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“Pardon Me” Is a Request, Not an Apology, at the White House – Update for December 29, 2020

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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.

IT’S WHO YOU KNOW…

alice201229A week ago today, President Donald J. Trump pardoned 15 people and commuted the sentences of five more. The next day, he pardoned 26 more people and commuted three additional sentences. And sources say there are more to come…

That’s the good news for federal inmates. The bad news is this: virtually everyone receiving clemency was supported by political figures or friends of the President. Perhaps the least celebrity of the lot was Alice Johnson, who was released from a drug conspiracy sentence in 2018 after Kim Kardashian lobbied Trump.

Alice has apparently become a Trump favorite after speaking at the Republican Convention last August (after which the President raised her commutation of sentence to a full pardon). Alice is using her access to successfully recommend a number of people for clemency (and who can blame her… she’s looking out for people she did time with, something anyone who’s ever been locked up understands).

But Alice’s support of average inmates she knew while doing 20 years aside, Politico said “the raft of pre-Christmas pardons and commutations… favored the well-connected and those with A-list advocates, while appearing to shunt aside — at least for now — more than 14,000 people who have applied for clemency through a small Justice Department office that handles such requests.

who201229None of the clemency applications granted last week went through the Dept of Justice Office of Pardon Attorney. The New York Times reported that more than half of the cases granted did not meet the DOJ’s standards for consideration. “It looks as if the president is relying very heavily on recommendations from members of Congress and people he knows personally and not on the Justice Department pardon process that’s served presidents well for 150 years,” said Margaret Love, who served as pardon attorney under two presidents.

henhouse180307(Editor’s note: The DOJ pardon process has been a clattering disaster, despite what Ms. Love says, a classic illustration of the fox being placed in charge of deciding whether any chickens should be spared from being eaten. But replacing it with a process favoring only the friends [or friends of the friends] of the President is not an improvement.)

A tabulation by Harvard Law School professor Jack Goldsmith found that of Trump’s 45 pardons or commutations before last week, 88% went to people with personal ties to the president or to people who furthered his political aims. The pardons “continue Trump’s unprecedented pattern of issuing self-serving pardons and commutations that advance his personal interests, reward friends, seek retribution against enemies, or gratify political constituencies,” Goldsmith told The New York Times. “Like his past pardons, most if not all of them appear to be based on insider recommendations rather than normal Justice Department vetting process.”

The President “has largely overridden a highly bureaucratic process overseen by pardon lawyers for the Justice Department and handed considerable control to his closest White House aides, including Kushner,” Report Door said. “They, in turn, have outsourced much of the vetting process to political and personal allies, allowing private parties to play an outsize role in influencing the application of one of the most unchecked powers of the presidency.”

pardon160321Trump’s son-in-law and top adviser, Jared Kushner, has played a key role in managing the avalanche of clemency requests that have come into the White House as the administration nears its end next month, according to multiple sources, Yahoo News reported. “Everyone’s sending emails to Jared,” a source familiar with the process reportedly said. “If you want to make something happen, go to Jared.”

The source, who requested anonymity due to the sensitivity of the ongoing process, spoke with Yahoo News before Trump issued the spate of pardons and commutations. “It’s going to be a free-for-all,” the source said.

Kevin Ring, president of criminal justice reform group FAMM, told The New York Times he was optimistic that Mr. Trump would still consider average and unconnected inmates, the kind of people his group backs. He predicted that the clemencies to come over the remaining three weeks of Trump’s presidency will include “head-scratchers mixed in with the ones that look good.”

Yet despite the likelihood of clemencies to come, criminal justice activists are not encouraged by Trump’s spotty and sparse record to date. Goldsmith said the president “is stingy” with his pardon power, “even as he abuses it.”

The White House, Statement from the Press Secretary Regarding Executive Grants of Clemency (December 22, 2020)

The White House, Statement from the Press Secretary Regarding Executive Grants of Clemency (December 23, 2020)

Politico, Trump’s latest batch of pardons favors the well-connected (December 22, 2020)

The New York Times, Trump Pardons Two Russia Inquiry Figures and Blackwater Guards (December 22, 2020)

Report Door, Behind Trump Clemency, a Case Study in Special Access (December 26, 2020)

Yahoo News, Jared Kushner played a key role in White House pardon ‘free-for-all’ (December 24, 2020)

The New York Times, Outside Trump’s Inner Circle, Odds Are Long for Getting Clemency (December 28, 2020)

– Thomas L. Root

Will Inmates Get on Board the Trump Pardon Train? – Update for December 17, 2020

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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.

