Thursday, October 22, 2020

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

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

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

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

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

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

Sunday, August 30, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, August 28, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, August 26, 2020

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

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

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

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

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

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

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

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

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

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

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

Tuesday, August 25, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, August 19, 2020

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

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

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

Prior related posts:

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

Thursday, August 13, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

Wednesday, July 01, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, June 23, 2020

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

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

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

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

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

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

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

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

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

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

Friday, June 19, 2020

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

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

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

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

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

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

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

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

Senior U.S. District Judge Henry Hudson

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

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

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

Kentucky federal judge Claria Horn Boom

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

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

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

Federal Appeals Court Judge L. Felipe Restrepo

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

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

Prior related posts:

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

Thursday, June 04, 2020

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Monday, June 01, 2020

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

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

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

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

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

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

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

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

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

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

Wednesday, May 27, 2020

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

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

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

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

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

Prior related posts:

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

Friday, May 01, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, April 23, 2020

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

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

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

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

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

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

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

Thursday, April 09, 2020

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

2020-04-09Every Thursday morning, one can see at this webpage an official refreshed count of the total number of federal inmates as calculated by the Federal Bureau of Prisons. That page also has a chart and data on the total number of federal inmates for each fiscal year going back to 1980.  A quick look at these data show that in FY 2013 the federal prison population hit a modern high of 219,298.

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

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

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

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

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

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

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

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

Thursday, March 26, 2020

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

Tuesday, March 24, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, March 16, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior coronavirus posts:

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

Tuesday, February 25, 2020

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

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

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

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

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

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

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

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

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

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

Sunday, February 16, 2020

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, February 11, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, February 10, 2020

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

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

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

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

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

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

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

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

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

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

Wednesday, February 05, 2020

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

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

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

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

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

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

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

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

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

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

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

Sunday, February 02, 2020

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

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

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

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

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

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

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

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

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

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

Wednesday, January 08, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, December 23, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, November 25, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 07, 2019

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, November 03, 2019

"Criminal Justice Reform Is About People, Not Posturing"

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

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

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

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

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

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

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

Tuesday, October 29, 2019

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

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

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

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

What does this all mean?

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

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

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

4.  Nothing at all.

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

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

            — Anonymous

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

Sunday, October 20, 2019

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

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

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

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

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

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

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

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

Tuesday, September 24, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, September 04, 2019

"Are We Still Cheap on Crime? Austerity, Punitivism, and Common Sense in Trumpistan"

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

Literature on “late mass incarceration” observed a contraction of the carceral state, with varying opinions as to its causes and various degrees of optimism about its potential.  But even optimistic commentators were taken aback by the Trump-Sessions Administration’s criminal justice rhetoric.  This paper maps out the extent to which federal, state and local actions in the age of Trump have reversed the promising trends to shrink the criminal justice apparatus, focusing on federal legislation, continued state and local reform, and the role of criminal justice in 2020 presidential campaigns.  The paper concludes that the overall salutary trends from 2008 onward have slowed down in some respects, but continued on in others, and that advocacy concerns should focus on particular areas of the criminal justice apparatus.

September 4, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, August 21, 2019

Rounding up some responses to AG Barr's swipe at progressive prosecutors

As noted in this prior post, Attorney General William Barr delivered these extended remarks to a police conference last week which included sharply negative comments about progressive prosecutors who, in AG Barr's words, "spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law."  Not surprisingly, lots of folks were put off by AG Barr's comments and here are just a few pieces I have noticed with reactions thereto:

From David D'Amato at The Hill, "Prosecutors are mainly to blame for the criminal justice crisis"

From Mark Gonzalez at the Washington Post, "Reform prosecutors are committed to making society fairer — and safer"

From Maura Ewing at Slate, "The Trump Administration Is Coming for Progressive Prosecutors"

From William Kelly at the Waco Tribune-Herald, "Attorney General Barr flat wrong on reformist prosecutors"

From Zack Budryk at The Hill, "Current and former prosecutors respond to Barr's 'concerning' comments on progressive DAs"

August 21, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Monday, August 12, 2019

In speech to police, Attorney General Barr promises proposal to speed up death penalty and ratchet up drug war while taking swipe at progressive prosecutors

Attorney General William Barr delivered these extended remarks on Monday at the Grand Lodge Fraternal Order of Police's 64th National Biennial Conference.  The AG's initial comments about the death of Jeffrey Epstein has received the most press coverage, but criminal justice reformers should be more interested in his comments on the death penalty, progressive prosecutors ad federal enforcement efforts. Here are excerpts:

This Administration will not tolerate violence against police, and we will do all we can to protect the safety of law enforcement officers. I will share with you one proposal that we will be advancing after Labor Day.  We will be proposing legislation providing that in cases of mass murder, or in cases of murder of a law enforcement officer, there will be a timetable for judicial proceedings that will allow imposition of any death sentence without undue delay.  Punishment must be swift and certain.

There is another development that is demoralizing to law enforcement and dangerous to public safety.  That is the emergence in some of our large cities of District Attorneys that style themselves as “social justice” reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.

These anti-law enforcement DAs have tended to emerge in jurisdictions where the election is largely determined by the primary.  Frequently, these candidates ambush an incumbent DA in the primary with misleading campaigns and large infusions of money from outside groups.

Once in office, they have been announcing their refusal to enforce broad swathes of the criminal law.  Most disturbing is that some are refusing to prosecute cases of resisting police. Some are refusing to prosecute various theft cases or drug cases, even where the suspect is involved in distribution.  And when they do deign to charge a criminal suspect, they are frequently seeking sentences that are pathetically lenient.  So these cities are headed back to the days of revolving door justice. The results will be predictable. More crime; more victims.

