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)

Wednesday, September 12, 2018

Kelley Ashby Paul, Senator Rand Paul's spouse, makes the Kentucky case for criminal justice reform

Long-time readers know I have been singing the praises of Senator Rand Paul since he began making the case for consequential federal sentencing reforms more than half a decade ago.  Now I am pleased to see that Senator Paul's spouse, Kelley Ashby Paul, is adding her voice to the call for reform through this new op-ed headlined "Kelley Paul: We must focus on recovery, not incarceration."  Here are excerpts:

As a community, as a state and as a nation, we must speak out in favor of expanded rehabilitation opportunities for those struggling with addiction. Because of the Hope Center’s expansion, even more women ... will have the tools to overcome addiction and begin a new path forward in life.

It is recovery, not incarceration, which allows people to become productive members of society — citizens with jobs and families who can contribute and make our communities better places to work, grow and live. It is recovery, not incarceration, which brings hope and peace into the lives of thousands of Americans and their families struggling with addiction.

The Hope Center expansion comes on the heels of the enactment of the first ever Dignity Bill in the nation, right here in Kentucky.  Because of Sen. Julie Raque Adams’ sponsorship of the bill, and the tenacity of women leaders on both sides of the aisle, pregnant women accused of minor, non-violent crimes now have the option to enter into a recovery program. They can get the treatment they need, instead of languishing behind bars because they are unable to make bail.

Criminal-justice reform is something my husband, U.S. Sen. Rand Paul, has been fighting for since he arrived in Washington. He is a lead co-sponsor of bipartisan bail reform legislation with Sen. Kamala Harris, and with the recent introduction of the First Step Act, a major bipartisan prison reform bill that includes expanded treatment opportunities, I am hopeful we can continue our efforts to fix a broken system.  I am proud to assure the people of this commonwealth that my family will do everything we can to ensure that the First Step Act will get a vote.

Criminal-justice reform goes hand in hand with reducing homelessness, alcoholism and drug addiction.  We have learned that locking people up who are in need of treatment is not the answer.

The U.S. is the most heavily incarcerated country in the developed world, and many of those incarcerated have suffered a trauma, such as sexual or physical abuse, which led to addiction, and ultimately led them to our justice system. Instead of treating these individuals, we toss them behind bars, where their problems only get worse.  This cycle of failure results in staggering financial costs to the taxpayer, but more importantly a devastating cost to families and children.

I suspect that most folks in the Commonwealth of Kentucky are in support of the kinds of criminal justice reforms here promoted by Kelley Paul, and the state's Governor has been an outspoken reform advocate. But when it comes to getting votes on significant federal criminal justice bills, the most important person from Kentucky is Senate Majority Leader Mitchell McConnell Jr. He decides whether any bill gets a full Senate vote and he has not allowed a floor vote on any significant criminal justice reform bill during his leadership. I hope that changes soon, and maybe Kelley Paul can have more influence on this front than seemingly her spouse has so far.

September 12, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, September 10, 2018

Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1

Depc_testA few months ago, I flagged here the interesting and intricate drug sentencing and prison reform initiative headed for 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.   With early voting in Ohio now just a month away and Election Day 2018 not much more than 50 days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has a lot of Issue 1 programming about to begin and has a lot of resources already assembled on its website.

This Thursday, September 13 at 12noon, starts a series five public panels under the title Ballot Insights.  Registration for these panels is available at this link, where you can also find more details on scheduled speakers and on which aspects of the Issue 1 will be the focus for particular panels (e.g., a first panel in October is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming; a second panel in October looks at how to ensure any increased funding for drug treatment is utilized effectively). 

I have the pleasure of moderating the first Issue 1 panel this coming Thursday, which is titled simply "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment: Step in the Right Direction."  This panel will include a leading proponent of Issue 1 (Steven JohnsonGrove of the Ohio Justice & Policy Center), a leading opponent of Issue 1 (Louis Tobin of the Ohio Prosecuting Attorneys Association), and a leading Ohio criminal justice reform expert (Daniel Dew of The Buckeye Institute).  The bios of the presenters are detailed at this link.

In addition to all the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage.  DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited. (A pair of public health scholars submitted this first commentary for publication on the DEPC site.)

 Prior related posts:

September 10, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, September 06, 2018

The (complicated) Florida constitutional ballot initiative, Amendment 11, seeking to allow retroactive sentencing changes

Download (20)My twitter feed lately has included links to "Yes on 11," which is a reference to the ballot initiative coming before voters in Florida that seeks to, according to the campaign, repeal "three obsolete or outdated provisions of Florida’s constitution."  One of those provisions concerns sentencing reform, and here is more from the campaign website:

Florida's Constitution Revision Commission added Amendment 11 to the ballot by a vote of 36-1, the largest margin of any measure added to the ballot by the CRC this year.

WHAT DOES AMENDMENT 11 ACTUALLY DO?

There's no denying that Amendment 11 is confusing. It contains several provisions, the ballot summary is full of legalese, and it even appears contradictory in places. Here's a brief summary of Amendment 11 that will hopefully clear up any confusion.

Amendment 11 does three things, each related to some obsolete or outdated provision of Florida's constitution. Here they are:

1. AMENDMENT 11 AMENDS FLORIDA'S "SAVINGS CLAUSE" TO ALLOW RETROACTIVE APPLICATION OF CHANGES TO CRIMINAL STATUTES, INCLUDING REDUCTIONS OF CRIMINAL SENTENCES.

In 1885, delegates to the Florida constitutional convention added a provision to Florida's constitution that said whatever the sentence is at the time a crime occurs is the only sentence that matters, no matter what happens in the future.

Even if the legislature reduces the sentence for a crime later, courts can't go back and change it for anyone who's already been convicted. Florida is the only state in the country with this provision in its constitution.

Amendment 11 would give the legislature the authority to apply sentencing reforms retroactively, or reduce sentences for those who were convicted under old laws.

For examples of who would benefit from this change, click here.

2. AMENDMENT 11 REPEALS THE "ALIEN LAND LAW."...

3. AMENDMENT 11 REPEALS OBSOLETE LANGUAGE ABOUT A HIGH-SPEED RAIL SYSTEM....

WHAT DO THESE THINGS HAVE TO DO WITH EACH OTHER?

That's a good question! On the surface, a provision about criminal statutes, another about property rights, and another about an obsolete high-speed rail system don't really have much in common. So why are they all grouped together on the ballot? All three provisions are obsolete, outdated, or both....

These provisions were grouped together because none is controversial. No member of the public and no organization opposed any of the proposals in Amendment 11 at any public meeting of the Constitution Revision Commission. To avoid making an already long ballot even longer, the CRC grouped these uncontroversial proposals together....

Every element in Amendment 11 is exclusively a constitutional issue. Unlike some of the other amendments on the ballot, nothing in Amendment 11 is a policy issue that could be settled in the legislature.

Amendment 11 is a "cleanup" amendment. In 1998, Florida voters approved a similar amendment that bundled eight technical revisions to the constitution. Like those in Amendment 11, those provisions were not controversial.

Writing three different amendments for these proposals would make an already lengthy ballot unnecessarily longer. Bundling the repeal of outdated and obsolete provisions makes the voting process more convenient and allows voters to spend more time on the issues that have generated more controversy. The proposals in Amendment 11 are bipartisan, and passed by a vote of 36-1 in the Constitution Revision Commission.

Regular readers know my affinity for allowing retroactive sentencing changes, so I am all in on Amendment 11 (if only I was a Florida voter).

September 6, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

Thursday, August 30, 2018

"Criminal Justice Reform Is on the Midterm Ballot"

The title of this post is the title of this notable new New Republic piece by Matt Ford with the subheadline "Andrew Gillum wants to fix his state's broken carceral system.  He's not alone among Democratic nominees for governor." Here are excerpts:  

In his victory speech, Gillum highlighted an issue that’s received short shrift from Florida policymakers in recent years. “Beneath my name is also a desire by the majority of people in this state to see real criminal-justice reform take hold,” he told a crowd of supporters at his Tuesday night victory rally. “The kind of criminal-justice reform which allows people who make a mistake to be able to redeem themselves from that mistake, return to society, have their right to vote, but also have their right to work.”

The message could apply anywhere in the United States. But it carries greater resonance in Florida, which ranks among the most carceral states in the union. While crime has plummeted nationwide since the early 1990s, Florida’s prison population hasn’t seen significant declines. Instead, the number of people serving more than ten years in prison tripled between 1996 and 2017. Lawmakers abolished parole for most crimes by 1993, which requires the state to keep many prisoners behind bars who don’t pose a danger to society. Even today, the state has shirked the broader reform-oriented trend on both the left and the right.

Gillum has campaigned on a platform that could change that. His campaign’s official site touts measures similar to those adopted in some Democratic-led states, like reducing the number of crimes that carry mandatory-minimum sentences and reforming the cash-bail system, which disproportionately harms lower-income Americans. Others are more bold: Gillum went further than his primary opponents and called for the full legalization, rather than just decriminalization, of marijuana. Though he told reporters he is not an opponent of the death penalty, Gillum said he would suspend executions to address concerns about racial disparities....

Other Democratic gubernatorial candidates have also called for sweeping criminal-justice in their states. Georgia’s Stacey Abrams, who would be the first black woman governor ever elected in America, grounds her approach in the experience of her brother Walter, who has bipolar disorder and developed a drug addiction. Instead of receiving treatment, he and tens of thousands of other Americans with major mental illnesses are regularly churned through the criminal justice system for committing crimes of survival like petty theft. Abrams’s platform focuses on improving alternatives to incarceration and bolstering reentry programs to improve the transition back into society.

Maryland’s Ben Jealous, a former president of the NAACP, would go even further. His platform calls for the full legalization of marijuana, the abolition of cash-bail programs, shifting the state’s parole powers away from the governor’s office and toward independent experts, and expunging criminal records for certain crimes to aid reentry and employment efforts. Among his more significant proposals is a state program to investigate prisoners’ claims of innocence. A commission dedicated to that task in North Carolina secured eight exonerations in its first nine years of existence.

A constant fear among reformers is that the political winds could turn back toward tough-on-crime policies after years of favorable weather. It’s unclear whether that will be a problem in Gillum’s contest against DeSantis. Many GOP elected officials have thrown their weight behind criminal-justice reform to varying degrees in recent years, though it’s unclear if DeSantis counts himself among them. His threadbare campaign issues page doesn’t discuss the issue and his campaign staff hasn’t provided details on the matter to local media outlets. Like Trump, though, he has run as a law-and-order candidate, and seems more likely to emulate the president’s attack on Gillum as a supposed enabler of crime.

In addition to being glad to see this emphasis on some candidates' emphasis on criminal justice reform, the headline of this piece could also be used to describe the significant array of criminal-justice-related ballot initiatives coming before voters this fall. The article does mention that Florida voters will consider a constitutional amendment to eliminate felon disenfranchisement for most former offenders. In addition, Michigan and North Dakota voters will consider full marijuana legalization and Missouri and Utah voters will be considering medical marijuana initiatives. And in my own Ohio, as noted in this prior post, an interesting and intricate drug sentencing and prison reform initiative is on the November 2018 ballot. (Plug: The Drug Enforcement and Policy Center, has this planned series of events to provide a venue for informed discussion of the 2018 Ohio Neighborhood Safety, Drug Treatment, and Rehabilitation Amendment.)

August 30, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, August 27, 2018

A notable (and curious?) call for criminal justice reform that serves as another sign of new political times

The passing of John McCain this weekend led me to review some of my long ago postings in the blog topic archive labelled Campaign 2008 and sentencing issues.  The main theme I kept returning to is how little discussion there was of criminal justice issues during that election cycle.  Here are links to a few of the 2008 posts on that theme: 

Other posts in that archive that might still be considered notable a decade later include Rudy Giuliani doing robocalls accusing Senator Obama of being soft on crime and Is Senator Clinton to the right of Justice Scalia on sentencing issues?.  (This last post has me thinking again about the fact that Hillary Clinton's criminal justice history makes her seem much more like a member of the "tough and tougher" crowd than many (most?) members of the current GOP.   Hillary Clinton in 2007 (in)famously opposed making retroactive the first small crack guideline amendments passed by the US Sentencing Commission, most of the GOP seemingly now supports making the 2010 Fair Sentencing Act fully retroactive.)

