Sentencing Law and Policy

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

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

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

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

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

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

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

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

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

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

Any suggestions for whom else Donald Trump might pledge to free from federal prison "on day one" back in the Oval Office?

A few months ago, Donald Trump pledged on Truth Social that among his "first acts as your next President will be to ... Free the January 6 Hostages being wrongfully imprisoned!"   And, in a speech last night, as covered in this post, Trump sought to garner support from a libertarian crowd by announcing "If you vote for me, on day one I will commute the sentence of Ross Ulbricht, to a sentence of time served."

These clemency pledges got me to thinking that notable political contingents, or maybe even just a few key folks in a key swing state, might be able to cajole Trump into pledging to use his clemency pen a particular way.  Former NFL star Antonio Brown seemingly figured this out already, as this Fox News piece highlights he has been praising and pitching Trump on clemency fronts.  For example, given that supporters of Marilyn Mosby have so far had no success getting Joe Biden to grant her clemency, perhaps they ought to make a run at getting Trump to pledge clemency for her.   

The Mosby (tongue-in-cheek) idea aside, I do not think it would be foolish at all for Trump to seek to garner attention and favor from certain voters through clemency pledges.  Many criminal justice reform advocates have been quite disappointed that Joe Biden has not used his clemency pen more robustly and broadly.  Polling data suggests that young people and people of color are especially interested in criminal justice reform, and astute clemency pledges could make these important voting blocks take notice.

So, dear readers, any (specific or general) suggestions for whom else Donald Trump might pledge to free from federal prison "on day one" back in the Oval Office?

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

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

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

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

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

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

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

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

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

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

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

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

You be the political operative: should Donald Trump lean into his sentencing reform record?

The New York Times has this notable new piece, headlined "Pardon Recipients Seek to Sell Trump on His Own Sentencing Law," which prompts the question in the title of this post.  The article meanders a good bit, and it does not really get that deep into either modern sentencing policy and politics.  But, with now less than a year until the 2024 election, it serves as a useful reminder that there will be lots of sentencing policy and politics worth discussing in coming months.  Here are excerpts:

In early July, former President Donald J. Trump received a somewhat unlikely visitor at his golf club and estate in Bedminster, N.J.: Michael Harris, the founder of Death Row Records, who had been imprisoned for drug trafficking and attempted murder, came to meet privately with the man who had pardoned him....

Mr. Harris is the type of high-profile Black celebrity that some Trump associates hope will next year highlight the former president’s signature criminal justice reform law, the First Step Act, which was one of Mr. Kushner’s key priorities during his time as an adviser in the White House.

Although Mr. Harris is not a beneficiary of the sentencing law, having received his pardon on Mr. Trump’s last full day in office after serving decades in prison as part of a series of clemency grants, he has nonetheless become an evangelist for it....

Mr. Harris declined to discuss what took place in their meeting, but he expressed gratitude toward the Trump administration in a statement and praised the sentencing law. “The passing of the First Step Act and similar initiatives surrounding” criminal justice reform “has provided much needed relief for so many deserving individuals and families,” he said....

Not everyone around the former president believes that he should highlight the First Step Act, which Mr. Trump himself soured on soon after signing it. Mr. Trump, who is often influenced by what he thinks his core voters want, felt affirmed in that view after a number of hard-core Republicans began to criticize it in 2021 and 2022 amid a rise in crime. Some of his conservative associates, who see the bill as problematic with Republicans, said privately that they were unhappy that he had met with Mr. Harris....

He has also grown increasingly violent in his rhetoric about crime in America, saying that he admires the freedom that despots have to execute drug dealers and that shoplifters should be shot on the spot.

At the same time, he has made clear that he viewed the law, which, among other things, sought to reduce mandatory minimum sentences for some crimes, as something that should have won him support from Black voters.  “Did it for African Americans,” he wrote to this reporter for a book in 2022 when asked about his repeated expressions of regret about the law. “Nobody else could have gotten it done.  Got zero credit.”...

It remains to be seen how willing Mr. Trump will be, if at all, to speak about the criminal justice law, or whether Mr. Harris might be asked to speak publicly.

The same week that Mr. Harris met with Mr. Trump, the former president received a call from Alice Johnson, whose life sentence on charges related to cocaine possession and money laundering was commuted after a meeting between Mr. Trump and the celebrity Kim Kardashian. Ms. Johnson was the person who recommended to Mr. Kushner and Ms. Trump that Mr. Harris be granted clemency.

“My whole conversation was just encouragement” about the criminal justice reform bill, said Ms. Johnson, who spoke at the Republican National Convention in 2020 and was pardoned by Mr. Trump a short time later. She said no one had asked her to call him or engage in politics for him next year. But, she added, “he actually is proud of that piece of legislation.”

The title of this post reflects my sense that former Prez Trump himself seems to approach sentencing issues (like many others) through the lens of a political operative.  Though a variety of his actions and statements reflect a "tough on crime" posture, Trump proved while he was president that he would be willing to support reforms if he thought there could be potential political advantage therein.  What this exactly this might mean for Trump and the GOP going forward on a wide range of criminal justice issues, especially with Trump himself subject to multiple criminal indictments, remains to be seen.

Former Prez Trump again talking up the death penalty as a way to address drug problems

Back in March 2018, as noted in this post, then Prez Donald Trump started talking up the idea of the death penalty for drug dealers as part of his stump speeches.  Way back then, I noted that constitutional questions about any such law would be sure to reach the Supreme Court and also that, at that time, there had not been any federal execution for well over a decade.  I also noted that the then-GOP-controlled Congress was working on a sentencing reform bill that could have been a vehicle for adding his Trump's capital sentencing idea.  

