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)

Saturday, November 10, 2018

Fraternal Order of Police now supporting FIRST STEP Act with some sentencing reform provisions

Roughly nine months ago, the President of the Fraternal Order of Police (FOP) wrote this three-page letter to the President of the United States expressing opposition to the Sentencing Reform and Corrections Act.  But yesterday, in what seems to me to be a important and encouraging development, the FOP released this one-page statement headed "FOP Partners with President Trump on Criminal Justice Reform."

The new FOP release should be read in full, as it indicates support for adding modest sentencing reforms to the FIRST STEP Act bill that was passed by the House earlier this year.  In addition, the sub-heading of the press release says "Revised and amended First Step Act to be introduced next week." This strongly suggests that "Beltway insiders" are prepared and planning to try to get big federal statutory sentencing reform done in a matter of weeks.

November 10, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Thursday, November 08, 2018

Interesting talk of prison reform amidst talk of Chris Christie as possible Attorney General replacement

This new CNN article includes lots of interest for federal criminal justice reform fans under the headline "Trump considering Christie, Bondi for attorney general." Here are excerpts:

President Donald Trump is considering former New Jersey Gov. Chris Christie and Florida Attorney General Pam Bondi to replace fired Attorney General Jeff Sessions, sources familiar with the matter said.

Trump fired Sessions on Wednesday without immediately naming a replacement, instead installing Sessions' chief of staff Matthew Whitaker as acting attorney general. Both Christie and Bondi are longtime political allies of the President's and were initially considered contenders for the Justice Department perch during the transition.

Given Trump's longstanding frustrations with Sessions, other potential contenders have cropped up in Trump-friendly circles in recent months, including Whitaker, Solicitor General Noel Francisco, Rep. John Ratcliffe, R-Texas, former Judge John Michael Luttig, Judge Edith Jones, former Judge Janice Rogers Brown, retiring Rep. Trey Gowdy, R-South Carolina and Sen. Lindsey Graham, R-South Carolina.

If nominated, Christie, a former US attorney, could face similar calls to the ones Sessions faced to recuse himself from special counsel Robert Mueller's investigation given his role as a prominent 2016 campaign surrogate for Trump. But unlike Sessions, there is no indication he had contacts with Russian officials during the 2016 campaign or transition.

Christie attended a previously scheduled law enforcement roundtable on prison reform efforts at the White House on Thursday morning, an administration official and source familiar with the meeting said.

Christie then met privately with the President's son-in-law and senior adviser Jared Kushner to further discuss prison reform issues, an administration official who works on the prison reform effort said.

Kushner and Christie have long been reported to have bad blood stemming from Christie's role as US attorney in prosecuting Kushner's father on 18 counts of tax evasion, witness tampering and illegal campaign donations.

But the administration official said Kushner and Christie have a good relationship. "They've been working really closely on this for months," the administration official said. "Despite the fact that people have suggested otherwise, the two have a really close and good working relationship, particularly as it relates to prison reform."...

Prison reform has been a key agenda item for Kushner and Christie would likely be an important ally in that effort were he to be tapped for attorney general.

While Christie has been a friend of Trump's since before the 2016 campaign, the former New Jersey governor has been critical of Trump's handling of the Mueller investigation and instead praised Mueller amid the President's public criticism of the special counsel. "I've told him (Trump) many times that there's no way to make an investigation like this shorter, but there's lots of ways to make it longer, and he's executed on a number of those ways to make it longer," Christie said in May at the University of Chicago, while calling Mueller "an honest ... hard-working guy."

Christie has also rejected arguments by Trump's personal legal team that the President cannot obstruct justice, calling it "an outrageous claim" on ABC this summer.

November 8, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

Brennan Center wasting no time advocating for sentencing reforms after election and ouster of AG Jeff Sessions

The folks over at the Brennan Center already have two short pieces up making the case for Congress to move forward with federal sentencing reforms and for the Senate Judiciary Committee to seek to ensure the next Attorney General cares about criminal justice reform.  Here are links to the pieces with some excerpts:

"Sentencing Reform Should Be a Top Post-Election Priority for Congress

As Congress prepares to enter a lame-duck session following yesterday’s midterm elections, it has a rare opportunity to pass bipartisan legislation that will help reform our criminal justice system and end mass incarceration. And sentencing reform must be included in any meaningful effort to reduce the number of people entering the federal prison system....

Criminal justice reform is a rare point of bipartisan consensus in today’s polarized climate. In fact, 71 percent of Americans surveyed – including a majority of Trump voters – agree that it’s important to reduce the country’s prison population. And there’s substantial support from key members of Congress – both Republican and Democrat – for comprehensive reform. In fact, Senate Majority Leader Mitch McConnell has signaled he would call a vote after the midterm election if more than 60 senators support the bill.

With that momentum, one of Congress’s first agenda items for this year’s “lame-duck” session should be to pass legislation that will help reduce mass incarceration. And any successful effort will start with sentencing reform.

"With Sessions Gone, the GOP Can Show It Cares About Criminal Justice Reform"

Sen. Chuck Grassley (R-Iowa) is a reliable and trusted ally for criminal justice reform advocates, both right and left.  So when President Trump nominated Jeff Sessions to lead the Justice Department, it came as something of a surprise that Grassley, as chair of the Senate Judiciary Committee, cleared the deck for him, ensuring a quick and easy Senate confirmation.

If Grassley later came to regret that — and there’s reason to believe he did — today offers a chance to correct it.  Against the backdrop of our looming, slow-burning constitutional crisis, Grassley can and should make support for criminal justice reform a litmus test for the next attorney general.  He has that power.  Now is the time to use it....

[I]f Trump is serious about criminal justice reform, he should simply refuse to nominate someone who doesn’t support sentencing reform.  And whether or not he follows through, Grassley should refuse to confirm anyone who will oppose or sabotage similar reform efforts.

Realistically, though, the best chance for guaranteeing a supportive attorney general rests with Grassley and other supporters of criminal justice reform on the Judiciary Committee, like Mike Lee (R-Utah), Dick Durbin (D-Ill.), and even, sometimes, Lindsey Graham (R-S.C.).  By demanding an attorney general who will back their words with action — and faithfully implement rather than sabotage any reform package they pass — Grassley and his committee could effect a major reset, giving the country a chance to move on from at least one aspect of the last two years.

November 8, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Wednesday, November 07, 2018

Jeff Sessions is no longer Attorney General of the United States

In a development that bodes well for federal criminal justice reform and marijuana reform, Attorney General Jeff Sessions has submitted his resignation in letter to President Donald Trump. Prez Trump has two tweets in response:

We are pleased to announce that Matthew G. Whitaker, Chief of Staff to Attorney General Jeff Sessions at the Department of Justice, will become our new Acting Attorney General of the United States. He will serve our Country well....

....We thank Attorney General Jeff Sessions for his service, and wish him well! A permanent replacement will be nominated at a later date.

UPDATE: This Fox News piece includes the former Attorney General's resignation letter and details about how this came to pass:

Sources told Fox News that Trump did not call Sessions, but rather White House Chief of Staff John Kelly informed him of the president’s request for him to resign.  Sessions is expected to leave the Justice Department by the end of the day and Whitaker is expected to be sworn in Wednesday.

In his resignation letter, Sessions said was “honored to serve” as attorney general and said his Justice Department “restored and upheld the rule of law -- a glorious tradition that each of us has a responsibility to safeguard.”

November 7, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (4)

Monday, November 05, 2018

Could the FIRST STEP Act, with sentencing reforms added, get through Congress in just a matter of weeks?

The question in the title of this post is prompted by this new Washington Examiner article headlined "Prison reform bill to include sentencing, setting up post-election fight." Here are excerpts:

Criminal justice reform advocates say sentencing reform provisions will be included in legislation unveiled shortly after midterm elections Tuesday, triggering an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill.

The First Step Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms, at the behest of Republican opponents.  Reform advocates expect rapid legislative action after a pre-election pause, and believe there will be enough votes to pass the expanded legislative package.

Two people close to the process tell the Washington Examiner that a bipartisan group of senators has agreed to attach a set of sentencing reforms to the House-passed bill.

The additions include shortening federal three-strike drug penalties from life in prison to 25 years, reducing two-strike drug penalties from 20 years to 15, allowing a firearm sentencing enhancement to run concurrently with the underlying penalty, and allowing retroactive sentencing for crack cocaine cases judged under tougher historical laws.

“We are very excited about it. We think that the four reforms that are in the bill are ones that make sense,” said Mark Holden, the general counsel of Koch Industries and an influential conservative reform advocate. “From what we understand, there are enough votes — plenty — for it to happen,” Holden said. Holden said it’s his understanding that the sentencing language will also expand a “safety valve” option for judges to use discretion.

Both Holden and another person close to the legislation drafting process, who asked not to be identified, said there is wording to reduce concern about illegal immigrants benefiting from sentencing reform. The second person said the provision is being finalized, but there will be “a clarification saying this does not change existing statutes relating to undocumented individuals in the federal system.”

A spokeswoman for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, an influential advocate of the reforms, did not respond to requests for comment.

Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill.  Last month, Trump said in a Fox News interview that Attorney General Jeff Sessions’ longstanding opposition to reforms did not represent him. "If he doesn't [support reform], then he gets overruled by me.  Because I make the decision, he doesn't," Trump said Oct. 11....

It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell, R-Ky., has promised a whip count after the election, and advocates believe it will make it clear with overwhelming support....

Last month, clemency advocates including Amy Povah of CAN-DO Clemency and Alveda King, the anti-abortion evangelical leader, hosted a panel at a Women for Trump event at Trump International Hotel in Washington.  Povah hopes that Congress passes the legislation, and that Trump will supplement the reform with generous use of his constitutional pardon powers. Last month, Trump said "a lot of people" are jailed for year for "no reason" and that he was actively looking to release some.

Povah said clemency would be particularly appreciated around the holiday, including Thanksgiving, when presidents pardon turkeys, disillusioning people who are looking for one. “I think Trump said it best, he said that he’s going to release a lot of people and I think a lot of people in prison took that seriously and literally," Povah said.  "He sent a lot of hope in that humans may be in line, maybe for the first time included in the Thanksgiving pardon."...

Trump has spoken repeatedly about his desire to release inmates from prison after commuting the life sentence of drug crime convict Alice Johnson in June at the request of celebrity Kim Kardashian West.  At a second Trump-Kardashian meeting, the TV star urged freedom for Chris Young, who was arrested at 22 and sentenced to life in prison for drug dealing. She brought with her former federal judge Kevin Sharp, who had imposed the sentence due to rigid federal laws he argued made little sense.  On his own, Trump mentioned another inmate, Matthew Charles, who returned to prison this year after a court found his drug sentence was reduced in error.

Some of many prior related posts:

UPDATE: I just saw that Law360 also has a new article on this front under the headline "Hard Decisions Loom In Lame-Duck Push For Sentencing Reform."  This lengthy piece starts with this sentence: "Over the next two months, Republican lawmakers have a chance to pass the most comprehensive criminal justice reforms in a generation, a combination of prison and sentencing reforms that stand to improve the lives of more than 180,000 federal inmates."

November 5, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Clemency and Pardons, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)

Tuesday, October 30, 2018

US Sentencing Commission releases FY 2018 third quarter (repackaged) sentencing data

US Sentencing Commission has now released here its "3rd Quarter ... Preliminary Fiscal Year 2018 Data."  As previously noted in this post when the USSC released data on offenders sentenced during the first half of fiscal year 2018, the Commission has altered how it accounts and reports sentencing data.  This new data run explains "the Commission is again updating the way it presents quarterly data. In this report, all analyses that involve a comparison of the position of the sentence imposed to the guideline range that applied in the case are presented in a new way. Sentences are now grouped into two broad categories: Sentences Under the Guidelines Manual and Variances."  As I see it, this means within-guideline and "traditional departure" sentences are grouped together, while all Booker-allowed variances are broken out distinctly.

As I have said before, nothwithstanding this repackaging aside, we can still look at the "within-guideline" number on Tables 8 and 8A for direct comparisons on this front between the first three quarters of of FY 2018 and all federal sentencing data from the last full year of the Obama Administration (in this FY 2016 data report).  Doing so shows that the within-guideline sentencing rate has increased from 48.6% in FY 2016 up to 50.5% in the first three-quarters of FY 2018.  Without a more intricate and sophisticated analysis controlling for caseloads and other factors, this upward movement in within-guideline sentences does not alone provide conclusive evidence that "Trump era" changes in prosecutorial policies and practices is having a direct impact on federal sentencing outcomes.  But these new data continue to be suggestive of trends to watch as more cases more through the pipeline and as new federal prosecutors and judges are impacted by new commands and advocacy from Main Justice.

Prior related post:

October 30, 2018 in Booker in district courts, Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

FAMM laments problems in federal prisons while urging Prez Trump to new head for Bureau of Prisons

As detailed in this press release, FAMM President Kevin Ring has now sent this letter to President Trump urging him to appoint a director of for the US Bureau of Prisons ASAP.  Here is how this latter gets started:

I write today to urge you to appoint a reform-minded individual to serve as Director of the U.S. Bureau of Prisons (BOP) as soon as possible. The BOP has been without a permanent director since General Mark Inch’s resignation from the post in May of this year. The void in consistent leadership has caused and exacerbated numerous problems throughout the federal prison system, for both staff and those in custody.

FAMM is in contact with over 35,000 federal prisoners and their family members on a regular basis.  Through our correspondence, we have learned of continual problems plaguing the BOP’s programs and operations.  We hear frequently from prisoners and their families about the lack of adequate medical care or medical attention when requested. We continue to hear about lastminute reductions in halfway house time and continued underutilization of home confinement for low-risk individuals.  We have seen the BOP routinely neglect its role in identifying eligible candidates for the federal compassionate release program, which would allow the courts to consider resentencing terminally ill or elderly prisoners.  We have also learned of several BOP facilities instituting questionable and problematic policies regarding family visits and limiting prisoner access to mail from their loved ones as well as access to books.  Because education and strong family ties are proven to help in the rehabilitation of prisoners, these policies pose a significant threat to successful rehabilitation and should be reversed under new leadership.

October 30, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, October 29, 2018

Is it a given that the end of Jeff Sessions' time as Attorney General is drawing nigh?

The question in the title of this post is prompted by this new AP piece headlined "Some Sessions Allies Hope White House Allows Graceful Exit."  Here are excerpts:

Sensing that Jeff Sessions’ days at the Justice Department may be numbered, some of his supporters want the White House to allow for a graceful exit for an attorney general they believe has dutifully carried out the administration’s agenda even while enduring the president’s fury.

It seems unlikely that efforts to soften a possible dismissal after the Nov. 6 midterm election would find sympathy in the White House, where President Donald Trump’s rage remains unabated over the attorney general’s recusal from the Russia investigation. A hand-picked successor could theoretically oversee the rest of the probe in place of Deputy Attorney General Rod Rosenstein.

But some supporters say they hope that if and when Sessions is replaced, his record as senator and attorney general will be recognized and not overwhelmed by Trump’s attacks, or that the administration will at least respect the Justice Department by guaranteeing a smooth transition.

A scenario advocated by at least one Sessions ally, former Cincinnati Mayor Ken Blackwell, would allow him to remain on the job until January and be permitted to resign on his own then rather than be fired immediately after the midterms. Blackwell said allies have made their case to administration officials that Sessions has successfully pushed the president’s core priorities, including on illegal immigration, and deserves some sort of recognition from the White House that “he has more than a passing grade.”

“It is not unknown, from anyone from John Kelly to Jared Kushner, that there is a base of support,” said Blackwell, referring to Trump’s chief of staff and son-in-law. “A portion of that base is ready to continue advocacy for his service.”

Newt Gingrich, a former Republican House speaker who is close to the White House and calls himself a longtime “admirer” of Sessions, said he would be open to serving as an intermediary if asked between the White House and Sessions supporters. “He deserves a graceful exit. His career deserves a strong conclusion,” said Gingrich, who called Sessions “a strong conservative who has done strong work at the Department of Justice.”...

The president, though mindful that Sessions remains popular among much of his base, would seem unlikely to sign off on a plan to extend Sessions’ time in office, according to a White House official and an outside adviser familiar with Trump’s thinking but not authorized to publicly discuss private conversations. Trump has repeatedly had to be talked out of firing Sessions before November and has signaled to allies that he wants to make sweeping changes at the Justice Department once the midterms have concluded.

He told The Associated Press this month that he was “not thrilled” with Sessions but made no commitment to dismiss him. If Trump were to wait, it would not be out of deference to Sessions, but rather because the White House would be managing the fallout from the midterms and preparing for a pair of presidential overseas trips in November, according to the official....

Smith said one way Trump could enable a respectful exit would be for the White House to craft a smooth succession plan and allow Sessions to be part of the process.

Ed Meese, a Reagan administration attorney general and Sessions friend, said he wasn’t thinking about Sessions’ departure because “I don’t want to see him fired at all.”

Because AG Sessions seems to be a significant barrier to significant federal criminal justice reforms, I am hopeful his days at the Department of Justice are numbered. But I do not expect him to seek a graceful exits because I do not think he wants to exit.  But especially with talk of a prison and sentencing reform bill being possibly hashed out and passed during the lame-duck Congress of the coming months, I am especially hopeful (but not optimistic) that it is only a matter of weeks before AG Sessions out of his current job.

A few prior related posts:

October 29, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Wednesday, October 17, 2018

Justice Department touts record-breaking increases in federal criminal charges

This afternoon I received notice of this new DOJ press release titled "Justice Department Smashes Records for Violent Crime, Gun Crime, Illegal Immigration Prosecutions, Increases Drug and White Collar Prosecutions." Here is the text of the release (with emphasis in original):

Under the leadership of Attorney General Jeff Sessions, the Department of Justice charged the largest number of violent crime and firearm defendants in its history in Fiscal Year (FY) 2018.

“President Donald Trump is a law-and-order President — and this is a law-and-order administration,” said Attorney General Jeff Sessions.  “The Department of Justice is breaking law enforcement records and doing so by significant margins.   When I took office as Attorney General, I ordered federal prosecutors and agents to take illegal guns off of our streets, to prosecute crimes aggressively, to protect our nation’s borders, and to target white collar fraud.  With support from our state and local partners, our federal prosecutors and agents have delivered — and I am grateful to them and the fabulous state and local officers who worked so hard to make these achievements possible.  And we are seeing results.  Violent crime and homicides, which jumped in 2015 and 2016, both dropped in 2017 and will drop again in 2018.  There can be no doubt that good law enforcement policies can make our communities safer.”