One of my messages today is that the American people need to pay close attention to issues of public safety in their communities.  As a society we should not take our police officers for granted....

Two of my highest priorities are continuing the fight against violent crime and combating the opioid epidemic and the scourge of other dangerous drugs, like resurging methamphetimine.

When I last served as Attorney General in the early 90’s, violent crime was at all-time high levels in the country.  Starting in the 1960’s, we had gone through three decades of “reform” that turned our criminal justice system into a laughable revolving door. Incarceration rates dropped precipitously; and crime rates tripled, reaching a high in 1991-92.

Starting with the Reagan Administration, and running though the Bush, Clinton, and Bush years, we strengthened our criminal justice systems at both the Federal and state level.  We focused on getting chronic violent offenders off the streets and into prisons to serve meaningful sentences that protected the community.  We worked closely with our State and local partners on programs like Weed & Seed and Triggerlock.

The result?  A steady and sharp drop in violent crime starting in 1992.  Today, violent crime has been cut in half.

Unfortunately, in the last few years of the Obama Administration, the violent crime rate started rising again.  Days after his inauguration, President Trump issued an Executive Order with two clear directives.  First, he declared that this Administration would reduce crime in America.  Second, he directed the Department of Justice to take the lead on Federal actions to support law enforcement efforts nationwide and to collaborate with State, tribal, and local jurisdictions to restore public safety to all of our communities.

We take this responsibility seriously and, working closely with our State and local partners, we have succeeded once again in driving crime rates back down.  I am proud of our work together on Project Safe Neighborhood, and a variety of joint anti-gang and anti-gun crime efforts.

We have made a difference, but we cannot rest on our laurels.  Crime levels are still too high and we must keep up a full court press. In the weeks ahead, we will be doubling down on our attack on violent crime.  We will be expanding our efforts against gun violence and violent gangs. Once again, we plan on doing this shoulder-to-shoulder with our State and local partners.

On the drug front, we are facing a monumental challenge. To be frank, the Obama Administration showed little interest in prosecuting the fight against dangerous drugs. A tsunami built up and has been crashing over the country, bringing death and destruction.

The death toll from opioids alone is higher than we would sustain in a major war. Indeed, in a single year, we lose more people to opioids than we lost during the entire Vietnam War.

Fortunately, this Administration has thrown down the gauntlet. It declared a national emergency, marshalled the Nation’s resources, and is fighting back. We have a robust program to attack the problem of over-prescription and diversion of legal opioids, and we are definitely having an impact. Prescription rates are markedly down. I am confident these successes will accelerate.

I think our attack on illicit opioids is building momentum.  It is going to be a long difficult road, but we are gaining real traction.  As you know, this Administration has sharply increased drug trafficking prosecutions, especially as to opioids.  In 2018 we prosecuted 36 percent more opioid-related offenses than we did in the previous year.  Fentanyl prosecutions were up 200 percent.

Fentanyl and other synthetics are especially deadly. Unless we make progress on fentanyl, the gains we are making elsewhere can be overwhelmed.  A year ago, the Department launched Operation SOS, targeting synthetics in 10 high-impact districts. The first year’s results are promising, and I plan to ratchet up this initiative.

August 12, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Wednesday, August 07, 2019

Has anyone been tracking the record of Trump judges on sentencing and other criminal justice issues?

The question in the title of this post is prompted in part by this new NPR article headlined "Trump's Impact On Federal Courts: Judicial Nominees By The Numbers." Here is an excerpt:

President Trump can be a master of distraction, but when it comes to judges, his administration has demonstrated steely discipline. In the 2.5 years that Trump has been in office, his administration has appointed nearly 1 in 4 of the nation's federal appeals court judges and 1 in 7 of its district court judges....

Legal observers say Trump and his Republican allies in the Senate have placed an unmistakable stamp on the federal judiciary, not only in ideology but in identity.

"What stands out to me is that President Trump is deliberately nominating the least diverse class of judicial nominees that we have seen in modern history," said Kristine Lucius, executive vice president for policy at the Leadership Conference on Civil and Human Rights. "It is stunning to me that 2 1/2 years in, he has not nominated a single African American or a single Latinx to the appellate courts."

In all, around 70% of Trump's judicial appointees are white men....

Russell Wheeler, a visiting fellow at the Brookings Institution, said Trump has mostly replaced judges appointed by Republican presidents with his own candidates, adding to conservative majorities in courts based in the South and narrowing the margin in the 9th Circuit in San Francisco — a frequent target of the president's attacks.

All the same, Wheeler said, the new judges of the Trump era are generally more conservative than the older ones winding down their careers. "When you replace a 70-year-old George W. Bush appointee who is slightly to the right of center with a 45-year-old movement conservative, obviously you're not trading apples for apples," Wheeler said.

On the Supreme Court, the record of Trump Justices on sentencing and other criminal justice issues has been interesting and intricate and not easily summarized.  I suspect the same is true for all the Trump judges on the district and circuit courts, especially because the impact of "movement conservatives" on sentencing and other criminal justice issues can be quite unpredictable.

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

Saturday, July 06, 2019

Deputy AG Rosen provides notable update on FIRST STEP Act implementation

USA Today has this new article focused on the work of new Deputy Attorney General Jeffrey Rosen, and deep into the lengthy article is an encouraging update on developments with the FIRST STEP Act. Here are the details:

In his first month, Rosen has sought a fuller understanding of the opioid crisis in America and has taken a lead role in Justice's implementation of bipartisan criminal justice legislation aimed at easing sentences for non-violent drug offenders, reducing the federal prison population and assisting offenders' transition back into their communities.