TRUMP REPORTEDLY MULLING PARDON FRENZY

trumptrain201218Since President Trump won the election in a landslide… er, make that “lost the election,” six weeks ago, requests for clemency have been flooding the White House from people looking to benefit from the presidential pardon power. CNN reported on Wednesday that the Administration staff have been “so inundated with requests for pardons or commutations that a spreadsheet has been created to keep track of the requests directed to Trump’s close aides.”

Trump is reportedly eager to engage on the subject – unlike his lack of interest in doing anything else, some report – and has been both reviewing case summaries  and soliciting advice from his network of associates about whom he should pardon. CNN said, “Unlike practically any other matter related to the end of his presidency, his clemency powers are a topic Trump actually seems to enjoy discussing, one person in communication with the President said, even though it amounts to another tacit reminder that his tenure at the White House is nearly over.”

Trump is reportedly considering or being asked to pardon Edward Snowden, Joe Exotic, Ross Ulbrecht, Duncan Hunter and even his own organization’s chief financial officer. The New York Times reported that Rudy Gulliani has discussed a pardon for himself with the President, a report Gulliani vehemently denies. Other reports predict pardons for Trump’s family.

pardonme190123Meanwhile, judging from my own email on the subject, large numbers of federal inmates – whose clemency requests have languished in line with the 13,000 others at the Department of Justice Pardon Attorney’s office – are sending copies of their petitions directly to the White House, in a desperate bid to jump on board the Clemency Express. If there is an Express to begin with.

Axios reported last week that President Trump isn’t just accepting pardon requests “but blindly discussing them ‘like Christmas gifts’ to people who haven’t even asked, sources with direct knowledge of the conversations” have said. Trump reportedly told “one adviser he was going to pardon ‘every person who ever talked to me,’ suggesting an even larger pardon blitz to come.”

Axios said the president “been soliciting recipients, asking friends and advisers who they think he should pardon.” White House attorneys are said to be “working through a more traditional process, even if it doesn’t cover every person Trump has discussed, a source familiar with the process said.”

“We’ve been flooded with requests,” said a senior White House official, who admitted a lot of the appeals have been nakedly political and partisan, as is expected at the end of a presidency.

90-150cm-Trump-2020-Flag-Double-Sided-Printed-Donald-Trump-Flag-Keep-America-Great-Donald-for

One Trump supporter lobbying on behalf of a prisoner said he realizes that Trump has his hands full and may not be receptive to this or other cases. “I’m a little worried that it might get crowded out,” he conceded.

The Daily Beast said, “It is unclear how much the outgoing president will end up delivering on these kinds of commutations and pardons, in large part because Trump is still consumed by pet grievances and his hopeless Rudy Giuliani-led legal effort to nullify Biden’s 2020 win.”

Walter Pavlo, writing in Forbes, put Trump’s wielding of the pardon power in perspective:

Pardons are all the rage these days but the system has been broken for years. President Trump, even if he pardons everyone in his administration, is still way behind other presidents who exercised their broad but constitutional power to pardon someone of a federal crime. Here are the facts, Trump has granted clemency/pardons to 44 people during the past four years… compare that to his predecessors;

Barack Obama: 1,927

George W. Bush:  200

Bill Clinton:  459

clemency170206Pavlo notes that “What is most interesting about Trump’s pardons/clemencies are that they are highly political and they are motivated by emotion to right something that he views as a personal wrong that has been done.”  

This suggests, sadly, that Ivan Inmate – unknown except to his family, the Bureau of Prisons and the court that sentenced him – can expect no more consideration from the White House than he’s gotten so far from the Pardon Attorney.

CNN, ‘It’s turned crazy’: Inside the scramble for Trump pardons (December 16, 2020)

Axios, Trump plots mass pardons, even to people not asking (December 8, 2020)

Daily Beast, Inside the Frantic Push to Get Trump to Pardon… Everyone (December 6, 2020)

Forbes, Trump And Pardons … Here’s A Case That Might Interest Him (December 11, 2020)

– Thomas L. Root

Clemency Stampede On the Horizon? – Update for November 30, 2020

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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.

FLYNN PARDON SETS OFF CLEMENCY SPECULATION

Just as predicted, President Trump pardoned turkeys Corn and Cob last Tuesday. But the act may have whetted the President’s appetite for something besides Big Macs, because the day after pardoning the turkey, Trump pardoned Michael T. Flynn, his first national security adviser.

innocent161024Flynn, you may recall, has been seeking to have the case against him dismissed after twice pleading guilty to lying to the FBI.  Much of the media (and opposing politicians) have responded with howls of indignation, believing that he must have pled guilty because he knew he was guilty. Those of us familiar with the federal criminal system, of course, know better: a plea of guilty is irrelevant to actual guilt: instead, it’s just a white flag waved at an enemy force of superior strength, hoping that negotiated surrender is better than being overrun and massacred.