According to data from the Executive Office of United States Attorneys (EOUSA), the number of defendants charged with criminal felony offenses increased by nearly 15 percent from more than 71,200 defendants in FY 2017 to more than 81,800 in FY 2018. 

In FY 2018, the Justice Department charged the largest number of violent crime defendants since EOUSA started to track this category more than 25 years ago (more than 16,800) — surpassing by nearly 15 percent the previous record set just last year.

In FY 2018, the Justice Department charged more than 15,300 defendants with federal firearms offenses, which is 17 percent more than the previous record.

In FY 2018, over 23,400 defendants were charged with felony illegal re-entry, an increase of more than 38 percent from FY 2017.

In FY 2018, over 23,600 defendants were charged with drug-related offenses, an increase of more than six percent from FY 2017.  

Also in FY 2018, the Justice Department increased white-collar prosecutions by more than three percent, charging more than 6,500 defendants.

Finally, in FY 2018, more than 68,400 defendants were charged with misdemeanor illegal entry.  This is the highest number of such defendants charged since EOUSA started to track this category and an almost 86 percent increase from the previous year.  This total is also more than 4 percent higher than the previous record of over 65,500 defendants set in FY 2013.

October 17, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Sunday, October 14, 2018

Alice Marie Johnson urges Prez Trump to free "thousands more" federal prisoners like her

Trump-just-granted-clemency-to-alice-johnson-afte-2-758-1528302960-6_dblbigThe now-famous, drug-dealer-serving-LWOP grandmother Alice Marie Johnson, who was granted clemency three months ago by Prez Donald Trump, has authored this lengthy new Fox News opinion piece headlined "President Trump freed me from prison – I’m glad he wants to give other nonviolent offenders their freedom."  Here are excerpts:

On June 6, I walked out of prison as a free woman after serving almost 22 years of my life sentence on a first-time nonviolent drug conviction, thanks to a decision by President Trump to commute my sentence to time served.  I was thrilled to hear the president say this week that he is looking to give early release to additional nonviolent prisoners like me....

I can never thank the president enough.  He heard my voice, gave life to my hope and promise to my future.  I am a 63-year-old grandmother who just wants to live in peace and enjoy my family.  There is zero chance I will ever break the law again....

Many other nonviolent offenders in federal prisons today are — like me — no danger to society, and I look forward to having President Trump and members of his administration examine their cases.  Many of these men and women have spent long years in prison and deserve to receive clemency or a commutation of their sentences from the president.

Freeing these offenders early would be an act of justice and mercy, as granting me my freedom was.  And early release would save taxpayers the cost of feeding and housing these people for years after they have paid their debt to society.

When President Obama began granting clemency to nonviolent offenders near the end of his presidency, he gave hope to thousands of people like me.  By 2016, I was 20 years into my life sentence.

My path to prison began at a time in my life when I faced some desperate choices.  I made a terrible decision to participate in a drug conspiracy — a decision I very much regret.

But during my two decades in prison, I accomplished an extraordinary rehabilitation — writing plays, volunteering in the prison hospice, becoming an ordained minister and mentoring to young women in prison.  By 2016 I was a new woman living a new life, even if it was a life I thought was destined to be lived only behind bars.

President Obama’s clemency initiative gave me hope.  I had been told not to hope, not to dream, because I would never be set free. As his presidency came to a close, President Obama began releasing hundreds of other nonviolent offenders, and I became sure I would be released as well.  My prison warden, captain, case manager and vocational training instructor all recommended I be granted clemency.

Unfortunately, I was left behind.  President Obama left office without giving me the chance to start a new life.  And I learned that putting your hope in one man is a mistake, because when that hope dies, you think all your hope has to die. When I received the denial letter from the Office of the Pardon Attorney, I was devastated.  I don’t know why my request was denied, because no explanation was given.  But that decision left me so disappointed.

My petition met all the criteria for clemency.  I had reformed my life in prison and I felt it should have been clear to anyone that I would contribute to society if I was released.  But President Obama left, President Trump arrived and I was told again to give up hope.  I didn’t.

I kept fighting for myself because I know that hearts can change, and no matter what administration is in power, you have to be willing to come to the table, sit down and talk about whether you can find common ground.

Thankfully, Jared Kushner and others working for President Trump have worked to keep clemency and criminal justice reform alive.  They can see that not every person who makes a mistake deserves for that mistake to define the rest of their life. They know that hope is important, but it must also be turned into meaningful change....

I did not leave prison bitter.  I love America and believe in the inherent goodness of the American people and the possibility of redemption.  Now it is President Trump who can make history if he takes the opportunity to go further than any president before him by giving second chances to thousands of people who just need someone to hear them.

The president has a power that the Constitution grants to him alone to both show mercy and deliver justice for people who were given excessively long sentences for crimes involving no violence.  The people who deserve to be freed are those who have long since recognized their mistakes and who have rehabilitated themselves during their time in prison.

I will never forget what President Trump did for me. He changed my life and gave me the opportunity to fulfill my potential, and now he has the chance to do the same for thousands more.

I find it interesting and encouraging that Ms. Johnson says there are "thousands more" federal prisoners like her and that she calls upon Prez Trump to "make history" by going "further than any president before" in the use of his clemency powers. To surpass Prez Obama here, Prez Trump would have to grant more than 1700 clemencies, and I know Ms. Johnson is not the only one who would like to see this happen.

October 14, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, October 13, 2018

Some prosecutors and some conservatives push back on momentum for federal criminal justice reforms

As highlighted via recent posts here and here, momentum seems to be picking up again for the passage of a version of the federal FIRST STEP Act that would reform federal prison practices and tweak federal sentencing rules.  Perhaps prompted by these realities, a new poll and new letter has emerged to push back on reform efforts. 

The poll comes from ORC International and was commissioned by the Foundation for Safeguarding Justice, a group which represents the National Association of Assistant U.S. Attorneys.  This press release reports on the heart of the poll:

A new survey of American adults, commissioned by the Foundation for Safeguarding Justice (FSJ), confirms that Americans overwhelmingly oppose sentencing and prison and “reforms” that would reduce federal criminal penalties for drug traffickers and allow the early release of prisoners to “home confinement.” Three out of four Americans surveyed (74 percent) said that they oppose proposals that reduce penalties for criminals involved in the trafficking of heroin, fentanyl, and similar drugs....

Public opposition to criminal leniency is deep across the American population and holds true regardless of race, gender, or party affiliation, the FSJ survey results (detailed below) show. The survey results represent an objective barometer of public opposition to criminal leniency for drug traffickers, in sharp contrast to the skewed results of a recent Kentucky poll touted by criminal leniency advocates....

The survey, conducted from September 13-16, 2018, interviewed 1,004 American adults, and was administered by ORC International, a nationwide polling firm. Full study results and methodology are available here.

Employing similar rhetoric and expressing similar concerns(and citing this poll), an assortment of conservative leaders have sent this letter to Prez Trump urging him to oppose FIRST STEP Act. Here is part of the letter:

Now, a leniency-industrial complex is urging you to support a bill that would reduce the sentences for federal drug traffickers, and allow large numbers of those same traffickers to “serve” their sentences outside prison in “home confinement.”

Mr. President, don’t do it. Trust your instincts. America seems, to many of us, to be plagued with different applications of justice. The public is losing faith in the rule of law and reforms are needed. But, here [we present] just four of many reasons why you should oppose this emerging new bill....

But this bill is not prison reform — it’s prison release. It’s not sentencing reform — it’s sentencing reductions. Contrary to what jailbreak supporters tell you, these policies are far from popular.  Proponents inadvertently acknowledge how unpopular their proposals are by disguising what they’re doing with buzzwords and abstract concepts.

Given how momentum for federal reform has built, slowly but surely, over much of 2018, I would be surprised if this new poll and letter significantly changes how important political players' are dancing with the FIRST STEP Act. But they both show that seemingly ever-growing consensus in support of federal reforms does not include everyone, and they also help highlight why even relatively modest reforms like the FIRST STEP Act can be a challenging political lift.

October 13, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

Friday, September 21, 2018

Why is the Sessions' DOJ now taking death penalty off the table for Donald Fell after so much cost and agony for victims?

The question in the title of this post emerges from this notable federal capital news, headlined "Accused killer Donald Fell to take plea deal, avoid death penalty," emerging from Vermont in a long-running multiple murder case.  Here are the basics:

Nearly 20 years after he allegedly kidnapped and murdered a Vermont grandmother, accused killer Donald Fell is changing his plea and will avoid the death penalty.

Terry King, 53, was arriving for work at the Rutland Price Chopper in 2000 when police say Donald Fell and Robert Lee carjacked her, drove her to New York and killed her on the side of the road.

Fell was convicted and sentenced to death in 2005.  But his federal conviction was overturned due to juror misconduct and a new death penalty trial was set to begin.

But now there is a plea deal that takes the death penalty off the table. Court documents show Fell will plead guilty to four federal crimes, including carjacking and kidnapping with death resulting. In exchange, he will spend the rest of his life in prison without the possibility of parole.  A judge must still accept the agreement.

Fell's alleged accomplice, Robert Lee, never stood trial. He killed himself in prison. Fell and Lee were accused of two other murders that night. Police say before kidnapping Terry King, the men murdered Fell's mother, Debra, and her friend, Charles Conway in Rutland. But those killings took a back seat to King's murder because the feds were charging the men in that case since they brought King across state lines. The feds also had the death penalty to bargain with. The state of Vermont does not have a death penalty.

As highlighted via prior posts below, Fell's legal team has been making an aggressive case against his continued capital prosecution.  But I sincerely doubt federal prosecutors found any of their claims compelling or really worried that federal judges would.  So I am inclined to assume that federal prosecutors just concluded, presumably with the blessing of Attorney General Jeff Sessions, that throwing more federal taxpayer dollars after the pursuit of federal death sentence was just not a good investment of limited resources (perhaps especially because the feds have not executed anyone in over 15 years).

That all said, I still find this decision especially striking because the victims here are vocally against this plea resolution.  This local article, headlined "Victim's family says justice not served with Fell plea deal," explains the family's reaction while also suggesting federal prosecutors had to work had to talk them into being content with this resolution:

The family of Terry King says justice is not being served. That's their response to news a plea deal has been reached with King's accused killer, Donald Fell. The deal means Fell will avoid the death penalty. "I mean they beat her to death. Beat her to death while she prayed for her life. And yet he is allowed to live? What justice is that?" demanded Barbara Tuttle, Terry King's sister.

Tuttle is talking about Donald Fell, the man accused of the brutal murder of Terry King. The North Clarendon grandmother was kidnapped on her way to work back in 2000. "It is a total embarrassment for the U.S. government as far as I am concerned, a total embarrassment," Tuttle said. And King's sister says she speaks for the entire family....

"If you are going to have the death penalty, then enforce it. If you are not going to use it, then why is the law there? Why all these appeals over and over and over again? Eighteen years of this," Tuttle said.

Tuttle says her family has known a plea deal was in the works for several weeks. Under the deal, Fell will plead guilty to four federal crimes including carjacking and kidnapping with death resulting.  Tuttle says her family was convinced by prosecutors it was the best way to go to avoid another lengthy trial and appeal process.  "I would just as soon go to court all over again if I knew that he would come out with the death penalty.  And it was actually be enforced and we wouldn't have to go through 18 more years of appeals," she said. "It is ridiculous."

Tuttle says at least she won't have to keep being reminded of the case once Fell is sentenced to life without parole. She hopes if any good can come of the story, maybe it can lead to changes in the system. "They are always talking about criminal justice reform. Let me tell you, this is a perfect example of why our system is broken," she said....

It is important to note that a federal judge still needs to approve this deal. The case goes back to court Sept. 28.

I doubt the family member speaking here would be content with abolition of the death penalty as a way to fix this part of a broken capital criminal justice system. But I find it so telling that the "tough-and-tougher" federal administration that Prez Trump advocates and that AG Sessions seeks to implement ultimately gave up here on what should not be a uniquely hard capital prosecution.  Another notable data point to support the view that the long-running litigation war against the death penalty is ever closer to a complete victory.

Prior related posts:

September 21, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, September 11, 2018

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

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

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

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

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

September 11, 2018 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Thursday, August 30, 2018

Is Jeff Sessions' opposition to modest sentencing reforms going to cost him his job as Attorney General?

The question in the title of this post — which I would answer "I hope so" — is prompted by this Politico article fully headlined "Trump personally lobbying GOP senators to flip on Sessions: Opposition to the attorney general's firing, long seen as a red line by lawmakers, has softened in recent days."  Here is an excerpt from the piece of note to sentencing fans:

The president, who has spent a year and a half fulminating against his attorney general in public, finally got traction on Capitol Hill thanks to the growing frustration of a handful of GOP senators with their former colleague – most importantly, Judiciary Chairman Chuck Grassley and South Carolina’s Lindsey Graham, who have been irritated by Sessions’ opposition to a criminal justice reform bill they support, according to interviews with more than a half-dozen congressional GOP aides, Trump advisers, and Republicans close to the White House....

Over the past week, Trump has belittled Sessions in conversations with several Republican senators, including Graham, and the idea of dismissing him no longer provokes the political anxiety it once did.

Along with Graham and Grassley, Sessions has also alienated presidential son-in-law and adviser Jared Kushner, the chief White House proponent of the Graham-Grassley approach on criminal justice reform, as well as his wife, Ivanka Trump.

After a meeting last week that included Trump, Sessions and Kushner, the White House and McConnell delayed action on the issue until after the midterms. Grassley and other backers of the effort left the meeting hopeful for progress at that point. But Sessions’ office put out a sharply negative statement that suggested the president had come out against any sentencing reform in the legislation.

Holly Harris, a longtime Kentucky GOP strategist pushing for a reform deal from the helm of the nonprofit Justice Action Network, blasted Sessions for an “absolute mischaracterization” of the White Houses stance on the issue. “DOJ is making so many enemies in so many places now that I actually think it’s going to help our legislation. I think they’ve gone way too far,” Harris said, describing Sessions’ actions on the issue as “off the rails.”

The criminal justice issue has been an ongoing sore point between Sessions and Grassley. The House passed a narrower bill in May that doesn’t include changes to sentencing requirements — something Sessions strongly opposes but that Grassley and others, including Graham, have insisted on adding.

When Sessions spoke out against a broader criminal justice bill that the Judiciary Committee passed in February, Grassley publicly dressed him down. “Look at how hard it was for me to get him through committee in the United States Senate,” the senator said then. “And look at, when the president was going to fire him, I went to his defense.”

No longer. Though Grassley had previously said he could not schedule hearing time to confirm a new attorney general, he changed his tune last week. “I do have time for hearings on nominees that the president might send up here that I didn’t have last year,” Grassley said last week.

Prior related post:

UPDATE: This new Bloomberg piece suggests AG Sessions will be in his job at least for the next few month: "Trump Says He’ll Keep Sessions Until November Despite ‘Illegal’ Probe"

August 30, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Tuesday, August 28, 2018

Deputy AG Rosenstein suggests more federal prosecutions are key to battling opioid crisis ... but that really hasn't been working

Deputy Attorney General Rod Rosenstein has this notable New York Times opinion piece under the headlined "Fight Drug Abuse, Don’t Subsidize It."  Here are is how it starts and ends:

Almost 64,000 Americans died of drug overdoses in 2016, a shocking 54 percent increase since 2012.  Dangerous opioids such as heroin and fentanyl contributed to two-thirds of the deaths.  This killer knows no geographic, socioeconomic or age limits.  It strikes city dwellers and Midwestern farmers, Hollywood celebrities and homeless veterans, grandparents and teenagers.

Remarkably, law enforcement efforts actually declined while deaths were on the rise.  Federal drug prosecutions fell by 23 percent from 2011 to 2016, and the median drug sentence doled out to drug traffickers decreased by 20 percent from 2009 to 2016.  The Trump administration is working to reverse those trends.  Prosecutions of drug traffickers are on the rise, and the surge in overdose deaths is slowing.

Unfortunately, some cities and counties are considering sponsoring centers where drug users can abuse dangerous illegal drugs with government help.  Advocates euphemistically call them “safe injection sites,” but they are very dangerous and would only make the opioid crisis worse.

These centers would be modeled on those operating in Canada and some European countries. They invite visitors to use heroin, fentanyl and other deadly drugs without fear of arrest.  The policy is “B.Y.O.D.” — bring your own drugs — but staff members help people abuse drugs by providing needles and stand ready to resuscitate addicts who overdose....

That is not the way to end the opioid crisis. Americans struggling with addiction need treatment and reduced access to deadly drugs.  They do not need a taxpayer-sponsored haven to shoot up.

To end the drug crisis, we should educate everyone about the dangers of opioid drugs, help drug users get treatment and aggressively prosecute criminals who supply the deadly poison.  Under the leadership of President Trump and Attorney General Jeff Sessions, the Department of Justice is delivering results.  Many federal, state and local agencies are working with us to combat opioid addiction.  Cities and counties should join us and fight drug abuse, not subsidize it.

I am disinclined to take up here the debate over safe injection sites, which could merit a volume.  I will be content here to point to this recent report from Europe indicating "evaluation studies have found an overall positive impact on the communities where these facilities are located," as well as this new meta-research indicating that "Medically Supervised Injection Centres ... had a significant favourable result in relation to drug-related crime and a significant unfavourable result in relation to problematic heroin use or injection." At Vox, German Lopez covers these research matters in this recent article headlined "Safe injection sites were thought to reduce drug overdoses. The research isn’t so clear."

I am inclined to take issue with how DAG Rosenstein seems to make a case for more federal prosecutions to address overdose deaths and the opioid crisis.  Though he laments that "federal drug prosecutions fell by 23 percent from 2011 to 2016, and the median drug sentence doled out to drug traffickers decreased by 20 percent from 2009 to 2016," DAG Rosenstein leaves out the fact that declines in marijuana and crack prosecutions and the impact of fairer crack guidelines account for these realities (see USSC quick facts data on marijuana and crack).  Meanwhile, as this USSC report explains, in "fiscal year 2016, there were 2,763 heroin trafficking offenders [sentenced in federal court, meaning the] number of heroin offenders has increased by 29.4% since fiscal year 2012."  In other words, though overall federal drug prosecutions have gone down through 2016, federal prosecution of heroin has been going up significantly this period when overdose deaths from dangerous opioids were also surging. 

