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)

Monday, April 08, 2019

"Department of Justice Announces First Step Act Implementation Progress"

The title of this post is the heading of this notable and lengthy press release from the US Department of Justice this afternoon.  The full release (and its links) are must reads for anyone and everyone following closely the early implementation of the FIRST STEP Act.  I may need a few posts to fully unpack all the particulars, but I will start here with the start of the release and a few choice specifics:

Today, the Department of Justice’s National Institute of Justice (NIJ), in accordance with the First Step Act, has announced the selection of the nonprofit and nonpartisan Hudson Institute to host the Independent Review Committee. The Committee, whose members will be appointed by Hudson Institute in accordance with the Act’s requirements, will assist the Department as it develops and implements risk and needs assessment tools and evidence-based recidivism reduction programs.

“The Department of Justice is committed to implementing the First Step Act,” said Attorney General William Barr. “The Independent Review Committee plays an important role in that effort by assisting in the development of a new risk and needs assessment system and improvements to our recidivism reduction programming.  I am grateful to Hudson Institute for hosting this important Committee, which will lead to better policies at the Department and, ultimately, better outcomes for prisoners reentering society.”

NIJ also announced today that it is contracting with outside experts and leading researchers, including Dr. Grant Duwe Ph.D., Dr. Zachary Hamilton Ph.D., and Dr. Angela Hawken Ph.D., for assistance and consultation as the Department develops the Risk and Needs Assessment System under the Act.  Dr. Duwe is the Director of Research for the Minnesota Department of Corrections, and a nationally recognized expert on the development of recidivism risk assessment systems. Dr. Hamilton is an Associate Professor of Criminal Justice and Criminology and the Director of the Washington State Institute for Criminal Justice, and focuses on treatment matching through risk and needs assessment systems.  Dr. Hawken is a Professor of Public Policy at the New York University Marron Institute, and is the founder and director of New York University’s Litmus/BetaGov program, which assists in the development and validation of data-driven policies. Each of these experts will bring unique expertise as they augment NIJ and the Bureau of Prisons’ (BOP) efforts to implement the Act.

Today’s announcements by NIJ are the latest in a growing list of accomplishments as the Department works diligently to implement the Act, signed into law in December 2018. Some other highlights of the Department’s ongoing implementation efforts include...

The Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 826 sentence reductions and 643 early releases....

BOP has issued procedures for “compassionate release” sentence reductions under 18 U.S.C. §§ 3582 and 4205(g) (BOP Policy Number 5050.50), and 22 inmates have already received sentence reductions under this program.

BOP has issued procedures providing for participation in the Second Chance Act home confinement pilot program under 34 U.S.C. 65401(g) (BOP Operations Memorandum 001-2019), and 23 inmates are currently participating, with additional inmates currently being screened for program inclusion.

April 8, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, April 07, 2019

Are more re-enfranchised former offenders now registering as Republicans rather than as Democrats?

The question in the title of this post is prompted by this notable New York Sun piece headlined "Trump’s ‘First Step’ Toward 2020."  Here are excerpts:

Could President Trump’s bipartisan criminal justice reform — known as the First Step Act — prove to be a first step in a political revolution?  We ask because of a startling disclosure by one of the President’s shrewdest lieutenants in the campaign for First Step, Jared Kushner.  It turns out, he said, that greater numbers of ex-cons being granted suffrage in Florida are registering as Republicans.

Mr. Kushner, the President’s son-in-law, dropped that surprise almost in passing toward the end of an interview with Laura Ingraham. The interview was mainly about the First Step Act celebrated Monday at the White House. Toward the end of the interview, though, they chatted about the Democratic field. Ms. Ingraham popped one of those classic one-word questions: “Socialism?”

“I don’t think that’s where the country is,” Mr. Kushner said. “One statistic that I found very pleasing is that in Florida they passed a law where former felons can now vote. We’ve had more ex-felons register as Republicans than Democrats, and I think they see the reforms . . .”  Ms. Ingraham cut in: “Whoa, whoa, whoa. You’ve had more ex-felons register as Republicans than Democrats?”

“That’s the data that I’ve seen,” replied Mr. Kushner. “I think that will surprise a lot of people when they see the new coalition that President Trump is building for what the Republican Party has the potential to be.”

No doubt it would be a mistake to make too much of this.  It’s been but months since Florida amended its constitution to restore voting rights to felons.  It will take years for the effects to show up in voter registration and at the polls.  Yet it would be a mistake to make too little of it, as well.  Particularly because we’ve had some — not to put too fine a point on it — close races in the Sunshine State.

Florida’s constitutional amendment, after all, restored, at least de jure, suffrage to something like 1.5 million ex-cons, according to the various press accounts. The Democrats were the party pushing for putting these men and women back on the voting rolls.  That brings Florida in line with most states.  The party seems to have taken for granted that they will reap the advantage.

That could prove to be yet another underestimation of Mr. Trump.  We’re not predicting that, just marking the possibility.  The video of the event at the White House to celebrate the the First Step Act underscores the point. It is, we don’t mind saying, breathtaking and worth watching in full. It illuminates the President’s abilities as an inclusive, bipartisan leader....

It’s not our purpose to suggest that the First Step Act is without issues (it was opposed by a number of the most conservative senators). Our purpose is to mark that while the Democrats are trying to get out of first gear — they’re still focused on the Mueller report — Mr. Trump is setting up his 2020 strategy in a highly premeditated way, one that the Democrats seem determined to underestimate yet again.

I am really drawn to this New York Sun piece for a host of reasons.  First and foremost, I agree with the assertion that, as I noted here, last week's event at the White House to celebrate the the FIRST STEP Act was breathtaking and worth watching in full (via this twitter link).  In addition, though I would like to see first-hand data out of Florida on re-enfranchised registrations, the specifics may matter less than that Jared Kushner believes (and is surely telling his father) that criminal justice reform and re-enfranchisement efforts have real political potential for the Republican party. 

Many years ago, I urged in posts and in Daily Beast commentary that then-Prez-candidate Mitt Romney should embrace "Right on Crime" rhetoric about the need for criminal justice reforms in order to help the Republican party appeal more to younger voters and voter of color.  Jared Kushner clearly seems to tapping into these ideas when talking up a "new coalition that President Trump is building for what the Republican Party has the potential to be."  The event celebrating the FIRST STEP Act suggests a willingness, even an eagerness, for this White House to double down on criminal justice reform because they sense a distinct political opportunity as good politics starts to match up with better policies in this space.  This reality bodes well for future reform efforts no matter who is truly getting the bulk of the benefit from re-enfranchised voters.

Finally, politics aside, there is no good reason in my view to disenfranchise categorically any class of competent voters (and my basic thinking on this front was effectively explained in this Big Think piece years ago headlined "Let Prisoners Vote").  The long-standing perception that re-enfranchisement efforts would help Democrats a lot more than Republicans has contributed to political divisions over doing what is right and just, namely letting everyone have proper access to the franchise.  I hope development in Florida and elsewhere can undermine the belief that only one party benefits from re-enfranchisement efforts so that both parties can fully support the fundamental commitment to democracy that re-enfranchisement represents. 

A few prior related recent posts:

April 7, 2019 in Campaign 2020 and sentencing issues, Collateral consequences, Criminal justice in the Trump Administration, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Wednesday, April 03, 2019

Effective accounting of FIRST STEP achievements and work still to do

Van Jones and Jessica Jackson have this effective new CNN piece under the headline "Why we're celebrating a three-month-old law."  I recommend the piece in full (and many of its links) for anyone seeking a quick primer not only on why the FIRST STEP Act is already an historic achievement and but also on the critical work ahead for those eager to see this legislation achieve all it is capable of achieving.  Here are excerpts to whet appetites for the full commentary:

By way of review, the First Step Act was the big bipartisan success story of 2018.  Liberals like Rep. Hakeem Jeffries and Sen. Dick Durbin joined with conservatives like Rep. Doug Collins and Sen. Chuck Grassley.  We both got personally involved as advocates through cut50.org, a bipartisan reform group that we co-founded during the Obama administration....  And in a move that surprised many, President Donald Trump endorsed the legislation and signed it into law.  In doing so, we witnessed a real evolution of the President's views on crime and punishment. The same President whose inaugural address included a line about stopping "American carnage" came to publicly decry harsh prison sentences.

While passing the First Step Act represented real progress, the true measure of any law should be its impact on people's lives. As the first quarter of the First Step Act comes to a close, there are at least five things we should be celebrating....  But there is still a long way to go before the First Step Act has been fully implemented and fulfilled its promise. This is what needs to happen now....

We named this legislation the First Step Act for a reason.  We know there is much more to be done, as our critics often point out.  However, there can be no second, third, or fourth step without a first.

We were in attendance at the Trump administration's 2019 Prison Reform Summit and First Step Act Celebration to both celebrate the good work that has been done and continue to push for more.  We were joined by lawmakers from across the country, faith leaders, business executives, cultural figures and the advocates who helped shape and pass the legislation.  We also brought with us a half-dozen people who have recently been released from federal prison because of this legislation and have traveled to Washington to share their stories.

They had much to be thankful for -- and the President gave them all an opportunity to speak.  Yvonne Fountain had 10 years remaining on her prison sentence when she heard from her lawyer that his motion for her immediate release had been granted.  April Johnson was ordered by a judge to be released from prison to return home and care for her terminally ill daughter and two young grandchildren.  Catherine Toney, Troy Powell, and Gregory Allen have all come home within the last 30 days hoping to contribute to society by being good employees and citizens.

They have all experienced significant challenges, too, and talked candidly about them with staffers on Capitol Hill and White House officials.  As more people hear their voices, see their faces and listen to their stories, more hearts will open and more progress will be possible.  After all, the stories and voices of incarcerated and formerly incarcerated people have already pushed Trump to do much more than most people ever thought he would....

When the President signed the First Step Act into law just days before Christmas, he gave Topeka K. Sam and Shon Hopwood, who had both served time in federal prison, an opportunity to share their stories before cameras in the Oval Office.  At his 2019 State of the Union Address, President Trump, in front of millions of viewers and the bicameral assembly, highlighted Alice Johnson alongside another case of unjust incarceration, Matthew Charles.  Neither of us will forget the President during the 2019 State of the Union address, saying "Welcome home, Matthew."

This time last year, practically no one believed that a bipartisan breakthrough of this scale and magnitude was even possible.  For those of us who continue to believe and fight for a victory on what was once considered to be a lost cause, celebrating the First Step Act is something we experience with a great deal of pride.

A few prior related posts on FIRST STEP Act implementation:

April 3, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Monday, April 01, 2019

Encouraging news and inspiring notes as White House celebrates FIRST STEP Act

This Washington Examiner piece, headlined "Trump announces Second Step Act to help ex-prisoners find work," reviews some highlights from today's celebration of the FIRST STEP Act at the White House today. Here are excerpts:

President Trump announced plans Monday for a Second Step Act focused on easing employment barriers for formerly incarcerated people.  "We are proving we're a nation that believes in redemption," Trump said at a White House event celebrating people released under the First Step Act, which he signed in December.

Trump said the "second step" legislation will feature a $88 million funding request for prisoner social reentry programs. "Today, I'm 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're starting right away," Trump said....

Some advocates had urged deeper sentencing reforms in a second major criminal justice reform bill.  Troy Powell, whose crack cocaine sentence was shortened by the First Step Act, spoke at the event Monday and called for more action to release inmates.  "There's more that can be done. I left so many people behind in prison doing 40, 50 years for nothing, I mean absolutely nothing," Powell said.  "I think there should be a second step."

Trump applauded Powell. "Could I have said it better than that?  His statement about so many people?  And that's true, so many people are there that really are serving 40 and 50 year sentences for things you wouldn't even believe, for things some people wouldn't even be going to prison for today," he said....

Trump said his administration would also "encourage employers to adopt second chance hiring practices," and gave rare applause to the media for favorable coverage of Alice Johnson, whose drug sentence he shortened last year using his executive clemency powers.  "Alice said, 'I also want to thank the media.' I bent over and said, 'Are you sure?' And I do too, I think that's fantastic," Trump said.

