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

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

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

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

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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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Like a Mouse Between Two Cats, BOP Director Just Got Tired of It – Update for May 30, 2018

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BOP DIRECTOR QUIT BECAUSE OF SESSIONS AND KUSHNER

As we reported last week, BOP director Mark Inch quietly resigned, ironically packing up his office a week ago last Friday even as President Trump’s senior adviser and son-in-law, Jared Kushner, was praising Inch’s leadership during a White House conference on prison reform. At the time, no one knew why he quit.

CatChasingMouse180530Now we do. The New York Times reported late last Thursday that Inch, a retired Army major general who had been appointed to oversee the Bureau just nine months ago, felt marginalized by Kushner’s prison reform planning, according to three unnamed sources the Times said had with knowledge of the situation. But even more than his ire at Kushner, Inch – a consummate bureaucrat – was frustrated with his boss, Attorney General Sessions, and believed he was in caught in the crossfire of a turf war between Kushner and Sessions, like Ben Franklin’s proverbial “mouse between two cats.”

Sessions had frozen Inch out of budget, staffing, and policy decisions, the Times reported, refusing even to approve his choice for deputy prisons director, the Times reports. For months Inch pleaded with Deputy AG Rod Rosenstein to install Sara M. Revell, North Central Region director, as his top deputy. Rosenstein repeatedly told Inch that Sessions had not yet approved the appointment. Inch reportedly resented Sessions’ habit of communicating with him through junior DOJ lawyers.

Inch also told Rosenstein he was tired of the Trump administration flouting “departmental norms,” and he was frustrated by Sessions trying to thwart Kushner’s reforms. This hardly meant that Inch was a fan of the FIRST STEP Act, however: the Times said Inch objected to the Kushner-backed requirement that inmates be placed in prisons within 500 miles of their homes. He also believed the FIRST STEP earned-credits program for more halfway house was impractical, in part because of a lack of available beds in halfway houses.

inch180530Mostly, it seems Inch was offended that he was largely excluded from discussion of prison reform bill. Even that shutout appears to have been engineered by Sessions. Two senior White House officials said Kushner made a point of inviting Inch to prison reform meetings, but Sessions often sent other officials in his place.

The Times said Inch – whose career was spent in the Army criminal justice and prison system – struggled to publicly explain the BOP’s response to sexual harassment, halfway house and staffing problems. Watching Inch testify before Congress was like getting a tooth pulled without novocaine. The director practiced James H. Boren’s bureaucrat’s creed: “When in doubt, mumble; when in trouble, delegate; when in charge, ponder.”

The New York Times, Turf War Between Kushner and Sessions Drove Federal Prisons Director to Quit (May 24, 2018)

– Thomas L. Root

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The Thrillah on the Hill-ah – Update for May 14, 2018

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HOUSE BILL MAY FALL VICTIM TO SENATE DEMAND THAT IT DO MORE

rumble180515With the House Judiciary Committee last week rewriting the old Prison Redemption and the Reform Act into the new FIRST STEP Act (H.R. 5682), the action on criminal justice reform turns to the Senate, where FIRST STEP is already running into pushback. Let’s get ready to rumble.

The White House-backed bill picked up some mo after the House Judiciary Committee passed it onto the floor with a bipartisan 15-5 vote. But some Senate are deadlocked about how to approach the bill, threatening the chances of it getting signed into law. Ironically, the senators raising the most opposition are supporters – not opponents – of criminal justice reform. In fact, some of the traditional foes of criminal justice reform, conservative groups, sound like unabashed supporters. And those who you’d think were most likely to support reform are opposing it.

“Although today’s vote is a positive sign, we still have a long way to go. As the bill’s title suggests, this is the first step,” said conservative nonprofit FreedomWorks. “Congress must do more to ensure that those who are re-entering society and want a better life for themselves and their families have meaningful opportunities to work toward that goal. Another part of the discussion is sentencing reform. Sooner or later, Congress will have to revisit this issue to ensure that we are reforming sentences for low-level, nonviolent offenders and reserving limited prison space for violent offenders.”

vacancy180515But Kate Gotsch of the Sentencing Project complains that the bill does not account for the fact that halfway houses likely won’t have space to accommodate the inmates who accrue more earned-time credit. Progressive groups also point out that while the legislation encourages – even rewards – prisoners for participation in rehabilitative programs, the Bureau of Prisons is struggling with a horrifically-long wait list for the programs it currently offers. And many facilities don’t have the staff to run additional programs. Much of BOP Director Mark Inch’s grilling by the House Oversight Committee last month came over severe cuts in halfway house time for inmates and for the BOP’s practice of “augmentation,” where teachers, nurses and other professional staff at federal prisons are required to drop their regular duties to fill shifts for correctional officers in the housing units.