Fast forward five+ years, and now Prez-candidate Donald Trump is again talking up the idea of the death penalty for drug dealers as part of his stump speeches.   This Hill article, headlined "Trump doubles down on death penalty for drug dealers," explains:

Former President Trump doubled down on calling for the death penalty for drug dealers Saturday. “President Xi in China controls 1.4 billion people, with an iron hand, no drug problems, you know why they have no drug problems?” Trump said at a campaign event in New Hampshire Saturday. “Death penalty for the drug dealers.”

“You want to solve your drug problem, you have to institute a meaningful death penalty for… a drug dealer,” the former president continued.

This isn’t the first time the former president has called for the death penalty for drug dealers.  Back in June, Trump notably advocated for drug dealers getting the death penalty in a Fox News interview, despite the fact it would have applied to Alice Johnson, a woman whose sentence Trump commuted in 2018.

Though I consider Trump's comments to be more political posturing than policy proposal, I am struck by how the legal landscape has changed since I was commenting about these ideas back in March 2018.  With Justices Kennedy and Ginsburg replaced by (Trump-appointees) Justices Kavanaugh and Barrett, the current Supreme Court seems much more likely to uphold broader applications of the federal death penalty.  I make that statement in part because these Justices expressed no concerns about the 13 federal executions that were carried out in the final six months of Trump's presidency.  And, of course, the sentencing reform bill I was talking about in March 2018 became the FIRST STEP Act that was signed into law by Trump toward the very end of that year.  (Might Trump sometime start describing his "Death penalty for the drug dealers" proposal as a second step in sentencing reform?)     

Prior related posts from 2018:

• Prez Trump reportedly "would love to have a law to execute all drug dealers here in America"
• Prez Trump talks up "very strong" criminal penalties "with respect to the pushers and to the drug dealers" 
• Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed? 

Continuing coverage of DOJ efforts to continue prosecuting recipient of commutation by Prez Trump

Back in June of this year, I had the honor of serving as a witness at a congressional hearing to discuss federal clemency.  Specifically, the House Judiciary Subcommittee on Crime and Federal Government Surveillance conducted a hearing titled "The Examination of Clemency at the Department of Justice," and the hearing page noted that one goal of the hearing was to "examine the Department of Justice's unprecedented re-prosecution of Philip Esformes, whose prison sentence was originally commuted by President Donald Trump."   I explained in my written testimony why,  though I was "only somewhat familiar with the intricacies of the Esformes case," I found "deeply troubling any Justice Department efforts to re-prosecute any clemency recipient for conduct related to a clemency grant."

Perhaps unsurprisingly, the Esformes case and related issues continue to garner attention.  Indeed, in recent weeks, I have now seen a number of new press pieces on these matters:

From Mother Jones, "Donald Trump Freed a Convicted Medicare Fraudster. The Justice Department Wants Him Back."

From Salon, "Ex-prosecutor: DOJ targeting freed fraudster a 'reminder of Trump's gross abuse of pardon power'"

From the Washington Post, "Fraudster freed from prison by Trump faces prosecution under Biden"

Looking at these issues beyond the specifics of the Esformes case, there is quite an interesting forward-looking political component to these matters given that former Prez Trump is a leading candidate for President in the 2024 election.  Because the Supreme Court has ruled there are few formal legal limits on the clemency power set forth in the US Constitution, political accountability serves as the only significant functional restraint on this executive power. 

If "the people" were truly troubled by how Trump used his pardon power as president, voters can hold him accountable at the ballot box in the upcoming election.  But I have not yet heard any of former Prez Trump's political rivals directly assailing his past clemency record nor his stated promise to pardon a "large portion" of those convicted of federal offenses for involvement with January 6 riot.  It seems, at least within the GOP primary field, that there is little expectation that Trump's clemency record or promised would be a real political vulnerability. 

Notably, this Fox News piece from June quoted a former staffer for former VP Mike Pence stating that "we have to have a real conversation of what would people actually do with the power of the pardon ... [and] when you look at Donald Trump's record when it came to pardons, it was indefensible."  But VP Pence has already dropped out as a candidate for 2024, and I have yet to see on the political trail any high-profile efforts to have a "real conversation" about federal clemency past, present or future.  I doubt the Esformes case alone will prompt such a political conversation, but I do think possible clemency discussions could still be worth watching in the 12 months ahead.

Rounding up some recent reads on the politics of crime and punishment before second GOP debate

Tonight brings the second official GOP Prez candidate debate for the 2024 election, and perhaps because this debate is in California we might hear a little more discussion of crime and punishment issues.   Former Prez Trump has again deciding not to show up for this debate, but I continue to hope we might get a question focused on his signature criminal justice reform achievement, the First Step Act (such as the one I set forth in this prior post).  Though I doubt any crime and punishment issues will get all that much attention tonight (save perhaps immigration), I noticed a number of notable recent press pieces and commentaries about various aspects of the politics of crime and punishment these days:

From The Hill, "Progressive purity on crime is coming at the expense of public safety"

From the New York Times, "The Libertarian vs. Conservative Impulses in G.O.P. Policy on Crime"

From the Sacramento Bee, "Why do Democrats in blue California struggle to reform prisons, sentencing and police?"

From USA Today, "On criminal justice, don't just focus on bad news. We ignore progress at our peril."

From the Vera Institute of Justice, "Polling Shows Voters Prefer Crime Prevention Over Punishment"

From the Wall Street Journal, "Mayor Eric Johnson: America’s Cities Need Republicans, and I’m Becoming One"

I sincerely believe that there are lots of serious criminal justice issues that would merit lots of serious discussion and debate through the 2024 campaign.  I am not expecting elevated discussion on these topics during a candidate debate anytime soon, but I will keep rooting for it.