One speaker at the event, former prison inmate and Georgetown University law professor Shon Hopwood, was introduced by Trump as a current teacher of his daughter Tiffany Trump. "I think you're going to be rewarded in a way you cannot even imagine," Hopwood told Trump.

Via this twitter link, one can watch the full clip of Prez Trump speaking about criminal justice reform and hear the inspiring comments of a number of former federal prisoners who have been helped by the FIRST STEP Act.  Also, the White House released this "Fact Sheet" today titled "President Donald J. Trump Is Committed to Building on the Successes of the First Step Act."  The whole document is notable, and here are excerpts:

April 1, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"Trump Celebrates Criminal Justice Overhaul, but His Budget Barely Funds It"

The title of this post is the headline of this notable new article in the New York Times.  Here are excerpts:

President Trump on Monday is expected to host about 300 guests, including convicted felons, at the White House for the “First Step Act Celebration,” a party intended to bring attention to a rare piece of bipartisan legislation he passed last year, and which he plans to highlight on the campaign trail.

The East Room fete will cap a day of events dedicated to overhauling the criminal justice system, an issue that agencies across the government have been asked to elevate. The labor secretary, Alexander Acosta, is expected to participate in a panel on work force development.  Ben Carson, the secretary of Housing and Urban Development, is to lead a session about prisoner re-entry.  Ivanka Trump, the president’s daughter and senior adviser, will weigh in on a session dealing with incarcerated women. Kim Kardashian, the reality star, was even invited to participate in the panels and the party, but couldn’t attend.

Months after the legislation passed, and amid foreign policy blunders and a defeat on funding a wall along the southern border, Mr. Trump’s administration is putting the issue front and center.

But some activists who helped work on the legislation — which would expand job training and early-release programs, and modify sentencing laws, including mandatory minimum sentences for nonviolent drug offenders — have expressed concern that Mr. Trump is more attuned to the political opportunities the law offers him, rather than with ensuring it is enacted effectively.

Despite the high-profile party and round tables — and the White House releasing a presidential proclamation declaring April “second chance month” — Mr. Trump’s budget, released last month, listed only $14 million to pay for the First Step Act’s programs.  The law passed in December specifically asked for $75 million a year for five years, beginning in 2019. The funding gap was first reported by The Marshall Project.

Advocates participating in the events at the White House on Monday said they were hoping that officials would publicly address questions about funding the program. “The answer is a resounding yes. We’re fully committed to doing that,” said Ja’Ron Smith, a White House adviser who has worked extensively on the First Step Act implementation, referring to the funding.

In a budget justification document, the Bureau of Prisons, which operates under the Justice Department, said that it had not concluded how much money would be required to put the First Step Act into effect. But it goes on to say that fulfilling the law is a “priority” and that the Bureau of Prisons’ budget for re-entry activities “will be prioritized to fully fund the requirements of the act.” The document also noted that the prison bureau plans to dedicate $147 million in the 2020 fiscal year to First Step Act-related activities, which includes the cost of expanding halfway housing, the cost to relocate people and $85 million for the Second Chance Act grant program, which aids states and nonprofits in reducing recidivism.

Despite the assurances that the changes remain a budget priority, questions about funding have advocates on the issue concerned. “The First Step Act cannot fulfill its promise of turning federal prisons toward rehabilitation and preparing men and women to come home job-ready if it is not fully funded,” said Jessica Jackson Sloan, national director of #Cut50, a prisoner advocacy group that worked closely with the White House to get the legislation passed. Ms. Sloan said the group has been meeting with appropriators and talking to White House officials for months “to ensure that the proper funding is requested and appropriated.”

Some activists have been more willing to give the Trump administration the benefit of the doubt, noting that the lower funding level for 2019 could be because First Step programs are not expected to be up and running until the end of August, less than two months before the end of the federal fiscal year....

At a campaign rally in Grand Rapids, Mich., last week, Mr. Trump described the First Step Act as legislation that politicians had been trying to do “for so many years.” He added a dig at his opposition: “While we are pushing and pursuing all of these common-sense policies to advance the common good for our citizens, Democrats are pushing a cynical and destructive agenda of radicalism, resistance and revenge.”

The kickoff party on Monday will also offer Mr. Trump an opportunity for a photo-op with convicted felons, many of whom are African-American, as his campaign advisers want him to expand his appeal beyond his hard-core base. Many Democratic lawmakers and prison advocacy groups were happy to work with the Trump administration on the legislation, despite early skepticism about Mr. Trump’s commitment to the issue.

After today's notable event at the White House, I may have a lot to say about how the politics and policy of federal sentencing reform are continuing to evolve in all sorts of interesting ways.

UPDATE: I just saw that NPR today had this segment, headlined "3 Months Into New Criminal Justice Law, Success For Some And Snafus For Others," which covers some similar ground.  Here is a small part of this piece:

Activists who backed passage of the law say that certain parts of the act are working as intended, but other parts seem to be facing delays and uncertainty. "It's been a mixed bag," said Mark Holden, general counsel to Koch Industries, which has been a big supporter of the statute....

Congress passed the law but has not appropriated funds for the initiative. And the president's budget released earlier this year did not clearly request the $75 million that is needed to support the new criminal justice overhaul.

Despite that, a senior administration official said Trump is committed to working with Congress to fully fund and implement the law. "We are hoping to get the independent review council in place as soon as possible," the official said.

The official blamed the 34-day government shutdown for contributing to delays but said there would not be a significant holdup.

Another official said the Justice Department is using resources it has on hand to work on the risk assessment tool internally, in the absence of the committee, and expects to meet the July deadline. But the official acknowledged that Congress will need to provide money or approve shifting funds around in order for the agency to move ahead with the panel and other aspects of the law.

Ensuring that the money is available will be crucial to the effectiveness of the First Step Act, said Nancy La Vigne, head of justice policy at the Urban Institute. "We always recognized that without proper funding, the First Step Act is really nothing more than window dressing," La Vigne said.

April 1, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Sunday, March 31, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I am still waiting.

A few of many recent related posts: 

March 31, 2019 in Celebrity sentencings, Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Monday, March 25, 2019

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

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

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

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

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

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

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

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

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

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

A few prior related posts from years past:

March 25, 2019 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 (0)

Monday, March 11, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

March 11, 2019 in Campaign 2016 and sentencing issues, Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Friday, February 15, 2019

Federal judge rejects Sayfullo Saipov's efforts to block capital prosecution based on Prez Trump's tweets

As reported in this New York Times piece, headlined "Trump’s Tweets Do Not Bar Prosecutors From Seeking Death in Terror Case, Judge Rules," a federal judge yesterday issued a notable ruling in a high-profile capital case. Here are the details:

When President Trump said on Twitter that an Uzbek man charged with using a pickup truck to kill eight people “SHOULD GET DEATH PENALTY,” the man’s lawyers asked a judge to bar prosecutors from seeking execution, saying the decision had become too politicized.  But a federal judge in Manhattan ruled on Thursday that prosecutors could seek capital punishment despite the president’s comments.

Defense lawyers had argued the president’s tweet and other statements he made on Twitter had put political pressure on the attorney general at the time, Jeff Sessions, to seek a death sentence.  The lawyers pointed to public reports that Mr. Trump was considering firing the attorney general for not following his wishes, and said Mr. Sessions would not be able to make an impartial decision.

In his ruling, Judge Vernon S. Broderick wrote that Mr. Trump’s statements advocating for the death penalty “were perhaps ill-advised given the pendency of this case.”  Still, the judge said the argument that Mr. Sessions was improperly motivated to seek execution was “pure speculation made without a scintilla of direct factual support.”  The judge said that without more evidence he could not interfere with “the attorney general’s presumptive authority to make charging decisions.”

In September, Mr. Sessions went ahead and directed prosecutors to seek the death penalty for the defendant, Sayfullo Saipov, 31, if he is convicted at trial, even though Judge Broderick had not yet ruled on the motion concerning the president’s tweets.  Six weeks later, Mr. Trump fired Mr. Sessions. 

Mr. Saipov is accused of driving the truck down a crowded bike path along the Hudson River on Oct. 31, 2017, and, after smashing into a school bus, jumping out and running down the highway, shouting “God is great” in Arabic.  He was taken into custody after being shot by a police officer.  He has pleaded not guilty to eight capital counts of murder and other charges, and is scheduled for trial in October.

Judge Broderick wrote that Mr. Saipov had “offered no evidence that the president’s remarks impacted the attorney general’s decision-making process in any way.”  To the contrary, the judge said, Mr. Sessions had “categorically renounced other provocative remarks made by the president” and had vowed that the Justice Department would “not be improperly influenced by political considerations.”

Prior related posts:

February 15, 2019 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, February 14, 2019

US Senate confirms William Barr to be US Attorney General (again)

As reported in this NBC News piece, "President Donald Trump's attorney general nominee William Barr was confirmed in the Senate on Thursday to take over the Justice Department as attorney general, where he will oversee special counsel Robert Mueller's Russia probe." Here is more:

Barr, 68, was confirmed in a 54-45 vote that largely fell along party lines. He will be sworn in Thursday afternoon in the Oval Office by Supreme Court Chief Justice John Roberts, the White House told NBC News.

Barr was widely expected to be confirmed by the Republican-majority Senate on Thursday. He had served in the same role more than two decades earlier in President George H.W. Bush's administration, and had passed procedural hurdles in the Senate Judiciary Committee and the full Senate in recent votes.

A few senators broke with their party in the vote, however. Among Democrats, Sens. Joe Manchin of West Virginia and Doug Jones of Alabama — both of whom represent deep-red states — voted for Barr, as did first-term Arizona Sen. Kyrsten Sinema. Kentucky Sen. Rand Paul was the only Republican to vote against Barr's nomination.

Though various folks will continue to speculate what new leadership at DOJ might mean for the Mueller investigation, I am unsurprisingly most interested to see how new AG Barr approaches the implementation of the FIRST STEP Act and how he deals with state marijuana reforms.

Prior related posts:

February 14, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Monday, February 11, 2019

Acting AG Whitaker makes the case that "law enforcement works"

Today in Washington, DC, Acting Attorney General Matthew Whitaker delivered these remarks to the National Sheriffs’ Association’s Winter Conference. The structure and specifics of what he had to say is quite similar to the message delivered by former AG Jeff Sessions in similar settings in years past, and here are notable excerpts speaking to federal enforcement efforts:

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.  We broke the previous record by nearly 15 percent.  We also charged more than 15,000 defendants with federal firearms offenses, which is a record. We broke that record by a margin of 17 percent.

Last year we charged more illegal aliens with illegal entry than ever before.  In fact, we charged 85 percent more defendants with illegally entering America than we did in the previous year. And we increased the number of felony re-entry prosecutions by more than 38 percent.

All of these efforts that I’ve mentioned are adding up — and they’re bringing down the crime rate in counties all across America. In September, the FBI released final crime statistics for 2017. They showed that the violent crime rate and the homicide rate both went down after two years of increases under the previous administration.

For 2018, one estimate projects that the murder rate in our 30 largest cities declined by 7.6 percent.  That is usually a good indicator of what is happening nationwide.

And as this crowd knows well: when you lock up gang members and violent criminals, you also have an impact on drug crime.  In fiscal year 2018, the Department of Justice charged six percent more drug defendants than in the year before.  We prosecuted 36 percent more opioid defendants than the previous four-year average. We increased heroin prosecutions by 15 percent and oxycontin prosecutions by 35 percent.  We have broken records for fentanyl prosecutions two years in a row.

More importantly, drug overdose deaths may have finally stopped rising. According to preliminary data from the CDC, fatal overdoses stopped rising in September 2017 — and then decreased by two percent through April 2018.

This is preliminary data, but it is still encouraging. As our efforts have shown over these last two years, law enforcement works.

I am very pleased that there is a projected significant decline in the murder rate and also that overdose deaths may be decreasing. I am not sure it is sound to attribute these positive developments to stepped up federal prosecutions, but I am sure that we should all celebrate the very fact that there are good crime and overdose data to "spin" in various possible ways.