Rosen said Justice is on schedule to deliver a critical tool to assess the needs and risks of future recidivism for federal prisoners. The program, required under the First Step Act, a sweeping measure intended to reduce the nation's prison population, is due by July 19.

On the same date, the federal Bureau of Prisons is set to recalculate the amount of so-called "good time" earned by federal offenders, an action that is expected to result in the release of 2,200 offenders to their home communities.

Rosen, who was touring the federal prison in Englewood, Colo., earlier this week in advance of the actions slated for later this month, said Justice was "pushing hard" to abide by the requirements of the new legislation.

Since the First Step Act was signed into law in December, Rosen said 1,093 drug offenders have been released from federal prisons as part of a provision that reconciled overly harsh sentences issued to crack cocaine offenders.  Another 171 low-risk elderly inmates and 46 chronically-ill offenders also have been released under terms of the legislation.

"I’m putting my personal attention on that," Rosen said of the legislation. "The attorney general is, too."

I had heard from various sources that the Justice Department was on track to release the important risk and needs assessment tool on July 19, which in turn enabled the "good time fix" of the FIRST STEP Act to finally get implemented. I am pleased to hear somewhat officially that this will all be happening later this month, and that both AG Barr and DAG Rosen are invested in properly administering these parts of the FIRST STEP Act. The good time fix will immediately impact thousands of persons in federal prisons and impact hundreds of thousands more in the years to come. And the risk/needs tool should impact tens of thousands of federal prisoners as well.

A few of many prior related posts:

July 6, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

Wednesday, June 26, 2019

Notable new comments about crime and prosecutions from AG William Barr in speech to United States Attorneys

I noted last week that I have not recently posted too many speeches on crime and punishment from Justice Department leaders in part because there have not been too many of these speeches lately.  But today, Attorney General William Barr delivered these extended remarks as the "Opening Remarks at the U.S. Attorney's Conference" in Washington DC.  The whole speech is worth reading, and here are some excepts:

We can all be rightly proud of this Administration’s record on violent crime.  We have made impressive progress. But we must keep up a full court press.  There are still areas of the country where we have not made sufficient headway. For many communities in America, armed criminals and violent crime are still the norm.  We cannot accept this status quo.

That is why the Department remains committed to driving down violent crime, including through the vigorous prosecution of firearms offenses.  I have been glad to see that prosecutions under § 922(g) are at an all-time high.  We need to maintain our focus on getting illegal guns off the streets and out of the hands of violent criminals.  I want all of our offices to work with their state and local partners on “Triggerlock” cases that take advantage of stiff federal penalties to punish and deter violent felons. I also want to see vigorous enforcement of the background-check process, both against prohibited persons who “lie and try” and against firearm dealers who skirt the process. We need to provide real deterrence.  I look forward to working with all of you to step up our drive against gun crime.

As you all know, we also cannot reduce violent crime without confronting the role of gangs and other criminal organizations.  Working with our state and local partners, we must keep sustained pressure on these groups, which are primary drivers of violent crime. Many of these criminal organization have national or transnational profiles, and thus require a coordinated federal strategy....

While I am talking about violent crime, I want to make clear that, while our focus is often on predatory violence, I am also deeply concerned about the rise in hate crimes that we have seen over the past decade.  We must have zero tolerance for violence that is motivated by hatred for our fellow citizens — whether on the basis of their racial, religious, or sexual characteristics.  We also need to take a strong stand against those who would use violence to intimidate people from exercising their rights to free speech and to participate in the democratic process.

In addition to guns and gangs, the other significant driver of violent crime is drug crime, which represents another priority for the Department.  When I returned to the Department as Attorney General, it was disheartening to learn about the state of the drug problem across the country.  In most respects, the problem is much worse than when I left the Department in 1993.  I believe that the last Administration was not aggressive enough in fighting the drug threat; a lot of ground was lost; and a tsunami was allowed to build up that has been hitting the country.

We cannot be discouraged.  When I look at the overdose deaths, the blighted lives, and the families and communities broken by drug addiction, it reminds me why we cannot surrender.  We must work harder than ever.

I am proud that this Administration has shone a much-needed light on the opioid epidemic and that the Department has taken a number of dramatic steps to tackle this national crisis head on. And while there are encouraging signs of progress, our work is far from over.  On the streets, the rise of fentanyl and other synthetic opioids has been followed by 100-times stronger car-fentanyl and by mixtures of fentanyl with cocaine and other drugs.  We must also continue our efforts to prevent and punish diversion of licit drugs, another area where the Department has done great work.  And, as you know, while opioids are the most acute problem in many areas of the country, in other areas Mexican methamphetamine is surging.  We must keep fighting and keep innovating to match the ever-evolving threat....

As I alluded to earlier, there are also a number of other focused initiatives that I hope to see continue and strengthen during my tenure.  For me, the elder-fraud initiative provides a great example for how the Department can use its resources with a high return.  Not only is the elderly population among our most vulnerable citizens, but we are learning more and more about the role of foreign and transnational criminal organizations in perpetrating these schemes.  Another area I want see us redouble our efforts is in prosecuting human trafficking violations, especially those involving children....

That should give you a sense of my views on the priorities of the Department. But my charge today is not for you go out into the field and to maximize prosecutions in each of these categories. You will always need to strike a balance.  And as you do, here are a few things to keep in mind:

First, in a Department like ours, the notion of priorities should not be confused.  We have an obligation to enforce federal law, and that means covering all of the bases as best we can. If we say that the Department will prioritize violent crime prosecutions, we know that this cannot mean we ignore civil-rights violations or environmental crimes.  We must try our best to enforce federal law across the board with the limited resources we have.

