All posts by lisa-legalinfo

Legislative Standoff Is Dimming Hopes for Prison Reform – Update for July 23, 2018

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small


ARE POLITICS KILLING HOPES FOR PRISON REFORM?

Legislators and interest groups on both sides of the current Senate tussle over whether to pass the FIRST STEP Act or the Sentencing Reform and Corrections Act of 2015 continue to stake out their positions, and concern is rising that the political bickering may doom both bills.

Some complain that FIRST STEP is far from perfect... so we should wait for the next bus.
Some complain that FIRST STEP is far from perfect… so we should wait for the next bus.

It has now been nearly two months since FIRST STEP passed the House by a huge margin and it has now been more than five months since the SRCA, sponsored by Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois), passed the Senate Judiciary Committee by a significant margin.

Last week, two executives from the conservative reform group FreedomWorks complained in Washington Examiner that “the FIRST STEP Act hasn’t moved in the Senate. [The bill], led by Sens. John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I., has been referred to the Senate Judiciary Committee. Grassley has said that at least some SRCA-style sentencing reforms would have to be added to the FIRST STEP Act before it can move forward.”

Few in the Senate question the merits of FIRST STEP. An earlier version of the bill was passed by the Senate Judiciary Committee 15-2 in 2014. But politics could condemn any criminal justice reform. “Democrats,” the FreedomWorks piece said, “with their eyes on the party’s presidential nomination view criminal justice reform as a campaign issue. Selfishly killing the FIRST STEP Act for little more than political gain risks infecting criminal justice reform with the same toxicity that has plagued immigration reform proponents, not to mention that it also denies much-needed relief to communities, families, and individuals who have been severely affected by crime.”

deal180723The FreedomWorks officials said the next step must be to strike a deal in the Senate that will add modest sentencing reforms to make the legislation acceptable to Grassley without dividing the Republican conference. If there is any infighting among the Republicans, Senate Majority Leader Mitch McConnell will be unwilling to bring the bill to the floor for a vote. “It is a delicate balance to strike,” the FreedomWorks executives said, “but the Senate, which often refers to itself as the greatest deliberative body in the world, should be up for the challenge. On bipartisan legislation that has the backing of the White House, working out a deal on FIRST STEP should be a layup.”

These days, passage of any federal criminal justice reform seems to be more like a three-pointer from mid-court. Last week, Grassley and Sen. Orrin Hatch (R-Utah) doubled down on their SRCA position in an opinion piece in the Washington Examiner, urging passage of both mens rea reform and the SRCA:

Mens rea reform, in addition to sentencing and prison reform, is an essential part of the criminal justice reform constellation… We firmly believe that mens rea reform is an important piece of the broader criminal justice reform landscape. Together with the bipartisan Sentencing Reform and Corrections Act, which we both support, the Mens Rea Reform Act will improve fairness and clarity in our criminal justice system.

adams180723Grassley, current chairman of the Senate Judiciary Committee, and Hatch, a former chair of that Committee, are both legislators with more-than-average juice in the Senate. Grassley may be able to trade his current importance to the White House (as chair of Judiciary, he is key to getting Judge Brett Kavanaugh through the Supreme Court confirmation process) for Trump pressuring McConnell to bring SRCA to a vote. But although Washington is sweltering under the July sun and the end of the year seems far off, there are not that many legislative days left in the calendar year. Something needs to happen soon.

Meanwhile, the interest groups continue to check in, adding to the chaos. Last week, two police chiefs – one from the D.C. metro police force and the other, a former chief of New Orleans and Nashville – wrote in The Hill that “police and prosecutors need Congress to take meaningful action, like moving forward with a bipartisan solution hammered out by Grassley and Durbin. The Sentencing Reform and Corrections Act would shorten unnecessarily long sentences for low-level offenses, while also improving prison conditions and reentry services for men and women coming home from prison.”

Such public pressure does not much help to convince McConnell that scheduling either bill for a vote – likely, a showdown risking Republican fratricide – is a good idea.

Other criminal justice reformers are taking shots at FIRST STEP. DeAnna Hoskins, the president of JustLeadershipUSA, a progressive criminal justice reform group, blasted FIRST STEP last week, arguing, “The need and demand for reform are real. The FIRST STEP Act is not only a step backward; it invites a scary future. We need good proposals that address the structural racism baked into our justice system. We can pursue good proposals at all levels of government — proposals that are human-centered, values-driven, and that truly have an impact on decarcerating and decriminalizing communities across the country.”