Of course, circa 2018, there is a heck of a lot more talk about criminal justice reform from an array of political candidates in all parties.  And I noticed this morning this interesting (and somewhat curious) commentary by Beto O'Rourke, a Texas congressman taking on Ted Cruz for election to the US Senate, under the headline "O’Rourke: Texas should lead the way on true criminal justice reform." I recommend the piece in full, and here are excerpts:

On Wednesday, I toured the Harris County Jail with Sheriff Ed Gonzalez and met men from this community who have made a mistake from which they may or may not recover. Men who don’t have the resources to post bail.  Some of whom got arrested on purpose to get the treatment and care they need, care they won’t be able to afford or access on the outside.  In fact, the Harris County Jail is the largest provider of mental health services in our state, a state that is the least insured in the nation. Of the 10,000 inmates in the Harris County Jail, one quarter of them are being prescribed at least one psychotropic medication.  The jail has more people receiving psychiatric treatment every day than the nine state mental hospitals in Texas combined.

But beyond those who need health care, there are many more languishing behind bars for nonviolent crimes — sixty percent yet to even be convicted. Unable to work, to pay taxes, to raise their kids, to contribute to our society, to realize their full potential.  And it’s happening at the average cost of $87 per person, per day, and more than $400 per person, per day for prisoners requiring medication or medical treatment.  That tab is ultimately picked up by the taxpayers of Harris County.

The jail I visited is not an outlier.  Rather, it is part of the world’s largest prison population.  One that is disproportionately comprised of people of color, though we know that people of all races use illegal drugs at roughly the same rate. Many have called this the New Jim Crow, and for good reason.  One in four black children have had a parent in the criminal justice system, compared to just four percent of white children. That rate is nearly two times what it was in the 1980s.  And it begins with a school-to-prison pipeline that starts as early as kindergarten, where a black child is four to five times as likely to be suspended or expelled as a white child.

Following my visit, I am more convinced than ever that Texas can and must take the lead in building a criminal justice system that is more fair and that urgently puts our country closer to the words written above the highest court in our land: equal justice under law.  This is how I propose we do it.

First, we should eliminate private, for-profit prisons from our justice system.  Locking someone up is a power that should be reserved for our government, not outsourced to corporations that have the perverse incentive of getting more people behind bars so that there are more profits for their shareholders.

Second, we need to end the failed war on drugs that has long been a war on people, waged on some people over other people.  Who is going to be the last man — more likely than not a black man — to languish behind bars for possessing or using marijuana when it is legal in more than half of the states in this country?  We should end the federal prohibition on marijuana and expunge the records of those who were locked away for possessing it, ensuring that they can get work, finish their education, contribute to their full potential and to the greatness of this country.

Third, we must stop using mandatory minimum sentencing for non-violent drug offenses — a practice that costs taxpayers dearly and destroys lives in the process by locking up people who could safely re-enter society. And we replace this practice with policies that begin treating addiction like the public health concern it is.

Fourth, we can end the current use of bail bonds that punish people for being poor.  This is a tactic that wastes resources on incarcerating those who are not a threat to anyone, not a flight risk, not likely to be repeat offenders. In the Harris County Jail, it’s estimated that 500 to 600 of the inmates at any given time fit this description — in for misdemeanors but without the resources to post bail as I did more than twenty years ago.

Finally, we should provide meaningful reentry to help cut down on recidivism for those who committed non-violent crimes. That starts with strong rehabilitation services, counseling and access to preventative health care. It continues by banning the box on job applications so those formerly incarcerated can work and pay taxes, returning drivers licenses so they can get to that place of employment, allowing them to apply for loans that can unlock skills trainings, and ensuring their constitutional right to participate in civic life by voting is protected....

Giving low-level offenders a second chance no matter the color of their skin or the economic status they hold can create opportunity for all of us. It will help build a future that is more just, more fair, and more prosperous for every single person in this state and this country. It is time for Texas to lead the way.

I call this commentary "curious: because O'Rourke is talking about his experience touring a local jail while running for federal office, and he makes no mention of current federal proposals like the FIRST STEP Act. Senator Ted Cruz has been resistant to some federal sentencing reforms proposed even by the GOP, and I would think candidate O'Rourke could and should seek to clearly distinguish his position from that of his opponent. Moveover, as students of modern criminal justice know, it is a bit curious to call for "Texas to lead the way" in criminal justice reform because, to a large extent, Texas already has starting the the mid 2000s when the state turned away from building more prisons and invested in more alternatives to incarceration.

Curious particulars notwithstanding, it is still heartening that our modern political times have evolved to the point that prominent candidates in the Lone Star State are eager to talk at length about improving Texas justice (even when a candidate is seeking a federal office).

August 27, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, August 22, 2018

Lots more news and notes and commentary about federal criminal justice reform efforts ... including report of no Senate vote until after election

Here in no particular order is a too-quick round-up of some of the notable stories and commentaries I have seen this week as the debate over federal prison and sentencing reform continues to heat up:

UPDATE: Here are a few more pieces on this front worth checking out, including perhaps the most tangibly significant in the form of the Politico piece that the Senate will not move forward on a vote until after the November election:

August 22, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Sunday, August 19, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some of many prior recent related posts:

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

Sunday, July 29, 2018

"Reducing the prison population is a bipartisan goal"

The title of this post is the title of this recent Dallas Morning News commentary authored by Doug Deason, who is a co-founder of the Deason Criminal Justice Reform Center at Southern Methodist University.  Here are excerpts:

About 1.5 million people are sitting in state and federal prisons across the U.S. today, according to the Bureau of Justice Statistics, many for nonviolent crimes.  Prisoners all too often face inhumane conditions and are woefully unprepared to rejoin society as peaceful, productive and law-abiding citizens.

This weekend I will join Charles Koch and other business and philanthropic leaders for a retreat in Colorado Springs to discuss how we can work together to solve this and other challenges and create a freer and more open society.  We know challenges like these can't be solved alone.  We stand ready to, in the words of the great abolitionist Frederick Douglass, "unite with anybody to do right and with nobody to do wrong."  And there are few issues in which "doing right" is more urgently needed than fixing our broken criminal justice system....

Many are rightfully alarmed at the inequities in the criminal justice system. African-Americans make up around 13 percent of the U.S. population but account for one-third of inmates, according to the BJS, and compared to the general population, prisoners are far more likely to have a history of mental health problems and drug abuse.  A Brookings Institution study found that four out of every five prisoners had zero earnings when they entered prison.

Then there are the costs to taxpayers and innocent family members.  The annual cost of running the corrections systems at the national, federal, state and local levels exceeds $80 billion, according to a Washington University in St. Louis study.  It is a system that frequently turns folks who were once taxpayers into wards of the state. And it leaves many mothers and fathers to raise their children alone and without the aid of child support.

These mounting concerns have energized support for reform across the political spectrum. As a co-founder of the Deason Criminal Justice Reform Center at Southern Methodist University, I have participated in panel discussions with CNN's Van Jones to highlight the need for cutting incarceration rates.  As a Republican businessman and a Democratic political commentator, we don't always see eye-to-eye when it comes to politics.  But like many Americans, we are willing to put our differences aside to address this critical problem.

As U.S. Rep. Hakeem Jeffries, D-N.Y., recently said, according to Townhall.com, "overcriminalization is increasingly viewed as not a Republican or a Democrat problem but as an American problem." Jeffries and Rep. Doug Collins, R-Ga., are co-sponsors of the First Step Act, legislation that would help rehabilitate prisoners and save taxpayers billions of dollars in the process....

Reforming the criminal justice system won't be easy or quick. It will require a long-term commitment.  But if we want to break the barriers that keep too many Americans trapped in lives of crime and poverty, we will all need to work with unlikely partners.  The leaders gathering in Colorado Springs welcome any allies willing to unite to do right. Let's not let our differences stop us from working together on these critical issues.

July 29, 2018 in Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences | Permalink | Comments (17)

Saturday, July 14, 2018

The American Conservative reviews how "Law-and-Order Texas Takes on Criminal Justice Reform"

I spotlighted in this post last week this lengthy commentary in The American Conservative under the full headline "Where the Right Went Wrong on Criminal Justice: Ending our 'incarceration nation' would help return conservatives to their roots, acting on principles most of them already hold."  Now comes the second extended piece in a series appears here under the full headline "Law-and-Order Texas Takes on Criminal Justice Reform:Seeking alternatives to bloated prison populations and recidivism, the Lone Star state leads others to pursue to the same." Here are excerpts

Though Jerry Madden had no prior background in corrections or law enforcement, he helped change the course of both fields. Madden was serving in the Texas House in 2005 when he got called into the speaker’s office. Speaker Tom Craddock, a fellow conservative Republican, told Madden he would be chairing the corrections committee. Madden asked Craddock what he should do. Craddock uttered eight words that changed Madden’s life and altered the course of American corrections policy: “Don’t build new prisons, they cost too much.”

Texas, even more than most other states at the time, had been on a prison-building spree. It had reached a point where the return on investment was low. Madden used his training as a statistical engineer to hunt down the data about what wasn’t working, or could easily be changed, throughout the corrections system. Along with his counterpart in the state Senate, John Whitmire, Madden put together a package to overhaul parts of the state’s criminal justice system....

Recidivism fell quickly in Texas. Back in 2005, the state was paroling 21,000 prisoners, 11,000 of whom returned. A decade later, the state paroled 28,000 prisoners and about 4,500 came back. “It’s an effort to continue getting the gains in public safety we’ve been getting for 20 years now, while also reducing our extraordinarily high levels of incarceration,” says Vikrant Reddy, a senior fellow at the Charles Koch Institute.

The success of the Texas model stirred other states to replicate it, beginning with Kansas, Ohio, and South Carolina. The fact that Texas had a “hang ’em high” reputation, built not just on high incarceration rates but also on its status as the nation’s most active executioner, helped convince conservative legislators in other states that the idea of providing treatment for prisoners wasn’t some bleeding-heart proposal. Rather it was a skeptical redirection of government funds away from a strictly brick-and-mortar approach that demonstrably had not worked.

And so the Texas experiment became a model elsewhere. Cost savings and statistics that might on paper have been just as impressive out of California or Vermont wouldn’t have swayed so many red-state legislators, Reddy says, particularly the Deep South converts the criminal justice reform movement has found in places such as Louisiana, Mississippi, and Georgia. “It was a tremendous stroke of luck for the country that Texas was the first to step out of the gate,” says Adam Gelb, who directs the Pew Charitable Trusts’ public safety performance project, which provides technical assistance to states on criminal justice policies.

Nearly three-dozen states have now enacted policies that mirror, to a greater or lesser extent, the Texas template. Every state has done something to address prisoner reentry programs and employment. The impact of these efforts is now being felt in Washington.

Prior related post:

July 14, 2018 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Friday, July 06, 2018

The American Conservative explains "Where the Right Went Wrong on Criminal Justice"

JulyAugustArthur Rizer and Lars Trautman from the R Street Institute have this remarkable new commentary in The American Conservative under the full headline "Where the Right Went Wrong on Criminal Justice: Ending our 'incarceration nation' would help return conservatives to their roots, acting on principles most of them already hold."  Long-time readers are surely aware of my long-enduring contention that a lot of conservative ideology and rhetoric would seem to push toward advocacy for sentencing and other criminal justice reforms, and thus I really enjoyed this full lengthy piece (which, according the editors, is "the first in a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform). I recommend the piece in full, and here is just a small snippet:

When it comes to criminal justice, the Republicans have for decades declared themselves to be the party of “law and order.” This commitment to “tough on crime” policies helped it win elections in the latter half of the 20th century, but at the cost of a society in which a third of working-age Americans have criminal records and more than 10 million people go to jail each year. The fact that the United States, with nearly 2.2 million Americans behind bars, incarcerates more of its citizens than any other nation is not a point of pride. This shameful position is put in even starker relief when one considers that the nations with the second and third highest number of incarcerated individuals are China and Russia, respectively.

These realities, products of the “lock ’em up and throw away the key” sensibility of yesteryear, have tarnished the image of Republicans and conservatives in the minds of many. Though Republicans have greatly increased their political power in recent elections, they have nevertheless alienated many of the fastest growing segments of the electorate, casting a pall across the impressive electoral successes of the past decade.

The extension of conservative principles to criminal justice policies offers a chance to court new constituencies and bring conservative messages to voting blocs that will dominate American politics in the future, all without risking the current base of conservative support. Already, right-leaning organizations, armed with polling data that show significant backing from many conservatives, are mobilizing on criminal justice issues. It’s time to leverage these efforts to rebuild the conservative identity. Perhaps no other policy area holds more potential than criminal justice reform....

The inherent dignity of every human life is another tenet of the Republican Party that lives on in the conservative movement today.  However, it is also an issue that permeates too few aspects of the criminal justice system.  From abhorrent prison conditions to the stigmatization of the formerly incarcerated to the negative public safety implications of ill-conceived criminal justice policies, there is no shortage of ways in which the justice system cheapens life.  Efforts to alleviate these various forms of suffering and protect our communities offer conservatives another path to better defend the intrinsic worth of every human life.

