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Trump Speaks… Will Criminal Justice Reform Become Law? – Update for August 6, 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 BREAKING CRIMINAL JUSTICE REFORM LOGJAM?

President Trump told Republican senators last Wednesday that he’s open to a proposal on prison and sentencing reform that combines the FIRST STEP Act with provisions of the Sentencing Reform and Corrections Act of 2017, giving new life to criminal justice reform that had seemed hopelessly stalled on Capitol Hill.

trumplogjam180806The compromise presented to President Trump by Republican senators at a White House meeting on Wednesday would combine the FIRST STEP Act with four sentencing reform provisions that have bipartisan Senate backing, according to a source familiar with the meeting.  

A senior White House official described the president as “positively inclined” toward the compromise proposal. The source said Trump told GOP senators to “do some work with your colleagues” and “let’s see where the Senate is and then come back to me with it.”

The White House meeting with Republican senators included Mike Lee (Utah), Lindsey Graham (South Carolina), and Senate Judiciary Committee chairman Charles Grassley (Iowa).

Trump’s support is significant because the core group of Republicans and Democrats behind the Senate bill has insisted on including sentencing reform as part of any criminal justice legislation, but Senate Majority Leader Mitch McConnell (R-Kentucky) is not about to bring a bill to the floor if there is vocal opposition from either the White House or the Republican caucus. “The question is whether there [are] enough sentencing provisions in there to make those guys happy without turning off too many Republicans and making it too toxic for McConnell to put on the floor,” says Alex Gudich, deputy director of #Cut50, a criminal justice advocacy group.

The Hill reports that some of the bill backers now think there’s a possibility of moving the modified legislation through the Senate as soon as this month, although it’s more likely be delayed until the lame-duck session after the midterm elections, that starts in mid-November.

cotton171226Conservatives such as Sen. Tom Cotton (R-Ark.) and Attorney General Jeff Sessions have opposed combining prison and sentencing reform. Cotton argued in a speech at the Hudson Institute earlier this year that “if anything, we have an under-incarceration problem.”

Meanwhile. the Washington Free Beacon published a leaked letter from the Dept of Justice to the White House outlining its concerns about the FIRST STEP Act. “In the Department’s view,” the letter says, “this legislation, if passed in its current form, would further and significantly erode our long-established truth-in-sentencing principles, create impossible administrative burdens, effectively reduce the sentences of thousands of violent felons, and endanger the safety of law-abiding citizens and law enforcement officers.”

The DOJ letter also tied the declining federal prison population to rising crime rates. “The number of federal inmates has declined more than 16% since 2013 and is at its lowest level since 2004,” the letter reads. “It is likely no coincidence that, at the same time, we are in the midst of the largest drug crisis in our nation’s history and recently experienced the two largest single-year increases in the national violent crime rate in a quarter of a century.”

sessions180322Conservative groups supporting criminal justice reform pushed back against the DOJ letter. FreedomWorks rebutted the report, saying, “Simply put, correlation doesn’t equal causation.” And when reporters asked Grassley today about his former Senate colleague Sessions’ efforts to derail the criminal justice legislation, Grassley responded sharply, “With all that I have done to help Sessions, to keep the president from firing him, I think Sessions ought to stay out of it.”

Criminal justice reform groups have been bolstered by a poll released last week by Freedom Partners, a nonprofit group that funds conservative and libertarian causes, showing 70% of voters nationwide think the Senate should pass the FIRST STEP Act.

Ohio State University law prof Doug Berman said in his Sentencing Law and Policy blog this past weekend, “I am not counting any sentencing reform chickens before they hatch, but this description of the compromise combo FIRST STEP Act and SRCA would seem to make a lot of sense in light of various positions staked out on both sides of the aisle. And if Prez Trump signals support for such a reform package and is willing to make it a priority, I would now be inclined to predict this will get done this year. But because Prez Trump has never seemed a serious advocate for sentencing reform, and because his Attorney General likely dislikes all of this, and because the run-up and aftermath of an election can disrupt lots in DC, I am inclined to remain pessimistic about all of this until votes are being scheduled and taken.”

The Hill, Trump gives thumbs up to prison sentencing reform bill at pivotal meeting (Aug. 3, 2018)

Reason, The White House Is Moving Forward on Prison Reform Despite Justice Department Resistance (Aug. 2, 2018)

Sentencing Law and Policy, Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018 (Aug. 4, 2018)

– Thomas L. Root

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Legislative Standoff Is Dimming Hopes for Prison Reform – Update for July 23, 2018

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ARE POLITICS KILLING HOPES FOR PRISON REFORM?