A necessary corollary is that federal prosecutors must exercise sound discretion to strike a balance.  This balance requires that each of you adapt the Department’s general priorities to the specific circumstances of your districts. Thus, while opioids represent the greatest drug threat in many districts, others face greater problems with methamphetamines or cocaine.  And while transnational criminal organizations may be the primary driver of violent crime in one city, another may struggle with more localized, home-grown groups.  Our Department priorities are never intended to take your eyes off the leading problems in your district, including the great work of your civil divisions, which protect government resources by defending the United States and rooting out fraud against the government. Each of you is responsible for determining where we can have the biggest impact in advancing the safety and well-being of your communities....

Fairness must inform all that we do. After all, the whole concept of our American constitution was to establish a Government that could serve the common good while checking government power to protect individual liberty. And that is the Constitution we are sworn to support and defend.  As you carry out your mission, I rely on you to lead wisely, hold those who injure the public accountable, and zealously represent the United States in court, while at the same time maintaining unshakable confidence in the rule of law and justice for all. That is your charge, and I know that you embrace it willingly, and well.

June 26, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Monday, June 17, 2019

Notable new comments from new Deputy AG Jeffrey Rosen to sheriffs

I have not recently posted too many speeches on crime and punishment from Justice Department leaders in part because there have not been too many of these speeches as DOJ leadership has been in transition. But today, Jeffrey Rosen delivered these extended remarks to the National Sheriffs' Association, which he describes as his "first public speech as Deputy Attorney General of the United States." The whole speech is worth reading, and here are some excepts:

Under this administration, we are not using top-down, one-size-fits-all solutions to crime.

Instead, since 2017, each of our 93 U.S. attorneys in your local communities has been directed to develop a customized crime reduction plan for their district — based on the input that they receive from state and local officials like you. We want you to tell us where the biggest dangers are in your counties — and then we’ll help you put the people who commit crimes behind bars.

We call this program project safe neighborhoods, and it is a proven strategy. Interestingly, it was modeled after a program that Attorney General Barr had created during his previous tenure as Attorney General. One of Attorney General Barr’s first policy decisions during his second tenure as Attorney General was to order the creation of a state and local law enforcement coordination section at the department, which will be responsible for further strengthening lines of communication between all levels of law enforcement....

And we have another message for violent criminals: I am happy to report that in the last fiscal year, the Justice Department charged the greatest number of violent crime defendants since we started to track this category more than 25 years ago — back when Bill Barr was Attorney General for the first time.

Department of Justice prosecutors also charged more than 15,000 defendants with federal firearms offenses, which is a record. They broke that record by a margin of 17 percent. What often is misunderstood about such statistics, however, is that many of these federal cases simply adopt and prosecute the great work done by state and local law enforcement in investigating and arresting the most dangerous criminals in our communities....

Our efforts have produced results. In the two years before President Trump took office, there was a significant nationwide increase in violent crime: the violent crime rate went up by nearly seven percent. Robberies went up. Assaults went up nearly 10 percent. Rape went up by nearly 11 percent. Murder increased by a shocking 21 percent.

But today, under President Trump’s administration, crime rates have been falling. Homicide rates and violent crimes went down in 2017. Murders fell an additional 5.8 percent and violent crime fell an additional 4.5 percent last year in 2018. And, I am happy to report, in the first three months of this year, this downward trend has continued: once more murders and violent crimes are down even from last year.

But there remains one area in which far more progress needs to be made — and that is with regard to drug abuse. We are facing a grave situation today. In 2017, 70,000 Americans lost their lives to drugs — more than lose their lives in car crashes.

But we all know that the toll of drug abuse is not only in lives. It is the families torn apart by these drugs and the negative effects that ripple through our communities. Drug abuse has also led to millions of property crimes and violent crimes.

So I want to stand here today and underscore again what you heard from Attorney General Sessions last year: that the Department of Justice is here with you shoulder to shoulder in this fight against the drug epidemic ravaging our communities.

Over the last two years, under this administration, we have gained ground on multiple fronts. First of all, we have dramatically reduced the number of opioid prescriptions. Prescriptions for the seven most frequently abused prescription opioids are down more than 21 percent since 2016 — down to the lowest level in at least a decade.

Meanwhile the Department has increased its drug-prosecution productivity. The number of defendants charged with federal opioid-related crimes increased by 28 percent in 2018.

In confronting drug-related crime, another key element is the crisis at our southern border. For four years in a row, the Drug Enforcement Administration has stated publicly that “Mexican transnational criminal organizations are the greatest criminal drug threat to the United States; no other group is currently positioned to challenge them.” In some ways, it’s a misnomer to call it the “crisis at the border.” It gives the impression that everything is contained just a few states bordering Mexico. Not so. We all know that the crisis at the border is a driver to the drug crisis in our communities, oftentimes hundreds of miles away from the actual border.

The DEA so tells us that the majority of the heroin, cocaine, methamphetamine, and fentanyl in this country got here across our southern border. Having a porous southern border makes every county in America more vulnerable to these drugs — whether your county is near the border or not.

June 17, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

Friday, May 03, 2019

Wondering, after 100 judges confirmed, if Trump judiciary has had much impact on sentencing jurisprudence

This Washington Examiner article, headlined "Senate confirms Trump's 100th judicial nominee," has prompted the wondering in the title of this post. Here is the background:

President Trump hit another milestone in his efforts to reshape the federal judiciary, with the Senate clearing his 100th judicial nominee Thursday.

The president and Republican-controlled Senate have made judicial nominations a top priority, and the confirmation of Rodolfo Ruiz to the U.S. District Court for the Southern District of Florida brought the number of Trump's judicial appointments into triple digits.