Nevertheless, FIRST STEP co-sponsor, Rep. Hakeen Jeffries (D-N.Y.) predicted last Friday the bill would come up for a House vote by the end of May.

Sens. Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee, and Richard Durbin (D-Illinois), the No. 2 Senate Democrat, both want a broader criminal justice measure including the mandatory minimum sentencing reforms they previously tucked into the Sentencing Reform and Corrections Act, S.1917, which passed out of the Judiciary Committee last February. The SRCA, which picked up two more co-sponsors last week, is now sponsored by 14 Democrats and 13 Republicans. It slashes mandatory minimums for drug offenses, makes the Fair Sentencing Act retroactive for inmates with pre-2010 crack sentences, and brings relief to people with stacked 924(c) convictions.

sessions180322Despite White House opposition, spearheaded by Attorney General Jefferson Beauregard Sessions III, both senators say they’ve made a deal to not split prison reform from changes to sentencing guidelines. But The Hill predicted last weekend that combining sentencing reform with prison reform will “all but kill any chance of getting sentencing reform through the GOP-controlled Congress.

Grassley’s and Durbin’s approach is poison to both to Sessions and to Senate Majority Leader Mitch McConnell (R-Kentucky), who refused to bring SRCA to a vote in the last session of Congress despite sponsorship of 40” senators. And some of the bill’s most vocal opponents, Sens. Tom Cotton (R-Arkansas) and David Perdue (R-Georgia), are some of Trump’s closest allies on Capitol Hill.

Sens. John Cornyn (R-Texas) and Sheldon Whitehouse (D-Rhode Island) last week introduced a companion bill to the House’s FIRST STEP Act. S. 2795, a bill to provide for programs to help reduce the risk that prisoners will recidivate upon release from prison, represents an effort by some in the Senate to press forward with a narrower bill that would match FIRST STEP. Asked if Sens. Grassley’s and Durbin’s stance was realistic, Cornyn said, “Their opinion matters, but I wouldn’t say that’s the end of the discussion.” 

House Republicans already have made some changes to their prison reform bill in an attempt to win the support needed for it to pass that chamber, but the modifications did not placate Grassley or Durbin, whose support would likely be critical if any legislation is to reach the Senate floor.

In a show of strength, Sen. Cornyn and White House advisor and Trump son-in-law Jared Kushner were to tour FCI Seagoville in suburban Dallas last Friday, to tout FIRST STEP. Sen. Cornyn made it, but Kushner skipped out.

kushner180515Sen. Thom Tillis (R-North Carolina), while saying he’s open to either path forward on the issue, is skeptical that a prison reform bill alone would be able to get the 60 votes needed to ultimately clear the Senate. “It’s how we get the votes, and I’m not sure how you do [it with just that]. The way that that evolved was by talking about pairing the two,” he said, referring to both sentence reform and prison reform.

Sen. Grassley appears to be closing the door for now on negotiating with Cornyn. He said he and Durbin are pushing forward with their bill, adding that he’s delivered that message to Kushner several times. “[We’re going] to try to convince the White House that we’re right,” he said. “This is a wonderful opportunity for the president to have a bipartisan victory and to sign it, and that’s exactly what he needs for the midterm election.”

S. 2795: A bill to provide for programs to help reduce the risk that prisoners will recidivate upon release from prison, and for other purposes, Introduced May 7, 2018, by Sens. Cornyn and Whitehouse.