In addition, there is a basis to question the statement that prosecutions of drug traffickers are now on the rise, as this data from TRAC suggests that FY 2017 and 2018 has seen record low numbers of federal drug trafficking prosecutions.  And to assert that the "surge in overdose deaths is slowing" is not all that reassuring given the new preliminary report of 72,000 overdose deaths in 2017 compared to 64,000 in 2016 (though I suppose it is correct to say the "surge" is slowing given that this 8,000-person increase in deaths is less than the 11,000 increase from 2015 to 2016).  Especially at a time of crisis, I sincerely want to believe that, as DAG Rosenstein asserts, the "Department of Justice is delivering results."  But the data I can find does not seem to support this claim.

August 28, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences | Permalink | Comments (2)

Saturday, August 25, 2018

Is it too early to start a new US Attorney General short list (or wish list)?

I think it is extremely unlikely that Prez Donald Trump will fire Attorney General Jeff Sessions before the mid-term elections in November, which are still more than 10 weeks away.  Nevertheless, as detailed in this Bloomberg piece headlined "Key Republicans Give Trump a Path to Fire Sessions After the Election," some key Senators are seemingly trying to make it easier for Prez Trump to consider replacing AG Sessions after the election:

Donald Trump, who’s long threatened to fire Attorney General Jeff Sessions, may have received a crucial go-ahead signal from two Republican senators with a key condition attached: wait until after the November elections.

Confronted with the criminal convictions this week of his former campaign chairman Paul Manafort and his former personal attorney Michael Cohen, the president has only reaffirmed his open resentment that Sessions recused himself from what’s become a wide-ranging investigation led by Special Counsel Robert Mueller.

The pivotal message on Thursday came from Senator Lindsey Graham of South Carolina, who oscillates between criticizing many of the president’s policies and defending a president who sometimes invites him to go golfing at a Trump-branded resort.  “The president’s entitled to an attorney general he has faith in, somebody that’s qualified for the job, and I think there will come a time, sooner rather than later, where it will be time to have a new face and a fresh voice at the Department of Justice,” Graham told reporters.

But he added that forcing out Sessions before November “would create havoc” with efforts to confirm Trump’s Supreme Court nominee Brett Kavanaugh, as well as with the midterm elections on Nov. 6 that will determine whether Republicans keep control of Congress.

Senator Chuck Grassley of Iowa, the Judiciary Committee’s chairman, also changed his position on Thursday, saying in an interview that he’d be able to make time for hearings for a new attorney general after saying in the past that the panel was too busy to tackle that explosive possibility.

It wasn’t clear, though, whether the senators’ comments were intended to endorse a move on Sessions later, or to coax Trump out of taking precipitous action now.  And some senior Republican senators strongly rejected Graham’s seemingly impromptu fire-him-later idea.

Notably, Prez Trump this morning tweeted out Senator Graham's staement this way:

@LindseyGrahamSC “Every President deserves an Attorney General they have confidence in. I believe every President has a right to their Cabinet, these are not lifetime appointments. You serve at the pleasure of the President.”

I still think, for now, it is mostly a parlor game to imagine who Prez Trump might seek to replace AG Sessions.  But this game surely shapes my own rooting interest as a supporter of federal criminal justice and marijuana reforms.  If, say, Senator Tom Cotton were to be Prez Trump's pick to replace AG Sessions, I would be content with the status quo.  But if, say, Senator Cory Gardner were to be of interest to the President, then I would start rooting for AG Sessions to start packing up his office.  Of course, a perhaps more plausible pick might be someone like Senator Ted Cruz (especially if he were to lose his re-elction bid in November, which seems unlikely but possible).  And one has to wonder whether anyone could be confirmed by a divided Senate either in a lame-duck period or soon thereafter. 

Just for fun, I would be interested in hearing readers' creative possibilities for the next Attorney General, and I will start the game by throwing out two names just for kicks: Brian Sandoval and Dabney Friedrich.  I have no idea if either would have any interest in a position that is challenging even under the best circumstances, but I think both have just the right combination of experience, independence and "confirm-ability" to make them plausible possibilities.

Please play along, dear readers, in the AG short-list game.

August 25, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (6)

Friday, August 24, 2018

Will Prez Trump deliver on all the clemency "tidal wave" of hopefulness he has engendered?

The question in the title of this post is prompted by this notable recent article in the Washington Examiner headlined "MLK niece urges clemency 'tidal wave' after giving White House list of names." Here are excerpts: 

Evangelical leader Alveda King says she’s optimistic that President Trump will unleash a “good tidal wave” of clemency after she delivered to the White House a list of nearly 100 prisoners who she wants Trump to release.

The niece of Martin Luther King Jr. participated in an Aug. 1 discussion between Trump and African-American pastors and left behind her list of names with the office of the presidential adviser and son-in-law Jared Kushner.

King, a supporter of Trump and leader of the anti-abortion group Civil Rights for the Unborn, declined to provide a copy of her list, citing the potential sensitivity of clemency decisions, and would not discuss specific details about her interactions at the White House. “I did not, on purpose, count or remember the names, I just submitted the list,” King told the Washington Examiner. “I’m trying to get a good tidal wave, a positive tidal wave, a tidal wave to maybe change things and make things better.”

King wants to see a "jubilee" or mass awarding of clemency and said there are misperceptions about what’s happening behind the scenes. She said it’s her understanding that the White House, through Kushner’s office, is processing recommendations in an orderly manner.

Trump has used his constitutional clemency powers nine times — releasing four inmates, two with pardons, and issuing post-release pardons to five others — almost always at the urging of celebrities or political allies, giving the impression of haphazard grants based on influencer requests.

But King said she believes the White House has in place a process for reviewing a deluge of recommendations following the June release of Alice Johnson, a drug conspiracy convict who Trump released at the urging of reality TV star Kim Kardashian. Trump unleashed tremendous enthusiasm behind bars by releasing Johnson, and then declaring: "There will be more pardons. ... I want to do people that are unfairly treated like an Alice."

There were signs of increasing internal work on clemency applications at about the time Johnson was released. Days earlier, White House counsel Don McGahn called a right-leaning policy advocate and asked him to assemble lists of worthy clemency aspirants. The outside contact gathered names from the CAN-DO Foundation and Families Against Mandatory Minimums and hand-delivered the lists to McGahn and Kushner.

Some policy advocates have urged Trump to create an in-house clemency commission that would supplement the work of the Justice Department’s Office of the Pardon Attorney, which clemency advocates view as ineffectual and biased in favor of prosecutors. But so far, no official in-house review process has been announced....

“It’s not disorder, it’s a very orderly process. … I'm a person who believes in order, and I believe they have a good system in place," King said. "I didn’t try to go in and put a list in the president’s hands. ... You can get it to Jared Kushner’s office, and they will look at it."

Angela Stanton, a former prison inmate, author, and King’s goddaughter, took the lead in assembling King's list. She said that inmates who already served more than 10 years in prison were given priority. “Everybody deserves to get out and everybody deserves a second chance,” Stanton said. “The majority of these people decided to go to trial, and if they had not gone to trial, they would have been home.”

A couple names on the list already were submitted to the White House, such as Michelle West, 25 years into a life sentence for drug-related crimes, and paralyzed inmate Michael Pelletier, 12 years into a life sentence for smuggling Canadian marijuana into Maine.  Others were profiled in a New York University report featuring inmates left behind by an Obama administration push to shorten drug sentences, including Lavonne Roach, a mother of three who is 20 years into a 30-year methamphetamine sentence; Chad Marks, who is more than a decade into a 40-year sentence for drug dealing; David Barren, 10 years into a 30-year cocaine sentence; and Craig Cesal, who since 2003 has been serving a life sentence for marijuana crimes.

The report referenced above is this 36-page document produced by the Center on the Administration of Criminal Law at NYU Law School under the title "The Mercy Lottery: A Review of the Obama Administration’s Clemency Initiative."  I am very pleased to see that report being used to generate a list of good clemency candidate, though I sense that the Trump White House has heard from lots of different folks in lots of different ways about lots of different clemency possibilities.  That reality leads me back to the question in the title of this post: because there is no shortage of good clemency candidates in the federal system, the only thing really holding back a clemency "tidal wave" is the person sitting in the Oval Office.  

August 24, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, August 23, 2018

Prez Trump reportedly has decided he will not support federal criminal justice bill before mid-term election

This new Axios piece has a depressing headline: "Scoop: Trump won't endorse criminal justice bill before midterms."  Here are all the reported details:

President Trump has stymied a plan to push prison and sentencing reform before the midterms, according to an administration source with direct knowledge. In a White House meeting on Thursday afternoon, Trump decided that the compromise package that Jared Kushner, Sen. Chuck Grassley and others have been advocating for is too politically difficult to endorse before the elections, the source told Axios.

Why it matters: Without the president backing the bill, which might have reduced some mandatory minimum sentences for certain drug crimes and sent around 4,000 prisoners home, it has zero chance of getting a vote before the midterms. Senate leadership was already reluctant to bring it up for a vote. The collapse of the bill is a win for opponents of the package, including law-and-order hardliners Sen. Tom Cotton and Attorney General Jeff Sessions.

As noted in this prior post, Politico has already been reporting that the Senate was not going to vote on any criminal justice reform bill until after the election.  But I suppose it was possible Prez Trump might want to push forward; indeed, some commentators, as noted here and here, have suggested it would be politically wise for Trump to campaign for reform in the run-up to the election.  Ultimately, this decision by Trump provides even more basis to worry that it will continue to be a heavy slog to get sentencing reform as well as prison reform to the President's desk.

Some of many prior recent related posts:

UPDATE: This new Washington Post article reports on today's White House meeting on criminal justice reform efforts under the headline "GOP senator: Trump backs tenets of compromise on criminal-justice reform." The report suggests that both proponents and opponents of reform think Prez Trump is on their side.  The article seems to confirm that reform is not going to get done before the mid-term election.  

August 23, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Prez Trump advocating for a whole new kind of sentencing reform: he says cooperation deals "almost ought to be outlawed. It’s not fair."

This New York Post piece, headlined "Trump says flipping should be ‘outlawed’ after Cohen plea deal," reports on some notable new comments about the operation of the criminal justice system by Prez Donald Trump this morning.  Here are the details:

President Trump said his former lawyer Michael Cohen “lied” to get a “better deal” with federal prosecutors to reduce his jail time — and suggested that “flipping” should be outlawed.

“You get 10 years in jail, but if you say bad things about somebody in other words, make up stories if you don’t know.  Make up.  They just make up lies. I’ve seen it many times,” the president told “Fox & Friends” in an interview that aired Thursday.

“For 30, 40 years I’ve been watching flippers.  Everything’s wonderful and then they get 10 years in jail and they — they flip on whoever the next highest one is, or as high as you can go,” he said about Cohen, who pleaded to eight felony counts in Manhattan federal court on Tuesday.

“It almost ought to be outlawed. It’s not fair,” Trump continued.

Cohen was facing 65 years behind bars on the charges, but is expected to get a reduced sentence because of the plea deal. Trump said that “in all fairness” to Cohen, “most people are going to do that.”  The president also tried to distance himself from Cohen, who worked for more than 10 years for Trump and was known as a confidant and “fixer” who once said he’d take a “bullet” for Trump.

“He was a lawyer for me, one of many,” the president said.  “You know, they always say, ‘the lawyer,’ and then they like to add ‘the fixer.’” Well, I don’t know if he was a ‘fixer.’ I don’t know where that term came from,” Trump said in the interview.  “But he’s been a lawyer for me. Didn’t do big deals, did small deals. Not somebody that was with me that much.”

He said he would see Cohen “sometimes” but on big deals Trump said “outside lawyers” and “inside lawyers” would take part. “You know, they make it sound like I didn’t live with — without him. I understood Michael Cohen very well. He — well, it turned out he wasn’t a very good lawyer, frankly.”

Two of the charges Cohen pleaded to involved hush-money payments made before the 2016 election to two women who alleged they had affairs with Trump between 2006 and 2007, a possible violation of campaign finance laws. Cohen paid $130,000 to former porn star Stormy Daniels, whose real name is Stephanie Clifford, and arranged for $150,000 to be paid to the parent company of the National Enquirer to keep Karen McDougal’s story under wraps.

Trump said he didn’t know about the payments until “later on” even though Cohen has a tape of him and the president discussing them. “Later on I knew. Later on. What he did — and they weren’t taken out of the campaign finance, that’s the big thing. That’s a much bigger thing,” Trump said. “Did they come out of the campaign? They didn’t come out of the campaign, they came from me.”

Prez Trump is entirely right that cooperation deals can often result in false testimony and can produce considerable unfairness.  In fact, Prez Trump's staff should have urged him to cite Alexandra Natapoff's great book, "Snitching: Criminal Informants and the Erosion of American Justice," in conjunction with his complaints.  Here is a bit of the description of that book:

Although it is nearly invisible to the public, criminal snitching has invaded the American legal system in risky and sometimes shocking ways. Snitching is the first comprehensive analysis of this powerful and problematic practice, in which informant deals generate unreliable evidence, allow criminals to escape punishment, endanger the innocent, compromise the integrity of police work, and exacerbate tension between police and poor urban residents.  Driven by dozens of real-life stories and debacles, the book exposes the social destruction that snitching can cause in high-crime African American neighborhoods, and how using criminal informants renders our entire penal process more secretive and less fair. Natapoff also uncovers the farreaching legal, political, and cultural significance of snitching: from the war on drugs to hip hop music, from the FBI’s mishandling of its murderous mafia informants to the new surge in white collar and terrorism informing.

I doubt that Prez Trump is serious about advocating for the prohibition of cooperation deals, and I am certain few in Congress or elsewhere would even consider seriously the reforms proposed in Natapoff's book.  But if Prez Trump really cares about the unfairness and other problems that can be created by cooperation deals, there is a whole lot he could and should do right away.  First and foremost, he should express opposition to all mandatory minimum sentencing provisions (or at least suppose reforms like the Justice Safety Valve Act) because the threat of a significant mandatory minimum prison term often creates the most extreme pressure to deal and cooperate.  Second and on-going, he could and should consider focusing at least part of his (supposed) interest in broad use of clemency powers to those persons seemingly most unfairly convicted and sentenced based on questionable evidence coming from cooperators.

UPDATE: Alexandra Natapoff has this new post reacting to the President's comments, and here are her insights:

The irony is that Trump is attacking snitching for its greatest strength: it enables law enforcement to investigate and prosecute the wealthy, the powerful, and the politically insulated.  Think of the Enron prosecution, or the dismantling of the mafia, neither of which could have happened without cooperation deals.  Also ironically, Trump is criticizing informant use in its least problematic incarnation. When Trump's "many friends" become defendants and informants, they will be well represented and informed about their rights and options, while their cooperation deals will be recorded, vetted, and publicly scrutinized.  Most informants, and most defendants faced with snitch testimony, will get none of these protections. It is precisely here in the white collar and high profile political context that cooperation is best regulated, most accountable and transparent, and thus least problematic.

To be sure, there are many reasons to agree that snitching "should almost be illegal."  It leads to wrongful convictions; it tolerates the crimes committed by informants; it coerces the most vulnerable and rewards the most culpable. It promotes government secrecy, rule breaking, and sometimes corruption.  But its potential to hold powerful people accountable is its best feature.

August 23, 2018 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (4)

Sunday, August 19, 2018

Could enhanced FIRST STEP Act get more than 90 votes in the Senate if even brought up for a vote?

The question in the title of this post is prompted by this Hill piece from late Friday headlined "Sentencing reform deal heats up, pitting Trump against reliable allies." Here are excerpts (with emphasis added):

Negotiations on a criminal justice reform bill are pitting President Trump against some of his closest allies on Capitol Hill.

Sen. Tom Cotton (R-Ark.) sent a public warning shot to the White House this week, writing in a Wall Street Journal op-ed that Trump should not support a “jailbreak” by reducing mandatory minimum sentences. “That foolish approach is not criminal justice reform. … [It would] undercut President Trump’s campaign promise to restore law and order,” Cotton wrote.

Besides Cotton, other reliable allies of the White House, including Senate Majority Whip John Cornyn (R-Texas), are opposing the administration’s approach, which would combine a House-passed prison reform bill with changes to sentencing and mandatory minimums that have wide, bipartisan support in the Senate.

Supporters say completing the bill would give the administration a needed win heading into November's midterm elections. Cotton argues it would make Trump and the GOP look weak on crime.

White House officials and supporters of a deal have been talking with Republican holdouts to try to convince them to back the proposed compromise, which they say would add roughly four sentencing reform provisions into the House bill, which currently focuses on recidivism and not sentencing laws. The pending agreement is expected to add into the House bill lower mandatory minimum sentences for nonviolent drug convictions and more exceptions for judges on applying mandatory minimums. It would also let judges avoid doubling up on convictions for drug offenders facing simultaneous charges, and retroactively apply the 2010 Fair Sentencing Act, which is aimed at reducing the disparity between cocaine- and crack-related offenses.

A senior White House official said they had received largely positive feedback and have 30 to 32 locked down “yes” votes among Republican senators. The official offered hope that the number of GOP supporters could eventually grow as many as 40 to 46. “We're hopeful that we'll be able to bring everybody together to get this to a place where we have ... most of the Republicans ready to vote for it,” the official said...

Supporters are moving forward and trying to build support within the GOP conference, signaling they view Cotton as a surmountable outlier. “I view it like the handful of people who are trying to obstruct are kind of giving it their best shot and, again, at the end of the day, I think facts usually overcome scare tactics,” the senior White House official said.

If Cotton’s op-ed was meant to build opposition to the potential deal within the Senate Republican Conference, officials suggested it appeared to have backfired. The senior White House official said that nearly a dozen Republican senators had reached out in wake of the Wall Street Journal article to say they didn’t agree with Cotton. A second White House official confirmed the outreach.

But opposition from a small, but vocal, group of critics has been a years-long roadblock for criminal justice reform in the Senate, where GOP leadership has been reluctant to put a spotlight on intra-caucus fights.