Legislators and interest groups on both sides of the current Senate tussle over whether to pass the FIRST STEP Act or the Sentencing Reform and Corrections Act of 2015 continue to stake out their positions, and concern is rising that the political bickering may doom both bills.

Some complain that FIRST STEP is far from perfect... so we should wait for the next bus.
Some complain that FIRST STEP is far from perfect… so we should wait for the next bus.

It has now been nearly two months since FIRST STEP passed the House by a huge margin and it has now been more than five months since the SRCA, sponsored by Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois), passed the Senate Judiciary Committee by a significant margin.

Last week, two executives from the conservative reform group FreedomWorks complained in Washington Examiner that “the FIRST STEP Act hasn’t moved in the Senate. [The bill], led by Sens. John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I., has been referred to the Senate Judiciary Committee. Grassley has said that at least some SRCA-style sentencing reforms would have to be added to the FIRST STEP Act before it can move forward.”

Few in the Senate question the merits of FIRST STEP. An earlier version of the bill was passed by the Senate Judiciary Committee 15-2 in 2014. But politics could condemn any criminal justice reform. “Democrats,” the FreedomWorks piece said, “with their eyes on the party’s presidential nomination view criminal justice reform as a campaign issue. Selfishly killing the FIRST STEP Act for little more than political gain risks infecting criminal justice reform with the same toxicity that has plagued immigration reform proponents, not to mention that it also denies much-needed relief to communities, families, and individuals who have been severely affected by crime.”

deal180723The FreedomWorks officials said the next step must be to strike a deal in the Senate that will add modest sentencing reforms to make the legislation acceptable to Grassley without dividing the Republican conference. If there is any infighting among the Republicans, Senate Majority Leader Mitch McConnell will be unwilling to bring the bill to the floor for a vote. “It is a delicate balance to strike,” the FreedomWorks executives said, “but the Senate, which often refers to itself as the greatest deliberative body in the world, should be up for the challenge. On bipartisan legislation that has the backing of the White House, working out a deal on FIRST STEP should be a layup.”

These days, passage of any federal criminal justice reform seems to be more like a three-pointer from mid-court. Last week, Grassley and Sen. Orrin Hatch (R-Utah) doubled down on their SRCA position in an opinion piece in the Washington Examiner, urging passage of both mens rea reform and the SRCA:

Mens rea reform, in addition to sentencing and prison reform, is an essential part of the criminal justice reform constellation… We firmly believe that mens rea reform is an important piece of the broader criminal justice reform landscape. Together with the bipartisan Sentencing Reform and Corrections Act, which we both support, the Mens Rea Reform Act will improve fairness and clarity in our criminal justice system.

adams180723Grassley, current chairman of the Senate Judiciary Committee, and Hatch, a former chair of that Committee, are both legislators with more-than-average juice in the Senate. Grassley may be able to trade his current importance to the White House (as chair of Judiciary, he is key to getting Judge Brett Kavanaugh through the Supreme Court confirmation process) for Trump pressuring McConnell to bring SRCA to a vote. But although Washington is sweltering under the July sun and the end of the year seems far off, there are not that many legislative days left in the calendar year. Something needs to happen soon.

Meanwhile, the interest groups continue to check in, adding to the chaos. Last week, two police chiefs – one from the D.C. metro police force and the other, a former chief of New Orleans and Nashville – wrote in The Hill that “police and prosecutors need Congress to take meaningful action, like moving forward with a bipartisan solution hammered out by Grassley and Durbin. The Sentencing Reform and Corrections Act would shorten unnecessarily long sentences for low-level offenses, while also improving prison conditions and reentry services for men and women coming home from prison.”

Such public pressure does not much help to convince McConnell that scheduling either bill for a vote – likely, a showdown risking Republican fratricide – is a good idea.

Other criminal justice reformers are taking shots at FIRST STEP. DeAnna Hoskins, the president of JustLeadershipUSA, a progressive criminal justice reform group, blasted FIRST STEP last week, arguing, “The need and demand for reform are real. The FIRST STEP Act is not only a step backward; it invites a scary future. We need good proposals that address the structural racism baked into our justice system. We can pursue good proposals at all levels of government — proposals that are human-centered, values-driven, and that truly have an impact on decarcerating and decriminalizing communities across the country.”