FreedomWorks, FreedomWorks Applauds Important “First Step” In Criminal Justice Reform (May 9, 2018)

The Hill, Trump-backed prison reforms face major obstacles in Senate (May 13, 2018)

Roll Call, Criminal justice overhaul efforts appear stuck (May 11, 2018)

Mother Jones, Jared Kushner’s Prison reform Bill Just got Slightly Less Bad (May 7, 2018)

– Thomas L. Root

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Prison Reform Gets a Hearing – Update for April 16, 2018

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HOUSE PRISON REFORM BILL GOES TO HEARING THIS WEEK

redemption180411The House Judiciary Committee will mark up H.R. 3566, the Prison Reform and Redemption Act, this week, a Republican proposal that aims to reduce recidivism. Rep. Doug Collins (R-Georgia), sponsor of the PRRA, said the bill, which has 10 Democrat and seven Republican co-sponsors, would allow prisoners to serve the final days of their sentences in a halfway house or home confinement if they complete evidence-based programs that have been shown to reduce recidivism rates.

Prison programming could include everything from job and vocational skills training to education and drug treatment.

The White House announced in February it was throwing its support behind prison reform measures such as the PRRA instead of measures like the Sentencing Reform and Corrections Act, sponsored by Senate Judiciary Committee Chairman Charles Grassley (R-Iowa). The White House says it sees no path forward for sentencing reform. “And so what we see now is an environment where the prison reform does have enough support to get done,” an official said. “And we think that by maybe doing this in smaller bits and pushing the prison reform now, we think this has a better chance of getting done.” 

blackprisoner171116Not everyone agrees. The Leadership Conference on Civil and Human Rights an umbrella group of 63 organizations, wrote to the House Judiciary Committee last week to complain about the PRRA and “efforts to pass prison reform (or ‘back-end’ reform) legislation without including sentencing reform (or ‘front-end’ reform).” The Conference said that any “legislation that addresses only back end reforms is doomed to fail in achieving these goals. Without changes to sentencing laws that eliminate mandatory minimums, restore judicial discretion, reduce the national prison population, and mitigate disparate impacts on communities of color, H.R. 3356 alone will have little impact.”

The PRRA lets inmates earn credits for completing designated BOP programs that will let them go to halfway house or home confinement early, with the more credits earned, the earlier the prisoner can get released to residential reentry. But the Conference letter noted that “currently there are not enough of these programs available in the Federal Bureau of Prisons (BOP) to serve those currently in prisons. Furthermore, BOP more recently has reduced the number of residential reentry centers it contracts with to provide halfway house programming.”

mcconnell180219And the leadership of two organizations on the opposite end of the political spectrum, conservative FreedomWorks and liberal Center for American Progress, wrote in The Hill last week that “[a] recent markup of the Sentencing Reform and Corrections Act yielded the same favorable vote as the last committee vote on this legislation, and even those who voted against the legislation voiced support for some level of sentencing reform. Sen. Lee maintains that SRCA would receive 70 votes on the Senate floor, if Senate Majority Leader Mitch McConnell (R-Kentucky) would simply allow the bill to come to a vote.”

Trump son-in-law and advisor Jared Kushner convinced President Trump to support prison reforms like those some states have implemented more than a decade ago, which since saved billions and has resulted both in the closure of prisons and a drastic reduction the crime rate. Jared presented those ideas to Trump at a White House meeting in January. The following month, the White House asked lawmakers to draw up legislation, highlighting many of the same policies.

Kushner has since worked with Sen. John Cornyn, R-Texas, a long-time criminal justice reform advocate, who helped craft the plan the House will begin debating this week.

Meanwhile, speculation that Trump may fire Attorney General Jefferson Beauregard Sessions III – the man who torpedoed the SRCA and has backed off Obama-era easing of DOJ charging policies – has cooled. The Weekly Standard reported his week that such a firing is highly unlikely. Instead, Sessions has a stronger hold on his job than ever.

With Sessions gone, it would be difficult for Grassley to avoid spending the rest of the year on anything but hearings for a new AG. With the risk growing daily that the Democrats may capture the Senate in the midterm elections in November, the chance to confirm more conservative judges would have been frittered away.

sessions180215Still, The Standard reports that anti-Sessions sentiment lives on in the Trump family. Jared Kushner is a supporter of criminal justice reform, which Sessions opposes. EPA Administrator Scott Pruitt, who openly lobbied to replace Sessions and angered the President in the process, was Kushner’s hope for attorney general and possible backer of SRCA. Pruitt is hanging on to his EPA job by a thread, and has probably permanently spindled any hope of becoming Attorney General.

