Saturday, January 16, 2021

Might Prez Trump announce his next round of clemency grants this weekend?

The question in this post is prompted by this Politico article headlined "Trump weighing a pardon for Steve Bannon." The start of the article suggests that some actually were expected some action on the clemency front last night:

President Donald Trump is considering granting a pardon to Steve Bannon, his former White House chief strategist and top campaign aide, who was charged with swindling donors to a private crowdsourcing effort to build a wall along the U.S.-Mexico border, according to two sources familiar with the matter.

The potential pardon would follow a wave of reprieves the president has recently granted to political allies who have been convicted, charged or reportedly under federal investigation. Two additional batches of pardons are expected — one on Friday night and one Wednesday morning before President-elect Joe Biden is sworn into office, according to one of the people.

I have been wondering in recent days about how the Capitol riot and Prez Trump's second impeachment might be impacting his clemency plans (and they advice he may be getting from his remaining advisors). Ultimately, I have given up making Trumpian predictions, but these recent articles reveal we can readily predict that Prez Trump will keep recieving clemency requests:

From The Daily Beast, "‘QAnon Shaman’ Seeks Trump Pardon for Riot, Says President Invited Him"

From Newsweek, "Jenna Ryan, Who Took Jet to Capitol Riot, Asks Donald Trump for a Pardon"

A few recent related posts:

UPDATE: These new stories highlight the Trumpian realities already shaping the clemency:

From The Guardian, "Giuliani associate told ex-CIA officer a Trump pardon would 'cost $2m’ – report"

From the New York Times, "Prospect of Pardons in Final Days Fuels Market to Buy Access to Trump"

Here are portions of the NYTimes piece:

As President Trump prepares to leave office in days, a lucrative market for pardons is coming to a head, with some of his allies collecting fees from wealthy felons or their associates to push the White House for clemency, according to documents and interviews with more than three dozen lobbyists and lawyers....

Legal scholars and some pardon lawyers shudder at the prospect of such moves, as well as the specter of Mr. Trump’s friends and allies offering to pursue pardons for others in exchange for cash.

“This kind of off-books influence peddling, special-privilege system denies consideration to the hundreds of ordinary people who have obediently lined up as required by Justice Department rules, and is a basic violation of the longstanding effort to make this process at least look fair,” said Margaret Love, who ran the Justice Department’s clemency process from 1990 until 1997 as the United States pardon attorney....

Few regulations or disclosure requirements govern presidential clemency grants or lobbying for them, particularly by lawyers, and there is nothing illegal about Trump associates being paid to lobby for clemency.  Any explicit offers of payment to the president in return could be investigated as possible violations of bribery laws; no evidence has emerged that Mr. Trump was offered money in exchange for a pardon.

Some who used resources or connections to try to get to Mr. Trump say clemency should be granted to more people, independent of their clout.

January 16, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, January 07, 2021

Gearing up for Prez Trump's coming final round of clemency grants

Prez Trump's ignominious behavior raises uncertainty as to whether he will serve out the last two weeks of his term.  But we can all be certain that Prez Trump is planning to issue more clemency grants before he loses the power to do so.  As everyone surely recalls, just before Christmas, Prez Trump granted clemency to all sorts of friends and family and politically-charged defendants (basics here and here).  And recent press reports detail other grants that could be forthcoming. 

First, this new New York Times piece, headlined "Trump Is Said to Have Discussed Pardoning Himself," cover the one particular possible pardon sure to generate the most buzz and controversy.  But I am even more intrigued by this new Bloomberg piece, headlined "Trump Prepares Pardon List for Aides and Family, and Maybe Himself," which discusses more fully other grants that may be in the works.  Here are excerpts:

President Donald Trump has prepared a sweeping list of individuals he’s hoping to pardon in the final days of his administration that includes senior White House officials, family members, prominent rappers -- and possibly himself, according to people familiar with the matter.

Trump is hoping to announce the pardons on Jan. 19 -- his final full day in office -- and his ideas are currently being vetted by senior advisers and the White House counsel’s office, the people said....

He’s also considering a traditional pardon for Albert Pirro, who previously worked with the president on real estate deals and was convicted of tax fraud. Pirro is the ex-husband of Fox News host Jeanine Pirro, a former district attorney of Westchester County in New York.

Trump is similarly considering pardoning celebrities including rapper Lil Wayne -- with whom he posed for a photo during the presidential campaign --as well as rapper Kodak Black, who is serving time for falsifying paperwork to obtain a firearm.

Other prominent celebrities including rapper Lil Yachty and Baltimore Ravens quarterback Lamar Jackson have publicly lobbied Trump to pardon Kodak Black, who said in a now-deleted tweet that he would donate $1 million to charity if the president freed him.

Trump’s list is currently being vetted by lawyers who are concerned that pardons could create new allegations of obstruction of justice for members of the administration. The process is being managed in part by White House Counsel Pat Cipollone. A White House spokesman did not immediately respond to a request for comment.

While some of the proposed pardons have moved through the legal steps needed inside the White House, the idea of a self-pardon is far less developed, the people say, and so far only at the discussion stage.

I am hopeful, but not really optimistic, that there will be some good number of final Trumpian clemency grants for persons who are not well-connected or famous.  Whether there are or not, I hope Prez-elect Biden comes into office understanding that the best way to restore faith in the pardon power could be by using it right away to advance justice and mercy rather than parochial personal privilege.

A few recent related posts:

January 7, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, December 28, 2020

Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers

This new New York Times piece, headlined "Outside Trump’s Inner Circle, Odds Are Long for Getting Clemency," provides a useful reminder of who is largely being forgotten amidst Prez Trump's clemency largesse.  Here are excerpts:

A vast majority of the people to whom he granted pardons or commutations had either a personal or political connection to the White House, and it appears that only seven were recommended by the government’s pardon attorney, according to a Harvard University professor who is tracking the process....

Many who have applied have little chance of clemency under any circumstances.  But those with sentences they contend are excessive and people who have shown remorse and turned their lives around in prison are hoping for mercy.

“We just are hopeful that the president will extend the pardons to people who aren’t rich, wealthy and well-connected — and there’s certainly thousands of them,” said Holly Harris, a Republican who has worked with Mr. Trump on reforms as head of Justice Action Network, a bipartisan criminal justice reform organization.  “There’s certainly still time for the president to use this extraordinary power to help people who are really struggling.”...

Ferrell D. Scott, 57, hopes the president reviews his petition, which shows he is serving life for marijuana trafficking, a sentence that even the federal prosecutor who tried his case said he did not deserve.

John R. Knock, 73, also serving life on a nonviolent marijuana charge, was already rejected by President Barack Obama but tried again with Mr. Trump. He has been in prison since 1996.  “It’s kind of like a competition instead of a legal procedure,” said Mr. Knock’s sister, Beth Curtis, who has advocated on behalf of her brother and other people serving life sentences for marijuana charges.  “It’s a crony system.”

December 28, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, December 26, 2020

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 24, 2020

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

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

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

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

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

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

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

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

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

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

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

Lots of federal death penalty news and notes after record-setting executions

The historic recent killing spree that the federal government has been conducting — with 10 executions in the last six months and three more slated for early January — has prompted a lot of headlines and commentary.  Here is a sampling of some of the pieces that have caught my eye recently:

From America, "William Barr, a Catholic, went out of his way to use the death penalty (and defy church teaching)"

From Bloomberg Opinion, "The Wrong Way to Fight the Death Penalty"

From NBC News, "Senators ask Justice Department watchdog to investigate federal executions under Trump"

From New York Magazine, "Will Biden Use His Powers to Crush the Death Penalty?"

From Pro Publica, "Inside Trump and Barr’s Last-Minute Killing Spree"

From Refinery29, "Lisa Montgomery Endured Years Of Abuse Before Committing Murder. Can Her Death Sentence Be Overturned?"

From Slate, "The Life Story of Lisa Montgomery"

From Tennessean, "Mary, Jesus, Christmas and the death penalty

From USA Today, "Trump's execution spree reflects death penalty system 'shaped by racial bias,' critics say"

From Vice, "Trump Is Executing 3 More People Before He Leaves Office. Here Are Their Stories."

December 24, 2020 in Criminal justice in the Trump Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Monday, December 14, 2020

Attorney General William Barr announces his resignation ... effective on Festivus

729f0cf5173b56a95ede633168381e5aI suspect Attorney General William Barr may have lots of grievances he is eager to air because today he announced that he will be resigning effective on December 23, which all Seinfeld fans know is Festivus.  This NPR story, headlined "William Barr To Step Down As Attorney General Before Christmas," reports the news and some context:

Attorney General William Barr, an outspoken proponent of conservative values and an expansive view of presidential power, will leave office before Christmas, President Trump announced in a tweet Monday afternoon.

Trump said he and Barr had a "very nice meeting" and that their "relationship has been a very good one." Deputy Attorney General Jeff Rosen will become acting attorney general, Trump said.

Earlier this month, Barr said the DOJ found no evidence of widespread election fraud, directly contradicting President Trump's baseless claims that the election was stolen by Democrats. Ahead of the election, Barr had stood by the president, repeating his unsubstantiated claims that mail-in voting was ripe for fraud.

In less than two years on the job, Barr emerged as perhaps the most divisive attorney general in recent memory for a series of controversial actions, including his handling of special counsel Robert Mueller's report on the Russia investigation and his repeated false claims about the integrity of mail-in voting....

Barr joined the administration halfway through the president's term, and quickly emerged as one of Trump's most loyal and effective defenders. But he came under intense criticism from Democrats and many in the legal community — including even current federal prosecutors — for actions that raised questions about the department's independence.

Barr was nominated in late 2018 to replace Jeff Sessions, a former Alabama senator whose time as attorney general was in large part defined by relentless attacks from Trump — in private and in public — because Sessions recused himself from the Russia investigation. Trump considered that unforgivable and sought, but ultimately failed, to get Sessions to quash the investigation.

That was one reason why members of Congress viewed Barr — a prominent establishment Republican who had been attorney general once before under President George H.W. Bush — as a reassuring choice.  Republicans and Democrats alike had hopes that Barr could bring leadership and a steady hand to the department, which had found itself in the middle of Washington's brutal partisan battles since the 2016 election.

By and large, Barr leaves a department still enjoying strong support from Republicans. Senate Majority Leader Mitch McConnell, R-Ky., and Judiciary Committee Chairman Lindsey Graham of South Carolina repeatedly made clear their strong support for him. Barr's reputation on the other side of the aisle, however, is in tatters.

December 14, 2020 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Friday, December 11, 2020

US completes is second execution in as many days with lethal injection of Alfred Bourgeois

As reported in this AP piece, the "Trump administration continued its unprecedented series of post-election federal executions Friday by putting to death a Louisiana truck driver who severely abused his 2-year-old daughter for weeks in 2002, then killed her by slamming her head against a truck’s windows and dashboard."  Here is more:

Alfred Bourgeois, 56, was pronounced dead at 8:21 p.m. Eastern time after receiving a lethal injection at the federal prison in Terre Haute, Indiana.

His lawyers argued Bourgeois had an IQ that put him in the intellectually disabled category, saying that should have made him ineligible for the death penalty under federal law.  Victor J. Abreu said it was “shameful” to execute his client “without fair consideration of his intellectual disability.”

In his last words, Bourgeois offered no apology and instead struck a deeply defiant tone, insisting that he neither killed nor sexually abused his baby girl.  “I ask God to forgive all those who plotted and schemed against me, and planted false evidence.”  And he added: “I did not commit this crime.”

Bourgeois was the 10th federal death-row inmate put to death since federal executions resumed under President Donald Trump in July after a 17-year hiatus.  He was the second federal prisoner executed this week, with three more executions planned in January....  The last time the number of civilians executed federally was in the double digits in a year was under President Grover Cleveland, with 14 in 1896.

The series of executions under Trump since Election Day, the first in late November, is also the first time in more than 130 years that federal executions have occurred during a lame-duck period.  Cleveland also was the last president to do that.  Bourgeois’ lawyers contended that the apparent hurry by Trump, a Republican, to get executions in before the Jan. 20 inauguration of death-penalty foe Joe Biden, a Democrat, deprived their client his rights to exhaust his legal options....

Several appeals courts have concluded that neither evidence nor criminal law on intellectual disability supported the claims by Bourgeois’ legal team....

In Bourgeois' case, the crimes stand out as particularly brutal because they involved his young daughter....  Bourgeois whipped the girl with an electrical cord, burned her feet with a cigarette lighter and hit her in the head with a plastic baseball bat so hard that her head swelled — then refused to seek medical treatment for her, court documents say. Prosecutors also said he sexually abused her....

It was during a trucking run to Corpus Christi, Texas, that he ended up killing the toddler.  Again angered by her toilet training, he grabbed her inside the truck by her shoulders and slammed her head on the windows and dashboard four times, court filings say.  When the girl lost consciousness, Bourgeois’ wife pleaded for him to get help and he told her to tell first responders that she was hurt falling from the truck. She died the next day in a hospital of brain injuries.

In a statement after the execution, other members of the young girl’s family said she “lost her life brutally to a monster who lived for 18 years after the crime.” “Now we can start the process of healing,” the statement, distributed by the Bureau of Prisons, said.  “It should not have taken 18 years for us to receive justice for our angel.  She will forever be loved and missed.”

After his 2004 conviction, a judge rejected claims stemming from his alleged intellectual disability, noting he did not receive a diagnosis until after he was sentenced to death. “Up to that point, Bourgeois had lived a life which, in broad outlines, did not manifest gross intellectual deficiencies,” the court said.  Attorneys argued that finding was based on misunderstandings about such disabilities.  They said Bourgeois had tests that demonstrated his IQ was around 70, well below average, and that his childhood history buttressed their claims.

The Supreme Court denied of Bourgeois's application for a stay of execution and cert petition by a 7-2 vote and it is available at this link.  Justice Sotomayor wrote a dissent, joined by Justice Kagan, that starts this way:

The Federal Death Penalty Act (FDPA) provides that “a sentence of death shall not be carried out upon a person who is mentally retarded.” 18 U.S.C. §3596(c).  The Court today allows the execution of Alfred Bourgeois to proceed even though Bourgeois, who has an IQ between 70 and 75, argues that he is intellectually disabled under current clinical standards.  I would grant his petition to address whether the FDPA prohibits his execution.

December 11, 2020 in Criminal justice in the Trump Administration, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1)

Monday, December 07, 2020

Might federal execution plans be impacted if Attorney General William Barr were to step down in coming days?

Bill-barr-doj-4The question in the title of this post is prompted by these two new press pieces:

From the AP, "Trump ratchets up pace of executions before Biden inaugural"

From the New York Times, "Barr Is Said to Be Weighing Whether to Leave Before Trump’s Term Ends"

Here are extended excerpts from the lengthy and effective AP piece (with a few items emphasized):

As Donald Trump’s presidency winds down, his administration is ratcheting up the pace of federal executions despite a surge of coronavirus cases in prisons, announcing plans for five starting Thursday and concluding just days before the Jan. 20 inauguration of President-elect Joe Biden.

If the five go off as planned, it will make 13 executions since July when the Republican administration resumed putting inmates to death after a 17-year hiatus and will cement Trump’s legacy as the most prolific execution president in over 130 years.  He’ll leave office having executed about a quarter of all federal death-row prisoners, despite waning support for capital punishment among both Democrats and Republicans.

In a recent interview with The Associated Press, Attorney General William Barr defended the extension of executions into the post-election period, saying he’ll likely schedule more before he departs the Justice Department.  A Biden administration, he said, should keep it up. “I think the way to stop the death penalty is to repeal the death penalty,” Barr said. “But if you ask juries to impose and juries impose it, then it should be carried out.”

The plan breaks a tradition of lame-duck presidents deferring to incoming presidents on policy about which they differ so starkly, said Robert Durham, director of the non-partisan Death Penalty Information Center.  Biden, a Democrat, is a death penalty foe, and his spokesman told the AP that he’d work to end the death penalty when he is in office.  “It’s hard to understand why anybody at this stage of a presidency feels compelled to kill this many people … especially when the American public voted for someone else to replace you and that person has said he opposes the death penalty,” Durham said. “This is a complete historical aberration.”...

Anti-death penalty groups want Biden to lobby harder for a halt to the flurry of pre-inaugural executions, though Biden can’t do much to stop them, especially considering Trump won’t even concede he lost the election and is spreading baseless claims of voting fraud.  The issue is an uncomfortable one for Biden given his past support for capital punishment and his central role crafting a 1994 crime bill that added 60 federal crimes for which someone could be put to death....  Several inmates already executed on death row were convicted under provisions of that bill, including ones that made kidnappings and carjackings resulting in death federal capital offenses.