In addition to Cotton, Sen. David Perdue (R-Ga.), Sen. Orrin Hatch (R-Utah) and then-Sen. Jeff Sessions (R-Ala.) threatened to do everything within their power to block a 2015 criminal justice reform bill, which had the support of the White House. Hatch has since come on board with criminal justice legislation, and Sessions is now attorney general. Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) has warned him to “stay out” of the negotiations....

Republicans won’t be able to pass a criminal justice deal on their own. A separate Senate bill, spearheaded by Grassley and Durbin, has the support of 32 senators, including Democrats like Sens. Kamala Harris (Calif.) and Cory Booker (N.J.). The White House is hoping electoral politics won’t get in the way of them supporting the pending agreement. “[If] people vote against it, I think it would just be really bad vote for them because this bill does a lot of good things,” the senior White House official said of potential Democratic opposition....

Trump held an event on prison reform last week, and at a White House meeting earlier this month signaled support for criminal justice reform. The senior White House official said that while negotiations are ongoing and no final decision has been made, “there is a very strong chance” the president will support the final package.

“[That] means that a lot of the people will want to be with him on it,” the official said. “And again, they know that the president's very tough on crime and if he's supporting something then they know it's not going to be a soft on crime bill.”

But Cornyn appeared skeptical that Trump, despite his deep popularity with GOP voters, would be able to change the dynamics in the Senate. “I don’t think people are going to change their strongly held positions on the sentencing reform part,” he said. “So my goal is to achieve what’s possible."

Riffing on the quote from Senator Cornyn, it seems quite possible that 45 Senators or more from both parties will be inclined to support whatever version of the FIRST STEP Act gets to the floor of the Senate with the President's support.  As I said in a recent post here, and as this article confirms, the problem now is not getting enough votes in support of reform but rather on getting congressional leadership to settle on the particulars of a bill and finally allowing a vote on the Senate floor.

As the GOP heads into a challenging mid-term election, I think and hope that many members would see the FIRST STEP Act as an opportunity to demonstrate bipartisan leadership. And maybe, as he headline of this interesting Bustle article suggest, Prez Trump could have another one of his kids involved in advocacy efforts here: "Tiffany Trump's Georgetown Work Shows She Has An Interest In Criminal Justice Reform Too."  

Some of many prior recent related posts:

August 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, Who Sentences | Permalink | Comments (0)

Friday, August 17, 2018

Will Trump White House soon "deploy its assets ... to stump" for federal criminal justice reform? It may be critical.

The question in the title of this post is prompted by this new Hill commentary authored by Holly Harris headlined "Connect Beltway to America to get federal criminal justice reform done." Here are excerpts:

When it comes to excuses to pass over federal criminal justice reform, I have heard them all, from “it takes at least 10 years to pass legislation like this” to “there is no way move a criminal justice bill in an election year.” But the one that really burns me is “you cannot point to state success because the federal system is much more complicated.”

The arrogance of the Beltway is incredible.  Of the more than 2.3 million people serving time behind bars in this country, more than 1.3 million are housed in state prisons, and about 615,000 sit in local jails.  Only 225,000 are housed in a federal facility. The Texas prison system alone holds more inmates.  State prison systems deal with overcrowding, stifling budget cuts, and drug epidemics that show no signs of abating.  Because they can see and experience this crisis first hand, governors on the left and the right are passing strong criminal justice reforms that offer alternatives to incarceration such as drug treatment programs, provide opportunities that put people back to work, and save millions of taxpayer dollars.

Now these governors are invading the federal reform effort, seeking to finally connect Beltway leaders to what is happening in their own backyards.  President Trump, in a savvy move, convened a criminal justice roundtable at his resort in New Jersey and invited Republican and Democratic governors from states like Louisiana, Mississippi, Kentucky and Georgia, all of which have passed strong criminal justice reforms with bipartisan support that decrease incarcerated populations, improve reentry programs, and ultimately lower crime and recidivism.  This is all part of a strategy to take the fight to pass a federal bill straight to the people and away from the status quo in Washington....

Keenly aware that red states like Georgia, Oklahoma, Mississippi and Kentucky have made aggressive changes to their justice systems, including sentencing reforms and felony expungement laws, [Jared] Kushner has showed the president these success stories.  In this latest roundtable, Trump included the Democratic governor of Louisiana, John Bel Edwards, who shared that reforms implemented in his state led to a 20 percent decrease in the number of people imprisoned for nonviolent crimes, which frees up valuable resources to fight dangerous crimes and reduce recidivism.

While the public safety benefits of reform are undoubtedly impressive to a “tough on crime” president, the overwhelming public support for these issues must be equally attractive.  Voters across the country are looking to Congress to act. Polling from earlier this year shows that 75 percent of voters, a clear supermajority crossing all partisan, geographic, education, income, racial and ethnic boundaries, believe the criminal justice system needs to be reformed and support changes such as fixing our cash bail system and replacing mandatory minimum sentencing laws.

In the final stretch to a Senate vote, do not be surprised to see this White House deploy its assets to the states to stump for a bill they know the American people want.  There will be folks from every walk of life lining up behind them, from business leaders and military veterans to civil rights advocates and faith leaders.  Just this week, people from 50 organizations of all political stripes and bipartisan senior legislative staff met to talk details. When the phone lines light up in offices all over Capitol Hill demanding a vote, Washington may well be out of excuses.

Candidly, I will be quite surprised if this White House were to deploy its assets to stump for reform, but I certainly hope this will happen.  I am fairly confident that if Prez Trump were to do a series of tweets in support of a federal criminal justice reform bill, that bill would have a much greater chance of getting to his desk.  And Prez Trump does not have to change minds about pending reforms: there is already overwhelming bipartisan support for the basic substance of nearly every serious sentencing and prison reform bill. 

The current challenge is  getting congressional leadership to settle on which version of which bill will be brought up for a vote. Senate leadership has been the bottleneck lately, and the White House surely could and should focus, publicly and privately, on advocacy toward leadership to settle on a bill and finally allow a vote.  (Notably, the FIRST STEP Act got 86% approval when it got to a vote in the House of Representatives, so it seems informed legislators are even more supportive of federal reform than the poll numbers.) 

This piece by Holly Harris highlights just why passage of federal criminal justice reform could be a huge win for this Administration, and I hope Prez Trump sees the potential political value to pushing reform over the finish-line.  Presidents always have unique powers and unique opportunities to grease the legislative process, and a congressional reform discussion that has been going strong for now five years with no tangible results can certainly uses as much grease as it can get. 

Some of many prior recent related posts:

UPDATE: I have just added to the title of this post after seeing this new Politico piece headlined "Criminal justice deal faces steep Senate hurdles despite Trump’s push."  Here is an excerpts that has me thinking reform does not get done unless and until the Trump White House puts all its might behind the effort:

Trump has stepped up his own calls for a deal on the prisons overhaul that the House passed earlier this year, holding two events so far this month.  And groups off the Hill say they're closing in on a path to pass the legislation through the Senate by adding some of the sentencing changes Judiciary Chairman Chuck Grassley (R-Iowa) spent years negotiating with Democrats.

But interviews with a dozen GOP senators show that those talks remain in a precarious state.  That’s because the handful of Republicans who have long protested reducing mandatory-minimum sentences leave Majority Leader Mitch McConnell (R-Ky.) without any incentive to call up legislation that would split his conference.

One of those longtime critics of adding sentencing to the House-passed prisons bill bluntly predicted Thursday that McConnell would not “bring the bill to the floor any time soon.”

“I’m not sure that we can put together a deal,” Sen. John Kennedy (R-La.) said in an interview. “I’m not sure we should.”...

Close involvement from Trump will likely be required for the GOP to get past its internal schism over reducing mandatory minimum sentences as part of a prisons package. Grassley's bipartisan package of sentencing and prison reforms boasts 15 Republican cosponsors, but Attorney General Jeff Sessions opposes even the narrower prisons-only approach the House has passed.

August 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, August 16, 2018

Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system

With Jeff Sessions now in the role of Attorney General, Senator Tom Cotton is one of the last members of Congress eager to push a tough-and-tougher agenda.  Despite the US position as world leader in incarceration, Senator Cotton asserted a few years ago, as noted here, that "we have an under-incarceration problem."  His thinking today finds expression in this new Wall Street Journal article headlined "Reform the Prisons Without Going Soft on Crime: Proposals to give judges more discretion and cut mandatory minimums endanger public safety."  Regular readers will be familiar with many of the moves in this piece (even though we've not heard much from Bill Otis lately).  Here is a sample:

The U.S. faces a drug epidemic today, exactly the wrong time to go soft on crime.  According to the National Institute on Drug Abuse, in 2017 more than 72,000 Americans died of drug overdoses, a 37% increase from 2015 and a nearly 100% increase since 2008.  Violent crime has declined since the 1980s because mandatory minimums adopted then locked up violent criminals.  But in 2015-16, the most recent years for which full data are available, violent crime increased at its fastest rate in a quarter-century, though preliminary data suggest it might have leveled off in 2017....

This naive policy ignores the reality of recidivism.  Five out of six prisoners end up rearrested within nine years, according to a recent Justice Department study. In fact, on average reoffenders are rearrested five times — and not for minor crimes.  Only a handful of ex-convicts return to prison exclusively for parole violations, whereas 77% of drug offenders are rearrested for serious nondrug crimes, such as murder and rape.  Most criminals will commit more crimes after being released from prison, even with improved rehabilitation programs.  The last thing Congress should do is shorten their sentences or allow them to “serve time” in home confinement....

What is the logic of such leniency?  Activists say they want to reverse “mass incarceration.”  That is a curious characterization when less than half of crimes are even reported to police and more than 80% of property crimes and 50% of violent crimes that are reported go unsolved, according to Pew Research Center.  Tell those victims denied justice that the U.S. locks up too many criminals.

Virtually no one goes to federal prison for “low-level, nonviolent” drug offenses, especially mere drug use or possession. In 2015, there were 247 inmates in federal prison for drug possession. In these rare cases, the inmates usually pleaded down from a more serious offense.  In the extreme case of a manifestly unjust sentence, the pardon power is a better instrument of justice than broad sentencing reductions. President Trump has shown himself more than willing to intervene to redress such cases.

Some fiscal conservatives believe that America spends too much on the prison system.  Yet the Bureau of Prisons costs taxpayers less than $8 billion a year, or about 0.2% of the entire federal budget.  After national security, the government’s most basic responsibility is to protect its citizens from crime. The costs of crime and disorder — personal and economic — far outweigh the downsides of putting serious criminals behind bars.

Mandatory minimums and truth-in-sentencing laws work. Rather than eliminate them, Congress should improve access to faith-based and other antirecidivism programs in federal prisons.  American families deserve safe communities and protection from drugs and crime.  Criminals, especially first-time offenders who grew up in rough environments, deserve second chances — once they have done their time.

I suspect most readers can readily see logical flaws in Senator Cotton's advocacy here (e.g., how do poor clearance rates for violent crimes justify excessive drug sentences?).  Most fundamentally, the bills with a chance for passage in Congress do not get anywhere close to "eliminating"  mandatory minimums or truth-in-sentencing laws, and they in fact sadly do not really do all that much more than enhance antirecidivism programs in federal prisons.  But even the modest bills with a shot at passage (which have the support of Prez Trump) are too much for Senator Cotton.

John Pfaff has this twitter thread in which he describes the effort as "horrifically dishonest." John attacks various numbers in the op-ed, and I will just stress a telling flip-flop on the clemency front. Senator Cotton says "the pardon power is a better instrument of justice than broad sentencing reductions," but many folks on the right criticized Prez Obama's use of clemency at the end of the term by saying it should be Congress in charge of granting any serious sentencing relief.  Senator Cotton here also says here "President Trump has shown himself more than willing to intervene to redress such cases," but he has so far only commuted two extreme federal sentences (roughly .001% of the federal prison population).  Prez Trump has promised to do more, but he can not be expected to nor depended upon to do the kind of reform via clemency that Congress should be doing in the first instance.

UPDATE: Mark Holden has this new commentary, headlined "Correcting the Record About Sentencing Reform and Mandatory Minimums," which goes point-by-point through key claims made by Senator Cotton and provides different perspective on his assertion.

ANOTHER UPDATE:  Derek Cohen over at Right on Crime also has this notable response to Senator Cotton's piece under the headline "Setting the Record Straight"

August 16, 2018 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, August 11, 2018

Does Prez Trump have the courage to visit the largest maximum security prison in the country?

The question in the title of this post reflects my weak effort to try to goad Prez Donald Trump into accepting an invitation from Louisiana's governor as reported in this article:

Gov. John Bel Edwards has invited President Donald Trump to visit Louisiana State Penitentiary at Angola, the largest maximum security prison in the country.

In a letter sent Thursday (Aug. 9) [available here], Edwards said Angola would be a good place for Trump to explore the benefits of Louisiana's criminal justice overhaul last year. Edwards touted the vocational, victim reconciliation and faith-based programs housed at the prison, where nearly 6,000 inmates live.

Specifically, Edwards said Trump should see the accredited Bible college located at Angola and the prison's hospice program, which has received national recognition. "It is not a secret that the implementation of these types of programs is what helped to transform LSP from one of the bloodiest prisons in America to a place of hope, transformation and reconciliation," Edwards wrote to Trump.

Both the Bible college and the hospice program at Angola predate by several years the criminal justice overhaul Edwards spearheaded. In fact, inmates at Angola were not as significantly affected by the criminal justice law changes in 2017 as people in other parts of the prison system.

Edwards' criminal justice overhaul dealt mostly with shortening sentences and expanding parole and probation opportunities for nonviolent offenders. It has resulted in Louisiana losing its title of incarceration capital of the country, but the drop in the prison population has occurred almost entirely among people serving time for lower-level offenses.

Angola is home predominantly to people serving life sentences for violent crimes who will never be released from prison. Those inmates mostly did not see substantial changes in their sentences as a result of the criminal justice overhaul.

The governor also attended a meeting in New Jersey with Trump and several other elected officials on criminal justice issues Thursday. Other governors attending included Gov. Matt Bevin, R-Kentucky, Gov. Phil Bryant, R-Mississippi, and Gov. Nathan Deal, R-Georgia. Edwards was the only Democrat invited to the meeting.

Notably, a little more than three years ago as detailed in this post, Prez Obama got lots of good press for making history by being the first occupant of the White House to visit a federal correctional facility.  Back in 2015, I had this to say in the wake of this historic visit: "Though I am not really expecting it, I would love for this kind of presidential visit to a prison to become a regular habit and something of a tradition. As President Obama stressed in his recent speech to the NAACP, most of the persons behind bars "are also Americans" and all presidents should be committed to serving all Americans, even those who are incarcerated."  It would be amazing for Prez Trump to be the one who turns visiting a prison into a tradition, and perhaps Prez Trump could even be goaded into trying to  Prez Obama's visitation record by visiting both a state and a federal prison as he advocates for Congress to pass criminal justice reform.

Interestingly, earlier today Prez Trump had this tweet which mention his advocacy for prison reform in this way: "I'm pushing for prison reform to give people who have paid their debt to society a second chance. I will never stop fighting for ALL Americans!"  I hope part of his push will include a visit to Angola and other prisons and jails, where millions of Americans reside.

A few older related posts:

August 11, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Friday, August 10, 2018

Could a version of the FIRST STEP Act with sentencing reforms pass the Senate in a matter of weeks?

The question in the title of this post is prompted by this encouraging Thursday Washington Examiner piece headlined "Jared Kushner helps Trump pave rare bipartisan path to big win." Here are excerpts with a few lines emphasized:

Thursday’s roundtable at President Trump’s summer White House in New Jersey to address prison and sentencing reform with governor’s is the latest bid by top aide Jared Kushner to give his father-in-law a rare bipartisan victory on a once controversial issue.

In getting Trump to carve out part of his working vacation at his golf club in Bedminster, N.J., Kushner and other officials are hoping to demonstrate how important the issues are to the president as he works to get a Senate vote in the next month.

Trump’s meeting this afternoon with governors, state attorneys general, and top aides is the latest in which he will endorse prison reform and he is also expected to open the door to sentencing reform, a sign to key senators that he is ready for a deal.

Just last week he met with Trump met with Republican Sens. Mike Lee, Lindsey Graham, Tim Scott and Chuck Grassley who are working legislation on sentencing and prison reform.

“We are trying to get a vote in the next two weeks,” said an administration official of the broad prison reform bill known as the First Step Act that passed the House overwhelmingly.

As he has on Middle East peace and other projects his father-in-law has given him, Kushner has worked overtime -- and always behind the scenes -- to build an unusual coalition in support of the reforms....

“There can’t be any doubt that by having this as the only major event on the president’s schedule that he is laser focused on this,” said one associate, who added, “We think that with this momentum and with the coalition behind it, that this can actually happen.”

Importantly, as I understand matters, the Senate would be voting on not just the prison reforms in the House version of the FIRST STEP Act, but also some sentencing reforms. Those reform are limited, but still quite significant, and they are outlined in this recent piece by Mark Holden.  And if this is brought up for a vote in the Senate, I do not think there is any real likelihood it would not pass.  Indeed, the question would be probably whether it might get even more than 80 votes.

If this really gets completely done in the coming weeks, I do think it will be right to give Prez Trump and his Administration a considerable amount of credit.  But that credit comes only if and when a bill is signed and the law is changed.  Remarkably, I am starting to get optimistic that this could happen pretty soon.

August 10, 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)

Thursday, August 09, 2018

White House emails "startling facts about America’s prison system"

Though I will not be back on-line regularly for a few more days, I  am finding ways to check my emails and felt inspired to report here on what appeared at the very top of the daily email blast from the White House today.  Specifically, this text and these links appeared under the heading "The startling facts about America’s prison system":

Following successful bipartisan passage of the FIRST STEP Act in the House of Representatives, President Trump is hosting a roundtable with a number of America’s governors today to discuss implementing prison reform in their states.

President Trump supports efforts to reduce recidivism — the return of former inmates to prison—as a way to make America’s streets safer. The Administration has worked closely with Congress to find a solution that reduces crime, enhances public safety, and increases opportunity for those who have earned a second chance.

“The facts about America’s prison system are startling,” Senior Advisor Jared Kushner wrote in The Wall Street Journal in April. “The U.S. has 4% of the world’s population, but roughly 25% of the world’s prisoners. . . . Of the 650,000 people who leave prison every year, two-thirds will commit a new crime within three years.”

The bottom line, says Kushner: “President Trump promised to fight for the forgotten men and women of this country—and that includes those in prison.”