February 11, 2019 in Criminal justice in the Trump Administration, National and State Crime Data, Who Sentences | Permalink | Comments (0)

Tuesday, February 05, 2019

Prez Trump gives early and considerable attention to criminal justice reform in 2019 State of the Union address

As expected given the invitation of Matthew Charles and Alice Johnson to be in the audience, Prez Trump devoted considerable time to discussing criminal justice reform during the first part of his State of the Union address tonight. He spoke on these issues at length, and here is what he had to say drawn from this transcript of the full speech:

Just weeks ago, both parties united for groundbreaking Criminal Justice Reform.

Last year, I heard through friends the story of Alice Johnson.  I was deeply moved.  In 1997, Alice was sentenced to life in prison as a first-time non-violent drug offender.  Over the next two decades, she became a prison minister, inspiring others to choose a better path.  She had a big impact on that prison population — and far beyond.

Alice’s story underscores the disparities and unfairness that can exist in criminal sentencing — and the need to remedy this injustice.

She served almost 22 years and had expected to be in prison for the rest of her life.  In June, I commuted Alice’s sentence – when I saw Alice’s beautiful family greet her at the prison gates, hugging and kissing and crying and laughing, I knew I did the right thing — Alice is here with us tonight.

Alice, thank you for reminding us that we always have the power to shape our own destiny.

Inspired by stories like Alice’s, my administration worked closely with members of both parties to sign the First Step Act into law.

This legislation reformed sentencing laws that have wrongly and disproportionately harmed the African-American community.

The First Step Act gives non-violent offenders the chance to re-enter society as productive, law-abiding citizens.  Now, states across the country are following our lead. America is a nation that believes in redemption.

We are also joined tonight by Matthew Charlesfrom Tennessee.  In 1996, at age 30, Matthew was sentenced to 35 years for selling drugs and related offenses.

Over the next two decades, he completed more than 30 Bible studies, became a law clerk, and mentored fellow inmates.

Now, Matthew is the very first person to be released from prison under the First Step Act.  Matthew, on behalf of All Americans: WELCOME HOME.

February 5, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"White House Opioid Plan: Recycled ‘War on Drugs’?"

The title of this post is the headline of this effective new Crime Report commentary authored by Roman Gressier discussing the recently released “National Drug Control Strategy” report from the White House Office of Drug Control Policy. I recommend the whole commentary, and here is how it gets started:

With the federal shutdown temporarily at bay, it’s back-to-school time for the White House, which recently released a drug policy report strikingly reminiscent of former President Reagan’s “Just Say No” response to the so-called “crack epidemic” of the 1980s — and of the hardline rhetoric of the Nixon administration.

The “National Drug Control Strategy” report issued last week by the White House Office of Drug Control Policy (ONDCP) asserts that the current opioid crisis is “unprecedented,” while seeming to undercut claims by President Trump and his advisers that the “Wall” is critical to stopping the flow of illicit drugs into the U.S.

According to some critics, the report is simplistic.  The 20-page report reads “like a book report from a student who may or may not have read the book, and who may or may not have wrote his report on the bus ride to school,” carped Reason.com.

The report’s “policy priorities” will surprise no one who has advocated for focusing policymakers’ attention on an epidemic held responsible for 130 overdose deaths a day.

  • Reduce the size of the drug-using population through education and prevention programs;
  • Remove barriers to long-term recovery programs; and
  • “Aggressively reducing the availability of illicit drugs in America’s communities.”

But it rachets up the rhetoric, noting that “the drug crisis our country faces today is unprecedented,” warning that it has “evolved over the past several decades and has steadily worsened with time,” directly affecting every state and county and “every socio-economic group.”

February 5, 2019 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences | Permalink | Comments (5)

Monday, February 04, 2019

Prez Trump's special guests for his 2019 State of the Union Address suggest he will give significant attention to criminal justice reforms

This new White House release details a baker's dozen list of "the special guests who will join the President and First Lady at the U.S. Capitol when President Donald J. Trump delivers the second State of the Union Address of his presidency."  Here are two names on the list that should be familiar to regular readers of this blog:

Matthew Charles

Matthew Charles’s life is a story of redemption.  In 1996, he was sentenced to 35 years in prison for selling crack cocaine and other related offenses. While in prison, Matthew found God, completed more than 30 bible studies, became a law clerk, taught GED classes, and mentored fellow inmates.  On January 3, 2019, Matthew was the first prisoner released as a result of the First Step Act....

Alice Johnson

President Trump granted Alice Johnson clemency on June 6, 2018.  Alice had been serving a mandatory life sentence without parole for charges associated with a nonviolent drug case.  During her nearly 22 years of incarceration, Alice accomplished what has been called an “extraordinary rehabilitation.”  After her release, she was overjoyed to be reunited with her family.  She has now dedicated her life to helping those who are in a similar position as she was and giving a voice to the criminal justice reform movement.

I am so very pleased that Matthew Charles and Alice Johnson will have the opportunity to attend the State of the Union and in so doing will provide such a positive and importance face for criminal justice reform efforts.  I am also hoping (though not really expecting) that Prez Trump might talk about clemency activity (and reform to the clemency process) and further reform of mandatory-minimum sentences (including retroactive application of recent reforms) as potential next steps for his administration and as important agenda items for the new Congress.

Prior related post:

February 4, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Tuesday, January 29, 2019

Any predictions (or suggestions) for what Prez Trump will say about FIRST STEP Act in coming State of the Union?

Thanks to the federal government shutdown, we have to wait an extra week to hear Prez Donald Trump deliver the annual State of the Union address to a joint session of Congress and to the nation.  But I do not want to wait to speculate about what the Prez might say during SotU about the one big bipartisan achievement of the last year, namely the passage of the FIRST STEP Act.

As detailed in posts here and here from exactly a year ago, Prez Trump's 2018 State of the Union was arguably the first huge moment on the path to the passage of the FIRST STEP Act.  Prez Trump in that speech said: "As America regains its strength, this opportunity must be extended to all citizens.  That is why this year we will embark on reforming our prisons to help former inmates who have served their time get a second chance."  

Of course, as I have stressed in (too) many prior posts, the real impact of the FIRST STEP Act depends greatly on how the law gets implemented.  So I am hoping that Prez Trump, in addition to crowing about the FIRST STEP Act, will commit his administration to ensuring the Act is well-implemented.  Doing so requires not only keeping the government open, but also ensuring appointments to the new institutions created by the Act (as well as to existing essential institutions like the US Sentencing Commission).  Notably, as detailed in this MuckRock piece from last week, headlined "The First Step Act’s first steps are stalled," the shutdown contributed to a poor start on this institutional implementation front:

As part of the “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act,” the First Step Act’s formal name, the National Institute of Justice -- part of the Department of Justice’s Office of Justice Programs -- was supposed to establish an Independent Review Commission [IRC] within 30 days of the law’s enactment.  The review commission is supposed to assist the attorney general and the Bureau of Prisons in the design and deployment of the risk and needs assessment tool, which will be used to determine the risk of recidivism and violent misconduct as well as assign the types, lengths, and rewards for recidivism reduction programs....

The first step in the development of the tool, which is slated to be operational within 210 days of the bill’s enactment, estimated to be the end of July 2019, was the selection of a nonprofit to lead the IRC. That organization would then appoint members to the committee. 

The law requires that the IRC be comprised of no fewer than six individuals who “shall all have expertise in risk and needs assessment systems,” including: two published peer-reviewed scholars, “two corrections practitioners who have developed and implemented a risk assessment tool in a corrections system,” one of whom should be familiar with Bureau of Prisons operations, and “one individual with expertise in assessing risk assessment implementation.” However, the government shutdown makes it unlikely that the NIJ has hit its first goal for the review commission. In turn, other requirements, such as the creation of the tool itself within 210 days of the bill’s passage, likely will be delayed.

Of course, I do not really expect Prez Trump to speak to these wonky particulars regarding the FIRST STEP Act. But I do hope his team urges him to talk up his success on criminal justice reform and perhaps even talk about wanting to follow up with positive second steps of some sort.

January 29, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (5)

Wednesday, January 16, 2019

Reviewing criminal justice highlights (or low-lights) from AG nominee Barr's confirmation hearing

Other commitments are keeping me from being able to keep a close watch on the Senate confirmation hearing for President Trump's nominee to lead the Department of Justice, William Barr.  Fortunately, lots of other folks are doing so, and here is a round-up of a few pieces I have seen highlighting some of the criminal justice issues that have been discussed:

As the title of this post suggests, I surmise from this coverage that criminal justice reformers are not likely to be especially excited about the prospects for Attorney General Barr being an advocate for reforming the status quo. But I remain hopeful he will not be quite as resistant to reforms as was former AG Sessions. But time (and the political winds) will tell.

Prior related posts:

January 16, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Tuesday, January 15, 2019

"The Clemency Process Is Broken. Trump Can Fix It."

The title of this post is the title of this notable new Atlantic commentary authored by Rachel Barkow, Mark Holden and Mark Osler.  Here are excerpts:

It took six years of intense wrangling to get the First Step Act passed. Clemency reform, however, requires the action of only one man. The president can act alone to fix what Congress did not.

​Even the First Step Act’s primary nemesis, Republican Senator Tom Cotton, has acknowledged a role for clemency, saying as part of his attack on the legislation, “I grant that, in a particular case, the interaction of specific facts and the law can create an unjust sentence. If that happens, the best course of action is the scalpel of the governor or the president’s pardon and clemency power, not the ax of criminal leniency legislation.”

​Unjust sentences resulting from mandatory minimums are not rarities. That is why the First Step Act no longer permits mandatory minimum life sentences for third-strike drug offenses and lowered a two-strike, 20-year mandatory minimum for drug offenses to 15 years. The Act also requires that an individual first be convicted of an offense involving a firearm before receiving an additional 25-year mandatory minimum if he commits a second offense with a gun. (Previously, first-time offenders such as Weldon Angelos could receive multiple 25-year mandatory enhancements if the police documented multiple drug buys before making an arrest.)

One problem, as noted above, is that these and other welcome changes do not operate retroactively. People serving sentences now deemed excessive by Congress and the president have no recourse other than clemency to have those sentences rightsized. ​ There are more than 3,000 people left in prison serving mandatory sentences under the old firearm-enhancement law and the three-strikes provision that imposed a life sentence. Add to that the many individuals who are serving excessive sentences because of prosecutorial overcharging, and it is easy to see the urgent need to correct these injustices.

​For clemency to reach those thousands, the country needs a process that fairly, thoroughly, and efficiently evaluates candidates for a commutation (or shortening) of their sentence under the Constitution’s pardon power. At the moment, there are two possible processes, but neither works very well.

The first is informal: The president evaluates individual cases based on personal recommendations. This system does not scale.

​The second, more formal method isn’t any better. It courses through seven levels of review, much of it through a hostile Department of Justice bureaucracy that tends to defer to local prosecutors who are, in turn, loath to undo the harsh sentences they sought in the first place....

​Some states have better systems in place. In Arkansas, Connecticut, Georgia, and South Carolina, among others, an expert board plays a leading role in identifying and evaluating good cases. The best-functioning boards consist of people with expertise in criminal justice, social work, and psychology, and represent key stakeholders such as former judges, defense lawyers, prosecutors, and community activists who share a common belief that the purpose of the pardon power is to temper justice with mercy.

This model could work at the federal level as well. The president could create a similar board of clemency advisers who represent a diverse range of experiences, including those who work in criminal defense or corrections and people who were formerly incarcerated. Ideally, this body would be bipartisan and work collaboratively with a professional staff to identify cases for the president. This body could also track the progress of individuals granted clemency to document how they use their second chances. Many no doubt will serve their communities ably, and publicizing their experiences could help counteract the risk of a single Willie Horton–type incident overshadowing the positive stories of people who have been granted clemency....