She dismisses FIRST STEP’s process that lets inmate earn more halfway house and home confinement time. “For those released from prison on credit time, an electronic shackle awaits,” she writes, “branding people with a tool that tracks their every movement, expands the carceral state into our neighborhoods and significantly lowers the threshold for reincarceration.”

Our observation is that, lucky for her, Ms. Hoskins probably has never done federal time. Had she been a guest of the BOP, she would understand that just about every inmate in the system  would gladly have the “carceral state” expanded into his or her home neighborhood by doing as much incarceration time at home – ankle bracelet and all – as possible. One inmate told us, “The best day I ever had locked up was worse than the worst day I ever spent at home.”

perfection180723Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog last week, complained that Grassley and Durbin are hurting momentum. “At this point I am eager to hear any news about any movement in the Senate with respect to the FIRST STEP Act or the Sentencing Reform and Corrections Act… Prez Trump has suggested he will sign whatever bill gets delivered to his desk. But as the summer marches on, I am struggling to remain optimistic that the full Senate will get to vote on any of these reform proposals anytime soon.”

At the same time, Berman denounced Hoskins’ buzz-word policy nonsense. Her blather (although Prof. Berman is more polite in his terminology) is “disturbing hyperbole… Like the author here, I would like to see reform that goes beyond the FIRST STEP Act. But broader reforms have been stalled by leaders in DC who are likely to be in place at least until 2020 if not later. Hoping and waiting for something better leaves current prisoners and their families waiting and waiting and waiting… But rather than seeing a politic consensus for “transforming our criminal justice system,” I just see a lot of political division among advocates for reform that seems to be making achieving any reform that much harder.”

The Hill, Too many Americans go to prison but Congress can fix this problem (July 17, 2018)

Washington Examiner, Time for bipartisan deal-making on criminal justice reform (July 18, 2018)

Washington Examiner, Sens. Chuck Grassley and Orrin Hatch: Mens rea reform and the criminal justice reform constellation (July 19, 2018)

The Hill, The FIRST STEP Act sets up a dangerous future (July 20, 2018)

Sentencing Law and Policy, Another attack on the FIRST STEP Act failing to acknowledge modern political realities (July 21, 2018)

– Thomas L. Root

LISAStatHeader2small

Interest Groups Pressure Congress on Criminal Justice Reform – Update for July 19, 2018

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small

INMATE FAMILIES LEAN ON SENATORS FOR PRISON REFORM

About a hundred family members of incarcerated federal inmates met with nearly half of the United States Senate last Wednesday to urge passage of the FIRST STEP Act, the Trump-backed prison reform bill that passed the House in May.

The FIRST STEP Act would expand the training and educational programs, allow eligible inmates to earn time credits they could use for more halfway house or home confinement, widen compassionate release and elderly offender release programs, and force the BOP to honor a 500-mile from home limit on prison selection in most cases.

FIRST STEP has not been voted on in the Senate, and has been opposed by over 70 left-leaning social justice groups that want the bill to include mandatory minimum sentencing reform for non-violent drug offenders.

At a rally held on the Capitol steps last Tuesday hosted by the nonprofit Families Against Mandatory Minimums, family members spoke about their experiences and how the FIRST STEP Act would not only benefit their imprisoned loved ones but would also benefit them as well.

FIRST STEP does not include changes to mandatory-minimum sentencing, but FAMM and other groups argue that federal inmates and their families cannot wait any longer for Congress to fix a broken prison system in hopes of a perfect bill sometime in the future.

“Did you know that the Bureau of Prisons recently confirmed that there are 16,000 people in the federal system awaiting literacy classes?” James Ackerman, CEO of the evangelical prison ministry Prison Fellowship, said during the rally. “It is shameful. We can almost guarantee that somebody is going to have a very difficult time re-entering society from prison if they can’t read.”

As Prison Fellowship has been one of the most active supporters of the FIRST STEP Act, Ackerman asserted that the legislation will order the BOP to implement programs to help inmates with all different kinds of problems.

Under the legislation, prisoners would receive individual assessments to determine what kind of support they need while serving their time — whether it is anger management, addiction rehabilitation, job training, life skills education or financial management training.

“We have been in communication with the White House over the course of the last year,” Ackerman told the rally. “I can confirm for you that the White House, we have been told, is supportive of the FIRST STEP Act. If they get a bill passed, it goes to the White House and we are going to have people coming home.”