Some prior related posts:

• Florida Gov DeSantis reportedly gearing up to attack former Prez Trump for his support of FIRST STEP Act
• New GOP Prez candidate DeSantis pledges to repeal FIRST STEP Act 
• Interesting criminal justice news and notes from the GOP campaign trail
• "The First Step Act is a conservative, constructive approach to strengthening public safety"
• Canvassing GOP discussion and perspectives on criminal justice reform in run up to 2024
• Will there be any interesting or surprising crime and punishment discussion at tonight's first GOP debate?
• Wouldn't a GOP Prez candidate debate focused just on crime and criminal justice issues be worthwhile?

New GOP Prez candidate DeSantis pledges to repeal FIRST STEP Act

I noted in this post a few month ago a press report that Florida Gov Ron DeSantis was planning to assail former Prez Trump for his support of the FIRST STEP Act back in 2018. And, sure enough, with days of announcing his candidacy for President, Gov DeSantis has attacked Trump's signature criminal justice reform achievement. This Fox News piece, headlined "Ron DeSantis rips Trump over First Step Act, vows to repeal it: 'Basically a jailbreak bill'," provides these details:

Republican presidential candidate and Florida Gov. Ron DeSantis vowed Friday to seek a repeal of President Trump's signature First Step Act, a bipartisan criminal justice reform bill that aimed to reduce recidivism, allowed a pathway for non-violent prisoners to shorten their sentences, and reduced mandatory minimum sentences.

"Under the Trump administration — he enacted a bill, basically a jailbreak bill, it's called the First Step Act. It has allowed dangerous people out of prison who have now re-offended, and really, really hurt a number of people," DeSantis said in an interview with the Daily Wire.

"So one of the things I would want to do as president is go to Congress and seek the repeal of the First Step Act. If you are in jail, you should serve your time. And the idea that they're releasing people who have not been rehabilitated early, so that they can prey on people in our society is a huge, huge mistake," he added.

DeSantis voted for the first version of the bill as a member of the House of Representatives in 2018, the same year he was elected as Florida's governor, but had resigned before the final, more moderate version of the bill came to a vote in the chamber.

Trump's campaign responded to DeSantis by pointing to his original vote, and argued he was basically criticizing his own supporters in Congress who also voted for the bill. "Lyin' Ron. He voted for the First Step Act. Would be a shame if there was video of him praising it in an interview with a local FL television station..." Trump campaign spokesperson Stephen Cheung tweeted following the DeSantis' interview.

"DeSantis supporter [Rep. Thomas Massie, R-Ky.] voted for the bill as well. DeSantis is calling out his own Congressional supporters and throwing them under the bus," he later added in a separate tweet.

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

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

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

A notable call for next steps on federal sentencing reform (with a too modest accounting of FIRST STEP's impact)

Doug Collins has this notable new commentary at Fox News under the headline "First Step Act showed Republicans and Democrats can work together to make justice system more just."  I would recommend the full piece, and here are excerpts:

Four years ago this week, just before Christmas, both parties came together for a holiday miracle: passing the First Step Act, the most significant change to our justice system in decades.  It was a win for Republicans and Democrats in Congress; a win for then-President Donald Trump; and, more importantly, a win for thousands of American families whose lives were changed for the better through a series of prison and sentencing reforms that were fair, safe, and spoke to American values.

To date, over 7,500 folks have been able to regain their lives after the passage of the First Step Act.  These are Americans who made mistakes years ago, received unduly harsh penalties that sent them to prison for decades, and have now regained their freedom.  This year, they get to spend Christmas at home with their families thanks to this legislation.

It goes to show that when it comes to criminal justice reform, major progress is more than possible; I’ve witnessed it firsthand.  One of my proudest moments in Congress was seeing that bipartisan bill, which I worked across the aisle to put together with now-Minority Leader-elect Rep. Hakeem Jeffries, get signed into law at Trump’s desk.  It was a reminder of how much we can get done, regardless of party, on the biggest issues of the day....

As a Christian, I firmly believe that we must support redemption for those who have atoned.  The incredible, redemptive effect that passing bills like the First Step Act have across our country cannot be ignored.  And as a conservative, I believe in cutting unnecessary government waste and trimming out-of-control spending, including within our justice system.  It all comes down to what I call "M&M" — money and morals — and smart criminal justice legislation speaks to both....

As its name suggested, the First Step Act was just the first step, and there are many more steps that be taken to make our federal justice system fairer and more effective.  Even while there is so much we are divided on as a country, when it comes to reforming our broken criminal justice system, there are plenty of promising paths forward.  One of those next steps is ending one of the most unjust laws we have on the books: the cocaine and crack sentencing disparity....

Unfortunately, Congress missed its chance to build on the First Step Act.  This week, the EQUAL Act — the bipartisan bill to eliminate the sentencing disparity — was left out of end-of-year Senate negotiations.  And while the Department of Justice did recently issue sentencing guidance to fix the disparity for future cases, it is still not a permanent solution and will not retroactively help the thousands of folks still in prison serving long sentences that don’t fit the crime....

Yet despite not making it over the finish line this year, I am extremely hopeful for the future: both for this legislation, and for more paradigm-shifting criminal justice reform.  Before its untimely demise in the Senate, the EQUAL Act was approved with massive support from both the most conservative and liberal wings of the House, proving that bipartisan agreement on effective criminal justice policy is ripe for consideration in the coming Congress....  Let’s hope and pray that this time next year, our country will have taken the next step forward on criminal justice reform, and continue the great work we started with the First Step Act.  

