Kushner Unrelenting On Criminal Justice Reform – Update for September 4, 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

KUSHNER PUTS PRESSURE ON SENATE TO PASS REFORM BILL

kushner180622Jared Kushner, son-in-law and senior advisor to the President, told reporters last week that the White House is “very close” to finalizing a criminal-justice-reform package that combines the Sentencing Reform and Corrections Act (S.1917) and the FIRST STEP Act (S.2795), to break a Senate logjam due to internal Republican Party divisions. The House passed a pared-down criminal-justice bill earlier this year with significant bipartisan margins.

Kushner has worked for months with key House lawmakers and senators to shepherd through a legislative package that reforms federal prison policy and mandatory-minimum sentencing laws. The measure is still far from being signed into law and otherwise allies of the White House, such as Sen. Tom Cotton (R-Ark.), are determined to kill it.

Ten days ago, Kushner turned up the pressure on Majority Leader Mitch McConnell (R-Kentucky) to bring the revised FIRST STEP Act to a vote. Kushner is touting a Kentucky poll showing that 70% of those surveyed support FIRST STEP to convince McConnell to bring the issue to a vote. Kushner told the media he has spoken several times with Trump about FIRST STEP, which passed the House in May on a 360 to 9 vote.

The legislation has been met with divisions in the Senate where critics, including Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois) say it does not address the “front end” problem of longer prison sentences which have fueled decades of growth in the federal prison population. 

A recent White House-driven compromise to the Senate version of FIRST STEP would loosen mandatory minimum sentences for repeat non-violent drug offenders and scrap the “three-strike” mandatory life in prison provision. A spokesman for McConnell said he discussed the hybrid bill 10 days ago week with Kushner, Grassley, and Sens. John Cornyn (R-Texas) and Mike Lee (R-Utah).

mcconnell180219McConnell “made it clear” after the meeting that the hybrid FIRST STEP/SRCA won’t come up for a vote before the November election. McConnell’s spokesman. said that although McConnell did not commit to holding a vote, “proponents of the legislation will continue to discuss the issue with their colleagues followed by a whip count after the October session to accurately assess the Conference’s view on the issue.”

The Washington Post, Jared Kushner ramps up push for criminal justice reform (Aug. 30, 2018)

Lexington, Kentucky, Herald-Leader, Jared Kushner joins campaign to press McConnell on criminal justice reform (Aug. 30, 2018)

– Thomas L. Root

LISAStatHeader2small

Could It Be ‘Sayonara, Sessions?’ – Update for August 29, 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

TRUMP BLASTS SESSIONS AGAIN, FUELING SPECULATION THE AG WILL BE FIRED
Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

Reports that Trump promised Attorney General Jefferson Beauregard Sessions III last Thursday that the President would oppose the compromise criminal justice bill are puzzling, because of the simmering rift between Trump and Sessions that exploded again into public view late last week.

Trump complained in a Fox & Friends interview that Sessions “never took control of the Justice Department” and that he was disloyal. Sessions, whom Trump called a moron last year, finally had enough, issuing a statement saying he and the DOJ “will not be improperly influenced by political considerations.”

Trump has been furious at Sessions ever since he recused himself from the Trump Russia investigation. Trump said he considered Sessions’ decision to be a sign of disloyalty, and the two have an unusually cold relationship for a president and the nation’s top law-enforcement official.

White House spokesman Hogan Gidley said last week that Trump has made clear he supports the prison reform legislation “that will ultimately make American communities safer and save taxpayers money. The president recognizes there are some injustices in the system that should be fixed.”

Sen. Tim Scott (R-South Carolina) said it ultimately won’t matter whether they have Sessions’ support or not. “Listen,” Scott said, “[Sessions] doesn’t have a vote on this one.”

The notion that Trump mollified Sessions by agreeing to oppose the compromise package, only several weeks after Trump said he would sign anything Congress sent him on criminal justice reform, is suspect. The fact that he told White House advisor Jared Kushner and Sen. Charles Grassley (R-Iowa) the next day that he was willing to take up reform after the November elections and that White House officials continue to state his support for criminal justice reform, makes the alleged Sessions promise even harder to believe.

