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

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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

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

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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

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

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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
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Well, Then, Would You Believe…? – Update for July 3, 2018

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IF AT FIRST YOU DON’T SUCCEED…

At their first sentencing, the Vera brothers watched as the Government established the drug amounts implicated in their case for sentencing purposes through an FBI agent who “interpreted” the contents of wiretapped phone conversations to conjure up a drug weight. Drug weight, of course, drives the base offense levels of the Sentencing Guidelines – a kilo of meth will buy you a much higher sentencing range that a blunt of Mary Jane in your back pocket.

code180703The district court accepted the agent’s white-bread explanations of the purported code being used in the phone conversations, and hammered Armando with 360 months and his brother with 262.

After the 9th Circuit threw that out, the brothers were resentenced. This time, the Government – fearful of the FBI “translator” gambit – relied instead on the contents of co-conspirators’ plea agreements to establish drug quantities attributable to the Vera brothers.

Anyone who has been in a federal courthouse for any purpose other than to use the restrooms knows that the government dictates the contents of a plea agreement, and as long as the language in implicating someone else, a defendant will happily sign on. Paragraph 5 says a co-defendant kidnapped the Lindbergh baby? Why not? Despite the fact that using a plea agreement with Defendant A as sentencing evidence for Defendant B is like the government quoting itself, the district court found the approach “more credible” than the PSR and Armando’s sentencing memorandum, because it was the “least dependent on interpretation of the recordings” as well as the government’s “single most significant data source.”

lindbergh180703Last week, the 9th Circuit reversed the Vera brothers’ second sentencing, too. The panel held that the district court relied too heavily upon co-conspirator plea agreements to determine drug quantities, mistaking holding that the plea agreement statements were reliable statements against interest under F.R.Ev. 804(b)(3). The panel said “a defendant signing a plea agreement may adopt facts that the government wants to hear in exchange for some benefit, usually a lesser sentence. In pointing their fingers at the Vera brothers, the co-conspirators were acknowledging neither their own guilt nor conduct that would necessarily enhance their own sentences. Rather, these statements merely helped the government’s prosecution of the Veras.” Due to a co-defendant’s strong motivation to implicate the defendant and to exonerate himself, any statements “about what the defendant said or did are less credible than ordinary hearsay evidence.”

Hearsay is admissible at sentencing, so long as it is accompanied by “some minimal indicia of reliability.” But here, the district court’s primary rationale for relying upon the plea agreements was Evidence Rule 804(b)(3). The Circuit ruled that a district court may not rely solely on Rule 804(b)(3) to use non-self-inculpatory statements in a co-conspirator’s plea agreement to determine a defendant’s drug-quantity liability.

United States v. Vera, Case No. 16-50634 (9th Cir. June 25, 2018)

– Thomas L. Root

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Sen. Grassley is Relevant Again, and So is SRCA – Update for July 2, 2018

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SENATORS SEEK TO RECRUIT TRUMP TO BACK SENTENCE REFORM

The Senatorial Odd Couple – conservative Sen. Charles Grassley (R-Iowa) and liberal Richard Durbin (D-Illinois) – held a joint press conference last Tuesday to try to recruit President Trump as an ally to help move the Sentencing Reform and Corrections Act of 2017 through the Senate.

oddcouple180702Grassley and Durbin – No. 1 and 2 on the Senate Judiciary Committee – urged the president to get involved in the reform process — “in a positive way,” Durbin pointedly suggested. “We need for the president, the president of the United States, to say this is a priority for us as well. Let’s do this criminal justice reform, to include prison reform… What a breakthrough that would be.”

Grassley noted that Trump frequently tweets about Senate Democrats needing “to do something.” He said criminal justice reform is tailor-made for Trump’s action agenda. “It kind of is a good combination between what’s good politics and what’s good policy… This is an opportunity for the president to have a win. It’s an opportunity for our justice system to have a win. … It would help a lot if the president would engage on this very important issue,” Grassley said. 

Attorney General Jefferson Beauregard Sessions III - death to misdemeanants?
Attorney General Jefferson Beauregard Sessions III – death to misdemeanants?