The Hill, Prison reform bill set for House markup next week (Apr. 11, 2018)

McClatchy Washington Bureau, Washington looks to Texas on federal prison reforms (Apr. 13, 2018)

The Leadership, Letter of Concern regarding H.R. 3356, the Prison Reform and Redemption Act (Apr. 12, 2018)

The Weekly Standard, Jeff Sessions and His Enemies (Apr. 13, 2018)

– Thomas L. Root

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Sentencing Reform Taking It On The Chin – Update for April 11, 2018

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SENTENCING REFORM IS DEAD… LONG LIVE PRISON REFORM

kushner180411A couple of hagiographic news articles on Trump son-in-law Jared Kushner’s efforts pushing federal criminal justice reform last week make it clear, if it was not clear before, that hopes of sentencing reform – rewriting mandatory minimums and giving guys with grossly-stacked sentences a chance to get resentenced to something that make sense – are waning.

Notwithstanding Sen. Charles Grassley’s (R-Iowa) optimism, prospects for the Sentencing Reform and Corrections Act of 2017, are bleak, with Attorney General Jefferson Beauregard Sessions III leading Administration opposition to the notion of front-end sentencing reform.

So, if traditional sentencing reform is dead in the water, The Hill asked last week, what’s left? Prison reform legislation that focuses on reentry programs offering prisoners the opportunity to shorten their sentences on the back end is what’s being favored now. Rather than trimming sentences from the start, these programs allow prisoners to earn credits toward early release by participating in programs intended to help reintegrate them into society and reduce their propensity to reoffend. Although they face some of the same political resistance as front-end sentencing reductions, it is significantly easier to overcome.

redemption180411The Hill argued that prison reform bills “avoid many of the usual pitfalls that sentencing reform legislation encounters because they shift the narrative from one of retribution to redemption, from past wrong to future promise. Instead of getting bogged down on issues like whom to punish and for how long, politicians are able to talk about what comes next. Leaving the nominal sentence unchanged insulates these reforms from charges that they don’t adequately reflect the egregiousness of a given crime or that they will negatively impact deterrence.”

The Las Vegas Review-Journal suggested last week that anything criminal justice advocates may get from Congress this year will be due to Kushner, whose father did a bit a decade ago for some white-collar and tax beefs. Sentencing reform failed last year despite Obama’s willingness to sign it, and after law-and-order Trump was elected, it looked like any reform would not happen.

But Kushner convinced Trump to support prison reform (not sentencing reform), changes that would “create a prison system that will rehabilitate citizens who have made mistakes, paid the price and are deserving of a second chance — which will ultimately reduce crime and save taxpayer dollars.”

sessions180322In practical terms, Kushner has helped in two ways. First, his commitment tells Hill Republicans that Trump is not likely to reverse his support for prison reform. Second, Kushner found a way to co-opt Sessions, by convincing advocates to delay their push for sentencing reform in exchange for Sessions not standing in the way of their rehabilitation goals. As a result, DOJ now “is working closely with the White House to develop legislative reforms that further the president’s goals for prison and re-entry improvements,” said spokesman Drew Hudson.

The lead horse in the prison reform race is the Prison Reform and Redemption Act, sponsored by Rep. Doug Collins, R-Georgia, that would require prisons to assess inmates’ recidivism risk, encourage drug treatment and offer incentives for inmates to participate in recidivism reduction programs.

Collins said his bill would create “a federal prison-wide system for evaluating the risk of every individual prisoner for re-offending and then offering evidence-based resources — like mental health care, vocational skills, substance abuse treatment and faith-based programs — that make them less likely to re-offend when they are released.”

Las Vegas Review-Journal, For Trump son-in-law Jared Kushner, prison reform is personal (April 7, 2018)

ABC, Inside Jared Kushner’s personal crusade to reform America’s prisons (April 8, 2018)

The Hill, Incentivized early release the right path to sentencing reform under Trump-Sessions (April 6, 2018)

– Thomas L. Root

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Last Week’s White House Meeting on Crim Justice Reform: Beginning of the End? – Update for January 19, 2018

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BRIGHT YOUNG WHIZ-KID MEETS STONE WALL… WALL WINS

wall180119Earlier this week, we reported that President Trump and Jared Kushner, his son-in-law and senior adviser, met with criminal justice reform advocates a week ago on prison reform and re-entry. We noted that “the meeting emboldened some advocates who saw it as a sign the White House is officially on board with criminal justice reform. Mark Holden, general counsel of Koch Industries, came away from the meeting with a sense of optimism, noting that President Trump was an active participant during the 45-minute session. “I saw some passion there,” Holden said, admitting that he hopes prison reform can be the start to broader federal criminal justice reform.