But that’s a discussion for another day. The Flynn pardon was followed by a New York Times report that the White House is weighing a number of pardons and commutations for Trump to issue in his final weeks in office. The consideration is prompting jockeying by a range of clemency seekers and their representatives. Besides the usual cast of people connected to Trump and his campaign, several groups that have previously pushed for criminal justice reform are working with an ad hoc White House team under the direction of presidential advisor and son-in-law Jared Kushner, which has what the Times called a goal of announcing as many as hundreds of commutations for federal prisoners.

“Lists of people are being circulated,” federal post-conviction attorney Brandon Sample told The Times. In addition to a number of Trump associates who may benefit from clemency, Trump is said to be focused on ways to use clemency to further burnish his criminal justice reform credentials, which were made when he supported passage of the First Step Act. The Times said, “A blitz of late pardons or commutations for federal crimes — over which presidents have unchecked power — is seen by some criminal justice reform activists as another way to build his record on that issue.”

exotic201130Kodak Black, a rapper doing time on a § 922(g) felon-in-possession-of-a-gun conviction, publicly announced he would donate $1 million to charity if Trump granted him clemency, Another celebrity inmate,  Joseph Allen Maldonado-Passage (that’s “Joe Exotic” to you) – convicted in 2019 on two counts of murder-for-hire for plotting to kill his nemesis and Big Cat Rescue owner Carole Baskin, as well as eight counts of falsifying wildlife records and nine counts of violating the Endangered Species Act – has had representatives lobbying the White House for a pardon since last April. Trying to beat a 22-year sentence, Joe reportedly had his people stay in a Trump hotel, dropping $10,000 in an attempt to get the President’s attention. A group of celebrities, Republican officials and civil rights advocates sent a letter to President Trump last Wednesday, urging him to pardon or commute the sentences of people in federal prison for nonviolent federal marijuana offenses.

The New York Post said last week that the President’s “allies see the final two-month stretch of Trump’s term as an opportunity to cement his first-term legacy before handing over the reins to Biden, who authored some of the most punitive drug laws.”

Physical lists of convicts seeking commutations and pardons have swirled in the West Wing since June 2018, the Post said, when Trump freed Alice Johnson from a federal drug conspiracy sentence at the request of Kim Kardashian. Johnson spoke at this year’s Republican National Convention and traveled with Trump to the first presidential debate.

crazynumbers200519Trump often speaks proudly of freeing Johnson and turned to her for recommendations. During this year’s campaign, Trump pledged minority voters a new clemency commission if he won re-election. Yet, with over 13,000 clemency applications on file, Trump has used his clemency power less often than any president in modern history, according to data from the Dept of Justice. Trump’s sparse use of pardons, commutations and other forms of official leniency stands in sharp contrast to his predecessor, Barack Obama, who used the clemency power more frequently than any chief executive since Harry Truman.

As of Nov. 23, Trump had granted clemency 44 times, including 28 pardons and 16 commutations. That’s the lowest total of any president since at William McKinley, who was elected in 1897. Obama granted clemency 1,927 times during his eight-year tenure, including 212 pardons and 1,715 commutations. The only modern president who granted clemency almost as infrequently as Trump is George H.W. Bush, who granted 77 pardons and commutations in his single term.

Politico, Trump pardons Corn the turkey as a finishing White House act (November 24, 2020)

The New York Times, Trump’s Pardon of Flynn Signals Prospect of a Wave in His Final Weeks in Office (November 25, 2020)

Marijuana Moment, Republican Lawmakers And Celebrities Push Trump To Free Marijuana Prisoners Before Leaving Office
(November 25, 2020)

New York Post, Turkeys, Corn and Cob, expected to be first in slew of final Trump pardons (November 24, 2020)

Pew Research Center, So far, Trump has granted clemency less frequently than any president in modern history (November 24, 2020)

– Thomas L. Root

Turkey Gobbles Up Trump’s Last Pardon? – Update for November 25, 2020

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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.

TRUMP ISSUED NEW PARDON YESTERDAY… OF A TURKEY

Thanksgiving week is the traditional time for the President of the United States to “pardon” a turkey or two… and this week was no exception. Yesterday, President Trump – absent any appreciation for irony of having ordered five executions before he leaves office in two months – pardoned turkeys Corn and Cob. “We hope — and we know it’s going to happen — that Corn and Cob have a very long, happy and memorable life,” Trump said.

pardonturkey201125

Politico noted that “turkeys pardoned at the White House are bred for slaughter and are often too unhealthy to support long lifespans. Most die a few months after getting pardoned.” They will still outlive five federal inmates, including one woman, scheduled to be executed by lethal injection at the US Penitentiary in Terre Haute over the next 60 days. It is irregular for an administration to execute prisoners during its lame-duck period, rather than to let the incoming administration make its own decisions on the matter.