Given the Christian Right’s prominence within modern conservatism, it seems prudent to at least consider how current criminal justice policies compare to Christian values. While conservatives certainly do not hold dominion over Christian values, Christians represent a substantial portion of the conservative base.  Further, Christian interest groups hold special power within the conservative movement, with many, particularly on the Left, being wary of how this influence might be used.

Maybe the most obvious lesson is from Christ himself — a criminal in the eyes of the state, subject to a miscarriage of justice by an imperfect criminal justice system. Beyond the despicable treatment of Christ, however, are the lessons he gave on how those accused and those guilty of crimes should be treated.  He recognized the “legality” of stoning an adulteress but nonetheless shamed the crowd by asking for the one who had not sinned to “cast the first stone.”  This is an important lesson for conservatives—that the legality of punishment should not be the end of the inquiry of what is just.

While the Bible certainly has examples of harsh punishments, it’s important to note that throughout his life Christ spoke persistently and passionately about reconciliation over retribution.  He famously told his followers: “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, do not resist one who is evil.  But if anyone strikes you on the right cheek, turn to him the other also.”

Criminal justice reform offers conservatives an opportunity to secure a more favorable image by returning to their roots and acting in concert with principles that most of them already hold.

The examination of principles and morality helps to answer “why” criminal justice reform nestles into a renewed conservative identity, but this does little to detail how such reforms will sustain this identity and propel it forward.  For these answers, it’s necessary to look at the problems that afflict each stage of the criminal justice cycle and how conservatives can reap political rewards from remedial action.  With the preamble of the Republican Party platform touting “limited government” and the “rights of the people” as bedrock principles, there is perhaps no better place to begin than pretrial jail reform.  Of the roughly 615,000 individuals held in our local jails at this very moment, around 465,000 are awaiting trial and have yet to be convicted of whatever crime has been alleged.  Too often, these incarcerated individuals are not the most dangerous, but the poorest—those unable to afford bond. Further, the incarcerated are hardly the only ones to suffer from this loss of freedom.  Even a short stay in jail raises the risk of criminal behavior after an individual’s release, meaning that unnecessary jailing is a public safety matter of concern to all.  We also pay dearly when we lock up so many of our fellow Americans, with the price tag of a single day in jail as high as $571.27 in some jurisdictions.

July 6, 2018 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

Tuesday, June 19, 2018

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

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

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

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

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

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

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

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

Some of many prior related posts:

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

Monday, June 11, 2018

Pew Research Center reports uptick in support for death penalty

FT_18.06.08_DeathPenalty_widening-partisan-gapThe folks from Pew have some notable new survey research on the death penalty reported here under the headline "Public support for the death penalty ticks up." Here are the details:

Public support for the death penalty, which reached a four-decade low in 2016, has increased somewhat since then.  Today, 54% of Americans favor the death penalty for people convicted of murder, while 39% are opposed, according to a Pew Research Center survey conducted in April and May.

Two years ago, 49% favored the death penalty for people convicted of murder, the lowest level of support for capital punishment in surveys dating back to the early 1970s.

While the share of Americans supporting the death penalty has risen since 2016, it remains much lower than in the 1990s or throughout much of the 2000s.  As recently as 2007, about twice as many Americans favored (64%) as opposed (29%) the death penalty for people convicted of murder.

Since the mid-1990s, support for the death penalty has fallen among Democrats and independents but remained strong among Republicans. About three-quarters of Republicans (77%) currently favor the death penalty, compared with 52% of independents and 35% of Democrats.

Since 1996, support for the death penalty has fallen 27 percentage points among independents (from 79% to 52%) and 36 points among Democrats (71% to 35%).  By contrast, the share of Republicans favoring the death penalty declined 10 points during that span (from 87% to 77%)....

Support for the death penalty has long been divided by gender and race. In the new survey, about six-in-ten men (61%) say they are in favor of the death penalty and 34% are opposed. Women’s views are more divided: 46% favor the death penalty, while 45% oppose it. A 59% majority of whites favor the death penalty for those convicted of murder, compared with 47% of Hispanics and 36% of blacks.

Young people are somewhat less likely than older adults to favor capital punishment.  Those younger than 30 are divided — 47% favor and 46% oppose it — but majorities in older age groups support the death penalty.

There are educational differences in views of the death penalty. Adults who have a postgraduate degree are more likely to oppose the use of the death penalty in cases of murder (56%) than those whose education ended with a college degree (42%) and those who never received a postsecondary degree (36% some college experience; 38% high school degree or less).

White evangelical Protestants continue to back the use of the death penalty by a wide margin (73% favor, 19% oppose). White mainline Protestants also are substantially more likely to support (61%) than oppose (30%) the death penalty. But among Catholics and the religiously unaffiliated, opinion is more divided: 53% of Catholics favor capital punishment, while 42% oppose it. And while 45% of those who are religiously unaffiliated oppose the death penalty, 48% support it.

Especially because the spike in support for the death penalty here seems to be greater among Republicans and independents, I am inclined to describe these results as reflecting a "Trump Effect."   Notably, this poll was taken only a month after Prez Trump and his Attorney General were actively talking up the idea of the death penalty for some drug dealers (see all the links in this post), and I cannot help but wonder if these results somewhat reflect that particular use of the bully pulpit.

June 11, 2018 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Wednesday, June 06, 2018

Judge Aaron Persky recalled by voters in response to lenient sentencing of Brock Turner

As reported in this Fox News piece, "Northern California residents on Tuesday voted to recall the judge who sentenced a former Stanford University swimmer convicted of sexual assault to a short jail sentence instead of prison." Here is more:

Voters opted to oust Santa Clara County Judge Aaron Persky. He was targeted for recall in June 2016 shortly after he sentenced Brock Turner to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Prosecutors argued for a 7-year prison sentence. Turner was instead sentenced to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Critics say Turner's sentece was too lenient.

Persky maintained that he had followed a recommendation from the county probation department. The California Commission on Judicial Performance ruled that the case was handled legally.

The case gained national prominence after the victim read a statement in court before Turner's sentence. The statement made the rounds online and was read on the floor of the U.S. Capitol during a congressional session.... Michele Dauber, a Stanford University professor who led the recall effort, said the election "expresses clearly that sexual assault, sexual violence is serious and it has to be taken seriously by elected officials.” She added: "It's a historical moment when women across all sectors of society are standing up saying enough is enough."

Persky's supporters said his removal set a dangerous precedent. LaDoris Cordell, a former Santa Clara County judge who led a counter campaign against the recall, called the decision "a sad day for the California judiciary." Cordell added, that the vote implies if judges don't concede to popular opinion, "they can lose their job."

Persky has served on the court since 2003. He declined The Associated Press' request for comment late Tuesday. Assistant District Attorney Cindy Hendrickson will serve the last four years of Persky's term, the San Francisco Chronicle reported.

I suppose it is fitting that a local judge recalled for a sentence being too lenient gets replace by a local prosecutor.  Regular readers know there have been lots and lots of prior posts here about the Brock Turner case, including posts in which I expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Persky.  Here is a sampling of the prior posts this case has generated:

June 6, 2018 in Elections and sentencing issues in political debates, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences | Permalink | Comments (7)

Wednesday, May 23, 2018

Two great new long reads from The Marshall Project

The Marshall Project is for me a regular must-read: my weekdays mornings start most days with its "Opening Statement" email full of all sorts of original and linked criminal justice stories.  Many days I find the "Opening Statement" a bit frustrating because it has more amazing content than I have time to read, and this morning was especially challenging because there were these two original pieces that are lengthy and more than worth the time:

"The Billionaire's Crusade: Broadcom's Henry Nicholas is spending millions to give victims a bigger voice, but not everyone agrees."

An excerpt: Six states have now passed some version of Marsy’s Law, which Nicholas shaped and named for his murdered sister. He has spent upwards of $25 million so far, according to campaign filings, and plans to spend millions more in pursuit of his goal: to get the amendment passed across the country and ultimately, onto the U.S. Constitution.

He’s on his way. This November, the measure will be on ballots in five more states: Oklahoma, Nevada, Kentucky, Georgia and Florida. At least five additional states are considering putting Marsy’s Law before voters in upcoming election seasons — efforts backed almost single-handedly by Nicholas. The measure promises an equal voice for victims in a system where the rights of defendants are constitutionally guaranteed. “We can all agree that no rapist should have more rights than the victim,” the Marsy’s Law website says. It is meant to protect people who have suffered a good deal already, and its appeal to voters is obvious: who is against victims?

But however well-intentioned, Marsy’s Law is drawing criticism from some unexpected quarters, including prosecutors and some victims’ rights advocates.

"Prosecutor Elections Now a Front Line in the Justice Wars"

In most district attorney elections, the campaign playbook is clear: Win over the local cops and talk tough on crime. But in California this year, the strategy is being turned on its head.  Wealthy donors are spending millions of dollars to back would-be prosecutors who want to reduce incarceration, crack down on police misconduct and revamp a bail system they contend unfairly imprisons poor people before trial.

The effort is part of a years-long campaign by liberal groups to reshape the nation’s criminal justice system.  New York billionaire George Soros headlines a consortium of private funders, the ACLU and other social justice groups and Democratic activists targeting four of the 56 district attorney positions up for election on June 5.  Five other California candidates are receiving lesser support.

The cash infusion turns underdog challengers into contenders for one of the most powerful positions in local justice systems, roiling conventional law-and-order politics.  The challengers have matched or surpassed the millions of dollars, largely from police, prosecutors and local business, flowing to incumbents unaccustomed to such organized liberal opposition.

May 23, 2018 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, May 19, 2018

The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum

Politico has two fascinating new articles about on-going political debates and maneuvering surrounding the FIRST STEP Act.  That proposal, as reported here, received a 25-5 vote in favor in the House Judiciary Committee ten days ago, and it seems to be the top federal criminal justice reform bill with a real chance to get to the desk of Prez Trump in the coming months. Here are the full headlines and the start of each Politico article:

"Trump pushes for prison reform bill that divides Democrats: The split among Democrats over whether to support a narrow bill or push for sentencing reductions spilled into the open on Friday":

President Donald Trump on Friday embraced a bipartisan prison reform proposal, but a sharp divide among Democrats on the issue threatens to undermine the deal.  The discord was on display Friday as Rep. Hakeem Jeffries of New York circulated a scathing letter accusing fellow Democrats of trying to tank the effort by waging an opposition campaign “riddled with factual inaccuracies.” At issue is whether to move ahead with a more narrow overhaul or to hold out for a broader criminal justice bill that includes sentencing reductions.

Trump vowed in his remarks that his administration would make circumstances "far, far, far greater than ever before" for former prisoners looking to rebuild their lives.  But other leading Democrats are fighting Jeffries' approach, pushing for the sentencing reductions, which are opposed by the Trump administration. Jeffries' rebuke came in response to a letter [posted here] criticizing the narrower prisons bill circulated on Thursday by Senate Minority Whip Dick Durbin (D-Ill.) and Rep. John Lewis (D-Ga.), among others.

"Cotton jolts prison reform negotiations":

Multiple law enforcement groups say Sen. Tom Cotton’s office approached them about opposing a bipartisan prison reform bill — a key legislative priority for President Donald Trump — according to emails reviewed by POLITICO.

Cotton’s office says it made no direct request for groups to oppose the bill. But the outreach from the Arkansas Republican, one of Trump's closest allies in Congress, has left supporters of the prison reform effort suspicious that he is trying to tank the Trump-backed legislation before it reaches the Senate.

Cotton is a stalwart critic of broader criminal justice overhaul proposals but has yet to publicly come out against the narrower, prison-focused approach that Trump is backing. However, the emails reviewed by POLITICO show at least two leading law enforcement groups discussing a call by Cotton’s office this week for letters of opposition on prison reform ahead of a White House summit Friday on the issue.

In one instance, the request from Cotton’s camp appears to have lost the prisons bill a supporter: The Federal Law Enforcement Officers Association, which had declared its endorsement in February, wrote to House and Senate Republican leaders on Friday announcing it was reversing that position and would oppose the prison reform bill, citing changes made to the measure in recent weeks. A member of the organization said Cotton’s office had asked the group to send a letter of opposition, according to one of the emails reviewed by POLITICO. The FLEOA did not return a request for comment.

In a separate email shared with POLITICO, another top law enforcement group said it and other similar organizations had been contacted by Cotton’s office with a request to oppose the bill in writing.