Now for the darker side. Vice reported this week that Kushner’s plan for a bipartisan initiative to reform the U.S. criminal justice system hit the wall (and we don’t mean that wall) prior to the meeting. Kushner’s comprehensive proposal – which included incentives to companies for hiring former felons, investing in inmates once they leave prison – most importantly focused on reforming sentencing laws, especially mandatory minimum sentencing.

sessions180119So nearly everyone was surprised that last week’s meeting omitted any talk about sentencing reform as such, especially about reforming mandatory minimums. It appears that in order to entice Attorney General Jefferson Beauregard Sessions III – who adamantly opposes reforming mandatory minimum sentencing – to attend the roundtable, Kushner had to drop any mandatory minimum discussion from the agenda. Thus, the AG has effectively blocked sentencing reform from becoming part of the White House reform agenda, Vice reports, citing statements made by three people who have attended meetings with White House advisors on the issue over the past few months.

“Sessions was very powerful in the Senate, but I think he’s actually more powerful now to oppose the bill,” Vice quotes a source familiar with White House meetings on the issue as saying. “He has an ability to keep in line several members on the conservative side, the DOJ would take a position on the bill, that would scare the Republicans.”

At the meeting, the President suggested creating more programs for job training, education, mentoring and drug addiction aimed at rehabilitation.

Ohio State University law professor Doug Berman, who writes the authoritative Sentencing Law and Policy blog, wrote earlier this week that he “remain confident that any number of bills with sentencing reform components could get a majority of votes on the floor of the House and the Senate if leadership would bring these bills up for a vote.  But I surmise AG Sessions has enough sway with leadership (especially in the Senate) to get them to prevent a vote on any bills the AG opposes.”

To be sure, some corrections reform could be a significant boost to many of the 183,470 federal prisoners in the system, reaching substantially more of than reforms in mandatory minimums, which would affect about 25% of the population. But that 25% is serving a disproportionate amount of the time handed out to inmates. What’s more, much of the talk about corrections reform is focusing on “nonviolent” offenders, no doubt because limiting any incentives to nonviolent offenders is a much easier “sell” to the public.

violence151213But violent offenders by and large get out of prison, too, and logic suggests that effective rehabilitation of someone who has in the past bludgeoned a grandmother might yield substantially more public safety benefit than rehabilitating someone who sold marijuana on the street corner.

I received a thoughtful email from a “violent offender” earlier this week. He complained that

[e]very time I read these newsletters all they talk about is reform for non-violent offenders. They say that these reforms and programs are designed to help non-violent offenders reintegrate back into society and to give them a chance to become normal citizens again. Why just non-violent-offenders? Why wouldn’t you want all offenders to get out and become normal citizens again… Just because an inmate has what is considered a violent charge does not make that person in fact violent. In most cases it just makes him/her stupid. I have been locked almost 16 years. I have never had even one write up for disciplinary action. I have taken over 60 programs while in Federal custody. But because I committed a crime with a violent nature I have been designate as a Public Safety Factor. This has excluded me from getting to go to camp, Half-way house, home confinement and any reduction in my sentence. I did wrong, really wrong and I have tried every day of my sentence to make amends and to change the person I am into a person who can be a good citizen again. The question is why have I been good? The answer is that I want to change…

heraclitus180119Heraclitus wrote that ““No man ever steps in the same river twice, for it’s not the same river and he’s not the same man.”

Heraclitus understood it. Our inmate correspondent understands it. Just about everyone gets it… except for the AG.  But that hardly matters… it seems that as long as Mr. Sessions is the Attorney General (and has President Trump’s ear, a situation that changes from day to day), sentencing reform is foundering.