The Presidential pardon-fest every Thanksgiving Week has its owen rituals. “The turkeys will be given silly names (past recipients have included birds named Mac and Cheese), some children and White House staffers will look on, and there will be forced jokes and stiff laughter,” law professor and pardon expert Mark Osler complained last year.

We still get requests from people on where to find clemency applications and questions about how to write them. To be blunt, pardon and commutation petitions make sense only if an inmate has exhausted all other avenues for relief and has plenty of extra postage to waste.

That sentiment is shared by Osler and New York University law professor Rachel Barkow, a former Sentencing Commission member. Last week, they wrote about how, for all of the talk Trump’s 44 commutations issued in the past four years have caused, he “has exercised this presidential power rarely.” All but five of his grants were to people connected to him politically or championed by celebrities. Indeed, Trump’s early grant of a pardon to Arizona sheriff Joe Arpaio energized Trump’s political opponents in Arizona and may have cost him enough voters to lose the state.

presidential_pardon_thanksgiving_tile_coasterTrump used a Super Bowl ad to highlight his grant of clemency to Alice Marie Johnson, whose case was pushed on him by Kim Kardashian. Earlier this year, he fully pardoned her — and she was a featured speaker at the Republican National Convention. Barkow and Osler wrote, “Treating clemency as made-for-TV fodder, and plucking out a few cases that the campaign hoped had compelling narratives, is disappointing. More than 13,000 petitions are moldering in the bureaucratic maze of the clemency process, even as covid-19 ravages U.S. prison populations.”

The authors worry that “people will focus on Trump’s inappropriate grants and conclude that the clemency power needs to be limited — instead of focusing on the many people still waiting for a decision. This raises two issues: Any legislation to limit the clemency power is likely to be found unconstitutional. This approach also gets the problem backward: Clemency must be expanded, not limited, because there are so many people serving disproportionately long federal sentences who have no hope for relief other than presidential clemency.”

clemency170206Biden’s major competitors in the primaries all endorsed the idea of taking clemency out of the hopelessly conflicted Justice Department and establishing a bipartisan board. That proposal was included in the Democratic Party platform. It must be implemented — and soon. The overstuffed clemency pipeline is about to burst.”

Last week, the Prison Policy Initiative urged President-elect Biden to “use the president’s clemency power to release people convicted of nonviolent drug crimes. A President Biden,” the Initiative wrote, “willing to use clemency in a broad, sweeping manner could significantly reduce the federal prison population — without needing to consult Congress. But if President-elect Biden spends too much time reviewing clemency applications to avoid all possible risk, it’s unlikely that he will make a big impact.”

Politico, Trump pardons Corn the turkey as a finishing White House act (November 25)

Washington Post, Trump abused the clemency power. Will Biden reform it? (November 16)

Prison Policy Initiative, The promise — and peril — of Biden’s criminal justice reform platform (November 13)

– Thomas L. Root

Difference Between the President and a Goldfish – Update for July 30, 2020

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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.

Today, it’s pretty much just comment.

LIST OF ALL THE PEOPLE GETTING CLEMENCY FROM TRUMP DURING COVID-19

stone2007311.  Roger Stone.
2.  Roger Stone.
3.  Roger Stone.
4.  Roger Stone.
5. Roger Stone.

Did I forget anyone?

As Trump enters the final six months of his first term (and only term, if the combined polls and mood of the electorate is any indication), you can add clemency to the list of Trump accomplishments, along with the border wall, balancing the budget and taking on China. Remember the 3,000 names? The NFL players being asked to submit clemency candidates? The elderly nonviolent prisoners in risk of COVID-19? The turkey? (Not the last one – the turkey got pardoned).

Maybe the President simply lacks a sufficient attention span to get anything done.  Perhaps we should elect a goldfish.

goldfish200731Ohio State law professor Doug Berman lamented in his Sentencing Law and Policy blog last week that “I am not really surprised that Prez Trump has entirely failed to deliver on his promise back in March to look at freeing elderly “totally nonviolent” offenders from federal prisons amid the pandemic. But I figure now is as good a time as any to highlight again that Prez Trump could and should, via just a stroke of a pen, bring clemency relief to the many, many federal prisoners who, like Roger Stone, are older, medically vulnerable and present no clear risk to public safety.”

turkey181128I was pretty tough on President Obama’s chaotic clemency initiative. In retrospect, I should have at least given him credit for trying – however imperfectly – to address the problem. Our incumbent, by contrast, tantalizes with vague promises (“we’re looking at it”) but never delivers.