She dismisses FIRST STEP’s process that lets inmate earn more halfway house and home confinement time. “For those released from prison on credit time, an electronic shackle awaits,” she writes, “branding people with a tool that tracks their every movement, expands the carceral state into our neighborhoods and significantly lowers the threshold for reincarceration.”

Our observation is that, lucky for her, Ms. Hoskins probably has never done federal time. Had she been a guest of the BOP, she would understand that just about every inmate in the system  would gladly have the “carceral state” expanded into his or her home neighborhood by doing as much incarceration time at home – ankle bracelet and all – as possible. One inmate told us, “The best day I ever had locked up was worse than the worst day I ever spent at home.”

perfection180723Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog last week, complained that Grassley and Durbin are hurting momentum. “At this point I am eager to hear any news about any movement in the Senate with respect to the FIRST STEP Act or the Sentencing Reform and Corrections Act… Prez Trump has suggested he will sign whatever bill gets delivered to his desk. But as the summer marches on, I am struggling to remain optimistic that the full Senate will get to vote on any of these reform proposals anytime soon.”

At the same time, Berman denounced Hoskins’ buzz-word policy nonsense. Her blather (although Prof. Berman is more polite in his terminology) is “disturbing hyperbole… Like the author here, I would like to see reform that goes beyond the FIRST STEP Act. But broader reforms have been stalled by leaders in DC who are likely to be in place at least until 2020 if not later. Hoping and waiting for something better leaves current prisoners and their families waiting and waiting and waiting… But rather than seeing a politic consensus for “transforming our criminal justice system,” I just see a lot of political division among advocates for reform that seems to be making achieving any reform that much harder.”

The Hill, Too many Americans go to prison but Congress can fix this problem (July 17, 2018)

Washington Examiner, Time for bipartisan deal-making on criminal justice reform (July 18, 2018)

Washington Examiner, Sens. Chuck Grassley and Orrin Hatch: Mens rea reform and the criminal justice reform constellation (July 19, 2018)

The Hill, The FIRST STEP Act sets up a dangerous future (July 20, 2018)

Sentencing Law and Policy, Another attack on the FIRST STEP Act failing to acknowledge modern political realities (July 21, 2018)

– Thomas L. Root

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Not “What You Are,” But Rather “Who You Know” – Update for July 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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‘A CELEBRITY GAME SHOW APPROACH’ TO CLEMENCY

President Trump beat feet out of Washington for Europe last Tuesday after nominating a new Supreme Court justice, pausing only long enough to pardon Dwight and Steven Hammond, the father-son Oregon ranchers convicted of arson after brush-clearing fires they set on their land burned a few acres of a federal wildlife preserve.

gameshow180716The ranchers, either notorious right-wing whack-jobs or afflicted small-businessmen (depending on your worldview), had already made enemies of the Federal Bureau of Land Management over cattle grazing issues. They got mandatory 5-year sentences, after prior shorter sentenced meted out by a Federal judge who thought the five-year bits “grossly disproportionate to the severity of the Hammonds’ offenses.” The U.S. Attorney, of course, appealed, and the 9th Circuit demanded the judge impose the mandatory minimums. The Hammonds’ case inspired a 40-day armed occupation of a federal wildlife refuge in 2016 protesting federal land ownership.

The Hammonds’ pardon raise the number of Trump clemency grants to nine, including Sheriff Joe Arpaio, deceased boxer Jack Johnson (supported by Sly Stallone), and Alice Johnson, whose commutation of a life sentence for drugs was championed by Kim Kardashian.

Last Thursday, The New York Times noted that

few constitutional powers lie so wholly at the whims of the president as the power to pardon. No details need to be worked out beforehand and no agency apparatus is needed to carry a pardon out. The president declares a person officially forgiven, and it is so. A layer of government lawyers has long worked behind the scenes, screening the hundreds of petitions each year, giving the process the appearance of objectivity and rigor. But technically — legally — this is unnecessary. A celebrity game show approach to mercy, doling the favor out to those with political allegiance or access to fame, is fully within the law.

