Tuesday, November 05, 2019

Very different looks on criminal justice reform for governors in Oklahoma and New York

As spotlighted in prior posts here and here and here, Oklahoma this week saw a series of interesting and important criminal justice reform efforts culminate in the release of more than 400 prisoners as part of the largest mass commutation in U.S. history (details here).  Thanks to Twitter, I saw this video clip of persons being released from the Eddie Warrior Correctional Center.  Notably, in addition to being greeted by friends and families, the released individuals also saw Governor Kevin Stitt and First Lady Sarah Stitt awaiting their release to congratulate them.

Not long after I saw this video and the heartening involvement of Oklahoma Governor Stitt in this historic criminal justice reform story, I saw this press article discussing the disheartening work of New York Governor Cuomo is a much more discouraging criminal justice story.  The piece is headlined "Gov. Cuomo's Program for More Clemency Applications Appears to Stall, As Prisoners Wait and Hope for a Second Chance," and here are excerpts:

Governor Andrew Cuomo’s program to help more prisoners apply for clemency in New York State appears to be stalled and the Governor’s office is declining to explain why.

In 2017, Cuomo asked lawyers to volunteer to help identify prisoners worthy of his mercy, and assist them in making their best case for a shortened sentence. More than two hundred lawyers stepped up. But two years and thousands of pro bono hours later, Governor Cuomo has neither approved nor denied any of the 107 clemency applications filed through the program.

“It’s discouraging. We’ve put a lot of resources into it.” said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, which partnered with Families Against Mandatory Minimums and the State at the Governor’s request. “We put people away for ridiculous amounts of time, often for mistakes they made when they were very young,” Reimer added.

Lawyers involved in the NACDL/FAMM project tell News 4 because there has been no action in these cases, they are reluctant to take on new prisoners. More than 1,600 prisoners are currently waiting to be assigned attorneys through the project. “The idea that you can’t find a single one of those to grant is inconceivable to me. There’s just no greater feeling than giving somebody freedom,” said NYU Law Professor Rachel Barkow and author of "Prisoners of Politics."

The power to commute a prisoner’s sentence rests solely with the Governor. NACDL says the Cuomo administration has been highly cooperative, producing records and helping to vet cases.

Cuomo administration insiders familiar with the clemency review process say the problem is not that these cases are being ignored. Sources with first hand knowledge say the cases submitted by NACDL/FAMM were carefully reviewed by a team of attorneys inside the office of the Counsel to the Governor. They say the team identified a group of worthy candidates for a possible mid-year clemency grant this past Spring, but the Governor did not act.

Timing, they speculated, may have played a role, citing pushback from some law enforcement groups for Cuomo’s role in the early release of Judith Clark in May 2019. Clark was the getaway driver in the deadly 1981 Brink’s robbery and the Governor commuted her sentence to make her eligible for early parole. One person who has discussed the project at length with the Governor’s senior staff described a sense that politically speaking, “the bang was not worth the buck.”

Several sources familiar with the internal review process say the Governor’s office may have been taken aback by the large number of applications lawyers submitted on behalf of prisoners who committed violent felonies. These cases are more politically sensitive for a governor, because it is not uncommon for district attorneys, law enforcement groups and family members of victims to oppose early release.

But Norman Reimer says if the severity of the crimes is the reason for Cuomo’s inaction, that’s not how the governor’s office promised to approach this process. “What I like about Governor Cuomo’s initiative is he didn’t limit it based on the nature of the crime," said Reimer. "We pressed that issue and it was an affirmative decision by them to let the person’s record of rehabilitation speak the loudest, even in violent crimes.”

Governor Cuomo’s office did not respond to repeated requests for an explanation for his inaction on the NACDL/FAMM cases, nor for a breakdown of the clemency grants he has issued. According to public reports, Cuomo has commuted at least 18 sentences in almost nine years, including three in 2018.

Barkow says compared with some other Democratic governors, Cuomo has used his executive clemency powers sparingly. Gavin Newsom of California commuted the sentences of 23 prisoners since September of this year, including prisoners involved in violent felonies....

In last year's primary, the progressive wing of the Democratic party hammered Cuomo for what they considered insufficient criminal justice reforms. “The people who care about these issues want to see real results,” said Professor Barkow. “They want to see that people are walking the walk and not just kind of throwing talk out there.” As for Cuomo’s record on justice issues like clemency and marijuana legalization, Barkow added “It seems like the pattern is to wait and just make sure where the political winds are blowing.”

November 5, 2019 in Clemency and Pardons, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, November 03, 2019

"Criminal Justice Reform Is About People, Not Posturing"

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

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

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

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

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

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

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

Wednesday, October 30, 2019

"On One Issue, Americans Are United. Too Many Are Behind Bars."

The title of this post is the title of this New York Times commentary authored by Tina Rosenberg.  Here are excerpts:

Across America, Democrats and Republicans demonize each other — and then sit down to hammer out legislation to reduce mass incarceration.  Last December, Congress passed the First Step Act, which applies to federal prisons.  It increases opportunities for education and rehabilitation in prison, gives inmates more time off for good behavior, requires prisoners be placed closer to their families, and reduces mandatory minimum sentences for some drug offenses.

But the real progress is in the states — a broad range of them.  Texas, South Carolina, Georgia, Louisiana, Mississippi, Colorado, California, New Jersey and New York, among others, have all passed major criminal justice reforms.  This momentum shows what can be done.  At the same time, it highlights the rarity of bipartisan progress.

So what is it about criminal justice? It’s certainly not the case that crime lends itself to dispassionate, rational analysis. In the past, no issue seemed more politicized.  Many local politicians won because of 30-second ads showing how tough on crime they were.  Lee Atwater’s infamous Willie Horton ad for George H.W. Bush’s 1988 campaign was perhaps the nadir of American political communication until recently. Democrats also competed to be the toughest on crime and terrified voters — wrongly — with the specter of superpredators.

Creating mass incarceration 30 years ago was a bipartisan project.  So it’s fitting that undoing it is as well.

One reason for bipartisanship is that the criminal justice system has affected so many people — 30 percent of American adults have a criminal record, which the F.B.I. defines as an arrest on a felony charge.  “Every single American family is impacted by the broken justice system,” said Holly Harris, the executive director of Justice Action Network, which works with Republicans and Democrats at the federal and state level to reform criminal justice....

On criminal justice reforms, the language from left and right seems to be converging.  “Originally, conservatives talked about these issues in terms of public safety, recidivism reduction, curbing government spending and big government,” Ms. Harris said.  (The prison system is a perfect conservative target: a hugely expensive failure of a government program that deprives people of their freedom.)  “And progressives talked in terms of reducing racial disparities and increasing fairness.  But I’ve watched that evolve.”

October 30, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Notable review and reflection on Prez candidate criminal justice reform forum at Eastern State Penitentiary

Earlier this week, there was an historical (but ultimately disappointing) forum for Democratic Prez candidates at the historic Eastern State Penitentiary.  Here are two links providing an overview of the event: 

The headline of the Inquirer piece highlights the main reason I am inclined to call the event disappointing, though this effective Intercept piece by Alice Speri capture my mood even more fully.  The lengthy piece is headlined "The Presidential Town Hall On Mass Incarceration Was A Historic Moment And A Missed Opportunity," and here are excerpts:

The candidates who showed up on Monday — Sens. Kamala Harris and Cory Booker, and billionaire Tom Steyer — sat close to a few dozen audience members representing a wide range of justice reform organizations led by those who know the system best. There were hugs, selfies, and some hard questions. But most notable was the absence of most of the presidential candidates, including all the frontrunners, and the sometimes evasive answers of the candidates who did show up.

“In that room, you had some of the foremost leaders in the country, folks who have been working for decades to lift the systemic oppression of incarcerated people,” said J. Jondhi Harrell, a Philadelphia activist who spent 25 years in federal prison. “To those who say that they want to be president and have specific ideas about how to reform the system, you have the opportunity to speak to the experts in the field. To just wave this off and say it’s not important really speaks to what you feel not only about justice reform, but also about black and brown people.”

Erica Smith, a California-based organizer with a group that provides transitional housing for formerly incarcerated people, made a similar point. “I was disappointed that some of the other candidates didn’t value what we have to say enough to come have a discussion with us,” she said. “We are 70 million deep in the United States, people who are system-impacted. It’s just the feeling of being discarded once again.”...

In the end, those leaving the event said they were elated that something so unprecedented could have even happened, but they were hardly impressed with candidates’ turnout or commitments....

But while attendees gave the three candidates who showed up in Philadelphia credit for being there to hear them out, several said they left more convinced than ever that any real changes to the system would need to happen without politicians.

“Historically, I’ve seen the United States just ignore our communities and so I won’t feel hopeful until I see results,” said Josh Glenn, who runs a Philadelphia-based group for incarcerated youth and felt that Booker had skirted around a question he had asked about the Juvenile Justice and Delinquency Prevention Act. “I hope whatever president comes into office, that they do the right thing by our communities. But if they don’t, we’re going to stand up for ourselves, and we’re going to make sure that we get what we need on our own.”

October 30, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, October 29, 2019

Prez candidate Beto O'Rourke releases a "comprehensive plan to end mass incarceration"

Via this extended Medium posting, Beto O'Rourke has released what he titles "Beto’s Comprehensive Plan to End Mass Incarceration and Reform Our Criminal Justice System to Prioritize Rehabilitation." The plan is too lengthy and detailed for ready summary, but here are a few of the sentencing parts:

October 29, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Sunday, October 27, 2019

Mayor Pete Buttigeig releases extensive criminal justice reform plan expanding on prior Douglass Plan

Back in July, as detailed in this post, Mayor Pete Buttigieg introduced this notable platform titled "The Douglass Plan: A Comprehensive Investment in the Empowerment of Black America."  The plan, which aspires to "dismantle old systems and structures that inhibit prosperity and builds new ones that will unlock the collective potential of Black America," gives considerable attention to "Criminal Justice Reform," with nearly a quarter of this 18-page document focused on such matter. 

Not content, this weekend Mayor Buttigieg released an even more detailed an ambitious criminal justice reform plan at his campaign website under the heading "Securing Justice: Reforming Our Criminal Legal System." The full plan, which is available here and runs 16 dense pages with more than 70 footnotes, defies simple summarization. So here are a few sentencing part that caught my eye (with some formatting lost):

Pete is committed to reducing the number of people incarcerated in the United States at both the federal and state levels by 50%.... To remedy this, Pete will:

Double funding for federal grants for states that commit to meaningful reform and prioritize funding for programs aimed at pretrial reforms, decarceration, and expansion of alternative to incarceration (ATI) programs....

On the federal level, eliminate incarceration for drug possession, reduce sentences for other drug offenses, and apply these reductions retroactively....

Legalize marijuana and automatically expunge past convictions. Pete will push Congress to pass legislation requiring that a significant percentage of tax revenue flowing from legalization is directed back to the communities and people most devastated by the war on drugs....

Eliminate mandatory minimums. The average sentence for someone subject to a mandatory minimum penalty in 2017 was 138 months, compared to 28 months as the average sentence of people convicted of an offense that did not have a mandatory minimum sentence. Eliminating mandatory minimums and decreasing overall sentence length for a significant number of crimes is critical to ensuring that people are not incarcerated when there is no effect on public safety, and it will reduce incarceration. It also will eliminate the role mandatory minimums plays in incentivizing people to plead guilty for crimes they did not commit.

Direct the U.S. Sentencing Commission to explore sentencing caps for all crimes. America’s mass incarceration crisis has been driven in large part by excessive sentencing. Powerful evidence confirms that long sentences have not made Americans safer. Further, we know that people often “age out” of crime as they move through the course of their lives. For this reason, Pete is committed to exploring innovative policy solutions to address the nation’s over-incarceration crisis, such as caps on sentencing.