The starting facts about America’s prison system.

Taking action: President Trump’s principles for reforming our prisons

No White House gets any credit or congratulations from me unless and until actual legislation gets enacted into law.  But this email, which also noted that today "President Donald J. Trump is hosting a roundtable discussion with governors on prison reform and the FIRST STEP Act before Congress," reinforces my sense that this White House is going to keep talking up at least some measure of criminal justice reform until at least something actually gets done. Or, at least, they are fooling me into believing this is a real priority for this Administration.

August 9, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Saturday, August 04, 2018

Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018

Though I am a very long way from DC right now (much closer to Russia, in fact, somewhere on this route), I had to find a way on-line to be sure to note the exciting federal criminal justice reform news reported here in The Hill under the headline "Trump gives thumbs up to prison sentencing reform bill at pivotal meeting."  Here are the details:

President Trump has told Republican senators that he’s open to a new proposal on prison and sentencing reform, giving new life to an issue that seemed hopelessly stalled on Capitol Hill.

The compromise presented to Trump by Republican senators at a White House meeting on Wednesday would combine the prison reform bill passed by the House in May — the First Step Act — with four sentencing reform provisions that have bipartisan Senate backing, according to a source familiar with the meeting.

A senior White House official described the president as “positively inclined” toward the compromise proposal. The source said Trump told GOP senators to “do some work with your colleagues” and “let's see where the Senate is and then come back to me with it.”...

The compromise offer was presented to Trump at a meeting with Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Sens. Mike Lee (R-Utah), Lindsey Graham (R-S.C.) and Tim Scott (R-S.C.). Jared Kushner, a senior White House adviser and Trump’s son-in-law; Shahira Knight, the new White House legislative affairs director; and White House chief of staff John Kelly also attended the White House meeting.

Attendees described Trump’s support for the initiative as a positive development for the effort to reduce mandatory-minimum prison sentences for nonviolent drug offenders. While getting a final bill to Trump would require a Senate vote and then winning House approval for the new package, a second source familiar with the meeting described it as “very successful.” “It’s not done until it’s done, but we made a lot of progress,” the source said.

Grassley said afterward that he believes prison reform and sentencing reform can be moved in tandem. “I think we made great progress so it doesn’t have to be broken up,” Grassley told reporters Thursday. “There seems to be an interest on the part of the White House now to keeping the bills together.”

Negotiators now think there’s a possibility of moving legislation through the Senate as soon as this month, though it’s more likely to wait until the lame-duck session after the midterm elections....

The emergent compromise proposal would make several technical changes to the House-passed First Step Act and merge it with four sentencing reforms from the Senate’s Sentencing Reform and Corrections Act, which has a large number of co-sponsors from both parties.

“The question is how little sentencing reform we can put in there without losing the Democrats and how much we can put in there without losing more than a handful of Republicans, and we think we’ve about cracked that formula,” said a person familiar with the internal talks who briefed The Hill.

The proposed compromise would lower lifetime mandatory minimum sentences for people with prior nonviolent drug felony convictions to 25 years and reduce 20-year mandatory minimum sentences for similar offenders to 15 years. But in an effort to reach common ground, that reform would only apply to new sentences and not to people already in jail.

Another reform would free judges from having to ratchet up sentences for drug offenders convicted on simultaneous charges. A requirement known as the “stacking enhancement” forced judges to treat convictions on multiple charges as prior offenses and mandated harshly long punishments for nonviolent drug offenders. In another bid to broaden political support, this reform would not apply retroactively.

A third reform would apply the Fair Sentencing Act, which Congress passed in 2010 and reduced the disparity between cocaine- and crack-related offenses, retroactively. That law reduced the disparity between cocaine- and crack-related crimes prospectively but only applied to new sentences. The reform now being discussed would retroactively reduce the disparity of old sentences.

The final reform would expand exceptions to the application of mandatory-minimum sentences to more people with criminal histories.

I am not counting any sentencing reform chickens before they hatch, but this description of the compromise combo FIRST STEP Act and SRCA would seem to make a lot of sense in light of various positions staked out on both sides of the aisle. And if Prez Trump signals support for such a reform package and is willing to make it a priority, I would now be inclined to predict this will get done this year. But because Prez Trump has never seemed a serious advocate for sentencing reform, and because his Attorney General likely dislikes all of this, and because the run-up and aftermath of an election can disrupt lots in DC, I am inclined to remain pessimistic about all of this until votes are being scheduled and taken.

August 4, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Wednesday, August 01, 2018

"Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act"

The title of this post is the headline of this press release from the US Department of Justice today, and here are some of the comments that follow that focus on ACCA:

[B]ecause of a 2015 Supreme Court decision holding that the definition of violent felony was too vague — we are missing one of the most important law enforcement tools we had. The Johnson case is quite significant.

Regardless of the merits of the Court’s decision, the consequences have been devastating for Americans across the country.

This court decision led to the release of a man from right here in Little Rock. Eight months after he was released from prison, he was arrested for aggravated assault and domestic battery. A year after that he was arrested for kidnapping, rape, aggravated assault, battery, and terroristic threats. He is accused of raping a 62-year old woman and an autistic homeless man.

This court ruling also led to the release of a man who allegedly punched a pregnant woman at a nightclub in Forrest City. When police intervened, he allegedly assaulted three of them, cutting one of them on the forehead.

A man from Pine Bluff got his 15 year sentence cut in half. A year later, he got into an argument with a co-worker. According to the allegations against him, the co-worker turned around to walk away when the defendant sucker-punched him, broke his nose and eye sockets, chipped a tooth and busted his lip.

Two of these criminals I’ve talked about are now back in prison. They were let out of prison, reoffended, and now they’re back in prison.

But the consequences are not limited to Arkansas. This is a nationwide problem and it’s a cause for deep concern. In Utah, a career criminal released by this decision tortured and murdered two teenagers and then threw their bodies down a mineshaft. A released career criminal in California allegedly murdered his father, carjacked a vehicle and killed the driver. In Oregon, a released career criminal held a Subway sandwich shop hostage and then shot a police officer just 18 days after he was released.

Sadly, I could go on and on. So why did this happen? The Supreme Court struck down part of a law called the Armed Career Criminal Act. It had been on the books for 30 years and applied thousands of times.

This is the law that requires a minimum 15- year sentence for felons caught with a firearm after their third violent felony or serious drug trafficking conviction.

These are not the mythical “low-level, nonviolent drug offenders,” who we are always told are being excessively imprisoned. These are criminals who have already committed multiple serious offenses and then were caught with a gun.

This is no little matter. In 2016, the U.S. Sentencing Commission found that nearly seven out of ten career criminals reoffended after being released. Federal firearms offenders were found to be the most likely to be rearrested of any category. These criminals are both. They are career criminals and firearms offenders. I was a United States Attorney before the Armed Career Criminal Act — and I was United States Attorney afterward. I’ve seen its importance firsthand as we worked to reduce crime in America.

Nationwide, the Supreme Court’s decision has resulted in more than 1,400 violent career criminals back onto our streets — including 18 here in Arkansas. Nine of these Arkansas criminals have already been arrested again.

Six-hundred of those 1,400 criminals have been arrested again. It’s only been three years since the Court decision, but 42 percent have already reoffended.

On average, these 600 criminals have been arrested or reoffended three times in the last three years. A majority of those who have been out of prison for just two years have been arrested again. Releasing repeat offenders has consequences. Every crime committed by a recidivist released by this court case would not have happened. Every one of their victims would not have been victimized.

We must fix the law so violent career criminals are not let out of jail early. Their recidivism rate is staggering indeed, but let’s remember: this is still likely an underrepresentation of their illegal activity. Any law officer in this room will tell you that criminals rarely get caught on their first offense. We can only imagine how many crimes they have really committed and how many innocent people they have victimized.

Releasing hardened criminals into our communities before they serve their minimum term is not fair to crime victims. And it is not fair to law enforcement. You shouldn’t have to go into danger time and again to arrest the same people.

Congress and our legislatures need to help us and consider legislation that protects the public. We need Congress to fix the law so that we can keep violent career criminals off of our streets. That shouldn’t be controversial.

Fortunately, some Members of Congress are helping. My good friend Senator Cotton understands this issue. He is working on legislation that is intended to fix this problem for good — and I want to thank him for his outstanding leadership on criminal justice issues.

We should look for effective and proven ways to reduce recidivism, but we must also recognize that simply reducing sentences without reducing recidivism unfairly creates more victims.

I agree with Attorney General Sessions that we need a Johnson fix and more.  Reform to the Armed Career Criminal Act is long overdue (Justices Scalia and Alito have bemoaning ACCA problems and urged Congress to act for many, many years before Johnson).  Beyond just the vagueness problem Johnson addressed, there are deeper problems with the entire structure of the Armed Career Criminal Act, particularly its reliance on a severe mandatory minimum prison term (of 15 years) for the mere act of possessing a firearm or ammunition. Consequently, I do not think a mere Johnson fix to ACCA will be a fully sound or effective response to the genuine concerns flagged by AG Sessions.

In a future post, I hope to be able to discuss the specifics of Senator Tom Cotton's approach to fixing ACCA.  For now, I will just suggest it will be interesting to see if anyone in Congress will be willing to try to roll an ACCA fix into existing criminal justice reform proposals that are now seemingly languishing on the Hill.

August 1, 2018 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Offender Characteristics, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)

Thursday, July 26, 2018

Interesting reflections on modern clemency realities

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

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

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

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

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

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

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

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

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

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

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

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

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

July 26, 2018 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, July 12, 2018

"The Quest to Get a Pardon in the Trump Era: ‘It’s Who You Know’"

The title of this post is the headline of this notable new New York Times piece documenting various realities that are well-known to those who have been paying attention to the clemency activities of recent Presidents.  Here are excerpts from a terrific piece worth reading in full:

Few constitutional powers lie so wholly at the whims of the president as the power to pardon. No details need to be worked out beforehand and no agency apparatus is needed to carry a pardon out.  The president declares a person officially forgiven, and it is so.

A layer of government lawyers has long worked behind the scenes, screening the hundreds of petitions each year, giving the process the appearance of objectivity and rigor. But technically — legally — this is unnecessary.  A celebrity game show approach to mercy, doling the favor out to those with political allegiance or access to fame, is fully within the law.

The show isn’t new.  Absolving political allies is a notorious if decades-old practice, and Bill Clinton was hardly sticking to procedure when he included friends, family and the well-connected in his last-minute clemency spree.  But Mr. Trump is not waiting for the last minute.

On Tuesday, he issued more pardons, this time for two Oregon ranchers who had been serving sentences for arson on federal land. Interior Secretary Ryan Zinke was apparently among the ranchers’ strongest supporters.  Mr. Trump has said he is considering pardons for Martha Stewart, the lifestyle guru, and Rod Blagojevich, the former governor of Illinois, and people whose cases are championed by professional football players.  He has rebuffed questions as to whether he was planning to pardon any of his own associates — or himself, for that matter.

Pardon seekers have been watching all this.  Having once put their hopes in an opaque bureaucratic process, they are now approaching their shot at absolution as if marketing a hot start-up: scanning their network of acquaintances for influence and gauging degrees of separation from celebrity.  What’s the best way to get a letter to Sean Hannity, the Fox News host and close Trump ally?  How hard would it be to pull aside Robert Jeffress, the prominent Trump-backing pastor, after a church service?

“It’s who you know now,” said Weldon Angelos, whose cause for clemency has been supported by politicians, judges and celebrities. At the consent of prosecutors, Mr. Angelos was released from prison in 2016, after serving a quarter of a 55-year sentence on a drug-related conviction. Now he is seeking a full pardon.  “Everyone’s now trying to get their names out there, to get some buzz,” he said. “That’s the strategy I’m seeing”

Self-promotion in pursuit of forgiveness comes naturally to some and strikes others as absurd.  But there is broad agreement on one point. The standard, procedural route to presidential clemency — a process that has become ever more impenetrable — has hardly been a portrait of justice itself...

Clemency petitions go through the Office of Pardon Attorney in the Justice Department, a system set up more than a hundred years ago to lessen the risks and hassles of leaving an entire nation’s pleas for compassion to one person.  For decades, the process worked smoothly, and hundreds of clemency grants were issued each year. President Dwight D. Eisenhower alone granted over 1,000 pardons.

But starting about 40 years ago, “the prosecutors really got a hold of the process,” said Margaret Love, who was the Pardon Attorney from 1990 to 1997, and now represents clemency applicants. “They became increasingly hostile to the pardon power.”  Even as laws have grown harsher, the number of pardons has dwindled significantly. “It is so secretive and the standards are so subjective,” Ms. Love said.  “They operate like a lottery. Except a lottery is fair.”

In 2014, the Obama administration set up a clemency initiative that led to 1,715 sentence commutations, by far the most of any president.  Still, this accounted for only about 5 percent of the commutation petitions submitted during his two terms. As for full pardons, the Obama administration was stingier than most of its predecessors. The traditional clemency process, as a pardon attorney described in her 2016 resignation letter, remained sidelined and backlogged.

“The process,” wrote Luke Scarmazzo of his attempt at clemency in the Obama years, “was a bureaucratic nightmare.”  In 2008 Mr. Scarmazzo was sentenced to more than two decades in prison for running a medical marijuana dispensary in California. He and his co-defendant, Ricardo Montes, spent months working on an application, but in the end Mr. Montes received a commutation, while Mr. Scarmazzo did not.  Now, “instead of support from career politicians and judges, we’re seeking support from celebrities and influential social icons,” Mr. Scarmazzo wrote in an email from prison.  “We’re less focused on pleasing the D.O.J. bureaucracy and more focused on grabbing the attention of the Oval Office.”

Much of the recent focus on clemency has either been on those, like Ms. Johnson, who are seeking release from prison, or on the famous pardon recipients like Dinesh D’Souza, the conservative provocateur, and I. Lewis Libby Jr., the former aide to Dick Cheney.  But there are countless people living quietly and whose time in the criminal justice system is years in the past, but who, because of the ever-expanding tally of consequences for felony convictions, feel permanently confined.

July 12, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 10, 2018

President Donald Trump pardons Oregon ranchers convicted of arson, and subject to mandatory minimum terms, who prompted protests over federal lands

As reported in this article from The Hill, headlined  "Trump pardons Oregon ranchers at center of 40-day standoff," Prez Trump has used his pardon pen yet again for another set of high-profile and politically notable defendants.  Here are the details:

President Trump on Tuesday pardoned a pair of Oregon ranchers whose arson conviction became a focus for opponents of federal government land ownership. Dwight Hammond, 76, and his son Steven Hammond, 49, were convicted in 2012 and sent to prison on arson charges. They had set a series of fires on their ranch that spread to federal land.

The Hammonds’ case became the inspiration for the 40-day armed occupation of the Malheur National Wildlife Refuge in 2016. The organizers wanted to protest federal land ownership. The Hammonds distanced themselves from the violent occupiers and didn't endorse the action. One of the occupiers, Robert LaVoy Finicum, died, and a handful pleaded guilty to charges related to the occupation. But brothers Ammon and Ryan Bundy, the accused leaders of the occupation, were not convicted.

In a statement Tuesday announcing the pardon, White House press secretary Sarah Huckabee Sanders emphasized uncertainties in the case and the prison terms and fines the Hammonds had already paid. “The evidence at trial regarding the Hammonds’ responsibility for the fire was conflicting, and the jury acquitted them on most of the charges,” the White House said.  “The Hammonds are devoted family men, respected contributors to their local community, and have widespread support from their neighbors, local law enforcement, and farmers and ranchers across the West. Justice is overdue for Dwight and Steven Hammond, both of whom are entirely deserving of these Grants of Executive Clemency.”

Both men are currently in prison on five-year sentences, thanks in part to a 1996 anti-terrorism law that imposed a mandatory minimum sentence on certain crimes on federal land.  The length of their prison terms, in part, fueled outrage at their convictions.

Federal judge Michael Robert Hogan originally gave the Hammonds reduced sentences in 2012, arguing that the mandatory minimums were unjust. But the Obama administration appealed, and federal Judge Ann Aiken in 2015 imposed the full five-year sentences.  “This was unjust,” Sanders said in her statement.  Dwight Hammond has served about three years of his sentence and Steven Hammond has served about four of his, and Trump’s pardon will set them free.

Rep. Greg Walden (R-Ore.), who represents the area that includes the Hammonds’ ranch, cheered Trump’s pardon as a win against federal overreach. “Today is a win for justice, and an acknowledgment of our unique way of life in the high desert, rural West,” he said in a statement. “As ranchers across eastern Oregon frequently tell me, the Hammonds didn’t deserve a five year sentence for using fire as a management tool, something the federal government does all the time.”

I suspect some folks on the left will attack this latest act of clemency as another politicized action for the benefit of the Trump base.  But I still recall this story and 2016 post about the Hammonds case, "Excessive federal sentencing and strict mandatory minimums at center of armed 'militia' occupation in Oregon," which highlights how much the perceived injustice here is linked to mandatory minimums and excessive federal sentencing terms.  Though I remain chary about expecting Prez Trump to become as ambitious in his use of his clemency pen as was Prez Obama at the tail end of his time in office, the federal sentencing severity that sounds this latest pardons makes me just a hint more hopeful that Prez Trump will at least somewhat deliver on all his big clemency talk.

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

July 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, July 08, 2018

"No more pits of despair. Offenders are still humans."

The title of this post is the headline of this notable Washington Post commentary authored by Michael Gerson. I recommend the whole piece, and here are excerpts:

An administration not known for policy creativity is unlikely to have useful internal policy debates. But in the Trump administration, prison reform is a welcome exception.

This is largely because of the efforts of President Trump’s son-in-law and senior adviser Jared Kushner, who, in common with millions of poor and minority children in America, has had the searing experience of visiting a father in prison. Kushner has displayed considerable passion in recruiting conservatives to the cause of prison reform. He has been opposed by Attorney General Jeff Sessions, who seems stuck in a get-tough-on-crime time warp.

In the context of this disagreement — reflected in the broader conservative movement — the House has passed a worthwhile but watered-down bill called the First Step Act.  This legislation would make changes on the exit side of incarceration — increasing funding for education and job-training programs and allowing inmates to earn credits for early release.  As a result of opposition from Sessions and others, the bill does not focus on the entrance side of incarceration — sentencing reform that would encourage alternatives to imprisonment for less dangerous offenders....

