We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
HAS DOJ SENT THE FOX TO GUARD THE HENHOUSE?
As we observed last Tuesday, the Dept. of Justice has announced that it had appointed the Hudson Institute, a right-of-center think tank best known for its national security work, to design a risk-assessment tool that must be in place before prisoners can receive earned-time credit for completing BOP programs designed to reduce recidivism.
The appointment, required by the First Step Act to be in place by Jan. 21, was only 78 days late.
First Step requires that a prisoner’s risk of recidivism (different from security and custody levels) be assessed before he or she starts programming. The risk can go up or down, depending on the inmate’s progress. The lower a prisoner’s risk, the more credit that can be earned.
However, the Act does not specify how a person’s recidivism risk level should be calculated. Instead, it instructs the attorney general to consult with an “independent review committee” to design the system.
DOJ said that Hudson Institute will host the independent review committee. Hudson has the discretion to appoint committee members, who will work to advise on the shape of the final risk-adjustment tool.
Some lawmakers from both parties who backed First Step Act expressed concern late last week at Hudson’s appointment. “I’m a little bit worried that we just let a fox in the chicken coop here,” Sen. Richard Durbin (D-Illinois) said during a confirmation hearing last week. “This… think tank… published an article entitled, ‘Why Trump Should Oppose Criminal-Justice Reform…’ [and has] now been chosen by the Department of Justice and Trump administration to be part of this so-called independent review system.”
Sen. Mike Lee (R-Utah) described the institute as an “opponent of the First Step Act… I don’t see a lot of good faith in implementing this law right now,” Lee said. “And it’s become increasingly clear to me in the last few days that some Department of Justice officials at least don’t like the First Step Act, and they seem not to care that Congress passed this law and that President Trump signed this into law.”
The Hudson Institute, founded in 1961, is known for its work on national security and foreign policy, though it also focuses on economics and domestic policy. For the First Step Act, it has announced six committee members so far who will develop the risk assessment program, one of whom is Hudson’s chief operating officer, John Walters.
Walters once wrote that it was a “great urban myth” that the country was imprisoning too many people for drug possession and that the 100:1 crack-to-powder cocaine disparity was merely a “perceived,” not a real, racial injustice. In 2015, Walters wrote that the concept of “mass incarceration” was a myth, and that “the great majority of federal prisoners appear to be incarcerated because they were, properly, adjudged guilty and justly sentenced.”
The New York Times reported last Tuesday that First Step’s retroactive application of the 2010 Fair Sentencing Act has already “prompt[ed] 800 sentencing reductions already, according to the Justice Department. Of that group, nearly 650 inmates have been released from prison. Another 22 inmates have received sentencing reductions under a compassionate release program that is part of the law.” It reported last Saturday that since First Step was passed, 10 prisoners of 23 that have so far been deemed eligible have been released under the First Step’s Elderly Offender Home Detention (EOHD) program.
Testifying last Tuesday before the Appropriations Subcommittee of the House Committee on Commerce, Justice, Science, and Related Agencies, Attorney General William Barr promised “to robustly fund and diligently implement [First Step] at the Department.”
If you want to know where the real headwinds to First Step will come from, look no further that last Saturday’s Times. It’s one thing to support criminal justice reform in the abstract. But when it comes to individuals, the Gray Lady makes it clear that her anti-felon “lock-’em-up” biases are every bit as finely honed as Sen. Tom Cotton’s ever were.
The newspaper breathlessly reported on one inmate released under EOHD: “The First Step Act offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities. But one person who benefited from the law was Hassan Nemazee, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.” The Times reported that “Mr. Nemazee was charged in 2009 with orchestrating a scheme that defrauded banks of nearly $300 million,” and it complained that home detention “feels a lot like freedom.”
Once the media start picking at the offenses for which inmates who benefit from First Step were convicted, public outrage will not be far behind.
Washington Free Beacon, “DOJ Taps Conservative Think Tank to Help Implement FIRST STEP Act” (Apr. 8)
Mother Jones, Trump Keeps Celebrating Prison Reform. His Administration’s Latest Move Could Sabotage It (Apr. 11)
New York Times, Justice Dept. Works on Applying Sentencing Law as Critics Point to Delays (Apr. 8)
New York Times, He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul (Apr. 13)
– Thomas L. Root