I am quite pleased to see former Rep Collins continue to advocate for the EQUAL Act both "as a Christian" and "as a conservative."  But I think he undersells the achievements of the FIRST STEP Act when he speaks only of "over 7,500 folks have been able to regain their lives after the passage of the First Step Act."  This (somewhat unclear) BOP page, indicates as of this writing that there have been 11,421 "First Step Act releases," and I suspect that number reflects only those who have gotten out a bit earlier thanks to the "earned time" credits of the FSA. 

In addition, the BOP page reports nearly 4000 persons have benefitted from retroactive crack sentence reductions and andother nearly 4400 have benefitted from compassionate release thanks to new FSA processes.   And these BOP numbers would seem to be undercounts, as the US Sentencing Commission has reported here over 4200 retroactive sentence reductions and has reported here over 4500 grants of compassionte release.  (Of course, not everyone getting sentence reductions is getting immediately released from prison, but likely most are.)  The BOP page also reports that over 1200 persons have benefitted from expanded elderly home confinement provided by the FSA.

Though a precise accounting the the exact number of federal prisonsers who have been released somewhat earlier thanks to the First Step Act is hard to pin down, I do think it is probably twice and maybe three times as large as the 7,500 number stated by Collins.  And, assuming the newly filled US Sentencing Commission makes a variety of guideline amendments consistent with the FSA, the impacts of the First Step Act will continue to echo through the federal prison population.

Isn't a 4% post-offense "faced legal scrutiny" rate worthy of praise ... even for Prez Trump's clemency grants?

This press report about an Oregon study of pandemic-related commutations notes that, among recipients who were released early, "18% were arrested within one year of their commutation, 8% were convicted of a new crime and 2% were reincarcerated."  The press report rightly indicated that these are relatively low rates based on a comparable cohort of individuals in Oregon.  

These Oregon commutations are not really a proper point of comparison, but I am not sure how best to make the point that it is to be expected that, among any significant cohort of clemency recipients, some number are likely to face some future legal difficulties.  But this new ABC News piece about Prez Trump's clemency recipients seeks to make a huge deal about a couple of handfuls of clemency recipients having since "faced legal scrutiny."  The piece is headlined "Trump-era pardon recipients are increasingly back in legal jeopardy," and here are excepts:

An ABC News analysis of the 238 people who were pardoned or had their sentences commuted during the Trump administration found at least ten who have since faced legal scrutiny -- either because they are under investigation, are charged with a crime, or are already convicted.  Legal experts call this recurring theme unprecedented -- but not entirely unexpected, given the former president's unorthodox approach to the pardon process....

Those pardoned by Trump during his term in office included dozens of friends and political allies.  The list included celebrities, lawmakers and former aides who had been convicted of crimes ranging from fraud to murder -- including four private military contractors who were in prison for murdering 17 Iraqi citizens, including two children, in a 2007 attack in Baghdad....

Recidivism rates from previous administrations' clemencies is opaque, as federal agencies don't keep tabs on clemency grantees after their release.  But in one study reviewing former President Barack Obama's 2014 clemency initiative, which led to sentence commutations for nearly 1,700 federal drug offenders, the independent and bipartisan U.S. Sentencing Commission found only three who had been rearrested by the end of 2017.  A Texas woman was rearrested on theft charges less than a year after earning an Obama commutation on her life sentence in 2016, and another Texan pleaded guilty to drug charges less than two years after earning a life sentence commutation under Obama's 2014 clemency initiative.

Based on news accounts and other available evidence, the number of clemency grantees who have gone on to commit additional crimes remains "incredibly low," Kupers said. For Trump-era pardons, however, experts said the numbers seem disproportionately high.

I am depressingly confident that more than three persons who received clemency from Prez Obama have "faced legal scrutiny" in recent years.  But I am even more confident that I do not want the media or others spending time developing questionable clemency "recidivism" statistics or otherwise engaging in partisan spit-fights about the rare clemency recipients who do not make good use of a second chance.  Rather, I wish ABC News and othe press outlets would spend a lot more time telling the encouraging stories of the hundred and throusands of clemency recipients who have made great use of their second chances. Focusing just on grants by Prez Trump, I am thinking about the great work being done in the arena of criminal justice reform by people like Alice Marie Johnson and Weldon Angelos and Amy Povah and David Safavian and Topeka Sam.  I am sure there so many more uplifting stories to tell about clemency recipients, but I am also sure the ghosts of Willie Hortonism still have not faded away.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Donald Trump’s Clemencies: Unconventional Acts, Conventional Justifications"

The title of this post is the title of this paper now available via SSRN and authored by Austin Sarat, Laura Gottesfeld, Carolina Kettles and Olivia Ward.  Here is its abstract:

During his four years as president Donald Trump’s use of the clemency power generated considerable controversy.  Much scholarship documents the fact that he ignored the traditional procedures for reviewing and approving requests for pardons and commutations and used clemency to favor a rogues’ gallery of cronies, celebrities and those whose crimes showed particular contempt for the law.  However, few scholars have examined the justifications he offered when he granted pardons and commutations.  This paper fills that gap.  We argue that because the clemency power sits uneasily with democracy and the rule of law when presidents use this power they feel the need to supply justifications.  We report on a study of Trump’s clemency justifications that suggests that while his clemencies themselves were often controversial and his means of communicating about them unconventional, the reasons he gave for them were generally quite conventional and continuous with the justifications offered by his predecessors for their pardons and commutations.

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

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

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

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

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

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

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

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

Just a few of many prior related posts:

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

BOP chief from Trump Administration says "prisons are in crisis, riddled with deep and systemic ills that won’t be cured by simply replacing the BOP chief"

Hugh Hurwitz, who served as Acting Director of the Federal Bureau of Prisons from May 2018 to August 2019, has this notable new Hill commentary headlined "To fix our prison system, we need far more than a change in leadership."  It is worth reading in full, and here are some extended excerpts:

U.S. prisons are in crisis, riddled with deep and systemic ills that won’t be cured by simply replacing the BOP chief.  In fact, we’ve already tried that. Carvajal, appointed last year, became the sixth director or acting director in just five years.