​The members of the bipartisan coalition that pushed through sentencing reform were united by a belief in liberty, a desire to cut costs, a respect for public safety, and a belief in second chances. But as the name of their legislation indicates, sentencing reform was just a first step. Clemency should come next.

A few of many recent related posts: 

January 15, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, January 14, 2019

Seeking reader suggestions for really tough (sentencing) questions for AG nominee William Barr

The Senate confirmation hearing for President Trump's nominee to lead the Department of Justice, William Barr, is scheduled to begin tomorrow morning.  The headline of this Los Angeles Times article, "William Barr to face tough Senate hearing on attorney general nomination," predict a "tough" experience for Barr.  But, from my perspective, what could really make the hearing effective is for there to be a lot of sentencing reform and criminal-justice related questions.

As the title of this post suggests, I am eager to hear from readers in the comments about that might view as really "tough" questions for AG nominee Barr.  Here are a few that I have been thinking about based only on relatively current events:

I could go on and on, of course, with questions exploring President Bush's role in ramping up the drug war, President Trump's stated interest in the death penalty for drug dealers, and myriad issues related to federal marijuana prohibition.  But at this point I will just link below to prior posts about Bill Barr and again encourage interested readers to make suggestions in the comments.

Prior related posts:

January 14, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (6)

Thursday, January 10, 2019

Attorney General Nominee Bill Barr reportedly to support FIRST STEP Act at coming hearing (and should be pressed on particulars)

This effective new Reuters article, headlined "Tough-on-crime record trails U.S. attorney general nominee into Senate hearings," reports on how the new AG-nominee's record on criminal justice issues and recent developments could intersect at next week's confirmation hearings. Here are the details:

President Donald Trump’s nominee for U.S. attorney general is expected to tell a Senate panel next week that he supports a new law easing prison sentences for some criminals, even though he advocated for decades for just the opposite.

William Barr for much of his career championed a get-tough approach to crime that has recently lost favor, culminating last month in Trump signing into law the biggest overhaul of the criminal justice system in a generation.

The First Step Act, enacted with strong bipartisan support in Congress, reduces mandatory minimum sentences for some nonviolent, low-level offenders and makes it easier for prisoners to qualify for early release to halfway houses or home confinement. Trump signed it into law just weeks after he nominated Barr, who issued a report during an earlier stint as attorney general in the 1990s called “The Case for More Incarceration.”

Barr is expected to say that he will support the new law when he appears before the Senate Judiciary Committee for confirmation hearings next week, according to two sources familiar with his preparations. “We believe that Barr’s position will be somewhat moderated when he testifies if for no other reason than that his boss (Trump) fully subscribes to the First Step approach,” said Fraternal Order of Police executive director Jim Pasco, who said he had been in touch with people helping Barr prepare for the Senate hearings.

The Senate, controlled by Trump’s fellow Republicans, is expected to confirm Barr’s nomination to again head the Justice Department.

Concerns about Barr’s record on criminal justice have so far taken a back seat to questions about how he would handle Special Counsel Robert Mueller’s investigation into possible collusion between Russia and the Trump campaign in the 2016 election. Trump has denied any collusion with Moscow and Russia has said it did not meddle in the election.

Republican Senator Lindsey Graham, the incoming chairman of the Judiciary Committee, said he did not discuss the First Step Act when Barr visited him at his office on Wednesday. “That would have been a good question to ask him,” Graham said after the meeting.

But criminal justice advocates said they were working with lawmakers on the committee to make sure Barr will be questioned in detail about specific elements of the new law to ensure that he will support it. “It certainly appears he holds an old-school view of our criminal justice system, but there is an overwhelming majority of members of the House and Senate on both sides of the aisle who do not feel that way,” said Holly Harris, executive director of Justice Action Network, a coalition of criminal-justice groups across the political spectrum....

Democratic Senator Cory Booker, a member of the Judiciary Committee, is among those concerned by Barr’s record. “Barr took an extremely troubling approach to mass incarceration in the nineties at the DOJ and it doesn’t look like his views have changed much,” said a Booker aide, speaking on condition of anonymity.

As attorney general, Barr would be in a position to influence how prisoners would be released into halfway houses or home confinement. “It’s frustrating to think we might have found one of the few people who are still stuck in the 1980s and 1990s on these issues,” said Kevin Ring, head of Families Against Mandatory Minimums, which has worked to reduce minimum prison terms.

Barr was attorney general in 1991-1993, a time when U.S. crime rates reached an all-time high of 758 incidents per 100,00 people. They have since fallen by nearly half, to a rate of 394 incidents per 100,000 people in 2017, according to the FBI. At that time, Barr advocated long prison sentences to keep violent criminals off the streets. “First, prisons work. Second, we need more of them,” Barr’s Justice Department wrote in a 1992 report.

Barr maintained his get-tough stance after leaving office. Along with other former law enforcement officials, he lobbied against earlier versions of the First Step Act in 2014 and 2015. When Trump fired Attorney General Jeff Sessions in November, Barr and two other former attorneys general penned a Washington Post opinion piece that praised Sessions for directing prosecutors to pursue the severest penalties possible.

Barr’s advocacy came as others were concluding that mandatory minimum sentences and other tough policies had taken too harsh a toll, especially on African-Americans and Latinos, and were costing taxpayers too much money.

I am not at all optimistic that an Attorney General Barr will be much better (or at all better) than former Attorney General Sessions was on these important issues.  But I am hopeful that, with effective questioning by folks on both sides of the aisle during his confirmation hearings, nominee Barr might be inclined to make statements supportive of various key provisions of the FIRST STEP Act that will make it harder for him to undermine these provisions once in office.  I sincerely hope that strong advocates of the FIRST STEP Act and criminal justice reform will be sure to ask a lot of strategic questions of Barr in this arena rather than just give him a chance to repeat whatever Mueller investigation talking points that he is developing.

Prior related posts:

January 10, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Wednesday, January 09, 2019

Deputy Attorney General Rod Rosenstein reportedly to leave Justice Department after new AG is confirmed

As reported here via Reuters, "Deputy U.S. Attorney General Rod Rosenstein, who has overseen the Russian election meddling probe, is preparing to leave the U.S. Department of Justice in coming weeks as President Donald Trump’s nominee to lead the department is set to take over, a department official said on Wednesday." Here is more:

William Barr, Trump’s pick to replace Sessions who was fired soon after the November midterm congressional elections, is set to appear for a confirmation hearing next week before the Senate Judiciary Committee, which must weigh his nomination before the full Senate considers his approval.

The official, who asked not to be named since no announcement has been made, said there is no specific plan for Rosenstein’s departure and that he plans to leave sometime after Barr’s confirmation.

If confirmed, Barr, who was U.S. Attorney General under the late President George H.W. Bush from 1991 to 1993, would oversee the investigation led by U.S. Special Counsel Robert Mueller, a fellow Republican chosen by Rosenstein. Barr’s nomination is likely to meet heavy scrutiny regarding the ongoing investigation, particularly from Democrats, following reports he had written a memo in June questioning the probe. Rosenstein has said the memo had no impact on the department’s work.

Rosenstein will stay on to ensure smooth transition with Barr, the official said, adding that he has seen his job as deputy as a two-year stint and is not being forced out.

Asked about Rosenstein’s departure, first reported by ABC News, White House spokeswoman Sarah Sanders said she had not spoken to Rosenstein and would leave any announced departures to him or the president. “Certainly, I don’t think there’s any willingness by the president or the White House to push him out,” Sanders told Fox News in an interview.

Rosenstein has stayed on under Acting Attorney General Matt Whitaker, whose controversial appointment has sparked numerous legal challenges and raised questions about what role he would play regarding the investigation.

Rosenstein has been frequently criticized by Trump, who calls the Russia investigation a “witch hunt” and denies any collusion with Moscow. Russia has also denied any election interference.

As this reporting highlights, most media and pundits are likely to discuss the Russia investigation as they assess DAG Rosenstein's coming departure and the likely confirmation of AG-nominee Barr.  But serious criminal justice fans know that a new Attorney General and now a new Deputy Attorney General are critically important players in shaping the Justice Department's work on dynamic federal criminal justice issues ranging from marijuana reform to implementation of the FIRST STEP Act to future work by the US Sentencing Commission and so much more.

January 9, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Friday, December 21, 2018

Prez Trump signs historic (though modest) FIRST STEP Act into law ... and now comes the critical work of implementing it well!!

President Donald J. Trump officially signed the FIRST STEP Act into law today, and I am so very excited that a significant piece of sentencing and prison reform finally became law after years and years and years of talk and effort by so many.  I wish the reform was even more significant, especially on the sentencing side, but something is better than nothing and but for a modest reform to crack sentencing terms, we really have had nothing positive coming from Congress on the sentencing side in more than 20+ years.

The White House has this extended "fact sheet" about the FIRST STEP Act under the heading "President Donald J. Trump Secures Landmark Legislation to Make Our Federal Justice System Fairer and Our Communities Safer."  Here is an excerpt:

CREATING SAFER COMMUNITIES AND A FAIRER FEDERAL JUSTICE SYSTEM: The First Step Act will make our Federal justice system fairer and our communities safer.

  • The First Step Act will help prepare inmates to successfully rejoin society and enact commonsense sentencing reforms to make our justice system fairer for all Americans.
  • Among many reforms, the First Step Act will:
    • Promote prisoner participation in vocational training, educational coursework, or faith-based programs by allowing prisoners to earn time credits for pre-release custody.
    • Expand prison employment program opportunities.
    • Enact fair, commonsense reforms to mandatory minimums.
    • Eliminate the three-strike mandatory life sentencing provisions.
    • Give certain offenders the ability to petition the courts for a review of their sentences.

As the title of this post highlights, I am viewing the enactment of the FIRST STEP Act only as completing stage 1 of achieving significant federal criminal justice reform. Stage 2 involves the critical work of implementation, and so many of the large and small elements of the the FIRST STEP Act involve important and challenging implementation issues. Most obviously, the risk assessment system for prisoner programming and time credits needs to be developed and deployed in a fair and effective way and that is easier said than done. And the instruction that federal prisoners be house, whenever possible, within 500 miles of their homes is easier to describe than to ensure. And the new authority created by the FIRST STEP Act for courts to consider directly so-called "compassionate release" motions for sentence reductions presents a profound opportunity and a profound challenge for taking a second look at extreme (and extremely problematic) sentences.

I could go on and on, but I will save FIRST STEP Act "issue spotting" for the days and weeks ahead (I have created a new category archive for this very purpose).  For now I will just savor needed legal change and congratulate all those on the front lines who worked so very hard to help make this day possible.  Wow!

December 21, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (6)

Thursday, December 20, 2018

Some accounts of what should come after the FIRST STEP Act

So far I have be disinclined to blog about what should come after the FIRST STEP Act, in part because the bill is still not yet officially law and in part because I think the most important (and challenging) work right after the enactment of the FIRST STEP Act is taking the many steps necessarily to effectively and expansively apply and implement all of its provisions. But, perhaps unsurprisingly given the modest nature of so many of the provisions of the FIRST STEP Act, a number of fine folks are already writing fine things about next steps. Here is a sampling of some of this writing:

December 20, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation | Permalink | Comments (4)

FIRST STEP Act approved by US House by vote of 358 to 36, will become law as soon as Prez Trump signs!!

As reported in this UPI piece, the US House of Representatives "overwhelmingly approved a bill overhauling the country's criminal justice system Thursday, sending the legislation to President Donald Trump's desk for a signature." Here is more:

The chamber approved the First Step Act with a 358-36 vote two days after the Senate passed it by a similar margin of 87-12. Lawmakers expect Trump to sign the legislation into law Friday.

The House approved a different version of the legislation earlier this year and had to amend it to make the Senate version.

Trump has described the reform as "reasonable sentencing reforms while keeping dangerous and violent criminals off our streets." "Congress just passed the Criminal Justice Reform Bill known as the #FirstStepAct. Congratulations!  This is a great bi-partisan achievement for everybody.  When both parties work together we can keep our Country safer. A wonderful thing for the U.S.A.!!" he tweeted.