Cotton spokeswoman Caroline Tabler said the office had not directly requested any public opposition. “Senator Cotton believes it’s important that we get prison reform right, and that any legislation must fully protect law-abiding Americans. He’s consulted with Arkansans and several law enforcement groups and is actively working with his colleagues to address his concerns with the current bill,” Tabler said in a statement.

I suspect that there are not many examples of Senator Tom Cotton and Senator Kamala voting similarly on a high-profile piece of legislation, but the latest news and developments concerning federal criminal justice reform suggests they may both end up voting no (albeit for different reasons) if and when the FIRST STEP Act comes up for a vote in the Senate. Interesting times.

Some of many prior related posts:

May 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

Thursday, May 17, 2018

Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform

As reported in this Politico piece, a set of "powerful Democrats stepped up their opposition campaign against a bipartisan bill on prison reform via a lengthy letter Thursday, their latest attempt to stamp out momentum for the proposal before it hits the House floor next week." Here is more:

The Democrats’ five-page opposition letter, which describes the bill as a “step backwards,” is just the latest volley in an ongoing battle over how far Congress should go this year to overhaul the nation’s criminal justice system.  The legislation is backed by the White House and could be the last real chance for a bipartisan success — no easy feat in a contentious election year — but has several key opponents, particularly in the Senate.

Rep. John Lewis (D-Ga.), the revered civil rights leader and one of the most influential members of the House Democratic Caucus, signed on to the letter.  Other Democrats already known to be opposed to the prison bill also added their names: Senate Minority Whip Dick Durbin of Illinois, Sens. Cory Booker of New Jersey and Kamala Harris of California, and Rep. Sheila Jackson Lee of Texas.

“We write to express our serious concerns with the First Step Act, legislation that purports to reform federal prisons but which would in fact be a step backwards,” they wrote. They go on to say that the bill, which would provide training programs for prisoners that are aimed at reducing repeat offenses, could actually have the opposite effect by putting in place policies that are more discriminatory toward inmates of color.

The letter — particularly Lewis’ opposition — could be a significant blow to efforts by the bill’s supporters to round up support ahead of an expected floor vote next week.  Reps. Hakeem Jeffries (D-N.Y.) and Doug Collins (R-Ga.), lead authors of the push for prison reform, have been meeting with members since the bill sailed out of committee last week....

The letter takes several shots at the prison reform proposal, saying that it doesn’t provide enough funding to be effective and that Sessions, a vocal opponent of criminal justice reform, would have far too much autonomy over the new programs.

The bill has strong Republican support in the House — all but one Republican on the House Judiciary Committee, including several far-right members, backed the proposal. But the legislation has divided Democrats, particularly members of the Congressional Black Caucus and the Congressional Progressive Caucus.

Lewis’ opposition to the bill could be particularly influential for Democrats deciding how to vote.  But the bill’s authors can also point to several prominent backers on their side, including CBC Chairman Cedric Richmond (D-La.) and Rep. Keith Ellison (D-Minn.), a leading progressive.

The full five-page "Dear Colleague" letter is available at this link, and it reiterates a series of arguments that the progressive opponents of prison reform have been making for months. As I have said before, though I see merit in many of the criticisms of prison-only reform efforts, I struggle to see any path forward for more robust reforms in the immediate future.  (There is also the irony that the prison-reform provisions they criticize in the FIRST STEP Act also appear in the broader sentencing reform bill they promote as an alternative.) 

As I noted in this recent post, broader reforms have now been robustly discussed for the better part of a decade and they did not become law even when there was a supportive Prez and Attorney General.  Perhaps the authors of this letter have a viable plan for getting a better bill to the desk of the Prez and signed into law, but I know I am more than tired of waiting to see any kind of serious criminal justice reform passed by Congress.  (Keep in mind it has been a full eight years since the passage of the Fair Sentencing Act, the last notable statutory sentencing or prison reform, and that law only addressed one crime that makes up now less than 5% of the federal caseload.)

The strategy of hoping for more favorable political conditions for broader sentencing reform strikes me as an especially risky strategy given AG Jeff Sessions' obvious disaffinity for any reforms and his ability and eagerness to use any crime data and developments to make the case against reform.  If crime data in the coming months show a continued rise in crime, AG Sessions is sure to argue that cutting sentences at a time of rising crime is misguided; if data instead show a new decline, AG Sessions is sure to assert that his policy changes have been efficacious and that current law preserves the status quo. 

Some of many prior related posts:

May 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, May 07, 2018

New and improved version of federal prison reform bill to be considered by House Judiciary Committee

First-step-concept-cork-board-77226634In this post last night, I expressed my deep pessimism concerning Congress managing to pass any notable criminal justice reform.  So it is fitting kismet that this afternoon came the exciting news of a new and improved version of a prison reform bill known as the "Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act" or the "FIRST STEP Act." The full text of this bill is available at this link, and this House Judiciary Committee page indicates that this bill will be marked up this Wednesday.

This new Politico article, headlined "Kushner-backed prison reform bill finds new life," provides an account of the background politics and the critical new provisions of the new proposed legislation. Here are excerpts:

A group of bipartisan House lawmakers unveiled a new criminal justice bill Monday, with hopes it can overcome obstacles that derailed an earlier version of the legislation just two weeks ago. The House Judiciary Committee will vote on the prison reform bill Wednesday after its lead authors, Reps. Hakeem Jeffries (D-N.Y.) and Doug Collins (R-Ga.), spent the congressional recess working with President Donald Trump’s son-in-law and adviser Jared Kushner and others to tweak the proposal.

The bill would authorize funding for training programs to help rehabilitate prisoners. If approved by the Judiciary Committee, the bill could be on the House floor before the Memorial Day recess, according to several sources. Senate Majority Whip John Cornyn (R-Texas) and Sen. Sheldon Whitehouse (D-R.I.) introduced a companion proposal Monday afternoon.

But while Jeffries and Collins have been working to build a bipartisan coalition of support, key lawmakers including Rep. Jerry Nadler (D-N.Y.), top Democrat on the House Judiciary panel, and Senate Judiciary Charmain Chuck Grassley (R-Iowa) remain potential obstacles.

The House Judiciary Committee scrapped plans two weeks ago to mark up an earlier version of the bill after support waned — due in part, according to House sources, from Grassley and Senate Minority Whip Dick Durbin (D-Ill.) privately urging members to oppose the plan because it didn't include sentencing reforms. “What we’re disagreeing on right now is how far can we go right now,” Collins said in an interview Monday. “Do you want to actually make law or do you want to make press releases?”...

Collins and Jeffries said they hope the plan’s broad support — from liberal criminal justice group #cut50 to the Koch brothers to Kushner — is enough to ensure passage in the House. Kushner is meeting with the conservative House Freedom Caucus Monday evening to rally support for the bill.

But Nadler — who still has “a lot of concerns” a spokesman said Monday — isn’t alone in his opposition to the bill. Detractors argue the proposal doesn’t go far enough because it doesn’t also tackle sentencing reform, an effort Grassley and Durbin have spent months negotiating. Grassley along with several key Senate Democrats and influential civil rights groups like the ACLU and NAACP want a comprehensive criminal justice overhaul that includes both sentencing and prison reforms....

Jeffries and Collins told POLITICO they hope the changes made over the last two weeks are enough to get reluctant House lawmakers on board. Jeffries is also hopeful that Sessions will refrain from trying to sink the effort as he has in the past. “At the moment, it appears that the Department of Justice is in a position of neutrality as it relates to the bill,” Jeffries said. “To the extent that changes, that could be a complicating factor once the bill gets on the House floor.”

The bill — which they are now calling the “First Step Act,” in part to signify it’s the initial step in a longer effort to reform the justice system, including sentencing laws — has several major changes from previous versions.

The bill would authorize $50 million annually for five years to provide education and vocational training programs to prisoners; the latest version would also allow nonviolent drug offenders to participate in the programs. Jeffries and Collins also agreed to language that would allow more prisoners to take advantage of credits that would allow inmates to serve part of their sentence in home confinement or at a halfway house.

The proposal also includes several wins that liberal groups had pushed for, including language codifying prohibitions on shackling pregnant female inmates, both during their pregnancy and for 12 weeks postpartum.

And in what progressive backers are touting as another major win, the bill includes a technical fix that would allow inmates to earn up to 54 days of “good time” credit a year, up from 47 days annually under current interpretation of the law.

“We also had concerns around whether or not this was a meaningful reform. Those have been answered by including the good time credit fix,” #cut50 co-founder Jessica Jackson Sloan said, noting roughly 4,000 prisoners would immediately be eligible for release. “We’re fully on board with this bill. We’ll continue to fight for sentencing reform,” she added.

To turn up pressure on House Judiciary Democrats, the Koch brother’s Freedom Partners launched a wave of digital ads Monday encouraging lawmakers to support the bill. The Facebook and Twitter ads will run in six Judiciary Democrats’ districts, including Jeffries, Nadler and Reps. Steve Cohen (D-Tenn.), Sheila Jackson-Lee (D-Texas), Cedric Richmond (D-La.) and Pramila Jayapal (D-Wash.). The White House is also expected to increase its outreach on the Hill this week, likely through Kushner, according to sources.

For the plans’ supporters, they say now is the best time to act with the goal of getting sentencing reform down the road. “There were some who took the position that we should wait on criminal justice reform until [Hillary] Clinton is president and Democrats were in control of the Senate. How did that work out?” Jeffries said.

I will not count any congressional chickens until they have hatched in the form of a Presidential signature on enacted legislation. But, after feeling distinctly pessimistic last night, now I am peculiarly optimistic that something pretty significant could get done in the coming months.

May 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (5)

Tuesday, April 17, 2018

"The Consensus Myth in Criminal Justice Reform"

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

It has become popular to identify a “bipartisan consensus” on criminal justice reform, but how deep is that consensus, actually?  This Article argues that the purported consensus is largely illusory. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions.  The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article offers a typology of the two prevailing, but fundamentally distinct, critiques of the system:

(1) the quantitative approach (what I call the “over” frame); and

(2) the qualitative approach (what I call the “mass” frame).

The “over” frame grows from a belief that criminal law has an important and legitimate function, but that the law’s operations have exceeded that function.  This critique assumes that there are optimal rates of incarceration and criminalization, but the current criminal system is sub-optimal in that it has criminalized too much and incarcerated too many. In contrast, the “mass” frame focuses on the criminal system as a socio-cultural phenomenon.  This reformist frame indicates that the issue is not a mere miscalculation; rather, reforms should address how the system marginalizes populations and exacerbates both power imbalances and distributional inequities.

To show how these frames differ, this Article applies the “over” and the “mass” critique, in turn, to the maligned phenomena of mass incarceration and overcriminalization.  The existing literature on mass incarceration and overcriminalization displays an elision between these two frames. Some scholars and reformers have adopted one frame exclusively, while others use the two interchangeably.  No matter how much scholars and critics bemoan the troubles of mass incarceration and overcriminalization, it is hard to believe that they can achieve meaningful reform if they are talking about fundamentally different problems.

While many reformers may adopt an “over” frame in an effort to attract a broader range of support or appeal to politicians, “over” policy proposals do not reach deeper “mass” concerns.  Ultimately, then, this Article argues that a pragmatic turn to the “over” frame may have significant costs in legitimating deeper structural flaws and failing to address distributional issues of race, class, and power at the heart of the “mass” critique.

April 17, 2018 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Monday, April 16, 2018

Two notable recent sentencing commentaries on work ahead for Congress

Thehill-logo-bigIn recent months I have noticed lots of notable sentencing commentary in the publication The Hill.  And Friday The Hill published two sentencing commentaries of note. They are linked below with their first few paragraphs:

"Congress must act to fix our broken criminal justice system" by Reps. Cedric Richmond (D-LA.) & Mark Walker (R-N.C.):

Our criminal justice system is crumbling.  Over the last 40 years, our domestic incarceration rate has quadrupled, creating a crisis of more than 2 million people behind bars in the United States today.  Simultaneously, recidivism rates have grown or remained high across almost every identifiable demographic or cross section.  And yet, crime rates have steadily fallen.

This paradox exposes a simple fact: our criminal justice system is in desperate need of reform.  What’s more, almost everyone in Congress knows it. Passing significant reforms to our criminal justice system could bring relief to families and communities in every state, district and territory.

Over the past few weeks, at our respective retreats, members of Congress from both parties discussed our priorities.  We believe criminal justice reform needs to be on the top of that list.

Since arriving in Congress, we have seen increasing awareness, education, energy and interest in criminal justice reform, but, to date, we have not been able to enact necessary changes.  Senators have formed working groups.  The House Judiciary Committee passed strong, bipartisan legislation out of committee last year. But no tangible results.  That has to change.