The reality is that one person can only do so much. I should know. I was one of those six.

The news that sparked Durbin’s ire was an Associated Press report revealing that numerous federal prison workers have been arrested, convicted or sentenced for crimes since the start of 2019.  Sadly, corruption and other malfeasance within prison systems are not uncommon.  But as Durbin rightly noted, “it’s clear that there is much going wrong in our federal prisons, and we urgently need to fix it.”...

How do we move forward?  We must rethink our overall approach to incarceration to ensure that only the right people — those who need to be separated from society or require intensive reentry programming — are confined for the appropriate amount of time.

Common-sense sentencing reforms are a good place to start.  These include mandating a greater reliance on drug courts, community service and other alternatives to prison, such as halfway houses. It also means eliminating mandatory minimum penalties for drug crimes, which, among other problems, result in long sentences that drive prison populations up.

On the back end of the system, we need more intensive reentry programs to ensure that the more than 650,000 people leaving prison annually find the jobs, housing and healthcare they need to lead stable lives — and remain crime-free. Congress started this effort with bipartisan passage of the First Step Act of 2018 (co-sponsored by Durbin), but BOP needs sufficient resources to fully implement this law.

We also must invest in the recruitment, retention and training of correctional officers, while paying them on par with what other law enforcement officers earn. While the conduct spotlighted in recent news reports was reprehensible, it does not reflect the majority of BOP officers who put their lives on the line every day, and suffer disproportionately high rates of PTSD and suicide. They deserve to lead healthy lives, and their mental health has a direct impact on the orderly functioning of our prisons. It must be our concern.

Beyond such measures, Congress must tackle what should be the easiest, but may be the most divisive, piece of the debate: closing some of America’s oldest and costliest federal prisons.  Shuttering these aging lock-ups, some of which are more than a century old, would allow the BOP to reallocate staff and resources to the remaining facilities, improving safety and security while strengthening programs and services.

Closing prisons may be a hard sell to some, particularly to those in Congress.  But it has been done recently, at least at the state level. South Carolina, for example, has closed six correctional centers in the past decade, as its prison population declined following bipartisan passage of sentencing and corrections reforms in 2010.

One step the Attorney General and Congress should quickly consider is a recommendation from the Council on Criminal Justice’s Task Force on Federal Priorities, which called for creation of an independent oversight board for BOP.  This would bring outside expertise to bear on the agency’s multiple challenges while retaining the career leadership that historically has served the agency well.  The board would also provide political cover for harder choices that agency leaders and elected officials are sometimes reluctant or unable to make.

While the recent news about the BOP is disturbing, I hope it serves as a reminder of the need to rebuild our criminal justice system so that it is smaller, less punitive, more humane and safer for all.  With political will, independent oversight and an unwavering commitment, we can make holistic change to a system long in need of it.

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

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

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

Among the poll’s findings:

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

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

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

Some of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration
• Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action) 
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison 
• Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence 
• Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort 
• Law enforcement and prosecutor groups urge Prez Biden to commute sentence of all in home confinement cohort 

"Donald Trump’s Theatre of Pardoning: What Did We Learn?"

The title of this post is the title of this online panel now scheduled for two week from today and the first in a terrific series of online panels that will explore in depth the federal clemency powers.   As I detailed in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about this first panel:

Donald Trump’s Theatre of Pardoning: What Did We Learn?

Tuesday, September 14, 2021 | 12:30 – 2:00 p.m. EDT | Zoom  (Register here)

This panel will examine the unusual nature of President Donald Trump’s pardoning, looking at the grants themselves and the process that produced them.  Professors Bernadette Meyler and Frank Bowman, both scholars of the pardon power, will look to history for anything comparable to Trump’s use of the pardon power, and comment on its implications for the role that pardon has historically played in the U.S. justice system.  Amy Povah will share her experiences as someone who was personally involved in recommending cases to the White House at the end of the Trump Administration.  Kenneth Vogel will share his experiences as a journalist covering Trump’s pardons for the New York Times.  This panel will set the stage for the two subsequent panels about the future of presidential pardoning, by asking basic questions about the role of a regular pardon process and the result of it having been sidelined by Trump.  It will also consider whether Trump’s pardons were an aberration or the predictable result of trends in pardoning over the past thirty years.

Panelists:

Frank Bowman, Floyd R. Gibson Missouri Endowed Professor of Law, University of Missouri School of Law
Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Stanford Law School
Amy Povah, founder, CAN-DO Justice through Clemency
Kenneth Vogel, New York Times

Moderator:

Margaret Love, executive director, Collateral Consequences Resource Center and former U.S. Pardon Attorney

"The Trump Executions"

The title of this post is the title of this notable new paper authored by Lee Kovarsky now available via SSRN. Here is its abstract:

In the final six months of Donald Trump’s presidency, the federal government executed thirteen people.  For perspective, there were three federal executions in the prior fifty-seven years — and none since 2003.  Among other things, this Article is a historical record of the “Trump Executions,” constructed largely from primary-source material. The Article also offers a framework for organizing the unique legal issues that the Trump Executions presented, and discusses their crucial implications.

I proceed in three parts.  Part I places the Trump Executions in historical context.  For politicians and bureaucrats who embrace the death penalty, the Trump Executions were a once-in-a-generation opportunity.  Part I explains the Bureau of Prisons’ lengthy struggle to identify and implement a lawful execution protocol — which was largely responsible for the growth of federal death row, and the pent-up desire to clear it.  Part I also presents a four-year timeline of the Trump Executions, which grounds the balance of the Article.