Delivers? Who am I kidding? He doesn’t know from one minute to the next whether to embrace his limited role in pushing the First Step Act or to rue having ever supporting it. Maybe we’re the fools for ever believing he meant what he said.

Sentencing Law and Policy, A midsummer reminder of all persons that Prez Trump has granted clemency to during the COVID-19 pandemic (July 22)

– Thomas L. Root

Clemency: Getting By With A Little Help From My Friends – Update for February 27, 2020

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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.

IT’S WHO YOU KNOW…

obtaining-clemencyPresident Trump granted clemency to 11 people last week, including several big names such as Michael Milken and Bernard Kerik (pardons) and Rod Blagojevich (commutation), but also three current female Bureau of Prisons inmates. The media were obsessed with “political prisoner” Blago, but among BOP inmates, attention was focused on the three ordinary people were included on the list.

The women, two drug defendants and one serving a 35-year sentence for healthcare fraud, may have been ordinary inmates, but how they made Trump’s list proves once again that it’s who you know that counts.

(A pardon is complete exoneration from the conviction, while a commutation leaves the conviction in place but waives some or all of the remaining sentence.  “Clemency” is the overarching term for executive action to forgive by pardon or release through commutation).

Trump commuted Alice Marie Johnson’s life sentence in 2018 at the urging of reality TV star Kim Kardashian. Trump’s reelection campaign featured Johnson’s story in a recent Super Bowl ad. Johnson told the AP that when Trump had been looking specifically for female candidates, and asked her for a list of other women who deserved clemency, she gave him the names of her friends.

clemencybacklog190904Amy Povah, founder of  clemency group Clemency for All Nonviolent Drug Offenders Foundation (CAN-DO Foundation), told The New York Times that she and other advocates submitted a list of about a dozen meritorious female offenders directly to the White House late last year. “When it boiled down to only three, it’s not surprising that the White House put value on the ones Alice served time with and knew their character,” Povah said. “You know who those diamonds are in there who are so deserving, and you know who the people are that are still engaging in shenanigans.”

While 14,000 clemency petitions sit unaddressed at the Justice Dept’s Office of Pardon Attorney, Trump continues to focus on clemency for people with connections. “There is now no longer any pretense of regularity,” Margaret Love, who served as pardon attorney under President Clinton, told The New York Times. “The president seems proud to declare that he makes his own decisions without relying on any official source of advice, but acts on the recommendation of friends, colleagues and political allies.”

Holly Harris, president of the criminal justice group Justice Action Network, applauded Trump “for taking these steps,” but told the Associated Press she hoped to see him use his power to help “any of the thousands of deserving individuals who are neither rich, nor famous, nor connected” and “every bit as deserving of a second chance.”

The Washington Post reported last week the White House is taking more control over clemency, with Trump aiming to limit DOJ’s role in the process as he weighs a flurry of additional clemency actions. The Post said that an informal task force of at least six people, has been meeting since late last year to discuss a revamped pardon system running through the White House. Senior Advisor Jared Kushner, Trump’s son-in-law, is taking a leading role in the new clemency initiative and has supported the idea of putting the White House more directly in control of the process, officials said.

clemencyjack161229Pam Bondi, a former Florida attorney general who served on Trump’s impeachment defense team, is also playing a significant role, vetting applications for clemency recipients. Kushner has personally reviewed applications with White House lawyers before presenting them to Trump for final approval, according to two senior administration officials.

Trump, who prefers granting clemency to people with compelling personal stories or lengthy sentences, is inclined to grant more clemency before facing voters in November. “He likes doing them,” the official said.

Washington Post, White House assembles team of advisers to guide clemency process as Trump considers more pardons (Feb. 19)

AP, President Trump goes on clemency spree, and the list is long (Feb. 8)

The New York Times, The 11 Criminals Granted Clemency by Trump Had One Thing in Common: Connections (Feb. 19)

The Norwalk Hour, Trump freed Alice Johnson in 2018. Tuesday, he freed three of her friends (Feb. 19)

– Thomas L. Root

DOJ Works to Undermine Fair Sentencing Act in Name of ‘Fairness’ – Update for November 12, 2019

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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.

THIS COMES AS NO SURPRISE

strict191112The Department of Justice is interpreting the First Step Act in a way that keeps more inmates serving crack sentences behind bars longer, even as President Trump touts his administration’s role in passage of First Step, the law that made crack-cocaine sentence relief available to pre-Fair Sentencing Act defendants.

The Washington Post report last week confirmed what most people already know (and what Reuters reported several months ago), that DOJ is arguing that a defendant’s sentence length, when resentenced under the Fair Sentencing Act, should be based on the amount of crack cocaine that his or her Presentence Report found the defendant actually possessed or trafficked, rather than the amount stated in the indictment and which the jury found or the defendant pled. The Post reported that federal prosecutors have made the argument in hundreds of cases.