Commute the sentences of people who are incarcerated in the federal system beyond what justice warrants by establishing an independent clemency commission that sits outside the Department of Justice. An independent clemency commission, with diverse professional backgrounds and lived experiences, will make the process more streamlined and comprehensive....

Support a constitutional amendment to abolish the death penalty.

Reduce the over-reliance on solitary confinement and abolish its prolonged use, bringing the United States in line with international human rights standards, which define the use of solitary confinement in excess of 15 days as per se torture.

October 27, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Friday, October 25, 2019

"Tipping the Scales: Challengers Take On the Old Boys' Club of Elected Prosecutors"

The title of this post is the title of this interesting short report from the Reflective Democracy Campaign. Here is how it gets started:

After someone gets arrested, a prosecutor holds the power over what happens next.  Charge the defendant, or release them?  Charge them with a felony, or a misdemeanor? Since the vast majority of cases don’t go to trial, it’s mostly prosecutors — not judges — who determine whether defendants go to prison and for how long.  In the words of Supreme Court Justice Robert Jackson, a prosecutor “has more control over life, liberty, and reputation than any other person in America.”

In 2014, as a prosecutor in Ferguson failed to indict the police officer who killed Michael Brown, we were conducting our historic study of the race and gender of prosecutors. What we found made headlines:  95% of prosecutors were white, and 79% were white men.  Perhaps most alarming, most prosecutors ran for office unopposed, leading to an entrenched status quo which is highly resistant to bipartisan calls for criminal justice reform.

With race and gender inequality baked into the criminal justice system, repairing the broken demographics of prosecutorial power is an urgent goal, and the data are clear:When voters have a choice, they reject the white male status quo.  Competitive elections for prosecutor can fix the demographic crisis and level the playing field for system reform.

Five years after our initial analysis of elected prosecutors, we returned to see how their demographics have — and haven’t— changed.  Here’s what we found:

White control of elected prosecutor positions has not changed: In 2015, prosecutors were 95% white. In 2019, they are still 95% white.

The gender (im)balance of elected prosecutors is changing: While nearly 75% of prosecutors are white men, women have increased at a rate of 34% since 2015, from 18% to 24% of prosecutors.

Change is possible — when there is competition: Prosecutors run unopposed 80% of the time, but in competitive races, the old boys' club starts to give away. White male over-representation is rampant, but not unsolvable.

When women of all races and men ofcolor run for prosecutor in competitive elections, they're more likely to win than white men: In competitive 2018 elections, white men were 69% of candidates, but only 59% of winners. Women and people of color were 31% of candidates and 41% of winners.

Despite overall low numbers, women of color are making notable gains: There are nearly 50% more women of color prosecutors today as in 2015.

October 25, 2019 in Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (4)

Thursday, October 24, 2019

Julian Castro sets forth criminal justice agenda as "The First Chance Plan"

With this extended discussion on his campaign website, Julian Castro on Wednesday joined the sizeable group of prominent candidates for the 2020 Democratic Presidential nomination with a detailed agenda for criminal justice reform.  (Prior posts have links and highlights from Joe BidenCory BookerPete Buttigeig, Kamala Harris, Bernie Sanders and Elizabeth Warren.)  Castro's plan is called "The First Chance Plan" and has three major sections: "1. Prevention Not Prison  2. Restorative Justice  3. Healing Wounds Of Incarceration."  Here is a paragraph from the plan's intor and a few of many parts of the plan that caught my eye:

At the core of the First Chance Plan is the principle that everyone deserves an effective first chance to succeed. For decades, communities of color have been disproportionately punished by the justice system while at the same time having the odds stacked against them from the beginning.  Many people never had a first chance and this plan will right that wrong. As a nation, we need to focus on preventing crime in the first place, not creating pipelines into prison.  We can build a system that advances real justice, not incarceration, to protect public safety and build stronger communities....

End the War on Drugs. Drug use and addiction is primarily a public health challenge.  In dealing with it primarily as a criminal issue, we have shattered communities, strengthened criminal groups, and locked up those who did not deserve it.  As president, I will bring our misguided War on Drugs to an end....

Plea Reform and Accountability. More than 95 percent of all federal and state cases that end in conviction involve a plea deal.  These decisions happen without a judge or a jury of one’s peers, and often involve prosecutors and police exerting immense pressure, such as pre-trial detention and the threat of excessive sentences on defendants to drive people to take a plea bargain. Under these circumstances, even innocent people have accepted plea deals that involve years in jail,prison, years of monitoring, and permanent records. This is a travesty of justice that must end.  As president, I will require open-file, pre-plea discovery for federal cases, requiring the prosecution to turn over evidence to the defense prior to a plea or trial, with appropriate safeguards to protect the safety of witnesses and individuals who may be at risk.  Additionally, I will require juries to be informed of plea offers as well as potential sentences so they can understand how much a case is truly worth to the state.

Eliminate Mandatory Minimums. Three strikes laws and mandatory minimums are a major driver of mass incarceration. In addition, these laws create steep disparities between the terms of a plea bargain and the likely sentence at trial that defendants face, causing many to abandon their trial rights regardless of the strength of the government’s case or even their own innocence.  As president, I would repeal the 1994 Crime Bill’s mandatory minimums and three strikes laws, and encourage State efforts to do the same.

Invest in Public Defenders. Every defendant deserves to have effective representation and a fair trial.  As president, I will give our nation’s under-resourced and overstretched public defenders the resources they need. We will reopen and expand the Obama-era Office for Access to Justice that President Trump shut down.  Second, we will ensure fair caseload limits and pay equality with prosecutors for public defenders at the federal level, and create a new $500 million federal grant program to achieve these standards at the state and local level. I will also pass legislation creating a new loan forgiveness program for public defenders, and will support ushering in a new wave of proggressive prosecutors.

Legalize Marijuana and Expunge the Records. In 2017, there were almost 700,000 marijuana-related arrests in the United States, with over 80 percent of them related to possession alone. As president, I will legalize marijuana and expunge the records of those convicted for non-violent marijuana offenses.  We will regulate the market and place a tax on all recreational sales, investing billions in revenue generated in the communities disproportionately harmed by the War on Drugs.  Lastly, I will support equity in the legal marijuana industry, including by creating new grant programs that support minority-owned businesses and prioritize people directly affected by the war on drugs in receiving marijuana business licenses.

End Racial Sentencing Disparities. I will eliminate the sentencing disparity between crack and powder cocaine, and order a federal review of all other sentencing guidelines to identify and eliminate other racial disparities....

Abolish the Death Penalty.  There is no moral justification for state-sanctioned killings. Even the worst criminals in our society do not deserve to be put to death. With the pernicious existence of racial bias, the high financial cost of executions, and the disturbing reality that the innocent may be among the condemned, there is simply no justification for continuing the death penalty.  As president, I would order an immediate halt to all federal executions and commute the sentences of those on federal death row’s to life in prison.  I support federal grants for States to end the death penalty and to re-investigate the cases of those sentenced to death by State courts with new technology and renewed attention, in an effort to end the death penalty once and for all in the United States.

End Solitary Confinement as Punishment. Long term isolation in solitary confinement is one of the most harmful policies that remains sadly common in our prisons, jails, and even juvenile justice institutions. It particularly harms those with disabilities and who require mental health treatment.  As president, I will support efforts to end our nation’s use of solitary confinement by banning its use for purposes of punishment.

A few of many prior recent related posts:

October 24, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

Sunday, October 20, 2019

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

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

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

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

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

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

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

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

Thursday, October 10, 2019

Marshall Project reviews where 2020 Democratic Prez candidates stand on various criminal justice reform issues

The folks at The Marshall Project has put together this attractive and handy guide reporting and organizing all the position of the 2020 Democrats on criminal justice. I recommend the resource, and here are the issues on which positions are assembled:

How would you reform the bail system?

Should people in prison have the right to vote while they are incarcerated?

Should marijuana be legalized nationwide?

Should sentencing include mandatory minimums?

Do you support the death penalty?

Do you support decriminalizing illegal border crossings?

October 10, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Saturday, October 05, 2019

Making a righteous call for Prez candidates to walk the walk, and not just talk the talk, on criminal justice reform

This new USA Today commentary, authored by four criminal justice reform advocates who have all been previously incarcerated, astutely stresses that candidates for political office can and should do more than just talk about criminal justice reform in order to show real commitment on justice reform. Authored by Daryl Atkinson, Norris Henderson, DeAnna Hoskins and Vivian Nixon, I recommend the piece in full. Here are extended excerpts:

An examination of the criminal justice reform proposals of the Democratic presidential candidates shows similarities in policy priorities. Most, if not all, favor ending cash bail, prohibiting private companies from operating prisons, legalizing marijuana and reducing or eliminating mandatory minimum sentences.

Yet, nagging questions remain: Who is fully committed to fixing these problems? In other words, which candidate will take action when they stop campaigning and start governing?

It’s important to examine more than policy positions and take a look at candidates in their entirety.  Some have prioritized criminal justice reform throughout their careers. Others have announced policies during this campaign that are at odds with their legislative votes.  Others still have made controversial decisions while they worked within the criminal justice system. But most have not been heavily involved in the movement to end mass incarceration....

At long last, the American public has started to recognize the harmful impact of tough-on-crime policies.  It is no longer a risk for Democrats to say that mass incarceration must end — a testament to the tireless work and dedication of thousands of advocates and practitioners, many of whom have a criminal record or have returned to their communities after incarceration.  It also is not politically audacious to issue position papers on eliminating mandatory minimum sentences or providing better services for people reentering society.  In this day and age, the fact that we cannot punish our way into public safety has been definitively concluded.

But those running for the highest office in the country must go above and beyond these safe ideas if they want to show that they’re committed to more than just political rhetoric.  After all, even the current president has claimed to be a criminal justice reformer.  To set themselves apart from politics as usual, candidates must speak directly to the constituencies that have the most at stake on every issue, including mass incarceration.

There are plenty of criminal justice reform groups out there just like ours, and activists are waiting for the opportunity to talk to candidates about policy. Democrats have given time to groups that deal with gun-control issues and that are led by survivors of mass shootings and family members who have lost loved ones.  Beto O'Rourke of Texas met with a little over a dozen veterans in South Carolina to talk about issues that affect them.  Sen. Elizabeth Warren spent time in Philadelphia taking questions from teachers....

We are formerly incarcerated.  But we are citizens.  We vote.  And, we are influencers in progressive movements that address mass incarceration and related issues.  Candidates who commit to direct engagement with us will send a message of hope to energize an army of supporters whose numbers have unfortunately and regrettably grown way too big.

October 5, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Tuesday, September 24, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, September 04, 2019

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

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

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

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

Tuesday, August 06, 2019

Notable Govs make the case for pressing forward with additional criminal justice reforms

Jerry Brown, former governor of California, and Matt Bevin, current governor of Kentucky, have this new Hill commentary under the headline "The US has barely scratched the surface on criminal justice reform."  Here are excerpts:

In these highly polarized times, our nation is awash in loud and public fights about immigration, health care, global warming, and other daunting challenges. Criminal justice used to be on that list of divisive topics.  But now Americans of nearly every political and demographic perspective agree — we need a public safety approach that works better and costs less.

As current and former governors who prioritize greater justice and safety, we believe this historic moment carries great opportunity, but even greater responsibility.  We must ensure that our momentum does not slip away, and we must push forward with nonpartisan purpose toward a criminal justice system worthy of our nation.

Our states of Kentucky and California are very different.  But we and other leaders across the country have coalesced around the principle that while people must be held accountable for breaking our laws, we cannot build our way to a safer society with ever-more prisons....

But while several dozen states and the federal government have made laudable progress, we’ve barely scratched the surface of all that must be done.  Taxpayers spend a quarter trillion dollars per year to arrest, try, sentence, and supervise the 7 million adults behind bars or on probation and parole.  Yet return-to-prison rates remain high, too many communities struggle with violence and substance abuse, and new technologies are increasing our vulnerability to cybercrime and other threats.