Prison Fellowship Senior Vice President Craig DeRoche said the focus is now on Senate Majority Leader Mitch McConnell (R-Kentucky) to put the bill up for a vote. He hopes McConnell will do so before the Senate breaks for the summer.

Although Prison Fellowship supports sentencing reform bills, DeRoche does not think the Sentencing Reform and Corrections Act, supported by Judiciary Committee chairman Charles Grassley (R-Iowa) and Sen. Richard Durbin (D-Illinois) is viable given the current political make-up and the Trump administration’s seeming opposition to sentencing reform.

FAMM apparently agrees. “You can imagine that no one wants mandatory minimums more than a group called Families Against Mandatory Minimums,” FAMM president Kevin Ring said. “But we are also cognizant of the political environment in which we find ourselves. The attorney general doesn’t support sentencing reform. The president doesn’t seem to support sentencing reform. But as the theme of this rally indicates, we can’t wait for any progress just because we can’t get everything. We wish it would include sentencing but we are going to get what we can.”

Townhall, The First Step Act: Bringing Left and Right Together (July 13, 2018)

The Christian Post, Family Members of Inmates Lobby Senators to Pass Prison Fellowship-Backed Reform Bill (July 11, 2018)

– Thomas L. Root

LISAStatHeader2small

Kavanaugh on the Supreme Court Is Not Bad for Fed Defendants – Update for July 18, 2018

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small

SUPREME COURT NOMINEE NOT SO BAD FOR FEDERAL PRISONERS

Most of the press last week about Supreme Court candidate Brett Kavanaugh, nominated last Monday by President Trump, suggested he will try to reverse Roe v. Wade his first day on the job. But for those readers not as concerned about abortion rights as they are getting out, how about the Judge’s record on criminal justice?

The best news is that Judge Kavanaugh, currently a judge on the U.S. Court of Appeals for the D.C. Circuit, thinks that

“allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?”

kavanaugh180718Judge Kavanaugh also believes that people should be convicted of many crimes only on a heightened showing of mens rea, knowledge that the act was a crime or intent to break the law. In a case where a drug defendant was convicted of an 18 USC 1001 false statement to government officials because he signed a phony name on a U.S. mail receipt, the Judge said, “Proper application of statutory mens rea requirements and background mens rea principles can mitigate the risk of abuse and unfair lack of notice in prosecutions under § 1001 and other regulatory statutes. In § 1001 cases, that means proof that the defendant knew that making the false statement would be a crime. To be sure, “ignorance of law is no defense” is a hoary maxim. But it does not automatically apply to today’s phalanx of federal regulatory crimes…”


In a restitution case, a defendant stole almost 20,000 pieces of computer equipment. Judge Kavanaugh reversed the restitution payment, which included the cost of the victim company’s internal investigation. He said, “The statute authorizes restitution for “necessary… expenses incurred during participation in the investigation or prosecution of the offense.” We do not read that text to authorize restitution for the costs of an organization’s internal investigation, at least when (as here) the internal investigation was neither required nor requested by the criminal investigators or prosecutors…”

Judge Kavanaugh is more in line with Chief Justice Roberts than any hard-liner. He won’t be a Justice Scalia or Alito. But he’ll probably be more sympathetic to criminal justice issues than Kennedy was.

Southern District of Florida Blog, A look into some of Judge Kavanaugh’s criminal justice opinions (July 10, 2018)

– Thomas L. Root

LISAStatHeader2small

Reports Attack Plea Pressure, Inconsistent Drug Sentence Enhancements – Update for July 17, 2018

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small

NEW STUDIES SLAM GUILTY PLEA PRESSURE AND 851 ENHANCEMENTS

Two studies released last week documented affronts to justice from pressure to plead guilty, and “851 enhancements” that dramatically increase mandatory minimum sentences.

pleadeal180104A troubling study released last week by the National Association of Criminal Defense Lawyers found “ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk. This ‘trial penalty’ results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.

The NACDL study documents the corrosive effect of the trial penalty on the criminal justice system, resulting from uncontrolled prosecutorial charging discretion, mandatory minimum sentencing statutes, and the Guidelines. The government’s capacity to process large caseloads without hearings or trials has resulted in an exponential increase in incarceration.

The system’s pressures on defendants to plead guilty causes innocent people to plead guilty. Of 354 defendants exonerated by DNA analysis in the last six years, 11% had pled guilty to the crime they did not commit.