"Reviving the war on drugs is exactly the wrong response to the opioid crisis" by Ames Grawert & James Cullen:

This week on Capitol Hill, lawmakers met to discuss a bill that would impose draconian mandatory minimum sentences on even minor crimes involving the synthetic opioid fentanyl.  The hearing follows news that the Trump administration will seek the death penalty for drug dealers, part of his overall “war on opioids.”

“You just can’t pass a law increasing punishment and expect the opioid crisis to go away,” Sen. Lindsey Graham (R-S.C.) appeared to acknowledge at the outset.  “But it’s a pretty good place to start.”

It’s not.  It’s a bad place to start.  This is the logic of mass incarceration, the instinct to always demand the harshest punishment possible. It animates the Trump administration and its Congressional allies on everything from drug policy to immigration.  And it doesn’t work.  Reform advocates can’t be lulled by the false promise of reform.  We need to fight back before we repeat the mistakes of the 1970s.

April 16, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Friday, April 06, 2018

Making the case for making the best of federal sentencing changes in the form of prison reform

Lars Trautman has this notable new Hill commentary, headlined "Incentivized early release the right path to sentencing reform under Trump-Sessions," making the argument that advocates ought to pursue even limited prison reform if that is the only form of politically viable federal sentencing reform. Here are excerpts:

The heated “tough-on-crime” rhetoric of the president and many in his administration has greatly complicated criminal justice reform efforts and left Congress scrambling to figure out how to make sentencing reform palatable to the White House.  The problem has become particularly acute after the attorney general summarily dismissed one of the Senate’s leading proposals and the White House sent Congress a set of criminal justice priorities that pointedly ignored front-end sentencing reforms.

So how can Congress possibly move the needle on something as controversial as federal sentencing reform under this administration?

By passing sentencing reform that doesn’t look like sentencing reform.  Plans that reduce the potential penalties for certain offenses or provide other sentencing safety valves have struggled because they focus on the crime committed, essentially forcing proponents to argue that an individual deserves less punishment for a given offense. This is a fundamentally moral issue that has no easy answer.  It’s particularly susceptible to emotional appeals that couple a shared sense of outrage at criminal behavior with a fear of emboldening criminals.

As long as the focus remains on the wrong perpetrated, opponents are able to falsely claim that it’s impossible to be in favor of both victims and criminals, and then portray themselves as defenders of the former....  As worthy and necessary as this kind of front-end reform may be, demanding its inclusion is much more likely to frustrate than achieve any criminal justice reform.

So, if traditional sentencing reform is dead in the water, what’s left?  Reentry programs that offer prisoners the opportunity to shorten their sentences on the back-end would be a good place to begin.  Rather than trimming sentences from the start, these programs allow prisoners to earn credits toward early release by participating in programs intended to help reintegrate them into society and reduce their propensity to reoffend.  Although they face some of the same political resistance as front-end sentencing reductions, it is significantly easier to overcome.

These programs avoid many of the usual pitfalls that sentencing reform legislation encounters because they shift the narrative from one of retribution to redemption, from past wrong to future promise.  Instead of getting bogged down on issues like whom to punish and for how long, politicians are able to talk about what comes next.  Leaving the nominal sentence unchanged insulates these reforms from charges that they don’t adequately reflect the egregiousness of a given crime or that they will negatively impact deterrence.  Public safety and prison budgets are both improved as prisoners are given the tools to leave prison and never return.

Reentry programs also represent a more targeted approach to early release that is eminently easier to defend. This further moves the debate to more favorable terrain by limiting discussion only to those prisoners who have taken the initiative and successfully completed programs to reduce their risk of reoffending. Instead of having to defend the early release of all offenders, including those who may be unrepentant or otherwise incorrigible, proponents need only support those who have actively taken steps to better reintegrate themselves into society....

With opportunities for movement on criminal justice reform likely few and far between under this administration, reformers need to pick their fights more wisely. Demanding upfront sentencing reductions may feel righteous, but in the face of our current political intransigence it will likely do little to help those serving unnecessarily long sentences. Such energies are better spent working to expand the use of incentivized early release and ensure that it actually results in the conclusion of a sentence in legislation such as Rep. Doug Collins' (R-Ga.) Prison Reform and Redemption Act.

While there is much more that can and should be done on sentencing reform, for now at least, Congress should focus on progress that might actually garner a presidential signature.

April 6, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (8)

Sunday, April 01, 2018

Is criminal justice reform really likely to be "a winning issue in 2018"?

The question in the title of this post is prompted by this recent Salon article headlined "Beyond 'law and order': Criminal justice reform looks like a winning issue in 2018: Voters don’t want Trump-style demagoguery about crime. They’re ready for real work to reduce mass incarceration." Here are excerpts:

During his speech at the 2016 Republican National Convention, Donald Trump painted a terrifying picture of the United States as a crime-ridden wasteland where people cower in fear in their homes, declaring, "I am the law-and-order candidate."...  Despite this, criminal justice reform activists and experts believe that a more positive message on crime and law enforcement is a winner: We can lower incarceration rates in the U.S. without sacrificing public safety.

Inimai Chettiar, director of the Brennan Center's Justice Program, told Salon that she sees an "awakening of America to the problem of mass incarceration."  She believes there's an "increasing consensus that we do need to reduce our prison population" and that the tough-on-crime posturing from Trump or Attorney General Jeff Sessions is "out of step with this current consensus."...

A 2017 poll from the Charles Koch Institute "reveals that 81 percent of Trump voters consider criminal justice reform important," the report explains.  "Another, from Republican pollster Robert Blizzard, finds that 87 percent of Americans agree that nonviolent offenders should be sanctioned with alternatives to incarceration.  And according to a 2017 ACLU poll, 71 percent of Americans support reducing the prison population — including 50 percent of Trump voters."

The [new Brennan Center] report outlines a number of critical policies lawmakers can enact to reduce prison rates, such as passing sentencing reform laws, decriminalizing marijuana and diverting people to mental health services instead of jail.  Importantly, the report focuses on federal, state and local policy ideas.  Most people are incarcerated in state and local facilities, and the only way to truly reduce the prison population is for reform efforts to be focused on every level of government.

This is no doubt why there's been increased attention to the role local prosecutors play in creating the mass incarceration problem — and the role they can play in fixing it. There's been significant media coverage, for instance, of Larry Krasner, Philadelphia's new district attorney, who was elected after promising significant reforms to the prosecutor's office aimed at reducing incarceration rates.  Now Krasner is making good on those promises, fighting the railroading of defendants and encouraging his attorneys not to seek maximum penalties for nonviolent or low-level offenses.

This is in direct contrast with how most prosecutors do things, Chettiar said, noting that "prosecutors are officially and unofficially rewarded . . . based on conviction rates, length of sentences and how zealously they enforce and punish defendants," a situation that developed in direct reaction to the "tough on crime" frenzy of the '80s and '90s.

While the Brennan Center report has some ideas for prosecutors and mentions the election of Krasner — as well as progressive prosecutors in Chicago, Dallas, Denver, Tampa and St. Louis — Chettiar cautioned that it's not enough to elect prosecutors who run on reform platforms.  “I worry that the election of these progressive prosecutors could potentially distract from the obligation of state legislators and congress and governors to act to change laws," she said.  “It is equally important, if not more so, that our criminal laws and sentencing laws are changed." 

April 1, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (10)

Wednesday, March 28, 2018

"What If Prosecutors Wanted to Keep People Out of Prison?"

The question in the title of this post is the headline of this lengthy New York Magazine article, which is primarily focused on Scott Colom, a 35-year-old district attorney in northeast Mississippi.  But the article also covers how Colom is part of a new focus on prosecutors within efforts to reform criminal justice systems.  Here are excerpts from a long article:

By mid-October, with the [2016] election a few weeks away, Colom knew he was gaining traction. Then a colleague sent him a text message complimenting his new TV commercial. “I was like, What are you talking about?” Television hadn’t fit into his budget. Later in the week, his aunt managed to record the ad on her DVR, and he watched it at her house. A voice at the end said it was paid for by a group called Mississippi Safety & Justice.

He looked it up online and discovered it was a PAC funded by liberal hedge-fund billionaire George Soros, who lives in Westchester County, New York. Bemused, Colom sought advice from consultants in Washington, D.C., who’d been helping him with marketing. They advised Colom to post photos and videos on his website for the PAC to borrow for future ads but warned him not to reach out to the group. Campaign-finance laws forbid direct contact between candidates and independent funders. Colom followed the advice, then went back to knocking on doors....

In the end, Mississippi Safety & Justice had spent $716,000 on the election, dwarfing both the $49,000 Allgood had raised and the $150,000 Colom collected himself. Allgood groused that the money had created an uneven playing field, and Colom himself is defensive about it, even now. But whatever the donation’s impact on the race, it put Colom at the center of a national experiment to remake the criminal-justice system.

For almost three decades, Soros has been quietly funding efforts to end the drug war and reduce the inmate population. Throughout the ’90s and 2000s, he was behind almost every state ballot initiative to legalize marijuana and has given millions in grants for liberal legal scholarship. It was Colom’s luck that in 2015 he’d adopted a new strategy: backing progressives in local elections, specifically DAs, who every day make decisions about whom to charge, with how serious of a crime; whether to engage in plea negotiations; how much prison time, if any, to recommend. In other words, unlike legislators, government lawyers have the power to push down incarceration rates with the stroke of a pen, or a word to a judge. Colom was one of his first test cases....

By the end of his first year in office, Colom had doubled, to 218, the number of defendants in the alternative sentencing program, where if you stay clean and get a job or go to school your charges will eventually be cleared. The scope of the program’s services has expanded too; the administrator, a former social worker, helps participants get into rehab, GED programs, and vocational training, and even arranges rides when necessary, since the area has no bus system.

While alternative sentencing isn’t revolutionary — there are similar programs across the country — it’s a scale model of what Colom has in mind when he dreams of a system built on different incentives. “What we’ve got to do is deal with the addiction that causes people to use drugs,” he says, musing that maybe prisons should be scored on how effectively they rehabilitate people, the way public schools are scored on student achievement. More immediately, Colom is strategizing with Tucker Carrington, a law professor who runs the University of Mississippi’s innocence project, to establish a conviction-review unit, as DAs in Brooklyn, Chicago, Dallas, and other metropolises have done.

March 28, 2018 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Friday, March 23, 2018

Brennen Center releases new report: "Criminal Justice: An Election Agenda for Candidates, Activists, and Legislators"

The Brennan Center today released this notable new report titled, "Criminal Justice: An Election Agenda for Candidates, Activists, and Legislators." Here is its executive summary reprinted here:

This report sets forth an affirmative agenda to end mass incarceration in America.  The task requires efforts from both federal and state lawmakers.

Today, criminal justice reform stands on a knife’s edge.  After decades of rising incarceration and ever more obvious consequences, a powerful bipartisan movement has emerged. It recognizes that harsh prison policies are not needed to keep our country safe.

Now that extraordinary bipartisan consensus is challenged by the Trump administration, through inflammatory rhetoric and unwise action.  Only an affirmative move to continue reform can keep the progress going.

The United States has less than five percent of the world’s population, but nearly one quarter of its prisoners. About 2.1 million people are incarcerated in this country, the vast majority in state and local facilities.  Mass incarceration contributes significantly to the poverty rate. It is inequitable, placing a disproportionate burden on communities of color. It is wildly expensive, in some cases costing more to keep an 18-year-old in prison than it would to send him to Harvard.  Our criminal justice system costs $270 billion annually, yet does not produce commensurate public safety benefits.

Research conclusively shows that high levels of imprisonment are simply not necessary to protect communities.  About four out of every ten prisoners are incarcerated with little public safety justification.  In fact, 27 states have reduced both imprisonment and crime in the last decade.  A group of over 200 police chiefs, prosecutors, and sheriffs has formed, whose founding principles state: “We do not believe that public safety is served by a return to tactics that are overly punitive without strong purpose . . . we cannot incarcerate our way to safety.”

In cities, states, and at the federal level, Republicans and Democrats have joined this effort.  They recognize that today’s public safety challenges demand new and innovative politics rooted in science and based on what works. The opioid epidemic, mass shootings, and cyber-crime all require modern responses that do not repeat mistakes of the past.

Crime is no longer a wedge issue, and voters desire reform.  A 2017 poll from the Charles Koch Institute reveals that 81 percent of Trump voters consider criminal justice reform important.  Another, from Republican pollster Robert Blizzard, finds that 87 percent of Americans agree that nonviolent offenders should be sanctioned with alternatives to incarceration.  And according to a 2017 ACLU poll, 71 percent of Americans support reducing the prison population — including 50 percent of Trump voters.