Fortunately, we know a lot more about what works in criminal justice than we did 40 years ago, when our nation began an incarceration boom that has exacted a heavy toll, in both fiscal and human costs.  While there are no magic bullets, research has spotlighted effective strategies to stop the cycle of reoffending and better equip people leaving prison to resume stable lives....

We’ve witnessed the power of shifting political winds, and we know that, particularly with criminal justice reform, we must double down on our efforts and guard against backward-looking proposals that are borne of emotion or recycle failed ideas of the past.

August 6, 2019 in Elections and sentencing issues in political debates, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, August 05, 2019

Are pretrial risk assessment algorithms really part of "socialist agendas that are sweeping this country"?

The question in the title of this post is prompted by this curious new Fox News commentary authored by US Senator John Kennedy under the headline "Bail, bond decisions are being made today with algorithms -- That puts your safety at risk."  Here are excerpts:

Jurisdictions across the U.S. are snapping up algorithms as tools to help judges make bail and bond decisions. They’re being sold as race- and gender-neutral assessments that allow judges to use science in determining whether someone will behave if released from jail pending trial.

Really, they’re a dangerous collision of the poorly vetted cost cuts and socialist agendas that are sweeping this country.

The algorithms scare me because they’re being implemented for the same reason as the early release programs that are getting people killed.  The goal isn’t to protect public safety.  It’s to empty jail cells and release dangerous criminals on their own recognizance.

As a member of the Senate Judiciary Committee, I’m concerned about the recklessness of public policy that endangers people’s lives, especially in minority communities, where crime often is such a scourge.  These algorithms -- called pretrial assessment release tools -- are the equivalent of using a Magic 8 ball in courtrooms.  The results are disastrous to communities and great for criminals.

In my home state of Louisiana, New Orleans decided a few years ago to reduce the jail population. City officials started using a pretrial assessment release tool that was available for free from a nonprofit founded by a former hedge fund manager who became a billionaire through risky investments that turned into gold.

Do you know what happens when you allow a hedge fund manager to restructure your criminal justice system? You get a model that’s fraught with risk.

The new tool comes into play when someone is arrested on a felony charge, such as robbery or rape. The tool comes up with a score of one to five based on the defendant’s age, criminal history and several other factors. A “one” is considered a low risk to public safety. A “five” is considered justification for maximum supervision.

You would think that a risk level of “one” would be limited to people who jaywalk or shoplift. You would be wrong. In practice, a “five” apparently is reserved for people who kill busloads of nuns.  Ordinary thugs get a “one” as long as they promise that they’ll spend all their time in church and attend every court appearance.  They don’t have to regularly check in with a court officer or even call once a month....

The Metropolitan Crime Commission found that 37.6% of the people arrested for violent felonies in New Orleans during the third and fourth quarters of 2018 received the lowest risk level of “one.”  That included more than 32% of the people arrested for homicide and 36.5% of the people arrested for rape.

Algorithms diminish public safety in this country.  They ask us to pretend that lengthy arrest records and violent crimes don’t matter. They ask police to scoop up the bad guys only for the courts to immediately release them.  They turn us into a bad joke.

The use of risk assessment algorithms, whether pretrial or at sentencing or in the prison system, is an important modern criminal justice development that justifies much scrutiny and can be criticized on many grounds. But this commentary by Senator Kennedy reads a bit like a parody.

For starters, one of the main reasons risk assessments are appealing is because judicial decision-making without the help of data can itself often seem a lot like "Magic 8 ball" decision-making.  Moreover, all sound risk-assessment tools factor in arrest records and violent crimes, so they cannot properly be attacked for pretending that these past acts "don’t matter."  And, most amusingly, I cannot  quite fathom how efforts to make criminal justice decisions based on useful and relevant data amounts to part of "socialist agendas." 

I would welcome Senator Kennedy encouraging the Senate Judiciary Committee to hold hearings about the pros and cons of using risk assessment algorithms in modern criminal justice systems.  But, since he suggests giving judges more information is part of "socialist agendas that are sweeping this country," I worry he might think informing Senators more about these matters also somehow has mysterious sinister socialist undertones.

August 5, 2019 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (6)

Expressing concern about potential capital distraction from bipartisan criminal justice reform momentum

Laura Arnold has this notable new commentary at Law360 under the headline "Death Penalty Return May Undermine Criminal Justice Reform."  Here are excerpts:

Reasonable minds vociferously differ on, and will continue to debate, the morality of the death penalty. At this critical juncture and moment of opportunity for criminal justice, we must resist the urge to allow this debate to derail large-scale reform.

From a public policy, public safety and cost perspective, the federal death penalty pales in comparison to larger-scale reforms that we could enact today — areas where the White House could add to its bipartisan accomplishments.

There are roughly 171,000 convicted inmates in federal facilities and yet [AG Barr's restarting of executions] decision wastes precious political capital and national attention on a mere 62. Even if we end executions, those 62 will likely never set foot outside a prison for the rest of their lives. Their hearts will continue to beat, but their exile from the living world is immutable.

Meanwhile, there is much greater value in getting the system right for those among the 171,000 federal inmates and nearly 2 million in state and local facilities who have a chance of getting out. Those are the people helped by the First Step Act, and that is where we should continue to focus our efforts....

The death penalty raises a confluence of serious concerns that aren’t easily solved, ranging from constitutional questions to sheer public expense. No wonder that jurisdictions from coast to coast have stopped pursuing capital punishment. The number of death sentences declined by 50% between 2009 and 2015. In fact, only 16 counties out of 3,143 imposed five or more death sentences between 2010 and 2015.

Many advocates want to lower that number to zero. It’s a debate worth having, both at the federal level and in every state. Jurisdictions should, and will, make their own determinations, as they do on numerous issues of policy relevance.

But now is not the time to stoke this fight. We should focus all our bipartisan efforts on positively affecting the more than 2 million lives currently under incarceration nationwide, and on systemic improvements that will result in fewer people facing incarceration in the first place.

The Trump administration has demonstrated a passion for this mission, and a keen skill at building momentum amid an otherwise chaotic political atmosphere. Let’s not lose that momentum by derailing the conversation.

I very much like the message and spirit of this commentary, and long-time readers know I have long discussed in various settings the various problems I see from advocates and others giving so much attention to capital cases. (Some examples of my writings in this vein include A Capital Waste of Time? Examining the Supreme Court’s “Culture of Death,” 34 OHIO N.U. L. REV. 861 (2008) (available here) and Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 Harv. L.& Pol'y Rev. (2008) (available here).)

But, at the same time, I am not sure AG Barr's decision to try to kick-start the death penalty necessarily will or should have to negatively impact other bipartisan criminal justice reform efforts.  Though this may be wishful thinking, one might hope that the recent death penalty move by the Trump Administration may help mollify the "tough-and-tougher" crowd (likely Senators Cotton and Kennedy and certain pundits) who always pose challenges for further federal reforms.  

In months ahead, robust engagement with the federal death penalty will be taking place in federal courts, and I think it somewhat unpredictable whether and how this litigation will impact broader criminal justice reform politics.  But this commentary rightly flags an issue worth watching in the months and years ahead.

August 5, 2019 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Saturday, August 03, 2019

Rounding up some 2020 criminal justice reform press pieces

In the wake of the latest debate among Democrats vying for a 2020 Prez nomination, the Marshall Project had these two great pieces on the Democratic field and modern political realities:

"Beyond One-Liners: A Guide to the Democratic Debate on Criminal Justice"

"Are Voters Ready to Move on From Willie Horton?  Democratic debates show how far the conversation has come on justice reform."

In addition, a few other media outlets have had recent pieces in a somewhat similar same vein:

"Criminal Justice Reform Advocates See Prime Opportunity in 2020 Election"

"What's wrong with America's criminal justice system? 6 questions for an expert"

August 3, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, July 23, 2019

Former Veep Joe Biden releases extended "Plan for Strengthening America’s Commitment to Justice"

5cc204a166ae8f499c6db764-750-563As reported in this new Washington Post piece, headlined "Biden announces criminal justice policy sharply at odds with his ’94 crime law," the former Vice President and now Dem nominee front-runner Joe Biden has today release a big bold criminal justice reform plan that is new in various ways.  The Post piece provides some highlights and context, and it starts this way:

Former vice president Joe Biden, who has faced criticism from liberals for spearheading a 1994 law when he was a senator that cracked down on criminals, announced a proposal Tuesday that would eliminate the death penalty and embrace other changes at odds with that earlier legislation.

The Democratic presidential candidate would aim to pass legislation to abolish the death penalty at the federal level and offer incentives to states to follow suit, his new plan says. Convicted criminals who would face execution under current law would instead be sentenced to life in prison without the possibility of parole.

Biden’s plan also would decriminalize marijuana and expunge past cannabis-related convictions; end the disparity between sentences for powder and crack cocaine; and do away with all incarceration for drug use alone. In addition, it would create a $20 billion grant program to spur states to move from incarceration to crime prevention and eliminate mandatory-minimum sentences.

Attitudes about race and criminal justice have changed significantly over the years in both parties, partly as a result of decreasing crime rates. Democrats in particular have moved sharply away from ideas that give greater powers to the police and prosecutors, instead committing to addressing inequities that they say have damaged minority communities.

The release of Biden’s criminal justice plan comes about a week before the next round of televised Democratic primary debates, when his record is expected to come under renewed scrutiny. His support for the 1994 crime bill has been criticized by both Republicans and Democrats, who argue that it led to mass incarceration and tilted the system unfairly against African Americans.

Sen. Cory Booker (D-N.J.), one of Biden’s rivals for the Democratic nomination, offered a preview Monday morning of what is expected to come on the debate stage. “It’s not enough to tell us what you’re going to do for our communities, show us what you’ve done for the last 40 years,” Booker wrote on Twitter. “You created this system. We’ll dismantle it.”

The full "Biden Plan for Strengthening America’s Commitment to Justice" is available at this link, and it merits a read in full because it has a number of interesting elements. Here are a few excerpts from the start and from parts that caught my eye (without links and formatting):

Today, too many people are incarcerated in the United States — and too many of them are black and brown.  To build safe and healthy communities, we need to rethink who we’re sending to jail, how we treat those in jail, and how we help them get the health care, education, jobs, and housing they need to successfully rejoin society after they serve their time.  As president, Joe Biden will strengthen America’s commitment to justice and reform our criminal justice system.

The Biden Plan for Strengthening America’s Commitment to Justice is based on several core principles:

-- We can and must reduce the number of people incarcerated in this country while also reducing crime. No one should be incarcerated for drug use alone. Instead, they should be diverted to drug courts and treatment.  Reducing the number of incarcerated individuals will reduce federal spending on incarceration.  These savings should be reinvested in the communities impacted by mass incarceration....

-- Our criminal justice system cannot be just unless we root out the racial, gender, and income-based disparities in the system.... 

-- Our criminal justice system must be focused on redemption and rehabilitation. Making sure formerly incarcerated individuals have the opportunity to be productive members of our society is not only the right thing to do, it will also grow our economy....

-- Create a new $20 billion competitive grant program to spur states to shift from incarceration to prevention.  To accelerate criminal justice reform at the state and local levels, Biden will create a new grant program inspired by a proposal by the Brennan Center.  States, counties, and cities will receive funding to invest in efforts proven to reduce crime and incarceration, including efforts to address some of the factors like illiteracy and child abuse that are correlated with incarceration.  In order to receive this funding, states will have to eliminate mandatory minimums for non-violent crimes, institute earned credit programs, and take other steps to reduce incarceration rates without impacting public safety....

-- Establish an independent Task Force on Prosecutorial Discretion.  Law enforcement officials’ decisions regarding when to arrest, when to charge, and what charges to bring are critical decision-points in our criminal justice system.  The charges, for example, can dramatically impact not only what sentence someone ends up with but also whether they are compelled to take a plea bargain.  The Biden Administration will create a new task force, placed outside of the U.S. Department of Justice, to make recommendations for tackling discrimination and other problems in our justice system that results from arrest and charging decisions....