The race of those set to die buttresses criticism that the bill disproportionately impacted Black people.  Four of the five set to die over the next few weeks are Black.  The fifth, Lisa Montgomery, is white.  Convicted of killing a pregnant woman and cutting out the baby alive, she is the only female of the 61 inmates who were on death row when executions resumed, and she would be the first woman to be executed federally in nearly six decades.

The executions so far this year have been by lethal injection at a U.S. penitentiary in Terre Haute, Indiana, where all federal executions take place.  The drug used to carry out the sentences is sparse.  The Justice Department recently updated protocols to allow for executions by firing squad and poison gas, though it’s unclear if those methods might be used in coming weeks.

The concern about moving forward with executions in the middle of a pandemic — as the Bureau of Prisons struggles with an exploding number of virus cases at prisons across the country — heightened further on Monday when the Justice Department disclosed that some members of the execution team had tested positive for the virus.... 

Barr suddenly announced in July 2019 that executions would resume, though there had been no public clamor for it.  Several lawsuits kept the initial batch from being carried out, and by the time the Bureau of Prisons got clearance the COVID-19 pandemic was in full swing....  Critics have said the restart of executions in an election year was politically motivated, helping Trump burnish his claim that he is a law-and-order president.  The choice to first execute a series of white males convicted of killing children also appeared calculated to make executions more palatable amid protests nationwide over racial bias in the justice system....

The expectation is that Biden will end the Trump administration’s policy of carrying out executions as quickly as the law allows, though his longer-term approach is unclear. Durham said that while Obama placed a moratorium on federal executions, he left the door open for future presidents to resume them.  Obama, for whom Biden served as vice president, never employed the option of commuting all federal death sentences to life terms.  As president, Biden could seek to persuade Congress to abolish the federal death penalty or simply invoke his commutation powers to single-handedly convert all death sentences to life-in-prison terms. “Biden has said he intends to end the federal death penalty,” Durham said. “We’ll have to wait and see if that happens.”

Though Prez Trump has a long history of supporting the death penalty, that there was no clear effort to move forward with executions when Jeff Sessions was Attorney General during Prez Trump's first few years in office has led me to assume that the resumption of federal executions has been Attorney General William Barr's "passion project."  And the fact that AG Barr is apparently telling the AP that "he’ll likely schedule more before he departs the Justice Department" leads me to wonder if one reason AG Barr has not stepped down from his post already is because he is now eager to preside over as many executions as possible given that Prez-elect Joe Biden has pledged to shut down the federal machinery of death.

Of course, even if William Barr were to step down as Attorney General in the coming days, the work of the Trump Department of Justice would continue and likely would include continued efforts to carry out at least the five currently scheduled executions.  Still, as COVID-based and other litigation surrounds the pending executions, a Justice Department without AG Barr might be just a little less eager to get every possible condemned person to the execution chamber before noon on January 20, 2021.

December 7, 2020 in Criminal justice in the Trump Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Wednesday, November 25, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, November 09, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, October 28, 2020

Digging carefully into what the FIRST STEP Act has, and has not, really achieved

Malcolm C. Young, a long-time justice reform advocate, sent me an interesting new report he has completed titled "How Much Credit Should Trump be Given for the First Step Act?".  This new report, which I recommend in full, is a continuation of some research which was recently published in the Journal of Community Corrections under the title "The First Step Act and Reentry."  That Fall 2019 article makes the case that "as a law intended to improve federal reentry, the FSA falls short."  Young's new report, which can be downloaded below, is a detailed effort to pushback on some of Prez Trump's claims about "his" achievements through the FIRST STEP Act.  Here is an excerpt from the start of the report:

Trump is entitled to take credit for signing the FSA into law and the reductions in the federal prison use that followed. But the FSA, which was drafted by legislators, is neither the first nor the largest reform in recent years.  For examples, a reform in sentences for crack cocaine at the close of the George Bush administration reduced the use of federal prisons by close to three-quarters of the reduction obtained from the FSA.  A downward adjustment in drug sentences that cleared the United States Sentencing Commission (USSC) during the Obama administration resulted in nearly half-again as much a reduction in prison use (146%) as resulted from the FSA at the end of its first year.  And, finally, including the downward adjustment in drug sentences, Obama-era reforms resulted in more than double (230%) the FSA’s reduction in prison use in its first year.

As to benefits for Black Americans, the FSA’s reductions in sentences for crack cocaine benefited Black individuals disproportionally, as intended, yet very little more than did three similarly structured reforms intended to alleviate racial disparities in federal drug sentencing.  The FSA’s other provisions benefit smaller proportions of Black individuals.

As to reentry, the Trump administration's claim that, “[t]he landmark First Step Act enacted commonsense criminal justice reform that is helping prisoners gain a new lease on life and is making America safer” is, regrettably, simply not true.  These aspects of the FSA are not working.  But the fault lies more with Congress than Trump.

Download Trump and the First Step Act October 2020

October 28, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, October 22, 2020

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.

October 22, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Sunday, August 30, 2020

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.

August 30, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Friday, August 28, 2020

Has anyone sentenced to life without parole ever before been granted a full Prez pardon?

Earlier today, I asked in this post "Has anyone sentenced to life without parole ever before spoken on final night of major political convention?".  I was referencing, of course, Alice Marie Johnson having the chance to tell her story during the final night of the Republican National Convention. 

But now, as this post title highlights, I have a new, update question about Ms. Johnson based on this news as reported by Politico:  "President Donald Trump on Friday granted a full pardon to Alice Marie Johnson — the 65-year-old Memphis woman whose life sentence he commuted two years ago — just hours after Johnson spoke on behalf of Trump’s reelection campaign during the Republican National Convention."  Here is more:

Johnson was serving life in prison for a nonviolent drug offense when Trump commuted her sentence in June 2018 at the urging of reality TV star Kim Kardashian West, who visited the White House to advocate for Johnson’s release.

On Thursday, during the final night of Republicans’ nominating convention, Johnson delivered a primetime speech testifying to Trump’s “compassion” and commending the administration’s work to advance criminal justice reform legislation. “My transformation was described as extraordinary,” she said. “Truth is, there are thousands of people just like me who deserve the opportunity to come home.”

In an interview later Friday on CNN, Johnson said she “had no idea” Trump would grant her a pardon during their White House meeting.

August 28, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Has anyone sentenced to life without parole ever before spoken on final night of major political convention?

The question in the title of this post is prompted, of course, by Alice Marie Johnson having the chance to tell her story during the final night of the Republican National Convention.  I was on the road, so I missed the speech live, but PBS has it available via YouTube at this link.  And here is a round-up of just some media coverage of what seems like a historic speech:

Via BuzzFeed News, "Alice Johnson, Whose Sentence Was Commuted By Trump, Gave An Uplifting Speech About Criminal Justice Reform At The RNC"

Via CNN, "Alice Johnson shares powerful redemption story at RNC"

From The Hill, "Alice Johnson praises Trump for First Step Act, urges compassion for 'forgotten faces'"

Via Yahoo Entertainment, "Former Inmate Alice Johnson, Championed by Kim Kardashian & Freed by Trump, Urges More Change at RNC"

I am often quite discouraged these days about both the state of our nation and the state of our politics.  But here is hoping that we can all find some joy and inspiration in this one story to keep moving (and move faster) on badly needed reform to all our criminal justice systems in incarceration nation.

August 28, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 26, 2020

Highlighting disorder under an administration trying to lay claim to "law and order"

Miriam Aroni Krinsky and Roy L. Austin, Jr. have this notable new Hill commentary headlined "Bad law and failed order." I recommend the piece in full, and here are excerpts:

As the Republican National Convention plays out this week, a public service warning to all Americans: Don’t buy the hype you are hearing when it comes to crime in America....

First, we must level-set.  More than 178, 000 people in the United States have died from COVID-19 in the last nine months, and that number is likely an undercount.  On the other hand, in 2018, the last full year of available data, there were 16,214 homicides in the U.S. — less than 10 percent of the deaths from a virus this president has largely ignored.  In fact, homicide is not even in the top 10 causes of death in America....

The average number of annual homicides under President Obama (15,177) was more than 1,000 fewer than under President Trump (16,754).  At the same time, Trump has overseen a dramatic increase in hate crime.  In Trump’s two years for which data is available, there were 7,175 and 7,120 hate crimes — significantly more than in any year that President Obama was in office.  And police officers have statistically been no safer from felonious death under Trump (50 per year) than under Obama (51).

This administration’s hypocrisy over local rule must also be examined.  President Trump, Attorney General William Barr and their allies regularly attack reform-minded prosecutors and encourage federal intervention.  But these local prosecutors were elected by their communities explicitly because of their commitment to reform the system.  Yet, when it comes to COVID-19, where federal leadership is critical, this administration hypocritically insists on deferring to local rule....

What these reform-minded prosecutors understand is that past “tough on crime” practices didn’t work.  For more than two decades, regardless of what party has held the presidency, homicide numbers have remained at historic lows. Despite annual state and local law enforcement and corrections spending of close to $200 billion, the homicide rate has barely moved and the clearance rate for homicides and other crimes remains pathetically low. The number of people law enforcement officers annually kill — more than 1,000 — also remains stubbornly consistent.

Despite the Trump administration’s attempt to spread fear among suburban voters, we know that we can significantly reduce the footprint of law enforcement while also enhancing community safety and constitutional policing.  In New York City, there were 685,724 police stops in 2011.  From 2014 through 2017, that number was below 50,000, and the number of homicides and violent crimes trended down significantly throughout that period.

While under a federal consent decree, New Orleans had its lowest homicide numbers in decades. While it is too early to determine whether we are seeing any significant uptick in violent crime, the economic consequences of Trump’s failed COVID-19 response, his refusal to address the proliferation of firearms and his encouragement of police violence would be the most likely causes.

Those fighting for dramatic changes to our criminal system recognize that, to truly enhance public safety, we must address underlying societal problems and fortify community trust.  We must treat substance use disorder as the public health issue that it is.  We must ensure people have jobs paying decent wages.  We must reduce homelessness and provide quality, affordable housing.  We must be smarter about education spending and eliminate school police who propel Black and Brown kids into the justice system.  We must stop the disparate searches, arrests, detention, use of force and incarceration of people of color.  And we must not ignore racism in all systems, because only when there is equality and justice will there be safety.

August 26, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Tuesday, August 25, 2020

Prez Trump grants pardon to Jon Ponder just before his RNC convention speech

As reported in this Fox News piece, "President Trump on Tuesday announced a pardon of Jon Ponder ahead of the convicted bank robber's appearance at the Republican National Convention on Tuesday night."  Here is more:

Ponder, who founded the nonprofit Hope For Prisoners, will be speaking at the convention, along with Richard Beasley, the FBI agent who arrested him, Fox News is told.

Ahead of the appearance, the president announced the pardon in a video.

Here is a link to the video announcing the pardon and providing more background on Jon Ponder, and this JustLeadershipUSA biography details some of what Ponder has been doing in service to criminal justice reform:

Jon D. Ponder is the founder and CEO of HOPE for Prisoners, Inc. In 2017, Jon was appointed by Governor Brian Sandoval to the Nevada Sentencing Commission and to the Nevada Commission on Postsecondary Education. He was appointed to the Governor’s Reentry Taskforce and the US Commission on Civil Rights Nevada State Advisory Committee in 2016. Jon holds a seat on the Executive Committee of RECAP (Rebuilding Every Community Around Peace) with the Las Vegas Metropolitan Police Department.  His responsibilities include oversight of all aspects of the programs and services provided by HOPE for Prisoners, including a comprehensive array of program components designed to assist individuals to successfully reintegrate into society.  He develops and implements strategic planning for the organization and is extremely passionate about the value of mentoring for persons coming out of correctional settings.

Jon was himself formerly incarcerated and has more than twelve years’ experience in providing training for offender populations in correctional settings.  His personal life experiences equip him to provide the guidance, direction and motivation for individuals attempting to navigate the challenges they face during the reintegration process.

August 25, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"The RNC Can't Figure Out Where It Stands on Criminal Justice Reform"

The title of this post captures my own thinking about the somewhat confusing messages being delivered so far from the Republic convention (after the Democratic convention, sadly, barely discussed the issue).  The title of this post is also the headline of this effective new Reason piece by C.J. Ciaramella, which includes these passages:

Speakers at the first night of the 2020 Republican National Convention tried to navigate two competing messages on the criminal justice system.  One was that Joe Biden was an architect of mass incarceration and lock-em-up policies, which Donald Trump rightfully rolled back.  The other message was that only Republicans will stand up for police and the law.

Sen. Tim Scott (R–S.C.), the only black Republican in the Senate, assailed Joe Biden for his role in the 1994 crime bill and creating sentencing disparities between crack and powder cocaine. "Trump fixed many of the disparities that Biden created and made our system more fair and just for all Americans," Scott said, referring to the passage of the 2018 FIRST STEP Act.  Georgia Democrat Vernon Jones, venturing into hyperbole, claimed that Trump "ended once and for all the policy of incarceration of black people." (Although the legislation did result in the release of several thousand federal inmates, it did not abolish the federal prison system, Reason regrets to report.)

But at the same time that speakers were lauding Trump for criminal justice reforms that rolled back some of the laws that Biden helped pass, they were making constant references to riots, violent criminals being let loose on the street, and the threat of antifa mobs coming to your suburban neighborhood once the Marxist Democrats defund the police....

Backing the blue has been one of the centerpieces of Trump's "LAW AND ORDER!" reelection campaign.  Trump's campaign released a 2nd term agenda Sunday night, seeking to put to rest questions of what exactly, if anything, the president and Republicans stand for.  The list of about 50 bullet points includes five under the heading "Defend Our Police."

  • Fully Fund and Hire More Police and Law Enforcement Officers
  • Increase Criminal Penalties for Assaults on Law Enforcement Officers
  • Prosecute Drive-By Shootings as Acts of Domestic Terrorism
  • Bring Violent Extremist Groups Like ANTIFA to Justice
  • End Cashless Bail and Keep Dangerous Criminals Locked Up until Trial

The Republican Party decided to forgo releasing a party platform this year, instead simply saying it supports Trump's agenda.  So this thin gruel, along with speeches at this week's RNC, are what constitute the Republican positions on criminal justice....

Although it will probably come to nothing but more culture war fodder, the inclusion of a pro-cash bail item in Trump's 2nd term agenda is a clearer sign of the Trump administration's priorities on criminal justice than a bill signed two years ago.

August 25, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, August 19, 2020

Reviewing reservations about Prez Trump's latest slate of US Sentencing Commission nominees

Law360 has this effective new piece highlighting concerns about the make-up of the slate of US Sentencing Commission nominees announce by Prez Trump last week (basics here). The piece is headlined "Why Trump's Sentencing Panel Picks Worry Reform Boosters," and I recommend in in full.  Here is how it begins:

President Donald Trump has tapped five people for the influential commission that sets guidelines for federal prison sentences, but advocates for change on both the left and the right are calling the slate "antithetical to reform" and urging senators not to confirm the picks.

Prior related posts:

August 19, 2020 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, August 13, 2020

Prez Trump finally announces full slate of (unlikely to be confirmed?) new nominees for the US Sentencing Commission

As many readers may know, the US Sentencing Commission has lacked a full slate of Commissioners for the entirety of Trump Administration.  With only two (of seven) Commissioners in place since the start of 2019, the USSC has lacked a quorum and thus cannot complete any formal work (including a lot of work that should and needs to be done in response the the FIRST STEP Act).  Part of the problem, as I have covered in this space, was that at least one of the four nominees that Prez Trump put forward back in March 2018 was of great concerns to a great many.

Against this backdrop, I was intrigued to see two months ago this NPR report (which was blogged here) about a new slate of potential nominees, more than a few of which were considered controversial for their perceived punitiveness.  At that time, I speculated that I was unsure if even an uncontroversial slate of USSC nominees could get confirmed by the US Senate in the run up to the November election (or in the lame-duck period thereafter).   Not having heard anything on this front for two more months, I was unsure if the Trump Administration was even going to try to fill these spots in 2020. 

But yesterday brought this White House announcement, titled "President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts."

Today, President Donald J. Trump announced his intent to nominate the following individuals to key positions in his Administration:

Judge K. Michael Moore, of Florida, as Chairman of the United States Sentencing Commission.

Judge Michael Moore serves as the Chief Judge of the United States District Court for the Southern District of Florida, a post which he has held since 2014.   Judge Moore was appointed to the Southern District of Florida by President George H. W. Bush in 1992.  Before his appointment to the Federal bench, Judge Moore served as the Director of the United States Marshals Service and as the United States Attorney for the Northern District of Florida.  Judge Moore also spent over a decade of service as an Assistant United States Attorney.

