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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.

screwup191028

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

Are Inmates Soon to be Sexy? – Update for August 9, 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.

WILL 2020 BE “THE YEAR OF THE PRISONER?”

thumbsup190809Surprisingly enough, 2020 is looking to be the year of the prisoner. Democratic candidates for president are falling all over themselves making proposals for federal sentencing reform, President Trump is claiming that he is the criminal justice reform leader, and – perhaps more important – the news media are questioning prison and sentencing reform like never before.

Criminal justice is expected to be a showcase in Trump’s presidential platform, passage of the First Step Act, hailed by the administration as a legislative victory that, in part, rolls back harsh drug war sentencing from the 1980s and 1990s.

Among the herd of Democrats running for president, Sen. Cory Booker (D-New Jersey) stands out, promising to increase the use of clemency and to seek a law requiring judges to consider early release for aging inmates who’ve served at least a decade in the federal prison system.

Last week, CBS News devoted a long interview to New York University law professor and former U.S. Sentencing Commission member Rachel Barkow, who just wrote a book called Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Covering everything from sentencing reform to her concerns about enough programming to take advantage of the First Step Act, the interview set the tone for the debate.

maxed190809For example, Barkow compared long sentences to “your credit card bill. If you’re in financial difficulty, and you can’t pay your bills, you put them all on your credit card… The next month your credit card bill comes and there’s interest. It gets worse and worse and the longer you don’t pay, the worse things get. Long sentences are like that. While you’re incarcerating people, not only are you not making them better, you’re often putting them in environments where they are likely to become worse.”

The website “Governing,” intended for government officials, ran a piece on prison healthcare last week, noting that “prisoners make up 1 percent of the population, yet they account for 35 percent of the nation’s total cases of hepatitis C. ‘They are the most expensive segment of the population,” says Marc Stern, a public health professor at the University of Washington, ‘and they are the sickest.’ For all the care that inmates need, they’re unlikely to receive adequate medical attention.”

Fortune, Criminal Justice Reform Advocates See Prime Opportunity in 2020 Election (Aug. 2, 2019)

NJ.com, Booker’s right: Paying $60,000 a year to jail one geriatric inmate deserves ‘a second look’ (July 28, 2019)

CBS News, What’s wrong with America’s criminal justice system? 6 questions for an expert (Aug. 2, 2019)

Governing.com, America Has a Health-Care Crisis — in Prisons (Aug. 1, 2019)

– Thomas L. Root

Clemency in Dibs and Drabs – Update for August 6, 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 GRANTS CLEMENCY TO A FEW MORE… TOO FEW MORE

President Trump last week commuted two sentences and granted pardons to five others who previously pleaded guilty to nonviolent crimes but have completed their sentences.

obtaining-clemencyTrump commuted the sentence of Ronen Nahmani, who was serving a 20-year sentence for conspiracy to distribute the synthetic drug “spice.” The White House said Ronen had no prior criminal history and has five young children at home, the oldest is 13 years old, and a wife battling terminal cancer. Trump noted his case for an early release received bipartisan support from legislators.

Trump also commuted the sentence of Ted Suhl, an Arkansas man convicted in 2016 on four counts of bribery after prosecutors said he took part in a scheme to increase Medicaid payments to his faith-based behavioral health-care center for juveniles company. Suhl lost at the 8th Circuit, and was preparing to file in the Supreme Court. The White House noted his “spotless disciplinary record” over three years in prison and highlighted support for the commutation from former Gov. Mike Huckabee and former U.S. Attorney Bud Cummins.

Trump pardoned five other people who had already served their sentences, for offenses ranging from transferred government property illegally to transporting marijuana, to running an illegal gambling parlor in 1987 and stealing guns from luggage.

With Monday’s announcements, Trump has now pardoned or reduced the sentences of 19 individuals since taking office. Ohio State University law professor Douglas Berman noted in his Sentencing Law and Policy blog last Wednesday that with over 177,000 people in federal prison, “six commutations is, by all sensible measures, a very small number. The granting of only six commutations seems especially disappointing given that last year Prez Trump was talking about considering clemency requests that including “3,000 names, many of those names have been treated unfairly, … [and] in some cases, their sentences are far too long.”

clemency170206Trump’s six clemency grants in his first term beats the first term records of every president since Reagan. The record is still held by Nixon, who granted 48 clemencies in his first term. Berman noted “that so very few federal prisoners have recently received clemency while the federal prison population has swelled makes these numbers even more depressing. The also look terrible if we look back further historically, as almost every other 20th Century US President (except for Dwight Eisenhower) granted a hundred or more commutations while in office (with Woodrow Wilson granting 341 in 1920 alone).”