-- Eliminate mandatory minimums. Biden supports an end to mandatory minimums. As president, he will work for the passage of legislation to repeal mandatory minimums at the federal level. And, he will give states incentives to repeal their mandatory minimums.

-- End, once and for all, the federal crack and powder cocaine disparity.  The Obama-Biden Administration successfully narrowed the unjustified disparity between crack and powder cocaine sentences.  The Biden Administration will eliminate this disparity completely, as then-Senator Biden proposed in 2007.  And, Biden will ensure that this change is applied retroactively.

-- Decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions.  Biden believes no one should be in jail because of cannabis use.  As president, he will decriminalize cannabis use and automatically expunge prior convictions.  And, he will support the legalization of cannabis for medical purposes, leave decisions regarding legalization for recreational use up to the states, and reschedule cannabis as a schedule II drug so researchers can study its positive and negative impacts.

-- End all incarceration for drug use alone and instead divert individuals to drug courts and treatment. Biden believes that no one should be imprisoned for the use of illegal drugs alone. Instead, Biden will require federal courts to divert these individuals to drug courts so they receive treatment to address their substance use disorder. He’ll incentivize states to put the same requirements in place. And, he’ll expand funding for federal, state, and local drug courts.

-- Eliminate the death penalty. Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated. Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.  These individuals should instead serve life sentences without probation or parole.

-- Use the president’s clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes. President Obama used his clemency power more than any of the 10 prior presidents. Biden will continue this tradition and broadly use his clemency power for certain non-violent and drug crimes.

July 23, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Sunday, July 14, 2019

"Some Doubts About 'Democratizing' Criminal Justice"

The title of this post is the title of this new paper authored by John Rappaport and recently posted to SSRN. Here is its abstract:

The American criminal justice system’s ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportionately across racial groups, and police that seem to antagonize and hurt the now-distrustful communities they are tasked to serve and protect.  Systemic social ailments like these seldom permit straightforward diagnoses, let alone simple cures.  In this case, however, a large, diverse, and influential group of experts — the legal academy’s “democratizers” — all identify the same disease: the retreat of local democratic control in favor of a bureaucratic “machinery” disconnected from public values and the people themselves.  Neighborhood juries, for example, internalize the costs of punishing their own; neighborhood police, “of” and answerable to the community, think twice before drawing their weapons or stopping a local boy on a hunch. The experts and detached professionals who populate our dominant bureaucratic institutions, in contrast, are motivated by different, less salubrious, incentives.  Across the gamut of criminal justice decisionmaking, the democratizers maintain, the influence of the local laity is a moderating, equalizing, and ultimately legitimating one.  A generous dose of participatory democracy won’t solve all our problems, but it’s our best shot to get the criminal justice system back on its feet.

This Article’s warning is plain: don’t take the medicine.  “Democracy” and “community” wield undeniable rhetorical appeal but will not really fix what ails us — and may just make it worse.  The democratization movement, the Article argues, rests on conceptually problematic and empirically dubious premises about the makeup, preferences, and independence of local “communities.”  It relies on the proudly counterintuitive claim that laypeople are largely lenient and egalitarian, contrary to a wealth of social scientific evidence.  And ultimately, democratization’s dual commitments are on a collision course.  The democratizers simultaneously devote themselves to particular ends — amelioration of the biased and outsized carceral state — and to a particular means — participatory democracy.  What happens if, as this Article predicts, the means do not produce the ends? Which commitment prevails?  Worse yet, venerating lay opinion distracts from alternative visions of “democratic” criminal justice that more credibly tackle the critical question of how best to blend public accountability with evidence and expertise.

July 14, 2019 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, June 16, 2019

Noting that nearly all Democratic candidates are against the death penalty

This lengthy new San Francisco Chronicle article, headlined "Nearly all Democratic candidates oppose death penalty as public opinion shifts," reports on the new political reality surrounding death penalty view of leading candidates.  Here are excerpts:

Not so long ago, opposing the death penalty was pretty much a death knell for a presidential candidate.  Michael Dukakis, for one, sank his remaining hopes in 1988 when he told a debate questioner he would oppose execution even for someone who had raped and murdered his wife.

Now, in what appears to be another sign of a public turnabout on the issue, nearly all of the Democratic presidential hopefuls — with the notable exception of former Vice President Joe Biden — say they are against capital punishment....

If candidates “thought they were going to hurt themselves by coming out against the death penalty, I really think very few would do it,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles who specializes in election law and governance.  “I think the consensus (among candidates) is, this is where public opinion is or is about to be.”

Opinion polls indicate a decline in nationwide support for the death penalty, from 80% in a 1994 Gallup survey to 56% in October 2018.  A Quinnipiac University poll in March 2018 found that respondents favored life without parole over the death penalty for murder by 51% to 37%. And the polls say Democrats, who will vote in next year’s primaries, are more than three times as likely as Republicans to oppose the death penalty.

The president ... has direct authority over only the federal death penalty, which accounts for a fraction of the more than 2,700 death sentences now pending in the United States, including 735 in California.

Condemned federal prisoners include a few notorious cases — like Tsarnaev and Dylann Roof, the white supremacist who slaughtered nine African Americans at a South Carolina church in 2015 — but most of the 62 were convicted of murders that came under federal jurisdiction because they took place in federal prisons or other U.S. property or were connected to federal drug crimes.  The last federal execution took place in 2003.

Somewhat relatedly, Nicholas Kristof has this lengthy essay in the New York Times proving arguments for death penalty opposition unde the headline "When We Kill: Everything you think you know about the death penalty is wrong."

June 16, 2019 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Friday, June 14, 2019

"The Myth of Bipartisan Death Penalty Abolitionism"

The title of this post is the headline of this notable recent commentary by Charles Fain Lehman at the Washington Free Beacon. I recommend the whole piece, which is a response in part to a recent Atlantic commentary noted here.  Here is how Lehman's piece starts and ends (with links from the original):

Did you know that Republicans are "quietly turning against the death penalty"?  So sayeth the Atlantic, in a lengthy story published Sunday in the wake of New Hampshire's abolition of the death penalty.  Sunday's article is just the latest in "conservatives who oppose the death penalty" coverage.  Google some combination of "death penalty," "conservative," and "oppose" and you will find similar stories from outlets like the GuardianWall Street Journal, and Washington Post.

The Atlantic piece neatly summarized the tenor of such stories: "death-penalty reform has quietly broken through as a bipartisan issue — one that could portend a shaky future for capital punishment in the U.S."

The basis of this argument is that a handful of Republican state legislators have authored or signed on to legislative proposals to end the death penalty.  But the implication is that conservatives are slowly but steadily getting in line behind the liberal consensus against the death penalty.  That's total nonsense.  Let's look at the data.

The General Social Survey, a major survey of public opinion administered by the National Opinion Research Center at the University of Chicago, has routinely asked respondents about their views on the death penalty since 1974; it also tracks respondents' political views.  The results are pretty clear: Roughly three in four conservatives support the death penalty, and have done so at at least that rate since the 1970s....

To be sure, there are self-identified conservatives who oppose the death penalty, in much the same way that there are self-identified conservatives who call themselves pro-choice or reject the right to keep and bear arms.  But the survey data show that abolition has been and remains a clear minority view, among conservatives and indeed among Americans generally.

Why, then, does the mainstream media keep pushing the narrative that there is some emerging conservative consensus against the death penalty?  Why do they keep regurgitating the talking points of the same few advocates?  (The Atlantic article conspicuously lacks a quote from any expert who represents the majority of Americans who support the death penalty.)

On this we can only speculate.  But one thing is clear: When it comes to the death penalty, most of the media is on one side, and most conservatives — indeed the majority of Americans — are on the other.

June 14, 2019 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

Sunday, June 09, 2019

Has death penalty reform "quietly broken through as a bipartisan issue"?

About four years ago, I asked in this 2015 post "Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?".  That post was prompted by a commentary noting various anti-death penalty movements in various red states.  This new Atlantic piece, headlined "GOP Lawmakers Are Quietly Turning Against the Death Penalty," is written in this same spirit and inspired by the repeal of the death penalty in New Hampshire.  Here are excerpts:

Though law-and-order conservatives have long championed the death penalty, New Hampshire is one of a growing number of states where Republicans ... are joining Democrats to push for a ban.  Last week, New Hampshire became the 21st state to outlaw capital punishment, one of 11 states this year — including GOP strongholds such as Kansas, Wyoming, Kentucky, and Missouri — where Republican lawmakers have sponsored bills to end the practice.  The movement is the result of several political factors, including Republican and Democratic concern over the country’s criminal-justice system.  But it’s also been motivated by lawmakers’ personal experiences....  Death-penalty reform has quietly broken through as a bipartisan issue — one that could portend a shaky future for capital punishment in the U.S.

Lawmakers in New Hampshire had tried and failed to outlaw the death penalty for two decades.  In 2018, they got close: The GOP-controlled state legislature passed a repeal bill, though it didn’t have enough votes to override Republican Governor Chris Sununu’s quick veto.  This year was different.  A repeal bill, co-sponsored by Welch, passed both chambers with just enough bipartisan support to narrowly best the governor.

Of course, many Republican state lawmakers — not to mention the president — still support the death penalty.  So does their base: A 2018 Pew Research Center poll found that three-quarters of Republican voters favor capital punishment, compared with just 35 percent of Democrats.  And the overwhelming majority of executions take place in red states: Of the 25 prisoners put to death in the United States last year, 13 were in Texas alone.  Democrats still continue to lead the charge to abolish the death penalty throughout the country, and starting in 2016, the national party included it in its official platform.  Nevertheless, like other states, New Hampshire wouldn’t have been successful without the support of dozens of Republicans in the legislature....

It wasn’t always this way.  Politicians from both parties have historically used the death penalty as a wedge issue to show that they were “tough on crime,” says Robert Dunham, the executive director of the nonpartisan Death Penalty Information Center.  A rise in the number of executions in the 1990s coincided with a push toward mass incarceration. While calls for reform escalated in the 2000s, as late as 2008, the then–presidential candidate Barack Obama voiced his disagreement with a Supreme Court ruling limiting the use of the death penalty in Louisiana.

One significant reason the tide has started to shift is the rise in conservative support for criminal-justice reform in the past few years.  Conservative groups such as Right on Crime and the Charles Koch Institute have advocated for reforms, including the First Step Act, a bipartisan bill President Donald Trump signed into law in late 2018 that changed some sentencing laws and targeted recidivism....

“As conservatives, we know the government’s flawed. We hate the government,” says Hannah Cox, the national manager of the advocacy group Conservatives Concerned About the Death Penalty. “Why would we give it power over life and death?”...

Overall, the opposition to the death penalty among Republicans represents a genuine, if slim, fault line in the party, one that could grow in parallel with concerns about the criminal-justice system as a whole. State lawmakers seem like the ones to watch: From 2000 to 2016, the number of GOP legislators sponsoring death-penalty-repeal bills increased by more than a factor of 10, according to Cox’s group. Repeal efforts have made it strikingly far in some conservative states. In February, Wyoming’s repeal bill passed the House and came within seven votes of passing the Senate. In Utah, a 2016 repeal effort passed the Senate but was just eight votes shy in the House. And in 2015, Nebraska lawmakers successfully overrode the governor’s veto to ban the death penalty, although it was later reinstated....

But for conservatives in New Hampshire who were key in getting death-penalty repeal past his veto, their concerns about capital punishment were too hard to ignore.  Bob Giuda, a Republican state senator, told me he also used to support the death penalty, but then slowly changed his mind.  “What do we accomplish by executing people?” he said.  “What statement do we make?” Giuda’s wife lives in a vegetative state, and he told me that he aspires to view all lives as equal, whether it’s his wife’s or Addison’s. “We don’t get to assign that value,” he said.