Clemency seekers have been watching all of this. Having once put their hopes in the opaque Dept. of Justice pardon/commutation bureaucracy, the Times says, supplicants are now approaching their shot at absolution as if marketing a hot start-up: scanning their network of acquaintances for influence and gauging degrees of separation from celebrity. What’s the best way to get a letter to someone close to Trump?

clemencypitch180716Clemency petitions go through the DOJ Office of Pardon Attorney, a system set up more than a hundred years ago to lessen the risks and hassles of leaving an entire nation’s pleas for compassion to one person. For decades, the process worked smoothly, and hundreds of clemency grants were issued each year. President Dwight D. Eisenhower alone granted over 1,000 pardons.

But starting about 40 years ago, “the prosecutors really got a hold of the process,” said Margaret Colgate Love, Pardon Attorney from 1990 to 1997. “They became increasingly hostile to the pardon power.” And as laws have grown harsher, the number of pardons has dwindled significantly. “It is so secretive and the standards are so subjective,” Ms. Love said. “They operate like a lottery. Except a lottery is fair.”

It is not all bad that Trump’s new system is going around DOJ. But for those without a famous sponsor, it is still as daunting as ever.

The Hill, Trump pardons Oregon ranchers at center of 40-day standoff (July 10, 2018)

The New York Times, Pardon Seekers Have a New Strategy in the Trump Era: ‘It’s Who You Know’ (July 12, 2018)

– Thomas L. Root

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Skepticism About Trump’s Clemency Plans – Update for July 11, 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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PARDON US FOR BEING CYNICS ABOUT PARDONS

imageOn Tuesday, in between nominating a new Supreme Court justice and beating feet for Europe to browbeat our NATO allies, President Trump delivered another drive-by pardon, this time absolving notorious right-wing terrorists/innocent rancher-patriots (we’ll let you pick the descriptor that most closely matches your political persuasions) Dwight and Steven Hammond. The Hammonds were doing a mandatory five years for arson on federal land, because vegetation-control fires the set on their own land spread to a wildlife preserve.

We only care about such pardons for what they may tell us about Trump’s clemency policy. Last Wednesday, while everyone was enjoying their July 4th picnics and fireworks, Ohio State University law professor Doug Berman (who writes the authoritative Sentencing Law and Policy blog), reflected on that policy, and expressed the thought that many in criminal justice reform have been quietly fretting over: was President Trump’s love affair with his pardon power a one-night stand?

pardon160321Berman wrote, “It is now been nearly a month since Prez Donald Trump commuted the life sentence of Alice Johnson at the behest of Kim Kardashian West. Immediately thereafter, there were reports of “a growing list of potential pardons or commutations under consideration by President Donald Trump” and Prez Trump himself said: “We have 3,000 names.  We’re looking at them.  Of the 3,000 names, many of those names have been treated unfairly.”  A week later it was reported Prez Trump will be “pardoning a lot of people — pardons that even Obama wouldn’t do” and reported that Mrs. West had “assembled a large legal team and was pursuing clemency for several other nonviolent offenders.” 

Berman admitted that he has been “more than a bit worried that all the buzz about all sorts of clemency action may be a lot of talk that may not be followed by a lot of action.”

It is not for lack of candidates. The Intercept last week reported that “an estimated 3,278 people are serving life without parole for a nonviolent offense… Although the Obama administration freed record numbers of nonviolent drug offenders, experts have pointed out that the pardon process was arbitrary and opaque.”

It is little wonder. The Dept. of Justice, which after all exists to lock people up, has an Office of Pardon Attorney that was too understaffed and inefficient to manage all of the clemency applications submitted during the waning days of the Obama era. “As we saw in previous administrations, the clemency process is entrenched in unnecessary bureaucracy,” Jessica Sloan, national director of the bipartisan criminal justice reform group #cut50, told The Intercept.

clemencyjack161229Critics, including Margaret Colgate Love, who was DOJ Pardon Attorney under Bush I and Clinton, argue the pardon process should be taken away from DOJ. “Rather than seeing presidential pardons as a way to recognize the redemptive power of the justice system, federal prosecutors have often regarded pardons with suspicion — as antithetical and even threatening to what they do,” Love wrote in The Washington Post. “This shortsighted and parochial attitude has ill-served three successive presidents and resulted in an administrative system that is inefficient, arbitrary and unfair.”

Berman, however, is a cautious optimist. He concluded his July 4th post with the observation, “I am not yet going to get cynical about Prez Trump’s clemency chatter because I am eager to hold out hope that he might have a desire to best Prez Obama’s record-setting clemency numbers. But, as regular readers know, I am ever eager to criticize leaders who “talk the talk” but then fail to ‘walk the walk’.”