Part II organizes, into four useful categories, the legal disputes that were largely unique to the Trump Executions.  These were over: (1) the pentobarbital-only lethal injection sequence, (2) a federal “parity” provision requiring alignment between federal and state death penalty implementation; (3) a statutory savings clause allowing prisoners to bypass otherwise-applicable restrictions on post-conviction relief; and (4) the effects of the COVID-19 pandemic.  (Issues belonging to a residual category receive abbreviated treatment.) Surprisingly, when the litigation was complete, the judiciary had clarified little about federal death penalty law.

Part III considers the implications of the Trump Executions.  The Supreme Court, which undertook unprecedented intervention by way of its “shadow docket,” plainly worked to ensure that the Joe Biden administration had no say in sentence implementation.  The significance of the presidential transition was quite real, as the Trump Executions went forward on the backs of political and bureaucratic outliers that coincide only infrequently.  Ironically, the Trump Executions will most durably affect other institutional practices that depend on emergency adjudication — including pandemic responses, elections, and capital punishment in the states.

Is the politics of crime and punishment now different than in our recent history?

The question in the title of this post is promoted by this recent Politico piece by Joshua Zeitz headlined "'Law and Order' has Worked for the GOP Before. This Crime Boom Might be Different." I recommend the piece in full, and here are a few excerpts:

In the 1970s and 1980s, Republican candidates successfully used violent crime as an issue to attract white voters. Fused with concerns over the economy, busing and neighborhood integration, “law-and-order” politics dislodged millions of working- and middle-class white voters from their former home in the Democratic Party. No politician did it better than Richard Nixon, whose White House staff aimed, in their own words, “to orient the Silent Majority toward issues other than foreign policy (e.g.: inflation, crime, law and order, etc.) and then to increase support for the President’s foreign and domestic proposals.”

But 2021 is not 1971. Even allowing for the public’s very real perception of violent crime as a top national priority, the nation’s political demography has changed dramatically over the last half century. Then, many working-class and middle-class voters lived in cities or inner-ring suburbs where crime was not a hypothetical concern; it was an everyday reality. By contrast, today most voters the GOP hopes to claw back inhabit increasingly diverse suburban areas where crime is not an everyday reality. Polls show that while most voters believe crime is on the rise, they don’t believe it threatens their neighborhoods.

It’s true that crime might function as a mechanism to motivate the conservative base. But to move voters from the Democratic to the Republican column, it will need to capture the independent voters who swung from Trump to Biden in the last election. And here the historical analogy breaks down....

[V]ast demographic changes over the past 50 years have re-sorted the American population.  Today’s swing voters are affluent suburbanites, not working-class residents of transitional urban neighborhoods.  The places where violent crime is on the rise — namely, cities — are deep blue and unlikely to change.  The places where violent crime is not on the rise — namely, suburbs — are the new political battleground....

Of course, none of this is to say that some of the urban voters affected by today’s rise in crime might not be up for grabs. Studies show that low-income non-white families are far more exposed to violent crime and more likely to perceive it as an immediate threat.  Republicans have made inroads with Latino voters, and in recent months, it has become clear that last year’s racial justice awakening obscured a more complicated reality about the Black electorate, which is diverse — not a monolith — but generally concerned about crime and welcoming of a greater police presence on the streets if and when that presence is protective of their safety....

The 2022 election cycle is still in the distant future, and in politics, things change quickly.  Judging by history and by polling, however, crime may not provide the winning message that the GOP is looking for.  Yesterday’s swing voters are not today’s swing voters, and in 2021, “law and order” doesn’t mean the same thing it did in 1971.

This article is focused on demographics to rightly observe that the politics of crime and punishment has evolved over the last half-century.  But I also think there is a lot more to the story of the changing political landscape, ranging from bipartisan disaffinity for (some parts of) the war on drugs and much greater public awareness — especially among younger Americans and libertarian-leaning conservatives — of the racial and economic impacts of mass incarceration and collateral consequences.  What all this means for elections in the 2020s remains to be seen, but nobody should forget that Donald Trump ran in 2016 on a "law and order" message and then signed a major federal criminal justice reform bill into law just two years later.  Put simply, in this century, I think both the politics and the practice of crime and punishment are quite nuanced and often quite unpredictable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some prior recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some prior recent related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Revise Charging Policies...

2. Reform Clemency...

3. Commit to Compassionate Release...

4. Ensure First Step Act Programming Credit...

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

6. Abolish the Death Penalty...

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

8. Support Reform at the Sentencing Commission...

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

10. Implement Forensic Science Reform...

11. Revise Discovery Policies...

12. Support Legislative Reform...

13. Support Release Through Parole...

14. Eliminate Financial Incentives to Charge Cases...

Any guesses for when we might again have a fully functioning US Sentencing Commission?

It has been far too long since the US Sentencing Commission has been fully functional, and this post is my indirect way of saying that I hope getting the USSC back in action with a full slate of Commissioners is a top priority for the Biden Administration.  But, given that we still do not yet have a new confirmed Attorney General nearly a month into the new administration, and especially with other business (and other judicial openings) sure to be a higher priority, I am wondering if it may still be months before we can start talking seriously about what the "new Commission" ought to be doing to advance criminal justice reform.