Given that the main deterrent to crime is not the severity of punishment but its certainty, prison and sentencing reforms are designed to provide a broader range of penalties and treatment options to courts, along with greater discretion in employing them. This means that violent criminals get treated differently from nonviolent criminals, who get treated differently from addicts, who get treated differently from the mentally disabled, who get treated differently from parole violators — instead of sweeping them all into (expensive) prison beds.

States have done more than apply a theory. They have demonstrated something practical, hopeful and remarkable. “This renaissance has been led in large part by deep-red Texas,” Trautman and Rizer write, “which, by instituting a series of ‘smart-on-crime’ initiatives in the last decade, accomplished a feat previously believed to be impossible: the simultaneous reduction of its crime, recidivism and incarceration rates.” While the crime rate index fell by 20 percent nationally from 2007 to 2014, it fell by 26 percent in Texas. The state, meanwhile, closed eight prisons....

One of the reasons this good idea should succeed in Washington is to demonstrate that any good idea can succeed in Washington. Two other scholars, Steven Teles and David Dagan, have called prison and sentencing reform an example of “trans-partisanship,” which they define as “agreement on policy goals driven by divergent, deeply held ideological beliefs.” Liberals look at mass incarceration and see structural racism. Libertarians see the denial of civil liberties. Fiscal conservatives see wasted resources. Religious activists see inhumane conditions and damaged lives.

All these convictions converge at one point: We should treat offenders as humans, with different stories and different needs, instead of casting them all into the same pit of despair. 

July 8, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Wednesday, July 04, 2018

Hey Prez Trump, how about honoring Independence Day by using your clemency power to give some more Americans more liberty?

It is now been nearly a month since Prez Donald Trump commuted the life sentence of Alice Johnson at the behest of Kim Kardashian West (basics here).  Immediately thereafter, there were reports here of "a growing list of potential pardons or commutations under consideration by President Donald Trump" and Prez Trump himself said: "We have 3,000 names.  We’re looking at them.  Of the 3,000 names, many of those names have been treated unfairly."  A week later it was reported Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn't do" and reported that Mrs. West had "assembled a large legal team and was pursuing clemency for several other nonviolent offenders."  And, as posts here and here highlighted, plenty of folks have been taking up the President's call to put forward worthy clemency candidates.

I have been more than a bit worried that all the buzz about all sorts of clemency action may be a lot of talk that may not be followed by a lot of action.  But, as the title of this post is meant to suggest, I think Independence Day — when we celebrate a great document that starts by stressing the "unalienable Rights [of] Life, Liberty and the pursuit of Happiness" — would be a fitting day for Prez Trump to help, through grants of clemency, at least a few more persons enjoy "Life, Liberty and the pursuit of Happiness."  

I am not yet going to get cynical about Prez Trump's clemency chatter because I am eager to hold out hope that he might have a desire to best Prez Obama's record-setting clemency numbers. But, as regular readers know, I am ever eager to criticize leaders who "talk the talk" but then fail to "walk the walk."  Today strikes me as a great time for the bold clemency walk to get started.

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

July 4, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (3)

Thursday, June 21, 2018

"N.F.L. Players to Trump: Here’s Whom You Should Pardon"

The title of this post is the headline of this op-ed in today's New York Times authored by Doug Baldwin, Anquan Boldin, (former OSU Buckeye) Malcolm Jenkins and Benjamin Watson. I recommend the piece in full, and here are extended excerpts:

President Trump recently made an offer to National Football League players like us who are committed to protesting injustice. Instead of protesting, he suggested, we should give him names of people we believe were “unfairly treated by the justice system.”  If he agrees they were treated unfairly, he said, he will pardon them.

To be sure, the president’s clemency power can be a valuable tool for redressing injustice.  Just look at Alice Johnson, age 63, who was serving a life sentence for a nonviolent drug conviction until her sentence was commuted by President Trump.  He should be commended for using his clemency power in that case.

But a handful of pardons will not address the sort of systemic injustice that N.F.L. players have been protesting.  These are problems that our government has created, many of which occur at the local level.  If President Trump thinks he can end these injustices if we deliver him a few names, he hasn’t been listening to us.

As Americans, it is our constitutional right to question injustices when they occur, and we see them daily: police brutality, unnecessary incarceration, excessive criminal sentencing, residential segregation and educational inequality.  The United States effectively uses prison to treat addiction, and you could argue it is also our largest mental-health provider. Law enforcement has a responsibility to serve its communities, yet this responsibility has too often not met basic standards of accountability....

President Trump could help.  He could use his powers, including the clemency power, to make a real dent in the federal prison population.  People like Alice Johnson, for example, should not be given de facto life sentences for nonviolent drug crimes in the first place.  The president could stop that from happening by issuing a blanket pardon for people in that situation who have already served long sentences.

Of the roughly 185,000 people locked up in federal prisons, about 79,000 are there for drug offenses of some kind — and 13.5 percent of them have sentences of 20 years or more.  Imagine how many more Alice Johnsons the president could pardon if he treated the issue like the systemic problem it is, rather than asking professional football players for a few cases.

There is also a systemic problem in federal prison involving the elderly, who by next year will make up 28 percent of the federal prison population. Releasing these prisoners would pose little to no risk to society.  And yet from 2013 to 2017, the Bureau of Prisons approved only 6 percent of roughly 5,400 “compassionate release” applications.  About half of those applications were for people who had been convicted of nonviolent fraud or drug offenses.  Of those denied release, 266 died in custody. 

President Trump could order the release of any drug offender over the age of 60 whose conviction is not recent.  That would be the morally right thing to do.

Apart from using the pardon power, there are policies the president and the attorney general could implement to help.  For instance, they could eliminate life without parole for nonviolent offenses.  Currently, more than half of those sentenced to die in federal prison are there for nonviolent offenses, and 30 percent of people sentenced to life (or de facto life) are there for a nonviolent drug crimes. Compare that with the state level: Only 2 percent of those sentenced to life (or de facto life) are there for drug offenses....

President Trump, please note: Our being professional athletes has nothing to do with our commitment to fighting injustice.  We are citizens who embrace the values of empathy, integrity and justice, and we will fight for what we believe is right.  We weren’t elected to do this.  We do it because we love this country, our communities and the people in them. This is our America, our right.

We intend to continue to challenge and encourage all Americans to remember why we are here in this world.  We are here to treat one another with the kindness and respect every human being deserves. And we hope our elected officials will use their power to do the same.

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

June 21, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, June 19, 2018

Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts

The Marshall Project has this notable new Q&A under the full headlined "Van Jones Answers His Critics: The CNN host defends his involvement with a controversial prison reform bill and the Trump White House." I recommend the piece in full, and here are snippets reflecting intriguing parts of Jones's thoughtful perspective on the politics and people impacting federal criminal justice reform efforts:

[W]e need a stable bipartisan consensus to undo mass incarceration. In order to get there, we have to break this logjam that existed under President Barack Obama and in Congress. When we had Obama in the White House and [former U.S. Attorneys] Eric Holder and Loretta Lynch in the Department of Justice, we had a pretty robust bill that I fought tooth and nail to try to get passed. It had sentencing reform, prison reform, and every other kind of reform in there. In the fall of 2016, a bunch of people said, “Well, let's not pass this right now. The Democrats are going to have an epic victory. We'll have Hillary Clinton, more Democrats, and we can get an even better bill.” You see what happened. The lesson I learned from that was take the reform you can get when you can get it and keep going....

[Debates over which bill to support] became more of a split between some of the inside-the-Beltway organizations that have a particular worldview that is important, versus a lot of the grassroots groups who are really dealing on a daily basis with incarcerated people looking at the actual content of the bill. There were black people and white people on all sides of that. So as somebody who has been frontline 25 years on criminal justice, you would want people to give you the benefit of the doubt. But if folks choose not to, that's just called democracy.

I get outraged when people like Topeka Sam, an African American woman who was incarcerated, brings a dozen formerly incarcerated women to the White House to advocate for reform and is attacked. I get outraged when Shaka Senghor, who did 19 years in prison and almost 10 years in solitary confinement, speaks up for the bill and gets attacked. On Facebook they were called sellouts, Uncle Toms. I don't think it's appropriate when formerly incarcerated African Americans are vilified this way....

Where is this strong bipartisan coalition for sentencing reform [that some claim exists]? I know that they were able to get the Sentencing Reform and Corrections Act out of committee in judiciary, which is good on the Senate side, but there is zero chance that that bill is going to be brought for a vote by Senate Majority Leader Mitch McConnell in its present form, and there’s not even a strategy to get McConnell to check it out, that I can tell. A lot of the Republicans do want sentencing reform, but they can't start there with a critical mass of their other colleagues.

I think that because this is one of the very few areas of bipartisan agreement, there will be multiple opportunities to come back again on criminal justice reform and to make progress.... I would love to see sentencing reform. Fought for it my whole life. Fought for it before it was popular. I just didn't understand why some people in the Senate want us to try to carry a camel through a keyhole in the House. If they have the votes to get sentencing reform in the Senate, God bless them. We couldn't find those votes in the House. We had to carry through the House what we could carry through the House. Nobody would be happier than me to see sentencing reform taken up by either chamber. But we had to get through the House what we could get through the House.

Here's the irony: If sentencing reform does now get taken up, or it's introduced as a part of the First Step Act, or there's some amalgamation between the two and something does get passed with sentencing reform in it, it will only get passed because we got something more modest through the House first.

Some of many prior related posts:

June 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, Who Sentences | Permalink | Comments (0)

Saturday, June 16, 2018

Paul Manifort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen

As detailed in this CNN piece, a very prominent federal defendant grew the number of Americans incarcerated yesterday when he had his bail revoked and was taken immediately to jail:

Former Trump campaign chairman Paul Manafort will await his trial for foreign lobbying charges from jail.  Two weeks after special counsel Robert Mueller's prosecutors dropped new accusations of witness tampering on him, US District Judge Amy Berman Jackson on Friday revoked Manafort's bail, which had allowed him to live in his Alexandria, Virginia, apartment under house arrest.

The order marked an end to almost eight months of attempts by Manafort to lighten his house arrest restrictions after he was charged and pleaded not guilty to foreign lobbying violations. "The harm in this case is harm to the administration of justice and harm to the integrity of the court's system," Berman Jackson told Manafort in court.

The judge emphasized to Manafort how she could not make enough rulings to keep him from speaking improperly with witnesses, after he had used multiple text messaging apps and called a potential witness on an Italian cellphone.  "This is not middle school. I can't take his cellphone," she said of Manafort.  "I thought about this long and hard, Mr. Manafort. I have no appetite for this."

Manafort also entered a not guilty plea to two additional charges levied against him last week, of witness tampering and conspiracy to obstruct justice. In total, he faces seven criminal charges in DC federal court. Three US marshals led Manafort out of the packed courtroom into the prisoner holding area immediately after the judge's ruling. He was not placed in handcuffs. Before he disappeared through the door, he turned toward his wife and supporters and gave a stilted wave.

Minutes later, a marshal returned to give Manafort's wife, Kathleen, still standing in the courtroom's front row, his wallet, belt and the burgundy tie he wore Friday. Court marshals held Manafort in the bowels of the courthouse for several hours following the hearing as they considered how to keep him protected from other inmates behind bars. He arrived about 8 p.m. at the Northern Neck Regional Jail in Warsaw, Virginia, 90 miles south of Washington.

In a tweet, President Donald Trump said the decision to revoke Manafort's bail was "tough," although he referred to it as a "sentence."

I cannot help but recall in this context the decision by Prez George W. Bush, made just under 11 years ago as reported here, to commute the entire prison sentence of I. Lewis "Scooter" Libby to spare him from having to serve his 30 month prison term after his conviction in the CIA leak case.  Notably, Prez Bush's clemency grant came down just a few hours after the DC Circuit refused to allow Libby to remain free on bail during the appeal of his conviction and sentence.  In other words, as soon as Libby was subject to spending even an hour incarcerated, Prez Bush was moved to act to keep him free.  Paul Manafort, notably, has not (yet) gotten the presidential consideration as he has now already spent one (of likely many) nights in jail without even yet having been convicted of anything.  

June 16, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (8)

Wednesday, June 13, 2018

Another notable report on clemency suggesting Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn’t do"

Vanity Fair is not usually my go-to source for sentencing news, but this new piece includes both White House gossip and a closing paragraph that suggest a lot of sentence news with be forthcoming from that building. The full headline of the piece reveals some of the gossip: "“He Hate, Hate, Hates It”: Sessions Fumes As Kushner Gets Pardon Fever; With Kim Kardashian and liberals like Van Jones, the princely Trump son-in-law is trying to reset his reputation. But not everyone in the administration is happy about it."   And here are the most sentencing-specific parts of the piece:

In recent months, Kushner has cultivated a close relationship with CNN host and criminal-justice reform advocate Van Jones. “Jared is obsessed with Van,” one Trump adviser said. Kushner invited Jones to the White House multiple times and the two communicate frequently, Jones told me. “Jared and I have 99 problems but prison ain’t one,” Jones said. “I’ve found him to be effective, straightforward, and dogged.” Jones has lavished praise on Kushner publicly. In January, Jones wrote a CNN op-ed headlined, “Kushner’s effort to sway Trump on prison reform is smart.”

The Kushner-Jones alliance has infuriated some Republican members of the administration, especially Attorney General Jeff Sessions. “He hate, hate, hates it,” a person close to Sessions said. But Sessions, who is hanging on for survival amidst frequent Trump attacks, has no power to move against Kushner. Sources say Trump may even like that Sessions is outraged because Trump is looking for anything that will get Sessions to quit so he can appoint an attorney general who isn’t recused in the Russia investigation. (The White House did not respond to a request for comment.)

Jones told me Trump liked the positive media coverage that followed his pardon of Alice Johnson at the urging of Kardashian and Kushner. “Trump was pleasantly surprised,” Jones said. “I hope the president feels encouraged to do more.”

One person who recently spoke with Kushner said the president’s son-in-law is gearing up for a big pardon push. The source said Kardashian gave Kushner a list of people to pardon, some of whom are hip-hop artists. “They’re going to be pardoning a lot of people—pardons that even Obama wouldn’t do,” the person said.

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

June 13, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

Monday, June 11, 2018

"Trump asks for clemency names and lists promptly arrive at White House"

The title of this post is the headline of this notable new article in the Washington Examiner.  Here are excerpts (with one line stressed for commentary):

President Trump told reporters Friday that he wanted to give clemency to more people treated unfairly by the legal system, particularly cases involving people like Alice Johnson, who he released from a life sentence for drug dealing at the request of Kim Kardashian West.  "I want to do people that are unfairly treated like an Alice," he said before boarding a Marine helicopter on the South Lawn of the White House. Hours later, lists of additional names were hand-delivered to the West Wing.

White House counsel Don McGahn and presidential adviser and son-in-law Jared Kushner sat down for separate meetings with a right-leaning policy advocate who handed them lists of dozens of inmates serving long sentences, according to a person involved in the discussions.

McGahn invited the advocate about a week earlier, requesting names, and seemed to react favorably to the case of Chris Young, a 30-year-old from Tennessee with a life sentence since age 22 for a drug conspiracy, the source said. The sentencing judge called Young's penalty "way out of whack," but said he had no choice.

Young’s name was supplied to the advocate by his attorney Brittany Barnett, who also represented Johnson. Dozens of additional names were supplied by the CAN-DO Foundation, which championed Johnson, as well as Families Against Mandatory Minimums. Topping a list of 20 marijuana inmates assembled by CAN-DO were Michael Pelletier and John Knock, who are serving life sentences for smuggling marijuana and unsuccessfully requested clemency from former President Barack Obama.

Pelletier, a paralyzed inmate, received a life sentence for smuggling pot from Canada into Maine, jurisdictions where the drug is now legal or soon will be. Knock’s sentence inspired his sister Beth Curtis to create the advocacy website LifeforPot.com documenting similar cases. "I will die in prison if President Trump does not commute my sentence," Pelletier recently told the Washington Examiner. "Sometimes, I wonder if I'm dead already because I'm living in hell.”

A list of 17 women and six men prepared by CAN-DO was topped by drug-conspiracy convict Michelle West and mail-fraud inmate Connie Farris, women who recently expressed optimism about Trump’s clemency moves, saying they hoped to rejoin their families....

The advocate who brought lists to the White House received the impression that officials may be considering setting up an internal clemency commission to circumvent or supplement the work of the Justice Department’s Office of the Pardon Attorney.

In his remarks Friday morning, Trump claimed he was reviewing 3,000 names of clemency aspirants and invited football players who claim unfairness in the legal system to submit more names.  It’s unclear if Trump actually has a list of 3,000 names.  It’s possible he was referring to the about 3,000 clemency applications — for pardons and commutations combined — that the Office of the Pardon Attorney received during his administration.  But the OPA, which clemency advocates consider slow and biased, has about 11,000 open cases that rolled over from Obama.

Although Trump referred to a clemency-reviewing “committee” on Friday, a White House official said that clemency petitions currently are being reviewed through the standard process, featuring the pardon attorney's office. There's some indication that's the case. Before Trump issued his second pardon to former Navy sailor Kristian Saucier, for example, the OPA abruptly reopened Saucier's case and sent him a detailed personal questionnaire.

“The White House will continue to review pardons and make decisions on a rolling basis,” the official said. “The White House and the Department of Justice receives thousands of clemency applications per year. The Office of the Pardon Attorney at the Department of Justice and the Deputy Attorney General review these applications in order to make recommendations to the White House on potential pardons."...

Amy Povah, the leader of the CAN-Do Foundation, said she’s pleased with Trump’s recent emphasis on clemency. So far, Trump has issued two prison commutations and five pardons, but the quickening pace is giving aspirants hope. “I have always felt that President Trump would be interested in clemency if he understood the fundamental problem with the Office of the Pardon Attorney being controlled by DOJ,” Povah said. “It's a conflict of interest for DOJ to have final say, which is why some of the best cases never made it to the White House during the Obama administration, like Alice Johnson.”

Margaret Love, who served as U.S. pardon attorney between 1990 and 1997, said she’s also optimistic. “It’s great news that the president may be interested in considering additional cases involving harsh prison sentences,” Love told the Washington Examiner. “President Obama’s clemency program was a good start but he left many deserving cases behind.”