Judge Claria Horn Boom, of Kentucky, as a Commissioner of the United States Sentencing Commission. 

Judge Claria Horn Boom serves as a United States District Judge for the Eastern and Western Districts of Kentucky.  Judge Boom was appointed to the Eastern and Western Districts of Kentucky in 2019 by President Donald  J. Trump.  Before her appointment to the Federal bench, Judge Boom served as an Assistant United States Attorney in the Eastern and Western Districts of Kentucky and was in private practice in Lexington, Kentucky and Atlanta, Georgia.

Judge Henry E. Hudson, of Virginia, as a Commissioner of the United States Sentencing Commission. 

Judge Henry Hudson serves as a Senior United States District Judge for the Eastern District of Virginia.  Judge Hudson was appointed to the United States District Court bench in 2002 by President George W. Bush.  Before his appointment to the Federal bench, Judge Hudson served as a Virginia Circuit Judge for Fairfax County, Director of the United States Marshals Service, as the United States Attorney for the Eastern District of Virginia, and as the Commonwealth’s Attorney for Arlington County, Virginia.

John G. Malcolm, of the District of Columbia, as a Commissioner of the United States Sentencing Commission. 

John Malcolm is Vice President for the Institute for Constitutional Government and the Director of the Meese Center for Legal & Judicial Studies at the Heritage Foundation.  Mr. Malcolm also serves as a Member of the Board of Directors of the Legal Services Corporation.  Mr. Malcolm previously served as the General Counsel at the United States Commission on International Religious Freedom, as a Deputy Assistant Attorney General in the Criminal Division of the Department of Justice, and as an Assistant United States Attorney for the Northern District of Georgia.

Judge Luis Felipe Restrepo, of Pennsylvania, as a Commissioner of the United States Sentencing Commission. 

Judge Phil Restrepo serves as a Circuit Judge of the United States Court of Appeals for the Third Circuit.  Judge Restrepo was appointed to the Third Circuit in 2016 by President Barack Obama.  Prior to his elevation to the Third Circuit, Judge Restrepo served as a United States District Judge for the Eastern District of Pennsylvania, a post to which he was also nominated by President Obama.  Prior to his service on the United States District Court, Judge Restrepo served for seven years as a United States Magistrate Judge, practiced privately, and served as an Assistant Federal Public Defender in the Eastern District of Pennsylvania.

Though I am always pleased to see the US Sentencing Commission getting some needed attention, I find this announcement puzzling and troublesome for various reasons.  For the most elemental of starters, the US Sentencing Commission is a judicial branch agency and not part of an executive administration.  Thus, I find it puzzling that this announcement speaks of Prez Trump's USSC nominations as involving "key positions in his Administration."  This is a small point, but I think a telling one, about both the importance and independence of the USSC (or lack thereof).

Next, I am troubled by the lack of diversity in these picks.  The NPR story a few months ago included a fitting quote on this front: "'The administration has put forth a slate that is all white, mostly male, and lacking in diverse experiences or backgrounds,' said Sakira Cook, director of the justice reform program at the Leadership Conference on Civil and Human Rights."  Moreover,  all but one of the new nominees are sitting federal judges when the two current USSC members are also both judges.  There is a remarkable irony here, I suppose, given that the GOP pushed during the Bush Administration to change the USSC's statutory charter so that instead of requiring at least three judges it allowed no more than three judges among the USSC's seven members (this composition requirement was changed back in later years).  Now, with Prez Trump as the head of the GOP, it seems he wants almost exclusively judges at the USSC. 

Last but not least, the USSC's statutory charter still states that "not more than four of the members of the Commission shall be members of the same political party."  These biographies suggest that four of these five nominees may be members of the GOP, even though there is already one GOP member on the USSC.  Of course, people can and do change party membership all the time for all sorts of reasons, but this political history still further aggravates my worry that this slate of nominees would not help create a diverse and balanced and dynamic US Sentencing Commission. 

Again, I am inclined to believe that it is unlikely for any slate of USSC nominees to get confirmed by the US Senate in 2020.  But now that it seems these nominations have been officially made, it would seem there is now a chance. 

Prior related posts:

UPDATE: A helpful exchange on Twitter allowed me to understand why these nominations are not quite a "full slate" for the USSC even though this slate has are five nominees and there are two current USSC members (Judges Charles Breyer and Danny Reeves).  I was told that current Commissioner Reeves will be leaving that role in October, so there will be one more open slot in a couple of months for another nominee.  And, consistent with the statutory need for "not more than four of the members of the Commission shall be members of the same political party," it would seem this nominee would need to be a Democrat.

August 13, 2020 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

Wednesday, July 01, 2020

Was Prez Trump's real political mistake not going bigger on criminal justice reform?

The question in the title of this post is prompted by this Axios piece headlined "Scoop: Trump regrets Kushner advice."  Here are some excerpts:

President Trump has told people in recent days that he regrets following some of son-in-law and senior adviser Jared Kushner's political advice — including supporting criminal justice reform — and will stick closer to his own instincts, three people with direct knowledge of the president's thinking tell Axios.

Behind the scenes: One person who spoke with the president interpreted his thinking this way: "No more of Jared's woke s***." Another said Trump has indicated that following Kushner's advice has harmed him politically.

Why it matters: This could be the final straw for federal police reform legislation this year, and it could usher in even more incendiary campaign tactics between now and November.

Details: The sources said the president has resolved to stick to his instincts and jettison any policies that go against them, including ambitious police reform.

  • Trump dipped his toe into police reform under pressure after a Minneapolis police officer killed George Floyd — with an executive order that activists considered toothless  but he will likely go no further to restrain law enforcement officers, according to senior administration officials.
  • Trump has made clear he wants to support law enforcement unequivocally, and he won't do anything that could be seen as undercutting police....
  • In response to this reporting, White House press secretary Kayleigh McEnany said in a statement, "President Trump is very proud of the historic work that he's done to benefit all communities.  The First Step Act made historic strides toward rectifying racial disparities in sentencing while his executive order to secure America's streets works with our nation's heroic police officers to ensure we have safe policing and safe communities."...

Between the lines: Trump never really wanted criminal justice reform, according to people who have discussed the subject with him privately.  He's told them he only supported it because Kushner asked him to.  Though he has repeatedly trumpeted it as a politically useful policy at times.

  • Trump now says privately it was misguided to pursue this policy, undercutting his instincts, and that he probably won't win any more African American support because of it.
  • "He truly believes there is a silent majority out there that's going to come out in droves in November," said a source who's talked to the president in recent days.

Anyone who has followed Prez Trump through the years should not be surprised by reporting that he has never been a real fan of criminal justice reform or that he is eager to praise and promote the police.  But Prez Trump did play a key role in getting the FIRST STEP Act enacted back in 2018 and it has seemed his campaign had wanted to make this fact a significant talking point in the 2020 political season.  But, in light of Prez Trump's poor recent poll numbers and his disaffinity for bold racial justice efforts, this story suggests he may be giving up on the prospect of securing any political advantage from criminal justice reform efforts.

But, as the question in the title of this post is meant to suggest, I think Prez Trump may be getting little political credit for criminal justice reform because he failed to really go big and because his frequent "tough" talk eclipses his reform efforts.  Had Prez Trump pushed dramatic and historic reforms — by, say, advocating for federal marijuana reforms and pushing for a federal expungement statute and creating a clemency council in the White House — he might well have burnished a real reputation as a real reformer.  And if Prez Trump stressed how these kinds of reforms advanced racial justice and racial equity in our criminal justice system, I really think he could have secured significant political benefits from being much more progressive on these issues than Joe Biden has historically been.

July 1, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, June 23, 2020

Roger Stone's past sentencing and coming prison time making headlines

I am not sure which of these stories surprises me less:

From ABC News, "Citing coronavirus fears, Roger Stone files motion to delay reporting to Georgia prison"

A week before President Donald Trump's longtime friend and adviser Roger Stone was scheduled to turn himself in to federal prison in Georgia to begin his more than three-year sentence, his lawyers filed a motion seeking to delay his surrender, citing the deadly risk posed by the coronavirus outbreak.

“This motion is based on the exceptional circumstances arising from the serious and possibly deadly risk [Stone] would face in the close confines of a Bureau of Prisons facility, based on his age and medical conditions,” the motion says. “Those medical conditions make the consequences of his exposure to the COVID-19 virus in a prison facility life-threatening.”

The 67-year-old was sentenced to 40 months in prison on Feb. 20 by Judge Amy Berman Jackson in Washington, D.C. Stone's attorneys also asked to file a letter under seal from a physician concerning their client's medical conditions.

From Politico, "Prosecutor says he was pressured to cut Roger Stone 'a break' because of his ties to Trump"

A prosecutor who withdrew from the Roger Stone case after Justice Department leaders intervened to recommend a lighter sentence intends to testify before Congress that he and his colleagues were repeatedly pressured to cut Stone "a break," and were told that it was because of his relationship with President Donald Trump.

"What I heard – repeatedly – was that Roger Stone was being treated differently from any other defendant because of his relationship to the President," Aaron Zelinsky, one of four prosecutors who quit the case, plans to tell the House Judiciary Committee Wednesday, according to his prepared testimony. "I was also told that the acting U.S. Attorney was giving Stone such unprecedentedly favorable treatment because he was 'afraid of the President.'"

June 23, 2020 in Celebrity sentencings, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

Friday, June 19, 2020

Notable new talk of (badly needed) new nominees for the US Sentencing Commission

The US Sentencing Commission has lacked a full slate of Commissioners for the entirety of Trump Administration. With only two (of seven) Commissioners in place since the start of 2019, the USSC has lacked a quorum and thus cannot complete any formal work (including a lot of work that should and needs to be done in response the the FIRST STEP Act).  Part of the problem, as I have covered in this space, was that at least one of the four nominees that Prez Trump put forward back in March 2018 was of great concerns to a great many.

Against this backdrop, I am fascinated to see this new NPR piece headlined "Concerns Mount Over Possible Trump Picks For Influential Crime Panel."  Here are the particulars:

The White House is preparing to fill several vacancies on the influential commission that makes policy used to punish tens of thousands of criminals every year, according to three sources familiar with the process.  But critics worry that the likely Trump nominees could adopt more punitive approaches at a time when a diverse group of protesters is marching for a different approach to policing and justice.

The sources said the White House is consulting aides on Capitol Hill and in the criminal justice community about four Republican candidates for the U.S. Sentencing Commission: three sitting federal judges and a fellow at the conservative think tank the Heritage Foundation.

An earlier Trump nominee, William Otis, is no longer under consideration, two sources said.  Otis' writings about race and crime had drawn criticism from civil rights groups and prisoner advocates when his name first emerged for the position two years ago.

Civil rights advocates who work on justice issues said the Trump candidates still under discussion are worrisome.  "The administration has put forth a slate that is all white, mostly male, and lacking in diverse experiences or backgrounds," said Sakira Cook, director of the justice reform program at the Leadership Conference on Civil and Human Rights....

Here is a rundown of likely nominees in the coming months:

Senior U.S. District Judge Henry Hudson

Hudson is a former director of the U.S. Marshals Service nicknamed "Hang Em High Henry" for his work as a local prosecutor.  "I live to put people in jail," he once told The Washington Post during his stint in Arlington County, Va. Defense lawyers said Hudson has developed a well-deserved reputation in recent years for handing out long prison sentences from the federal bench.

Chief Judge K. Michael Moore of the Southern District of Florida

From his perch in Miami, Moore has presided over several high-profile drug cases.  Earlier in his career, Moore, too, led the U.S. Marshals under then-President George H.W. Bush.

Kentucky federal judge Claria Horn Boom

Boom was nominated to the judgeship by President Trump three years ago.  She won Senate confirmation for that post with only one negative vote.  Senate Majority Leader Mitch McConnell is one of her supporters.

John Malcolm, director of the Meese Center for Legal and Judicial Studies at the Heritage Foundation in Washington

The Meese Center is named after Reagan-era Attorney General Edwin Meese.  Malcolm helped put together an early list for candidate Trump in the event of a Supreme Court vacancy.  He's also defended the current attorney general, William Barr, for his handling of the special counsel report on Russian election interference and possible obstruction of justice by the president.  Malcolm, a former federal prosecutor, has reached out to allies across the political aisle to try to overhaul how many people serve prison time.  "In my opinion, under our current system, too many relatively low-level drug offenders are locked up for five, 10, and 20 years when lesser sentences would, in all likelihood, more than satisfy the legitimate ... goals of general deterrence, specific deterrence, and retribution," he told Congress five years ago.

Federal Appeals Court Judge L. Felipe Restrepo

Restrepo, who worked as a public defender before being selected for the federal judiciary by then-President Barack Obama, is under discussions for an open Democratic slot on the commission.  Restrepo, of the U.S. Court of Appeals for the Third Circuit, had been advanced for the same Sentencing Commission slot in 2018, but the Senate didn't hold a hearing on him or the other nominees at the time.

I find this story curious and fascinating for a whole lot of reasons.  In addition to seeming to confirm, as I speculated here a few weeks ago, that Bill Otis is no longer on a USSC short-list, this story leads me to wonder whether anyone really thinks any new slate of USSC appointments could get confirmed in the run up to the November election (or in the lame-duck period thereafter).  The addition of a favorite of Senate Majority Leader Mitch McConnell may be explained by this factor.  (Also, my understanding has been that there were three R spots and two D spots open on the Commission right now, so I am not sure this could be the full final slate.)  Very interesting.

Prior related posts:

June 19, 2020 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

Thursday, June 04, 2020

Donald Trump hinting that he will use his clemency powers on behalf of Roger Stone

Last week, as reported here, "Bureau of Prisons spokeswoman Sue Allison told The Associated Press that [Roger] Stone is supposed to surrender to the Bureau of Prisons by June 30" to begin serving his 40-month federal prison sentence.  But, as this new article highlights, a tweet by President Trump this morning suggest that the Prez plans to make sure Stone never has to sleep at a prison facility:

President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe.

The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer.  “This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!”

Trump went on to share that tweet Thursday morning, writing in his own accompanying message: “No.  Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history.  He can sleep well at night!”

The president’s social media post represents his latest intervention in Stone’s case and comes after Trump and Attorney General William Barr were widely rebuked by congressional Democrats and career Justice Department officials for involving themselves in the federal law enforcement matter just a few months ago.

Federal prosecutors had urged in February that Stone be sent to prison for roughly seven to nine years for impeding congressional and FBI investigations into connections between the Russian government and Trump’s 2016 campaign.

But after Trump blasted the prosecutors’ sentencing recommendation in a tweet as a “horrible and very unfair situation,” the Justice Department submitted a revised filing that offered no specific term for Stone’s sentence and stated that the prosecutors’ initial proposal “could be considered excessive and unwarranted.” The four attorneys who shepherded Stone’s prosecution proceeded either to resign or notify the court that they were stepping off the case.

I have long been assuming (as some prior posts below reveal) that Prez Trump will use his clemency pen to keep Stone from serving prison time.  But I have also long been wondering what form of clemency Prez Trump might use.  He could provide Stone with a full pardon, of course, which would wipe away the conviction and all its consequences.  But he also could just commute his prison sentence (which, folks may recall, is what George W. Bush did for Scooter Libby).  Or, perhaps least controversially, Prez Trump could simply use his clemency power to order Sone's prison sentence to be served through home confinement (which, folks should realize, is comparable to what's happening for a number of federal prisoners in response to COVID-19 concerns).

Prior related posts:

June 4, 2020 in Celebrity sentencings, Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Monday, June 01, 2020

Senator Harris and Representative Jeffries write to AG Barr to express "concern about the process for transferring incarcerated individuals to home confinement"

As reported in this AP piece, "Democratic lawmakers are raising questions about the federal Bureau of Prisons’ release of high-profile inmates and are calling for widespread testing of federal inmates as the number of coronavirus cases has exploded in the federal prison system."  Here is more from the press piece:

Sen. Kamala Harris and Rep. Hakeem Jeffries sent a letter Monday to Attorney General William Barr and Bureau of Prisons Director Michael Carvajal over the home confinement policies. They expressed concern that a number of high-profile inmates, including former Trump campaign chairman Paul Manafort and former Trump lawyer and fixer Michael Cohen, had been released despite not meeting all the criteria that the agency has set for inmates prioritized for home confinement.  “As President Trump’s associates are cleared for transfer, tens of thousands of low-risk, vulnerable individuals are serving their time in highly infected prisons,” the lawmakers wrote.

They pointed to the case of Andrea Circle Bear, a 30-year-old pregnant inmate whose baby was delivered by cesarean section while she was on a ventilator after being hospitalized with coronavirus symptoms and who died in federal custody in late April.  They also pointed to the case of a 67-year-old man serving a sentence at FCI La Tuna, a low-security prison in Texas, who has advanced coronary disease and who was initially told he would be released to home confinement but later was told it was rescinded because he hadn’t served at least half of his sentence.