Grassley has engaged Attorney General Jefferson Beauregard Sessions III and White House adviser and Trump advisor and son-in-law Jared Kushner on the issue, which has probably left the Senator 1-1: Kushner is a supporter, while Sessions would likely support expanding the death penalty to cover misdemeanors.

Grassley said Sessions told him that SRCA would not undercut the administration’s “tough on crime” stance. “I thought that I determined an opening. Well that opening hasn’t materialized and obviously I didn’t make an impact,” Grassley said.

That may change very soon. Grassley has suddenly become very important to Donald Trump, because it is the Judiciary Committee that will conduct hearings on Trump’s Supreme Court nominee, who will be announced next Monday. The Republicans badly want to confirm the new justice, who will replace the retiring Anthony Kennedy, and Grassley, as chairman of Judiciary, holds a few of the keys to the kingdom.

That’s good news, because criminal justice reform has largely stalled on Capitol Hill. The House passed the FIRST STEP Act, which only addresses prison reform, and Senators John Cornyn (R-Texas) and Sheldon Whitehouse (D-Rhode Island) have introduced a similar bill in the Senate. But Grassley and Durbin are pushing broader criminal justice reform legislation that include both the sentencing reform changes in SRCA and the prison reform changes of FIRST STEP.

kushner180622Last Tuesday, Kushner met with Cornyn and Whitehouse, as well as FIRST STEP sponsors Reps. Doug Collins (R-Georgia) and Hakeem Jeffries (D-New York) from the House of Representatives, to strategize on how to move FIRST STEP forward following House passage last month, according to a report on the Axios news website.

SRCA has the backing of more than a fourth of the Senate, and Grassley and Durbin reiterated last Tuesday that they believe they have the 60 votes needed to pass the legislation in the Senate if they are able to get the bill to the floor. Bringing the bill up for a vote requires the approval of Senate Majority Leader Mitch McConnell (R-Kentucky). McConnell will do what Trump wants him to do. Trump needs Grassley’s cooperation, and Grassley needs Trump’s backing on comprehensive criminal justice reform. Trump does not much need Sessions, whom has been in Trump’s doghouse for well over a year.

fingers180702Trump’s recent pardons and commutations suggests that maybe the Russia probe has sensitized him to what it feels like to have the Dept. of Justice and FBI gunning for you. Amy Povich of the CAN-DO Foundation said of Trump, “I am encouraged that for the first time we are seeing somebody who possibly understands the complexities of the Office of the Pardon Attorney being controlled by the Department of Justice. There are a lot of dirty cases and they don’t want those to see the light of day, so they let their prosecutors have the largest voice as to which cases go over there. Trump now apparently understands this and that is why he’s asking for a list. We are honored to have been asked to provide a list, so fingers crossed.”

Risk-assessment company Skopos Labs sets the odds of FIRST STEP becoming law at 82% as of today, and rates SRCA’s chances at 63%.

The Hill, Bipartisan senator duo urges Trump to back criminal justice bill (June 26, 2018)

Axios, Jared Kushner huddles with Congress on prison reform (June 26, 2018)

Salon, Is there real hope for prison reform? Nonviolent offenders and the “Kim Kardashian moment” (June 29, 2018)

– Thomas L. Root

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BOP Staffing,MCC New York Conditions, Draw Media Scrutiny – Update for June 27, 2018

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BOP STAFFING, PRISON CONDITIONS TAKE IT ON THE CHIN

Last week was a bad one, publicity-wise, for the Federal Bureau of Prisons. First, The New York Times reported that a shortage of correctional officers has grown chronic under President Trump, leading to an increase in assaults on staff and contraband. Then, a New York City magazine ran a hard-hitting story on the deplorable conditions at MCC New York.

punchinface180423The Times said correctional officer vacancies has ballooned to over 2,100 (about 12% of the CO workforce). As a result, the paper said, “the practice of drawing upon other workers has become routine — many prisons have been operating in a perpetual state of staffing turmoil, leaving some workers feeling ill-equipped and unsafe on the job.”