In addition to confirming Ruiz, the Senate is also set to clear two more nominees to federal district courts in Puerto Rico and Pennsylvania. If those two nominations win approval, Trump will have tapped 102 judges to the federal bench.

Trump’s judicial appointments include two Supreme Court justices, Neil Gorsuch and Brett Kavanaugh, 37 federal appeals court judges, and 61 federal district court judges....

While Trump has seen great success in remaking the federal bench, his efforts have been met by resistance from Senate Democrats, who have criticized the president for the lack of diversity among his judicial picks. Trump’s judicial nominees are also young, ensuring they will leave a conservative stamp on the federal courts that will endure for decades....

More than three dozen judicial nominees are still awaiting votes on the Senate floor, including two of the president’s picks for the 9th U.S. Circuit Court of Appeals. The San Francisco-based court is often the target of Trump’s frustration, as it has ruled against a number of the administration’s policies, and is considered the country’s most liberal appeals court. But if the Senate approves Trump’s two nominees to the 9th Circuit, it would bring the court closer to parity. Last month, Trump flipped his first appeals court, the 3rd U.S. Circuit Court of Appeals, which now has a majority of Republican-appointed judges.

On a day-to-day basis, the group of judges that matter most in the federal sentencing world are district judges, and I would love to hear from practitioners if they think any (or many) of the 61 federal district court judges appointed by Prez Trump approach sentencing in distinctive ways. I know I have seen more than a few notable circuit opinions authored by some of the circuit judges appointed by Prez Trump, but I am not able to follow all circuit jurisprudence close enough to see if an ever-growing number of new circuit judges is significantly shifting existing circuit jurisprudence.

Of course, the Supreme Court work of Justices Gorsuch and Kavanaugh (and any future SCOTUS nominees) are sure to have biggest long-term impact on sentencing jurisprudence.  The impact of these new Justices has already been seen in more than a few capital cases, and I am paying close attention to the Haymond case (background here) in part because it should provide another interesting indication of where a new Trump-impact judiciary may be headed on important sentencing issues.

Thoughts or experiences, dear readers, concerning the 100 newest federal judges and sentencing?

May 3, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Saturday, April 27, 2019

Should reform advocates urge Prez Trump to embrace new proposed federal Clean Slate Act as sound Second Step?

Cleanslatecampaign-feature-2The question in the title of this post is prompted by these two recent press stories about federal criminal justice reform:

Let's begin my pitch with excerpts from the first of these pieces:

President Trump began the month hosting a White House celebration with people freed from prison by the First Step Act. He told the April Fools' Day gathering the White House would work on a Second Step Act "right away."  Despite the day, Trump was not joking. But he was also not correct.

Sources tell the Washington Examiner that the White House is in fact not preparing a Second Step Act package to follow the landmark criminal justice reform law, which is Trump's only major bipartisan legislative achievement.  “There’s definitely not a Second Step Act,” said a source who works on White House reform efforts and helped with Trump’s April 1 speech, a draft of which did not mention new legislation.

The White House is focused instead on implementing the First Step Act in a way that denies ammunition to opponents such as Sen. Tom Cotton, R-Ark.  “One of the most important things we do in the second step is to get the first step implemented,” said Mark Holden, general counsel of Koch Industries and a prominent reform advocate.

It is unclear if Trump misspoke when he said: "Today, I am announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records. And that’s what we are starting right away."  A White House official said that Trump "wants to bring more fairness" to the legal system and "you can expect more legislation to address the second steps in the future," but that the First Step Act "will take a year to fully implement," diverting focus from additional legislation....

“There’s a lot of concern that they have to get this right. Folks like Tom Cotton are just waiting for someone to do something stupid,” said the source who has worked on White House efforts. “People are going to want to wait and see how this [First Step Act] works out.”

Because there are so many important elements to the FIRST STEP Act, I think reform advocates are well advised to be laser focused on implementation issues in the short term.  The impact of FIRST STEP is still very much under development as the reach of the new sentencing/prison reforms are being defined by the judiciary and determined by executive branch officials (especially related to the risk/needs tools and prison programming).  It is not unreasonable for legislators to want to assess the initial impact of the new sentencing and prison laws before moving on to further proposals. (This is one reason I am so eager for the US Sentencing Commission to start providing real-time updates on the FIRST STEP Act.  Lawmakers cannot assess the FIRST STEP Act without data on its implementation.)

Further, as the 2020 election season heats up with criminal justice reform already becoming a topic of considerable conversation, the politics surrounding additional sentencing and prison reforms  grow dicier.  The recent commentary by Jared Kushner states that the FIRST STEP Act "nearly died dozens of times along the way" due to the persistent challenges of navigating the tribal politics of DC.  The political tribes, between and within parties, are likely to be even harder to manage over the next 18 months with a major election looming.

And yet, given Prez Trump's important statement about the importance of "successful reentry and reduced unemployment for Americans with past criminal records," I think a new bipartisan bill concerning record clearing could and should be worth focused support.  Here are a few details about a federal Clean State Act proposal via the Politico article linked above:

An unlikely pair of House members are making a push for a “second chance” law for people convicted of certain low-level federal offenses, with hopes to repeat Congress’ unexpected victory on criminal justice reform last year.  Reps. Lisa Blunt Rochester, a Democrat from Delaware, and Guy Reschenthaler, a Republican from Pennsylvania, introduced the Clean Slate Act on Tuesday, which would automatically seal a person’s record if he or she has been convicted of possession of drugs, including heroin, as well as any nonviolent offense involving marijuana.