A Bloomberg article last Thursday provides the starkest evidence that Trump has little to gain by agreeing to kill criminal justice reform to please his AG. Bloomberg reported that Trump “may have received a crucial go-ahead signal from two Republican senators” to fire Sessions “with a key condition attached: wait until after the November elections.”

Confronted with the Manafort conviction and the Cohen guilty plea last week, Bloomberg said, Trump has reaffirmed his open resentment that Sessions recused himself from what’s become a wide-ranging investigation led by Special Counsel Robert Mueller.

kick-em-out
Beauregard, we hardly knew ye.

The pivotal message to Trump came from Sen. Lindsey Graham (R-South Carolina). “The president’s entitled to an attorney general he has faith in, somebody that’s qualified for the job, and I think there will come a time, sooner rather than later, where it will be time to have a new face and a fresh voice at the Department of Justice,” Graham said. However, he added, forcing out Sessions before November “would create havoc” with efforts to confirm Trump’s Supreme Court nominee Brett Kavanaugh, as well as with the midterm elections on Nov. 6 that will determine whether Republicans keep control of Congress.

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

Some senior Republican senators still strongly rejected Graham’s seemingly impromptu fire-him-later idea.

Despite the political hell-storm that Trump’s dismissal of Sessions would create, it is clear that criminal justice reform would only benefit from Sessions being run out of town. 

McClatchy News, Trump, Sessions feud spills over into dispute over policy on criminal justice reform (Aug. 21, 2018)

Politico, Senators Signal Sessions’ Ouster (Aug. 24, 2018)

Bloomberg, Key Republicans Give Trump a Path to Fire Sessions After the Election (Aug. 23, 2018)

– Thomas L. Root

LISAStatHeader2small

More of the Same Ol’ Same Ol’ at the Sentencing Commission – Update for August 28, 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 ANNOUNCES PRIORITIES FOR COMING YEAR

The U.S. Sentencing Commission last week approved a list of policy priorities for the coming year, including a multi-year examination of the “differences in sentencing practices that have emerged across districts, within districts, and, in some cases, within courthouses under the advisory guidelines system.”

In light of the Supreme Court’s decision in Koons v. United States, the Commission will also consider application issues related to the calculation of retroactive sentence reductions for certain offenders convicted of mandatory minimum penalties.

newsun180828For the third consecutive year, the Commission also set as a priority the adoption of a uniform definition of “crime of violence.”  The Dept. of Justice has raised several application issues that have arisen since the Commission’s 2016 amendment, including the meaning of “robbery” and “extortion.”  The Commission will also consider possible amendments to Guideline § 4B1.2 (the “career offender” guideline) to allow courts to consider the actual conduct of the defendant in determining whether an offense is a crime of violence or a controlled substance offense.

The USSC will also continue to study recidivism among federal offenders as well as the use of mandatory minimum penalties in the federal system.

Over the past two years, the Commission released eight reports on those topics. Despite the net effect of the prior reports (being zero), the Commission plans an additional recidivism report this coming year, as well as reports on the use of mandatory minimums in cases involving identity theft and sex offenses.

U.S. Sentencing Commission, Final Priorities for Amendment Cycle Ending May 1, 2019 (Aug. 22, 2018)

– Thomas L. Root

LISAStatHeader2small

After Wild Week, Criminal Justice Reform Postponed Until November, If Then – Update for August 27, 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

TOPSY-TURVY WEEK IN WASHINGTON FOR CRIMINAL JUSTICE REFORM

Last week, the editor of this newsletter took a vacation away from the Internet and cellphone coverage for the first time in years. After all, the last weeks of August are always quiet in the courts and halls of Congress.

scotus170627
The Supreme Court may be gone for the summer, but no one else in Washington seems to be…

What a mistake leaving town turned out to be…

The week started out well. Senate Minority Whip Richard Durbin (D-Illinois), the No. 2 Senate Democrat, said he could support the compromise criminal justice reform bill that Republican colleagues presented to President Trump and senior White House officials three weeks ago. That bill, which combined four sentencing changes with FIRST STEP Act, is a compromise pushed by senior White House adviser Jared Kushner in order to win the support of Senate Judiciary Committee Chairman Charles Grassley (R-Iowa). Grassley, co-sponsor of the Sentencing Reform and Corrections Act of 2017 (which was approved by the Committee last February), has opposed FIRST STEP because of the absence of sentencing reform provisions that change some mandatory minimums.

oddcouple180702Durbin’s announcement made him the first Democratic senator to support the legislation, which is key to assuring Senate passage.