The Hill, Trump announces seven pardons or commutations (July 29)

Wall Street Journal, Trump Commutes Prison Sentences in Medicaid Bribery, Drug Cases (July 29)

Sentencing Law and Policy, A (depressing) first-term scorecard for recent presidents (July 30)

– Thomas L. Root

Will President Circumvent DOJ With White House Pardon Attorney? – Update for June 13, 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.

RUMOR FLOATED THAT TRUMP WILL APPOINT HIS OWN NON-DOJ PARDON ATTORNEY

The Washington Examiner reported last week that “worried clemency advocates are urging President Trump to select his own pardon attorney as the Justice Department reviews a stack of resumes collected on short notice” to fill its own Pardon Attorney slot.

pardonme190123There hasn’t been a politically appointed Pardon Attorney in over 40 years, but advocates say it could enhance the position’s stature and ensuring that Trump’s interest in giving second chances extends beyond isolated cases. “I think it makes a lot of sense to have the pardon attorney job be a political one,” said Margaret Love, U.S. pardon attorney from 1990 to 1997.

The job posting was open for just a month, closing May 10, suggesting that DOJ may already have a candidate in mind, probably another career prosecutor. “I wonder if they are going to make Trump aware of [the search]. Shouldn’t the president have some say over who his pardon attorney is?” said Sam Morison, who worked for 13 years as a staff attorney in the DOJ’s Office of the Pardon Attorney. “If they are just going to the U.S. attorneys’ offices, they are going to get someone who’s a company man, and that’s the idea,” he said.

Rosalind Sargent-Burns, a long-time Office of the Pardon Attorney staffer, was named acting Pardon Attorney on May 28. She has never been a line prosecutor, to her credit, and has held various  positions in the OPA over the past decade, including Designated Agency Ethics Officer, Team Lead, Senior Attorney Advisor over the pardon portfolio, Acting Deputy Pardon Attorney, and Deputy Pardon Attorney.

yesman190613Morison wants Trump to pick his own pardon attorney and move the office into the White House, citing institutional weight against clemency in cases DOJ itself prosecuted. He is hopeful based on President Trump’s public remarks, including that there are “a lot of people” in prison for “no reason.” “Trump gets a lot of criticism, but I think it’s refreshing for him to admit something everyone knows to be truth: The Justice Department is not perfect, and prosecutions are not perfect. Most presidents aren’t actually willing to acknowledge that,” Morison said. “I think Trump does not trust DOJ, and in this particular instance he’s probably correct.”

Heritage Foundation scholar Paul Larkin, who wants Trump to create a White House Office of Executive Clemency, participated in a private group discussion on clemency reform two months ago. CAN-DO founder Amy Povah also wants the pardon attorney separated from DOJ. “We are relying on President Trump to finally be the hero we’ve been waiting for because he is an outsider who doesn’t worry about shaking up the status quo,” she said.

Trump has now fallen behind President Obama on clemency, having granted only 12 people pardons or commutations, nearly all at the urging of politicians or celebrities. At this point in his presidency, Obama had granted clemency to 17 people.

Washington Examiner, Trump urged to pick his own pardon attorney (June 6)

– Thomas L. Root

Fake News on Second Step Act – Update for May 2, 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.

JUST FOOLIN’

trumpaprilfool190502President Trump told an April Fools’ Day gathering the White House to celebrate the First Step Act that “I’m announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records, and that’s what we’re starting right away.”

Um… not really.

The Washington Examiner last week quoted White House sources as saying that “there’s definitely not a Second Step Act.” In fact, it appears that Trump wandered off script from the prepared speech, which did not mention a Second Step at all.