The intention, they say, is to eliminate barriers to employment, education and housing that are common for people convicted of crimes.  “I’ve seen so many stories of people who, because of a minor offense, it has stuck with them for the rest of their lives,” Blunt Rochester said in an interview Tuesday, calling her bill the “next logical step” after last year’s landmark package of sentencing and prison reform.  The bill has won support from what Blunt Rochester described as “strange bedfellows” — the liberal Center for American Progress and the conservative FreedomWorks....

Both lawmakers said they hope the bill can be a rare area of common ground in the coming weeks as Senate GOP leaders have flatly rejected most bills sent to them by House Democrats. Blunt Rochester said she’s spoken with House Democratic leaders and is optimistic about a floor vote.... Sen. Bob Casey (D-Pa.) plans to introduce a similar bill on the Senate side and is in talks with Republicans to become a co-sponsor.

Because the Clean Slate Act addresses criminal records after a persons has fully completed a sentence, there really is no direct overlap between its provisions and laws altered by the FIRST STEP Act and so there really is no reason to await FIRST STEP implementation before taking action on this important distinct front.  Indeed, the Clean Slate Act seeks to address reentry and employment issues mentioned by Prez Trump earlier this month and does so in a manner that could itself further enhance the long-term success of the FIRST STEP Act.

As long-time readers know, I am always pragmatically pessimistic about the work of Congress in this space.  But I think the next 18 months provides a unique window of time for moving forward with a Clean Slate Act or some other expungement reform, and I hope reform advocates will all consider jumping on this particular reform bandwagon. 

April 27, 2019 in Collateral consequences, Criminal justice in the Trump Administration, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, April 25, 2019

"Jared Kushner: Fifteen Lessons I Learned From Criminal-Justice Reform"

The title of this post is the headline of this interesting Time commentary authored by Jared Kushner, which seems to be something of a follow up to his interview as part of The TIME 100 Summit.  I would recommend the extended piece in full, especially for those interested in more background on how the FIRST STEP Act became a reality and how best to be successful in seeking the next steps in federal criminal justice reform.  Here is a taste:

In the wake of this legislation, hundreds of people have asked me how it was possible in the middle of such a divided political climate to bring both parties together on an issue that initially seemed to have no consensus, no champion and no pathway.  Pursuing the passage of the First Step Act was one of the hardest experiences of my life.  I got a close-up view of how Congress works — and how it doesn’t.  Because this was neither a major issue of the campaign nor one of the first priorities of the new Administration, I did a lot of the staff work on it myself, with a small and dedicated team, and we were able to follow what I designed as a more intuitive process, instead of a standard legislative process. This ended up working even though this bill nearly died dozens of times along the way. Here are the key lessons I learned from the experience.

The first lesson is that you have to reach out and talk to the other side. You will never make a deal in politics by only talking to people who agree with you.  Ivanka and I would frequently host bipartisan groups of six to eight legislators at our home for off-the-record dinners, normally on a specific legislative priority, and the first toast was always by someone saying, “We don’t do this enough. We used to spend more time with people in the other party in safe and productive environments.”  Politics is a tribal business, and my reaching out to Democrats made some on the right uncomfortable.  My politics have been those of an independent.  Since I was new to professional politics, I did not feel that I knew the best way to solve the problems we have in this country so I sought out respected people on both sides of the aisle.  I saw that when people reach out on either side of the aisle, they are subjected to criticism and even being labeled a “traitor” by those in their own party.  By contrast, President Trump is a pragmatist.  He looks to solve problems but is not ideologically fixed. I believed that he deserved thoughtful, researched options on how to pursue the promises that he made to the American people.  There are many different ways to solve problems and no party has a monopoly on good ideas.

The second lesson is that you have to engage early with a diverse group of people.  For the prison reform effort, we started out by hosting multiple listening sessions in which we assembled the right people and allowed everyone to share their perspective. T his included Senators, Congressmen, governors, academics, law enforcement and many others. From these conversations we got good ideas, we saw overlapping areas of agreement, and we made people feel included in the process from the outset. Asking a lot of questions and closely listening, helped me form a more nuanced perspective.  As my close friend and mentor Ambassador Bob Lighthizer would tell me during intense trade negotiations, “I don’t know anyone who ever got smarter by talking.”  While being in the White House and having the President on board was powerful, we could not have gotten this done if it weren’t for the many outside groups supporting the effort.  There are too many to name who worked on this issue for a decade before I got involved, but they laid the foundation for our success.  When we had politicians on the fence about voting with us, we would activate these outside groups and they always knew who the most influential voices were for each Senator or Congressman.  Having many supporters out on TV and in the communities in both liberal and conservative circles helped bring around others who were less familiar with the issue.  This coalition enabled me to cross the most important hurdle of all, which was to get President Trump to support this effort over the objections of others.

The third lesson is to study what was tried and assess why it failed.  Our system was designed to make change hard, and I remind my team all the time not to be afraid to follow intuition over ceremony and to try new approaches. We started by looking at the 2016 legislative effort and sought to understand who supported it and why the effort had failed. We were told that the Senate would not put a new bill on the floor since there was still too much disagreement. The leading opponent in 2016 was then Senator Jeff Sessions, who in 2018 was the Attorney General. Following dozens of discussions with interested parties, I engaged with him and after several meetings I was able to get him to agree not to block prison-reform efforts in exchange for us not working on the sentencing reforms he opposed. I told him that I would assume that we would work in good faith to achieve our shared goals of reducing crime. To that end, we would take all of his comments under advisement and try to incorporate them to the degree possible.  This angered Senators Chuck Grassley and Dick Durbin, who had spent considerable time crafting the compromise language on the old bill.  They were skeptical of Sessions’ working in good faith on this issue and thought we were disrespecting their work. After several heated meetings, I told them that we were going to start working in the House on a prison-reform bill.