In Obama’s last two years, the BOP hired 2,644 new Cos in 2016. Last year, the number dropped to 372, with the BOP eliminating about 5,000 unfilled jobs, including about 1,500 CO positions.

Cuts are occurring even though Congress increased the BOP budget for salaries and expenses by $106 million this year, and lawmakers have called for hiring more COs. As of March, there were 15,927 officers in federal prisons.

A BOP press officer said the cuts “will not have a negative impact on public safety or on our ability to maintain a safe environment for staff and inmates.” But assaults on prison staff have risen more than 8% last year over the previous year.

dungeon180627Meanwhile, The Gothamist (a magazine published by public radio station WNYC) last week savaged conditions at MCC New York. The article described “a rat-infested, high-rise hell just yards from the federal courts… That could be exactly the way jailers and prosecutors want it. Pre-trial detention, which often lasts years, can become not only unsafe, but coercive; as a result, individuals are pressured to provide information to prosecutors or accept plea deals in their desperation to be released, say former prisoners.” 

“You want to plead guilty and get out of this dump to a prison,” one former inmate told the magazine. “The feds have a 98% conviction rate for a reason,”, another former prisoner said. “They mentally break you… There are certain things that go on in these places that the government covers so the public would never know.”

The New York Times, Safety Concerns Grow as Inmates Are Guarded by Teachers and Secretaries (June 17, 2018)

The Gothamist, Prisoners Endure A Nightmare ‘Gulag’ In Lower Manhattan, Hidden In Plain Sight (June 19, 2018)

– Thomas L. Root

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California Kiddie Porn Statute Encompasses Too Much for Federal Purposes – Update for June 26, 2018

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9TH CIRCUIT FINDS STATE SEX OFFENSE PRIORS OVERBROAD FOR 2252 SENTENCE ENHANCEMENT

kittyporn170420People convicted of receiving child porn can receive a 10-year mandatory minimum under 18 U.S.C. 2252(b)(2) if they have a prior state conviction “relating to” possession of such porn. Last week, the 9th Circuit applied a Taylor-type analysis to California’s child porn possession law and child sexual exploitation law, ruling that both statutes were overbroad and thus could not be used to increase Melvin “Buck” Reinhart’s Sec. 2252 minimum sentence to 10 years.

The Circuit said Cal. Penal Code Sec. 311.11(a) sweeps in “depictions of a broader range of sexual conduct than the federal statute and is not divisible. The panel likewise held that Sec. 311.3(a) is categorically overbroad as compared to the federal definition of “sexually explicit conduct,” and that it is not divisible.

Because the terms “child pornography” and “sexually explicit conduct,” are explicitly defined in California law, the statutory text “tug[s]… in favor of a narrower reading” of the phrase “relating to.” The holding is at odds with 8th and 10th Circuit decisions, and may “have the effect of making Sec. 2252(b)(2) inapplicable in numerous states that define child pornography more broadly than the federal definition.”

United States v. Reinhart, Case No. 16-10409 (June 18, 2018)

– Thomas L. Root

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Kinder and Gentler Robbery Not ACCA ‘Violent’ – Update for June 25, 2018

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5TH CIRCUIT HOLDS TEXAS SIMPLE ROBBERY IS NOT CRIME OF VIOLENCE

The 5th Circuit last week ruled that a conviction for Texas robbery is not a crime of violence for purposes of the Armed Career Criminal Act.

BettyWhiteACCA180503Latroy Burris, convicted of being a felon-in-possession of a gun, was sentenced under the ACCA for priors of drug distribution, robbery and aggravated robbery. He conceded the drug conviction counted for ACCA purposes, and the 5th Circuit last year said aggravated robbery was a crime of violence. But Latroy argued that Texas robbery under § 29.02(a) of the Texas Penal Code was not a crime of violence.

Texas robbery requires that in the course of committing theft, a person intentionally, knowingly, or recklessly cause bodily injury to another; or intentionally or knowingly threaten or place someone in fear of imminent bodily injury or death.