But the politician with the loudest megaphone has chosen a different, destructive approach.  Donald Trump, and his Attorney General Jeff Sessions, falsely insist there is a national crime wave, portraying a country besieged by crime, drugs, and terrorism — “American carnage,” as he called it in his inaugural address.

But, crime in the United States remains at historic lows.  While violent crime and murder did increase in 2015 and 2016, new data show crime and violence declining again in 2017. The national murder rate is approximately half of what it was at its 1991 peak.  Those who seek to use fear of crime for electoral gain are not just wrong on the statistics; they are also wrong on the politics.

Now, to continue the progress that has been made, it is up to candidates running for office to boldly advance policy solutions backed by facts, not fear.  This report offers reforms that would keep crime low, while significantly reducing incarceration.  Most solutions can be enacted through federal or state legislation.  While most of the prison population is under control of state officials, federal policy matters too.  The federal government’s prison population is larger than that of any state.  Further, Washington defines the national political conversation on criminal justice reform.  And although states vary somewhat in their approach to criminal justice, they struggle with similar challenges. The state solutions in this report are broadly written as “models” that can be adapted.

Steps to take include:

• Eliminating Financial Incentives for Incarceration

• Enacting Sentencing Reform

• Passing Sensible Marijuana Reform

• Improving Law Enforcement

• Responding to the Opioid Crisis

• Reducing Female Incarceration

March 23, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Tuesday, March 06, 2018

Noting the focus on prosecutor elections as new front in criminal justice reform efforts

This new McClatchy article, headlined "Progressive groups investing in district attorney races as path to criminal justice reform," highlights the new focus on DA elections within the broader modern criminal justice reform movement. Here is how the piece starts:

The American Civil Liberties Union, backed by millions in funding from billionaire Democratic donor George Soros, is investing resources and applying organizational muscle in local district attorney races in 2018.

The ACLU is among a variety of organizations working to elect prosecutors willing to jumpstart a laundry list of criminal justice reforms, including an overhaul of the pretrial bail bond system. It received a $50 million grant from Soros’ Open Society Foundations in 2014.

Now, in this year’s elections, the organization is planning voter education and outreach campaigns in district attorney races in California, Florida, Maine, Massachusetts, Minnesota, Oklahoma, Oregon, Vermont and possibly North Carolina and Missouri.

The group hasn’t determined which local races will be targeted, but it will focus on contests in big cities with large jail populations that feed the state prison system, said Taylor Pendergrass, senior campaign strategist for the ACLU’s Campaign for Smart Justice.  More than 1,000 local prosecutors are up for election in November, according to the group. “We’re just recognizing how powerful district attorneys are in shaping criminal justice policies, both at the local level, but also at the statehouse,” Pendergrass said. “The lobbying power of prosecutors is really a substantial force almost everywhere we want to see change made in the criminal justice system.”

The ACLU doesn’t endorse political candidates. Instead, it said the objective is to raise awareness about criminal justice issues of concern to the organization, its members and the voting public.  But Soros-funded super PACs and advocacy groups have helped elect a growing number of progressive district attorneys who now serve metro areas such as Chicago, Denver, Houston, Philadelphia and Orlando. And it’s looking to add more in 2018.

The Color of Change Political Action Committee, which has also received Soros funding, is urging black voters to support Democratic candidate Elizabeth Frizell for Dallas County District Attorney in Texas.  A former state district judge, Frizell has called for special prosecutors to investigate shootings by police.  She also supports replacing cash bail bonds with a pretrial release system based on factors such as the type of offense, the facts of the case and the defendants’ likelihood to re-offend and return to court.

An African American, Frizell reflects a new wave of ethnically diverse, activist district attorney candidates, many of whom support policies such as diversion programs for minor drug offenders, reentry programs for people leaving prison and reducing disparities that disproportionately impact poor and minority defendants in the courts.

March 6, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (4)

Saturday, March 03, 2018

Jim DeMint explains how "core of conservatism" at core of South Carolina's leadership on criminal justice reform

Jim DeMint, a former US Senator from South Carolina, has recently become of significant conservative voice in support of various criminal justice reforms. His latest commentary, appearing here under the headline "How Jim DeMint wants SC lawmakers to redefine ‘tough on crime’," links conservative principles and recent reforms and proposals in the Palmetto State. Here are excerpts:

The core of conservatism is the dignity of every individual and the value of every life.  That’s why we talk about individual freedom, self-reliance and personal responsibility. Conservatives fight for limited government to preserve these sacred goals.  And that’s why we care about prison reform.  The values conservatives hold dear are jeopardized when prisons fail to deliver results.  We owe it to victims, law enforcement and the citizens of our communities to act.

In 2010, South Carolina showed the nation how a conservative state can lead on criminal justice reform.  Back then, we stood squarely at a crossroads.  Our prison population was growing at an unsustainable rate, and we were forecasting the need to burden our taxpayers by building more prisons.  We had to take action.  The Palmetto State could go to an old playbook of tough on crime: incarcerate more, spend more and break an already strained budget.  Or we could redefine what it means to be “tough on crime” by adopting smart policies aimed at keeping people safer, reintegrating citizens into the community and taming expensive correctional spending.

Fortunately, state leaders chose a new direction.  S.1154 addressed the enormous number of people churning in and out of our prisons for low-level nonviolent crimes and violations of supervision conditions.  They also established the Sentencing Reform Oversight Committee, made up of legislators, stakeholders and policy experts, to track the law’s performance and make ongoing recommendations for reform in the future.

The results were transformative.  Our violent and property crime decreased by 16 percent, and recidivism dropped by 10 percent.  Our prison population dropped by 14 percent. As a result, we have shut down seven facilities and saved taxpayers nearly half a billion dollars.  Today, based on this innovative approach and the tireless efforts of the men and women at the departments of Corrections and Parole and Probation Services trusted with its implementation, more people are returning to their families and communities and becoming productive, tax-paying citizens.

As reforms outperformed our expectations, skeptics became believers, and practitioners in courtrooms and the corrections system have built a culture of following evidence-based practices.

Still, our prisons are understaffed and struggle with a growing threat of violence within facilities. Therefore, we should pursue evidence based-reform that we know can deliver results. Prison resources should be spent on those who pose a threat to public safety and are not wasted denying liberty to those who can be safely supervised in the community....

Nearly 80 percent of the prison population is still incarcerated for non-violent offenses.  Those convicted are staying in prison too long, nearly a third longer than in 2010.  Our system drains $500 million from taxpayers and has a negative impact on families and communities.  There are also gaps in supervision best-practices that don’t meet the high standard we should hold ourselves to.

March 3, 2018 in Elections and sentencing issues in political debates, State Sentencing Guidelines | Permalink | Comments (2)

Saturday, February 24, 2018

Notable video from American Conservative Union: "Unshackled - America's Broken Justice System"

Speakers such as Prez Trump and the head of the NRA got the most attention at this year's annual Conservative Political Action Conference (CPAC) received the most attention, but Friday's CPAC agenda included a General Session panel titled "Second Chance: The Conservative Stance on Criminal Justice Reform" as well as a breakout sessions titled "Dignity for Incarcerated Women: Is it Really Necessary to Shackle Women in Labor?." I have been noting in recent years the intriguing criminal justice reform programming appearing on the CPAC agenda, and now I see that the Center for Criminal Justice Reform of the American Conservative Union Foundation has a notable new video with conservative leaders discussing why modern criminal justice reform is a core conservative concern:

February 24, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Sunday, February 11, 2018

"The American people have spoken: Reform our criminal justice system"

Holly Harris, executive director of the Justice Action Network, has this notable new Hill commentary with a headline that I have used as the title of this post. Here are excerpts:

Republicans and Democrats are both invested in fixing the justice system, which makes it difficult for either side to politicize this effort.  That wouldn’t be smart politics anyway. Polls show widespread support for specific reforms that will lower the swelling prison population, save money, and make communities safer.  This support is strong among voters in both parties, as well as Independents and women, who are swinging elections in this country.

Three-quarters of American voters think the country’s criminal justice system needs to be significantly improved, according to a poll conducted earlier this year by the conservative polling firm Public Opinion Strategies on behalf of the Justice Action Network.  That conviction is shared equally among Republicans, Democrats and Independents. Robert Blizzard, who conducted the poll, said, “I can’t think of a more positive issue to run on that has more bipartisan support.”  His advice matters, as his firm polls for more than a quarter of the Republicans in the House....

Congress must now stop using the president as an excuse not to bring criminal justice bills to a vote.  The House and Senate are both expected to consider legislation later this year that would implement some of the reforms that voters crave, and the president’s words on the world’s grandest political stage gave Congress a clear runway to act.

Any credible pollster out there would tell members of Congress on both sides of the aisle to tackle this issue and “go big before you go home.”  Voters, by wide margins, favor major changes to our criminal justice system.  Nine out of 10 American voters believe we should break down the existing barriers that make it harder for people leaving jails to find work and support their families.  Republicans are just as likely to hold that view as Democrats.

That is overwhelmingly good news for supporters of “ban the box” or “fair chance hiring” policies, which dozens of states have adopted that would prevent public employers from asking job applicants whether they have been convicted of a crime before they have a chance to explain their qualifications for the job.  Two-thirds of all voters want Congress to enact this policy at the federal level, and Republican governors from Kentucky, Georgia, Arizona, Oklahoma and Indiana have recently taken up this cause.

Attitudes of Americans toward incarceration have shifted dramatically since a generation of Republicans and Democrats enacted tough-on-crime policies at the state and federal levels in the 1980s and 1990s.  Voters now demand more policies that give judges and the justice system more discretion to tailor punishments specifically to individual crimes and cases.

One of the best examples of this shift is the overwhelming opposition to mandatory minimum sentences.  Some 87 percent of voters want judges to have more discretion to sentence nonviolent offenders on a case-by-case basis rather than saddle them with formulaic sentencing requirements that have clogged our prisons with people convicted of nonviolent crimes.  That includes 83 percent of Republicans.

It’s mind-boggling that this issue is controversial in Washington. Not only do Americans want to change how many people we lock up and for how long, they also want policies that will get them back on track.  Some 85 percent of voters think the primary goal of our justice system should be to rehabilitate people so they can become productive, law-abiding members of society. Americans now understand that investing in more treatment rather than more prisons will ultimately make us all safer when these individuals do not return to crime.

Americans no longer believe everyone who commits a serious but nonviolent crime should automatically wind up in prison. Some 87 percent of voters would like governments at the state and federal levels to shift some of the money spent incarcerating nonviolent offenders toward alternative programs, like electronic monitoring, community service or probation. A majority 59 percent feel strongly about it.

Budget concerns are one driver of these changing attitudes.  American voters overwhelmingly believe we spend too much money locking people up, and should spend more on treating drug addiction, helping victims and preventing future crimes.  Voters also want to see more oversight of prisons to ensure taxpayer funds are being spent responsibly.

Prior related post:

February 11, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Monday, February 05, 2018

Reviewing the potential import and impact of Prez Trump's talk of prison reform

Matt Ford at The New Republic has this new piece with this full headline" "A Chance for Criminal Justice Reform Under Trump: Despite his fear-mongering over crime, the president recently promised to help ex-prisoners 'get a second chance at life'."  Can he deliver?"  Here are excerpts from the second half of the piece (with a particular paragraph stressed for additional comment):

Some Republican leaders in deep-red states have taken aggressive steps in recent years to reshape how their own states approach crime and punishment. Georgia has overhauled its criminal code and juvenile-justice system, leading to noticeable declines in its prison population. Texas rewrote its probation and parole guidelines and expanded treatment options for mental health and drug addiction. Kentucky expanded its pretrial services programs as part of a broader push towards bail reform.

At the same time, conservative policy organizations have taken up the cause. The Koch brothers and their network of nonprofit advocacy groups are reform’s most prominent backers on the right, drawing some skepticism from the left. The result is an unusually broad alliance in modern American politics that brings together the Heritage Foundation and the American Conservative Union alongside the ACLU and the left-leaning Center for American Progress.

Credit for this trend’s arrival at the White House apparently goes to Jared Kushner, the president’s son-in-law and and a close adviser. In recent months, Kushner has met with key Democratic and Republican lawmakers in Congress, reform-oriented governors, and advocacy groups. The issue may also carry some personal resonance for Kushner: His father, Charles Kushner, received a two-year prison sentence for tax evasion and other crimes in 2005.