House Speaker Paul Ryan welcomed passage of the legislation, saying it's something he's "believed in for a long time."

"These reforms to our criminal justice system will not only reduce recidivism and make communities safer, but they will help people into lives of purpose," he said.

HUZZAH!!!

Interestingly, when the prison-reform only versions of this bill received a House vote back in May, only two DOP members voted against it while 30+ Dems voted not because of a concern the bill did not go far enough. With the new version including a few modest sentencing reforms, this time around all Dems voted yea and all 36 nays came from GOP members (as detailed in this final vote tally).

Some of the most recent of many prior related posts as FIRST STEP Act gets ever closer to becoming law:

December 20, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, December 19, 2018

Latest issue of the Federal Sentencing Reporter covers "The 2018 Debate over Federal Statutory Reform Proposals"

I am still so full of ideas and thoughts about what's next after the Senate's passage of the FIRST STEP Act, and in some future posts I will link to writings about second and thirst steps and so on.  But, coincidentally, just today I got notice that the December 2018 issue of the Federal Sentencing Reporter has just been published on-line, and it is a must-read for those looking to fully understand the background and back-story of the FIRST STEP Act.  

This Issue of FSR is already a bit dated, as it went to press last month before anyone was sure if Congress would get some version of the bill to the desk of the President.  But it still effectively highlights, thought the work and words of a number of leading reform advocates, why the path toward passage was so challenging and so important.  Here is snippet of my short introduction, followed by links to all the the original commentary:

This Issue of FSR provides a snapshot of the discussion and debate over the direction and scope offederal statutory reform proposals through 2018.  As of this writing, in early November 2018, meaningful lawmaking in this area is still just a possibility rather than an achieved reality; the momentum for reform that built through the first part of the year was halted by campaign dynamics as members of Congress turned their attention to the 2018 midterm elections.  But with President Trump reportedly embracing(in August) a compromise proposal that would add some [sentencing reform] provisions to the FIRST STEP Act, and with Senate Majority Leader Mitch McConnell pledging to consider taking up criminal justice reform after the midterms, there remain reasons to be optimistic that all the big reform talk reflected in this Issue might yet produce big reform action before the end of 2018.

The materials in this Issue of FSR include both original commentary and primary documents that provide a flavor of the terms of the debate, in Congress and beyond, as political realities shifted from not believing any reform was possible during the Trump administration to strategizing just what kinds of reform should be prioritized. Georgetown Law Professor Shon Hopwood, a leading advocate for federal reforms, solicited original commentaries for this Issue that canvass the major provisions of key bills working their way through Congress in 2018.  Authored by some of the leading policy advocates involved on all sides of the conversation, these articles showcase why the scope and focus of statutory reform has engendered spirited debate.

December 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

Tuesday, December 18, 2018

On cusp of enactment of FIRST STEP Act, a brief trip to the archives via the (not-so-)way back machine

01fbcd89144c25425689e251bd5143038d04f0ceI am so full of ideas and thoughts and ways to celebrate the Senate passage of the FIRST STEP Act, I am not sure what to blog first and in the immediate future.  So, rather than do too much looking forward to what the FIRST STEP Act means when it becomes law (especially because I do not want to jinx anything), I figured I would close out my blogging tonight by doing a little looking back.  Specially, I looked at some archives of posts after Prez Trump got elected, and found these interesting posts (among others) that talked about the possibility of federal criminal justice reform  despite Trump's tough-on-crime rhetoric and his appointment of reform for Jeff Sessions as Attorney General:

I was inspired to review this this interest bit of the recent past in part because the developments this week have has me especially thinking about this post by Bill Otis over at Crime & Consequences from almost exactly two years ago titled "Blowing Smoke on Sentencing Reform."  In that post, Bill Otis explained in his usual manner why he was not convinced by this Bill Keller commentary (also noted above titled) "Why Congress May Bring Criminal Justice Reform Back to Life."   Bill Otis was not entirely off-base to assert that sentencing reform was a uphill battle in this Congress, and he might even defend his analysis by noting that the FIRST STEP Act only includes a few very modest sentencing reforms.  But I bring this up because tonight's overwhelming vote for the FIRST STEP Act ultimately reinforces my belief that there is now a strong (and growing) group of GOP leaders who are very eager to take ownership of criminal justice reform.  And that reality bodes well for the prospects of second and third steps in the next Congress and beyond.

December 18, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Sunday, December 09, 2018

Rounding up negative reactions to William Barr's nomination to be next US Attorney General

Unsurprisingly given his prior record as Attorney General and various statements on reform efforts past and present, folks in the criminal justice and drug policy reform community are not too keen of Prez Trump's decision to nominate William Barr to be the next US Attorney General.  Here is an extended sampling of press releases and articles on this front:

From ACLU, "No Relief: William Barr Is as Bad as Jeff Sessions — if Not Worse"

From The Brennan Center, "William Barr Is Out of Step on Criminal Justice Reform"

From Drug Policy Alliance, "Barr Record on Drug War and Criminal Justice Reform is Appalling"

From FAMM, "FAMM Statement on the Nomination of William Barr for U.S. Attorney General"

From The Intercept, "Trump’s Pick For Attorney General Pushed For Military Strikes On Drug Traffickers, Questioned Asylum Law"

From Leafy, "What Trump’s New AG Pick Could Mean for Cannabis"

From Marijuana Moment, "Where Trump’s Pick For Attorney General Stands On Drug Policy"

From Quartz, "Trump nominee William Barr pushed for the death penalty to “send a message to drug dealers"

From Vox, "William Barr helped establish mass incarceration. Now Trump wants him as attorney general."

Largely because of points made in these pieces, William Barr certainly was not the AG candidate I was rooting for.  (Retired DC Circuit Judge Janice Rogers Brown was a name thrown out at one point that struck me as especially interesting.)  But though I share many of the concerns expressed in the press releases and articles assembled above, I am also hoping and rooting that Barr's thinking on various crime and punishment issues may have evolved, at least a little bit, since his last stint as Attorney General a quarter century ago.  Particularly given how a number of "tough on crime" defenders of mandatory minimums and other harsh federal sentencing laws have come around in just the last few years to be vocal advocates for reform (e.g., Representative James Sensenbrenner and Senator Charles Grassley), I am not prepared quite yet to fear that an AG Barr will be as bad or worse than an AG Sessions.  But we will perhaps find out before too long.

Prior related posts:

December 9, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Friday, December 07, 2018

Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten

The US stock market probably can lay claim to being the most volatile and unpredictable metric since last months election, but the ups and downs surrounding the possible enactment of the FIRST STEP Act during the lame duck Congress have certainly been knocking me for a loop.  As of yesterday evening, as reflected in this post, I was ready to put a folk in reform efforts and conclude they were done for now.  But a new day brings all sorts of new developments: (1) Senator Ted Cruz issued this press release reporting "the White House and the sponsors of this bill ... have decided to accept [his] amendment" to exclude violent offenders from being released early so that now he believes "the Senate should take up and pass this important legislation, and (2) Prez Donald Trump posted this tweet:

This new Politico article, headlined "Trump leans on McConnell to vote on criminal justice reform," provides the latest full update, including these mostly encouraging details:

President Donald Trump pressured Senate Majority Leader Majority Leader Mitch McConnell on Friday to pass criminal justice reform, hoping to push a reluctant McConnell to put it on the floor during a crowded lame duck session. After going mostly silent on the bill for several weeks, Trump touted the bill at an event in Kansas City and then singled McConnell out on Friday on his Twitter feed....

A person familiar with the conversations between the two men said the president was using a light touch on the bill, but would call McConnell out if he felt the bill was drifting away. “McConnell said if we’ve got 65 votes then he would allow the bill to get on the floor. And we’ve far exceeded that. And now the president is pushing the president to get the floor time," the person said. "We need to figure out exactly how this fits in in the floor time. Until we can answer that question all the pressure in the world won’t make a difference. What [Trump has] done is he’s expressed very clearly to McConnell that he wants him to figure it out."

Senate Judiciary Chairman Chuck Grassley (R-Iowa) also talked to Trump on Friday and tweeted that "Trump told me he wants it done THIS CONGRESS."

The Trump tweet came on top of a day of rising public support for the bill, with Sen. Ted Cruz (R-Texas) endorsing a revised version of criminal justice reform. The legislation, which would relax some federal sentencing guidelines and reform the federal prison system, is being amended to “exclude violent offenders from being released early,” the Texas Republican said in a statement....

Four other senators endorsed the bill on Friday as it faces a time crunch on the Senate calendar. Sens. Thom Tillis (R-N.C.), Tina Smith (D-Minn.), Michael Bennet (D-Colo.) and Steve Daines (R-Mont.) backed the bill.  Those senators plus Cruz give the bill more than 30 official supporters in both parties, though almost the whole 49-member Democratic caucus is expected to back the bill if it comes up for a vote.

The real issue is on the Republican side, where advocates argue that about 30 of the 51 senators support it, but GOP leaders say the bill’s support is much lower.  Though conservatives like Tom Cotton (R-Ark.) have led the public charge against it, there are quieter opponents of the bill like Sen. Dan Sullivan (R-Alaska), who says his state is in the midst of a “crime wave” from similar legislation.  “It’s a very challenging time in Alaska to be focused on criminal justice reform,” Sullivan said in an interview. He said the bill should not come up this year.

The internal disagreements and opposition from the National Sheriffs’ Association have made McConnell reluctant to bring the bill to the floor, especially with just two weeks left to pass legislation to fund the government. McConnell has repeatedly indicated to the White House and his conference that finding a window to pass the criminal justice reform bill would be challenging. “Until we can kind of figure out how to get the sheriffs on board, we still have a lot of opposition in our ranks,” said Sen. John Thune of South Dakota, the No. 3 GOP leader. “Then, from a timing standpoint, how would we process that in the next two weeks?”...

Sen. Lindsey Graham (R-S.C.) said he spoke to President Donald Trump on Friday and that the president wants the bill to pass, potentially as part of the spending bill along with more money for the border wall. But that plan would surely draw broad Democratic opposition over funding for the wall. And McConnell has mentioned taking up the bill next year after Democrats take the House. But the bill's supporters say that's akin to starting all over after building a fragile compromise this year.

Some of the most recent of many prior related posts:

December 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

So what does Bill Barr now think about federal criminal justice reforms or state marijuana reforms?

The question in the title of this post is prompted, of course, by this news as reported here by CNN: "President Donald Trump has decided to nominate former Attorney General William Barr to be the next permanent head of the Justice Department, the President told reporters Friday." Here is more:

"He will be nominated for the United States attorney general and hopefully that process will go very quickly," Trump added.

Barr previously worked at the CIA in the 1970s and served in several leadership roles at the Justice Department serving under President George H.W. Bush. He ultimately served as attorney general from 1991 through 1993. He subsequently served in several executive and leadership positions at corporations, including Verizon Communications. Barr also served as a board member on CNN's parent company, Time Warner, Inc., (now Warner Media) from 2009 until 2018....

Officials at the DOJ are thrilled with Trump's selection of Barr, multiple current and former officials told CNN. He's universally seen as solid, reliable conservative, but also someone who can get confirmed. Deputy Attorney General Rod Rosenstein was "elated" by Trump's selection of Barr, according to a source close to him.

One Justice Department lawyer who had been nervous about who the President might pick praised the choice of Barr, saying it is good for morale. "As compared to other potential picks, this is a great choice," said the official. The source called Barr a "very mature choice," and said when Barr emerged as the front runner people at Justice were hoping he'd be the pick "because he's tough he's principled and he's independent."...

As for how quickly Barr could be confirmed, one congressional source notes it's usually at least two months from nomination to confirmation and said if the appropriate paperwork gets to the Hill in time, a hearing could be held in January.

South Carolina Republican Sen. Lindsey Graham, a leading contender to become the next chairman of the Senate Judiciary Committee, praised the President's selection of Barr, saying he "will provide new and much-needed leadership for the Department of Justice."...