The other side of this is to study what has worked . The best thing about the federalist system is that the states are laboratories of democracy where ideas are tested. On prison reform we analyzed the many red states where reforms have succeeded.  For instance, in Texas in 2002, Governor Rick Perry saw that the costs of incarceration were rising fast. He determined, with the help of his then policy director Brooke Rollins — who later led this effort with me from the White House — that you can change the prison system to focus it on locking up the worst violent criminals and that by being more targeted with these efforts you can lower incarceration costs and also lower crime rates.

The fourth lesson was to develop a full legislative strategy early, and be prepared to modify as things progressed.  We started working with Representatives Doug Collins and Hakeem Jeffries in the House, who had been the co-sponsors for the previous prison-reform bill.  What we hoped would be easy got complicated very quickly.  When the White House engaged, this raised the profile of the effort making it more political than it was the last time.  We received criticism on all sides.  Law-enforcement groups insisted that the current version of the bill was inadequate and in need of major revisions; Congressman Jeffries was taking heat for working with Trump’s White House; and Senate Democrats even claimed that our version of the bill was potentially racially discriminatory in how it would be implemented.  We had our work cut out for us.

The fifth lesson is that the details really matter.  It’s easy for politicians to disagree on big concepts, but you find compromise and solutions in the details. During the negotiations we had many moments where both sides almost quit.  At one point, those at the table who were against the bill had put so many poison pill provisions into the draft legislation that I got an emergency call from Ja’Ron Smith, the talented legislative staffer who volunteered to work on this with me.  Ja’Ron told me that Jeffries’ team had walked away. The poison pills did not matter to our primary objective, while putting undue pressure on the Congressman, who was already getting a lot of criticism from the left. I didn’t want to let him down.  We reviewed the provisions and determined which ones were reasonable and which were not....

The seventh lesson is that nothing significant in Washington gets done without the President’s buy-in. After a year of research and planning, we were confident that this was a worthwhile effort but could not take any further steps without President Trump’s blessing.  The President was a bit skeptical going into the meeting, saying “Jared, this sounds like a pretty liberal issue.”  So I scheduled a policy meeting in January 2018 with external conservative leaders who could better explain how these reforms would advance his agenda.  Before it began, Sarah Sanders noted that her father had passed similar reforms in Arkansas and that they were some of the most impactful and popular things he had done.  When the President entered the room he was pleased to see many familiar conservative faces.  I made a few introductory points and quickly passed it off to others to make the case.  Having conservative governors, activists and law-enforcement leaders there helped a lot.  But the most important statement made at that meeting was by aide Reed Cordish who said to President Trump, “You promised during your campaign to fight for the forgotten men and women of this country. There is no one more forgotten or underrepresented than the people in prison.” I could see that this statement hit the President and moved him deeply.

After we had gone through the statistics and policy, the President said, “That’s really sad. These people make a mistake, do their time, get out and then have all of these challenges. In some ways, what do we expect them to do?”  He saw immediately why both parties should support these reforms and told me: “I am all in. Let’s get it done, but work with Jeff to make sure this isn’t soft on crime.”

April 25, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (5)

Tuesday, April 16, 2019

Spotlighting how reduced support for the death penalty is now a bipartisan reality

Alan Greenblatt has this notable lengthy new piece at Governing under the headline "Why the Death Penalty Has Lost Support From Both Parties."  I recommend the piece in full and here are excerpts:

Twenty years ago, most politicians in both parties supported the death penalty.  But today, opposition to it has become increasingly bipartisan.  Democrats have always been more wary, but now more conservatives have also become convinced that capital punishment is another failed government program.  In part, that's because the legal process for such cases is enormously expensive, even though few executions are ever carried out.

“When you look at how much money we’re spending, no one looks at that and thinks the death penalty works fine,” says Hannah Cox, national manager for Conservatives Concerned About the Death Penalty, a pro-abolition group.  “We’re seeing a real escalation as far as the number of Republican legislators who are sponsoring repeal bills.”...

Lately, the spotlight has shifted to New Hampshire, where last week the legislature sent the governor a bill to repeal the death penalty.  Both chambers passed the bill by veto-proof margins, with bipartisan support.  Once the legislature overrides GOP Gov. Chris Sununu’s expected veto, New Hampshire will be the 21st state to outlaw capital punishment.  Colorado and Nevada could be next -- both have repeal bills currently pending.

For the first time since the death penalty was put back into practice during the 1970s, a majority of Americans now live in states that have abolished the practice or imposed a moratorium on it, according to the Death Penalty Information Center, which researches the issue.  Still, support for capital punishment has not vanished.  Polls show that a majority of Americans continue to back it....

“When you talk about death penalty, a lot of people immediately want to have a criminal justice angle on it or a morality angle,” Chad McCoy, the Kentucky House Republican whip and sponsor of an abolition bill, told The Hill. “Mine is purely economics.”...

It’s not only lawmakers who have grown more skeptical about capital punishment.  Prosecutors have, too. In part due to the costs associated with capital cases, the death penalty has essentially disappeared from rural counties, says [Prof Brandon] Garrett, author of End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.  Fewer than 2 percent of the counties in the nation are responsible for half the death row convictions, according to the Death Penalty Information Center.

Not long ago, jurisdictions like Philadelphia County, Los Angeles County and Harris County, which includes Houston, were imposing 10 or more death sentences apiece per year.....  But there’s been a changing of the guard in many large counties over the past two or three years, including Harris and Philadelphia.  Voters are electing reform-minded prosecutors who are less likely -- or completely unwilling -- to seek execution as a punishment. 

Last year, no county in the United States imposed more than two death sentences.  During the mid-1990s, there were more than 300 death sentences imposed annually for three years running. Last year, the total was 42.  There hasn’t been more than 100 since 2010....