Sentencing Law and Policy, Hey Prez Trump, how about honoring Independence Day by using your clemency power to give some more Americans more liberty? (July 4, 2018)

The Intercept, Can Trump Succeed Where Obama Failed — Offering Clemency for Nonviolent Offenders? (July 2, 2018)

– Thomas L. Root

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

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SENATORS SEEK TO RECRUIT TRUMP TO BACK SENTENCE REFORM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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KUSHNER LOBBYING SENATE IN SUPPORT OF FIRST STEP ACT

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

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

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

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

Jones180622
                              Van Jones

Where is this strong bipartisan coalition for sentencing reform [that some claim exists]? I know that they were able to get the Sentencing Reform and Corrections Act out of committee in judiciary, which is good on the Senate side, but there is zero chance that that bill is going to be brought for a vote by Senate Majority Leader Mitch McConnell in its present form, and there’s not even a strategy to get McConnell to check it out, that I can tell. A lot of the Republicans do want sentencing reform, but they can’t start there with a critical mass of their other colleagues.

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

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

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

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

 – Thomas L. Root

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Pardon Rumors Abound… – Update for June 20, 2018

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TRUMP HAS A LITTLE LIST

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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Pardon me, Mr. President: Enthusiasm Waxes After Johnson Commutation – Update for June 11, 2018

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TRUMP SAYS HE’S CONSIDERING CLEMENCY FROM LIST OF 3,000 PEOPLE

pardon160321In the wake of widespread approval for President Trump’s commutation last Thursday of federal inmate Alice Johnson’s drug conspiracy life sentence, the President said that he was considering other pardons drawn from a list of 3,000 names.

The president was praised for granting clemency to the 63-year old grandmother, who had already served 21 years. Her case was championed by reality TV celebrity Kim Kardashian West, who met with Mr. Trump a week ago to urge grant of commutation to the Memphis woman.

Trump did not say whether he was only considering pardons or was looking at commutations as well, but he seems to be willing to use his clemency power to either pardon outright or just to commute sentences. Without explaining the origin of the list of 3,000, the President said, “Many of those names really have been treated unfairly.”

Trump also asked NFL players to suggest people worthy of clemency, an apparent attempt to end his battle with the NFL over players kneeling during the National Anthem to protest social injustice. “If the players, if the athletes have friends of theirs or people they know about that have been unfairly treated by the system, let me know,” Trump said.

clemencyjack161229There is some irony in Trump reviewing the cases of 3,000 federal inmates incarcerated for drug offenses, given his criticism of President Obama for doing the same thing, and Trump’s permitting Attorney General Jefferson Beauregard Sessions III to rescind Obama-era charging policies for nonviolent drug offenders.

The DOJ pardon office has a reputation for slow decision-making. Only 26% of the backlog of 11,200 pardon and commutation cases were filed since Trump became president. Trump has thus far denied 180 pardon and sentence-reduction applications, but that was before Trump realized that exercising his clemency power without DOJ input could be such fun.

FAMM president Kevin Ring and Ohio State University law professor Doug Berman expressed concern last week that there may be “enormous excitement among inmates,” given Trump’s clemency record to date.  Berman pointed out that Trump has only commuted two sentences so far, “and I have no reason to believe he has plans to start issuing dozens (let along hundreds) of additional commutations anytime soon.  Political realities have seemed to be influencing all of Prez Trump’s clemency work to date, and precious few federal prisoner have political forces in their favor.” While Berman hopes Trump will pleasantly surprise people, he says, “hopes ought to be tempered for now.”

trumpbird180611One commentator suggested that perhaps Trump can be talked into backing the Sentencing Reform and Corrections Act, (S.1917), which includes a retroactive rollback of some mandatory-minimum sentences, if he realizes how much it will annoy Sessions, whom he reportedly has wanted to fire. Sessions, of course, is the loudest and most vitriolic opponent of the SRCA. Just last Thursday, Trump announced his support for a Senate bill that would limit Sessions’ DOJ from bringing marijuana enforcement actions in states where it is legal, an announcement Buzzfeed described as a real “F— You” to Sessions

The New York Times, Trump Says He’s Considering a Pardon for Muhammad Ali (June 8, 2018)

The Hill, Trump says he is considering pardon for Muhammad Ali (June 8, 2018)