The distinction is crucial. The amount of crack specified in the indictment must be proven by the government to a jury. The presentence report, on the other hand, is a loosey-goosey collection of the prosecution’s version of the offense and all of the collected but unsubstantiated law enforcement gossip about the defendant that makes him or her look even worse than reality does. The standard of proof is low, the procedures amorphous, and the judge all too willing to not decide evidentiary disputes because they simply do not matter to the court in the sentencing process.

looseygoosey191112As a result, while a defendant may have been found guilty of the offense in the indictment, for instance, distribution of more than 50 grams of crack, the presentence report may cite “reliable sources” who say the defendant possessed maybe a gram a week for two years. The presentence report does some simple addition, and a total of 730 grams results.

The Post said DOJ was even seeking to reincarcerate some people already released under the retroactive FSA. One targeted former inmate was Gregory Allen, who appeared at a White House event in April to celebrate passage of the law. President Trump even called Greg to the microphone.

Before the White House event, prosecutors had lost their bid to keep Allen behind bars. Even as the President asked Greg to speak, the government was appealing its loss. DOJ dropped its appeal about two weeks after Greg’s appearance.

A DOJ spokesman defended the department’s First Step interpretation in an interview with the Post. He said DOJ’s position was justified because prosecutors in years past didn’t need to prove large amounts of drugs to obtain long prison sentences. Under today’s sentencing regime, prosecutors would likely charge the offenders with having larger drug quantities, DOJ hypothesizes. “The government’s position is that the text of the statute requires courts to look at the quantity of crack that was part of the actual crime,” the spokesman argued. “This is a fairness issue.”

Judges have rejected the DOJ interpretation in a majority of cases reviewed by the Post. But at least five federal judges have agreed with the DOJ interpretation, and others have withheld judgment until appeals courts decide the issue.

In the weeks after the bill became law, many AUSAs allowed inmate petitions for early release to go unchallenged. Then, at the direction of the DOJ, prosecutors began to reverse course, court records show. In March, AUSA Jennifer Bockhorst of ND WVa asked federal judges to place a hold on more than two dozen applications for relief, some of which she had not previously opposed. She wrote that she expected to oppose at least some of those applications based on new guidance from the Justice Department.

Some of the people who helped write the legislation also disagree, including Brett Tolman, a former US attorney in Utah. He notes that the First Step text does not explicitly instruct courts to consider the actual amount of crack an offender allegedly had. “This is not a faithful implementation of this part of the First Step Act,” Tolman told the Post. “At some point, they figured out a way to come back and argue that it wouldn’t apply to as many people.”

Rep. Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, accused DOJ at a congressional hearing last month of “trying to sabotage” the law by interpreting it in this way.

Attorney General Barr has reportedly worried that early releases of inmates under the law will increase crime. Anonymous officials told the Post that Barr is concerned the administration will be blamed if crime increases.

A great example of the kind of blame the AG hoped to duck is illustrated by the person of Rhode Island defendant Joel Francisco, released earlier under First Step this year after 14 years into a life sentence for selling crack. We previously reported he was on the run after being charged with a murder. He has since been arrested, and last week, CNN made his crime a national story.

Also last week, a routine resentencing in Connecticut made national headlines, when Joel Soto’s 17-year sentence was cut to time served, under the lurid headine, “‘Joe Crack’ asks for reduced sentence in drug case.”

“More than 4,700 inmates have been released from prison under the law since its signing late last year,” CNN reported, “and federal officials believe Francisco is the first among them to be accused of murder. While an outlier, his case is raising questions and resurfacing concerns from detractors of the legislation.”

“cotton190502This case is upsetting but it’s not a surprise,” said Sen. Tom Cotton (R-Arkansas), one of First Step’s biggest critics on Capitol Hill. “Letting violent felons out of prison early as the First Step Act did leads to more crime and more victims.”

Other lawmakers who supported the bill called the incident a tragedy, but hoped that it wouldn’t stand in the way of more progress. “If you’re looking at reforming the criminal justice system you cannot pick an individual criminal act to then raise the question as to whether or not you do reforms to the system,” said Rep. Karen Bass (D-California), a member of the House Judiciary Committee and the chair of the Congressional Black Caucus.

None of this should surprise anyone. Despite the First Step Act rhetoric, The New York Times reported last week that despite bipartisan calls to treat drug addiction as a public health issue rather than as a crime — and despite the legalization of marijuana in more states — arrests for drugs increased again last year. Such arrests have increased 15% since Trump took office.