Prison advocates and congressional leaders have been pressing the Justice Department for weeks to release at-risk inmates ahead of a potential outbreak, arguing that the public health guidance to stay 6 feet (1.8 meters) away from other people is nearly impossible behind bars. And they’ve raised alarm about what they’ve described as mixed messages from the prison agency about the criteria for who can be released....

The Bureau of Prisons has disputed that it is giving any preferential treatment to high-profile inmates and has said it has placed 3,544 inmates on home confinement since Barr first issued a memo ordering an increase in the use of home confinement in late March. The response from the Bureau of Prisons on the coronavirus has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety of the about 137,000 inmates serving time in federal facilities.

As of Monday, 5,234 inmates had tested positive for COVID-19 since late March; the Bureau of Prisons said 3,605 had recovered. At least 64 inmates have died. And even though officials have stressed infection and death rates inside prisons are lower compared with outside, a high number of inmates tested come back positive — signs that COVID-19 cases are left uncovered.

Separately, Sens. Elizabeth Warren and Cory Booker asked the Bureau of Prisons to immediately begin conducting “universal diagnostic testing” for all federal inmates and staff members, including those held at privately run facilities, and to publicly release daily data on the number of inmates and staff members who have been tested. “Widespread and continued diagnostic testing is crucial to controlling the COVID-19 pandemic,” they wrote. The lawmakers said the Bureau of Prisons has “not been forthcoming with specific testing protocols” and is not providing specific information about the testing capacity at federal prisons across the U.S.

The full three-page letter referenced in this article is available at this link, and it concludes with a number of questions that would be nice to see answered (e.g., "How many individuals has BOP recommended for transfer to home confinement since March 26, 2020?... Please provide a breakdown of those recommendations by age, gender, race, and crime of conviction.").

June 1, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, May 27, 2020

With his return to blogging, is Bill Otis no longer a potential nominee for the US Sentencing Commission?

Long-time readers should be familiar with the name Bill Otis, not only because he was for years a regular commentor on this blog, but also because he is a prominent former federal prosecutor who often prominently shared his (tough-on-crime) sentencing perspectives in many media.  We have not heard much from Bill in a few years; his recent quietness seemed a direct result of Bill being tapped to be one of Prez Trump's notable March 2018 nominations to the US Sentencing Commission. 

I surmise that when anyone is a Presidential nominee (or thought likely to be a nominee), it is considered good form for that nominee to stay relatively mum during the confirmation process.  And Bill Otis was not just any nominee: though usually only hard-core sentencing nerds pay much attention to USSC nominations, Prez Trump's entire slate of nominees, and especially the naming of Bill Otis, prompted considerable critical commentary from various sources (covered in posts here and here).  Perhaps in part because these nominees were controversial, the Senate never acted on them in 2018 and the nominations lapsed when the "old" Senate officially adjourned.  But, as noted in this post from January 2019, the folks at FAMM were so troubled by the notion of Bill Otis potentially being nominated again, they produced this press release and sent this long letter to Prez Trump "discouraging the re-nomination of William Otis to the U.S. Sentencing Commission." 

Because Bill Otis was remaining quiet through 2019 and early 2020 amidst all sorts of notable and high-profile federal sentencing stories (from Michael Cohen to Felicity Huffman to Paul Manifort to Roger Stone), I figured the folks at FAMM were right to think there remained a real possibility of Bill Otis being nominated again to the USSC.  But, to my surprise, yesterday Bill started blogging again at Crime & Consequences, and he now has posted these two lengthy new entries on the Flynn kerfuffle: "Five Bad Arguments for Gen. Flynn" and "The Winning Argument for Gen. Flynn."  I consider Bill a friend, and I have previously noted how Bill and I have spent considerable time disagreeing on many sentencing matters without being too disagreeable. 

Especially because the fate of the U.S. Sentencing Commission matters a lot more than the fate of one high-profile, white-collar defendant, I am struck more by the fact that Bill Otis is blogging again after a 27-month hiatus than about his latest posts.  And his blogging leads me to wonder, as my post title indicates, whether this tells us something important about potential future USSC nominations.  With the general election now just over five months away, perhaps everyone, including Bill, is now just assuming we will not get any new USSC nominations until 2021 and until after the 2020 election clarifies or recasts political thinking about federal sentencing law and policy.  But maybe there is even more to this story, and maybe even Bill will tell us in his blogging.  Stay tuned.

Prior related posts:

May 27, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (5)

Friday, May 01, 2020

AG Barr deceptively suggests 5000 inmates have been moved from federal prison to home confinement, while BOP now reports moving "1,959 inmates"

Attorney General William Barr participated today in a nationwide #AskTheAG Q&A session via Twitter.  I was glad to see him participating in this forum and also glad to see he answered this question posed by Representative Bobby RushL

Q: Why does DOJ/BOP refuse to release prisoners who pose ZERO threat to society despite the increasing number of deaths happening in federal prisons due to COVID-19? 

AG Barr's answer to this question (second in thread), which runs about about 90 seconds, includes an interesting (and problematic) statement about what has been done to date by DOJ and BOP.  AG Barr explains that, in the CARES Act, Congress broadened DOJ discretion to move more inmates out of prison and into home confinement, and then he says: "We have been using that discretion aggressively, right now we have just short of 5000 in home confinement and we have another 1000 in the pipeline."

In the context of both the question and the rest of AG Barr's answer, this statement seems like a straight-forward assertion that because of coronavirus concerns, DOJ/BOP has already moved nearly 5000 persons out of federal prison and into home confinement (with 1000 more on the way).  Indeed, early media reports here and here and here about this statement have understood and reported what AG Barr said as an indication that 5000 inmates have be relocated from prison to home confinement due to the coronavirus crisis. 

But I do not think that suggestion matches with BOP reality because BOP's own COVID-19 Update page, as of the afternoon of May 1, reports (emphasis added):

Since the release of the Attorney General's original memo to the Bureau of Prisons on March 26, 2020 instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 1,959 inmates on home confinement.

It is my guess that the Attorney General, when stating "right now we have just short of 5000 in home confinement," was actually referencing the total number of persons on home confinement, thousands of which were already serving their sentences at home before COVID came along.  According to the BOP, which has been reporting these data on an on-going basis for weeks, AG Barr inflated the real numbers here by 150% to suggest doing a whole lot more than BOP actually is.  (Notably, the real BOP numbers would reflect a movement of just over 1% of the federal prison population into home confinement; even AG Barr's total inflated numbers would still only get us to just over 3% of the federal prison population moved into home confinement.  And, critically, current data show there are still well over 10,000 federal prisoners over age 60 and surely many more with COVID vulnerabilities.) 

It strikes me as extremely deceptive and problematic that the AG in this context used phrasing to create the misimpression that thousands more persons were being moved to home confinement due to COVID than BOP's own website reports.  And I suspect he did this not only to create the misimpression that DOJ/BOP has been taking major steps in this arena, but also to bolster arguments being made by prosecutors in courtrooms around the country that judges ought to trust how BOP is handling the COVID crisis and not grant requests from persons in prison for relief from dangerous prison conditions.

UPDATE: I am disappointed, but not surprised, to see this New York Times piece about AG Barr's comments reiterating the inaccuracy in the AG's deceptive statement:  "Mr. Barr said that the bureau took 'the health and safety of our inmates very seriously,' and had moved to release nearly 5,000 prisoners to home confinement and had another 1,000 in the pipeline."    Similarly, Fox News repeated this misrepresentation in its story: "Barr replied to the Democratic congressman that the Department of Justice had used its authority under the First Step Act to move nearly 5,000 prisoners who were considered vulnerable to COVID-19 from incarceration to home confinement, and had another 1,000 'in the pipeline' to be moved." 

Dare I say it: FAKE NEWS, thanks to the Attorney General mostly, but also thanks to media not following up properly with a check of the official BOP data! 

In any event, I would now suggest advocates try to turn the lemon-sour deception of AG Barr into decarceration lemonade by arguing, in every venue, that the AG's comments have served to create a short-tern goal of getting a full 6000 COVID-vulnerable prisoners who were incarcerated in March into home confinement before the end of May.

May 1, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Thursday, April 23, 2020

Great new Politico Magazine feature on "Justice Reform: The Decarceration Issue"

The Politico Magazine has a bunch of great new articles on criminal justice reform issued collected here under the heading "Justice Reform: The Decarceration Issue."  Here are the lengthy pieces under this heading with their full headlines:

Biden vs. Trump: Who’s the Actual Criminal Justice Reformer?: Suddenly, both the Republican and Democrat promise big changes. We matched their policies head-to-head, and asked experts for a reality check.

A Republican Crusader Takes on Oklahoma’s Prison Machine: In the state that locks up more of its citizens than any other, a former politician is using the ballot box—and some surprising alliances—to nudge his own party toward change.

How Oklahoma Popped Its Prison Bubble, In Charts: In 2016, Oklahoma incarcerated more people per capita than any other state. Then it began to bring those numbers down.

New York Tried to Get Rid of Bail. Then the Backlash Came. A national movement stalled by backlash politics gets some new wind at its back.

April 23, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Recommended reading, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, April 09, 2020

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

2020-04-09Every 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.

April 9, 2020 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Thursday, March 26, 2020

Will thousands of federal prisoners be eligible for home confinement under AG Barr's new guidelines?

Attorney General William Barr's new directive and guidelines to the Bureau of Prisons to prioritize home confinement for certain at-risk inmates can be seen as a small response to a big emergency.  This CBS News piece notes one response along these lines:

The announcement comes after calls from criminal justice advocacy groups to reduce prison populations nationwide in order to avoid what could be a disastrous and dangerous spread of the virus.  Kevin Ring, the president of Families against Mandatory Minimums, told CBS News his concern is that inmates will die unnecessarily if the bureau does not take "bolder" actions.  Ring says officials should consider other avenues like compassionate release.  "I don't think it's enough," Ring said.  "I think it's a small step in the right direction, but I think it's a peacetime move in a time of war."

Though I share the view that even bolder action is warranted, the extraordinary size and relatively low-risk profile of the federal prison population might still well mean that many thousands of federal inmates could be moved out of prison if BOP robustly implements AG Barr's guidance. The CDC states that "older adults and people of any age who have serious underlying medical conditions may be at higher risk for more serious complications from COVID-19," and possibly as much as 20% of the 175,000+ inmates might reasonably claim to be a-risk under CDC criteria and also claim to meet the other home confinement criteria set out by AG Barr.

Even assuming that only a very small percentage of prisoners, say, only 1 out of every 15 current federal prisoners, meet the home confinement criteria, that would still mean that well over 11,000 federal prisoners would be eligible to head home to serve out the rest of their sentences.  Because BOP has a well-earn reputation for being unwilling or unable to help prisoners get out of federal facilities early, I am not so confident that we will soon be seeing thousands of federal prisoners heading home.  But the directive from AG Barr now would seem to make that more of a possibility.

Prior related posts:

March 26, 2020 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (7)

FAMM urges AG Barr to use new pending CARES Act provision to move federal prisoners into home confinement

I have not yet seen the exact language of the provision in the sure-to-pass federal CARES Act that expands the authority of the Justice Department and the Bureau of Prisons to move more persons from federal prison into home confinement.  But I have seen this new press release from FAMM, which starts this way:  

FAMM President Kevin Ring sent a letter today urging U.S. Attorney William Barr to immediately use his authority to release eligible people to home confinement as soon as the CARES Act becomes law.  The CARES Act, which was passed by the Senate last night and is expected to be approved by the House and signed by the president, permits the Director of the Federal Bureau of Prisons to lengthen the maximum amount of time that a prisoner may be placed in home confinement, if the U.S. Attorney General finds that emergency conditions will materially affect the functioning of the BOP.

“In order to prevent unnecessary deaths and suffering, the BOP needs to get as many people out of prison as it safely can and get them to home confinement immediately,” Ring said.  “Congress is giving the attorney general the authority to make that happen.  We urge the attorney general to act the moment this bill is signed into law.  Lives are at stake.”

Ring said the use of home confinement would also ease the burden on halfway houses, in which movement has been restricted, employment opportunities have been halted, and people are confined in tight quarters.  As with people in prison, halfway house residents cannot comply with CDC guidance regarding social distancing and good hygiene.

March 26, 2020 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Tuesday, March 24, 2020

Broad coalition urges Prez Trump to commute the federal sentences in response to coronavirus crisis

A whole bunch of public policy and civil rights groups have just sent this short letter urging Prez Trump to utilize his clemency power to commute the federal sentences of those "who could benefit from compassionate release, and other populations that are exceptionally vulnerable to coronavirus."  The letter details the COVID-19 emergency emerging in prisons and jails and closes with this ask:

We call upon you to commute the federal sentences of individuals who could benefit from compassionate release, including those who: 

  • Are older and elderly; 
  • Have a terminal medical condition; 
  • Have a debilitated medical condition; 
  • Suffer from a chronic medical condition; or 
  • Have suffered a death of a family member who is a primary caregiver to a child of the person incarcerated.

In addition to commuting the federal sentences of individuals who could benefit from compassionate release, we call upon you to use your clemency power to release those incarcerated at the federal level who are elderly and/or particularly vulnerable to serious illness or death from COVID-19 due to underlying health conditions as identified by the Centers for Disease Control and Prevention, including: 

  • Blood disorders; 
  • Chronic kidney disease; 
  • Chronic liver disease; 
  • Compromised immune system (immunosuppression); 
  • Current or recent pregnancy; 
  • Endocrine disorders; 
  • Metabolic disorders; 
  • Heart disease; 
  • Lung disease; 
  • Neurological and neurologic and neurodevelopment conditions; and 
  • Hypertension.

As we work to combat the spread of the coronavirus pandemic, it is essential that we not forget about the millions of Americans currently incarcerated and working in jails, prisons and detention centers, and that we take action to protect those who are the most vulnerable to COVID-19. Again, we ask you to commute the sentences for those populations at the federal level most vulnerable to coronavirus.

UPDATE: It is worth noting here that this call to Prez Trump to use his clemency powers to move people out of federal prisons could and should also be directed, on similar terms, to Governors across the nation.  Helpfully, I just got word from Margy Love that the Collateral Consequences Resource Center has a new resource on state clemency posers. This CCRC post provides the details and other helpful links:

At this time of pandemic, we have been following the discussions of how jail, prison, and immigration detention conditions are highly concerning, including the very useful collection of links provided by Professor Doug Berman, the demands published by advocacy organizations, and the collection of policy responses by the Prison Policy Institute.  We agree that every available legal mechanism must be enlisted to secure the release of prisoners and detainees who pose little or no threat to public safety, and whose health and safety are themselves severely threatened by their enforced captivity.  This includes the great constitutional powers given to governors and pardon boards.  We therefore commend our newly revised pardon resources to advocates and policy makers to support their advocacy and action.

While our pardon-related research focuses primarily on how the power is used to restore rights and status to those who are no longer in prison, much of our information about how the pardon process is structured and operates is relevant to how the power might be used (or is already being used) to commute prison sentences during the pandemic.  Our revised pardon resources are part of a major revision of the CCRC Restoration of Rights Project, not only to make sure its information is current in light of the many recent changes in the law, but also reorganizing and revising its resources for clarity and easier access.  In the process, we have updated and revamped our state-by-state material on how the pardon process operates in each jurisdiction, noting that the process has become more regular and productive in a few states in the past several years.

Our 50-state pardon comparison is organized into four sections:

  • Section 1 provides a chart comparing pardon policy and practice across jurisdictions.
  • Section 2 lists jurisdictions by frequency and regularity of their pardon grants.
  • Section 3 sorts jurisdictions by how the administration of the power is structured.
  • Section 4 provides state-by-state summaries of pardon policy and practice, with links to more detailed analysis and legal citations.

March 24, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, March 16, 2020

When and how will federal authorities start systematically modifying federal sentencing and prison realities in response to COVID-19 outbreak?

I have previously already blogged here (March 3) and here (March 12) and here (March 13) on the potential impact of the coronavirus on prisons and jails, but it seems the world changes a few dozen times each day when it comes to this global pandemic.  And now it is obvious that sentencings and prisons are already being impacted dramatically, with this Crime Report piece providing just some of the details.  The piece is headlined "Corrections Authorities Eye Inmate Release, Halts in Visits, to Prevent Virus Spread," and here are excerpts:

Authorities have begun focusing on America’s overcrowded prisons and jails — environments where “social distancing” can be problematic — as critical danger points for the spread of Covid-19.  Actual infections and fear of the coronavirus have begun to grind the scales of justice to a halt in pockets of the U.S. under states of emergency as judges and lawyers struggle to balance the constitutional rights of defendants against the concerns that the public institutions could unwittingly become contamination sites, CNN reports.