Two days later, the news site Axios reported that Senate Majority Leader Mitch McConnell (R-Kentucky) agreed in a meeting with Kushner, Grassley, Sen. John Cornyn (R-Texas) and Sen. Mike Lee (R-Utah) to bring the compromise bill to a vote if an informal review showed that the measure had at least 60 votes in support. Axios admitted that McConnell’s spokesperson said a commitment to a vote had not been made, but asserted that another source said the Majority Leader came just shy of promising a vote.

Axios also reported President Trump had said earlier on Thursday that while he will not endorse the bill before the midterms, he was open to the compromise currently being negotiated, according to a senior administration official and Sen. Lee. The White House said in a statement “the President remains committed to meaningful prison reform and will continue working with the Senate on their proposed additions to the bill.”

While many, including Lee, wish the vote would occur today, McConnell’s willingness to bring it to a vote if the support is there (and earlier reports are that the compromise would collect 80 votes or more) is encouraging. The delay is entirely political: “I think the sentencing reforms are still controversial and divide Republicans,” Cornyn said. “I just don’t see the wisdom of dividing Republicans on a contentious matter like that before the election.

sessions180322Then, on Friday, the Washington Free Beacon reported that Trump told Attorney General Jefferson Beauregard Sessions III and Kushner the day before that he was opposed the FIRST STEP compromise, in large part due to an exception he believes it carves out that may release convicted drug traffickers early. A statement released by the Dept. of Justice seemed to confirm that. DOJ said: “We’re pleased the president agreed that we shouldn’t support criminal justice reform that would reduce sentences, put drug traffickers back on our streets, and undermine our law enforcement officers who are working night and day to reduce violent crime and drug trafficking in the middle of an opioid crisis.”

The Free Beacon story, however, said that Trump had later walked back his opposition, and told Grassley and Kushner that he was “willing to take up prison/sentencing reform” after the election.

The Free Beacon said “McConnell is famously skittish about dividing his caucus, and so is still unlikely to bring a bill to the floor if it does not have Republican caucus support. Trump’s backing—once held out, and now withdrawn—would almost certainly be vital to getting more Republicans on board.”

dontknow180828So the compromise may be voted on after the mid-term elections the first week of November. Or it may not. Trump may support it. Or he may not. The Democrats may support the compromise. Or they may not.

Of course, last week also brought the conviction of Paul Manafort, Trump’s former campaign chairman, on fraud charges unrelated to the Trump campaign, and the guilty plea (and probable cooperation agreement with the Feds) of Trump’s former lawyer, Michael Cohen. That is bad news for the defendants and for Trump, but to the extent it makes Trump angrier and more fearful of the Justice Department, it probably increases the chances Trump will support criminal justice reform.

The Hill, Democratic leader gives boost to criminal justice reform compromise (Aug. 21, 2018)

Axios, McConnell commits to moving forward on criminal justice bill after midterms (Aug. 23, 2018)

Washington Free Beacon, Trump Strongly Opposed to FIRST STEP (Aug. 24, 2018)

– Thomas L. Root

LISAStatHeader2small

3rd Circuit Goes for 2255 Petitioner in Remarkable Johnson Holding – Update for August 21, 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

3RD CIRCUIT EASES JOHNSON BURDEN FOR 2255 CHALLENGES

Ronnie Peppers was sentenced to a 180-month mandatory minimum under the Armed Career Criminal Act for being a felon in possession of a firearm. But after the 2015 Johnson v. United States decision, which invalidated the “residual clause” of the ACCA as unconstitutionally vague, Ronnie challenged his sentence under 28 USC 2255.

BettyWhiteACCA180503But the 2255 motion was not his first, and 28 USC 2255(h) places limits on any effort to file a second or successive collateral attack on a criminal judgment. The District Court denied Ronnie’s second 2255 motion after determining that his prior convictions remained predicate offenses because they are covered by portions of the ACCA that survived Johnson.

