two political parties.

If the Democrat, Hillary Clinton, is elected, it will change the court’s balance, either through the confirmation of President Barack Obama’s nominee, Judge Merrick Garland, in the lame-duck session or with the appointment of Garland or another liberal after she takes office.  If the Republican, Donald Trump, is elected, all he can do is replace the late Justice Antonin Scalia with another conservative. That won’t change the court’s political balance.  For that to happen, Trump would need Justice Ruth Bader Ginsburg or Justice Stephen Breyer to be unable to serve, which won’t happen voluntarily for either in the first four years of a Trump presidency.

The result of this asymmetry is that neither candidate has much reason to put the Supreme Court front and center.  Clinton can try to appeal to her base by promising to reshape the Supreme Court, which is an inspiring vision for some liberals, to be sure.  But it isn’t good politics for her to trumpet a liberal transformation of the court when she’s trying to win over the median voter, who may well be skeptical of more judicial activism.

What’s more, Clinton lacks a signature constitutional issue that would make liberals excited about a progressive majority.  That’s because much of the liberal constitutional agenda has been achieved in the last two years, courtesy of Justice Anthony Kennedy.  He wrote the gay-marriage decision in 2015. In 2016, he delivered an opinion protecting affirmative action in higher education. He also provided the deciding vote in the Texas abortion case, safeguarding the abortion right for another generation.  With these decisions, Kennedy effectively took away the sense of constitutional fear and desperation that might otherwise be haunting liberals alongside the possibility of a Trump presidency....

For Trump, the calculus is a little different.  He can’t credibly promise to be a change agent when it comes to Supreme Court appointments. All he can do is say he will hold the line by appointing a conservative -- and indeed he has by releasing the names of 21 possible nominees.  That might have been enough to win over Texas Senator Ted Cruz, if you take Cruz’s word for his flip-flop on endorsing Trump.  But Trump doesn’t really like to depict himself as a movement conservative trying to preserve the status quo. His message is all about how things are broken.  Even if he chose to say that the Supreme Court got it wrong on gay marriage, abortion rights and affirmative action, he can’t say that he would be able to appoint justices who would change those results.

Furthermore, diehard conservatives who care about the Supreme Court are sophisticated enough to understand that they’ve lost on the big-ticket issues that have mattered most to them over the last 20 years. They know the court won’t immediately reverse itself.  Activist legal conservatives are focused mostly on preserving religious liberty in the aftermath of the gay-marriage decision, a position that is essentially defensive and operates on the (correct) background assumption that the culture war has already been lost.

The upshot is that for Trump, making the Supreme Court an election issue doesn’t hold much appeal as a way to energize the right or to capture new voters from the center. He can certainly criticize the courts when it’s convenient, or dismiss their holdings as “anti-police” the way he did during the debate.  So don’t expect much more on the Supreme Court during this election season.  When the dust has settled, however, the Supreme Court will return to the front pages very quickly indeed, and the question of who will succeed Scalia will be one of the most pressing issues facing the new president, whoever it is.

As long-time readers know, and as this prior post explains, I would add to this analysis the important fact that Prez Obama picked a nominee that is a relative political "yawner" for both parties.  As I have explained before, I thought back in March and continue to think today that the current politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick, and that would be especially so if he had selected the only woman of color who was seriously vetted for this open SCOTUS spot, US District Judge Ketanji Brown Jackson.  Though I dislike discussion that focus on "playing the race card" or "playing the gender card," I like to be honest when highlighting that it is the personnel and not just the politics at the heart of this "non-issue" reality. 

If the GOP Senate was blocking even a hearing for the first woman of color nominated to the Supreme Court, I am certain Clinton would now be seeking to appeal to her base (and also to moderates) by promising to not let the GOP Senate continue to push Judge Brown Jackson to the back of the bus.  Actually, I suspect Hillary Clinton may be much too cautious politically to actually try to play a race/gender card at the same time via a Rosa Parks reference, but I am certain some of her surrogates (as well as some Dems seeking to wins seats in the Senate) would not be afraid to make this kind of pitch.

Prior related posts on new SCOTUS nominee possibilities:

• Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow
• Prognosticating SCOTUS possibilities in light of existing politics
• New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson   
• Can readers help discount my fears that sexism and racism account, at least in some small part, for why conservatives are belittling the intellect of Judge Ketanji Brown Jackson?
• The latest SCOTUSblog analysis of the top contenders for SCOTUS nomination
• After a month, Prez Obama makes ("consensus"?) pick of DC Circuit Chief Judge Merrick Garland for SCOTUS opening
• Does anyone want to speculate about SCOTUS politics if Prez Obama had nominated, say, Judge Ketanji Brown Jackson?