The Circuit agreed with Latroy, finding that Texas law interprets “bodily injury” expansively, encompassing even “relatively minor physical contacts so long as they constitute more than mere offensive touching.” The Circuit said the Supreme Court decision on “physical force,” Curtis Johnson v. United States, suggests that causing “relatively minor physical contacts” does not entail the “violent force” required to make the state robbery offense a “crime of violence.”

Latroy will be resentenced without the ACCA 15-year mandatory minimum.

United States v. Burris, Case No. 17-10478 (5th Cir. June 18, 2018)

– Thomas L. Root

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Amid the Capitol Hill Ruckus, There’s Still FIRST STEP – Update for June 21, 2018

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KUSHNER LOBBYING SENATE IN SUPPORT OF FIRST STEP ACT

It’s not like there isn’t any turmoil in Washington this week, with crying kids in cages all along the Rio Grande, Paul Manafort in a cage somewhere in Virginia, and a state supreme court chief justice being fitted for a cage by the Feds. But there remains legislative work to be done, and Jared Kushner – while not a legislator – has been doing it.

nascarwreck180622Kushner met with Senators on Capitol Hill last week to whip support for the White House-backed FIRST STEP Act (H.R. 5682) (an acronym for the unwieldy “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act“) that passed in the House last month. But despite his efforts (as well as editorial support for FIRST STEP and the Sentence Reform and Corrections Act [S.1917] appearing in both left- and right-leaning publications this week), Congress appears to be watching the unfolding immigration “family separation” situation like mesmerized NASCAR fans watching a five-car pileup.

Senators Charles Grassley (R-Iowa), Dick Durbin (D-Illinois), Kamala Harris (D-California) and Cory Booker (D-New Jersey) remain adamantly opposed to any bill that does not modify mandatory minimums. Nevertheless, the conservative Koch-backed group Freedom Partners announced last week that it was embarking on a spending pitch urging senators to support FIRST STEP despite Republican disagreement. The first round of mailings from Freedom Partners targets 15 Democratic senators and two Republicans: Grassley and Sen. Orrin Hatch (R-Utah).

CNN commentator Van Jones, a progressive who founded the criminal justice reform advocacy group #cut50, has been working closely with Kushner urging passage of prison reform. He told The Marshall Project this week:

Jones180622
                              Van Jones

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.

An opinion piece in The Hill last week noted that “the problem of prison overcrowding and systemic biases against African Americans cannot be solved by presidential pardons alone. Nonetheless, Trump’s attention to these issues might help drive reforms through legislation and prosecutorial decisions. Significant criminal justice reforms are necessary, beginning with addressing the root causes of offending, which include mental illness and lack of family, education, employment and/or social opportunities.”

Axios, Kushner whipping support for prison reform in the Senate (Jun. 12, 2018)

The Hill, Criminal justice reform in the era of reality TV-style government (Jun. 13, 2018)

Politico, Koch group unveils six-figure prison reform campaign (June 11, 2018)

 – Thomas L. Root

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Pardon Rumors Abound… – Update for June 20, 2018

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TRUMP HAS A LITTLE LIST

list180620For all of us who are Gilbert & Sullivan fans (and counting me, there may be two of us), all of the current buzz about President Trump’s current list of 3,000 people he says he’s reviewing for pardons or commutations is reminiscent of the Mikado, in which the Lord High Executioner explains that he’s “got a little list.” But where Gilbert & Sullivan’s “little list” was of “people who would not be missed,” the President’s list is of people who are being missed.

After we reported last week on Trump’s commutation of Alice Johnson’s federal sentence, we got a number of inmate emails asking for the President’s address (which is 1600 Pennsylvania Avenue N.W., Washington, D.C. 20500). Almost as many people asked about the list itself, and how they could get on it. A few asked me to get them on the list (oh, if only I had anywhere near that kind of power).