So far, the administration is keeping mum on its exact vision for reform. When asked for more details about the president’s plan, the White House provided a factsheet that described the depth of the problem as well as Trump’s meetings with Republican state officials who’ve tackled the issue in their own backyard. The document contained no specific policy proposals, but those meetings could still provide a window into what sort of policy proposals the Trump administration might favor from Congress. “Kansas improved its juvenile justice system to help make sure young offenders do not become repeat offenders,” Trump noted at a criminal justice summit he hosted at the White House in January. “Kentucky is providing job training to inmates and helping them to obtain professional licenses upon release, and it’s been very successful.”

Proposals like those overlap with policies favored by Democrats, to an extent.  Liberals typically focus on preventing or limiting how Americans enter prison in the first place, through sentencing reform, diversion programs, or decriminalization for nonviolent drug offenses.  Conservative policymakers, on the other hand, tend to gravitate toward measures that help prisoners successfully reenter society like prison education and work-release programs.

But Trump’s rhetoric of late gives hope for bipartisan efforts in Congress to push through a criminal-justice reform bill this year.  While Trump prides himself as a master dealmaker, he’s been content to let Republican lawmakers and his top advisers sketch the details of major legislation on health care, tax reform, and immigration. As long as he’s not actively hostile to whatever lawmakers send him, reformers could find Trump more amenable to the final package if they can convince him it’s a win.

More important, Trump’s lip service to prison reform could be a political boost for reformers in deep-red states.  Any serious effort to reverse mass incarceration will take place in the state criminal-justice systems, where roughly 90 percent of American prisoners are housed.  By endorsing some type of reform, the president could bolster local efforts against challenges from the right.

Trump’s electoral victory, driven by his fear-mongering over crime, raised fears among many reformers that the moment for taking substantive, bipartisan steps against mass incarceration has passed.  Instead, he’s proving that the shift could be more durable than expected.

The paragraph that I have emphasized here strikes me as an especially important aspect of Prez Trump's recent reform talk even if major or significant federal statutory reform fails to emerge from Congress anytime soon.  Just as the "Right on Crime" movement has helped enable state-level politicians feel comfortable supporting criminal justice reform consistent with conservative principles, the avowed commitment by Prez Trump to prison reform allows state-level politicians to feel they can support prison reform consistent with supporting the President.  Indeed, effective criminal justice advocates in red states now may be able to call out any opponents of prison and reentry reform for seeking to undermine or resist what President Trump says is important for Making America Great Again.

February 5, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Sunday, February 04, 2018

Yet another notable pitch for "why Conservatives should support criminal justice reform"

Long time readers know I have been talking a long time about a "new right" on a range of sentencing and corrections issues (though recalling this post on the topic back in January 2005 lead me to realize that the new right is not so new circa 2018). And lately it is hard now to pull up Fox News and not see some discussion of some criminal justice reform issue. Today's example is in this form of this new Fox News commentary authored by Texas Representative Jerry Madden titled "Here's why Conservatives should support criminal justice reform." U recommend the full piece, and here are excerpts:

Criminal justice reform may wind up being the most significant conservative policy change in Washington this year. That may sound surprising to some, but not to anyone who has been watching this movement in conservative states over the last decade.

Starting in Texas, conservatives of all stripes – fiscal, social, constitutional, or otherwise – have found favor with reforms to the criminal justice system that focus on increasing public safety and cutting costs to taxpayers. This is, seemingly, a very commonsense goal. But take a look at how most states and the federal government operate and you will find that well-functioning, well-focused systems are far from the norm.

The results are undeniable: Texas has lowered its overall crime rate 31 percent, putting it at levels that have not been seen since 1967. In that time, the Lone Star State has closed eight prisons and lowered the incarceration rate. This flies in the face of the old, mistaken ways of viewing criminal justice policy that considers incarceration the default rather than one tool of many to protect public safety.

At the heart of the Texas reforms is the idea that the nearly all of those incarcerated will eventually return to society after serving their sentence and therefore they must be rehabilitated to ensure that they do not return to a life of crime. Prisons cannot be mere people warehouses. For the offenders who commit to it, there is a real opportunity for redemption and second chances.

To no conservative’s surprise, the federal government lags behind in this area. The budget for the Bureau of Prisons is growing out-of-control. The BOP’s budget is now over 25 percent of the total budget for the Justice Department – a massive line item for an already over-indebted government. The outdated policies passed by Congress in the 1980s and 1990s are in desperate need of updating to match what states have shown to be successful.

There are two bills currently before Congress that will push for conservative changes. Rep. Doug Collins of Georgia and Sen. John Cornyn of Texas, both Republicans, are the lead sponsors on two prison reform bills that focus on preparing prisoners for re-entry. These bills don’t reduce the sentences for crimes, but rather encourage inmates to participate in recidivism-reducing programming by offering incentives that include more phone calls and visits with family, and earned time to spend the end of their sentence in a halfway house, home confinement, or community supervision....

There is further encouragement coming from, of all places, 1600 Pennsylvania Avenue. President Trump has stated the case well: there is a path to remain “very tough on crime, but we will provide a ladder of opportunity to the future.” In his listening session at the White House recently, the president further explained: “My administration is committed to helping former inmates become productive, law-abiding members of society.” President Trump has made it clear that this is an issue that conservatives across the country can rally behind.

With the state examples as proof, and with a push from conservatives in the White House and Congress, criminal justice reform is a clear winner for the right. It is time for Congress to move on conservative reform as soon as possible.

February 4, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Friday, January 26, 2018

New poll suggests strong bipartisan support for criminal justice reforms

JAN_Web-LogoThis new article from The Hill, headlined "Poll: 3/4 of Americans support criminal justice reform," provides highlights from a notable new survey:

Three-quarters of Americans think the nation’s criminal justice system needs to be significantly improved, according to a new poll out Thursday....

A Justice Action Network poll conducted by Robert Blizzard, a partner at the Republican-leaning Public Opinion Strategies, found a majority of Americans surveyed, 76 percent, believe that the country’s criminal justice system needs significant improvements.

Of the 800 registered voters polled between Jan. 11 and 14, 87 percent of Americans agree that some of the money being spent on locking up nonviolent offenders should be shifted to alternatives like electronic monitoring, community service and probation.

Two-thirds of voters — 65 percent — support fair chance hiring, and 87 percent of voters strongly support replacing mandatory minimum prison sentences for non-violent offenders with a system that allows judges more discretion.  Eighty-five percent of voters, meanwhile, agree that the main goal of the nation’s criminal justice system should be rehabilitating people to become productive law-abiding citizens.

Many more of the poll particulars are available via this Justice Action Network press release and through this PowerPoint.  The press release emphasizes reasons why politicians should be paying attention to these issues:

[V]oter support for bipartisan justice reforms is overwhelmingly high, especially among women, who remain a crucial voting bloc heading into the 2018 midterm elections, and may determine the makeup of the House in November....

“This is not a partisan issue–voters strongly believe that the country’s criminal justice system needs serious improvements,” said Robert Blizzard, Partner at Public Opinion Strategies. “Significant majorities of Republican and Democratic voters across the country favor these reforms, including key 2018 target constituencies like independent voters and women voters. I can’t emphasize enough how strongly voters support these reforms. As a political pollster looking towards 2018 I think all politicians should pay attention. Go back to 2006, women voted for the democratic candidate by double digits. In 2010, women favored the GOP candidate and helped deliver the house to Republicans. Key constituencies are strong on these reforms and they can help give a lift to candidates everywhere.”

January 26, 2018 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Tuesday, January 16, 2018

Is "tough-on-crime" no longer a winning political strategy?

The question in the title of this post is prompted by this new Daily Beast article authored by Inimai Chettiar and Udi Ofer, which is headlined "The ‘Tough on Crime’ Wave Is Finally Cresting." Here are excerpts:

For decades, politicians competed to see who could push the most draconian criminal justice policies. Jeff Sessions's announcement this month that he would authorize federal prosecutors to go after pot even in states where it is legal seems ripped straight from that playbook.  But the “tough on crime” Attorney General may be in for a surprise.  In 2018, it turns out, demagoguery about crime no longer packs a political punch.  In fact, support for reform may prove to be a sleeper issue in 2018 and 2020.

This would be a big change. Candidates most prominently began to compete on crime in the tumultuous 1960s.  Richard Nixon won with ads showing burning cities and scowling young men, ads crafted by an unknown aide named Roger Ailes.  Ronald Reagan launched a “war on drugs.”  George H.W. Bush won in 1988 with notorious ads telling the story of Willie Horton, who was allowed out of prison under a weekend furlough program.  Bill Clinton in 1992 bragged of his support for the death penalty. These chest-thumping themes were echoed in hundreds of campaigns down the ballot each year....

Over the last decade, a bipartisan movement has arisen to push back and revise criminal justice policy. Throughout 2016 it made real strides. Black Lives Matter and advocates brought national awareness. The Democratic and Republican parties included reducing imprisonment in their platforms — a stark reversal of past policy.  Every major candidate for president — with the exception of Donald Trump — went on the record supporting justice reform.

Then came the startling rise of President Trump. In his inaugural address, he warned of “American carnage” and rampant crime.  His attorney general, Jeff Sessions, had killed the bipartisan sentencing reform bill as a senator. Now, at the Justice Department, he is piece-by-piece dismantling his predecessors’ efforts to reduce federal imprisonment rates.  This has chilled the artery of many politicians once eager to support reform efforts in Washington.

For Trump and Sessions, it seemed, it was still 1968. They are waging traditional scare politics.  But something unexpected happened on the way to the backlash.

Lawmakers in blue and red states alike pressed forward with reforms.  In 2017, 19 states passed 57 pieces of bipartisan reform legislation.  Louisiana reduced sentences. Connecticut modernized bail.  Georgia overhauled probation.  Michigan passed an 18-bill package to reduce its prison population.

And in the 2017 elections, candidates won on platforms that proactively embraced justice reform. In Virginia, for example, gubernatorial candidate Ed Gillespie defined his campaign by running modern day “Willie Horton” ads against Ralph Northam for restoring the right to vote to former prisoners, and branded him as “weak” on MS-13. Voters handed Northam a sizeable win. In deeply conservative Alabama, Doug Jones campaigned on criminal justice reform. Trump repeatedly attacked Doug Jones as “soft on crime.” But Jones beat Roy Moore.

Urban politics have been transformed, too.  District attorneys campaigning on reducing imprisonment are winning across the nation, most recently in Philadelphia.  Justice reform proved a powerful organizing issue among the young and in communities of color.

January 16, 2018 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)

Tuesday, January 09, 2018

Two notable new additions to the Senate Judiciary Committee that should generally hearten sentencing reform advocates

As reported here by the Washington Post, "The Senate Judiciary Committee will welcome its first African American members in this century after Democrats added Sens. Kamala D. Harris (D-Calif.) and Cory Booker (D-N.J.) to the panel that handles judicial nominations and appointments to the Justice Department." Here is more:

“The Congressional Black Caucus could not be more proud of both of our Senate members and know the experience and expertise they bring to the Committee will be beneficial for all Americans,” said Rep. Cedric Richmond (D-La.), the CBC’s chairman, in a statement.

Harris, a former attorney general of California, was seen as a likely candidate to join the committee after Sen. Al Franken (D-Minn.) announced his resignation late last year. The appointment of Booker was more of a surprise, coming one year after Booker testified against the appointment of then-Sen. Jeff Sessions (R-Ala.) as attorney general, a rare move for one senator to make against another. Sometime after that hearing, Booker learned that he and Harris were “second and third in line” if openings came up.

“The Trump administration has repeatedly demonstrated its hostility to the ideals of civil rights and equal justice for all,” Booker said Tuesday in a statement announcing his appointment. “As a member of the Senate Judiciary Committee, I will make it my mission to check and balance President Trump and Attorney General Sessions.”

No African American senator has sat on the Judiciary Committee since the 1990s, when Carol Moseley Braun, a Democrat from Illinois, became the first black woman elected to the Senate. There had been pressure on Democrats to elevate Harris; in the end, Senate Minority Leader Chuck Schumer opted to elevate both of the Senate’s black Democrats.

Harris’s appointment was possible because Democrat Doug Jones’s victory last month in Alabama shrank the Republican advantage on two committees. (Republicans now have one-seat advantages on the Judiciary Committee (11 to 10) and Finance Committee (14 to 13); Sen. Sheldon Whitehouse (D-R.I.), who is in his second term, will join the latter committee.)

Senator Booker has been a fairly vocal advocate for sentencing reform since his election to the Senate back in 2013, and he has sponsored bills on a range of criminal justice issues. Senator Harris has worked as a state prosecutor and has expressed support for criminal justice reform in various ways since becoming a Senator just last year.  (Conveniently, Mother Jones has this interesting lengthy new profile of Senator Harris, headlined "The Secret to Understanding Kamala Harris: And why it’s making her a flash point in the Democratic Party," which highlights why some on the left do not see her as a true reform ally.)