“The whole system is coming to a halt,” said New York City criminal defense lawyer Gerald Lefcourt. “I’m sure everybody is wait-and-see at the moment,” he added, saying he wouldn’t be surprised if prosecutors and defense lawyers seek to resolve cases outside of a trial, either through plea bargains or dropped cases....

In Ohio, dozens of inmates were released from jail sooner than expected to help reduce the population inside the Cuyahoga County jail, as a way to minimize potential virus outbreaks inside jails. The Ohio county judges held a rare court session to hear cases involving low-level, non-violent offenders on Saturday, according to Channel 11 News. Some 38 inmates were released from the Cuyahoga County jail after they appeared in court.

In Michigan’s Kent County, bond and sentence modifications are being discussed to allow some inmates to be released. “We are taking precautions, like everyone else, and making arrangements to deal with what is presented to us,” Kent County Sheriff Michelle LaJoye-Young told ABC 13.

And in Minnesota, the state’s public defender recommened that nonviolent offenders should be released from jail because of the threat of coronavirus. “I am no doctor, but I think it’s better for them to be on quarantine at home,” said Bill Ward told the Pioneer Press on Sunday. “The request is to treat them humanely.” Two jails in southern Minnesota have each had one inmate with a confirmed case of the disease, Ward said. Diseases from the common cold to the flu spread more quickly in prisons — so coronavirus poses a greater risk for inmates.

Efforts to limit the spread of disease in the nation’s corrections systems also included suspending or curtailing visits to prisoners.

This new New York Times commentary effectively details why many working in the criminal justice arena have been thinking about this issue for some time already.  The extended piece should be read in full, and its full headline highlights the themes: "An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues: The conditions inside, which are inhumane, are now a threat to any American with a jail in their county — that’s everyone."  Here are passages:

In America’s jails and prisons, people share bathrooms, laundry and eating areas. The toilets in their cells rarely have lids. The toilet tank doubles as the sink for hand washing, tooth brushing and other hygiene. People bunked in the same cell — often as many as four — share these toilets and sinks. Meanwhile, hand sanitizer is not allowed in most prisons because of its alcohol content. Air circulation is nearly always poor. Windows rarely open; soap may only be available if you can pay for it from the commissary.

These deficiencies, inhumane in and of themselves, now represent a threat to anyone with a jail in their community — and there is a jail in every county in the United States. According to health experts, it is not a matter of if, but when, this virus breaks out in jails and prisons. People are constantly churning through jail and prison facilities, being ushered to court hearings, and then being released to their communities — nearly 11 million every year.

“We should recall that we have 5,000 jails and prisons full of people with high rates of health problems, and where health services are often inadequate and disconnected from the community systems directing the coronavirus response,” said Dr. Homer Venters, former chief medical officer of the New York City jail system. “Coronavirus in these settings will dramatically increase the epidemic curve, not flatten it, and disproportionately for people of color.”

Jails are particularly frightening in this pandemic because of their massive turnover. While over 600,000 people enter prison gates annually, there are about 612,000 people in jail on any given day. More than half of the people in jail are only in there for two to three days. In some communities, the county jail or prison is a major employer. Jail staff members are also notoriously underpaid, may not have paid sick leave and are more likely to live in apartments, in close and frequent contact with neighbors. They return home daily to aging parents, pregnant partners or family members with chronic conditions.

Our penal system should have received more comprehensive guidance and material support from the Department of Justice, far earlier in this crisis. Like much of the federal level response, it is falling short....

American officials can learn from the harrowing story of South Korea’s Daenam Hospital. In late February, South Korea had already reported more than 3,150 confirmed cases, and of these, 101 were from patients in the Daenam psychiatric ward.  Seven of these patients have now died.  All but two patients in the ward contracted Covid-19. The ward was put on lockdown, in an attempt to confine the spread of the virus. Instead, the lockdown issued was a death sentence to many inside....

Aging people who are released after serving long sentences have a recidivism rate close to zero.  Governors and other public officials should consider a one-time review of all elderly or infirm people in prisons, providing immediate medical furloughs or compassionate release to as many of them as possible.

Though this NY Times commentary makes a pitch to "Governors and other public officials," I strongly believe criminal justice advocacy groups should be focusing advocacy now toward President Trump, Congress and federal judges.  For starters, if the federal government leads with a strong proactive response, many states and localities are likely to follow suit.  And it seems there are plenty executive branch tools already available under current law ranging from (mass) clemency relief for older and at-risk prisoners, to the Justice Department and the Bureau of Prisons (BOP) recommending (mass) compassionate release or release to home confinement for older and at-risk folks or perhaps for everyone who has served, say, 75% of their prison time.

Congress can and should get involved ASAP by enacting emergency legislation that could, for example, give BOP discretion to release any and every prisoner that has been scored at low-risk under the FIRST STEP Act's new risk tools.  Or, perhaps better yet, Congress could authorize the creation of a new "emergency agency" tasked with immediately devising the most effective and humane and just way to reduce the number of persons, in both the federal system and in state systems, now seemingly subject to having a jail or prison sentence turned into a possible death sentence by COVID-19.

Federal judges can and should be proactive here as well. In addition to re-calibrating their 3553(a) sentencing analysis given the ugly new reality of prison life, judges should sua sponte reconsider any and all past denied compassionate release motions because times surely have changed.  I think every single federal prisons has an argument that the coronavirus has created ""extraordinary and compelling reasons" that warrant a sentence reduction, and I wonder if anyone has thoughts about seeking a national class action on behalf of all federal prisoners under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) in order to at least establish a baseline of eligibility for sentence modifications. 

I could go on and on, and I likely will in some coming posts.  But the title of this post asks "when and how" not "if" our normal rules will change because I sense some federal judges and prison officials are already working on COVID responses in various scattered ways -- in part because everyone realizes that it is essential for the health of federal prison workers, as well as for prisoners, for there to be smart efforts to reduce prison populations amidst this global pandemic.  At some point, these scattered efforts will become a systematic plan, I sure hope that happens sooner rather than later.

Prior coronavirus posts:

March 16, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 25, 2020

Attorney General Barr names Michael Carvajal as new permanent Director of the Bureau of Prisons

As reported in this AP piece, "Attorney General William Barr has named a new director of the beleaguered federal Bureau of Prisons, months after shaking up the agency’s top leadership following the death of wealthy financier Jeffrey Epstein."  Here is more:

Barr named Michael Carvajal as the new director Tuesday, replacing Kathy Hawk Sawyer, whom he had personally asked to return to run the agency in the wake of Epstein’s death. Carvajal is currently the assistant director of the department’s correctional programs division, which handles the daily oversight of the bureau’s correctional services. He has held a number of positions since joining the Bureau of Prisons in 1992 as a correctional officer, including working as a warden and director of a regional office.

The Army veteran is also responsible for leading the bureau’s intelligence efforts, working with other law enforcement and counterterrorism agencies around the country. “Michael’s nearly 30 years of experience with the Bureau will serve him exceptionally well as he takes on these new responsibilities, and I am confident he will do an outstanding job as director,” Barr said in a statement. “I want to thank Kathy Hawk Sawyer for her exceptional leadership and helping us identify a highly qualified individual to serve as permanent director.”

Hawk Sawyer, who will remain for now as a senior adviser at the Bureau of Prisons, did not intend to remain in the top post permanently and was appointed to help implement immediate reforms in the wake of Epstein’s suicide, three people familiar with the matter said. Her deputy, Thomas Kane, will remain in his job under Carvajal....

One of the people said a goal with Hawk Sawyer was to help raise Barr’s confidence in the bureau and identify someone to come in and the lead the bureau long-term. Senior Justice Department officials now believe the bureau is in a better position to implement the Trump administration’s sweeping criminal justice reform known as the First Step Act.

The Bureau of Prisons has been in the spotlight since Epstein killed himself in August while awaiting trial on charges he sexually abused girls as young as 14 and young women in New York and Florida in the early 2000s. But the federal prison agency has been plagued for years by a chronic staffing shortage and violence and Epstein's death while in custody highlighted a series of safety lapses inside one of the most secure jails in America.

The inspector general is investigating, and the Justice Department is still probing the circumstances that led to Epstein’s death, including why he wasn’t given a cellmate. Two correctional officers responsible for watching Epstein have pleaded not guilty to charges alleging they lied on prison records to make it seem as though they had checked on Epstein, as required, before his death.

The official statement from the Justice Department about this appoint can be found at this link. I do not know anything specific about Michael Carvajal, but I do know he will be a key figure in the continuing implementation of key provisions of the FIRST STEP Act.

February 25, 2020 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, February 16, 2020

Over 1000 former DOJ employees calling for Attorney General William Barr to resign

As this Politico piece details, "more than 1,100 former Justice Department employees have signed an online petition pressing Attorney General Bill Barr to resign and commending the four prosecutors who withdrew from the Roger Stone case."  In this context, I am tempted to make a sour joke that it would seem that AG Barr's eagerness to recommend a below-guideline sentence for a non-violent first offender finally  crossed a line in the sand in the eyes of all these former DOJ employees.  But, of course, this controversy has much more to do with political interference rather than with sentencing decision-making (although I recall few took note when DOJ decided to seek the death penalty in a high-profile New York case after Prez Trump tweeted they should).

Here is more from the Politico piece about the online petition (which is available here and it still seeking signatures):

Last week, all four prosecutors quit the Stone case after what they perceived as interference from the White House.  The prosecutors had recommended a seven- to nine-year prison sentence after Stone — President Donald Trump’s longtime friend — was convicted of lying to Congress and of obstruction....

Barr and other top officials then pushed for a softer prison recommendation in a revised filing that offered no specific sentence term, though the attorney general has said he didn’t speak to the president about it.  The sentencing is set for Thursday, though the judge has set a conference call with the lawyers in the case for Tuesday.

“Such behavior is a grave threat to the fair administration of justice.  In this nation, we are all equal before the law.  A person should not be given special treatment in a criminal prosecution because they are a close political ally of the President,” the online petition read. Signatures for the letter were gathered by Protect Democracy, a nonprofit legal group that had also gathered signatures for a letter claiming the Mueller report presented enough evidence to charge Trump with obstruction of justice. That letter was also critical of Barr.

The petition's signatories include Justice Department employees dating back to the administrations of President Dwight Eisenhower and President John F. Kennedy, though most are of more recent vintage.  Among them are three who served as assistant attorney general: Sanford Litvack, Jimmy Gurule and Laurie Robinson. The current total is 1,143, though Protect Democracy said it would continue to add names.

The former Justice Department employees welcomed Barr’s “belated acknowledgment that the DOJ’s law enforcement decisions must be independent of politics.”  On Thursday, Barr had offered a rare rebuke of his boss, telling ABC, "I think it's time to stop the tweeting about Department of Justice criminal cases.”

However, the online petition read, “Mr. Barr’s actions in doing the President’s personal bidding unfortunately speak louder than his words.  Those actions, and the damage they have done to the Department of Justice’s reputation for integrity and the rule of law, require Mr. Barr to resign.” 

Since they said they had little expectation Barr would actually step down, the former employees called on the Justice Department’s career officials to report unethical conduct.  They applauded the prosecutors for upholding their oaths and standing up for the department’s independence.  “We call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary, to resign and report publicly — in a manner consistent with professional ethics — to the American people the reasons for their resignation.”

Prior related posts:

UPDATE: One notable former DOJ employee, namely Donald Ayer, former Deputy AG for Prez George H. W. Bush, has this notable new extended Atlantic piece under the full headline "Bill Barr Must Resign: The attorney general is working to destroy the integrity and independence of the Justice Department, in order to make Donald Trump a president who can operate above the law."

February 16, 2020 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

"Don't be fooled by slick ad. Most people given clemency by Trump don't look like Alice Marie Johnson."

N_msnbc_trumppardon_180825_1920x1080The title of this post is the headline of this recent USA Today commentary authored by Nora Demleitner.  I recommend this piece in full, and here are excerpts:  

Alice Marie Johnson, whose life term President Donald Trump cut short, was the star of a Super Bowl ad. It portrayed Trump as the country’s leading criminal justice reformer, a man who actively and compassionately assists the downtrodden.  As is standard fare for Trump, the ad was based on half-truths and misleading claims. But that is not its worst feature.  The ad was a cynical ploy to provide white voters with a feel-good message and an argument to rebut charges of Trump's racism.  At the same time, it reinforced the message of black criminality....

The spot conflated two federal criminal justice issues — the First Step Act and presidential clemency power.  The president commuted Johnson’s sentence, which led to her immediate release from prison.  She had served 21 years of a life sentence for a nonviolent drug conviction. Reality TV star Kim Kardashian West championed Johnson’s case, even visiting the White House to make her argument.  Johnson is one of only 24 people to receive clemency under the Trump administration, according to a list on the Department of Justice website.

Presumably, the reference to the release of thousands was to the president signing the First Step Act.  The act has led to the early release of a good number of federal inmates. It retroactively decreased crack cocaine sentences and added other mechanisms, such as expansion of compassionate release....

The ad failed to indicate that both of the president’s attorneys general have insisted on continuing federal policies that have fueled the nation's mass incarceration and increased disparities seen in the criminal justice system against black and brown people.  The Department of Justice has opposed First Step Act sentence reductions and releases.  The department has also vilified progressive local prosecutors who have implemented reforms (which include not going after low-level drug offenders or choosing to divert cases from the criminal justice system).  At best, one could call this administration’s record on criminal justice reform mixed, at worst hypocritical....

Most of the people Trump has given clemency to did not look like Johnson.  Of the other five commutations the president has issued so far, only one involved another drug offender, and that offender was not African American.  In addition to the commutations, Trump has handed out 18 pardons.  Rather than uniting thousands of families, as the ad claimed, Trump has used his clemency power to reunite just two dozen.

And the majority of his clemencies have been politically motivated.  Joe Arpaio, the notorious Maricopa County sheriff, received one even before he was sentenced. Others went to men like Scooter Libby, a former aide to Vice President Dick Cheney; Dinesh D’Souza, a right-wing commentator; Conrad Black, a former media mogul and Trump biographer; and Pat Nolan, a former Republican lawmaker....

Only two of Trump's best known acts of clemency have gone to African Americans.  One went to the above mentioned Johnson, featured in the Super Bowl ad, and the other went, posthumously, to Jack Johnson.  The famous boxer was sentenced in 1920 for violating the Mann Act, when he traveled with a white woman he was in a relationship with across state lines.  But two is hardly anything to brag about.

In fact, Trump has done less for nonviolent drug offenders with his commutation powers than many of his predecessors, including Barack Obama, a president Trump seems obsessed with outdoing.  Within his first three years in office, President Obama had given clemency to only 18 people compared with Trump's 24.  But of those whose sentences Obama either pardoned or commuted, the majority, 11, had been incarcerated on nonviolent drug offenses. Only four of the people given clemency under Trump were nonviolent drug offenders.

The Alice Johnson ad falsely appeases voters who may be concerned that Trump isn't addressing racial inequities in our criminal justice system and who may even be troubled by the president’s racist language.  We need a visual of the true beneficiaries of this president’s clemency power: A gallery of white, Republican men.

A google search helped me find the above image showing nine of the two dozen persons to get a pardon or a commutation from President Trump.  The image above certainly over-represents people of color among the full group, as I think every single other clemency recipient is am white man.

Covering somewhat similar group, the Washington Post ran this interesting piece by Philip Bump under the headline "Trump’s approach to crime and punishment is centered on his own power: The inverted criminal justice of President Trump." The piece helps highlight just why, given the ultimate leader in charge, criminal justice work in the Trump Administration is likely always certain to be "mixed."

February 16, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Tuesday, February 11, 2020

In speech to sheriffs, Attorney General William Barr assails "rogue DAs"

Continuing a trend of attacking locally-elected prosecutors bringing a new approach to their roles, Attorney General William Barr closed this speech at the Major County Sheriffs of America Winter Conference with a lengthy attack on the policies of what he calls "rogue DAs."  Here is the wind up and pitch from AG Barr on this topic:

Let me turn my attention to two substantial challenges to the rule of law we face today: so-called “sanctuary” jurisdictions and, what I’ve been calling them, rogue DAs, who undermine — rather than advance — our ability to carry out effective law enforcement....

Another similar problem is the increasing number of district attorneys who have fashioned for themselves a new role of judge-legislator-prosecutor.  These self-styled “social justice” reformers are refusing to enforce entire categories of law, including law against resisting police officers.  In so doing, these DAs are putting everyone in danger.