The Report recommends wholesale changes in the Guidelines to exclude relevant conduct, to permit the court to award a third acceptance-of-responsibility point even without government motion, and to prevent application of an obstruction-of-justice enhancement simply because the defendant testifies. It also called for substantial revision of mandatory minimums for sentences.

pleadealb161116Ironically, the 9th Circuit reversed a sentence last week where it said the judge seemed to penalize the defendant for his decision to assert “protected Sixth Amendment right” to go to trial. The district court had emphasized the defendant’s “decision to go to trial” five separate times during the sentencing hearing, and just before imposing the sentence, declared to the defendant: “You decided to roll the dice, and it came up snake eyes. You didn’t think she’d testify, and she did. You went – you wanted to go to trial, so you went to trial. And Probation rightly recommends 327 months for that.”

The 9th Circuit held that “the district court’s statements run headlong into our precedent that a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment…” The Circuit complained the record did not specify which if any 18 USC 3553 sentencing factors the judge considered, “or whether it considered any facts at all beyond Hernandez’s decision to exercise his constitutional rights.” On this record, the Circuit said, “it is impossible to avoid the centrality of the comments about Hernandez’s decision to go to trial.”

mandatory170612Meanwhile, the Sentencing Commission issued a surprising report on government use of so-called 851 enhancements to drug trafficking sentences. Under 21 USC 841(b), mandatory minimum sentences are dramatically increased if the defendant has prior serious drug cases. The government triggers the higher mandatory minimum by filing a notice of enhanced penalty under 21 USC 851, which then requires the court to apply the higher mandatory minimum.

The report found that the government filed 851 enhancements in only 12.3% of eligible cases in 2016. The enhancement seems to be used mostly as leverage to force cooperation. After accounting for cases in which the notice was withdrawn, only 39% of eligible defendants ultimately got the enhanced sentence.

The rate at which 851 enhancements are filed or withdrawn varies widely among districts. In most districts in fiscal year 2016, at least 25% of all drug trafficking defendants were eligible for an 851 enhancement. In five districts, 851 enhancements were filed against more than 50% of eligible drug trafficking offenders; in 19 districts, no 851 enhancements were filed at all.

Defendants against whom an 851 information was filed received an average sentence that was 61 months longer than eligible defendants against whom the information was not filed. Black offenders constituted 51.2% of offenders against whom the government filed an information seeking an 851 enhancement, followed by white offenders (24.3%) and Hispanic offenders (22.5%).

NACDL, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (July 9, 2018)

U.S. Sentencing Commission, Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders (July 11, 2018)

United States v. Hernandez, Case No. 13-10428 (9th Cir. July 10, 2018)

– Thomas L. Root

LISAStatHeader2small

Not “What You Are,” But Rather “Who You Know” – Update for July 16, 2018

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small

‘A CELEBRITY GAME SHOW APPROACH’ TO CLEMENCY

President Trump beat feet out of Washington for Europe last Tuesday after nominating a new Supreme Court justice, pausing only long enough to pardon Dwight and Steven Hammond, the father-son Oregon ranchers convicted of arson after brush-clearing fires they set on their land burned a few acres of a federal wildlife preserve.

gameshow180716The ranchers, either notorious right-wing whack-jobs or afflicted small-businessmen (depending on your worldview), had already made enemies of the Federal Bureau of Land Management over cattle grazing issues. They got mandatory 5-year sentences, after prior shorter sentenced meted out by a Federal judge who thought the five-year bits “grossly disproportionate to the severity of the Hammonds’ offenses.” The U.S. Attorney, of course, appealed, and the 9th Circuit demanded the judge impose the mandatory minimums. The Hammonds’ case inspired a 40-day armed occupation of a federal wildlife refuge in 2016 protesting federal land ownership.

The Hammonds’ pardon raise the number of Trump clemency grants to nine, including Sheriff Joe Arpaio, deceased boxer Jack Johnson (supported by Sly Stallone), and Alice Johnson, whose commutation of a life sentence for drugs was championed by Kim Kardashian.

Last Thursday, The New York Times noted that

few constitutional powers lie so wholly at the whims of the president as the power to pardon. No details need to be worked out beforehand and no agency apparatus is needed to carry a pardon out. The president declares a person officially forgiven, and it is so. A layer of government lawyers has long worked behind the scenes, screening the hundreds of petitions each year, giving the process the appearance of objectivity and rigor. But technically — legally — this is unnecessary. A celebrity game show approach to mercy, doling the favor out to those with political allegiance or access to fame, is fully within the law.