Vice News, Jared Kushner’s prison reforms hit a brick wall called Jeff Sessions (Jan. 17, 2018)

Sentencing Law and Policy, Detailing how AG Sessions seeks to block sentencing reforms in White House criminal justice reform push (Jan. 17, 2018)

The Hill, Trump, Kushner meet with advocates on prison reform (Jan. 11, 2018)

–    Thomas L. Root
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Lots of Heat Generated Last Week on Sentence Reform – But is There Light? – Update for January 16, 2018

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

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TRUMP HOLDS WHITE HOUSE MEETING ON SENTENCING REFORM

justicereform161128President Trump and Jared Kushner, his son-in-law and senior adviser, met with criminal justice reform advocates last Thursday on prison reform and re-entry, as well as the successes states such as Georgia, Kansas and Kentucky have had in enacting programs aimed at reducing recidivism rates and rehabilitating inmates. The White House described the meeting as being intended to explore strategies to “equip nonviolent prisoners with the skills and opportunities needed for an honest second chance to correct their course in life and return to society as productive, law-abiding citizens.”

Trump said his administration is committed to helping former inmates become productive, law abiding members of society. “Two-thirds of the 650,000 people released from prison each year are arrested again within three years. We can help break this vicious cycle through job training, very important, job training, mentoring and drug addiction treatment… We’ll be very tough on crime, but we will provide a ladder of opportunity for the future.”

A White House official told The Hill that prison reform was discussed at the presidential retreat at Camp David a week ago weekend and that the Administration has been hosting roundtable discussions on prison reform and re-entry since last summer.

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III – like inviting the fox to a meeting on chicken coop security.

Guests at Thursday’s meeting included Matt Schlapp, board chairman of the American Conservative Union; Brooke Rollins, president of the Texas Public Policy Foundation; Republican Governors Matt Bevin (Kentucky) and Sam Brownback (Kansas); Koch Industries general counsel Mark Holden; and Shon Hopwood, a former federal inmate who is now an associate professor at Georgetown University Law Center and a member of the FAMM Board of Directors. Thursday’s discussion also included Attorney General Jefferson Beauregard Sessions III and Trump’s chief of staff, Gen. John Kelly.

The meeting emboldened some advocates who saw it as a sign the White House is officially on board with criminal justice reform. “It has long been an excuse used on the Hill that we need to see where the White House is on this issue and this is the positive signal the folks on the Hill have been waiting on,” said Holly Harris, executive director of Justice Action Network. “I don’t think there’s going to be any more justifications to hold up this legislation,” she said.

Holden came away from the meeting with a sense of optimism. The President Trump was an active participant during the 45-minute session. “I saw some passion there,” he said. “He seemed like he got the issue, understood it and connected with it.” Holden said he hopes prison reform can be the start to broader federal criminal justice reform.

Rollins said, “I really think the White House is looking at lots of different avenues forward,” from congressional action to executive orders. Sessions, who has criticized granting leniency to drug offenders and supports mandatory minimums, suggested at the meeting he might be open to compromise on ideas such as job training. “The president talking about prison reform is a good thing,” said Kevin Ring, president of FAMM.

The meeting was not without its critics. Mark Mauer, executive director of the Sentencing Project, said, “more re-entry programming, the kind Kushner is suggesting, would be welcome, but a sole focus on that initiative reveals two grievous flaws. First, the programming provisions being discussed on Capitol Hill contain no funding allocation. Apparently, there is hope that faith-based organizations will emerge to provide these services pro bono… Second, dropping the sentencing provisions of the Grassley-Durbin legislation from the Trump administration’s reform conversations guarantees that there will be no significant inroads made into reversing mass incarceration. Thousands of federal drug defendants will be sentenced to decades of incarceration and resources will be squandered that could more effectively be directed to prevention and treatment initiatives.”

trump180116Others have objected that the meeting does not include any liberal groups. However, an anonymous conservative participant told Reuters that “excluding organizations that are seen as liberal, like the ACLU or the NAACP, and leaving out sentencing reform was necessary to gain thetea leaves, I think what they’ve done is sat down with Mr. Sessions and got him to agree to part of the reforms,” said the conservative leader, who requested anonymity in order to freely discuss the issue.