As regular readers may recall, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."  I that article I suggested, as a number of commentators have, that the President set up some kind of "Clemency Commission" that would be apart from the work and workings of the Justice Department.  It seems that Prez Obama did not really heed my clemency commission advice (though he ended up doing some good clemency work at the very tail end of his Presidency).  Here is hoping maybe Prez Trump will engineer some needed structural changes. 

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

June 11, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, June 10, 2018

Former US Pardon Attorney explains why "Trump’s pardons are really not out of the ordinary"

Margaret Colgate Love, who served as U.S. pardon attorney from 1990 to 1997, has this terrific recent Washington Post piece headlined "Trump’s pardons really aren’t out of the ordinary." Here is how it starts and ends:

President Trump’s newfound enthusiasm for his pardon power has evoked consternation among his critics, in part because he appears to have bypassed the Justice Department’s pardon advisory program.  But having managed that program for almost a decade during the first Bush and Clinton administrations, and represented applicants for pardon and sentence commutation in the 20 years since, I find much of this criticism unwarranted.

There is nothing surprising or necessarily alarming about Trump’s embrace of this broad executive power — even if it has been unconventional.  His grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law.  While many may disagree with the president’s choices, each of them speaks to some widely acknowledged dysfunction in the criminal-justice system.

Moreover, each of his grants has some precedent in recent pardon practice. His most recent grant, to Alice Marie Johnson, a woman serving a life sentence for involvement in drug trafficking, carries on President Barack Obama’s program of sentence commutations. Even his pardon of former Maricopa County, Ariz., sheriff Joe Arpaio last summer echoes President Ronald Reagan’s decision to fulfill a campaign promise by preemptivelypardoning two FBI officials who had approved illegal surveillance of domestic terrorists.

In sum, Trump’s grants to date send a message that business as usual in the criminal-justice system will not be tolerated.  That is how the pardon power was designed to work by the framers of the Constitution.

But while Trump’s pardons are hardly unique, the process that produced them is troublesome.  Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy.  This makes a mockery of the pardon power’s historical operation as part of the justice system, manifested by its administration by the Justice Department since the Civil War.  President Bill Clinton similarly avoided the ordinary pardon review process at the end of his presidency, depriving his grants of legitimacy and threatening long-term damage to his reputation....

As a [reform] model, the federal government might consider Delaware’s clemency system, in which an official board chaired by the lieutenant governor serves as gatekeeper to the governor’s pardon power. This board and its small staff have produced hundreds of recommendations each year, mostly accepted by the governor.  Significantly, the Delaware attorney general’s role is strictly one of an advocate.

While the president’s pardoning options could not be limited without a constitutional amendment, the many practical and political virtues of a Delaware-like management system should encourage presidential compliance.  Congress might even offer a record-sealing benefit for cases that go through the regular process, as South Dakota’s legislature did several years ago after hundreds of “secret” gubernatorial pardons came to light.  This would not only lend greater credibility to specific grants but could also allow pardons to play a more effective role in regulating the operation of the justice system and encouraging law reform.

There are many reasons to be guardedly grateful that Trump has taken an interest in this time-honored constitutional power.  But now we must encourage him to use it more responsibly for the benefit of those who have no friends in high places, if not for the benefit of his own legacy.

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

June 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Jeff Sessions Struggles to Get Planned Marijuana Crackdown Going"

The title of this post is the headline of this new Wall Street Journal article with this subtitle summarizing its contents: "Attorney general vowed to toughen federal enforcement of the drug, but he doesn’t have support from Trump or Congress." Here are excerpts: 

Attorney General Jeff Sessions vowed to use federal law to get tough on marijuana, announcing in January he was ending Obama-era protections for the nascent pot industry in states where it is legal. Six months into his mission, he is largely going it alone.

Mr. Sessions’ own prosecutors have yet to bring federal charges against pot businesses that are abiding by state law. And fellow Republicans in Congress, with support from President Donald Trump, are promoting several bills that would protect or even expand the legal pot trade.

As a result, Mr. Sessions, an unabashed drug warrior, has struggled to make his anti-marijuana agenda a reality, a notable contrast with the success he has had in toughening law-and-order policies in other criminal justice areas.

Marijuana advocates say Mr. Sessions’ approach, in seeking to spur a crackdown on the legal marijuana market, has largely backfired. It has catalyzed bipartisan support for research, they say, and for action to improve the young industry’s access to banks, which have been generally unwilling to accept proceeds from pot sales.

Underlining the pushback, Sen. Cory Gardner, (R., Colo.) on Thursday joined Sen. Elizabeth Warren (D., Mass.) in introducing a bill that essentially would allow states to pass their own marijuana laws without interference from the federal government. Mr. Trump on Friday reiterated his support for Mr. Gardner, saying “I know exactly what he’s doing, we’re looking at it, but I probably will end up supporting that, yes.”...

In an unusual move by a Republican senator against his own party’s attorney general, Mr. Gardner blocked nominees for Justice Department jobs after Mr. Sessions announced he was undoing the Obama administration’s approach. Mr. Gardner stood down after receiving assurances that Mr. Trump would support protections for pot-legal states like Colorado, essentially undermining Mr. Sessions on the issue. “If they’ve voted to have a legal industry, then it would allow them to continue forward without violating any federal law,” Mr. Gardner said of the bill he co-authored with Ms. Warren.

House Republicans are also supporting a number of other marijuana-related measures. Rep. Matt Gaetz (R., Fla.) is pushing his colleagues to allow more marijuana research, which he hopes will pave the way to rescheduling pot—that is, categorizing it with less dangerous drugs on the Drug Enforcement Administration’s list of illicit substances.

Supporters of relaxing marijuana drug laws cheer the recent developments. “It was terrific,” said Don Murphy, director of federal policy for the Marijuana Policy Project, said of Mr. Sessions’ threat to the industry. “It moved this issue to a burner.” Pot foes caution it is too soon to judge the impact of Mr. Sessions’ changes. “It’s not a win for Jeff Sessions, but at the end of the day he still directs the department and could have the DEA close marijuana businesses,” said Kevin Sabet, president and CEO of the antipot group Smart Approaches to Marijuana.

Mr. Sessions’ January marijuana policy left federal prosecutors to decide what resources to devote to marijuana crimes, stirring fear among dispensary owners that raids and arrests were imminent. Instead, many U.S. attorneys continued to use their limited manpower to target unusually brazen marijuana operations that are also illegal under state law, such as sprawling marijuana growers on federal lands or gangs that peddle pot along with other drugs.

Billy Williams, Oregon’s U.S. attorney, for example, is targeting the trafficking of marijuana across state lines, organized crime and businesses that supply pot to minors. This in many ways resembles the policy that prevailed under the Obama administration, which urged states to tightly regulate marijuana and keep it from crossing state lines to avoid federal scrutiny. “I’m not making any blanket statements that we wouldn’t prosecute anyone,” Mr. Williams said. “It’s a case-by-case basis.”

Colorado’s U.S. attorney, Bob Troyer, is aggressively prosecuting drug traffickers who grow pot on federal lands, which is against both state and federal law. But his office hasn’t brought charges against dispensaries that comply with the state’s regulations. “We never would give anyone immunity for violating federal law,” Mr. Troyer said. “As those threats evolve and change, something else could rise to the top priority level.”

All the particulars of these stories should be familiar to regular readers of my Marijuana Law, Policy and Reform blog, and here are just a few of many recent posts providing more of those particulars:

June 10, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1)

Saturday, June 09, 2018

Latest notable statements by AG Jeff Sessions about crime rates and overdose deaths

Just like US Presidents gets to see official jobs numbers before they are officially made public, I suspect US Attorneys General get to see crime data before they are officially made public.  I am thus always eager to see what AG Jeff Sessions has to say about crime trends, and so these comments made Friday as part of these extended remarks to the Western Conservative Summit caught my eye:

In the Trump administration, we know whose side we’re on.  We’re on the side of law and order — and we back the blue, not the criminals.  We want every American to live in peace.

In recent weeks I sent in reinforcements: more than 300 additional federal prosecutors to high-crime parts of this country.  This is the biggest surge in prosecutors in decades.

These efforts are especially important because, when President Trump took office, the country had been reeling from a sudden increase in crime.  Crime had been declining for two decades. The violent crime rate had been cut in half.  The murder rate was cut in half.  Aggravated assault was cut almost in half. Robbery fell by 62 percent.

But from 2014 to 2016, those trends reversed. In the last two years of the Obama administration, 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 more than 20 percent.

But under President Donald Trump, we are stopping these trends. He is a strong supporter of our law enforcement efforts. As he said during Police Week, “If we want to bring violent crime down, then we must stand up for our police.”  And make no mistake, our goal is to bring crime down.

In the Trump era, the ACLU isn’t making our law enforcement policies.  The professionals are. And we’re seeing results. In the first six months of last year, the increases in the murder rate slowed and violent crime actually went down.  Publicly available data for the rest of the year suggest further progress.

Preliminary data for 2018 look even better.  The Major City Police Chiefs Association has reported a 3.8 percent decline in violent crime and 4.7 percent decline in murders, based on 65 reporting agencies.

New CDC preliminary data show that last fall, drug overdoses finally started to decline.  Heroin overdose deaths declined steadily from June to October, as did overdose deaths from prescription opioids.

We need this progress right now — because not only was crime increasing at the end of the Obama administration, but drug overdose deaths in this country increased by more than a third in just two years.

June 9, 2018 in Criminal justice in the Trump Administration, National and State Crime Data, Who Sentences | Permalink | Comments (0)

Thursday, June 07, 2018

Any suggestions for Prez Trump's "growing list of potential pardons or commutations"?

The question in the title of this post is prompted by this ABC News article headlined "Trump’s ‘solo act’ push for presidential pardons likely to grow, WH officials say." Here are excerpts:

The White House has been working to prepare documents for a growing list of potential pardons or commutations under consideration by President Donald Trump, two senior administration officials told ABC News Thursday. "You don't want to be the person empty-handed when he's asking," one of the officials said. "Need to be ready when the boss is ready to go.”

Officials describe the push for pardons as "a solo act," pointing directly to Trump’s pushing for more and more names. White House aides believe Trump is grasping for names he knows like Martha Stewart and former Illinois Gov. Rod Blagojevich, sources told ABC News, while the aides lobby the president to consider also more unknown Americans who have been behind bars for nonviolent crimes.

The sources said they expect the president's list to grow in the coming weeks. "He's doing it his way and he likes seeing how quick the process has been," one of the sources said. The White House, as ABC News has reported, has been going around the Department of Justice, which is usually heavily involved in such cases.

I sincerely doubt Prez Trump or his aides read this blog and its comments, but one never knows.  So, dear readers, with Prez Trump reportedly "pushing for more and more names," let's give him more and more names.

Especially in light of modern marijuana reforms, I hope someone points Prez Trump and his aides to the Life for Pot site which has detailed lists of Nonviolent Inmates (over 62) Serving​ Life without Parole for Marijuana and Inmates(under 62) Serving ​Sentences of Life without Parole in Federal Prison for Marijuana.  And I cannot help but view John Knock as the first among equals on that list, in part because of the amazing work his sister has done to bring attention to his story and those of other similarly over-sentenced federal defendants.

The amazing Shon Hopwood and FAMM's Kevin Ring has been championing the cause of Matthew Charles (discussed in this recent post), so I am hopeful that his name is already on the radar of folks at the White House.   But I know there are thousands, likely tens of thousands, of persons who can make a reasonable case for receiving clemency in the form of a commutation or pardon.  I welcome names to be listed and cases to be made in the comments.   

UPDATE: This Washington Post WonkBlog piece spotlights a ready source for clemency candidates. The piece is headlined "It’s not just Alice Marie Johnson: Over 2,000 federal prisoners are serving life sentences for nonviolent drug crimes," and it starts this way:

On the advice of Kim Kardashian, President Trump on Wednesday commuted the prison term of Alice Marie Johnson, a 63-year-old great-grandmother, who in 1996 was sentenced to life without parole in federal prison on nonviolent drug and money laundering charges.

It's a somewhat surprising move coming from Trump, a president who has publicly called for executing drug dealers. But Jordan's case underscores how many nonviolent drug offenders are serving life terms in federal prison. According to federal corrections data analyzed by the Sentencing Project, a criminal-justice-reform group, as of 2016 1,907 federal inmates were serving life sentences for drug offenses, which are by definition nonviolent (more on that below).

An additional 103 offenders found guilty of those crimes were serving “virtual life sentences,” which the Sentencing Project defines as sentences of 50 years or more. Under federal law, there is no possibility of parole for crimes committed after Nov. 1, 1987.

June 7, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act

As reported in this article from The Hill, a "group of 40 former state and federal inmates is pushing Senate leaders to take up the White House-backed prison reform bill that has divided Democrats and liberal groups, as well as GOP senators." Here is more:

In a letter Wednesday to Senate Majority Leader Mitch McConnell (R-Ky.), Minority Leader Charles Schumer (D-N.Y.), Judiciary Committee Chairman Chuck Grassley (R-Iowa) and ranking member Dianne Feinstein (D-Calif.), the former prisoners argue the First Step Act, while modest, offers some meaningful reforms....

The former inmates say they know the bill isn’t perfect, but it’s something. “All of us would change the bill in different ways and many of us wished it addressed excessive federal mandatory minimum sentences,” they wrote.  “But we also know that the bill would provide some long overdue relief and hope to more than 180,000 people in federal prison and millions of their family members and loved ones on the outside.”...

Supporters of prison reform say demands for all or nothing is the wrong approach. “We’ve been disturbed by some of the comments we’ve heard that doing nothing is better than doing something and that is not at all what we hear from the tens of thousands of prisoners we’re in touch with,” said Kevin Ring, president of Families against Mandatory Minimums, who spent one-and-a-half years in federal prison. “It’s also inconsistent with our own experiences being in federal prisons and knowing how much reform is needed. Waiting to do anything until you get everything is deeply misguided.”

The full letter and the list of signatories is available at this link. Here is an excerpt of a missive that merits a full read:

Despite the bill’s clear benefits, we have heard some people suggest it would be better for Congress to do nothing rather than pass this bill.  Such talk reflects a disturbing detachment from the hardships that so many families are experiencing today because of our counterproductive federal sentencing and prison policies.

While we do not claim to speak for all people who are serving time in federal prison or their families, we (or the organizations at which we work) are in touch with tens of thousands of these incarcerated individuals and their families every week.  Many of us still have friends and loved ones behind bars.  The people we talk to have no use for abstract debates about whether to pass comprehensive or narrow reform, speculative theories about how passing reform today might impact future reform or, worst of all, political gamesmanship.  These families just need some help.  They shouldn’t have to wait any longer.

We also know from our personal experience that meaningful programming, educational, and job training opportunities in the federal system are lacking.  All too often people are warehoused for decades with no hope.  We know that too many parents are incarcerated so far away from their children that they rarely get to visit them — just imagine seeing your kids once or twice a year, if that.  Going without the hugs and kisses of our loved ones for weeks and months was the most difficult part about being in prison.  We know others who have gone for years without that critical physical contact.  We also know that the Federal Bureau of Prisons’ incorrect calculation of good time credit has deprived people of shortening their lengthy prison sentences.  If anyone tells you these reforms are not “real” or “meaningful” to vulnerable families and individuals across the country, they simply don’t know what they are talking about.

Some of many prior related posts:

June 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Wednesday, June 06, 2018

Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!

Only a week after an in-person meeting with Prez Trump, Kim Kardashian West can and should be credited with getting President Donald Trump to do something bold and consequential with his clemency power.  This official White House statement explains:

Today, President Donald J. Trump granted a commutation to Alice Marie Johnson, a 63-year-old great-grandmother who has served almost 22 years in Federal prison for a first-time criminal offense.

Ms. Johnson has accepted responsibility for her past behavior and has been a model prisoner over the past two decades.  Despite receiving a life sentence, Alice worked hard to rehabilitate herself in prison, and act as a mentor to her fellow inmates.  Her Warden, Case Manager, and Vocational Training Instructor have all written letters in support of her clemency.  According to her Warden, Arcala Washington-Adduci, “since [Ms. Johnson’s] arrival at this institution, she has exhibited outstanding and exemplary work ethic. She is considered to be a model inmate who is willing to go above and beyond in all work tasks.”

While this Administration will always be very tough on crime, it believes that those who have paid their debt to society and worked hard to better themselves while in prison deserve a second chance.

I give Prez Trump a lot of credit for now moving beyond seemingly politically-motivated clemencies on to seemingly celebrity-motivated clemencies.  Excitingly, this CNN report today, headlined "Exclusive: Trump considers dozens of new pardons," reports that the Trump Administration "has prepared the pardoning paperwork for at least 30 people," which means we might soon get a lot more than just political-celebrity-buzz-worthy grants. 

As we anticipate even more clemency action, I hope someone makes sure to tell Prez Trump that he is now still 1713 commutations (including 567 LWOP sentences) behind President Barack Obama's modern records.  As this accounting highlights, Prez Obama, after a slow start, became the modern pace setter for federal clemency.  Here is hoping that Prez Trump will look to break Prez Obama's record.

Especially amusing among the stories covering all these clemency developments is this new Splinter piece (which predates the grant to Ms. Johnson).  It is titled "Donald Trump is Reportedly Torn Between Kim Kardashian and John Kelly," and it starts this way:

Picture if you will a befuddled Donald Trump. On one shoulder is a tiny Kim Kardashian angel. A tiny John Kelly devil is perched on the other. Both Kelly and Kardashian begin whispering their advice into the president’s ears.

That, essentially, is what is apparently taking place at the White House, as Trump mulls a pardon for 63-year-old Alice Johnson—a great-grandmother currently serving out a life sentence in prison for a non-violent drug-related conviction—following Kardashian’s high profile oval office visit in late May.

Oh how I wish I had the computer graphics skills to turn this imagined Kimme/Kelly shoulder debate into the gif that keeps on giving, especially now that we know how it turned out.

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

June 6, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (21)

Tuesday, June 05, 2018

Prez Trump reportedly "obsessed" with pardons and "may sign a dozen or more in the next two months"

The latest dispatch from inside the Beltway on the clemency front comes in the form of this juicy new Washington Post article headlined "Trump fixates on pardons, could soon give reprieve to 63-year-old woman after meeting with Kim Kardashian." The entire article is a must-read, and here are just a few highlights:

President Trump has become fixated on his ability to issue pardons, asking his aides to compile a list of candidates and stirring dissent in the West Wing with his mercurial and seemingly celebrity-driven decisions.