Last week, the 3rd Circuit reinstated Ronnie’s motion in a pro-defendant decision that conflicts with a number of other circuits. First, the Circuit held that the jurisdictional gatekeeping inquiry for second or successive Johnson 2255 motions requires only that a defendant prove he might have been sentenced under the ACCA’s residual clause, not that he was in fact sentenced under that clause. Second, a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) does not preclude a defendant from collaterally attacking his sentence in a 2255 motion if his sentence would be unlawful once he proved that the ACCA no longer applies to him in light of Johnson. Third, a defendant seeking a sentence correction in a second or successive 2255 motion based on Johnson, and who has used Johnson to satisfy the gatekeeping requirements of 2255(h), may rely on post-sentencing cases (many of which hold other state crimes not to be ACCA predicates, either) to support a Johnson claim.

In Ronnie’s case, the 3rd Circuit found that his two state robbery convictions are no longer categorically violent felonies under the ACCA, and, consequently, it was error to treat them as such.

United States v. Peppers, Case No. 17-1029 (3rd Cir.  Aug. 13, 2018)

– Thomas L. Root

LISAStatHeader2small

Rough Road Ahead in the Senate for Criminal Justice Reform? – Update for August 20, 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

CRIMINAL JUSTICE REFORM: TRUMP WANTED TO LEAD, NOW IT’S TIME TO DO IT

Now that the Senate has resumed sessions after a shorter-than-normal August break, criminal justice reform advocates are escalating pressure on Majority Leader Sen. Mitch McConnell (R-Kentucky). They want him to schedule a vote on the revised FIRST STEP Act bill, which will include mandatory minimum relief, a bill backed by President Donald Trump.

trumplogjam180806

But there are worrisome signs that a long-running GOP rift on the issue has not healed. Politico reports that interviews with a dozen GOP senators show that the future of FIRST STEP, either amended or in its original form, remains precarious. That’s because the handful of Republicans who have long protested reducing mandatory-minimum sentences leave McConnell without any incentive to call up legislation that would split his conference.

One of the critics of adding sentencing reform to the House-passed FIRST STEP Act, Sen. John Kennedy (R-Louisiana) predicted last week that McConnell would not bring the bill to the floor any time soon. “I’m not sure that we can put together a deal,” Kennedy said in an interview. “I’m not sure we should.” 

White House officials and FIRST STEP supporters have been talking with Republican holdouts to convince them to back the compromise, which adds four sentencing reform provisions to the House bill. Trump senior adviser and son-in-law Jared Kushner “will be making the rounds on the Hill,” according to a veteran Kentucky Republican strategist who now leads the nonprofit Justice Action Network. “And once we have the requisite number of Republican votes, I think his father-in-law is going to lean in hard.”

sessions180215A lot of involvement from the President will be required for the GOP to unify over reducing mandatory minimum sentences as part of a prisons package. Sen. Charles Grassley (R-Iowa) has 15 Republican cosponsors on the Sentencing Reform and Corrections Act, which contains mandatory minimum reductions, but Attorney General Jefferson Beauregard Sessions III opposes SRCA, and is even against FIRST STEP. Another conservative who is vocal in opposing either bill, let alone a blend of them, is Sen. Tom Cotton (R-Arkansas). Cotton wrote an op-ed piece last week that was breathtaking in its falsehoods and shibboleths, calling FIRST STEP a “jailbreak” sentencing bill that would flood the streets with stone-killer ex-cons. Cotton’s opinion piece was roundly condemned, but McConnell is hypersensitive to any dissention in the Republican caucus. There is little doubt that Cotton’s intemperate complaints concern McConnell a lot.cotton171226

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 FIRST STEP with changes to some of SRCA’s sentencing and mandatory minimums. The proposal nevertheless has wide, bipartisan support in the Senate.

Supporters say completing the bill would give the administration a needed win heading into November’s midterm elections. Opponents say it would make Trump look soft on crime.

A senior White House official said the Administration has 30 to 32 locked down “yes” votes among Republican senators. He offered hope that the number of Republican supporters could eventually grow as many as 40 to 46.