Clemency seekers have been watching all of this. Having once put their hopes in the opaque Dept. of Justice pardon/commutation bureaucracy, the Times says, supplicants are now approaching their shot at absolution as if marketing a hot start-up: scanning their network of acquaintances for influence and gauging degrees of separation from celebrity. What’s the best way to get a letter to someone close to Trump?

clemencypitch180716Clemency petitions go through the DOJ Office of Pardon Attorney, a system set up more than a hundred years ago to lessen the risks and hassles of leaving an entire nation’s pleas for compassion to one person. For decades, the process worked smoothly, and hundreds of clemency grants were issued each year. President Dwight D. Eisenhower alone granted over 1,000 pardons.

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

It is not all bad that Trump’s new system is going around DOJ. But for those without a famous sponsor, it is still as daunting as ever.

The Hill, Trump pardons Oregon ranchers at center of 40-day standoff (July 10, 2018)

The New York Times, Pardon Seekers Have a New Strategy in the Trump Era: ‘It’s Who You Know’ (July 12, 2018)

– Thomas L. Root

LISAStatHeader2small

Chronic Use of “Chronic” Results in Early Supervised Release Termination – Update for July 12, 2018

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small

JUDGE WEINSTEIN TERMINATES SUPERVISED RELEASE EARLY FOR POT-SMOKING DEFENDANT

weinstein160516We have always considered 96-year old Judge Jack Weinstein to be one of the shining stars of the federal judiciary, and he again has not disappointed us. Noting that marijuana has become increasingly accepted by society and at the same time expressing skepticism at the whole idea of supervised release, Judge Weinstein last week ended a supervised release revocation hearing by finding that while the defendant continued to use marijuana while on supervision, the Judge not only would not revoke his supervised release, but actually terminate supervision early, thus freeing the defendant from supervised release altogether. At the same time, Judge Weinstein pledged he would no longer revoke SR simply because defendants smoked weed.

“Many men and women who have terms of incarceration imposed by this court are seeking to live productive, law-abiding lives, but are derailed by their marijuana addiction. Like many federal trial judges, I have been terminating supervision for ‘violations’ by individuals with long-term marijuana habits who are otherwise rehabilitated,” Judge Weinstein wrote. “No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.”

Judge Weinstein pointed out that the trend nationally is in favor of marijuana legalization, that blacks are eight times as likely to be arrested for pot as are whites, and that supervised release law is Draconian in its requirement that all pot must use lead to revocation.

supervisedrelease180713For those who came in late, every felony defendant convicted in the federal system must be sentenced to a term of supervised release after release from incarceration. SR, during which the defendant is under the thumb of the U.S. Probation Office, restricts travel, association, employment, and a wide variety of other freedoms, all in the name of helping the inmate to become a productive member of society.  Not only (and what follows is our opinion, like you could not tell) is supervised release as useless as a trampoline to a grasshopper, but it is counterproductive: a third of all people on supervised release face revocation at least once during their term, seldom for criminal conduct but often for technical violations of the amorphous and vague SR conditions imposed by the courts and administered by probation officers.

In the case in front of Judge Weinstein, Tyran Trotter had served two years of his 3-year SR term, after release from prison on a heroin distribution beef. Tyran had stayed out of trouble for two years, except for chronic pot use. “Many people from all walks of life now use marijuana without fear of adverse legal consequences,” Judge Weinstein wrote. But the criminal-justice system, he went on, “can trap some defendants, particularly substances abusers, in a cycle where they oscillate between supervised release and prison.”

marijuana160818Judge Weinstein’s 42-page opinion was as much an indictment of supervised release as it was federal drug law. He cited a Sentencing Commission study showing that 85% of judges believe designating drug use as a violation of supervised release “is not desirable,” According to the study, 74 percent of the judges said the same about people who failed three drug tests in a year. What’s more, the judge noted, while supervised release is required by statute in less than half of all federal cases, it is reflexively imposed in 95% of all sentences. “The criminal justice ecosystem largely ignores supervised release,” the judge wrote. “Off the record conversations with a number of federal defenders (from both the Eastern and Southern Districts of New York) revealed that the perceived mandatory nature of supervised release is so entrenched that they do not even bother to fight its imposition, or even the length of a term.”