Their policies are pushing a number of America’s cities back toward a more dangerous past. Under the district attorney in Philadelphia, the murder rate in that city is at its highest point in over a decade.  Other cities with these “progressive” DAs — like San Francisco, Seattle, St. Louis, Chicago, and Baltimore — have all suffered historic levels of homicide and other violent crime.  This is while crime nationwide, generally, is going down.

The policies of these DAs strike at the very root of our law enforcement system.  Our system is based on graduated response, where we impose increasingly severe punishments based on an individual’s criminal history.  This means we have to have accurate criminal histories if we are going to be able to protect the community.  Even if we are going to treat early, and petty offenses leniently, we still need them charged and recorded so we know who we are dealing with as time goes by.  Our whole system is undermined by the practice of ignoring whole categories of criminal offenses.

The policies of these DAs also sabotage the effectiveness of community policing and “precision” policing, which depend heavily on obtaining information from members of the community.  When DAs engage in catch-and-release and revolving-door policies, people in the neighborhood who might otherwise provide information are scared to come forward.  These innocent people are rightly worried that the offender will be right back out on the street in a position to do them harm.  In some jurisdictions we are already seeing effective policing — that has taken decades of painstaking work to build — being dramatically undermined. Just in New York the other day, there was the case involving the MS-13 member who was released.  A member of the community provided evidence, and was killed by an MS-13 member who was released under new legal reforms in New York state.

These DAs think they are helping people, but they end up hurting them.  These policies actually lead to greater criminality.  Not always, but often enough, early intervention can help — with young people, in particular.  By allowing young lawbreakers entirely off the hook the first time — or the second time or even the third time — these DAs are potentially placing them on a conveyor to further and heightened criminality, which puts them at greater peril — both on the street from other criminals and from law enforcement when these young offenders graduate from petty to serious offenses, as many will if there is no intervention early on.

We have seen these policies before. They reigned supreme at the state level from the 1960s to the early 1990s. During this time, violent crime rates tripled in our country. They peaked in 1991 and 1992. By that time, the country had had enough. Following the lead of the policies of the Reagan, H.W. Bush administrations, the states started to make their systems tougher on crime.

We understood that because crime, particularly violent crime, is committed by a small segment of our population, repeat offenders need to be taken off the streets. Federal, state, and local law enforcement formed a strong partnership to get these violent offenders off our streets and keep them off.

We had tremendous success. Since 1992, violent crime was cut in half nationwide. It went up a bit in the last two years of the Obama administration, but since the beginning of the Trump administration, we have succeeded in pushing it back down. We cannot allow all our hard work over the last 30 years to be undone by the wrong-headed policies of these so-called “reform” DAs.

We have to strengthen our partnership and stand together as never before. We have to be a strong voice for sensible law enforcement policies that protect our communities from violent predators. Our freedom depends on our ability to preserve the rule of law. I thank you, the department thanks you, and the American people thank you for dedicating your lives to defending it.

As I have noted before (here and here), complaints from DOJ about local prosecutorial "practice of ignoring whole categories of criminal offenses" are pretty rich given that DOJ has itself been engaged in the "practice of ignoring" all sorts of large-scale (though state-compliant) federal marijuana offenses for many years.

Prior related posts:

February 11, 2020 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (5)

For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!"

As reported in this Politico piece, "Federal prosecutors are urging that longtime Donald Trump adviser and Republican political provocateur Roger Stone be sent to prison for about seven to nine years for his conviction on charges of lying and witness tampering during investigations of ties between Russia and the Trump campaign." Here is more about the sentencing filings in this high-profile case that emerged late yesterday:

The stern recommendation is starkly at odds with a suggestion from Stone's defense team that he should be sentenced to probation — and no jail time — in the case.

Following a weeklong trial last November, a Washington jury found Stone guilty on all seven felony counts he faced: five of making false statements to Congress, one of obstruction of Congress, and one of witness tampering with both the House Intelligence Committee inquiry and special counsel Robert Mueller's probe.

In a sentencing filing Monday, prosecutors from the U.S. Attorney's Office in Washington argued that Stone's conduct was exceptionally sinister because of the importance of those investigations and the danger of overseas influence on U.S. elections. "Foreign election interference is the 'most deadly adversar[y] of republican government,'” prosecutors from the U.S. Attorney's Office in Washington wrote, quoting Alexander Hamilton's Federalist Paper No. 68....  The argument was strikingly similar — in some cases borrowing from the exact passages from the same Constitution-era text — as that lodged by the House's prosecutors during Trump's impeachment trial. "Alexander Hamilton cautioned that the 'most deadly adversaries of republican government may come 'chiefly from the desire in foreign powers to gain an improper ascendant in our councils,'" the House members argued in their trial brief....

While prosecutors tied the gravity of Stone's crimes to their impact on the electoral system, the bulk of the prison time authorities are calling for is a product of the prosecution's decision to treat hostile and vulgar messages Stone sent to longtime associate Randy Credico as genuine threats of violence, or at least as having the potential to stir up violence against Credico or others.  Prosecutors pointed, in particular, to a message Stone sent to Credico after he indicated plans to cooperate with the House committee. "Prepare to die, cocksucker," Stone wrote.  In another instance, Stone told Credico, who has a therapy dog, that he would "take that dog away from you."

Stone said during the trial his comments were in jest and part of the brash banter often exchanged between the two men, whose views are usually at opposite ends of the political spectrum. Prosecutors insisted that the barbed remarks mean Stone deserves between four and five years longer under federal sentencing guidelines than in cases involving witness tampering efforts that involve no physical threats.... Prosecutors acknowledged that Credico — a liberal New York city talk show host, comedian and activist — recently wrote to the court saying he did not think Stone was threatening him physically. Credico's letter urged that Stone get probation.  However, prosecutors also noted that during the trial, Credico said he was concerned about Stone's statements because they could encourage others to get violent.

Defense lawyers, who weighed in with U.S. District Court Judge Amy Berman Jackson late Monday night, vigorously disputed the notion that Stone's statements to Credico were actual threats to do anything.  They noted that at the trial Credico called Stone's comments "hyperbole" and said Stone "loves all dogs," so he could not have actually intended to harm Credico's service dog, a tiny Coton de Tulear who's almost constantly at his side. "Stone’s indecorous conversations with Randy Credico were many things, but here, in the circumstances of this nearly 20-year relationship between eccentric men, where crude language was the norm, 'prepare to die cocksucker' and conversations of similar ilk, were not threats of physical harm, 'serious acts' used as a means of intimidation, or 'the more serious forms of obstruction' contemplated by the Guidelines," Stone's lawyers wrote....

Stone, 67, faces a maximum of 50 years in prison at the sentencing, which Jackson has set for Feb. 20. Prosecutors say federal sentencing guidelines urge between 87 to 108 months in prison for Stone.  The defense disputes several aspects of that calculation and argues that the guidelines call for just 15 to 21 months.  Judges have the right to sentence above or below the guidelines, but are required to calculate the recommended sentence and take it into account.

Stone's defense also submitted a collection of letters from his wife and acquaintances in the political sphere and elsewhere.  "I can't tell you that Roger is a saint — he pushes everything to the limit even with you," Stone's wife Nydia wrote, alluding to Stone's run-ins with the judge over her gag orders and perhaps to an Instagram post he sent during the trial that included a picture of Jackson next to what appeared to be crosshairs. She also proclaimed her husband "loyal, kind, loving, considerate, generous and good-natured," as well deeply committed to Trump's re-election.

Among others asking for leniency for Stone were Democratic political consultant Hank Sheinkopf and former New York Republican gubernatorial candidate Carl Paladino.  Stone's supporters saluted him as an early backer of gay rights and marriage equality, an opponent of animal testing and a strong advocate for the easing of New York state's tough Rockefeller drug laws.

I am not surprised to see the upcoming Roger Stone sentencing to engender an interesting debate over both guideline calculations and 3553(a) factors (not to mention the real meaning of colorful phrases).  Here are the full filings from the parties:

Unsurprisingly (and I think importantly), President Donald Trump is not at all keen about the sentencing advocacy of his Department of Justice in this case. Among other tweets on the topic, Prez Trump retweeted a lament about federal prosecutors seeking "A *9 year* prison recommendation for non-violent crimes committed by a 67-year-old man." In addition, Prez Trump had this original tweet on the topic in the wee hours (just before 2am EST):

Regular readers know that plenty of extreme (and within-guideline) sentencing recommendations by federal prosecutors have kept me up at night, although I usually turn to blogging rather than tweeting to express my concerns about the banal severity and cruelty of the federal criminal justice system.  (For the record, all US Presidents — current, former and wanna-be — have an open invitation to guest-blog here about any sentencing matters!) 

Based on the submissions, I am inclined to (tentatively) predict that Judge Amy Berman Jackson will come to a lower guideline calculation than urged by prosecutors and yet still impose a below-guideline sentence.  But I still expect the sentencing judge to impose some prison time on Stone, at which point it will be interesting to see if Prez Trump will make another controversial use of his clemency power.  If Stone gets less than a year, I suspect Trump will leave him to serve his sentence at least until the upcoming election, as he has with Paul Manafort. 

As always, I welcome comments and other predictions from readers.

UPDATE: This Fox News article, headlined "DOJ expected to scale back Roger Stone's 'extreme' sentencing recommendation: official," suggests that federal prosecutors may soon be changing their sentencing tune in this high-profile case.

February 11, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Monday, February 10, 2020

Notable numbers in "Criminal Justice Reform" fact sheet highlighting part of Prez Trump's proposed budget

President Donald Trump delivered a proposed budget to Congress today, which this Politico article calls "another fiscally conservative dream document lawmakers will largely disregard."  I do not know enough about budget policy, politics or practice to say much about the whole document, but I did notice that the White House has also now released this one-page budget fact sheet titled "Criminal Justice Reform."  Here are excerpts:

On December 21, 2018, President Trump signed into law the First Step Act of 2018 (FSA, or “the Act”), the most significant, bipartisan criminal justice reform legislation in more than a decade....

For 2021, the Budget provides $409 million to Department of Justice’s Bureau of Prisons (BOP) to implement the FSA, an increase of $319 million over 2020 enacted budget. Major new investments in 2021 include:

  • Residential Reentry Center (RRC) Expansion ($244 million):  The FSA requires BOP to have pre-release custody available for all eligible inmates.  The FSA also greatly expands inmate eligibility for pre-release custody by allowing inmates to earn 10 days of pre-release custody time credits for every 30 days of successful participation in an evidence-based, recidivism-reduction program or productive activity.  Prerelease custody usually occurs in an RRC, commonly called a “halfway house.”  BOP currently has about 14,000 RRC beds under contract, and funding provided in 2020 will add 300 more.  The 2021 Budget supports an additional 8,700 beds, bringing the total to 23,000 RRC beds -- a level that is expected to meet the pre-release custody demand under the FSA.
  • Medication-Assisted Treatment (MAT) – Complete Nationwide Expansion ($37 million):  MAT combines behavioral therapy and medication to treat inmates with opioid use disorder. BOP estimates that 10 percent of its population may be eligible for MAT treatment.  BOP is investing sufficient funding in 2020 to expand MAT treatment from a small pilot program to half of all eligible BOP facilities.  The 2021 Budget continues this funding and provides an additional $37 million to complete MAT expansion to all eligible BOP facilities.
  • Recidivism-Reduction Program Expansion ($23 million):  As required by the FSA, BOP will increase access to evidence-based, recidivism-reduction programs.  BOP’s focus will be to add capacity to existing mental health, life skills, special needs, educational, vocational programs, and add new programs as they are identified and evaluated.
  • FSA Staff Support ($15 million): These funds provide for the pay and benefits of additional FSA staff hired to support 2020 investments in MAT and Recidivism-Reduction Programs.

The Budget also recurs $90 million provided in 2020 to support FSA implementation, including:

  • $38 million to expand MAT to the first half of BOP’s institutions in 2020;
  • $19 million to expand evidence-based, recidivism-reduction programs;
  • $14 million for the Innovations in Corrections program to incentivize the development of innovative, evidence-based pilot projects in reentry and recidivism-reduction approaches;
  • $9 million for the initial expansion of 300 RRC beds added in 2020;
  • $6 million for inmate-focused IT, such as upgrading the BOP’s computer-based education network; and,
  • $4 million to evaluate BOP’s recidivism-reduction programs and tools for assessing recidivism risk.

Though these budget proposals still might fall short of what is needed for full, effective implementation of the FIRST STEP Act (e.g., I think Recidivism-Reduction Programs needs a lot more money), this strikes me as a serious effort to put serious money behind the Act (especially with the RRC expansion). Though I will always be hoping for the Trump Administration to do more and more in the arena of criminal justice reform, I am pleased today to see this Trumpian effort to provide needed additional resources in this arena.

Relatedly, and covering a lot more ground, Deputy Attorney General Jeffrey Rosen today delivered these remarks regarding the Department of Justice's overall portion of the FY 2021 Budget Proposal.

February 10, 2020 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Wednesday, February 05, 2020

Noting political import and impact of Prez Trump's Super Bowl ad touting criminal justice reform

This New York Times article, headlined "Trump and Kushner Saw Super Bowl Ad as Way of Making Inroads With Black Voters," provides more on the context and consequences of the criminal justice reform advertisement from the Trump campaign aired during the Super Bowl.  Here are excerpts:

In front of an audience of 102 million Super Bowl viewers Sunday night, Alice Marie Johnson, a 63-year-old African-American woman, became the unlikely face of President Trump’s re-election campaign.  In a 30-second spot that cost Mr. Trump’s campaign millions of dollars, Ms. Johnson’s face fills up the screen as she tearfully thanks “President Donald John Trump” for her early release from prison. Mr. Trump commuted her sentence in June 2018, after the reality television star Kim Kardashian West personally appealed to the president on her behalf.  Ms. Johnson had been serving a life sentence for a nonviolent drug conviction.

Even before the ad, Ms. Johnson was already something of a touchstone for Mr. Trump, who invited her to attend his State of the Union address last year and highlighted her story in his speech. But elevating the administration’s work on criminal justice reform to Super Bowl status was another effort by Mr. Trump’s son-in-law, Jared Kushner, to reach black voters.

The Johnson ad was made late last year and was tested with focus groups months in advance, aides said. Mr. Trump himself made edits to the spot and ultimately settled on it as the “most impactful” of a flight of ads he was given to choose from in the days leading up to the Super Bowl, people familiar with the process said.

Mr. Trump was not wrong: Salesforce data indicated that online, the ad featuring Ms. Johnson was the most talked about one of the game, and that most of the chatter around it was positive.

But privately, several senior Trump aides expressed skepticism of Mr. Kushner’s belief that broad numbers of black voters, whose views of the president are overwhelmingly negative, are persuadable. Running an ad aimed at black voters — which could also have the effect of reassuring white suburban women, a worrisome demographic for the campaign, that the president is not racist — was a change of strategy from Mr. Trump’s previous efforts to simply energize and turn out his base....

Mr. Kushner has been advising Mr. Trump that black voters can be converted into supporters if they are simply educated on his policies. Mr. Trump’s biggest challenge, Mr. Kushner has told people, is a “knowledge gap” on many of the president’s accomplishments, particularly on the issue of criminal justice reform, which Mr. Kushner has spearheaded....

Jessica Jackson Sloan, the national director of #Cut50, a prisoner advocacy group, said the ad was helpful to her work on the state level, regardless of any political advantage Mr. Trump was trying to achieve.  “We’ve heard many times what happened to this country when the Republican candidate for president was playing Willie Horton ads,” Ms. Sloan said, referring to an infamous ad in the 1988 presidential race that highlighted the story of a black man who had raped a white woman and assaulted her husband while free on a prison-furlough program supported by Michael Dukakis, the Democratic candidate.

“Regardless of what reasons he did it,” she added of Mr. Trump, “the fact we have a sitting Republican president campaigning on criminal justice reform is 180 degrees from where we’ve been in the past. It’s really going to help us with some of these Republican state legislatures.”

February 5, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Sunday, February 02, 2020

Prez Trump's reelection campaign premieres ad focused on criminal justice reform during Super Bowl

As reported in this Washington Times article, headlined "'Trump got it done': Trump's Super Bowl ad highlights criminal-justice reform," there was one especially notable ad during the big game for sentencing fans.  Here are the details and context:

President Trump’s reelection campaign aired a surprise TV ad on criminal-justice reform during the Super Bowl Sunday night featuring the president’s grant of clemency for former inmate Alice Johnson.