Instead, the source is quoted as saying, the White House is focused instead on implementing the First Step Act in a way that denies ammunition to opponents such as uber-critic Sen. Tom Cotton, R-Ark.

cotton190502So far, First Step has not been a roaring success. A drafting error stalled additional “good time” credit for 150,000 federal inmates, creating a likely wave of about 4,000 releases around July. White House officials considered options to move forward the date but ultimately did not. “There’s a lot of concern that they have to get this right. Folks like Tom Cotton are just waiting for someone to do something stupid,” said the source who has worked on White House efforts. “People are going to want to wait and see how this [First Step Act] works out.”

Meanwhile, a broad coalition of groups is pushing for repeal of the federal ban on Pell Grants for incarcerated students, as talks heat up over reauthorization of the Higher Education Act. Those organizations include civil rights groups, religious colleges and conservative organizations, argue that college access for students behind bars is an issue of equity for postsecondary education and also the logical extension of efforts to end mass incarceration.

Since 1994, federal law has prohibited prisoners from receiving Pell Grants, the primary form of need-based student aid. The Trump administration, however, has named financial aid for incarcerated students as a top priority for a new higher ed law.

Washington Examiner, Trump declared he was working on a Second Step Act. The proposal doesn’t exist (Apr. 26)

Inside Higher Ed, The Case for Pell in Prisons (Apr. 22)

– Thomas L. Root

After Partying Last Week, First Step Finally Gets Down to Business – Update for April 9, 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 CELEBRATED, BUT WORRIES OVER IMPLEMENTATION REMAIN

Amid questions by some critics about the Administration’s support for the First Step Act, the Dept. of Justice’s National Institute of Justice (NIJ) yesterday announced the selection of the Hudson Institute to host the Independent Review Committee mandated by the Act to develop and implement risk and needs assessment tools and evidence-based recidivism reduction programs for the Bureau of Prisons.

firststepB180814“The Department of Justice is committed to implementing the First Step Act,” a DOJ press release quoted Attorney General William Barr as saying. “The Independent Review Committee plays an important role in that effort by assisting in the development of a new risk and needs assessment system and improvements to our recidivism reduction programming.”

NIJ also announced that it is contracting with outside researchers, including Grant Duwe, Ph.D., Zachary Hamilton Ph.D., and Angela Hawken Ph.D., for  consultation on the DOJ’s development of the risk and needs assessment system under the Act.  Dr. Duwe is the Director of Research for the Minnesota Department of Corrections, and an expert on the development of recidivism risk assessment systems. Dr. Hamilton is an Associate Professor of Criminal Justice and Criminology and the Director of the Washington State Institute for Criminal Justice, and focuses on treatment matching through risk and needs assessment systems. Dr. Hawken is a Professor of Public Policy at the New York University Marron Institute, and is the founder and director of New York University’s Litmus/BetaGov program, which assists in the development and validation of data-driven policies.

The announcement comes on the heels of last week’s White House  “First Step Act Celebration,” which was intended to bring attention to a rare piece of bipartisan legislation President Trump passed last year, and which he plans to highlight on the campaign trail. He also announced plans for a “Second Step Act,” focused on easing employment barriers for formerly incarcerated people.

“We are proving we’re a nation that believes in redemption,” Trump said, describing the “second step” legislation as featuring a $88 million funding request for prisoner social reentry programs. “The ‘Second Step Act’ will be focused on successful reentry and reduced unemployment for Americans with past criminal records, and that’s what we’re starting right away.”

“As president, I pledged to work with both parties for the good of the whole nation,” Mr. Trump said at the East Room gathering, pointing to the legislation as an example of bipartisan work that he said was “so important to me.”

But even as they danced at the White House, several observers expressed skepticism that the now-passed bill will enjoy the Administration’s full support.

money160118The Administration’s budget, released last month, listed only $14 million to pay for the First Step Act’s programs. The law specifically asked for $75 million a year for five years, beginning in 2019. The Office of Management and Budget, however, noted that the bill passed after the budget had already been finalized, and that the White House intended to revisit First Step Act funding.

Ensuring that First Step is adequately funded is crucial to its effectiveness, said Nancy La Vigne of the Urban Institute. “We always recognized that without proper funding, the First Step Act is really nothing more than window dressing,” she said.