That type of deeply intimate answer may be why Republicans and Democrats in New Hampshire, and in other states, are joining together to scrap death-penalty laws, even as they remain deeply polarized on a whole set of other issues.  “I never hear, ‘Well, my caucus thinks’ or, ‘My party says,’” Hruska said. “It’s always a personal answer.”

June 9, 2019 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Sunday, May 19, 2019

Spotlighting eagerness to elect state judges as well as prosecutors committed to criminal justice reform

This new Atlantic article, headlined "The Search for Progressive Judges," highlights how activists who have sought to elect a new wave of progressive prosecutors are now turning attention to judicial elections. Here are excerpts:

It used to be unheard of for Philadelphia judges to reject a negotiated sentence in these resentencings — until Larry Krasner, arguably the most progressive prosecutor in the country, took over the city’s district attorney’s office in January 2018 and started delivering on a promise to minimize incarceration.  In response, several Philadelphia judges have shut down his attempts to keep people out of prison or release them earlier.... Recently, some judges reportedly declined to consider an initiative, developed by Krasner, to seek shorter probation sentences.

After watching these developments with growing dismay, Rick Krajewski, an organizer for a leftist political group called Reclaim Philadelphia, convened about 30 Philadelphia activists in January at the offices of a prisoner-advocacy organization to float a radical proposal.  Many of them had been instrumental in getting Krasner elected.  But clearly, electing a progressive prosecutor hadn’t been enough.  This time, Krajewski wanted to persuade them to spearhead a rare grassroots campaign for the typically sleepy judicial race....

Krasner, elected in 2017, came to office during a nationwide wave of reform-minded prosecutors: In Houston, Chicago, Brooklyn, and other left-leaning cities, prosecutors have been winning races on platforms to end mass incarceration.  A prosecutor has tremendous sway when, for example, suggesting bail, negotiating plea agreements, and recommending sanctions for parole and probation violations.  But judges and magistrates have the final say — and their decisions have been thrown into relief in jurisdictions that have elected reformist prosecutors.  “What we are seeing is that the judges are deciding to take it upon themselves to be the obstacle for a progressive district attorney,” says Robert “Saleem” Holbrook, a former juvenile lifer who now works as a policy adviser at Amistad Law Project, a prisoner-rights advocacy organization.

Recently, justice-reform advocates in a couple of other places have also turned their eye to judges.  In Harris County, Texas, which includes Houston, voters swept out the old guard to completely flip all 59 contested seats in civil, criminal, family, juvenile, and probate courts from Republican to Democrat; the new judges are preparing to stop detaining people accused of low-level crimes who aren’t able to post cash bail.  Organizers in Texas are starting to scout for judicial candidates in Bexar County, which includes San Antonio, and in Dallas County, who support scaling back the use of cash bail.

In theory, judges should be impartial arbiters of justice, motivated by the law rather than politics.  Since the birth of America, legal scholars and politicians have debated the best method to create an independent judiciary: Should it be elected, or appointed by other elected officials?  That question has yet to be resolved, and currently each state institutes its own system for choosing local judges.  However, the majority — 87 percent as of 2015 — of state-court judges are elected officials.  “I think that the overwhelming majority of judges are trying to do their jobs in good faith,” says Alicia Bannon, the deputy director for program management of the Democracy Program at New York University’s Brennan Center for Justice, “but those political pressures are real.”

Historically, that pressure has been applied by advocates for a more punitive justice system.  The authors of a 2015 Brennan Center study analyzed television ads for judicial candidates nationwide and found that an increasing number of ads focused on how harshly the candidate would punish bad actors: In 2013 and 2014, a record 56 percent of campaign ads lauded tough-on-crime records or lambasted opponents for being soft.  In the past, advocates on the left have lamented how these political pressures have influenced judges.

Now, the progressive activists in the Philadelphia election, and the ones in Texas, are unapologetically supporting judges whose politics align with their own.  The primary election on May 21, rather than the actual election in the fall, will essentially determine who will win the judgeships, since the city’s electorate votes overwhelmingly for Democrats, leaving Republican candidates with little chance of victory.  The primaries are technically partisan, but only one Republican is running.  “The reality is no matter how you pick judges, they are going to be political,” says Jed Shugerman, a Fordham law professor who wrote The People’s Courts: Pursuing Judicial Independence in America. In today’s political climate, he says, progressive groups can have significant influence in left-leaning cities.

May 19, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Thursday, April 25, 2019

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 16, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, April 04, 2019

Spotlighting how "politicians are catching up with American voters" on criminal justice reforms

Alex Busansky and Eli Lehrer have this notable new Hill commentary under the headline "Voters are driving justice reform."  Here are excerpts:

When crime rates soared between the 1970s and early 1990s, Democrats and Republicans alike did everything possible to avoid being labeled “soft on crime.”  As crime has dropped, however, reforms that ease punitive measures, reduce correctional populations from the current level of more than 2.2 million, and give people who are formerly incarcerated a fresh start have become a bipartisan cause.  Results from the 2018 midterms, particularly ballot measures backed by voters, should provide important advice for gearing up for the 2020 cycle.  Criminal justice reform has become a winning issue with voters and advocates should pay heed.

Polling data make it clear how voters feel nationally. In a recent article, pollster Celinda Lake says that by a two to one margin, voters believe that our country relies too much on incarcerating people.  A national poll last year by Public Opinion Strategies showed that 68 percent of Republicans, 78 percent of Independents, and 80 percent of Democrats support significant reform.  Places across the nation with very different politics have followed suit and moved towards significant justice system reforms....

This trend has lessons for what works at the state level and ought to give a significant tailwind to those looking to organize for the next cycle.  Efforts are already underway to make Nebraska and Mississippi the latest states to legalize medical marijuana.  This decriminalization of a drug that is now widely accepted is an important step because it reduces justice system involvement for many, particularly people of color, who are simply not dangerous to anyone.  Likewise, Los Angeles County recently approved a plan to close the downtown Men’s Central Jail, while killing a proposal to convert a detention facility into a women’s jail.  Next year, Los Angeles County voters will decide whether to pass a jail reform ballot measure.

Looking to 2020, citizens are already hearing justice reform touted by candidates of both parties. That is not surprising, and it is only going to increase.  Politicians are catching up with American voters, who have already realized that both easing some unnecessarily harsh measures and helping those who have made mistakes become productive members of society is not just a good and right idea, it is a winning campaign issue.

This piece gives some important (though necessarily incomplete) attention to the vole of ballot initiatives in the criminal justice reform movement. Especially in light of recent election cycles in which significant criminal justice reform has been enacted at the ballot in red states like Oklahoma and Florida, I think this is a story that cannot get too much attention and is worth of extended analysis.

April 4, 2019 in Campaign 2016 and sentencing issues, Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, March 25, 2019

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

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

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

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

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

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

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

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

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

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

A few prior related posts from years past:

March 25, 2019 in Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Sunday, March 03, 2019

Reviewing the modern reality of robust conservative support for criminal justice reform

Long-time readers know I have been talking for a very long time about a possible "new right" on a range of sentencing and corrections issues.  This post way back in January 2005 asked "Is there a 'new right' on criminal sentencing issues?" and this article in December 2008 explained why principled modern conservatives should be troubled by mass incarceration, and this post in November 2010 wondered "When and how will state GOP leaders start cutting expensive criminal justice programming?". 

But, happily, it is no longer cutting-edge to be talking about folks on the right supporting criminal justice reform.  Three years later, it bears recalling that a majority of the GOP candidates for President in 2016 had a record of support for criminal justice reform.  And, remarkably, the one 2016 GOP candidate with arguably the worst record on these criminal justice reform issues (Donald Trump) went on sign the most significant federal criminal justice reform bill in a generation in the form of the FIRST STEP Act.  And, before and since the 2016 election, many conservative leaders in many red states have been actively advocating and securing significant state-level criminal justice reforms.  

These political realities have found interesting expression in recent days, in part because the annual Conservative Political Action Conference (CPAC) that took place last week had more than its share of notable criminal justice programming.  Here are some new articles and commentaries resulting from that conference and the broader realities that its programming reflects:

March 3, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Friday, February 22, 2019

Brennan Center produces policy brief on "Ending Mass Incarceration: A Presidential Agenda"

2019_02_21_10AMJusticeAgendaforCandidates-1The Brennan Center for Justice yesterday released this notable new 16-page policy brief authored by Ames Grawert, Bryan Furst, and Cameron Kimble under the title "Ending Mass Incarceration: A Presidential Agenda."  Here is its introduction:

For many voters, the past two years have brought a new awareness of profound, continuing injustices in American society.  Among them is the civil rights crisis of mass incarceration.  Even with recent reforms, more than two million Americans remain behind the bars of jails or prisons.  Black men and women are imprisoned at roughly six times the rate of their white counterparts. The overuse of incarceration perpetuates economic and racial inequality, two issues at the top of the public concern.

Going into the 2020 election, contenders for the Democratic nomination — and the Republican incumbent — must have a plan to meet these challenges, or risk being out of step with the American people.

This report delineates how that can be done, outlining policies that would slash America’s incarceration rate, put people back to work, and reduce racial disparities in the process, while keeping the country safe.  These solutions can be a transformative piece of a presidential campaign and help define a new president’s legacy.

Some consensus for these changes already exists.  Late last year, Congress ended years of deadlock over federal sentencing reform by passing the FIRST STEP Act, which will reduce some of the most extreme and unjust sentences in the federal criminal code.  These changes will put families back together, make prison more humane, and help restore trust in law enforcement.

But the bill also raises the bar for any candidates seeking the Oval Office.  President Trump is already treating the act as a signature accomplishment, touting it among his top achievements in his State of the Union address.  Candidates who are serious about combating racial and economic injustice — and want voters to know it — will have to think bigger.

Rather than focusing on individual reforms, candidates for the presidency should commit to tackling some of the most pervasive and damaging parts of our criminal justice system, including overly punitive sentences, bail practices that favor the rich, and drug policies that unfairly target people of color.  These aren’t intractable problems, but they do call for sweeping changes, far more than what has been introduced to date. And enacting these in Washington can also spur more states to take action.

Incremental reforms will not make the history books.  The time for bold action is now, and this report outlines precisely the type of transformative solutions that candidates can champion to define their campaign or cement their legacy.

The report includes a number of large and small action items, all of which are interesting and important and all of which I hope get robustly discussed on the campaign trail.  The report has all prompted me to start a new blog category: "Campaign 2020 and sentencing issues."

February 22, 2019 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, January 30, 2019

Contextualizing passage of the FIRST STEP Act and its likely echoes

Sociology Prof Michelle Phelps has this notable new Conversation commentary headlined "Congress’s First Step Act reflects a new criminal justice consensus, but will it reduce mass incarceration?". The piece explains why the author thinks "no" is the sensible answer to the question headlining her commentary.  Here are excerpts (with some links from the original preserved):

I have found in my research that criminal justice policies and practices in the United States have often followed complex trajectories. Reforms often receive support from unlikely coalitions.  But, by focusing on these strange bedfellows, commentators and advocates sometimes paper over the deeper disagreements in ideas about who, how and how much to punish.  Fights over these differences ultimately shape how policies get put into practice — and whether the bill ultimately achieves its intended outcomes.  While the First Step Act’s passage may look like a clear victory for more moderate punishment, its implementation and impact under the Trump administration is likely to be quite limited.

Criminal justice is often described by academics and journalists as a pendulum that swings wildly between harsh punishment focused on retribution, and more lenient treatment focused on redemption or reformation.  In this metaphor, some people saw Trump’s election as a swing of the pendulum away from progressive punishment and back toward punitive policies.