Trump is telling aides that he is now strongly considering pardoning Alice Marie Johnson, a 63-year-old woman serving a life sentence for a nonviolent crime, after meeting with Kim Kardashian last week to discuss her case — a move being resisted by his chief of staff and a top White House lawyer....

A White House official who, like others, spoke on the condition of anonymity said Trump is “obsessed” with pardons, describing them as the president’s new “favorite thing” to talk about. He may sign a dozen or more in the next two months, this person added.

“It’s all part of the show,” said veteran Republican consultant Ed Rollins, a former strategist for a pro-Trump super PAC. “It’s not a rational or traditional process but about celebrity or who they know, or who he sees on ‘Fox & Friends.’ He’s sending the message, ‘I can do whatever I want, and I could certainly pardon someone down the line on the Russia probe.’ ”

The pardon for Johnson could come soon, with the paperwork being finalized Tuesday morning, according to a person familiar with the discussions. Trump’s aides and associates see Kardashian’s celebrity imprimatur as crucial and alluring to the president. But the potential pardon of Johnson has caused consternation in the West Wing, with top advisers — including chief of staff John F. Kelly and White House counsel Donald McGahn — disturbed by the process, according to two people familiar with the discussions.

Kelly has reviewed Johnson’s background and her 1996 conviction — she was sentenced to life in prison on drug possession and money laundering charges — and is not convinced she deserves a pardon, an administration official said. And McGahn has also argued against the possible pardon as an unnecessary action by the president, a second official said.

Jared Kushner, the president’s son-in-law and senior adviser who helped arrange the meeting with Kardashian in the Oval Office last week, has heavily pushed for a pardon for Johnson within the West Wing, these officials said. Kushner attended the meeting between Trump and Kardashian, and having recently had his security clearance reinstated, has been described as newly emboldened by White House aides.

A White House spokesperson said the administration had no current announcements to make on pardons and declined to discuss the specifics of ongoing deliberations....

Trump’s pardons so far have been scattershot, driven by television segments, celebrities, friends and White House advisers who have pressed their cases for pardons that include controversial Sheriff Joe Arpaio, conservative commentator Dinesh D’Souza and Lewis “Scooter” Libby, former chief of staff to Vice President Richard B. Cheney. He also posthumously pardoned heavyweight boxing champion Jack Johnson in May, after being lobbied by actor Sylvester Stallone....

Trump has begun asking friends who else he should pardon, according to an adviser who frequently speaks to the president, and some have offered suggestions. The president has asked McGahn to prepare a list of other pardons for him to consider, administration officials said.

Some people seeking pardons are now making their case on Fox News, the president’s favorite channel, knowing he may be watching. Patti Blagojevich, the former governor’s wife, appeared on “Justice with Judge Jeanine” Saturday night.... On Monday, the wife of former Trump foreign policy adviser George Papadopoulos went on Fox News’ “Tucker Carlson Tonight” and for the first time said she believed Trump should pardon her husband, who pleaded guilty in October to lying to the FBI about Russia contacts during the campaign. Papadopoulos is awaiting sentencing on the felony charge....

The White House is also now weighing whether to grant a presidential pardon to two ranchers from eastern Oregon, Dwight and Steven Hammond, whose 2016 imprisonment on arson charges inspired the 41 day-armed occupation of the Malheur National Wildlife Refuge. Ranching and farming groups, as well as some militia adherents, have pushed for clemency to send a signal that federal officials won’t engage in overreach out West.

The Hammonds’ supporters argue that the two men, originally convicted in 2012 on two counts of arson, shouldn’t have been forced to serve jail time on two separate occasions. While they would have normally served a mandatory minimum sentence of five years, U.S. District Judge Michael Hogan initially gave Dwight Hammond three months and his son Steven a year and a day behind bars. But the government won an appeal over the Hammonds’ sentence in 2015, so they were resentenced to serve out the remaining years of a five-year minimum.

Prior recent related posts about Trumpian clemency activity:

June 5, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Is all the recent Trump clemency action creating (unhealthy?) excitement among federal prisoners?

The question in the title of this post is prompted by this lengthy Washington Examiner article headlined "Alan Dershowitz says anyone can get clemency from Trump, as buzz builds behind bars." Here are excerpts:

President Trump issued his first prison commutation after lunch with Alan Dershowitz. The men talked about Mideast politics before Trump "asked me what else was on my mind, and I told him.  I took advantage of the moment,” the longtime Harvard law professor recalled.

Dershowitz told the president about Sholom Rubashkin, a kosher meatpacking executive who was seven years into a 27-year prison sentence for financial crimes. Not long after, Rubashkin in December became the first — and so far only — person Trump released from prison. "You have to appeal to his sense of injustice," said Dershowitz, who often says on TV that Trump is treated unfairly in special counsel Robert Mueller’s Russia probe. "He feels he is now being subject to injustice, and so he's very sensitive to injustices."

Trump's approach to clemency, exhibited with a flurry of recent statements and official actions, is markedly different from his recent predecessors, generating enormous excitement among inmates.  Dershowitz believes just about anyone has a shot at bending Trump's ear, even though most successful cases have been pushed by well-connected advocates.   "I think if you write a letter to the president and you set down the case in a compassionate way, I think his staff knows that he's looking for cases of injustice. But you have to write it in a compelling way,” he said. “They have to write something that will catch the attention of someone on the president's staff."

So far, Trump has issued one prison commutation and five pardons.  But the pace is quickening.  Last week, he posthumously pardoned boxer Jack Johnson at the behest of “Rocky” actor Sylvester Stallone, saying Johnson’s early 1900s conviction was a race-motivated injustice.  On Wednesday, Trump met in the Oval Office with celebrity Kim Kardashian, who lobbied him to release Alice Johnson, a grandmother jailed for life since 1996 on drug-dealing charges.  Early on Thursday, Trump tweeted that he would pardon conservative author Dinesh D'Souza, who pleaded guilty in 2014 to a campaign-finance felony. Hours later, Trump told reporters he was considering pardoning celebrity chef Martha Stewart and former Gov. Rod Blagojevich, the Illinois Democrat who allegedly tried to sell President Barack Obama's Senate seat.

Although Johnson has not been given clemency, she remains optimistic.  “I'm feeling very hopeful after speaking with Kim about how well the meeting went with President Trump,” Johnson said in an email from prison Friday, facilitated by her longtime supporter Amy Povah, who leads the CAN-DO Foundation....  “I have strong reason to believe that President Trump is going to surprise many people,” said Povah...

Dershowitz said there's a method to the apparent madness of Trump’s clemency grants, which are a sharp break from the early-term stinginess of his recent predecessors. "You have to make him say to himself, 'There but for the grace of God go I, or other people I identify with.' He has to feel the injustice. It's not enough to get online with hundreds of other people showing a law was misapplied. There has to be a sense of gut injustice,” he said....

If there’s anyone who would know Trump’s thinking on clemency, it’s Dershowitz. In addition to pushing Rubashkin’s release, he was consulted by Trump in advance of the recent pardons of D'Souza and I. Lewis "Scooter" Libby, a former aide to Vice President Dick Cheney who was convicted in 2007 but never imprisoned for making false statements. “I said I thought they were both injustices, that there was a whiff of politics around the decision to prosecute D’Souza, and that I did not think Scooter Libby had committed perjury — I thought there was just a difference in recollection,” Dershowitz said.

"When I made the appeal on behalf of Rubashkin, I said, 'You are a businessman, you understand what happens when the government and prosecutors manipulate the system and lower the value of your company in order to increase the value of losses and increase the sentence.' As soon as I said that, he said, 'I get that. I get that. I've been there,’” Dershowitz said. "He immediately glommed onto it because he understood the business implications of it ... there wouldn't have been any losses, or minor losses, but because the government drove the price down, it drove the sentencing guidelines way up."...

“I've always thought President Trump would step up and finish the job that President Obama started but never completed,” said Michelle West, a clemency aspirant in prison for drug-related crimes since 1994. “My daughter, Miquelle West, went to the Obama White House for a clemency summit. In our wildest dreams we never thought that I would be passed over considering she was invited to attend.” West said in an email relayed by Povah that “my daughter was 10 when I went to prison and I pray President Trump will consider me worthy of a second chance.”

Crystal Munoz, 11 years into a 20-year sentence for dealing marijuana, said that she, too, was hopeful, sending Povah the draft of a letter for Trump. Munoz, 38, gave birth to her youngest child in prison.  Connie Farris, a 73-year-old inmate jailed for mail fraud, said "I will never, never give up hope that our president will start releasing women such as myself and others. Please President Trump hear our cry." Farris, seven years into a 12-year sentence, said her husband of 53 years suffers from muscular dystrophy and needs her support.

Although there’s significant hope stemming from Trump’s unconventional approach, there’s also some skepticism that everyday inmates can win a presidential reprieve. “The problem is, the president’s process is a little haphazard, it seems, and a little ad hoc. And then you have this completely Byzantine dead-end of a process at the Justice Department,” said Kevin Ring, president of Families Against Mandatory Minimums.

“I think people are encouraged that he’s going around the Justice Department to look at deserving cases, but it’s not clear that anybody has the ability to get in front of him — so sort of good news, bad news,” he said.  Ring said Dershowitz’s contention that anyone can win clemency with a letter is “a little naive.”  

“There are people who buy lottery tickets every Friday and they’re optimistic because they don’t know the odds. And when people see a winner, that gives them hope,” he said.

Like Kevin Ring, I am a bit concerned to hear that there may be "enormous excitement among inmates" given Prez Trump's clemency record to date.  He has only commuted a single sentence so far, and I have no reason to believe he has plans to start issuing dozens (let along hundreds) of additional commutations anytime soon.  Political realities has seemed to be influencing all of Prez Trump's clemency work to date, and precious few federal prisoner have political forces in their favor.  I sure hope Prez Trump will, as Amy Povah put it, "surprise many people," but I think hopes ought to be tempered for now.

Prior recent related posts about Trumpian clemency activity:

June 5, 2018 in Clemency and Pardons, Collateral consequences, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (7)

Monday, June 04, 2018

Calling Professor Pfaff: Attorney General Sessions announces 311 new Assistant United States Attorney positions

Though there are many elements and nuances to the teachings of Professor John Pfaff, I think of him first and foremost for the notion that, when concerned about modern mass incarceration, we all ought to pay a lot more attention to the role and work of prosecutors and ought to focus a lot more on how we handle violent crime and criminals.  Thus, I could not help but think of the fine Professor upon seeing this official press release today from the Department of Justice. 

Here is the press release's full title: "On the 500th Day of the Trump Administration, Attorney General Sessions Announces 311 New Assistant United States Attorney Positions: Largest Increase in AUSAs in Decades Allocates Prosecutors to Focus on Violent Crime, Civil Enforcement, and Immigration Crimes."  Here is its full text:  

Today, on the 500th day of the Trump Administration, Attorney General Jeff Sessions announced that the Department of Justice is taking a dramatic step to increase resources to combat violent crime, enforce our immigration laws, and help roll back the devastating opioid crisis.  In the largest increase in decades, the Department of Justice is allocating 311 new Assistant United States Attorneys to assist in priority areas.  Those allocations are as follows: 190 violent crime prosecutors, 86 civil enforcement prosecutors, and 35 additional immigration prosecutors.  Many of the civil enforcement AUSA’s will support the newly created Prescription Interdiction & Litigation Task Force which targets the opioid crisis at every level of the distribution system.

"Under President Trump's strong leadership, the Department of Justice is going on offense against violent crime, illegal immigration, and the opioid crisis — and today we are sending in reinforcements," said Attorney General Jeff Sessions.  "We have a saying in my office that a new federal prosecutor is 'the coin of the realm.'  When we can eliminate wasteful spending, one of my first questions to my staff is if we can deploy more prosecutors to where they are needed. I have personally worked to re-purpose existing funds to support this critical mission, and as a former federal prosecutor myself, my expectations could not be higher. These exceptional and talented prosecutors are key leaders in our crime fighting partnership.  This addition of new Assistant U.S. Attorney positions represents the largest increase in decades."

The statements that this is the largest increase in federal prosecutors in decades leads me to wonder, based largely on Professor Pfaff's work, if this personnel development may be more consequential to defining the future size and composition of the federal prison population than any statutory sentencing reform and prison reform bills being considered in Congress.  

June 4, 2018 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Saturday, June 02, 2018

"Pardon System Needs Fixing, Advocates Say, but They Cringe at Trump’s Approach"

The title of this post is the title of this lengthy new New York Times article.  I recommend it in full, and here are excerpts:

For those who view the Justice Department’s pardon system as slow and sclerotic, with its backlog of more than 11,000 cases, they need only look to the case of Matthew Charles.  Mr. Charles was sentenced in 1996 to 35 years in prison for selling crack cocaine. In prison, he took college classes, became a law clerk and taught fellow inmates.  He was released early, in 2016, and began rebuilding his life, volunteering at a food pantry and even falling in love.

Last month, Mr. Charles was sent back to prison after a federal court determined that he did not technically qualify for early release. His lawyers plan to ask the Justice Department to commute the rest of his sentence, and he appears to fall within its guidelines for clemency. But with nearly 9,000 petitioners for a commutation ahead of him, it could take years for federal law enforcement officials to decide his fate.

Cases like Mr. Charles’s make some criminal justice reform advocates say they would welcome a reform-minded president willing to bypass the system and more boldly wield the constitutional power to grant pardons.

Now they have one in President Trump, who has pardoned five people in his first 17 months in office and bypassed the Justice Department’s recommendation system to do so. This week, he pardoned Dinesh D’Souza, the conservative commentator who pleaded guilty in 2014 to violating campaign finance law. Mr. D’Souza responded on Twitter by claiming victory over what he viewed as a political prosecution and by mocking Preet Bharara, the former United States attorney in Manhattan whose office prosecuted the case.

But by choosing to pardon political supporters whose cases largely failed to meet the basic guidelines for pardons, Mr. Trump could turn a slow and imperfect system into an unequal and unjust one, both liberal and conservative advocates warn, in which those with fame, money or access to the president’s ear are first in line to receive clemency.

“A more regular and robust use of presidential clemency, and a willingness to go around the Justice Department process, would be applauded by many,” said Kevin Ring, a conservative public policy expert and the president of Families Against Mandatory Minimums. “The issue is whether the president will still apply standards and meritocracy. Will he weigh the injustices and mete out justice to reflect the needs of a situation? That doesn’t seem to be the case.”...

The pardon office has a reputation for slow decision making, in part because of the time needed to carefully vet a case. Of the backlog of 11,203 pardon and commutation cases, only 2,876 have been filed since Mr. Trump became president. A lack of resources has also bogged down the process, according to officials involved. The previous pardon attorney, Deborah Leff, resigned because she said she could not get the resources necessary to meet Mr. Obama’s goal to prioritize petitions that would shorten sentences for nonviolent drug offenders....

Advocates who want to see the pardon system overhauled generally support its guidelines for granting pardons and commuting sentences. In general, felons wait five years after conviction or release to petition for a pardon. They must show evidence of rehabilitation and demonstrate that they have led responsible and productive lives after release for a significant period of time. The recommendations of officials including federal prosecutors and judges are also taken into consideration.

“A president that circumvents this system is not necessarily a bad idea,” said Shon Hopwood, Mr. Charles’s lawyer. “Legal scholars have argued for years that it’s inappropriate to have the office of the pardon attorney at the Justice Department. It asks the people who grant pardons and clemency to correct their colleagues, the prosecutors who put people in prison.”

Some regular readers may recall that, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders." Here is a snippet from that piece (updated for Trumpian times):

President [Trump] ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, ... [the] basic idea is for President [Trump] to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency. Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice."

The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice.  In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems.  It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.

Prior recent related posts about Trumpian clemency activity:

June 2, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, May 31, 2018

Prez Trump meets with Kim Kardashian to discuss clemency ... and then tweets that he "Will be giving a Full Pardon to Dinesh D’Souza"

I have an inkling that years from now lots of academics may be able to get PhDs based on a robust analysis of President Trump's tweeting. And the last 24 hours would make for an especially interesting account of Prez Trump's various perspectives on criminal justice matters.  Here are just a few Trumpian tweet highlights:

"Great meeting with @KimKardashian today, talked about prison reform and sentencing."

"'The recusal of Jeff Sessions was an unforced betrayal of the President of the United States.' JOE DIGENOVA, former U.S. Attorney."

"Not that it matters but I never fired James Comey because of Russia! The Corrupt Mainstream Media loves to keep pushing that narrative, but they know it is not true!"

"Will be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government!"

This CNBC article provides some context for this latest (political) act of Presidential clemency in the last of these linked tweets:

President Donald Trump said Thursday he plans to issue a pardon to Dinesh D'Souza, a prominent conservative commentator and filmmaker who was convicted of making an illegal campaign contribution....

D'Souza pleaded guilty in 2014 to reimbursing two of his associates after directing them to contribute $10,000 each to the 2012 Senate campaign of Wendy Long. He also admitted that he knew what he was doing violated the law.

Then-U.S. attorney Preet Bharara announced D'Souza's conviction at the time. "Dinesh D'Souza attempted to illegally contribute over $10,000 to a Senate campaign, wilfully undermining the integrity of the campaign finance process," Bharara said. "Like many others before him, of all political stripes, he has had to answer for this crime -- here with a felony conviction."...

D'Souza was sentenced to spend an eight-hour day each week in community service as part of a five-year probationary term, according to the Southern District of New York. He also has to attend weekly counseling sessions and pay a $30,000 fine.

Texas Sen. Ted Cruz, an ally of both Trump and D'Souza, applauded Trump's decision in a tweet of his own....

The president has used his pardon power five other times since taking office, including the controversial pardoning of former Sheriff Joseph Arpaio in August 2017.

Though I am always pleased to see any president make robust use of his clemency powers, I find disconcerting the obvious affinity Prez Trump has for using this power for the benefit of prominent political allies.  I am surely naive to hope that Kim Kardashian could have explained to Prez Trump how it could be politically valuable for him to start granting clemency to a bunch of just "regular people" that he claims to care about so much.   As I see it, there are lots of federal felons other than Dinesh D'Souza who have been "treated very unfairly by our government!" Perhaps Prez Trump will see and act on that reality eventually. 

May 31, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)