Former Prez Donald Trump's track record with respect to the US Sentencing Commission was quite spotty.  As noted in this April 2017 post, the USSC had only two of seven commissioner slots filled at the start of 2017 (which led the Commission not to advance any formal amendments to the guidelines in that year).  Senate confirmation of two nominees gave the USSC a functioning quorum to be able to move forward with 2018 guideline amendments.  But a slate of new nominees to the Commission by former Prez Trump in March 2018 were controversial and got a cold shoulder from the Senate leaving the USSC again with only two Commissioners (and thus without a quorum) as it entered 2019.  Prez Trump  thereafter did not announce new nominees until August 2020 and, according to this recent Law360 piece, those names were never even formally sent to the Senate.

Long story short, the US Sentencing Commission was only somewhat functional for a small portion of the last four years, and the USSC has not had complete set of commissioners firmly in place for the better part of a decade.  The USSC staff has completed lots of research and has churned out many reports in the interim, but the FIRST STEP Act's passage in December 2018 made it particularly problematic for the USSC to have been non-functional in terms of formal amendments or agendas in recent years.

As reveled on this official US Sentencing Commission page, right now the USSC currently has only a single Commissioner and so will need six new confirmed members to be back to full strength (and it needs at least three new commissioners to have a quorum to even be somewhat functional).  All these vacancies present Prez Biden with an important opportunity to revive and reshape the work of the Commission at a time when the work of the Commission could and should be especially important.  And, as I noted in this post in November, the criminal justice reform recommendations of the Biden-Sanders Unity Task Force (first discussed here; available here pp. 56-62) included this notable recommended agenda for the USSC:

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

I am hopeful that the Biden Administration is already working toward developing a list of nominees for the Commission (which, by statute, have to be bipartisan). I am especially hopeful that the Biden team might be already getting input on this list from key folks in the Senate so that any eventual slate of nominees will be well-received and quickly confirmed.  But, as suggested at the outset, because of various competing priorities and the (usual and unusual) inside-the-Beltway distractions, I really do not have a good guess to the question in the title of this post.

Another round of coverage of Prez Trump's clemency grants (and some folks left behind)

It is now nearly two full week since former Prez Trump issued his large batch of clemencies in his final hours in office.  As I mentioned in this post last week, Trump's entire clemency record is full of fascinating and frustrating stories with respect to individual cases and the body of clemency work.  I did a round-up of recent pieces assessing Trump's clemency activities law week, but another week of press coverage reveals another set of interesting stories about both clemencies granted and not granted:

From CBS News, "Man serving life sentence for non-violent crime reunites with family after Trump pardon: 'A piece of me is back'"

From CNN, "This former prisoner had an unlikely supporter: the judge who sentenced him"

From Forbes, "The Inside Story Of A Trump Pardon Gone Wrong"

From Newsday, "How the plan to grant clemency to Sheldon Silver was scuttled"

From Politico, "The Real Scandal Is the Pardon Trump Didn’t Give: Rufus Rochell checked all the right boxes for clemency: an exemplary record in prison, advocacy out of it, and a friendship with a famous Trump booster. So why didn’t he get it?"

From SF Weekly, "Meet the Cannabis Offenders Pardoned by Trump"

I hope it will not be too long before we have some clemency action by Prez Biden to talk about, but I am not really all that optimistic on that front. 

Highlighting bipartisan accomplishments and opportunities in the arena of criminal justice reform

Marc Levin has this notable new Hill commentary headlined "Build a bridge, not a wall, between administrations on justice reform," which emphasizes ground for bipartisan criminal justice reform work past and present.  I recommend the full piece and here are excerpts:

Few would dispute that the First Step Act was the crown jewel of bipartisan achievements over the last four years.  It contributed to the shrinking of the federal prison population through provisions such as lowering mandatory minimum penalties for drug offenses and making retroactive a reduction in the crack and powder sentencing law disparity.  Additionally, the CARES Act earlier this year expanded medical parole eligibility in the face of the wrenching impact of COVID-19 on incarcerated people and staff.

Other bipartisan accomplishments flew under the radar.  In 2018, the Juvenile Justice and Delinquency Prevention Act was reauthorized with provisions added to phase out the shackling of pregnant girls, require the separation of jailed youth from incarcerated adults, and ensure that racial disparities are tracked and addressed. In 2019, legislation was passed to stop abusive IRS prosecutions for “structuring,” which put some law-abiding small business owners through a dragnet simply because they made bank deposits of $10,000 or more.

Just two days before leaving office, Trump took action on another justice-related topic, overcriminalization.  In an effort to rein in the proliferation of obscure criminal penalties that can unwittingly trip up individuals and businesses, Trump issued an executive order mandating that when federal agencies create criminal offenses through regulations, they specify the culpable mental state required for conviction.

While the Biden administration should seek continuity in these areas, there is no shortage of work to do on other aspects of criminal justice reform.  In June 2020, the Council on Criminal Justice convened a bipartisan Task Force on Federal Priorities, chaired by former Georgia Gov. Nathan Deal, that issued numerous recommendations, including the reinstatement of Pell grants for people in prison that was adopted in December.  Among the most important items deserving action by the White House and Congress are Task Force recommendations to abolish federal drug mandatory minimums, expand record sealing, and allow courts to take a second look at certain sentences after individuals have spent many years behind bars.

Fortunately, many of these priorities are already teed up for bipartisan action in Congress.  For example, acquitted conduct legislation backed by lawmakers ranging from Sen. Richard Durbin (D-Ill.) to Sen. Mike Lee (R- Utah) would prohibit prosecutors from contaminating the sentencing phase of a trial with references to conduct that the jury determined the defendant was not guilty of.

Another priority is marijuana reform, which — at a minimum — should include waiving federal laws that interfere with state legalization of medicinal or recreational marijuana. All but six states have now legalized marijuana in some form, and yet federal law inexplicably continues to classify it as a Schedule 1 drug, along with heroin, LSD, and crack cocaine.  This continued federal war on cannabis drives underground what should be legitimate activity going through reputable financial institutions.  The new administration and Congress must not only start a new chapter on marijuana policy, but also remedy the injustices and inequities of the past by authorizing actions such as automatic record clearing of marijuana convictions....