Democratic congressional leaders criticized the President's choice. Nancy Pelosi, who is running to be the next speaker of the House, called Barr's proposed nomination "deeply concerning," adding that he "has spent the past two years auditioning for this job by stoking partisan attacks on our nation's law enforcement community, and encouraging the President to use the Justice Department as a political weapon to pursue his rivals and undermine investigations into Trump and his family's scandals."

Senate Minority Leader Chuck Schumer said Barr "will have a steep hill to climb in order to be confirmed by the Senate." Schumer demanded that Barr commit to allowing the Mueller investigation "proceed unimpeded" and that the special counsel's final report be available to Congress and the public after the investigation is completed.

As highlighted in this prior post, Barr's past history on issues of incarceration are not encouraging for advocates of federal criminal justice reform.  But lots of folks who adopted "tough-and-tougher" approaches to crime and punishment a few decades ago have become significant modern voices for all sorts of reforms.  So, I am hopeful that the coming weeks will bring thoughtful inquiries and questions concerning how would-be AG Barr would approach federal criminal justice reforms or state marijuana reforms circa 2019.

December 7, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Thursday, December 06, 2018

Talk of William Barr for Attorney General (and his "Case for More Incarceration")

73EAIRHZP4I6RBSCZFYYUJLMXUThis new Washington Post article reports that "Former attorney general William P. Barr is President Trump’s leading candidate to be nominated to lead the Justice Department."  Here is more: 

Barr, 68, a well-respected Republican lawyer who served as attorney general from 1991 to 1993 under President George H.W. Bush, has emerged as a favorite candidate of a number of Trump administration officials, including senior lawyers in the White House Counsel’s Office, these people said.  Two people familiar with the discussions said the president has told advisers in recent days that he plans to nominate Barr.

One person familiar with the discussions cautioned that while Barr is the leading candidate, the decision is not final and the president could decide to pick someone else.  Another person familiar with the discussions said Barr is “a really serious contender and possibly the front-runner” for the job but stressed it was impossible to predict Trump’s pick definitively until it was announced publicly.

That person said those advising the president viewed Barr as someone who knows the department well and is a good manager. Barr, this person said, also had a bluntness that is likely to resonate with the president. “He’s a serious guy,” the person said. “The president is very, very focused on [a candidate] looking the part and having credentials consistent with the part.”

Barr declined to comment.  Those familiar with the discussions said Barr, having already been attorney general, doesn’t feel a particular ambition for the position, but does feel a sense of duty to take it if offered....

Even if Barr were announced as the president’s choice this week, it could take months for a confirmation vote, given the congressional schedule.  In the meantime, acting attorney general Matthew G. Whitaker would still serve as head of the Justice Department...

Administration officials expect Barr’s nomination would be received positively by Republicans who respect his experience and Democrats who would likely view him as an old-school GOP lawyer with no particular personal loyalty to the president....

After leaving the Justice Department, Barr served in a variety of high-level corporate positions, including as general counsel and executive vice president of Verizon Communications.  He is currently a lawyer at Kirkland & Ellis and does work advising corporations on government enforcement and regulatory actions.

Any confirmation hearing for a new attorney general will likely be dominated by questions about how the nominee would handle political pressure from the White House, and oversee the ongoing Russia probe into whether any Trump associates conspired with Russian officials to interfere in the last presidential election.

Barr shares at least one of the president’s views on the probe being conducted by special counsel Robert S. Mueller III.  In 2017, when asked by The Washington Post about political donations made by lawyers on the special counsel’s team, Barr said “prosecutors who make political contributions are identifying fairly strongly with a political party” and added: “I would have liked to see [Mueller] have more balance on this group.”

Barr also wrote last year that the administration’s decision to fire James B. Comey as FBI director was “quite understandable” because, in his view, Comey had usurped the power of the attorney general when he publicly announced his recommendation not to charge former secretary of state Hillary Clinton during the investigation of her private email server.

Barr’s daughter, Mary Daly, is a senior Justice Department official overseeing the agency’s efforts against opioid abuse and addiction.

Of course, I would be even more interested to hear about Barr's views on the FIRST STEP Act than about his views on the Special Counsel. A number of folks I follow on Twitter have been quick to note this notable document coming from the Justice Department in 1992 titled "The Case for More Incarceration." Then-AG Barr said this in a brief note at the start of that document:

[T]here is no better way to reduce crime than to identify, target, and incapacitate those hardened criminals who commit staggering numbers of violent crimes whenever they are on the streets.  Of course, we cannot incapacitate these criminals unless we build sufficient prison and jail space to house them.

Revolving-door justice resulting from inadequate prison and jail space breeds disrespect for the law and places our citizens at risk, unnecessarily, of becoming victims of violent crime.

Notably, as this BJS document highlights, at the end of 1992, the federal prison population was "only" just over 80,000 and the national prison population was just over 883,000.  This subsequent BJS document two dozen years later details that by year end 2016, the the federal prison population clocked in at over 196,000 and the national prison population was over 1,526,000.  I am not at all keen to see more early 1990s era thinking about imprisonment at the Justice Department, but I certainly would like to see a return to early 1990s incarceration levels.

December 6, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Wednesday, November 28, 2018

Despite push by Prez and VP and support of at least 70 senators, odds of a Senate vote on FIRST STEP Act still reportedly "less than 50/50"

Politico has this lengthy report, headlined "White House makes last-ditch push on criminal justice reform bill," on the state of debate among Senate Republicans concerning the FIRST STEP Act.  Here are details:

The Trump administration and a bloc of Republican senators are making a last-ditch attempt to pass a criminal justice reform bill in the lame duck session.

In a closed-door party lunch on Tuesday, Vice President Mike Pence made a strong endorsement of the bill to Senate Republicans, senators said, emphasizing that the GOP could take a clear win in the lame duck with passage.  And supporters said they picked up votes during the discussion; one supportive GOP senator said they’ve accrued more than 20 hard “yes” votes and that another dozen or so GOP senators are gettable, which would likely be enough to easily pass the bill — if leadership will bring it up.

Senate Majority Leader Mitch McConnell (R-Ky.) maintained his poker face at the meeting, other than to reiterate the Senate’s short calendar.  Asked to assess the prospect that McConnell will put the sentencing and prison reform bill on the floor, one attendee said: “Less than 50/50.”...

“A lot of people like me are still trying to understand what it does,” said Sen. Bob Corker (R-Tenn.), who characterized Tuesday’s critical meeting as a “higher level discussion of whether we should attempt to do it.”

As they assess the bill‘s prospects, GOP leaders are also asking senators whether they'd prefer to deal with the bill next year after Democrats take over the House, according to two sources familiar with the matter.  That would dismantle a fragile bipartisan agreement and require Republicans and Democrats alike to essentially start over.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) is still trying to garner more support for the bill, which would lower mandatory minimum sentences for some drug-related felonies, expand a program for early release, promote training programs in prison and require inmates be placed in prisons closer to their homes. He and other advocates say they are open to changing the bill’s treatment of some criminals in order to win new supporters.

“We’re still working on getting additional yeses or additional cosponsors,” Grassley said, noting that the only way to overcome opposition from Sen. Tom Cotton (R-Ark.) and others was to increase co-sponsorship. He added that “we’re talking about no announcement before a couple days.”

McConnell is loath to take up the bill on the floor to prevent a circular firing squad among Republicans. But that’s already happening both in public and private: After trading blows on Twitter in recent days, Sen. Mike Lee (R-Utah) and Cotton each gave opposing speeches about the bill in the lunch.

But supporters said they have the momentum and estimated only a half-dozen Republicans will be difficult to convince: Cotton, Sen. John Kennedy (R-La.), Ben Sasse (R-Neb.), Jim Risch (R-Idaho) and Deb Fischer (R-Neb.).  “Over half of the Republicans are for it, and maybe 80 percent, 90 percent, maybe all of the Democrats support it,” Sen. Rand Paul (R-Ky) said. “Things are all moving in the right direction.”

Still, Sen. Marco Rubio said that he is skeptical of the bill, particularly when it comes to classification of crimes and said he is “not sure there is anything” that could win him over. And a small bloc of Republicans, led by Cotton and Kennedy, are vocally going after the bill.  Kennedy called it “ass backwards” in an interview and said he had “serious philosophical problems with the criminal justice bill.” It “takes all our authority and gives it to a bunch of bureaucrats,” he said.

The Senate also needs to pass a spending bill by Dec. 7 to avoid a partial government shutdown, and lawmakers are trying to wrap up negotiations around the Farm Bill. The criminal justice bill is regarded as a “maybe” that could potentially wait until next year. A version of the bill has already passed the House.

Senate Majority Whip John Cornyn (R-Texas) said that the bill “is still being evaluated and people are still trying to figure out where they stand.” He said McConnell has made no final decision....

But no matter what, there will be detractors.  Cotton told reporters Tuesday that while the House’s version of the bill was “fixable,” the Senate’s draft of the legislation has “gone consistently to the left.” 

If only a handful of Republicans supported this bill, I could understand why (but would still be frustrated) the Senate Majority Leader would not want to bring forward a bill favored more by his opposing party than by his own party.  But this Politico report reinforces my sense that a majority of GOP Senators would vote for the FIRST STEP Act and that a super-majority of all Senators (representing a super-super majority of the nation's population) want this legislation enacted.  That a few Senators from a few states can, in essence, exercise a heckler's veto highlights why thoughtful federal criminal justice reform has been so very hard.  Sigh.

Some of many prior related posts:

November 28, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Prisons and prisoners, Who Sentences | Permalink | Comments (6)

Tuesday, November 27, 2018

FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote

The Washington Post is reporting in this new article, headlined "Senate Republicans mull changes to controversial criminal justice bill," that there is talk of further gutting the few sentencing reform provisions in the latest version of the FIRST STEP Act and creating still further prison reform carve outs.  Here are the details:

Senate Republicans are actively discussing changes to a controversial overhaul of the criminal justice system in a bid to win more GOP support that could nonetheless shatter a delicate bipartisan compromise on one of President Trump’s top legislative priorities left for this year.

The changes being mulled, confirmed by senators and others familiar with the talks, reflect in part proposals put forward by the National Sheriffs’ Association, which is opposed to the legislation as written.  Though a slew of law enforcement groups already support the bill, getting more of them on board is almost certain to improve its prospects among Republicans.

One change that has been discussed privately is tightening the “safety valve” provision, which provides more discretion to judges when they issue sentences.  Though the most recent public draft of the bill would allow judges to take advantage of those “safety valves” in more types of cases, Sen. David Perdue (R-Ga.) said senators are talking about reducing the types of convictions that would qualify for the “safety valve” provision.  Perdue also said senators are considering narrowing the kinds of fentanyl-related crimes that would be eligible under the legislation, which broadly is meant to loosen some mandatory minimum sentences and help rehabilitate prisoners.

“I’m probably going to be supportive of it,” said Perdue, who was a vocal opponent of a more expansive version of the legislation two years ago. “It does some things that we’ve been talking about that Georgia and North Carolina and Texas have done, with good results.”

A provision that gets rid of the “stacking” regulation — which is used to add more penalties against those who commit a drug-related crime while possessing a gun, even if the firearm wasn’t used — is also ripe for potential changes to win over Senate Republicans.

The changes under negotiation reflect the messy, closed-door horse-trading that will only grow as Senate leaders begin gauging support for the bill this week, even if attempts to change the legislation are ultimately unsuccessful.  Senate Democrats, who believe they have already made significant concessions, aren’t eager for more changes that would push the bill further to the right, considering it already has Trump’s endorsement and appears it could easily pass the House.

“I’m aware of the discussions, but we have a strong commitment on both sides of the aisle, including the White House, that the bill is what it is,” Sen. Cory Booker (N.J.), one of the main Democratic authors of the bill, said Monday evening of the changes being discussed. “I believe we should all be standing pat and firm.”

The bill’s supporters — both Republicans and Democrats — are also rushing against the clock, scrambling to get the measure signed into law this year before Democrats gain control of the House.  The new majority, particularly the generation of lawmakers partly elected on a message of racial justice, could be more emboldened to push for more sweeping changes than the limited overhaul, upsetting the compromise.