In our book Breaking the Pendulum, my colleagues Joshua Page and Philip Goodman and I argue that a better metaphor is the constant, low-level grinding of tectonic plates that continually produce friction and occasionally erupt in earthquakes. This friction manifests in traditional political combat, mass demonstrations, prison rebellions, and academic and policy work.  Periodically, major changes in conditions like crime rates and the economy change to provide support and opportunities to one side or another.  These changes often bring together unlikely allies.

People typically associate the “law and order” approach to criminal justice with Republicans.  However, new research shows how liberals laid the ground for these policies. It was the Democratic administration of President Lyndon Johnson during the 1960s that first launched the “war on crime” by expanding federal funding to build up the capacity of local law enforcement agencies. In the following decades, the crime rate spiked, due in part to better reporting by police departments, and crime became a hot political issue.

By the 1990s, Republicans and Democrats had all but converged on attitudes toward law enforcement. Not wanting to lose to Republicans by being portrayed as “soft on crime,” Democrats took increasingly “tough” criminal justice stances. President Bill Clinton’s wildly popular 1994 Violent Crime Control and Law Enforcement Act was the apex of this bipartisan enthusiasm for aggressive policing, prosecution and punishment.  The bill made federal sentencing guidelines more severe, increasing both life sentences and the death penalty, and built up funding streams to increase local police forces and state prison capacity.

Despite the rhetoric of the crime bill, the best evidence suggests that it played little role in the explosion of the national prison population — or what scholars term “mass imprisonment.”  This is because policies focused on harsh punishment had already peaked by 1994.  In addition, it only applied to the federal system, which represents only 10 percent of all people locked up.  Finally, even though there was wide support for the crime bill, activists, politicians, judges and others continued to fight against “tough” punishment, eventually building the momentum for the First Step Act.

What does this history tell us about the First Step Act?

First, it’s not surprising that Republicans and Democrats, conservatives and liberals came together on the bill. Both camps have moved away from the “tough on crime” mantra.  Democrats now talk of “smart on crime” policies while some Republicans support the “right on crime” initiative.  Both agree that aggressive policing and heavy criminal penalties for low-level offenses, particularly drug crimes, do more harm than good.

The rise of a new approach to criminal justice can be tied to a number of changes since the 1990s, including historically low crime rates, strained state and federal budgets and a growing awareness of the negative consequences of mass incarceration.  Critically, a cadre of conservative leaders spent the past two decades working to change Republican orthodoxy on this issue.  They frame mass incarceration as a fiscal and moral failure that wastes tax dollars and violates the Christian principles of “second chances” and redemption....

However, bipartisan consensus is not as seamless as it is sometimes portrayed.  A group of Republican leaders remain aggressively opposed to these criminal justice reforms.  And at the last hour, they nearly killed the First Step Act....

During his confirmation hearing last week, [Attorney General nominee William] Barr promised to “diligently implement” the First Step Act, but then backtracked to support Session’s policies at the Justice Department, adding, “we must keep up the pressure on chronic, violent criminals.”

Like the ‘94 bill before it, this indicates that the First Step Act will likely be more bark than bite.  The First Step Act might provide relief to several thousand current federal prisoners.  But Barr will likely follow Sessions and direct his prosecutors to seek the maximum criminal penalties against current defendants, including for drug offenses, limiting the impact of the First Step Act’s sentencing reform.  And the bill will have no practical effect on state prison systems, which in some cases have already embraced much more radical reforms.

While the First Step Act is a move in the direction of more humane and moderate criminal justice practices, I think it will likely be a very small first step indeed.

January 30, 2019 in Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Saturday, January 12, 2019

New commentary at The American Conservative makes the case for "Why Conservatives Should Oppose the Death Penalty"

In prior posts here and here and here, I highlighted a series of lengthy articles in The American Conservative that were part of "a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform."   These folks are at it again with this new lengthy essay titled simply "Why Conservatives Should Oppose the Death Penalty."  The extendded essay, authored by Arthur Rizer and Marc Hyden of R Street Institute, merits a full read, and here are some excerpts:

If conservatives want to convince others that a smaller, more nimble government is best, then those values should be reflected in all policy areas, including the death penalty....

Our suspicion of government should not end with the criminal justice system. With respect to capital punishment, the United States has a track record of acting in an arbitrary and biased fashion. Some examples are obvious. For instance, a 19th century North Carolina law mandated the death penalty when a black man raped a white woman, but gave a maximum punishment of one year in prison to a white man for the same crime.

While such blatantly racist laws no longer exist, the disproportionality in death penalty cases has long been an issue. For instance, a Justice Department study established that, between 1930 and 1972, when an individual was sentenced to death for the crime of rape (a crime that no longer carries the death penalty), 89 percent of the defendants put to death were black men. More disturbing was the fact that in every rape execution case, the victim was white. Not one person received a death sentence for raping a black woman, despite black women being up to 12 times more likely to be rape victims.

Furthermore, a murder victim’s race also seems to influence whether or not the accused will be put to death. Indeed, there is a much higher likelihood of this occurring if the victim is white: over 75 percent of victims in cases that resulted in executions were Caucasian. Additionally, only 15 percent were African American even though they represent a far higher percentage of murder victims. This seems to suggest that, at least through the criminal justice lens, some lives are more valuable than others....

Conservatives claim to hold the government and its bureaucrats to high standards. We expect the state to be the flag bearer of moral precepts and criticize it when it fails. Indeed, the Republican platform uses the word “moral” nine times to describe topics ranging from healthcare to the environment. And regardless of a citizen’s source of morality, be it secular or ecclesiastical, the government should reflect those standards.

Despite this expectation, a core belief among conservatives is that the government is too often inefficient and prone to mistakes. Why should the death penalty’s administration by government bureaucrats be any different? We know individuals are wrongfully convicted—and to be sure, some wrongful convictions are unavoidable. However, when dealing with capital punishment, that inevitability could have irreversible consequences and can never be tolerated in a free and law-abiding society.

This is why government should not be in the business of killing its citizens. This view hews to a core conservative tenet, that the government should be inferior to the people from which it derives its power. True, we invest in the state the authority to protect its citizens, which might require lethal protection by police officers in the line of duty. But when it comes to the death penalty, executions aren’t a matter of self-defense or a response to imminent danger. Rather the defendant has already been neutralized as a threat and housed in a correctional facility. In contrast to just wars and police responses, our penal system can and should take all necessary time and devote all appropriate resources to achieve its ultimate end—justice.

Death penalty proponents often claim that executions are beneficial because they serve as a general deterrent to murder. According to this argument, people will hesitate to commit the most heinous crimes for fear of capital punishment, which could mean the firing squad, gas chamber, electric chair, lethal injection, or hanging—which are all legal in some states today. The problem with this theory is that there is very little valid data to support it....

Murder victims’ families deserve better than the system that they must endure, but policymakers are faced with a catch-22. The death penalty process cannot be shorter, less complex, or have its appeals limited without virtually guaranteeing that innocent people will be executed by the state. It seems that if murder victims’ well-being was a primary focus, then prosecutors would more frequently seek a briefer, simpler, surer proceeding like LWOP.

The creation of the Grand Old Party, and in many ways the modern conservative movement, traces its lineage to anti-slavery abolitionists. Their beliefs about human dignity have influenced current conservatives’ views on the sanctity of life. Conservatives should return to the root principles of liberty and dignity to ensure that the criminal justice system is fair, just, and respects life.

Prior related posts:

January 12, 2019 in Death Penalty Reforms, Elections and sentencing issues in political debates | Permalink | Comments (0)

Tuesday, December 18, 2018

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

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

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

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

Monday, November 26, 2018

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

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

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

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

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

Here is what Politico is reporting:

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

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

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

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

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

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

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

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

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

Thursday, November 22, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Monday, November 19, 2018

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

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

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

Thursday, November 15, 2018

Senator Tom Cotton, rather than argue against FIRST STEP Act, makes case for what should be in a SECOND STEP Act

Senator Tom Cotton, who has been the main and most vocal opponents of federal criminal justice reform, has this notable new USA Today commentary.  I was expecting the piece to argue against the FIRST STEP Act that has been endorse by Prez Trump and has wide bipartisan support.  But, as these excerpts highlight, Senator Cotton in this piece primarily articulates what further statutory reforms are needed to fix a broken federal criminal justice system:

Here’s what genuine criminal-justice reform would do: reduce arbitrary government power over lives and protect us from the drug epidemic ravaging our community. Congress can take three simple steps to achieve these goals.

First, we need to clean out the federal criminal code. Today, no one even knows for sure how many federal crimes are on the books. One estimate found between 10,000 and 300,000 regulations that can be enforced criminally, in addition to the more than 5,000 federal criminal laws.

Many of those federal crimes would be funny, if they weren’t so dangerous to our liberty. For example, there’s a federal law against selling “Turkey Ham” as “Ham Turkey.” Think such laws are never enforced? Think again. Gibson Guitars was prosecuted under a century-old law at a cost of millions of dollars to the taxpayers and the company because it allegedly transported wood in a way that may have violated laws of India. We should scrub the federal criminal code and remove such outdated and arbitrary laws. And we should create a transparent database of this shorter, more concise criminal code.

Second, many federal crimes do not require mens rea, or a “guilty mind.” Mens rea, a common element of most state crimes, means that the offender must have a certain state of mental culpability to be charged with the crime. Coupled with the vast and confusing criminal code, the lack of mens rea leaves Americans at risk of arbitrary prosecution for trivial conduct. Senator Orrin Hatch has been a champion for mens rea reform to ensure that, at a minimum, a defendant should have known his conduct was wrong before facing criminal charges. Congress should incorporate these concepts into criminal-justice legislation.

Third, the federal criminal code hasn’t kept up with the opioid crisis, allowing the epidemic to spread across the country.  For example, current law doesn’t reflect the potency of fentanyl, a highly lethal opioid responsible for killing tens of thousands of Americans each year. A trafficker can carry enough fentanyl to kill 5,000 Americans before the lowest mandatory minimum sentence applies, and these traffickers receive a mere five-year sentence for distributing enough poison to kill more Americans than died on 9/11.

Unfortunately, the legislation moving through Congress includes no mens rea reform, no reduction in the criminal code, and no crackdown on deadly drug traffickers. Astonishingly, the bill goes soft on some of the worst crimes — trafficking heroin and fentanyl — by allowing most traffickers to spend up to a third of their sentence at home, where many of them will no doubt return to dealing drugs.

At this point, it’s best for Congress to pause on criminal-justice legislation and take the time to reform our criminal code, include mens rea as an element of most crimes, and strengthen the sentences for dangerous drug crimes. Congress can also focus on how to rehabilitate felons to help them get off on the right foot after serving their sentence. What Congress ought not do is rush through flawed legislation in a lame-duck session.

I agree with Senator Cotton that we need to reduce the number of federal crimes, include strict mens rea protections in all federal criminal provisions, and better respond to the opioid crisis (although I think history has shown that increased federal mandatory minimums are an ineffective way to respond to drug problems). For that reason, I sincerely hope Senator Cotton is busy drafting bills to address these matters that Congress can and should consider swiftly after the passage of the FIRST STEP Act.  But, as the name suggests, the FIRST STEP Act does not claim to fix all the myriad problems of federal criminal law, and so Congress can and should address Senator Cotton's (second step) concerns right after they take a critical first step.

November 15, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Elections and sentencing issues in political debates, Offense Characteristics, Who Sentences | Permalink | Comments (5)

Tuesday, November 13, 2018

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)

Some post-election criminal justice commentary from various sources a week later

It is a week after a consequential election, and in some places votes are still being counted. In addition, folks are still doing accountings of what the election (and its aftermath) meant and means for criminal justice reform efforts. Here is a sampling of pieces I have seen on this front from a variety of sources and authors:

From The Brennan Center, "The Big Winners in DA Races: Women and Black Candidates"

From The Brennan Center, "What Does Sessions' Departure Mean for Criminal Justice?"

From The Crime Report, "Post-Midterms Forecast for Justice Reform: Cloudy, But Encouraging"

From The Crime Report, "Are Americans Finally Turning Away From ‘Tough-on-Crime’ Era?"