But there is a “little list,” and rumors abound that the President will be using it soon. One person who recently spoke with Trump advisor and son-in-law Jared Kushner told the pop culture and fashion magazine Vanity Fair last week (you never know where you’re going to find interesting material these days) that Kushner is gearing up for a big pardon push. The source said Kim Kardashian gave Kushner a list of people to pardon, some of whom are hip-hop artists. “They’re going to be pardoning a lot of people — pardons that even Obama wouldn’t do,” the person said.

clemency170206The magazine also reported on the budding relationship between Kushner and CNN host and criminal-justice reform advocate Van Jones. Jones, who is as politically to the left as Kushner is to the right, told the magazine, “Jared and I have 99 problems but prison ain’t one. I’ve found him to be effective, straightforward, and dogged.”

The Washington Examiner reported last week that Kushner and White House counsel Don McGahn met with a right-leaning policy advocate who handed them lists of dozens of inmates serving long sentences, according to a person involved in the discussions. McGahn reportedly reacted favorably to the case of Chris Young, a 30-year-old Tennesseean doing life since age 22 for a drug conspiracy. Young’s sentencing judge called the sentence “way out of whack” but said he had no choice. Young’s name was supplied to the advocate by his attorney Brittany Barnett, who also represented Alice Johnson. Dozens of other names were supplied by the CAN-DO Foundation, which championed Johnson, and FAMM.

eligible180523Topping a list of 20 marijuana inmates assembled by CAN-DO were Michael Pelletier and John Knock, who are doing life for pot smuggling and who unsuccessfully requested clemency from President Obama. Another list of 17 women and six men prepared by CAN-DO was topped by Michelle West (drug conspiracy) and Connie Farris (mail fraud).

The Examiner said it is unclear if other advocates have come to the White House as part of Trump’s “unconventional early-term approach to clemency that until now has relied heavily on the recommendations of celebrities and political allies.” One advocate who brought lists to the White House received the impression that officials may be considering setting up an internal clemency commission to circumvent or supplement the work of the Justice Department’s Office of the Pardon Attorney.

Jones told Vanity Fair that Trump liked the positive media coverage that followed his pardon of Alice Johnson. “Trump was pleasantly surprised,” Jones said. “I hope the president feels encouraged to do more.”

injustice180620Longtime Harvard law professor Alan Dershowitz, who has consulted with the President on two pardons and one commutation thus far, told the Examiner recently that with Trump, “you have to appeal to his sense of injustice. He feels he is now being subject to injustice, and so he’s very sensitive to injustices. I think if you write a letter to the president and you set down the case in a compassionate way, I think his staff knows that he’s looking for cases of injustice. This president may want to go down in history as somebody who has given pardons in places where other presidents would not have done it.”

Margaret Colgate Love, who served as DOJ Pardon Attorney from 1990-1997, wrote recently in the Washington Post:

There is nothing surprising or necessarily alarming about Trump’s embrace of this broad executive power — even if it has been unconventional. His grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law. While many may disagree with the president’s choices, each of them speaks to some widely acknowledged dysfunction in the criminal-justice system…

In sum, Trump’s grants to date send a message that business as usual in the criminal-justice system will not be tolerated. That is how the pardon power was designed to work by the framers of the Constitution.

Nevertheless, Attorney Love is concerned that Trump appears to be relying exclusively on random, unofficial sources of information and advice (who would have ever expected him to do that?) “to select the lucky beneficiaries of his official mercy.” She believes that  “this makes a mockery of the pardon power’s historical operation as part of the justice system,” and suggests instead that what is needed is a new, reliable and fair system for vetting pardon and commutation requests. And not DOJ, either, which she says has a  “culture and mission… that have become irreconcilably hostile to pardon’s beneficent purposes and to its regular use by the president. That agency’s failed stewardship of the power is aggravated in Trump’s case by the same sort of dysfunctional relationship with his attorney general that Clinton had with his.”

Vanity Fair, “He Hate, Hate, Hates It”: Sessions Fumes as Kushner Gets Pardon Fever (June 13, 2018)

Washington Examiner, Trump asks for clemency names and lists promptly arrive at White House (June 11, 2018)

Washington Post, Trump’s pardons really aren’t out of the ordinary (June 8, 2018)

– Thomas L. Root

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