Washington Post, Crack cocaine quantities at issue as DOJ opposes some early releases under First Step Act (Nov. 7)

ABA Journal, Crack cocaine quantities at issue as DOJ opposes some early releases under First Step Act (Nov. 8)

CNN, He was one of the first prisoners released under Trump’s criminal justice reform law. Now he’s accused of murder (Nov. 9)

Newport News, Virginia, Daily Press, ‘Joe Crack’ asks for reduced sentence in drug case (Nov. 2)

The New York Times, Is the ‘War on Drugs’ Over? Arrest Statistics Say No (Nov. 5)

– Thomas L. Root

First Step Touted While Good-Time Adjustments Languish – Update for October 29, 2019

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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.

FIRST STEP: TRUMP FIDDLES WHILE BOP BURNS

angrytrump191003President Donald Trump touted the First Step Act in a speech last Friday at the 2019 Second Step Presidential Justice Forum in South Carolina, talking about how the Act helped African Americans by releasing thousands of non-violent offenders to gain early release from federal prison.

“In America, you’re innocent until proven guilty and we don’t have investigations in search of that crime,” he said while accepting an award at historically black Benedict College for his role in passage of First Step.  “Justice, fairness and due process are core tenets of our democracy. These are timeless principles I will faithfully uphold as president.”

Much of what was said at the conference was overshadowed by Democratic presidential hopeful Sen. Kamala Harris (D-California), who refused to attend the conference because Trump was included on the list of speakers. Harris, whose record as a take-no-prisoners prosecutor has caused some to be skeptical of her 11th-hour conversion to the cause of criminal justice, flip-flopped on the boycott threat and agreed to show after all, after winning a window-dressing removal of one of the sponsors for its sin of giving an award to Trump.

During the hour-long address, Trump called on several people who had been released from prison under the First Step Act to the stage to offer testimonials.

Many of Trump’s Democratic presidential rivals spoke over the weekend, and took turns slamming Trump. Sen. Cory Booker, D-New Jersey, argued, “The fact of the matter is Donald Trump was given an award for the 10 seconds it took him to sign a bill into law that contradicts every one of his instincts and history of promoting racist criminal justice policies.”

I’m no Trump fan, but Sen. Booker needs to be fact-checked on this assertion.

All was not bliss for implementation of First Step last week. Filter magazine, launched in September 2018 to advocate for rational and compassionate approaches to drug use, drug policy and human rights, blasted the Bureau of Prisons for its “incompetent” application of the star-crossed additional 7 days-a-year good time.

Citing long-time prisoners who would be camp-eligible if they were granted the additional good time to which they are entitled, Filter said that due to “a potential failure, attributable to administrative inadequacy, to apply a much-anticipated reform to… federal prisoners until over a year after it was supposed to be implemented in July 2019.

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Filter reported that as of September 16th, the Designation and Sentence Computation Center “had made First Step Act updates only for incarcerated people with previously projected release dates that fell before October 2020.” The magazine quoted a response to an August 22 administrative remedy request for recalculation filed by an anonymous inmate, in which the BOP gave no clear date for when the inmate could expect an updated GCT calculation, only explaining their prioritization of projected release dates and stating that “there may be some variance in the speed with each DSCC team completes the recalculations for the inmates assigned to them.” The BOP said “this process may take up to a year.”

A BOP official told Filter that implementing the change in good time is “complex” due to the “various federal statutes and BOP policy” with which recalculations must be “carried out in accordance.”

The BOP’s information technology systems are “dinosaurs,” Kara Gotsch, the director of strategic initiatives for The Sentencing Project, told Filter, citing explanations she’s heard from BOP staffers. Gotsch said that even this description “is generous,” adding that “it’s like they don’t have the right kind of computer” to perform the recalculations in time.

The BOP denied this claim, calling Gotsch’s explanation “speculation based on hearsay,” and added that “the computers and technology utilized by our staff are not outdated and incompetent. They use commercially-available and fully-supported technology.

Speculation it may be, but the BOP has known since last Christmas it would have to recalculate inmate good time. It’s failure to get the process in place, which would require  the use of a simple formula that any high school math geek could write with a Texas Instruments nine-buck calculator, is equally explainable as institutional arrogance or institutional incompetence.

The Columbia, South Carolina, State, Trump’s Columbia visit wraps with praise of HBCUs and reform, peaceful demonstrations (Oct. 26)

Filter, The Consequences of an Incompetent First Step Act Rollout (Oct. 15)

– Thomas L. Root

Dept. of Low Expectations – Update for October 8, 2019

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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.