Trump campaign manager Brad Parscale contrasted the president’s leadership on criminal-justice reform with NFL players who previously knelt during the Star-Spangled Banner to protest injustices in the legal system. “President Trump strongly disagreed with how some in the NFL chose to disrespect our flag, our country, and the people who serve it, just to express their views of the criminal justice system,” Mr. Parscale said. “The Super Bowl is the perfect place to debut this ad, because it clearly communicates how President Trump expressed his concerns about the issue – he acted and he helped improve people’s lives.”

The 30-second spot in black and white showed Mrs. Johnson, a grandmother who is African-American, expressing jubilation and gratitude to Mr. Trump upon her release from prison after serving 21 years for a first-time drug offense....

The ad states that “politicians talk about criminal justice reform. President Trump got it done. Thousands of families are being reunited.” The campaign had kept the ad under wraps until it aired. The president’s re-election team also paid for a 30-second spot highlighting his efforts to keep America secure and prosperous.

Mr. Trump commuted the sentence for Mrs. Johnson in June 2018. Six months later, he signed into law the First Step Act, which is aimed at providing thousands of prison inmates with a second chance. The law provides inmates with opportunities to take part in vocational training, education, and drug treatment programs to help them gain their release and obtain jobs.

I think all supporters of criminal justice reform should find this ad heartening in the wake of some reports suggesting Prez Trump had soured on reform and viewed the issue now as a political liability (see here).  It seems that at least some folks on Prez Trump's reelection team view criminal justice reform as a winning political issue. 

At the same time, it is a darn shame that Prez Trump is promoting his clemency work when he has still granted relatively few commutations.  Regular readers likely recall that, back in 2018, Prez Trump talked grandly about considering thousands of clemency requests and Alice Marie Johnson potently advocated that the President free "thousands more" federal prisoners like her.  I never really expected Prez Trump to grants thousands of commutations, but I had hoped he would do many more than the six that he has done so far.

February 2, 2020 in Campaign 2020 and sentencing issues, Clemency and Pardons, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (2)

Wednesday, January 08, 2020

Might the 2020 campaign bring back "law and order" as a political wedge issue?

The question in the title of this post is prompted by this extended new New York Times opinion piece authored by Thomas Edsall. The piece's full headline captures its main point: "Trump Wants Law and Order Front and Center; The president and his allies are trying to make Democratic plans to reform law enforcement a potent campaign issue." The piece merits a full read, and here are excerpts:

Unexpectedly, the 2020 presidential campaign is drilling down on petty crime and homelessness.  Donald Trump and his Republican allies are reviving law-and-order themes similar to those used effectively by Richard Nixon and Spiro Agnew in the late 1960s and early 1970s to demonize racial minorities.

To this end, Republicans seek to discredit liberalized law enforcement initiatives adopted by a new breed of Democratic prosecutors.  These Democratic district attorneys — in cities, counties and suburbs from Philadelphia, Orlando, Chicago and St. Louis to Contra Costa County, Calif., Suffolk County, Mass., and Durham County, N.C. — are pursuing policies intended to decriminalize vagrancy, and eliminate cash bail, and they are aggressively pursuing charges in cases of shootings by police officers.

They are playing a key role in a hotly politicized movement to curb mass incarceration and to roll back what has become known as “the carceral state.”  The decarceration movement is backed by a wide array of organizations tightly aligned with the progressive wing of the Democratic Party: the Real Justice PAC, Black Lives Matter, the Brennan Center for Justice, the ACLU, Justice Democrats, MoveOn.org and Brand New Congress....

At the same time, as this movement has been gaining momentum, it has provided ammunition for a powerful counterattack from President Trump, his attorney general, William Barr, and other law-and-order Republicans.

The result is that the 2020 election is expanding the 50-year-old culture war into new territory as Democrats — often under pressure from younger voters — seek to extend broader rights to those who have been previously stigmatized or marginalized, now moving beyond protection for minorities, women and gays, to provide more freedom to criminal defendants, the homeless, the mentally ill and unknown numbers of men and women imprisoned through prosecutorial misconduct, judicial error or other forms of systemic failure.

Republicans, in turn, are betting that the Democratic presidential candidates have moved substantially farther to the left on issues of crime and punishment than the voting public. Leading Democratic presidential candidates, for their part, are not shying away from the challenge, endorsing in whole or in part the decarceration and decriminalization agenda.

Even Joe Biden, one of the more moderate 2020 candidates, argued at the September Democratic presidential debate that “We should be talking about rehabilitation. Nobody should be in jail for a nonviolent crime” and that “Nobody should be in jail for a drug problem. We build more rehabilitation centers, not prisons.” Once a strong supporter of the death penalty, Biden now calls for its elimination....

While many of the Democratic presidential candidates have effectively joined the decarceration movement, the same unity cannot be found among House and Senate Democrats. At this level, the movement is one more source of conflict between the Alexandria Ocasio-Cortez wing and the many members of the House and Senate who must fight for re-election in more moderate districts and states, including those that cast majorities for Trump in 2016....

Republicans are responding to the initiatives of progressive prosecutors with a vengeance. In a fiery speech on Aug. 12 at the Grand Lodge Fraternal Order of Police’s conference in New Orleans, Barr warned that progressive prosecutors in cities across the nation are “demoralizing to law enforcement and dangerous to public safety.”...

Three days later, William M. McSwain, the Trump-appointed United States Attorney for the Eastern District of Pennsylvania, called a news conference to explicitly attack the Philadelphia district attorney, Larry Krasner.... Most recently, President Trump, at a rally on Dec. 10 in Hershey, Pa., told the crowd “You have the worst district attorney,” referring to the Philadelphia D.A., roughly 95 miles east. “I’ve been hearing about this guy, he lets killers out almost immediately. You better get yourself a new prosecutor.”

Turning the decarceration movement into a 2020 campaign issue fits into Trump’s go-to strategy of inflaming divisive conflicts, especially those involving disputed rights — particularly those benefiting minorities — in order to activate racial resentment, to mobilize his core voters and to goad swing voters into lining up against the Democratic Party....

Over the past four years, many progressive Democrats have turned sharply against the aggressive policing that broken windows enforcement produced, arguing that it has contributed to excessive incarceration that results in the disproportionate imprisonment of African-Americans and other minorities.  At the presidential debate in September, virtually every candidate voiced strong opposition to mass incarceration and support for the release or sentence reduction of those convicted of nonviolent crime....

On this issue, one of Trump’s key allies is Tucker Carlson.  Every night this week, Carlson is devoting segments of his Fox News show to homelessness. His show will reinforce the 2020 Republican election theme that Democrats are fostering endemic social disorder.  On Jan. 3, Carlson tweeted: “Drugs.  Homelessness.  Third world inequality.  San Francisco’s radical left wing government has turned their city into an American Dystopia.”

This week’s series is the second time in less than a year that Carlson has devoted five straight nights to homelessness, with footage of men and women injecting themselves, evidence of public defecation, the vagrant mentally ill, and sidewalks in California lined for blocks with tents....

The Trump campaign is gambling that Democrats are outside the mainstream of public opinion on these issues, while the leading Democratic candidates are convinced that enough of the electorate has become sufficiently skeptical of law-and-order strategies — and the accompanying racial undertones (and overtones) — to produce a Democratic victory on Nov. 3, 2020.  Over the past 50 years, Democratic strategies based on the presumption of increasing liberalism among voters at large have rarely succeeded. Perhaps 2020 will be different.

January 8, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates | Permalink | Comments (1)

Monday, December 23, 2019

Noticing that little has been done since Prez Trump's executive order to establish a "Commission on Law Enforcement and the Administration of Justice"

This new Washington Post piece, fully headlined "Trump signs order creating national commission to study police and justice system: The composition of the commission is unclear; prosecutor and defense groups not yet contacted," highlights the interesting reactions (and lack of reactions) to this executive order that Prez Trump signed in late October 2019.  Here are excerpts:

With little fanfare, President Trump in late October signed an executive order creating the Commission on Law Enforcement and the Administration of Justice.  The commission is one that police and civil rights groups have sought for years, looking for big ideas on how to approach national problems confronting law enforcement, such as diversifying police forces, addressing racial inequities and using technology to improve crime-fighting.

An identically named panel was formed by President Lyndon B. Johnson in 1965, and led to advances such as the creation of the 911 emergency call system and improved training for law enforcement.  A bill to once again create such a commission was introduced in the Senate in 2017, and again this year, but never moved even though senators on both sides of the political aisle declared their support and it didn’t seem particularly controversial.  The NAACP Legal Defense Fund, the National Urban League and the Leadership Conference on Civil and Human Rights also endorsed the bill as a way to enact criminal justice reform on a large scale.

So police groups such as the International Association of Chiefs of Police and the Fraternal Order of Police turned to the White House for help.  “From the IACP’s perspective,” said Terry Cunningham, deputy executive director of the IACP, “we honestly didn’t care whether it got done through legislation or an executive order, we just wanted to see it come to fruition. It’s an opportunity to recalibrate everything we do and how we do it in policing.”  He noted that President Barack Obama’s 21st Century Task Force on Policing in 2015 called for “the creation of a National Crime and Justice Task Force to review and evaluate all components of the criminal justice system for the purpose of making recommendations to the country on comprehensive criminal justice reform.”

Jim Pasco, executive director of the National Fraternal Order of Police, said the police union had opposed such a commission “and effectively blocked it legislatively, because there was no provision for a rank-and-file representative on the commission. Ninety-four percent of law enforcement members are state and local, and 99 percent are rank-and-file, they should be represented.” He said the IACP had helped create the commission, “but we did extract a commitment that we’ll be on it.”

But where the legislation called for co-chairs appointed by the president and Congress, and required at least four law enforcement and two tribal law enforcement officials, Trump’s executive order merely states, “The attorney general shall determine the composition of and procedures for the functioning of the commission,” to include naming the chairman and also for the attorney general to invite elected state, local and tribal officials.

The composition of the commission hasn’t been announced, and Cunningham said, “We want to make sure we have people that are not in lockstep with law enforcement. That gives the commission the credibility that it needs to create a living, breathing document.” A number of groups that might be expected to be part of the discussion said they had not yet been invited, including the National District Attorneys Association, the National Association of Criminal Defense Lawyers, the NAACP Legal Defense Fund, the Leadership Conference on Civil and Human Rights and the Major Cities Chiefs Association, a much smaller group than the IACP that focuses on issues specific to large cities. Art Acevedo, the Houston police chief and head of the Major Cities Chiefs, said, “We fully anticipate being part of it.”

The legislation envisioned the commission having 18 months to complete its work, but the president’s executive order requires a report to be completed within a year of the Oct. 28 signing date, meaning it has roughly 10 months left to work.

Supporters of the legislation aimed to create a body to discuss challenges such as overburdened courts, unsustainable incarceration costs, national security, prisoner reentry, victims’ rights and civil rights and liberties. But the new executive order is more police-centric, calling on the commission to examine such issues as challenges police face as they encounter those suffering mental illness and substance abuse and the homeless. It also will look at recruitment and training of police, physical safety and health of police officers, and both the benefits and challenges to law enforcement of technological advances.

The order also calls on the commission to study “the need to promote public respect for the law and law enforcement officers” and “refusals by state and local prosecutors to enforce laws or prosecute categories of crimes.”

“The thrust of the order,” said Nina J. Ginsberg, a Virginia-based lawyer who is president of the defense lawyers’ association, "begs the question as to how interested this commission will be in solving the deep and structural problems in America’s criminal justice system, as opposed to simply delivering on certain law enforcement requests.” Ginsberg said the order “altogether fails to acknowledge or propose solutions to critical criminal justice issues like mass incarceration, systemic racism, disparate policing of minority and poor communities” and “reads like a road map for repeating precisely the same mistakes that brought America’s criminal justice system to its current, abysmal state.” She said the defense group stood ready to help....

Cunningham said he expected the commission would create working groups on a wide range of topics. “It’s not just policing, it’s the broken criminal justice system,” Cunningham said.  He said the working groups would look at how police handle mental health calls and how other social service agencies can help.  He said the commission also needs to examine not only using new technology, but figuring ways to overcome technology that is used to commit crime, as well as recruitment of new officers and getting more women and minorities to put the badge on. “Everything the working groups do,” Cunningham said, “they have to find a bipartisan way in Congress to implement all of these things. We’ll have their report, but how do you get it funded?”...

Cunningham said the Justice Department would commit significant resources to support the commission.  He said Dean M. Kueter Jr., an adviser in the Office of Legislative Affairs at the Justice Department, would be the commission’s executive director, and Tim Shea, senior counsel to Attorney General William P. Barr, would also work with the commission. The Justice Department declined to comment for this story.

Because this executive order does not once mention sentencing or punishment or incarceration, I do not think this still-to-be-constituted Commission is likely to do much more than address a variety of police-focus concerns.  That said, there is plenty of work needing to be done to address the many modern challenges of modern policing, and I want to be hopeful that this Commission can and will be able to provide an informed and productive perspective on needed reforms to this important aspect of our criminal justice system.

December 23, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Monday, November 25, 2019

An early review of an eventful first year for the FIRST STEP Act

Though the official one-year anniversary of the passage of the FIRST STEP Act is still four weeks away, I suppose it is not too early for some review and reflection on the eventful year that was.  Here is a new NBC News piece in this spirit which has this lengthy full headline: "The First Step Act promised widespread reform.  What has the criminal justice overhaul achieved so far?  The law's effects are real almost a year later, experts say.  But some are concerned whether the bipartisan alliance that produced it can hold together."  I recommend this lengthy piece in full, and here are excerpts:

Nearly a year after the First Step Act's passage, NBC News spoke to over a dozen people, including former and current elected officials, liberal and conservative advocates, and formerly incarcerated individuals, among others, who championed the reforms. They all agreed that the law's effects are tangible, and many believe the bipartisan coalition that produced it appears durable.

“I think the biggest win is that this is now a safe issue after years and years and years of the two parties trying to use criminal justice as a way to tear each other down,” said Jessica Jackson, co-founder of #cut50, a bipartisan criminal justice reform nonprofit.

However, some are skeptical the alliance can hold. Many of the next steps advocates have underscored as necessary to bring about true change, like reexamining lengthy sentences for violent offenses and restructuring policing practices, may be a tougher sell. "As some people might say, it's easier to kind of agree on some of the low-hanging fruits, but the higher you reach, the more difficult consensus is going to be,” said Tim Head, the executive director for the Faith & Freedom Coalition, a conservative nonprofit that supports the act as well as other criminal justice reform efforts.

More than 3,000 inmates have been released and another roughly 1,700 people convicted of crack cocaine offenses have seen their sentences reduced thanks to the First Step Act, according to data from the Federal Bureau of Prisons and the U.S. Sentencing Commission....

But the effects of the act's other major provision — the relaxing of the notorious "three strikes" rule to mean a 25-year sentence, rather than life in prison, for three or more convictions — are so far difficult to measure. A year in, little data has been collected around how many people had been sentenced under the new guidelines.

The act also a required the development of a new risk assessment tool that aims to determine which inmates are most likely to re-offend if released and to identify ways to assist those who are released. It was completed in July. Meanwhile, roughly 16,000 federal prisoners have enrolled in drug treatment programs created by the act, according to the Justice Department.

The success — or limitations — of the tool and the new programs still remain to be seen, but advocates say the overall represent a major shift in thinking. "It's part of wider system transformation from one that was based on gut instinct and anecdotes and headlines to decisions that are made based on evidence and research," said Adam Gelb, the founder of the Council on Criminal Justice, a bipartisan criminal justice nonprofit.

However, he added, the nuances of implementation matter. "We're talking about human behavior and it's never going to be a perfect assessment of someone's readiness for release nor a perfect judgment about the length of time they deserve to spend behind bars for the purposes punishment," he said.

Head, the executive director of the Faith and Freedom Coalition, said the act's changes, which also include mandating BOP train its 31,000 employees on de-escalation techniques and mental health awareness, intended to shift "the culture of our federal system from pure punishment, to one of at least considering rehabilitation in a much more meaningful way."...

Advocates for the First Step Act, particularly left-leaning ones, described its reforms as historic but modest. True change will require looking to the heart of the system — police interactions and what happens inside courtrooms, experts said. Right now, black Americans are more likely to be arrested for the same activities as white Americans, and more likely to be prosecuted, convicted and sentenced to longer jail terms....

To make a more significant dent in the nation’s prison population, attention must shift toward the roots of mass incarceration, said Tony J. Payton Jr., a Democrat and former Pennsylvania state lawmaker who championed state-level criminal justice reforms. “We’ve got to basically dismantle that entire system,” said Payton, who is now affiliated with the 20/20 Bipartisan Justice Center, a national and bipartisan coalition of black criminal justice reformers.

Payton's list of targets, however, points to some of the remaining contentious matters in criminal justice reform that could threaten the bipartisanship needed to implement them, such as sentencing reform for both non-violent and violent offenders, eliminating mandatory minimums, reforming police departments and eliminating prosecutorial immunity.