Detailing interesting sentencing dynamics in the latest batches of "term" commutations by Prez Obama

USA Today has this great new article highlighting an especially interesting aspect of the most recent clemency work by President Obama.  The piece is headlined "For Obama, a shift in clemency strategy," and here are excerpts:

For 126 federal inmates who received presidential clemency last month, the good news might have come with a dose of disappointment. President Obama had granted their requests for commutations, using his constitutional pardon power to shorten their sentences for drug offenses. But instead of releasing them, he left them with years — and in some cases, more than a decade — left to serve on their sentences.

As Obama has begun to grant commutations to inmates convicted of more serious crimes, Obama has increasingly commuted their sentences without immediately releasing them. These are what are known as "term" commutations, as opposed to the more common "time served" commutations, and they represent a remarkable departure from recent past practice. Unlike a full pardon, commutations shorten sentences but leave other consequences of the conviction in place.

A USA TODAY analysis of Obama's 673 commutations shows a marked change in strategy on his clemency initiative, one of the key criminal justice reform efforts of his presidency. Before last month, almost all of the inmates whose sentences were commuted were released within four months, just long enough for the Bureau of Prisons to arrange for court-supervised monitoring and other re-entry programs. But in the last two rounds of presidential clemency in August, 39% of commutations come with a long string attached: a year or more left to serve on the sentence.

The strategy has also allowed Obama to commute the sentences of even more serious offenders. Before last month, 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy last month, it was 22%. Through lawyers in the Justice Department and the White House Counsel's Office, the president is effectively recalculating the sentences using the federal guidelines in effect today — as opposed to the harsher penalties mandated by Congress in the 1980s and '90s.

While previous presidents have granted term commutations on a case-by-case basis — President Bill Clinton required a Puerto Rican nationalist convicted of seditious conspiracy to serve five more years, and President Richard Nixon made a Washington, D.C. murderer serve another decade — Obama appears to be the first to employ them as a matter of policy. "There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented,” said former pardon attorney Margaret Love, who served under Presidents George H.W. Bush and Clinton. “That signals to me that the power is being used in a way it’s never been used before.”

There may also be a political calculation to the new clemency strategy, reflecting a general understanding that there's no guarantee that a President Hillary Clinton or Donald Trump would continue Obama's signature clemency initiative. While it's not entirely settled, most scholars believe a commutation warrant cannot be revoked by a future president once it's granted, delivered and accepted.

Explaining his philosophy on commutation power at a press conference last month — the day after he set a single-day clemency record by granting 214 commutations — Obama gave the example of an inmate who has already served a 25-year sentence but would have only served 20 if sentenced under today's laws. "What we try to do is to screen through and find those individuals who have paid their debt to society, that have behaved themselves and tried to reform themselves while incarcerated, and we think have a good chance of being able to use that second chance well," he said.

But increasingly, recipients of Obama's mercy are years away from paying their debt to society.

White House Counsel Neil Eggleston, who's the last stop for a clemency application before it goes to the president, acknowledged the change in strategy on Aug. 3, the day Obama issued 214 commutations. "While some commutation recipients will begin to process out of federal custody immediately, others will serve more time," he wrote in a blog post. "While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services."

Critics say Obama is no longer reserving his clemency power for extraordinary circumstances, but instead substituting his own judgment for that of Congress and the courts. "To impose these things, and to have the commutation take effect after he leaves office — and even after the presidency of someone who succeeds him — seems inappropriate to me," said Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee.

But Goodlatte also acknowledged that the power to "grant reprieves and pardons for offenses against the United States" is one of the Constitution's most ironclad powers, and amending the Constitution would be difficult....

"He has effectively set himself up as a judge, reviewing thousands of cases where they’ve been prosecuted, convicted, sentenced and appealed beyond the district court level. And he's undercut all that work by commuting their sentences," Goodlatte said. "I think the president is taking a misguided approach to this issue when he tries to set himself up as a super-judge who would oversee the actions of a separate branch of government."

Mary Price, who has represented drug offenders seeking presidential clemency, said the president is the only person who can act under present law. "In our system, there's a heavy emphasis on finality of judgment," said Price, chief counsel for Families Against Mandatory Minimums, which advocates for changes in drug laws. "The court has no jurisdiction to go back and change that sentence." For inmates with one or two years left on their Obama-shortened sentence, the president's clemency could motivating them to prepare for reentry into society, Price said. One drug treatment program gives inmates an additional year off their sentence if they complete it.

While Obama's re-sentencing strategy is a departure from recent practice, experts note that presidents have granted term commutations before. For example, any commutation of the death penalty to life imprisonment would fit the definition of that the Justice Department calls a "term commutation," as opposed to the more typical "time served" commutation.

And if recent presidents haven't done it that way, it's more because they've granted so few commutations to begin with. As the White House is quick to note, Obama has now commuted the sentences of more prisoners than the previous 10 presidents — that's Dwight Eisenhower through George W. Bush — combined. "Is Obama doing it at some unprecedented level? I don't know. Maybe," said P.S. Ruckman Jr., a political scientist who has analyzed data on presidential clemency back to George Washington. "But I am not so sure what to make of that either," he said. "That's what checks and balances are all about."