ONE BILL GETS REPORTED FROM ONE COMMITTEE, AND EVERYONE THINKS HE’S GOING HOME

release191008A few readers complained last week that I had not reported the House Judiciary Committee’s vote that sent H.R. 4018 to the House floor. H.R. 4018 is a bill that would modify the Elderly Offender Home Detention Program (34 USC § 60541(g)(5)) to let those over-60 year old prisoners qualify for home detention after doing two-thirds of their net sentence rather than their gross sentence.

Currently, to qualify for the First Step Act’s expanded EOHD program, you must be 60 years old and have served two-thirds of your whole sentence. In other words, if you were sentenced to 100 months, you have to serve 67 months before you go home on home detention, and then you stay in detention until you reach 85 months, when you are released.

H.R. 4018, a single-sponsor bill, would qualify a 60-year old prisoner after he or she did two thirds of the net sentence. If you were sentenced to 100 months, you get out after 85 months with good time. H.R. 4018 would put you in the EOHD with two thirds of 85 months. Thus, you would go home after 57 months, and stay on home detention until 85 months.

longodds191008The House Judiciary Committee reported the bill favorably on Sept. 10 by a 28-8 vote. Nevertheless, Skopos Labs – which tracks federal legislation – gives the bill a 3% chance of becoming law. The legislation, with only 10 House co-sponsors, had little chance of being brought up for a Senate vote even before the impeachment talk ramped up. Recall how the First Step Act, with the House passing a very pro-prisoner version, barely made it to the Senate floor. That bill, with over 40 Senate co-sponsors and President Trump lobbying for passage, finally passed as a well watered-down measure in the closing hours of the Senate.

I did not mention H.R. 4018 for the same reason I did not mention the proposed Prohibiting Punishment of Acquitted Conduct Act of 2019, introduced Sept. 26 by Senators Chuck Grassley (R-Iowa) and Dick Durbin (D-Illinois). The bill would prohibit federal courts from considering acquitted conduct at sentencing, defining ‘acquitted conduct’ to include “acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.”

Grassley, who is Senate president pro tempore, said, “If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment.” Currently, the Guidelines are written to run up the sentence with acquitted conduct, and judges do it all the time.

mcconnell180219This bill, S.2566, already has five co-sponsors, two Democrats and three Republicans. Grassley has a lot of horsepower in the Senate leadership. Yet, like H.R. 4018, it has no more than a ghost of a chance of passage. Senate Majority Leader Mitch McConnell (R-Kentucky), controls what bills reach the Senate floor for a vote. He has been an opponent of any prison reform, and only brought First Step to a vote because of White House pressure. Now, with President Trump soured on criminal justice legislation and preoccupied with re-election and impeachment, there won’t be any White House support for bringing any criminal justice measure to a Senate vote.

Stories like this don’t help: Last Friday, the Providence, Rhode Island, Journal reported that Joel Francisco, released from a life sentence for crack because of the First Step Act, is wanted for stabbing a man to death in a hookah bar. Remember Wendell Callahan? The Sen. Tom Cottons (R-Arkansas) of the world are always gleeful to have a poster child against sentencing reform like this fall into their laps.

H.R.4018 – To provide that the amount of time that an elderly offender must serve before being eligible for placement in home detention is to be reduced by the amount of good time credits earned by the prisoner (reported favorably by House Judiciary Committee, Sept. 10)

S. 2566: A bill to amend section 3661 of title 18, United States Code, to prohibit the consideration of acquitted conduct at sentencing (Introduced Sept. 26)

Providence, Rhode Island, Journal, He was released early from prison in February. Now he’s wanted for a murder on Federal Hill (Oct. 4)

– Thomas L. Root

Trump’s Not Feeling the Love from First Step Act – Update for October 3, 2019

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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.

TRUMP SOUR ON CRIMINAL JUSTICE REFORM

When President Trump started planning his reelection last spring, White House senior adviser Jared Kushner told his father-in-law he should highlight last year’s passage of the First Step Act. Kushner reiterated the positive selling points of that bill, but Trump wasn’t interested. He complained and told Kushner he didn’t think his core voters would care much about a bipartisan deal.

angrytrump191003Trump “is telling people he’s mad” at how criminal justice reform has panned out, according to a person close to the president. “He’s saying that he’s furious at Jared because Jared is telling him he’s going to get all these votes of all these felons.”

Politico reported that unidentified White House officials congressional aides and friends of the president, say that Trump no longer sees criminal justice reform as a résumé booster heading into 2020.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog last Tuesday that Trump’s change of heart “portends some dark clouds for federal criminal justice reform efforts in the months and perhaps years ahead.” But one White House official said, “It would be difficult to say it’s a change of heart. I don’t think his heart was ever really in it.”

Politico, Trump snubs Jared Kushner’s signature accomplishment (Sept. 24)

Sentencing Law and Policy, Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement (Sept 24)

– Thomas L. Root