Mr. Trump said that “my administration intends to fully fund and implement this historic law.”  On Apr. 2, the White House announced Trump will ask Congress for $147 million to implement First Step, far above the $14 million in the original budget.

risky-business-4fea6b87b70a6First Step requires development of a risk and needs assessment tool to assess inmates and determine what types of programs reduce recidivism and the incentives they would receive. The Dept. of Justice missed the Jan. 21 deadline for forming the committee tasked with developing the risk assessment standard, instead starting the committee formation process only yesterday. The Crime Report said last Monday, “It’s not clear whether the government will meet the July deadline for developing the system.”

Kevin Ring, president of Families Against Mandatory Minimums, says there hasn’t been much clarity from the administration on the status of these measures.

“All the timelines were ambitious, so it’s not surprising that they haven’t met them all,” Ring said. “It’s just it seems to be a bit of a black box. We don’t know what’s taking so long.”

The New York Times today observed that

Putting the law into practice quickly became complicated. The government partly shut down one day after Congress passed the bill and sent it to President Trump to sign into law, and many of the Justice Department employees who would have worked to fulfill it went on furlough. The shutdown, the longest in history, lasted through the end of January.

That has given law enforcement officials just over two months to start carrying out a complicated piece of legislation, a senior Justice Department official said in defending their pace… The criminal justice overhaul was also passed during intense tumult at the top of the Justice Department, which oversees the Bureau of Prisons and would be responsible for carrying out much of the new legislation.

The New York Times, Justice Dept. Works on Applying Sentencing Law as Critics Point to Delays (Apr. 9)

Hudson Institute, Hudson Institute To Host First Step Act’s Independent Review Committee (Apr. 8)

Washington Examiner, Trump announces Second Step Act to help ex-prisoners find work (Apr. 1)

The Crime Report, As White House Celebrates First Step Act, Inmate Risk-Assessment Tool Lags (Apr. 1)

The New York Times, Trump Celebrates Criminal Justice Overhaul Amid Doubts It Will Be Fully Funded (Apr. 1)

NPR, 3 Months Into New Criminal Justice Law, Success For Some And Snafus For Others (Apr. 1)

– Thomas L. Root

Time to Restart the Clemency Machine? – Update for January 23, 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.

A RENEWED CRY FOR CLEMENCY

pardonme190123Focus on the First Step Act over the past six months has left President Trump’s push to reform clemency in the dark. Last week, however, The Atlantic published a proposal written by three prominent clemency advocates to revamp the process.

The two clemency processes now in use, law professors Mark Osler and Rachel Barkow, and Koch Industries general counsel Mark Holder argued, are the formal Dept. of Justice Pardon Attorney process and Trump’s much more informal celebrity-studded personal recommendation process.

Trump’s is informal: The president evaluates individual cases based on personal recommendations. The problem with the President’s system, the authors complain, is that it does not scale. Instead, it is a one-celebrated-case-at-a-time celebrity-driven approach, in which people with access to Trump lobby him in the Oval Office until he signs off.

But the DOJ process, the article contends, “isn’t any better. It courses through seven levels of review, much of it through a hostile… bureaucracy that tends to defer to local prosecutors who are, in turn, loath to undo the harsh sentences they sought in the first place. Indeed,” the authors observe, “the First Step Act passed in spite of DOJ opposition because those same prosecutors objected to lowering the mandatory minimum sentences that give them so much bargaining power.”

The articles cites some states as having better systems, including Arkansas, Connecticut, Georgia, and South Carolina. In those systems, an expert board – with people from criminal justice, social work, and psychology backgrounds, former judges, defense lawyers, prosecutors, and community activists – identify and evaluate clemency candidates.

obtaining-clemencyThe authors suggest that the President create a similar board of bipartisan clemency advisers who would work with a professional staff to identify cases for White House action. In 1975, President Gerald Ford impaneled an 18-member clemency board to help him with pardon requests from applicants charged with crimes related to avoiding the draft during the Vietnam War. That board was diverse and bipartisan, and ultimately recommended more than 13,000 pardons.

Trump convened a conference on revamp the clemency last summer, but nothing has come of it so far.

The Atlantic, The Clemency Process Is Broken. Trump Can Fix It (Jan. 15)

– Thomas L. Root