Another change that has been floated privately is including additional categories of sex offenders in the group of inmates who would be ineligible for early release, according to one Senate official....

While the discussions continue, the ranks of publicly opposed senators are growing. Sen. Marco Rubio (R-Fla.) has been privately speaking with Sen. Mike Lee (R-Utah) and Sen. Tim Scott (R-S.C.) — two of his closest allies — but stressed Monday that while he is on board with the overhaul to the prison systems and recidivism programs, he is concerned about the proposed changes to sentencing laws. “Now that we’re getting to the guts of it, I need to have a better understanding,” Rubio said. But “as of now, I can’t support it, given my understanding of it.”

Trump, meanwhile, has not wavered from his public commitment to the First Step Act and overhauling the criminal justice system — the subject of a Monday roundtable in Mississippi that was sandwiched between two campaign rallies. After endorsing the bill with much fanfare at a White House ceremony this month, Trump again pushed Senate Majority Leader Mitch McConnell (R-Ky.) for a floor vote in a private phone call last Tuesday, according to people briefed on the conversation.

“Well, we’re talking to him, and we’re doing a count,” Trump said Monday in Mississippi of his discussions with McConnell. “We want to make sure that we have the votes because we don’t want to bring it if we don’t have the votes, but another thing we’re looking at right now is that we have more than enough. So at a certain point, we’ll have a talk. But we have the votes, and I’m sure that we’ll be voting soon.”

Especially in light of this new reporting, it is worth watching how Prez Trump talked up the FIRST STEP Act again at this Mississippi roundtable event Monday night, and also worth noting how VP Mike Pence and Senator Lindsay Graham also talked up the bill.  Because of how much Prez Trump seems to be leaning into this legislation, I now think it would be a big loss for him if there isn't a vote on the bill (and Prez Trump himself said at the roundtable event the bill could get 80 votes in the Senate).  So, based on all of this buzz, I am now thinking a Senate vote is going to happen, but that Senator Cotton and perhaps a few other hardliners will find various ways to continue watering down the bill up until a vote finally goes forward.

As I have said repeatedly in this space, any positive reform is better than no reform.  So I am continuing to hope we see a bill become law in the weeks ahead.  But I also hope everyone supporting of real reforms takes to heart that this bill will be, as it name connotes, just a small first step in a very long path toward needed federal criminal justice reforms.

Some of many prior related posts:

UPDATE: The White House has provided here the full transcript of "Remarks by President Trump at FIRST STEP Act Roundtable with Governor Bryant and Law Enforcement Leaders." They start substantively this way:

We’re here today to discuss a landmark prison reform bill called the FIRST STEP Act — so important.  This legislation will help former inmates reenter society as productive law-abiding citizens and it has tremendous support no matter where we go. Tremendous support.  Beyond anything I would’ve expected.

November 27, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Monday, November 26, 2018

Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward

Senator Tom Cotton continues to work with all his might to halt Congress from taking any reform steps via the FIRST STEP Act, and his latest efforts involve this new National Review commentary and what is reported here by Politico under the headline "Cotton wields sex offender report to tank prisons bill."  Here is how Senator Cotton himself gets started at NR:

It remains to be seen whether the lame-duck 115th Congress will debate a sweeping overhaul of our federal criminal-justice system before we adjourn for the year. You may have heard about the legislation at hand, the FIRST STEP Act. I oppose it. I urge my fellow conservatives to take the time to read and understand the bill before signing on in support of this flawed legislation.

The 103-page bill that was released the Friday before Thanksgiving has some good parts, and I don’t question the intentions of the bill’s proponents. But you may have noticed that they talk more about their intentions than about the consequences of the bill. As conservatives, we know that good intentions say little about actual consequences. And to paraphrase Thomas Sowell, intellectuals who generate ideas with good intentions rarely have to face the consequences of those ideas personally.

When proponents of the bill discuss the substance, they claim that “nothing in the FIRST STEP Act gives inmates early release.” Instead of early release, proponents say, it merely provides incentives for inmates to participate in programs. This is nothing but a euphemism. Let there be no doubt: If the bill is passed, thousands of federal offenders, including violent felons and sex offenders, will be released earlier than they would be under current law. Whatever word games the bill’s proponents use will make no difference to the future victims of these felons.

Here is what Politico is reporting:

GOP Sen. Tom Cotton is locked in an awkward fight with fellow Republicans over their push to change federal prison sentencing guidelines. And now he has a new attack line intended to make his rivals squirm: Warnings that sex offenders could get off easy.

A new Justice Department analysis — conducted at Cotton‘s request — found that the Senate’s bipartisan sentencing and prison reform bill could make people convicted of some sex crimes eligible for early release. And though President Donald Trump supports the bill, Cotton says the DOJ confirmation underpins his argument that convicts of certain sex-related crimes could accrue credits making them eligible for supervised release or “pre-release” to a halfway house.

While GOP leaders are beginning to assess the prospects of the bill on the Senate floor, the Arkansas Republican argues that the latest version of the bill has been rushed and contains significant flaws and is hoping to sway undecided Republicans to join him. Cotton and Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah) have been battling over the specifics of the bill since it was released in mid-November, exactly the type of intraparty firefight Senate Majority Leader Mitch McConnell (R-Ky.) has been hoping to avoid.

The argument over the bill's treatment of sex offenders took center stage on Monday, drawing the latest public shots between the warring Republican senators. “Now that the Department of Justice has confirmed that the Senate FIRST STEP Act offers early release to multiple categories of sex offenders in several provisions of the bill, Congress should fix these problems instead of ramming this bill through. There is no such thing as a ‘low-risk violent sex offender’ who deserves earlier release than under current law," Cotton said in an emailed statement.

A spokesman for Lee defended the legislation in response to the DOJ analysis on Monday and accused the bill’s opponents of “spreading fake news” about the bill. “Just because a federal offense is not on the specific list of ineligible offenses doesn’t mean inmates who committed non-specified offense will earn early release. All inmates must first pass a DOJ risk assessment before they can even begin earning good time credits. And then they must secure certification from their warden that they are not a threat to safety before they can be released,” said Conn Carroll, a Lee spokesman. Carroll added that Lee is open to revising the bill if it turns opponents into supporters: “If adding to the list of specifically forbidden offenses would get some senators to yes, we would love to help them do that on the Senate floor.”

Their colleagues are watching closely. Sen. Marco Rubio (R-Fla.) said that a Cotton op-ed panning the bill made a "compelling argument" and indicated his vote is in play. A number of Trump's allies, from Grassley to Sen. Rand Paul (R-Ky.) to Lindsey Graham (R-S.C.) are behind the bill, but in the Senate even a small band of opposed senators can make a floor debate stretch out for a week — all while lobbing attacks at fellow Republicans for being soft on crime.

"I'd like to get it through but we still have a few problems that we ought to work out," said Sen. Orrin Hatch (R-Utah). "I'm for doing it if we can. We have a shot at it but we're going to have a lot of cooperation."

Senior Senate Republicans said on Monday they could not predict what McConnell will do. The president has lobbied McConnell to bring up the bill, but the GOP leader has told Trump the Senate's schedule is crowded over the next month. McConnell has emphasized that funding the federal government by the Dec. 7 deadline and finishing a farm bill are his top priorities. And the House would probably have to vote on whatever the Senate passes on criminal justice reform, and ousted House Republicans may want to head home as soon as the funding bill is finished.

November 26, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Thursday, November 22, 2018

So very thankful this year that so very many voices on the political right are actively advocating for criminal justice reforms

As regular readers know, I have long thought and advocated that all sorts of conservatives could and should robustly embrace all sorts of criminal justice reform given avowed commitments to personal liberty, small government, human dignity and the rule of law.  Almost exactly a decade ago in this 2008 Harvard Law & Policy Online article, published right after Prez Obama was elected to his first term, I urged progressives to start "aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration."  I further suggested:

Progressives, rather than categorically resisting calls for smaller government, should encourage modern conservatives and libertarians to turn their concerns and energies toward improving America’s criminal justice systems.  Areas where harsh criminal laws appear to be driven by government efforts to hyper-regulate often intangible harms, such as extreme mandatory sentencing statutes related to drug crimes and gun possession, seem especially likely settings for a convergence of views and new alliances for advocacy efforts.  Specific, issue-based advocacy may allow progressives to forge coalitions with unexpected allies in order to work against some of the most unjust modern sentencing laws and policies.

The kinds of coalitions I was hoping to see started to emerge (albeit too slowly for my taste) during the Obama Administration, and now they appear to be on full display as discussion of federal reforms finds expression in the debate over the FIRST STEP Act.  And so today I find myself especially thankful that it is now so much easier to find right-leaning organization and voices calling for the passage of federal reforms rather than resisting such reform.  Here, for example, is just a quick round up of just some recent voices on the political right actively advocating for the FIRST STEP Act:

From Politico, "Religious right to start pressure campaign around criminal justice reform"

From ALEC Action, "Members of the U.S. Senate: Please Support the FIRST STEP Act (S.3649)"

From John-Michael Seibler & Joe Luppino-Esposito at The Heritage Foundation, "How This Criminal Justice Reform Bill Could Make Our Neighborhoods Safer"

Via local NPR, "Kelley Paul Presses McConnell To Move Criminal Justice Reform Forward"

From Michelle Malkin in the National Review, "It’s Time to Pass the First Step Act: It's pro-cop, pro-borders, and tough on injustice."

From Pastor Paula White-Cain in the Washington Examiner, "Prison reform bill represents what’s beautiful about America"

Relatedly, Senator Charles Grassley has this notable new posting titled "Diverse Group of Organizations Endorse Bipartisan First Step Act" that highlights "a letter to Majority and Minority leaders in both the Senate and House of Representatives, [in which] 42 organizations, including faith-based groups and conservative think tanks, called on Congress to pass the comprehensive criminal justice reform package before the end of the year."

November 22, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Monday, November 19, 2018

Another round of news and notes from the front lines of the debate over the FIRST STEP Act

I am not sure I will need to do regular round-ups of stories and commentary surrounding the prospects of the FIRST STEP Act. But I am sure that there have been lots of notable developments and discussion since I did this last round-up of stories just a few days ago. So, from various sources and various authors (including Jared Kushner):

November 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Friday, November 16, 2018

Senate Majority Leader McConnell tells Prez Trump that FIRST STEP Act will not get done this year

According to this new New York Times piece, "Senator Mitch McConnell told President Trump in a private meeting on Thursday that there is not likely to be enough time to bring a bipartisan criminal justice bill up for a vote this year, regardless of the support it has in the Senate and the White House, according to people familiar with the meeting." here is more:

Mr. McConnell, who as majority leader controls the Senate floor, delivered the news in a previously scheduled meeting at the White House convened to discuss the chamber’s legislative agenda for the remaining weeks of the term.

Lawmakers from both parties have been working furiously to build support for the compromise legislation that would begin to reverse some of the tough-on-crime federal policies of the 1980s and 1990s that incarcerated African-American offenders at much higher rates than white offenders.

Mr. Trump enthusiastically endorsed the proposal this week, and Speaker Paul D. Ryan, Republican of Wisconsin, pledged to move it across the finish line in the House “this term.” But Mr. McConnell’s conclusion could all but foreclose the possibility that Congress will vote on the bill this year.

Publicly, Mr. McConnell has avoided putting his thumb on the scale for or against the legislation. He told reporters on Wednesday that if proponents secured the support of at least 60 senators, he would be willing to push the bill forward, but cautioned that he would have to “see how it stacks up against our other priorities going into the end of our session.”

Congress must also come to an agreement on how to fund a handful of federal departments, including Homeland Security, and resolve an impasse over a major farm bill, among other smaller issues. Don Stewart, a spokesman for Mr. McConnell, reiterated those points in a statement on Friday, adding, “The support for, and length of time needed to move the new bill is not knowable at this moment.”