Trump and McConnell, once implacable foes, have forged something of a partnership these days. That arrangement will be tested in the coming days.

The Hill, Sentencing reform heats up, pitting Trump against reliable allies (Aug. 17, 2018)

CBS News, Trump, McConnell forge partnership as mid-terms approach (Aug. 17, 2018)

Politico, Criminal justice deal faces steep Senate hurdles despite Trump’s push (Aug. 17, 2018)

– Thomas L. Root

LISAStatHeader2small

Apply to College Without Ratting Yourself Out – Update for August 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

WHEN DOES THE PUNISHMENT END?

The Austin American-Statesman featured a fascinating story today about Lewis Conway, who served a sentence for manslaughter but now is running for elected office and challenging a Texas law banning felons from holding such positions. The article is slugged with the provocative heading, “Austin candidate Lewis Conway’s run asks when a criminal sentence ends.”

Perhaps sooner than “never,” which has otherwise become American society’s default position. Last week, Inside Higher Education reported that for the first time in 12 years, prospective students using the Common Application to apply to college will not be asked to report whether they have criminal histories.

damnation180816

Accepted by over 700 colleges and universities worldwide, the Common App is America’s most broadly used college application. The change comes following a 10-year campaign to “Ban the Box” by a broad coalition of advocates who claim that the question creates “an undue barrier that harms certain groups of students.”

Individual colleges will still maintain the right to ask the question on their supplements to the Common Application, just as they have had the ability to not consider the information provided to date. But advocates for “banning the box,” as the movement to end the question has been known, have said that including or dropping the question from the main application would have a major impact.

IHS reported that the criminal history question had not been demonstrated to meaningfully improve campus safety, and many accounts suggested that it deterred those who had been involved in the justice system from seeking higher education upon release.

A study conducted by the Education from the Inside Out Coalition found that for every student rejected by SUNY application committees because of a prior felony conviction, 15 did not complete their applications because they feared checking the box.

Inside Higher Education, Common App Drops Criminal History Question (Aug. 8, 2018)

The Crime Report, Ending Crime Checkbox for College Praised by Inmate Advocates (Aug. 10, 2018)

– Thomas L. Root

LISAStatHeader2small

What Will A Blended FIRST STEP Bill Contain? – Update for August 15, 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

WHAT WILL BE ADDED TO FIRST STEP IN THE WHITE HOUSE DEAL?

As we have reported, the Trump Administration is brokering a deal to amend the FIRST STEP Act to include some of the sentencing reform provisions of the Sentencing Reform and Corrections Act. The compromise, intended to appease SRCA co-sponsors Sen. Charles Grassley (R-Iowa) and Sen. Richard Durbin (D-Illinois), should clear the way for a Senate vote on FIRST STEP, and passage of some badly needed prison reform.

grassley180604Not everything in SRCA will get dropped into the Senate version of the FIRST STEP Act. Nevertheless, what is proposed is significant to a lot of people.

The SRCA additions to FIRST STEP will probably include:

• Reductions in some drug mandatory minimums, reducing penalty from life to 25 years for a third drug conviction, and from 20 to 15 years for a second drug conviction.

Sentencestack170404•   Ending 18 USC 924(c) “stacking” charges. This provision would prohibit the doubling up of mandatory sentences for carrying a gun during drug or violent crime offenses. The way 924(c) is written now, a defendant who carries a gun while selling pot three days in a row commits three separate 924(c) offenses. The first one carries a consecutive 5 years, and the second and third each carry a consecutive 25 years, meaning the defendant gets 55 years plus the pot sale guidelines. The change in the law makes clear that the increased penalty for a second or third 924(c) offense applies only after conviction for the first one.

• Increase “safety valve” application. This provision would give judges more discretion in giving less than the mandatory minimum for certain low-level crimes, including people with Criminal History II in the safety valve provisions of 18 USC 3553(f).

• Retroactivity for the 2010 Fair Sentencing Act. This provision would make the FSA, which changed sentencing guidelines to treat offenses involving crack and powder cocaine more equally, retroactive to people sentenced before the law went into effect.

"Just the facts, FAMM."
                          “Just the facts, FAMM.”