Business Insider, Trump’s commutation of a 63-year-old grandmother’s sentence is an example of where his disregard for institutions pays off (June 7, 2018)

The New York Times, Pardon System Needs Fixing, Advocates Say, but They Cringe at Trump’s Approach (June 1, 2018) 

– Thomas L. Root

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Truth is Stranger than Fiction: Reality TV Star’s White House Visit May Jump-Start Sentence Reform – Update for June 4, 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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WILL THE KARDASHIANS SAVE SENTENCE REFORM?

kardash180604Talk about headlines we never imagined ourselves writing… The twists and turns of federal sentence and prison reform legislation get weirder and weirder. Last week, as Senate Republicans fought one another over whether FIRST STEP Act (H.R. 5682) did enough to benefit prisoners, President Trump had a sit-down in his office with Kim Kardashian over a commutation for Alice Martin, a grandmother doing life at FCI Aliceville, and then pardoned a conservative New York filmmaker who did 8 months in a halfway house over a two-bit campaign finance crime.

So why does this matter to federal prisoners?

To start, The Hill reported last week that the Senate is “under growing pressure” to take up the FIRST STEP Act, which is a priority Trump son-in-law and senior adviser, Jared Kushner. But Senate negotiators say they are not close to a deal that would allow the bill to move quickly.

grassley180604Instead, the fight is pitting two influential senators, John Cornyn (R-Texas) and Judiciary Committee Chairman Charles Grassley (R-Iowa), against each other as they back competing bills. “We’ve got work to do here on building consensus… but right now we don’t have it,” Cornyn said last week. The divisions could scuttle any chance that the Trump-backed FIRST STEP becomes law this year.

Both Cornyn and Grassley are signaling they plan to press forward with trying to build support for their own separate bills once the Senate returns to Washington, D.C., this week. “We’re going to take up my bill,” Grassley said, referring to the Sentence Reform and Corrections Act (S.1917). “Or I should say, my bipartisan bill that’s got 28 co-sponsors — equal number Republicans and Democrats… What the House does through [FIRST STEP] is about the equivalent of a spit in the ocean compared to what the problem is of too much imprisonment.”

SRCA would link prison reform to reductions in mandatory minimums for certain drug offenses, correction of stacked 924(c) convictions, and retroactivity of the 2010 Fair Sentencing Act. Both Grassley and Durbin say they’ve made a deal not to separate the prison and sentencing reform components despite pressure from the White House.

sessions180215The Hill reports that SRCA is unlikely to be taken up in the Senate given opposition from Trump officials, chiefly Attorney General Jefferson Beauregard Sessions III. Grassley admitted last week he has not yet convinced Senate Majority Leader Mitch McConnell (R-Kentucky) to bring SRCA to the floor. “You’ve got to remember that McConnell doesn’t like the bill,” Grassley said, “and all I can say is that you ought to let a Republican president who needs a big, bipartisan victory have a bipartisan victory.”

Last week, McConnell told senators, “Look, guys, if you all can get your act together and come up with something that you’re comfortable with, that the president will sign, I’d be willing to take a look at it.”

Enter Kim Kardashian West, reality TV star and wife of Kanye West. Kim, who made early release for federal prisoner Alice Martin. Kardashian visited the White House on Wednesday to urge President Trump to commute the sentence of a 63-year-old grandmother serving life for a first-time drug offense. In pleading her case for a commutation for the inmate, Kardashian seized upon draconian federal sentencing practices that can put low- or midlevel nonviolent offenders away for decades, even life.

kardashian180604Interestingly, Trump – who tends to agree with the last person who spoke to him – tweeted that he and Kardashian had a good visit, and talked about “prison reform and sentencing.” This left some observers hopeful that the President was listening to people other than Sessions, and was about to signal his support for adding some sentencing reform measures to FIRST STEP. At the same time, Trump’s interest in harsh sentencing may help McConnell find some backbone to put FIRST STEP and SRCA to a vote.

Meanwhile, debate continued about the FIRST STEP Act. The liberal opponents of FIRST STEP argue that passing the bill, which lacks any reform of mandatory minimum sentence, would leave Congress and the administration believing they had solved mass incarceration, and thus not willing to address the issues at the heart of the prison problem anytime soon. But the Washington Post suggested this fear is overblown:

If Democrats take control of the House in November, they will be able to revisit the issue anytime they want — but they will have real clout to go along with their passion,” the Post said. “Nothing in the current bill precludes bolder, more comprehensive action when the votes, and the president’s pen, are lined up and ready.