But Mr. McConnell told the president that the bill would most likely eat up about 10 days on the Senate floor — time that he did not have between now and the scheduled end of the legislative session on Dec. 14, according to the people familiar with the remarks, who were granted anonymity to describe the private meeting. They were not connected to Mr. McConnell. If the bill had enough support, Mr. McConnell said, he would be willing to bring it up next year, after the new Congress is seated.

Supporters of the legislation, which includes anti-recidivism programs, and the expansion of early release credits and sentencing changes, worry that Mr. McConnell is being a less-than-neutral arbiter. They believe that if consideration slips into January, when Democrats who favor more expansive sentencing changes take control of the House, the current compromise could collapse....

At the Senate Republicans’ weekly caucus luncheon at the Capitol, Mr. McConnell acknowledged that the changes had influential supporters who had worked hard on the issue, but also invited two of its chief critics, Senators Tom Cotton of Arkansas and John Kennedy of Louisiana, to deliver remarks, two Republican congressional officials said.

Mr. Cotton, who has been perhaps the loudest critic of the bill’s sentencing changes in the Senate, urged colleagues to slow down the process, saying that the bill’s impact and implications were too expensive to push through without hearings, according to another official familiar with his remarks. He stressed opposition by some law enforcement groups and warned that a draft version of the bill he had seen would lead to the immediate release of thousands of felons onto the streets.

Senator Mike Lee, a Utah Republican who helped write the legislation, pushed back against Mr. Cotton’s characterization. So did Senator Charles E. Grassley, the Iowa Republican who is chairman of the Judiciary Committee and led the compromise effort. Mr. Grassley said that Mr. Cotton’s remarks made him sound like “some sort of pinko commie.”...

The delay in bringing up the legislation described to Mr. Trump is not the first time that proponents of changes in the sentencing and prison systems have bumped up against Mr. McConnell. A similar coalition of lawmakers and outside groups made a higher-profile and more expansive attempt to overhaul the criminal justice system during the final years of the Obama administration, and had support from Mr. Ryan and other Republicans. But Mr. McConnell did not allow a vote on the bill before the 2016 elections, worried about sowing divisions among Republicans.

This is quite disappointing, but not surprising, and I am now inclined to fear that no significant form of federal criminal justice reform will be completed as long as Senator McConnell is the Senate's majority leader.

November 16, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (5)

Wednesday, November 14, 2018

Prez Trump about to "make an announcement on H.R. 5682, the 'First Step Act'" ... which was a strong endorsement

According to this @POTUS_Schedule tweet, we are this afternoon to hear directly from Prez Trump on criminal justice reform: "4:30PM - Roosevelt Room - Announcement regarding H. R. 5682, the 'First Step Act'."  Lots of media are reporting he will endorse reform and push for a bill to be passed ASAP. I am about to watch the Live Stream here or here or here.

UPDATEPrez Trump announces his support for First Step Act, emphasizing its bipartisan nature and law enforcement's support, as well as asserting it would "roll back some of the Clinton crime law."  Trump concludes his remarks by saying, "I'll be waiting with a pen.  We will have done something that hasn't been done in many, many years, and it is the right thing to do."

MORE: Here is new item from the White House under the headlined "President Donald J. Trump Calls on Congress to Pass the FIRST STEP Act." Here are excerpts, with a few especially notable passages emphasized by me:

CALLING FOR BIPARTISAN ACTION: President Donald J. Trump is calling on Congress to take action and support the bipartisan prison reform legislation, the FIRST STEP Act. 

  • President Trump supports the FIRST STEP Act, which will help improve our Nation’s criminal justice system.
  • The FIRST STEP Act enjoys widespread support across the political spectrum.
    • Many of the reforms included in this legislation passed the House in an overwhelming, bipartisan vote of 360–59 in May 2018.
    • Republicans and Democrats in the Senate worked with the White House to craft a bipartisan sentencing reform compromise, which has been added to the legislation.
    • So far, seven major police organizations, more than 2,700 faith and evangelical leaders, and hundreds of conservative organizations and leaders support this legislation.

MAKING AMERICA SAFER AND FAIRER: The FIRST STEP Act will reform America’s prisons to make our communities safer and our justice system fairer.

  • Nearly all incarcerated Americans will one day leave prison, and the goal of this legislation is to make sure they do not return.
    • The FIRST STEP Act uses a targeted approach toward a specific population of Federal prisoners who will eventually be released.
  • The FIRST STEP Act will promote prisoner participation in vocational training, educational coursework, or faith-based programs, and in turn help them successfully reenter society.
    • Prisoners will be able to earn credits that reduce the amount of time spent in prison.
    • As a result, prisoners will gain job skills, drug treatment, and education that prepare them to reenter American communities as productive members of society.
    • The legislation also seeks to place Federal inmates closer to their communities in order to facilitate family visitation.
  • This is a true first step in creating a fairer justice system by reforming mandatory minimums, which have created racially discriminatory outcomes and increased overcrowding and costs.
    • The legislation reduces the enhanced penalties for certain non-violent repeat drug offenders and eliminates the three-strike mandatory life provision.
    • Certain nonviolent offenders will be able to petition courts for a review of their sentence, which can be reduced only after the judge reviews all circumstances, including public safety, criminal history, and the nature of the offense.

IMPROVING THE PRISON SYSTEM: Taking steps to better prepare inmates for reentry into our society and communities will help reduce recidivism.

  • We can improve society for all by better equipping prisoners being released for successful reintegration into society.
  • Today, one in three American adults has some type of criminal record and more than two million Americans are in prisons, including 181,000 in Federal prison.
    • More than 95% of these prisoners will eventually leave prison and face the challenge of restarting and reintegrating their lives.
  • Our prisons can do much more to prepare inmates for release, addressing the fact that roughly 77% of State inmates and 38% of Federal inmates are rearrested within five years of release. 

November 14, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (5)

Tuesday, November 13, 2018

Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage

This new CNN article, headlined "President Trump to announce support for criminal justice overhaul proposal," reports on encouraging news regarding efforts to get major federal criminal justice reform enacted in coming weeks. Here are the details:

President Donald Trump is expected to throw his support behind bipartisan criminal justice legislation during an event at the White House on Wednesday, two sources close to the process said.

Trump is scheduled to announce on Wednesday that he is supporting the latest iteration of the First Step Act, a bill that his son-in-law and senior adviser, Jared Kushner, has been working to craft and build support for alongside a bipartisan group of senators, the sources said.  The President will be joined by supporters of the legislation during the White House event, the sources said.

Supporters of the measure expect that Trump's explicit backing will help propel the prison and sentencing overhaul bill through Congress.  The President has wavered on whether to throw his support behind the bill in recent months, but the sources said he was swayed to back the bill on Tuesday after meeting with Kushner.

Trump's support came after several law enforcement associations announced their backing for the legislation.  The National District Attorneys Association, which represents 2,500 district attorneys and 40,000 assistant district attorneys, became the latest law enforcement organization to support the bill, according to a letter the group's president addressed to Trump....

The prosecutors' association's support for the legislation came on the heels of backing from several other law enforcement organizations, including the Fraternal Order of Police, International Association of Chiefs of Police, Law Enforcement Leaders to Reduce Crime and Incarceration and the National Organization of Black Law Enforcement Executives, which also penned a letter of support to Trump.

The Major Cities Chiefs Association and Major County Sheriffs of America also withdrew their opposition to the legislation, writing in a letter to Kushner dated Tuesday that they "endorse the objectives of the First Step Act" and the legislation "strengthens how Federal prisoners may be integrated into the community and set on a path to live positive and productive lives."  Less than two weeks ago, the groups wrote to Kushner to say they could not back the bill.

Opposition from since-ousted Attorney General Jeff Sessions and Republican Sen. Tom Cotton of Arkansas, in particular, served as key stumbling blocks to advancing the legislation, with both touting opposition within law enforcement circles -- an argument that is quickly fading as groups back the proposal.  Sources close to the process said the support from law enforcement associations is key to advancing the measure and securing the President's full-throated support.

Proponents of the bill made several changes to it to win backing from law enforcement groups, including stiffer sentencing guidelines for fentanyl-related offenses and a compromise provision to modestly expand the definition of a serious violent crime.

Now the question is whether enough Democrats will rally to support the compromise package or hold out for a more ambitious overhaul of the nation's sentencing laws. Sen. Cory Booker of New Jersey, who had announced his opposition to a previous version of the bill because he felt it did not go far enough, said Tuesday that he is still looking to get more changes to the bill.

Though I am not going to count any sentencing reform chickens until they are hatched and have been signed into law, I am inclined to start predicting that we are on the verge of a remarkable federal criminal justice reform achievement that will be the most consequential statutory reform in nearly 35 years.  (I am also inclined to recall pieces from late 2016, like the one blogged here, that astutely suggested federal criminal justice reform might still be a real possibility in the Trump era.)  I am not quite yet ready to start patting a whole lot of folks on the back, but I am getting close to wanting to start celebrating the culmination of five years of very hard work by lots of folks inside and outside the Beltway.  Fingers crossed.

Some of many prior related posts:

UPDATE: A few other recent press reports reinforce my sense and concern that nothing here is a done deal yet:

From the Washington Post, "Trump receptive to compromise criminal justice overhaul backed by Kushner"

From The Hill, "Criminal justice reform faces a make-or-break moment"

November 13, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (0)

Senator Mike Lee makes the "conservative case for criminal justice reform"

Utah Senator Mike Lee has this new opinion piece at Fox News headlined "A conservative case for criminal justice reform." Here are excerpts:

“Government’s first duty,” President Reagan said in 1981 and President Trump recently tweeted, “is to protect the people, not run their lives.”  The safety of law-abiding citizens has always been a core principle of conservatism.  And it is why we need to take this opportunity to pass real criminal-justice reform now.

Although violent crime rose during the final two years of President Obama’s time in office, it decreased during the first year of Trump’s presidency.  We need to keep that momentum going. And criminal justice reform can help us do that in two ways.

First, commonsense sentencing reform can increase trust in the criminal-justice system, thus making it easier for law enforcement personnel to police communities.  Right now, federal mandatory-minimum sentences for many drug offenses can lead to outcomes that strike many people as unfair, and thus undermine the public’s faith in our justice system....

When the public sees judges handing out unfair punishments, it undermines trust in the entire justice system.  This makes it harder for police to do their job.  As Ronald Reagan explained when he was Governor of California, “[w]ithout respect for the law, the best laws cannot be effective.  Without respect for law enforcement, laws cannot be carried out.  We must have respect, not only for the law, but also for the many who dedicate their lives to the protection of society through enforcement of the law.”  Fairer sentencing laws will increase respect for police, especially in many communities where such respect is currently lacking.

Second, excessive prison sentences break apart families and weaken communities -- the building blocks of American civil society.  Incarceration is tough on any marriage.  Few can survive the loss of marital love and financial strain that happens when a spouse is behind bars.  And the longer the sentence, the more likely a marriage will end in divorce.  One 2011 study found that each additional year behind bars increases the likelihood of divorce by 32 percent.  This has real costs for the families -- and especially the children -- of offenders.

Incarceration is an essential law enforcement tool that protects communities and keeps families safe.  But it also inflicts costs on communities and families, and at some point the negative impact of incarceration on marriage and family can become too stark to ignore.  And for non-violent offenders, especially those with no prior criminal history, excessive sentences often do far more harm than good.

We now have a rare opportunity to pass criminal justice reform that will help restore trust in law enforcement and protect American families.  In May of this year, the House of Representatives passed the First Step Act, which includes some much-needed prison reform measures that would reduce recidivism.  Unfortunately, it did not include any reforms to address manifestly unjust sentences for non-violent offenders.

The Senate now has a chance to add some of those much-needed prison reform measures into the bill.  We won’t get everything we want, but we have an incredible opportunity to reach a compromise that includes meaningful, commonsense reforms to our nation’s mandatory-minimum drug sentencing laws.

It is unlikely we will get another opportunity to enact meaningful reform anytime soon.  President Obama failed to accomplish criminal-justice reform during his eight years in office.  But President Trump and the Republican Congress can get the job done now.  It would be another big step toward making America great again.

November 13, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)