Last Friday, FAMM released an extended series of fact sheets reviewing which SRCA sentencing provisions are in play. The document, written as a memo to Congress members and staff, is entitled “Fact sheets explaining potential sentencing additions to FIRST STEP Act.” It explains in detail the provisions possibly being added to FIRST STEP, and describes cost savings and justice issues surrounding each.

Also last week, Marc Holden, general counsel to Koch Industries and point man for the Koch initiatives on criminal justice reform, wrote, “By supporting these smart-on-crime, soft-on-taxpayers reforms, President Trump is demonstrating exemplary leadership. If Congress is able to pass the FIRST STEP Act with these sentencing provisions included, it would give the president a lasting, landmark achievement on criminal justice reform that has eluded previous administrations.”

FAMM, Facts sheets explaining potential sentencing additions to FIRST STEP Act (Aug. 10, 2018)

Freedom Partners, President Trump is Leading on Criminal Justice Reform; Senate Should Send Him a Bill (Aug. 9, 2018)

– Thomas L. Root

LISAStatHeader2small

DC Circuit Slams DOJ Information Shell-Game – Update for August 14, 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

DC CIRCUIT HAMMERS DOJ OVER FREEDOM OF INFORMATION ACT ARROGANCE

foia160930Who hasn’t had this happen? You file a Freedom of Information Act request seeking documents showing prosecutorial misconduct, only to wait many months for a two-page letter claiming that all of the requested material is exempt law-enforcement stuff. And it’s hard to appeal, because you cannot tell what records were not included, so you cannot argue that the withheld records were non-exempt.

That happened to Greg Bartko. After he was convicted in a case “beset by prosecutorial misfeasance,” as the DC Circuit put it, he filed multiple Freedom of Information Act requests with the Dept. of Justice Office of Professional Responsibility and other relevant agencies trying to get records of other times the Assistant U.S. Attorney assigned to his case had cut corners. OPR categorically refused to acknowledge the existence of, let alone disclose any, potentially relevant documents outside of Greg’s own case. And even with respect to Greg’s case, OPR held back a lot of material, asserting a sweeping exemption for law enforcement records under FOIA Exemption 7(C) and providing a “Glomar” response that it could neither confirm or deny the records existed, because that would implicate law enforcement activities.

OPRFOIA180814Last week, the DC Circuit slammed OPR’s reckless use of Exemption 7(C) and its arrogant “Glomar” claim (which exists to enable agencies to dodge making admissions about records for national security reasons). To qualify as law-enforcement records, the Circuit said, “the documents must arise out of investigations which focus directly on specifically alleged illegal acts which could, if proved, result in civil or criminal sanctions. Records documenting only government surveillance or oversight of the performance of duties of its employees do not qualify.

The Circuit held that an agency must establish a rational nexus between the investigation and one of the agency’s law enforcement duties, and a connection between an individual or incident and a violation of federal law. OPR does not do law enforcement, but instead internal DOJ discipline. Plus, one of OPR’s primary responsibilities is not to generate reports, but rather just to obtain reports from others that arise as a result of internal agency monitoring and review allegations of non-law violations by DOJ attorneys for internal disciplinary purposes. Thus, the Court said, OPR bears the burden of showing on a case-by-case basis that requested records were actually compiled for law-enforcement, rather than employment-supervision purposes.

In defense of its Glomar response, OPR offered only a bare-bones declaration that the records Greg requested consist of complaints or allegations of misconduct which, if they exist at all, would have been compiled as part of OPR’s investigations of DOJ attorneys “who are alleged to have committed specific acts of professional misconduct which, if proved, could result in civil or criminal penalties.” The Court said that “is not even in the ballpark.” OPR “cannot rely on a bare assertion to justify invocation of an exemption from disclosure.” A “near-verbatim recitation of the statutory standard is inadequate” to justify the use of an exemption.

foia160328Greg’s FOIA request was broadly worded to include a wide variety of actual or alleged violations by the AUSA of the U.S. Attorney’s Manual, the North Carolina Code of Professional Conduct, and other ethical and legal obligations. While violations of some of those standards could conceivably result in civil or criminal sanctions, the Court said, many of them would not and would bear only on internal disciplinary matters.