From The Fix, "Drug Policy and Criminal Justice Reform at the 2018 Midterm Elections"

From The Hill, "The results are in: How the nation voted on criminal justice issues that impact our youth"

From Marijuana Moment, "What The Loss of Marijuana-Friendly Republicans Means For Federal Legalization"

From Marijuana Moment, "Marijuana Got More Votes Than These Politicians In The Midterms"

From The Marshall Project, "Voters Want Criminal Justice Reform. Are Politicians Listening?"

November 13, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Tuesday, November 06, 2018

Criminal justice reform ballot measures passing in Florida and Louisiana, but losing badly in Ohio

As noted in prior posts here and here, a whole lot of criminal justice matters were before voters this year. And though results are not yet official, it seems there are a few notable winners and one big loser:

Florida's Amendment 4, which would restore people’s voting rights after they finish their sentences (with a few exceptions), and Amendment 11, which enables the repeal or reform of criminal laws to be applied retroactively, both appear on pace to pass.

And Louisiana's Amendment 2, eliminating non-unanimous jury verdicts in felony trials, also looks to pass.

But Ohio's Issue 1, which sought to reduce all drug possession offenses to misdemeanors and enhance sentence reductions for prisoners participating in rehabilitative programs, has been soundly defeated.

November 6, 2018 in Collateral consequences, Drug Offense Sentencing, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Is it too soon to start making predictions about 2020 swing-state criminal justice ballot initiatives?

I have been following closely the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, known as Issue 1, in part because I think it could be a sign of things to come in state criminal justice reform efforts.  Notably, California in 2014 and Oklahoma(!) in 2016 charted a path for this kind of initiative effort, but Ohio is a special kind of swing state that rightly garners a special kind of electoral attention.  And this new Washington Post piece, headlined "Ohio ballot initiative on drug penalties is motivating voters in Cleveland," spotlights why I am already thinking ahead to 2020 before seeing any official results from 2018:

Many African American voters here cited two motivations for getting to the polls: to vote against a Republican Party they see as increasingly hostile to their community and to support Issue 1, which would reduce drug penalties.

Kim Thomas, minority engagement consultant for the Cuyahoga County Democratic Party, said the ballot initiative is helping turn out voters in Cleveland. “Lots of black people went to jail for crack in the 1980s, and a lot of them are still there. Right now, the minority community is saying, ‘No more, no more,'” she said. “We want the same opportunity for treatment instead of jail time, and if Issue 1 is gonna speak to that, then we’re gonna support it.”...

Darrell Johnson, 50, an out-of-work phlebotomist, cites voting rights as a primary reason for approving Issue 1. “You might get a felony charge for marijuana and you will never vote again in your life,” he said. He sees penalties being applied unevenly, based on race. “I know white people who get caught, they get sent to programs. They can still vote. But we can’t.”

Cuyahoga County Board of Elections officials are calling voter turnout for this midterm election “historic.” Mike West, a manager with the elections board, said the county hit at least 18,000 early voters as of 2 p.m., compared with about 6,000 in the 2014 midterms and 5,000 in the 2010 midterms. 

Because lots of factors are influencing turn-out this election cycle in Ohio and elsewhere, it will be hard to say with any certainty that a criminal justice reform initiative played a special role in getting certain voters to the polls. But there are plenty of reasons to believe ballot initiatives on topics like marijuana legalization and criminal justice reform can get younger voters and minority voters somewhat more interested in exercising the franchise. And with so many big swing states having an initiative process — states like Arizona, Colorado, Florida, Michigan, Nevada along with Ohio — I suspect we may see an even larger number of big criminal justice ballot efforts in 2020 than we have seen this year (which already has a whole lot).

November 6, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, November 05, 2018

Any election eve predictions to go with a round-up of election day criminal justice round-ups?

I flagged in this post last week German Lopez's great extended Vox review of all the notable and different initiatives and candidates on the ballot that could have an impact on local, state and national criminal justice systems.  Since then, I have seen a number of other round-ups, and here a few piece that seem worth checking out:

From the Marshall Project, "Criminal Justice on the Tuesday Ballot: Our roundup: drugs, policing, juries, even slavery."

From Marijuana Business Daily, "Just before Election Day, here’s where public support for state marijuana issues stands."

From Law360, "5 Criminal Justice Reforms To Watch On Election Day"

From the Los Angeles Times, "From ex-felon voting rights to police shootings, criminal justice is on the ballot"

From the New York Times, "Ballot Initiatives Are Powerful. The Powerful Have Noticed."

As regular readers know, in part because I am based in Ohio and in part because it could have the biggest echoes, I have been following the ballot issue known here as Issue 1 most closely.  And yet, despite following it closely, I have no idea how it will come out and I am afraid to make any predictions (other than that the results will be "over-read").  That said, I am going to predict that a significant number of criminal justice reform initiatives will pass.  I am also going to predict that 2020 brings ever more criminal justice reform initiatives than has 2018. 

I welcome predictions (or advocacy) in the comments as we get ever closer to polls closing.

UPDATE Here are a few more round-ups:

From HuffPost, "Millions Of Voters Could Be About To Significantly Reform The Criminal Justice System"

From the Washington Post, "Where marijuana is on the ballot Tuesday — and where it’s most likely to win"

November 5, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

Sunday, November 04, 2018

Some recent posts of note from Marijuana Law, Policy & Reform just before another big election

Though it has been only a few weeks since I did a round-up of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, the coming election leads me to think another review of some recent favorites may be in order.  So here goes:

November 4, 2018 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (0)

Wednesday, October 31, 2018

Latest analysis and discussion of Ohio criminal justice reform ballot initiative known as Issue 1

I have blogged here and elsewhere about the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.  The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1

The last pre-election DEPC public panel on Issue 1 is taking place tomorrow, November 1 at 10 am (register here), at the Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University.  The all-star panelists who will be speaking are:

Kyle Strickland, Senior Legal Research Associate at the Kirwan Institute will be moderating this great panel. I know Kyle will also be bringing an informed perspective to the discussion because he is a co-author of this great new report titled "Race & Criminal Justice: Ohio Issue 1 and Beyond."  Here is part of the conclusion of that report: 

Many communities are rightfully asking the question of why is the opiate epidemic the catalyst for modern criminal justice reform?  At the core of this question is the notion that broad-sweeping reform efforts are much more politically feasible when the issue also impacts communities with privileged identities — whether that be race, economic status, or party affiliation.  In the future, we should not wait for collective tipping points to address systemic inequities because policies that disproportionately harm marginalized communities harm us all.

Now that reform efforts are in motion, it is critical that a racial lens be applied to policies moving forward.  A reduction in racial disparities in the criminal justice system should not be an assumed outcome of reform.  Disparate outcomes will likely re-emerge in the health care system, community based corrections, and all other institutions without intentional effort paid to undoing our legacy of racism and discrimination.  A more equitable system will require explicit interventions to address systemic discrimination and interpersonal biases at every level.

Regardless of the outcome in November, communities must demand that those implementing Issue 1 or other criminal justice reform efforts be held accountable to reducing racial disparities and repairing the intergenerational harm caused by mass incarceration and decades of disinvestment.

Prior related posts:

October 31, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, October 30, 2018

Terrific review of all the criminal justice reforms stories in the 2018 midterm election

Images (17)It is now just a week until Election Day 2018, and everyone should feel a significant responsibility to vote and to encourage everyone they know to vote. (I have long thought we ought to have many more elections and much more voting in the US, but that it a topic for a different post.)  Over at Vox, German Lopez has this great extended review of all the notable and different initiatives and candidates on the ballot that could have an impact on local, state and national criminal justice systems.  The extended piece is fully headlined "How 2018 voters could change America’s criminal justice system: From marijuana to crime victims’ rights to prosecutors, the 2018 elections will be big for criminal justice."  Here is how the piece gets started and some of its headings that follow:

From ballot initiatives to local elections to the state and federal races, the 2018 midterm elections will give voters an opportunity to define the system charged with arresting, prosecuting, and incarcerating people in America.

These races usually do not get the attention they deserve, especially state and local elections and particularly races for prosecutors. But they are tremendously important: Despite all the attention that goes to the federal system, the great majority of criminal justice work is done at the local and state level, where America’s police departments operate and most of the people in prison are locked up.

A criminal justice reform movement, galvanized by Black Lives Matter, civil rights issues, and prison spending’s strain on government budgets, has already led to some changes in recent years, from reforming prisons and police to reducing criminal penalties for certain crimes. The 2018 midterms offer an opportunity to continue the momentum behind criminal justice reform.

Here are some of the most pressing criminal justice issues on the ballot this November, covering debates over the war on drugs, mass incarceration, policing, crime victims’ rights, and more.

Criminal justice issues on the ballot in six states...

Marijuana legalization in Michigan and North Dakota, and medical pot in Utah and Missouri....

Marsy’s Law, a crime victims’ bill of rights, is on the ballot in six states...

Prosecutor elections: maybe the most important contests in criminal justice...

Prosecutors are driving mass incarceration...

Other local and state races will be a big deal too

This Vox piece has lots and lots of links to all the initiatives and other races and related points in the piece.  Read the whole thing and click through (and share views in the comments on what you consider the most important or consequential matters or people on the ballot).  And for another (more visual) view on all these matters, the folks at The Appeal political report have these terrific maps on these election matters: 

On the ballot in November 2018

Where Criminal Justice & Law Enforcement Measures are on the 2018 Ballot

Where Voting Rights are on the 2018 Ballot

October 30, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Tuesday, October 23, 2018

Should a state judge be campaigning against a state criminal justice reform initiative when talking to potential jurors?!?!?

I have been more than a bit troubled by the fact that Ohio Supreme Court Chief Justice Maureen O'Connor has been serving for months as the campaigner-in-chief against an interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1 (and the Drug Enforcement and Policy Center at OSU has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1).  One of my concerns has been that her visible role has put her in lock-step with advocacy by Ohio's prosecutors, and also seemingly has made many Ohio state judges feel comfortable speaking out against Issue 1 while making it hard for other state judges to feel comfortable speaking out for Issue 1.

Whatever one thinking about a judge or justice discussing their views on a ballot initiative in public, I am especially troubled by this story out of Cleveland that prompts the question in the title of this post.  The piece is headlined "Cuyahoga County judge politicks against Issue 1 to potential jurors inside courthouse," and here are the details:

A Cuyahoga County judge who is a vocal critic of a sentencing reform initiative on the ballot for the Nov. 6 election has taken his opposition to residents forced to show up for jury duty at the Justice Center.

Multiple times in recent weeks, Common Pleas Court Judge David Matia has used the time usually reserved for a judge to welcome the hundreds of potential jurors to their mandatory civic duty to instead deliver a spiel in which he explicitly urged them to vote against Issue 1.

Administrative and Presiding Judge John J. Russo does not object to Matia's actions, which Matia insisted in a Monday phone interview did not violate any judicial ethics rules. Judges are allowed to take public stances on issues that "directly affect the administration of justice," and it is up to a particular judge to determine when and where it is appropriate to make those comments, according to a 2002 advisory opinion by the Ohio Supreme Court's Board of Commissioners on Grievances and Discipline.

"Whether it's a group of jurors or a bingo hall, it doesn't matter," Matia said. "The opportunity to educate the public should not be ignored by members of the judiciary."

But Matia's choice to deliver the message as part of the regular duties of his seat on the bench -- to a group of people with no choice to leave -- raises serious ethical questions, a legal expert said. "He's got a right to announce his views," Charles Geyh, a law professor at Indiana University, told cleveland.com. "What I don't like is he is using his judicial office as a vehicle for addressing a captive audience. That's where he's abusing the prestige of his judicial office."...