In 2016, the same year Trump was elected, Nebraska voters overturned a death penalty repeal that had been passed by the legislature, while California voters rejected a ballot measure to end capital punishment.  But if 2016 seemed to signal a shift back in favor of capital punishment, the momentum hasn't been sustained.  Under Trump, just three federal prisoners have been sentenced to die.  In last year’s elections, two governors who imposed moratoriums on the death penalty -- Democrats Kate Brown of Oregon and Tom Wolf of Pennsylvania -- both won reelection.  Conversely, two governors who vetoed abolition bills -- Republicans Pete Ricketts of Nebraska and Chris Sununu of New Hampshire -- also won reelection....

If crime rates increase, support for the death penalty could make a comeback. And many politicians and prosecutors want to keep execution available for punishing the “worst of the worst.”  In Florida, for example, prosecutors are seeking the death penalty for the alleged shooter in last year’s Parkland high school massacre.

Death penalty experts agree that the practice will not be completely abolished anytime in the foreseeable future.  But both the use of the death penalty and political support for it has declined markedly since the 1990s, when it was a wedge issue that moved many voters.  The list of states abolishing the death penalty continues to grow.  “I see the death penalty ending with a whimper, not a bang,” Garrett says. “It may be that the best thing is to allow states and communities to decide what’s best for them.”

This effectively review of the state of the capital mood in the United States will be interesting to revisit as we move into the 2020 election cycle. It seems quite possible that advocates and perhaps the base of the Democratic party will seek a Prez nominee who will actively embrace death penalty abolition. Prez Trump, who clearly likes to talk up his support for the death penalty, might well be eager to turn capital punishment into a wedge issue once again.

April 16, 2019 in Criminal justice in the Trump Administration, Data on sentencing, Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 11, 2019

Keeping up with (soon to be counselor?) Kim Kardashian West and her important role in sentencing reform

Download (18)Today's must-read article for sentencing fans just happens to come from Vogue magazine under the headline "The Awakening of Kim Kardashian West."  One need to power through some opening paragraphs about the West house and Kim's wardrobe, but the there are lots of interesting passages about the subject and broader stories about her role in getting Prez Trump to grant clemency to Alice Johnson and to be supportive of criminal justice reform more generally.  I found this extended passage especially interesting:

After President Trump met with her, the CNN commentator and activist Van Jones, and several lawyers, he granted Johnson clemency and then invited her to his State of the Union Address in February.  What you probably don’t know is that Kim has been working with Jones and the attorney Jessica Jackson, cofounders of #cut50, a national bipartisan advocacy group on criminal-justice reform, for months, visiting prisons, petitioning governors, and attending meetings at the White House. And last summer, she made the unlikely decision — one she knew would be met with an eye roll for the ages — to begin a four-year law apprenticeship, with the goal of taking the bar in 2022.

“I had to think long and hard about this,” she says, gleefully devouring chile con queso with chips now that her Vogue shoot is over. What inspired her to embark on something so overwhelmingly difficult and time-consuming — even as she also runs a multimillion-dollar beauty enterprise — was the combination of “seeing a really good result” with Alice Marie Johnson and feeling out of her depth.  “The White House called me to advise to help change the system of clemency,” she says, “and I’m sitting in the Roosevelt Room with, like, a judge who had sentenced criminals and a lot of really powerful people and I just sat there, like, Oh, shit. I need to know more. I would say what I had to say, about the human side and why this is so unfair.  But I had attorneys with me who could back that up with all the facts of the case. It’s never one person who gets things done; it’s always a collective of people, and I’ve always known my role, but I just felt like I wanted to be able to fight for people who have paid their dues to society. I just felt like the system could be so different, and I wanted to fight to fix it, and if I knew more, I could do more.”

Jones had been collaborating with Jackson on building bipartisan unity around the need to “shrink the incarceration industry,” and with folks on the other end of the political spectrum, like Newt Gingrich and the American Conservative Union. And it was working. Then, says Jones, Trump “runs and wins on this law-and-order, Blue Lives Matter platform, and he gives an inauguration speech with his American-carnage line, making it seem like he’s going to unleash police and prisons everywhere.”

And then the unexpected happened. “Kim Kardashian,” says Jones, “wound up playing this indispensable role, and a lot of people have gotten furious with me, saying I’m stealing the credit from African American activists who have been working on this issue for decades. And first of all, I’m one of them. But I was in the Oval Office with Kim and Ivanka and Jared and the president, and I watched with my own eyes Trump confess to having tremendous fears of letting somebody out of prison and that person going and doing something terrible, and the impact that that would have on his political prospects. He was visibly nervous about it. And I watched Kim Kardashian unleash the most effective, emotionally intelligent intervention that I’ve ever seen in American politics.”

This may sound like hyperbole, but consider the target. Perhaps an “emotionally intelligent” intervention could have been staged only by a bigger reality star than the man in the Oval Office. “Kim understood that he needs to be seen as taking on the system, and she helped him to see that there are people who the system was against and that his job was to go and help them,” says Jones. “And it was remarkable. So for people who have fallen for this media caricature of the party girl from ten years ago who hangs out with Paris Hilton? This is the daughter of an accomplished attorney and the mother of three black kids who is using her full power to make a difference on a tough issue and is shockingly good at it.”

He brings up the Elle Woods character from Legally Blonde as perhaps the only archetype we have in the culture through which to understand such an unlikely turn of events. “But she’s so much deeper than that,” says Jones, “because the gravity of the issues she’s taking on is so tragic and all-pervasive. I think she’s going to be a singular person in American life.”

A few prior related posts:

April 11, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (3)