The average length of a supervised release terms has increased from 42 months 20 years ago to 47 months today. “The combination of supervised release being imposed in nearly every case with increasingly long terms has greatly expanded the total supervised population.” As a result, the number of people on SR has increased three-fold in two decades, from 39,000 people in 1995 to nearly 115,000 in 2015.

potscooby180713Studies, the Judge said, show that the “current reflexive use of longer than needed supervised release periods may increase the likelihood of recidivism… While it is not clear exactly why this occurs, possible reasons include the fact that supervising low-risk people and placing them in programs can disrupt their pro-social networks, as well as the fact the increased supervision and the associate conditions increase the likelihood of violations… Extended periods of community supervision can have negative consequences for offenders and the public. One common result is that more offenders are sent to prison for violating the terms of their supervision (known as technical violations) than for new crimes. More than two-thirds of all federal offenders who are revoked from supervised release each year committed technical violations but were not convicted of new crimes.”

This has created the “threat of never-ending supervision,” the Judge said. But not for Tyran. Judge Weinstein set him free from his SR term.

Memorandum Opinion and Order, United States v. Trotter, Case No. 15-cr-382 (E.D.N.Y., July 5, 2018)

– Thomas L. Root

Skepticism About Trump’s Clemency Plans – Update for July 11, 2018

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small

PARDON US FOR BEING CYNICS ABOUT PARDONS

imageOn Tuesday, in between nominating a new Supreme Court justice and beating feet for Europe to browbeat our NATO allies, President Trump delivered another drive-by pardon, this time absolving notorious right-wing terrorists/innocent rancher-patriots (we’ll let you pick the descriptor that most closely matches your political persuasions) Dwight and Steven Hammond. The Hammonds were doing a mandatory five years for arson on federal land, because vegetation-control fires the set on their own land spread to a wildlife preserve.

We only care about such pardons for what they may tell us about Trump’s clemency policy. Last Wednesday, while everyone was enjoying their July 4th picnics and fireworks, Ohio State University law professor Doug Berman (who writes the authoritative Sentencing Law and Policy blog), reflected on that policy, and expressed the thought that many in criminal justice reform have been quietly fretting over: was President Trump’s love affair with his pardon power a one-night stand?

pardon160321Berman wrote, “It is now been nearly a month since Prez Donald Trump commuted the life sentence of Alice Johnson at the behest of Kim Kardashian West. Immediately thereafter, there were reports of “a growing list of potential pardons or commutations under consideration by President Donald Trump” and Prez Trump himself said: “We have 3,000 names.  We’re looking at them.  Of the 3,000 names, many of those names have been treated unfairly.”  A week later it was reported Prez Trump will be “pardoning a lot of people — pardons that even Obama wouldn’t do” and reported that Mrs. West had “assembled a large legal team and was pursuing clemency for several other nonviolent offenders.” 

Berman admitted that he has been “more than a bit worried that all the buzz about all sorts of clemency action may be a lot of talk that may not be followed by a lot of action.”

It is not for lack of candidates. The Intercept last week reported that “an estimated 3,278 people are serving life without parole for a nonviolent offense… Although the Obama administration freed record numbers of nonviolent drug offenders, experts have pointed out that the pardon process was arbitrary and opaque.”

It is little wonder. The Dept. of Justice, which after all exists to lock people up, has an Office of Pardon Attorney that was too understaffed and inefficient to manage all of the clemency applications submitted during the waning days of the Obama era. “As we saw in previous administrations, the clemency process is entrenched in unnecessary bureaucracy,” Jessica Sloan, national director of the bipartisan criminal justice reform group #cut50, told The Intercept.

clemencyjack161229Critics, including Margaret Colgate Love, who was DOJ Pardon Attorney under Bush I and Clinton, argue the pardon process should be taken away from DOJ. “Rather than seeing presidential pardons as a way to recognize the redemptive power of the justice system, federal prosecutors have often regarded pardons with suspicion — as antithetical and even threatening to what they do,” Love wrote in The Washington Post. “This shortsighted and parochial attitude has ill-served three successive presidents and resulted in an administrative system that is inefficient, arbitrary and unfair.”

Berman, however, is a cautious optimist. He concluded his July 4th post with the observation, “I am not yet going to get cynical about Prez Trump’s clemency chatter because I am eager to hold out hope that he might have a desire to best Prez Obama’s record-setting clemency numbers. But, as regular readers know, I am ever eager to criticize leaders who “talk the talk” but then fail to ‘walk the walk’.”