November 25, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Thursday, November 07, 2019

Any "hot takes" on how a Trump judiciary might be changing sentencing law and practice?

The question in the title of this post is prompted by milestones reached and celebrated by the Trump Administration yesterday.  This Bloomberg article, headlined "Trump Boasts of GOP Success Confirming His Judicial Nominees," provides some background:

President Donald Trump celebrated Republicans’ record on confirming federal judges on Wednesday, saying his administration has done better than any other in terms of “quality and quantity” of judges appointed to the bench....

The president’s comments came as the U.S. Senate is set to confirm Trump’s 45th circuit judge this week.  With that vote, he will have appointed about a quarter of all appeals court judges.

Trump has won confirmation of a total of 158 federal judicial nominees, including Supreme Court justices Brett Kavanaugh and Neil Gorsuch.  The president, who on Wednesday named 10 additional judges he intends to nominate, is likely to see more win approval this year than during the first two years of his presidency combined.

The pace of confirmation far exceeds those of his immediate predecessors, a fact that Trump routinely notes in public comments.  The GOP’s Senate majority leader, Mitch McConnell, has leveraged his party’s control of the chamber to flood the federal courts with Trump’s picks.

The appointments have led to the Third Circuit Court of Appeals -- which hears cases from Pennsylvania, New Jersey and Delaware -- flipping from a majority of judges appointed by Democratic presidents to a majority appointed by Republicans.  By the end of the year, similar changes are likely in the Second Circuit, which includes New York, Connecticut and Vermont, and the Eleventh Circuit, which covers Alabama, Florida and Georgia.

During President Barack Obama’s second term, McConnell held up nominees -- including a Supreme Court vacancy created by Justice Antonin Scalia death in 2016 -- leaving 86 district court vacancies and 17 circuit court vacancies for Trump to fill.  Trump has repeatedly mocked Obama for leaving the positions unfilled....

“Nobody has done more to change the court system in the history of our country than Donald Trump,” McConnell said Monday at a rally in his home state of Kentucky with the president. “And Mr. President, we’re going to keep on doing it.  My motto is: Leave no vacancy behind.”

Because "the court system" plays a fundamentally central role in federal sentencing decision-making, if Prez Trump's nominees are dramatically changing the court system in our country then one might expect to also see a dramatic change in sentencing law and practice.  But I do not sense there has been major change in this arena (though I do not follow lower court rulings in this space quite as closely as I did in the immediate post-Booker days).

Of course, the jury is still out on how Justices Gorsuch and Kavanaugh will impact SCOTUS sentencing jurisprudence as replacements from Justices Scalia and Kennedy.  But SCOTUS decides so few sentencing cases while the circuit courts decide so many, and district judges do all the actual sentencing.  And so I keep gravitating to the idea that a Trump judiciary might well be changing sentencing law and practice.  But does anyone think the Trump judges actually are making a big difference?

November 7, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Sunday, November 03, 2019

"Criminal Justice Reform Is About People, Not Posturing"

The title of this post is the title of this recent Real Clear Politics commentary authored by John Koufos.  I recommend the full piece, and here are excerpts:

It’s a shame that Sen. Kamala Harris sought to politicize a celebration of the historic First Step Act at Benedict College in South Carolina last week.  Criminal justice reform has benefited millions of Americans — most especially the minorities the Democratic presidential candidate says she advocates for.  This reform restores victims, redeems former prisoners and rebuilds communities....

According to the U.S. Sentencing Commission, the First Step Act has overwhelming helped remedy historic injustice to minorities; African Americans make up more than 91% of those released.  It is no secret that minority communities were hurt most by the 1994 Clinton crime bill, which was originally drafted by Sen. Joe Biden.  At Benedict College, the president demonstrated his support for a “second step” of criminal justice reform....

Perhaps the greatest legacy of the First Step Act is its effect on state policy.  States are following the national criminal justice reform trend led by the White House. The president identified recent reforms in Arizona, Florida, Louisiana, Mississippi, Missouri, Michigan, Nevada, Oklahoma, Oregon, and Tennessee, which can be expected to lead to safer streets, increased employment and opportunity, and restored dignity and self-worth.

Goals — and results — like these should not be politicized.  I have seen the commitment of the president and White House first-hand, as part of a bipartisan coalition working on criminal justice reform.  I had the privilege of being in the Oval Office when the First Step Act was signed, and was humbled when the president asked me to speak about criminal justice reform at the White House.  I witnessed Jared Kushner’s leadership, and the commitment of Republican and Democrat legislators.  As I work with governors and state leaders across the country, I see the excitement for criminal justice reform regardless of party.

Criminal justice reform is a nonpartisan idea whose time has come.  President Trump summed it up best at Benedict College when he said: “I knew criminal justice reform was not about politics.  I’m … not sure that what I did was a popular thing or an unpopular thing, but I know it was the right thing to do.”

November 3, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Tuesday, October 29, 2019

Guest post by Anonymous: "Donald Trump Not A Boon to Private Prison Industry"

Download (5)A thoughtful person recently sent me an email with thoughtful observations on what the Trump era has meant for the private prison industry in the financial markets.  I asked if I could post the musings, and I was allowed to put up this text under the byline "Anonymous."  Enjoy:

Anyone remotely interested interested in criminal justice reform could hardly forget the immediate effect that President Trump’s law-and-order election had on the private prison industry.  Almost immediately, there was an out with the old (Obama) and in with the new (Sessions) ideological shift that saw the value of these companies double in value (press report here). There was very little reason to hope that many reformer’s goal of banning private prisons would come to fruition.

Almost three years later, my life as an investor — along with the non-stop chatter about the S&P 500 at new all-time highs — had me curious to see what the performance of these stocks was since President Trump took over.  My discovery was somewhat astonishing (although pleasantly so); GEO (GEO Group) and CXW (Core Civic Inc. — formerly Corrections Corporation of America) are now trading at Pre-Trump levels (prices that factored in a Hilary Clinton presidency and the potential banishing of the private prison industry as a whole).  Coupled with the fact that this is happening notwithstanding the S&P 500 hitting an all-time high today and rallying 50% or so since Trump's election.  Now when you factor in that these stocks doubled in the weeks following the election, they are actually down 50% since!  That is EXTREME relative underperformance.

What does this all mean?

1.  The major share holders of these stocks feel there is significant likelihood of a Democrat being elected in 2020 — so much so that they have ALREADY begun to dump their stocks a year early,

2.  Trump’s policies are seriously emptying out the private prison through expedited deportations and/or decreasing of prison populations,

3.  States have significantly begun to reduce its number of inmates (after all, there are far more state inmates than federal ones), 

4.  Nothing at all.

Just an interesting thought that intersects last week’s criminal justice forum and today’s new stock market highs.

One thing is for certain — President Trump has not done well for the private prison industry, and that’s just fine by me.

            — Anonymous

October 29, 2019 in Criminal justice in the Trump Administration, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Sunday, October 20, 2019

Prez Trump and all the leading Democratic Prez candidates now slated to speak at 2019 Second Step Presidential Justice Forum

As reported in this CNN article, "President Donald Trump will attend a criminal justice forum in South Carolina ... along with several of his 2020 Democratic challengers, the White House confirmed to CNN." Here are the interesting details:

The 2019 Second Step Presidential Justice Forum is also expected to be attended by former Vice President Joe Biden, South Bend, Indiana, Mayor Pete Buttigieg, Sen. Cory Booker of New Jersey, former Housing and Urban Development Secretary Julian Castro, former Rep. John Delaney of Maryland, Sen. Kamala Harris of California, Sen. Amy Klobuchar of Minnesota, Sen. Bernie Sanders of Vermont, Sen. Elizabeth Warren of Massachusetts -- all of whom have confirmed their attendance.

Trump will speak on Oct. 25, while the Democrats are slated to speak at various times throughout the day on Oct. 26 and 27, according to the event schedule [basics here].

The event which is billed as a "bipartisan forum of presidential candidates exclusively focused on criminal justice reform as it affects the Black community," will feature the first-ever "HBCU Straw Poll," according to the news release, in which "all students and alumni of the eight HBCUs in South Carolina will vote online for the presidential candidate that best addresses their concerns on all issues facing African-Americans, not solely limited to criminal justice reform."  The forum will be held at the historically black Benedict College in Columbia, South Carolina.

Last month, Trump announced that his administration would lift a ban on federal funding for faith-based historically black colleges and universities, hailing his administration's work advancing HBCUs. At that time, the President said the "nation owes a profound and enduring debt of gratitude to its HBCUs," later adding, "You've seen this administration's commitment -- bigger and better and stronger than any previous administration by far."  Trump has also previously cast himself as the best leader for African Americans, despite securing only 8% of the black vote in 2016 and frequently stoking racial tensions.

The forum will give him the opportunity to discuss the First Step Act, bipartisan criminal justice legislation that was enacted into law last year and includes measures that have allowed thousands of federal inmates to leave prison earlier than they otherwise would have, eases some mandatory minimum sentences and gives judges more leeway in sentencing, among other things.

October 20, 2019 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, September 24, 2019

Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement

This lengthy new Politico piece portends some dark clouds for federal criminal justice reform efforts in the months and perhaps years ahead. The full headline summarizes the essential: "Trump snubs Jared Kushner’s signature accomplishment; The president thinks criminal justice reform is a political loser, and hasn't been shy about saying so."  Here are some extended excerpts:

When President Donald Trump huddled with campaign aides in the late spring to discuss his bid for reelection, White House senior adviser Jared Kushner told his father-in-law he should highlight last year’s historic passage of the First Step Act — a sweeping criminal justice reform bill that eluded previous administrations and has earned celebrity support.

Kushner reiterated the positive selling points of that bill during the Oval Office meeting as Trump campaign officials and White House aides ticked through the president’s achievements, wondering which would resonate most with his adoring base.  But Trump wasn’t interested and told Kushner he didn’t think his core voters would care much about a bipartisan deal for which he’s since accused Democrats of trying to steal credit. “It was clear he thinks it’s a total dud,” said a person familiar with the meeting. “He made it abundantly clear he doesn’t think it’s worth talking about.”

Kushner, whose own father spent more than a year in federal prison, worked closely with Democratic and Republican senators to get the criminal justice reform bill over the finish line last year — often telling his tough-on-crime boss it was worth expending political capital to seize a rare opportunity to overcome the deeply partisan divide on Capitol Hill and solidify his image as a pragmatic deal-maker.

But now, Trump “is telling people he’s mad” at how criminal justice reform has panned out, according to a person close to the president. “He’s really mad that he did it.  He’s saying that he’s furious at Jared because Jared is telling him he’s going to get all these votes of all these felons.”

Indeed, for months, the president has glossed over his son-in-law’s signature legislative achievement at his campaign rallies. If he brings up criminal justice reform, it’s almost always to mock his predecessors for their inability to get it done. Otherwise, as he did at his three most recent campaign events, he skips it entirely, indulging in long-winded rants about unresolved issues like trade and immigration instead of plugging one of the few bipartisan triumphs of his administration.

The subject’s notable absence from Trump’s 2020 stump speech offers a raw look at the president’s political instincts, which strongly veer toward partisan fights and away from the soaring appeals to national unity of past White House incumbents. And it lacks appeal to his base of rural and older white voters, who often respond better to hard-line rhetoric on the topic of law and order.

The nub of the issue for Trump, say White House officials, congressional aides and friends of the president, who were granted anonymity to speak candidly on the matter, is that he no longer sees criminal justice reform as a résumé booster heading into 2020.  He brings it up at official events, in response to reporters, and to religious groups — and it was a key part of Trump’s State of the Union address in January, when he welcomed home the first inmate to be released under the First Step Act — but it’s far from a permanent fixture of his reelection campaign.

“It would be difficult to say it’s a change of heart. I don’t think his heart was ever really in it,” said one White House official, adding that some Trump aides questioned why the president — who once declared himself “the law and order candidate” — endorsed the First Step Act in the first place....  In response to this story, a White House official said, “This false premise is another convoluted contradictory, media-manufactured joke. The president is clearly proud of all of his record-setting accomplishments — including the landmark bipartisan Criminal Justice Reform that data shows will save money, reduce crime and make communities safer.”

During the Oval Office meeting this spring, Trump complained that Democratic co-sponsors of the First Step Act skipped the bill signing at the White House last December (Sen. Sheldon Whitehouse of Rhode Island was the only Democrat to attend) and have refused to give him credit for passing prison reform when his immediate predecessor couldn’t, according to two people with knowledge of the meeting.  He’s said as much publicly in recent days, tweeting earlier this month: “I got it done with a group of Senators & others who would never have gone for it. Obama couldn’t come close.”

The tweet came after NBC’s Lester Holt omitted any mention of Trump’s role in advancing criminal justice reform during a televised town hall on the network. The president felt the televised special was disingenuous and thought singer John Legend, who participated in it, “paraded himself out like he was the great savior of criminal justice reform,” according to a senior administration official....

“He’s been telling Jared, ‘I got nothing from that,’” a person close to the White House said of criminal justice reform, adding that the president feels duped by claims that his popularity has grown and that he is frustrated with Kushner’s attempts to “jawbone” the issue into every speech he delivers.  “Jared has got all these stats like ‘every rapist in Florida is now going to vote Republican,’” quipped the person close to Trump.  “Trump doesn’t believe it and he’s mad Jared sold him this thing,” the same person said. (The First Step Act gives only certain nonviolent offenders a chance to shorten their sentences, and excludes sex offenders from early release.)

Kushner has claimed publicly that more nonviolent ex-felons in Florida, where they recently became eligible to vote, are registering as Republicans than as Democrats. In a rare television appearance in April, he told Fox News’ Laura Ingraham that he found that statistic “very pleasing” and one “that will surprise a lot of people when they see the new coalition that President Trump is building.”  But it is unclear how Kushner and his team procured such data. As of March, more than 2,000 formerly incarcerated felons had registered to vote in Florida, according to a study by the Brennan Center for Justice, which did not disclose the new registrants’ party affiliations. An aide to Kushner did not provide details on the source of the data in time for publication.

Some Trump allies argue that Kushner, who continues to monitor implementation of the First Step Act, is unlikely to persuade media personalities and Democratic lawmakers who support either to credit Trump with working across the aisle to get the measure passed.

“Van Jones was happy with Trump for a day. That’s all Trump got,” said the person close to Trump, referring to the liberal CNN pundit and former Obama adviser, who once described the First Step Act as “a Christmas miracle.”  Jones did attend a White House summit on prison reform this April — months after the bill passed — and recently met with Kushner to discuss its impact.  Jones, who co-founded the bipartisan criminal justice reform nonprofit #cut50, noted that he’s continued to sing Trump’s praises on the topic, including in a recent interview with CNN in which he celebrated Trump’s role in signing the First Step Act into law.... “There’s always been a bunch of people in the building, they didn’t like it before, during or after, and they’ve always been able to leak out anonymous bullshit quotes that then very quickly have egg on their faces because Trump does something else positive in this direction or throws in another line in a speech,” said Jones, who confirmed that Trump has been frustrated with the lack of credit he’s received....

Some Trump allies worry that the more the president talks about criminal justice reform, the more vulnerable he becomes if a prisoner released early under the restructured sentencing guidelines is ever accused of committing another crime.  When Republicans battled over criminal justice reform last fall, a small group of conservative senators who ultimately opposed the bill warned Trump of the dire consequences he could face if an inmate who won early release became a repeat offender.  “You let people out of jail early, commute sentences, something bad happens because of this effort [and] it’s going to be one more egg on their face — or even worse, blood on their hands,” said a former Senate Republican staffer.

Another GOP aide pointed to a negative ad campaign Republican gubernatorial candidate Eddie Rispone recently launched against Louisiana Gov. John Bel Edwards over his support for statewide sentencing reform. The ad accuses Edwards of putting “dangerous” and “violent” ex-felons “back on our streets where they robbed, attacked, [and] murdered.” A person familiar with the ad buy said it was prompted by the September arrest of a Louisiana man on burglary charges who was released early last year as part of a parole reform bill passed by the state Legislature in 2016. “Any smart political person would not go out bragging that they let criminals out of jail,” the GOP aide said.

This reporting is quite interesting, but not really all that surprising in light of Prez Trump's personal and political history. It also has me wondering whether Attorney General William Barr, who seems to be in good with Prez Trump and does not seem inclined to be a big fan of the FIRST STEP Act, might be having some influence on how the Prez thinks about these issues. Most fundamentally, this story serves as yet another reminder of just how fragile political support for criminal justice reform can be and how critical it can be to get reform work done whenever a window of opportunity is open.

September 24, 2019 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (3)