The Hill, Senate grapples with prison reform bill (May 30, 2018)

Washington Post, In prison reform, a little of something is better than a lot of nothing (May 28, 2018)

The Hill, Don’t kick the can down the road on prison reform — now is the time for change (June 1, 2018)

– Thomas L. Root

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Through a Glass Darkly – FIRST STEP Act’s Chances in the Senate – Update for May 29, 2018

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FUTURE OF THE FIRST STEP ACT IS FAR FROM CLEAR

breeze180530Supporters of a federal criminal justice system overhaul seemed well on their way to victory after the FIRST STEP Act breezed through the House last week on an impressive bipartisan vote. The Act, H.R. 5682, has strong administration backing, including the fingerprints of Jared Kushner, the presidential adviser and son-in-law. It has some important Senate supporters. But a lot of informed people are still predicting that neither the FIRST STEP Act nor any other criminal justice reform bill will pass the Senate this year.

First, senior Senate authors of the long-stalled Sentencing Reform and Corrections Act, S.1917 – including Senate Judiciary chairman Charles Grassley (R-Iowa), are steadfastly opposed to FIRST STEP. They consider it an insufficient half-measure for its focus on prison programs without changes in federal sentencing laws. Plus, Grassley is still smarting from his inability to pass SRCA last year, and he says he’s not going down without a fight.

Second, Senate Majority Leader Mitch McConnell (R-Kentucky) is highly unlikely to try to move the bill through the Senate as long as Grassley is opposed to it, according to Republican senators and aides. They say McConnell, who is not that keen on criminal justice legislation in general, is definitely uninterested in circumventing his Judiciary Committee chairman and provoking an intra-party fight that would eat up weeks of floor time. A Republican senator said flatly of McConnell’s view of the bill right now: “It’s not on the priority list.” If McConnell decides not to bring the bill to a vote, no one can force him to do so.

sessions180322Third, impressive groups of opponents to FIRST STEP are lining up on both sides of the aisle. Attorney General Jefferson Beauregard Sessions III Sessions, a former senator himself, opposes SRCA and is lukewarm about FIRST STEP. And even the narrower FIRST STEP bill will probably face opposition on the right from Sessions’ allies, like Senator Tom Cotton (R-Arkansas), who once memorably said America has an “under-incarceration problem” and is reportedly stirring up opposition to FIRST STEP among law enforcement groups.

At the same time, FIRST STEP is opposed by some civil-rights groups, former Attorney General Eric Holder, and a coalition of leading Senate Democrats, including Richard Durbin (D-Illinois), Cory Booker (D-New Jersey), and Kamala Harris (D-California). In a letter last week, the senators said FIRST STEP would be “a step backwards” and that prison reform would fail if Congress did not simultaneously overhaul the nation’s sentencing laws. Also signing the letter were Representatives Sheila Jackson Lee (D-Texas) and John Lewis D-Georgia).

donotwaste180530Last Wednesday, a group of senators asked McConnell for a last-ditch negotiation session to seek an acceptable compromise. SRCA backers fear this may be the only chance for years to come to pass major criminal justice reform. “You don’t get many opportunities around here to do anything meaningful or substantive,” said Durbin, a chief author of the sentencing provisions. “Let’s not waste this one. Let’s get this right.”

Although Trump supports FIRST STEP, it’s unclear how he would react if Congress sent him a bill that included SRCA-style sentencing reforms. A prison reform-only bill gives Trump what he wants: To look tough to his base by not budging on sentences while also showing evangelicals he believes in “second chances.” Adding sentence reform might be too much for him.

New York Times, Why some senators who want a criminal justice overhaul oppose a prisons bill (May 26, 2018)

New York magazine, Can Kushner’s Patchy Prison-Reform Bill Survive the Senate? (May 23, 2018)

The Marshall Report, Is The “First Step Act” Real Reform? (May 22, 2018)

Politico, Trump-backed prisons bill DOA in the Senate (May 21, 2018)

Senate Judiciary Committee release, For criminal justice bill to pass the Senate, it must include sentencing reform (May 22, 2018)

 The Atlantic, Democrats Split Over Trump’s Prison Pitch (May 23, 2018)

– Thomas L. Root

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