Sentencing Law and Policy, Hey Prez Trump, how about honoring Independence Day by using your clemency power to give some more Americans more liberty? (July 4, 2018)

The Intercept, Can Trump Succeed Where Obama Failed — Offering Clemency for Nonviolent Offenders? (July 2, 2018)

– Thomas L. Root

LISAStatHeader2small

Women Behind (Federal) Bars – Update for July 10, 2018

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small

SENTENCING COMMISSION DISCOVERS WOMEN ARE LOCKED UP, TOO


womenprison180711The Sentencing Commission issued one of its regular “Quick Facts” reports last week on women in federal custody. The “quick facts” series, started five years ago as a way to give the USSC’s short-attention-span readers (which includes most of Congress) “basic facts about a single area of federal crime in an easy-to-read, two-page format,” are issued several times a year. This is the first report focusing on women in federal custody.

The report notes that for the period Oct. 2016 through Sept. 2017:

• Women made up 13.1% of federal prisoners, a slight decrease from 2013, when they were 13.3% of offenders;

• 68.0% of female federal prisoners were Criminal History Category I when sentenced;

• women used weapons less frequently (6.1% of cases) than do men (10.1%);

• 76.9% of convicted women were sentenced to imprisonment, less than the 93.8% rate for men

•  women offenders were sentenced within the guideline range 36.6% of the time, compared to 49.8% of the time for men; and

•   the average sentence for women was 28 months in 2017, compared to 27 months in 2013.

U.S. Sentencing Commission, Women in the Federal Offender Population (July 3, 2018)

– Thomas L. Root

LISAStatHeader2small

Congress is Back to Work, with Criminal Justice Reform Still Pending – Update for July 9, 2018

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small

CONGRESS RETURNS TO TOWN WITH CRIMINAL JUSTICE REFORM STILL ON ITS PLATE

The House and Senate were not in session last week, as legislators celebrated the July 4th holiday however they do it. The Senate returns today, and the House tomorrow, with the criminal justice debate still hot, and an announcement about a new Supreme Court justice looming.

grassley180604A recap: The House has passed the FIRST STEP Act, which proposes a number of prison reforms, including a full 54 days a year of good time, better compassionate release and elderly prisoner release policies, and credits for programming that can be used to earn more halfway house and home confinement. The bill is stalled in the Senate, because the senior Republican and Democrat on the Judiciary Committee – Charles Grassley (R-Iowa) and Dick Durbin (D-Illinois) – do not want the FIRST STEP’s prison reform without sentencing reform bundled along with it.

The sentencing reform proposals are contained in the Sentencing Reform and Corrections Act of 2017. SRCA proposes to make the Fair Sentencing Act retroactive for crack defendants sentenced before the 2010 FSA, to unstack 18 USC 924(c) sentences, and to reduce a substantial number of the mandatory minimums in 21 USC 841(b), which are generally known as “851 enhancements.” As of the end of June, Grassley and Durbin were pressing President Trump to support SRCA as well as FIRST STEP, and we were observing that as of 9 pm this evening (when Trump names his Supreme Court nominee), he is going to need a lot of help from Grassley to get the nominee through the Judiciary Committee.

Trump is needed, because all indications are that Senate Majority Leader Mitch McConnell does not intend to bring FIRST STEP or SRCA to a Senate vote without White House approval. If the bills are not voted on by the end of the year, they will die, and the whole process will have to start over next January.

sessions180215Of course, Attorney General Jefferson Beauregard Sessions III is dead set against any reduction of mandatory minimums or extension of the FSA, and his conflict with Jared Kushner, Trump’s son-in-law and advisor, over reform has not helped McConnell find his backbone. In a thoughtful opinion piece in The Washington Post last Thursday, Michael Gerson noted the success Texas have had with modifying harsh mandatory minimums, and suggested that the evidence means

that the criminal-justice views of the attorney general are far to the right of the Texas state legislature, which puts him in small and disturbing company. It means that Sessions’ opposition to sentencing reform is rooted in vindictiveness and ideology rather than a conservative respect for facts and outcomes. And it means that Sessions has learned nothing from federalism, which he seems to respect only when it fits his preconceptions.

Gerson argued that prison reform should succeed because of “trans-partisanship,” which is defined as “agreement on policy goals driven by divergent, deeply held ideological beliefs.” Liberals see racism and unfairness in the criminal justice system. Fiscal conservatives see wasted resources. Religious activists see damaged lives. Gerson wrote, “All these convictions converge at one point: We should treat offenders as humans, with different stories and different needs, instead of casting them all into the same pit of despair.”

trainwreck180305Also speaking practically, the magazine American Conservative last Friday noted that mandatory minimums and other policies that make America the incarceration capital of the world, a product of the lock-’em-up mentality, 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.”