Criminal justice policy is too important to leave to any one political party.

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

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

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

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

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

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

Hoping for a lot more "regular" folks on Prez Trump's coming final clemency list

CNN has this big new piece about Prez Trump's clemency plans under the headline "Trump to issue around 100 pardons and commutations Tuesday, sources say."  There is a lot of interesting reporting in this piece, and here are excerpts:

President Donald Trump is preparing to issue around 100 pardons and commutations on his final full day in office Tuesday, according to three people familiar with the matter, a major batch of clemency actions that includes white collar criminals, high-profile rappers and others but -- as of now -- is not expected to include Trump himself.

The White House held a meeting on Sunday to finalize the list of pardons, two sources said.

Trump, who had been rolling out pardons and commutations at a steady clip ahead of Christmas, had put a pause on them in the days leading up to and directly after the January 6 riots at the US Capitol, according to officials. Aides said Trump was singularly focused on the Electoral College count in the days ahead of time, precluding him for making final decisions on pardons. White House officials had expected them to resume after January 6, but Trump retreated after he was blamed for inciting the riots.

Initially, two major batches had been ready to roll out, one at the end of last week and one on Tuesday. Now, officials expect the last batch to be the only one -- unless Trump decides at the last minute to grant pardons to controversial allies, members of his family or himself.

The final batch of clemency actions is expected to include a mix of criminal justice reform-minded pardons and more controversial ones secured or doled out to political allies....

The January 6 riots that led to Trump's second impeachment have complicated his desire to pardon himself, his kids and personal lawyer Rudy Giuliani. At this point, aides do not think he will do so, but caution only Trump knows what he will do with his last bit of presidential power before he is officially out of office at noon on January 20....

Other attention-grabbing names, like Julian Assange, are also not currently believed to among the people receiving pardons, but the list is still fluid and that could change, too. It's also not certain whether Trump's former adviser Steve Bannon will receive a pardon....

The expectation among allies is that Trump will issue pardons that he could benefit from post presidency. "Everything is a transaction. He likes pardons because it is unilateral. And he likes doing favors for people he thinks will owe him," one source familiar with the matter said....

Inside the White House, there has been a scramble to petition for pardons on behalf of allies and advocacy groups and names could be added and taken off up until the last minute, sources say.  CNN previously reported there has been a crush of pardon requests during Trump's final days in office from allies, lobbyists and others hoping to cash in on their loyalty to Trump.  The New York Times reported Sunday some of those people were getting paid tens of thousands of dollars to lobby on behalf of felons hoping for pardons.

Regular readers know I have been hoping Prez Trump in his final days in office might make regular use of his clemency power to give relief to the many regular people who ought to benefit from executive relief in the form of a commutation and/or pardon.  But, perhaps unsurprisingly, it seems his ugly efforts to contest the election results and the additional ugliness he inspired on January 6 kept him from giving sustained attention to his last meaningful opportunity to use his presidential powers in a potent way.  Prez Trump often claimed to be concerned with "forgotten" Americans.  Federal prisoners without celebrity status or famous advocates are surely among those forgotten, and they are now enduring an extended lock-down thanks to Prez Trump's "stop the steal" shenanigans.  I sure hope more than a few of these forgotten folks make the final clemency cut.

Barring a pleasant surprise from the final round of grants, it seems likely that Prez Trump's clemency legacy will have been to demonstrate how this historic constitutional power can be used primarily to garner attention and score political points rather than to actually do justice or show mercy.  That said, despite some crass cases, Prez Trump has already issued at least a few grants that, as I see it, did effectively advance justice and/or show mercy.  (The Alice Marie Johnson case is most obvious, but I count a few dozen others.)  I hope we see a final Trumpian flourish in the spirit of justice and mercy, and I hope the momentum for clemency reform continues to advance some structural reforms in the next administration that could improve clemency decision-making and the advancement of justice and mercy for many years to come.

A few recent related posts:

• Gearing up for Prez Trump's coming final round of clemency grants 
• Rounding up some notable recent criminal justice commentary
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• Might Prez Trump announce his next round of clemency grants this weekend? |
• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month
• Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board? 

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

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

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

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

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

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

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

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

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

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

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:

• Gearing up for Prez Trump's coming final round of clemency grants 
• Rounding up some notable recent criminal justice commentary
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month

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.

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:

• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month
• Rounding up some notable recent criminal justice commentary
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• "Presidential Pardons and the Problem of Impunity" 
• "The Legality of Presidential Self-Pardons" 
• Discussing clemency activity by Prez Trump for six more weeks seems unavoidable, doesn't it?

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.”

"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.

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.

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."

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

I 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.

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.

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

The 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.

"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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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.

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.

"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.

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:

• Prez Trump makes (tough) nominations to US Sentencing Commission 
• Lots of notable reaction to Prez Trump's nominations to the US Sentencing Commission
• Another round of criticisms of Prez Trump's decision to nominate Bill Otis to US Sentencing Commission 
• FAMM writes extended letter to Prez Trump to "strongly discourage" re-nomination of Bill Otis to US Sentencing Commission 
• With his return to blogging, is Bill Otis no longer a potential nominee for the US Sentencing Commission? 
• Notable new talk of (badly needed) new nominees for the US Sentencing Commission
• Prez Trump finally announces full slate of (unlikely to be confirmed?) new nominees for the US Sentencing Commission 
• FAMM urges Senators to "refrain from filling the vacancies" on the US Sentencing Commission until next year