Matia said he has spoken to potential jurors three times. He said he has done so in addition to the judge on the schedule twice, and spoke on Wednesday in place of the judge who was supposed to address the room when that judge did not show up. He said he hit the usual talking points he hits when he speaks in public about the issue, and urged a "no" vote. "It's not a political issue," he said. "This is a matter directly affecting the administration of justice, and frankly it's our duty to educate the public on this issue and how it will affect the administration of justice."

Russo said in a statement through a spokesman that he "was made aware that his colleague has been speaking to jurors" about the measure. "Judge Matia is an elected Cuyahoga County official and is speaking to constituents about an issue that impacts the administration of justice in the state," Russo said in the statement.

Rick Dove, director of the court's Board of Professional Conduct, said this situation is not explicitly spelled out in any judicial ethics rules, or addressed in any advisory opinions. Dove pointed to the 2002 opinion, which came in response to a complaint filed over a judge's public endorsement of a proposed constitutional amendment that dealt with expanding the use of drug treatment in sentencing....

The board wrote that judges could address certain legal issues that affect the administration of justice, and that it was not inappropriate for judges to do so in newspaper editorials, radio and TV ads, public forums and other mediums. "No rule within the Ohio Code of Judicial Conduct, provides a list of appropriate forums for judicial speech," the board wrote. "A judge must exercise his or her discretion regarding appropriate forums for speaking to the public regarding the law, the legal system, and the administration of justice."

But Matia's advocacy did not occur at a forum or a public meeting where people came voluntarily to hear thoughts about the issue. It came inside the courthouse, to a group of people who had been summoned to perform a mandatory government duty. Matia carried the authority of being a judge inside the courthouse and acted within the scope of his judicial office when he took the stance, all to an audience who was not free to leave, Geyh argued. "He seems to be exploiting his role as judge to create this opportunity to vent his ideological point of view with respect to this view of legislation," Geyh said.

Matia called his advocacy at the courthouse "a non-issue, ethics wise." He sent a copy of the 2002 opinion to cleveland.com Monday in a text message after the phone interview for this story. "Just remember to vote no on [Issue] 1," Matia wrote, adding a smiley-face emoticon.

I am squarely with Professor Geyh on this one, and I have concerns about Judge Matia's actions that go beyond the specifics of talking about Issue 1 to a captive audience inside a courthouse. At least some of these prospective jurors are going to be asked to participate in cases that might involve applications of the laws and policies that are the subject-matter of Issue 1, and I worry about how the judge's comments may be impacting the jury pool beyond how the judge has become a campaigner for a partisan position in the courthouse.

Prior related posts:

October 23, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Monday, October 22, 2018

"Larry Krasner’s Campaign to End Mass Incarceration"

The title of this post is the headline of this lengthy new profile in The New Yorker of perhaps the highest-profile local prosecutor in the United States.  I recommend the piece in full, and its subheadline provides a succinct summary: "Philadelphia’s District Attorney reinvents the role of the modern prosecutor."   Here is an excerpt from its first section:

Krasner, who is fifty-seven, is a compact man with an intense, slightly mischievous demeanor.  He likes to say that he wrote his campaign platform — eliminate cash bail, address police misconduct, end mass incarceration — on a napkin.  “Some of us had been in court four and five days a week in Philadelphia County for thirty years,” he said.  “We had watched this car crash happen in slow motion.”  Krasner often talks about how, running as a defense attorney, his opponents, most of whom had worked as prosecutors in the D.A.’s office, frequently attacked him for having no experience.  At one event, they were “beating the tar out of me because I have not been a prosecutor.  ‘Oh, my God! He’s never been a prosecutor!’ ”  But the line of attack worked to his advantage.  “You could hear people saying, ‘that’s good!’ ”  Brandon Evans, a thirty-five-year-old political organizer, said. “I remember people nodding profusely, rolling their eyes, and shrugging their shoulders.”

In 2015, Philadelphia had the highest incarceration rate of America’s ten largest cities.  As its population grew more racially diverse and a new generation became politically active, its “tough on crime” policies fell further out of synch with its residents’ views.  During Krasner’s campaign, hundreds of people — activists he had represented, supporters of Bernie Sanders, Black Lives Matter leaders, former prisoners — knocked on tens of thousands of doors on his behalf.  Michael Coard, a left-wing critic of the city’s criminal-justice system, wrote in the Philadelphia Tribune that Krasner was the “blackest white guy I know.”  The composer and musician John Legend, a University of Pennsylvania graduate, tweeted an endorsement.  In the three weeks before the primary, a pac funded by the liberal billionaire George Soros spent $1.65 million on pro-Krasner mailers and television ads.  Strangers started recognizing him on the street.  He trounced his six opponents in the primary, and went on to win the general election, on November 7, 2017, with seventy-five per cent of the vote.  He was sworn in on January 1, 2018, by his wife.

October 22, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Latest Gallup poll on death penalty shows little change in divided views among Americans

Xgi1djqtmkausnrpkwb5fwGallup has released here the results of its latest polling on the death penalty under the headline "New Low of 49% in U.S. Say Death Penalty Applied Fairly."  Here are excerpts from its reporting of the numbers:

The percentage of Americans who believe the death penalty is applied fairly continues to decrease, falling below 50% this year for the first time.  Forty-nine percent now say the death penalty is applied fairly and 45% say it is applied unfairly.

The 49% who say the death penalty is applied fairly is, by one percentage point, the lowest Gallup has measured since it first asked the question in 2000 and reflects a gradual decline of this view over the past decade.  Meanwhile, the percentage who say capital punishment is applied unfairly has edged higher, with this year's four-point gap marking the smallest difference between the two views in Gallup's polling.

These latest data, from Gallup's annual Crime poll, were collected Oct. 1-10 -- just before the Washington state Supreme Court on Oct. 11 struck down that state's death penalty, saying it had been unequally applied across racial groups. In its decision, the court cited evidence that "black defendants were 4 ½ times more likely to be sentenced to death than similarly situated white defendants."  The decision makes Washington the 20th state to outlaw the death penalty.

The decline in Americans' belief that capital punishment is applied fairly is largely the result of a sharp drop in this view among Democrats.  Thirty-one percent of Democrats this year say the death penalty is applied fairly, similar to the low of 30% in 2017 but down significantly from 2005 and 2006, when slim majorities held this view.  Meanwhile, 73% of Republicans say the death penalty is applied fairly, and the percentage holding this view has been fairly stable over time -- typically in the low 70s...

Americans remain most likely to say the death penalty is not imposed enough (37%), while smaller percentages say it is imposed "too often" (29%) or "about the right amount" (28%). While belief that the death penalty is not imposed often enough is still the most common view, the latest 37% is down from a high of 53% in 2005 and is by one point the lowest reading since 2001....

Historically, Americans have been generally supportive of the death penalty as the punishment for murder. In all but two polls (in 1965 and 1966), Americans have been more likely to say they are in favor of than opposed to use of the death penalty. However, support for capital punishment too has been trending downward since peaking at 80% in the mid-1990s during a high point in the violent crime rate.  Currently, 56% of U.S. adults favor capital punishment -- similar to last year's 55%, which marked the lowest level of support for the practice since 1972, when the constitutionality of the death penalty was being challenged.

October 22, 2018 in Death Penalty Reforms, Elections and sentencing issues in political debates | Permalink | Comments (0)

Friday, October 19, 2018

New poll indicates strong public support for various provisions of FIRST STEP ACT

I noted in this prior post a poll commissioned by a prosecutor group showing significant opposition to proposals to reduce sentences for serious drug traffickers.  But, as detailed in this Reason piece headlined "Poll Shows Wide Support For Criminal Justice Reform Bill In Congress: Prosecutor groups and criminal justice reform advocates are putting out dueling polls on a major bill in Congress," this week brings a new poll with very different results:

A new survey shows wide support among registered voters for provisions in a major criminal justice bill in Congress, in sharp contrast to a survey promoted by a group of federal prosecutors released last week showing opposition to the bill.  According to a national survey of 1,234 registered voters conducted online between Oct. 11-12, 82 percent of respondents approved of the specific provisions in the FIRST STEP Act, a prison reform bill that passed the House by a wide bipartisan margin this May.

Additionally, 82 percent supported allowing non-violent offenders to finish their sentences in home confinement in order to ease their integration back into society, and 76 percent of respondents agreed with the FIRST STEP Act's "good behavior" provision that would expand the number of days non-violent offenders can have removed from their sentence.  The survey was conducted by In Pursuit Of, LLC, a communications firm connected with the Koch network of conservative advocacy groups, for the organization Freedom Partners....

The Foundation for Safeguarding Justice, a group aligned with the National Association of Assistant U.S. Attorneys (NAAUSA), which represents federal prosecutors, released its own poll last week showing what it says is widespread opposition to reducing federal penalties for drug traffickers....

"We're looking at what this group and what they're putting out and just shaking our heads," says Mark Holden, the chairman of Freedom Partners and general counsel of Koch Industries. "We're not sure how they're coming up with their numbers.  The home confinement stuff they're polling on, our polling shows a completely different outcome.  There's immense support for all the provisions in the bill, and anyone who says otherwise is obviously motivated by an agenda."

The NAAUSA has consistently opposed efforts to reduce federal mandatory minimum sentencing laws, expand judges' discretion, or in any way reduce the leverage federal prosecutors enjoy over defendants — a result of which is that 97 percent of federal prosecutions end in plea deals.

Of course, the language of the surveys might be the culprit here. The same respondent might, on different days and with no internal contradiction, say when asked that fentanyl dealers deserve harsher sentences and that nonviolent offenders should have better preparation and more opportunities to reintegrate back into society.

Other supporters of the FIRST STEP Act also say they've seen consistent public support for the measures in the bill.  "Virtually every poll we've seen shows support for prison reform and sentencing reform," says Jason Pye, vice president of legislative affairs at FreedomWorks, a grassroots conservative advocacy group. "After all, people are seeing the successes of state level efforts."

October 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, 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)

Wednesday, September 26, 2018

"Will Florida’s Ex-Felons Finally Regain the Right to Vote?"

The question in the title of this post is the headline of this New York Times magazine article, which is worth reading in full.  Here is a taste:

In 2015, [Neil] Volz happened on a meeting at Florida Gulf Coast University, where a small group of students and community activists were listening to an African-American law-school graduate named Desmond Meade.  He was talking about his years-long crusade to restore voting rights to people who had committed felonies, as he had.  The issue affected Volz, who knew he was barred from voting, as is automatically the case in Florida for anyone with a felony conviction.  Meade was president of the Florida Rights Restoration Coalition, an organization founded by the Florida A.C.L.U. for former felons, or, as he and others prefer to call themselves, “returning citizens.” Meade was in the midst of trying to collect the 766,200 signatures required to place an initiative on the ballot to amend Florida’s Constitution, which denies former felons the right to vote.  Volz stayed after the meeting to talk to Meade.  “We chatted for a long time, and by the end, I wanted to help,” he said.

Across the country, more than six million people have lost the right to vote because of their criminal records. More than 1.5 million of them live in Florida, a higher number than in any other state.  The proposed ballot initiative would automatically restore the right to vote to people with a felony conviction who have completed their sentences.  (The initiative makes two exceptions: no voting rights for people convicted of murder or sex offenses.) At the beginning of this year, with the signatures gathered, the state certified the initiative, called Amendment 4, for the November ballot.

Like any change to Florida’s Constitution, Amendment 4 needs 60 percent of the vote to pass. In the summer of 2017, after Volz spent more than a year volunteering, Meade offered him the paid position of political director.  He hoped that Volz, with his experience as a Republican operative, could help frame the restoration of voting rights in terms that appealed to a wide constituency — Republicans and independents as well as people of color and white liberals. “It’s everybody that can’t vote,” Meade likes to say. “I’m fighting just as hard, if not more, for that guy that wanted to vote for Donald Trump than a guy who wishes to vote for Hillary Clinton or Barack Obama.”

September 26, 2018 in Collateral consequences, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)