Meanwhile, the American Bar Association sent a letter to Sens. Charles Grassley (R-Iowa) and Diane Feinstein (D-California), in support of the Sentencing Reform and Corrections Act of 2017. ABA President Hilarie Bass said that while the ABA was “disappointed by the inclusion of some new mandatory minimum sentencing provisions in the current draft, we believe that S. 1917 will, overall, create a more just criminal justice system than the one currently in place. Enactment will help focus prosecutorial and correctional resources on offenders who commit serious crimes that pose the greatest risk to public safety and will permit more sentencing flexibility for low-level, nonviolent offenders whose role and culpability will now receive more careful and balanced consideration by sentencing judges. It will also expand recidivism-reducing programs and juvenile justice reform to make sure that those in prison have a chance to reintegrate into society.”’

Finally, Sen. Cory Booker (D-New Jersey) and Sen. Kamala Harris (D-California) were both named to the Senate Judiciary Committee last week. Sen. Booker has sponsored criminal justice reform legislation in the past, and is a co-sponsor of SRCA17. Sen. Harris has occasionally supported criminal justice reform, such as when she joined with Sen. Rand Paul (R-Kentucky) to back bail reform.

harris180116Some question Sen. Harris’s sincerity, however. As San Francisco’s district attorney and then as California’s attorney general, Harris rarely strayed far from a punitive law-and-order mentality. Last week, Reason warned that “Criminal justice reformers shouldn’t get their hopes up that she’ll be a reliable ally. During her time as San Francisco’s district attorney, Harris oversaw the city’s mismanaged crime lab. A San Francisco superior court judge ruled that the D.A.’s office ignored demands that it take responsibility for the lab’s failings, and that it violated defendants’ rights by hiding information about a corrupt technician who had been stealing cocaine.”

The Hill, Trump, Kushner meet with advocates on prison reform (Jan. 11, 2018)

Newsweek, Trump and Kushner’s prison reform plan not expected to reduce sentences or fix prison conditions (Jan. 11, 2018)

Reason.com, Kamala Harris: No Friend to Criminal Justice Reform (Jan. 12, 2018)

– Thomas L. Root LISAStatHeader2small

It’s Official – The AG Declared to be an “Idiot” – Update for September 19, 2017

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

LISAStatHeader2smallNEWS FROM THE WHITE HOUSE

We always kind of suspected this, but it’s still nice to get confirmation.

sessions170918The New York Times reported last week that in the middle of an Oval Office “horsewhipping” of Attorney General Jefferson Beauregard Sessions III by President Trump last May, over Sessions’ recusal of himself from the Trump Russia probe, the President got a phone call informing him that Robert Mueller had been appointed to be special counsel for the investigation. After the call, Trump “lobbed a volley of insults at Mr. Sessions, telling the attorney general it was his fault they were in the current situation. Mr. Trump told Mr. Sessions that choosing him to be attorney general was one of the worst decisions he had made, called him an “idiot,” and said that he should resign.”

The Attorney General is an “idiot?” At least now if we say it, we can attribute it to the man who hired him.

justicereform161128Also from 1600 Pennsylvania Avenue, President Trump’s son-in-law and senior adviser, Jared Kushner, hosted a White House roundtable last week to gather recommendations for improving mentoring and job training in federal prisons.  

A bipartisan group of about two dozen elected officials, religious leaders and business leaders attended the first major criminal justice-related event held by the Kushner-led Office of American Innovation. “There is a lot of agreement from the left and the center and the right that once a person has committed a crime we should make sure we give them the best opportunities to try to live a productive life after serving their time,” Kushner said.

Members of Congress attending were Sen. John Cornyn, R-Texas, Sen. Sheldon Whitehouse, D-Rhode Island, Rep. Doug Collins, R-Georgia, and Rep. Sheila Jackson Lee, D-Texas. Several cabinet-level officials were there, as well as two governors — both Republicans — representing the state-level effort.

idiot170918Kushner’s interest in criminal justice policy is much different than that of Trump and Attorney General Jefferson Beauregard Sessions III, reportedly branded an “idiot”by his boss, who have called for more aggressive prosecutions of drug offenders and illegal immigrants.

The New York Times, Trump Humiliated Jeff Sessions After Mueller Appointment (Sept. 14, 2017)

Washington Post, Kushner to gather bipartisan group to come up with ideas for federal prisons (Sept. 13, 2017)

– Thomas L. Root

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