In a lengthy article, the authors called for the “extension of conservative principles to criminal justice policies.” They observed that “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.”

Washington Post, No more pits of despair. Offenders are still humans (July 4, 2018)

The American Conservative, Where the Right Went Wrong on Criminal Justice (July 6, 2018)

– Thomas L. Root

LISAStatHeader2small

Won’t Get Fooled Again by USSC Proposed Priorities – Update for July 5, 2018

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small

IT’S DÉJÀ VU ALL OVER AGAIN AT SENTENCING COMMISSION

fool180705Federal inmates who felt like the U.S. Sentencing Commission left them at the altar last April when the much-ballyhooed First Offender proposal disappeared from the amendments list without so much as a squeak ought to be forgiven for thinking the Commission should have released its set of proposed priorities for 2018-19 amendment cycle last week to the tune of the Who’s “Won’t Get Fooled Again.”

The Commission begins each amendment year by proposing priorities, which the public may comment on prior to adoption, either arguing against the proposals or even suggesting other priorities the commentators believe the Commission overlooked. Last year, the nonprofit prison group Prisology carried public participation in the USSC priorities inquiry to a new level, causing a flood of over 80,000 comments proposing that the USSC adopt a newer, kinder sentencing table.

In an action (or perhaps inaction) that spoke volumes about the contempt the Commission has for the agency rule making process, the Commission not only failed to adopt Prisology’s modest proposal  that revisiting the 30-year old sentencing table, it did so without so much as a single comment about having received 90,000 public comments on a single topic. To be sure, the Sentencing Commission, being a judicial-branch agency and not an executive-branch agency, need not comply with the Administrative Procedure Act, but a layperson (and even a lawyer) could be forgiven for asking what the point is of seeking public participation only to ignore it so completely as not even to acknowledge in a footnote that it ever happened?

futility180705One of last year’s priorities that did get adopted related to a proposed reduction in sentence levels to recognize that there are Criminal History I defendants and then there are Criminal History I defendants. Some Crim I people have a misdemeanor history that garners them one point, still little enough to fall in Crim I (the best criminal history category to land in). Other Crim I people may have done hard time, but did it so long ago that their incarceration ended more than 15 years ago. A few Crim I people have a virginal criminal history, never so much as a speeding ticket.

The USSC proposed to reward the virgins with not just the Criminal History I category, but an extra point or two off their Guidelines offense level score. The suggestion, called the First Offender proposal, made the priorities cut, then even the proposed proposed-amendments cut, only to disappear without a trace when the amendments to the 2018 Guidelines were adopted three months ago.

Unsurprisingly, the new priorities make no reference to the late First Offender proposal, either. It has become the Sentencing Commission version of George Orwell’s “unperson”: not only dead, but abolished, with any identifiable reference to it scrubbed from the record.

Nevertheless, if you are among the dozen or so people in America who think that public comment on the USSC’s priorities exercise  will amount to anything more than flatulence in a hurricane, here are the more interesting proposed priorities:

The Commission proposes considering how to reduce costs of incarceration and overcapacity of prisons by

• looking at the structure of the guidelines post-Booker to promote proportionality and reducing sentencing disparities, and to account appropriately for the defendant’s role, culpability, and relevant conduct;

• continuing to work with Congress to implement its recommendations to revise the career offender directive to focus on offenders who have committed at least one “crime of violence” and mandatory minimum penalties (including mandatory stacking of 18 USC 924(c) penalties; and

• considering possible amendments to the commentary of 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) in light of Koons v. United States, study of the operation of 5H1.6 (Family Ties and Responsibilities (Policy Statement)) with respect to the loss of caretaking or financial support of minors; and study of whether 1B1.13 (compassionate release guideline) effectively encourages the BOP Director to file a motion for compassionate release when “extraordinary and compelling reasons” exist.

Public comments are due by August 10, 2018. After that, the Commission will meet August 23 to select its priorities for the coming cycle. Don’t bet on the final list deviating from the proposed list by as much as a jot or a tittle.

But if you want to comment, knock yourselves out.

U.S. Sentencing Commission, Proposed Priorities for Amendment Cycle (June 28, 2018)

– Thomas L. Root
LISAStatHeader2small