Bartko v. DOJ, Case No. 16-5333 (D.C.Cir., Aug. 3, 2018)

– Thomas L. Root

LISAStatHeader2small

Trump Hits the Throttle on Reform Bills – Update for August 13, 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

WHITE HOUSE, SENATE CUTTING A DEAL ON AMENDING FIRST STEP

The FIRST STEP Act, which has stalled in the Senate because of opposition from top Republicans who want more sentencing relief than the bill offers, got a jump start in the last week, and, according to White House sources, may be set for a vote in the Senate before the end of the month.

firststepB180814Behind the scenes, the administration and legislators are hammering out an agreement that would add significant changes in the nation’s mandatory sentencing laws to the widely popular prison reform bill that passed the House earlier this year, the Washington Post said, crediting officials familiar with the discussions.

President Trump met with a number of state governors during  his golf course vacation at Bedminster, New Jersey, last week, holding a “roundtable” that was intended to signal the important to the President of getting a Senate vote on FIRST STEP.

During Thursday’s meeting, Trump said the administration was working to “refine” the House-backed measure in the Senate. “I have to say, we have tremendous political support. It surprises me. I thought that when we started this journey about a year ago, I thought we would not have a lot of political support,” Trump said, flanked by state officials and top aides. “People I would least suspect are behind it, 100 percent.”

deal180723The deal being discussed would add four sentence reform measures from the Sentencing Reform and Corrections Act (legislation sponsored by Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Sen. Richard J. Durbin (D-Illinois) and backed by a broad coalition of Senate Democrats and Republicans) to the House bill. Ohio State law professor Doug Berman said last week in his Sentencing Law and Policy blog that he believed the revised measure will breeze its way to passage in the Senate, with a vote of in favor of 80% or more.

“We are trying to get a Senate vote in the next two weeks,” an administration said. White House officials hope that Trump’s meeting with governors will spark action in the Senate and prompt leaders to put legislation on the summer calendar. Senate Majority Leader Mitch McConnell has kept the Senate in session. 

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

firststep180814At the session with governors, Trump said, “Our first duty is to our citizens, including those who have taken the wrong path but are seeking redemption and a new beginning.  That’s people that have been in prison, and they come out and they’re having a hard time… We’ve passed the FIRST STEP Act through the House, and we’re working very hard in the Senate to refine it and pass it into law.  We think we’ll be successful in that regard.  The bill expands vocational educational programs to eligible federal inmates so that more of them can learn a trade.  And that’s what we’re doing.  We’re teaching them trades.  We’re teaching them different things that they can put into good use, and put into use to get jobs.”

ABC News reported last Thursday that “the Senate is now expected to move forward with a modified version of the House bill that will reduce the current mandatory life sentence for certain drug offenses from a life sentence to 25 years, prohibit the doubling of mandatory sentences for certain gun and drug offenses, broaden judicial discretion, and make retroactive the 2010 Fair Sentencing Act that narrowed the discrepancy in sentencing guidelines for crack versus powdered cocaine.”

Jon Ponder, an associate minister at a Las Vegas church who has two priors for robbery, was one of the ministers who met with the President at the White House in late July. Ponder, founder of HOPE for Prisoners, a program that helps more former inmates adjust to life after prison by providing financial advice, personal mentoring and connections to employers, said he believes Trump supports inmate re-entry programs as much as he does.

sincerity180814“I think that something would really have to be wrong with that man to sit down in that room and have the conversation with the (ministers) that he did, if he was not being sincere about this,” Ponder said. “I believe that he spoke from his heart. He shared in that room that he was very compassionate about this, and about the importance of people who are fighting for a second chance.”


Washington Post, Trump huddles with governors, other officials on prison overhaul (Aug. 9, 2018)

McClatchy Newspapers, Trump, Congress try to breathe life into long-delayed criminal justice reform package (Aug. 8, 2018)

Washington Examiner, Jared Kushner helps Trump pave rare bipartisan path to big win (Aug. 9, 2018)

ABC News, Trump has privately expressed openness to broad criminal justice reform (Aug. 9, 2018)

– Thomas L. Root

LISAStatHeader2small