Critically, in recent years it has been Senate leadership, not the Senate Judiciary Committee, that has been a roadblock to getting significant statutory sentencing reform enacted.  Thus, the addition of Senators Booker and Harris to the Judiciary Committee does not, in and of itself, directly impact in any dramatic way the likelihood of some form of sentencing reform getting passed in 2018.  But their knowledge and reform-minded vision could and should impact the Committee's work in various ways in the coming year that should be heartening to advocates of sentencing reform.  And their place on the Committee could become a very big deal if the Democrats were able to take back control of the Senate come November.

January 9, 2018 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Wednesday, December 20, 2017

"Three ways conservatives can lead criminal justice reform"

The title of this post is the title of this new commentary authored by Bob McClure, who is president and CEO of The James Madison Institute. Here are excerpts:

As head of a conservative think tank dedicated to principles of limited government and constitutional liberties, I find two things increasingly obvious: Our criminal justice system is in dire need of comprehensive reform, and that effort is being led not by bureaucrats in Washington but by policymakers and leaders in the states.  I look around the country and see great strides by states like Georgia, Oklahoma, Texas and Louisiana.  I see policymakers in my home state of Florida starting to join the movement, and I want to get excited at the possibilities for real culture-changing efforts.

The reforms these states have passed will ultimately accomplish two things: They will improve public safety and will save millions of taxpayer dollars.  Nevertheless, the road forward is anything but a clear or easy journey.

In our organization’s research of policy initiatives, a particular statistic disappoints me more than all others: our nation’s incarceration rate.  According to data from the International Center for Prison Studies, the United States currently incarcerates approximately 737 people per 100,000 citizens, counting both adults and juveniles.  This puts us right at the top of the list -- more than Iran, more than Russia, more than Rwanda.  We owe it to ourselves to ask why this is the case and how we can correct course....

Drug and non-violent offenses have created a revolving door in our jails and prisons, both at the state and federal levels.  It’s estimated that as many as one-fourth to one-third of our inmates are in prison for drug-related offenses.  Many are there because of oppressive sentencing rules that have eliminated the proper role of judges and created an incarceration-industrial complex trapping far too many families in a cycle of prison, poverty and despair.  Consequently, we have seen our prisons jam-packed with hundreds of thousands of offenders who have the potential to be rehabilitated but who end up sliding further down the path of crime and punishment....

There are three specific actions that can and should be championed at the state level to continue the progress conservatives have made in addressing criminal justice policy reform:

1.  Restore the role of judges in the system. For far too long, judicial discretion in sentencing has been eroded, the unfortunate result of well-intentioned conservatives over many years.

2.  Begin to address the distinction between those trafficking in narcotics as a criminal enterprise and those individuals selling smaller amounts of drugs to feed their addiction.  We want to lock up the bad guys feeding poison to our children, but we should be able to distinguish between those hardened criminals and addicts needing treatment.

3.  Reaffirm the need for substance abuse and mental health approaches in the justice system. The cost for drug crimes is a sliding scale over time.  As individuals reoffend and continue the cycle, the long-term costs of incarceration, safety net use, and lower employability far outweigh the short-term investment in treatment and rehabilitation.

This trio of actions is just a small piece of a very broad conservative policy reform agenda that states must champion.  As we seek to promote conservative principles and at the same time address the challenges impacting our society from scourges like addiction, it is my hope that states can be the shining example of how to lead the way forward.

December 20, 2017 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Thursday, December 14, 2017

Does the election of Doug Jones in Alabama increase the prospects of federal statutory sentencing reform?

The question in the title of this post is prompted by this Marshall Project piece headlined "What the Doug Jones Election Means for Criminal Justice Reform." The subheadline of the piece, "The Alabama Democrat represents the flip-side of his predecessor," perhaps best frames the article that follows, and here are excerpts:

Last year, prospects were looking good for a bipartisan effort in Congress to overhaul federal sentencing. But after long and careful negotiations, one senator almost single-handedly torpedoed the measure: the junior Republican from Alabama, Jeff Sessions.

Sessions, of course, went on to become Attorney General, dimming hopes even further.  But Tuesday’s election of his unlikely replacement, Democrat Doug Jones, hands the seat to a former federal prosecutor who has advocated for less harsh sentencing and more alternatives to prison.  “Doug Jones was a groundbreaking voice for prosecutorial reform to end mass incarceration,” said Lauren-Brooke Eisen, senior counsel in the Brennan Center’s Justice Program.  “He was one of the first prosecutors to speak out about how prosecutors can and should help reduce unnecessary incarceration.”

Jones, the former U.S. Attorney for the Northern District of Alabama, was best known as a prosecutor for securing the convictions of two former Ku Klux Klan members in the infamous 1963 bombing of the 16th Street Baptist Church in Birmingham, which killed four young black girls.  The men were convicted in 2001 and 2002.

Over the last few years, Jones, who could not be reached for comment Wednesday after his victory, has begun to openly push for changes that would give prosecutors more leeway.  He included criminal justice among his top campaign priorities, taking aim at mandatory minimum sentencing, disparities that send a disproportionate number of blacks and Latinos to prison, and “three strikes” laws.  “These are bipartisan issues Democrats and Republicans agree on,” Jones told a group of Alabama State University students last month. “Try to reduce the crime, keep our communities safer and at the same time cut down the costs of the criminal justice system.”...

It’s too soon to tell what Jones’ election means for federal sentencing reform. Progress stalled under President Donald Trump, and Sessions has stayed true to his law-and-order roots, calling on U.S. Attorneys to seek the highest possible charges and rolling back a guideline that had allowed prosecutors to ignore some drug charges.  Legislators and advocates instead have focused on trying to create more re-entry programs, prison educational opportunities and job skills training.

But Jones’ election elevates one of the effort’s most vocal supporters.  Two years ago, Jones and another former federal prosecutor, James E. Johnson, and other law enforcement officials formed Law Enforcement Leaders To Reduce Crime & Incarceration, a bipartisan, reform-minded advocacy group.  Jones was among members who signed a letter supporting the effort that ultimately died in Congress....  “While I sought harsh punishments for violent offenders as U.S. attorney, not all cases require severe sentences,” Jones wrote on his website. “Judges and prosecutors should be given flexibility and be empowered to decide the fate of those before them in the justice system.”

For the time being, the prospects of any congressional federal sentencing reform rests primarily in the hands of Senate Leader Mitch McConnell and Prez Donald Trump.  Senator McConnell can refuse (and so far has refused) to bring the Sentencing Reform and Corrections Act up for a floor vote even though some GOP Senators have said, as noted here, the SCRA could get 70 votes in the Senate right now.   But the SCRA surely would not get 70 votes in Prez Trump were to come out vocally against it, and Senator McConnell surely will not bring it up for a floor vote if he knows doing so would be against the wishes of Prez Trump.  Those realities likely mean that the new Senate 51-49 math and the new voice of Senator-elect Jones will not in any major way directly impact the prospects for congressional federal sentencing reforms in the months ahead.

That all said, I do think the Jones victory in Alabama still has some political ripples in the arena of crime and punishment.  As he did in the gubernatorial race in Virginia, Prez Trump used his Twitter thumbs to make a "weak on crime" attack on the Democratic candidate in Alabama.  That candidate still prevailed, and did particularly well in the suburbs where it is often thought the "soft on crime" epithet is most effective (although surely other factors mattered to suburban Alabama voters earlier this week).   Including the New Jersey race for governor also decided last month, we can and should now say that in the last three significant state-wide elections, the candidate obviously more supportive of criminal justice reform prevailed.

I make these points not to assert that many political candidates are going to now view criminal justice reform advocacy as a winning political strategy, although I expect (and hope) some will.  Rather, I am making the more subtle (but important) point that no current politician or would-be candidate should any more be unduly afraid that supporting criminal justice reform could doom them in the next political cycle.  For much of the last half-century, the conventional wisdom was that any politician who could be effectively painted as soft on crime was sure to lose in the next election  (and I suspect this conventional wisdom in part accounts for why so little significant criminal justice reform was actually achieved during the Obama era).  With every significant victory by any person who calls for criminal justice reform on the campaign trail, that old conventional wisdom becomes much less conventional and much less wise.

December 14, 2017 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 (2)

Thursday, November 30, 2017

Does federal statutory sentencing reform become a bit more likely if Senator Tom Cotton were to become CIA Director?

The question in the title of this post is what kept coming to mind as I scanned this new Washington Post article headlined "White House readies plan to replace Tillerson with Pompeo at State, install Cotton at CIA." Here is the start of the piece:

The White House has readied a plan to oust embattled Secretary of State Rex Tillerson and replace him with CIA Director Mike Pompeo, who has become one of the most personally loyal and politically savvy members of President Trump's national security team, two administration officials confirmed Thursday.

The plan, hatched by White House Chief of Staff John F. Kelly, is expected to be set in motion over the next few weeks, and has broad support within Trump's inner circle, the officials said. But it was unclear whether Trump had signed off on the plan yet, and the president has been known to change his mind about personnel and other matters before finalizing decisions with public announcements.

Under the plan, Pompeo would likely be replaced at the CIA by Sen. Tom Cotton (R-Ark.), one of Trump's most steadfast defenders and a confidant to some leading members of the foreign policy team, according to the officials, who spoke on the condition of anonymity because the White House has not publicly announced the moves.

Federal statutory sentencing reform has not made much progress this year while GOP leadership in Congress has been focused on health care and tax reform. But, as noted here last month, some in-the-know folks believe the Sentencing Reform and Corrections Act could receive 70 votes in the Senate if ever brought to a vote.  And, based on all of his vocal opposition to reform expressed last year (as noted in posts below), I think Senator Cotton is one big reason the Sentencing Reform and Corrections Act seems unlikely to get a vote in the Senate in the near future.  But if Senator Cotton becomes CIA Director Cotton, maybe these political dynamic change for the better for those eager to see sentencing reform enacted in Congress.

Prior related posts about Senator Cotton's opposition to sentencing reform:

November 30, 2017 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (6)

Tuesday, November 21, 2017

Senator Mike Lee explains how "conservative approach to lawmaking" drives his advocacy for federal sentencing reforms

Lee_1x1Pew's Public Safety Performance Project has this notable new Q&A with Mike Lee under the subheading "A U.S. senator and former assistant U.S. attorney discusses crime and punishment, and how his views on both have changed."  I recommend the entire Q&A, and the final three Qs and As struck me as worth reprinting here:

Q: How has your conversion on criminal justice influenced your career?

A: When I got to the Senate, I remembered what that [Judge Paul Cassell in the Angelos case] had said, and I realized that I had become one of the people who could help fix this problem.  So that’s what I decided to do.  I knew it wouldn’t necessarily be easy, but I also knew it was important.  So I started looking for allies, and that led me to team up with Sen. Dick Durbin (D-IL) on our legislation.  It’s easy to say you want to be tough on crime and go along with any and every attempt to increase penalties, including minimum mandatory penalties. But to be effective, a criminal justice system must be seen as legitimate.  And for too long, our federal sentencing laws have required punishments that just don’t fit the crime.

Q: Have you encountered any interesting reactions to the change in your views?

A: Most of it is encouraging. Most people I talk to, regardless of where they are on the political spectrum, are glad that somebody is doing this. And they’re glad to see me involved. There are some who aren’t. There are some who get upset and pound their chest and say, “You need to take criminals and lock them up and you need to throw away the key. We’ve got to be harder on crime and harder on criminals rather than softer.” So yes, there are those who take that approach, and most of those people would probably describe themselves as conservatives. Regardless of whether you consider that a conservative approach or not, I don’t think it’s a particularly thoughtful one. I don’t think it’s a particularly helpful one. It does us no good to be harsh just for the sake of harshness.  Harshness itself isn’t an end objective.  We want to be smart in the way we punish crime.  We want to be effective. Public safety is the end result we’re trying to achieve.

Q: Any final thoughts?

A: Some people ask me, “Why are you doing this even though you’re a Republican? And a conservative Republican at that?”  And the answer is that I don’t view criminal justice reform as incompatible with being a conservative; in fact, I’m doing this because I’m a conservative. Conservatives purport to be conservative because, among other things, conservatives believe we should take great care when government intervenes to deprive someone of liberty or property.  There’s no greater due process deprivation than when the government puts someone away, either wrongfully or for a longer period of time than is just.  So for me, this is a natural outgrowth of my conservative approach to lawmaking.

November 21, 2017 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (5)