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Washington Sentencing Reform Soap Opera Grinds On – Update for March 12, 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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THRILLS, CHILLS, AS SENTENCING REFORM GETS KICKED AROUND WASHINGTON

It’s kind of like a made-for-TV thriller, with all sorts of disconnected story lines swirling around the central theme of sentencing reform.

soap180312Starting with the good news/bad news on pardons: President Trump issued the third grant of clemency (and second pardon) of his presidency last Friday to former Navy sailor Kristian Saucier, who learned the news while driving a garbage truck, the only job he could find with a felony conviction. Saucier, who was sentenced to a year in prison in 2016 for taking pictures inside a nuclear submarine, was repeatedly cited by Trump during his presidential campaign as being “ruined” for doing “nothing,” while Hillary Clinton mishandled classified information and used a personal email account while serving as secretary of state, only to receive a “pass” from the FBI.

The bad news is that Trump so far has only granted clemency to people whose stories have contributed to his political narrative (Sheriff Joe Arpaio) or who had powerful political and financial friends (Sholom Rabashkin). There is no indication he cares to do anything about inmates not falling into either category.

Hopes that Trump may support sentencing reform were rekindled slightly this past week as the White House launched the Federal Interagency Council on Crime Prevention and Improving Reentry, intended to reduce crime while looking for ways to “provide those who have engaged in criminal activity with greater opportunities to lead productive lives.”

sessions180215Trump’s executive order calls for “mental health, vocational training, job creation, after-school programming, substance abuse, and mentoring,” for inmates. “Incarceration is necessary to improve public safety,” the Administration said, “but its effectiveness can be enhanced through evidence-based rehabilitation programs.” The council will be co-chaired by Jared Kushner (who strongly supports sentencing reform) and Attorney General Jefferson Beauregard Sessions III (who is strongly opposed to sentencing reform). Government study groups like this are usually good for burying the problem for an extended period of time, although Trump has called for the council to produce a list of proposals within 90 days.

At the same time, the Washington Post has reported that the Administration is studying a new policy that could allow prosecutors to seek the death penalty for drug dealers. President Trump last week suggested executing drug dealers as a effective way to make a dent in opioid addiction. Sources inside the White House say a final announcement could come within weeks. 

Sen. Charles Grassley (R-Iowa), the man with his hand on the Judiciary Committee throttle.
Sen. Charles Grassley (R-Iowa), the man with his hand on the Judiciary Committee throttle.

The Cedar Rapids, Iowa, Gazette, last week reported on the feud festering between the Chairman of the Senate Judiciary Committee, Sen. Charles Grassley (R-Iowa), and Sessions. Grassley’s desire to see his legislative baby, the Sentencing Reform and Corrections Act of 2017, passed – and his fury at Sessions’ outspoken opposition to the bill – is spreading now to Grassley head-butting fellow Republicans who say they won’t support the bipartisan proposal to reform sentencing laws. The Gazette reports that Grassley may even side with Senate Democrats to block other legislation until his bill gets a fair shot. The SRCA drew bipartisan support last month, being voted out of the Senate Judiciary Committee by a 16-5 vote without any changes.

Ohio State University law professor Doug Berman suggested in his Sentencing Law and Policy blog last week that Grassley should add the White House death penalty proposals to SRCA “as part of an effort to get the White House and AG Sessions to support that bill. Even if drafted broadly, any federal ‘death penalty for drug dealers’ law would likely only impact a few dozen cases per year, whereas the SRCA will impact tens of thousands of cases every year. And the SRCA could help tens of thousands of least serious drug offenders while any death penalty bill would impact only the most serious drug offenders.”

sessions180312Meanwhile, in the juicy rumor department, Fox Business host Lou Dobbs called on Attorney General Jeff Sessions to resign a week ago after President Trump and a number of Republicans criticized the AG. “Sessions has fallen ill, he’s incapacitated in some fashion, or he’s been coopted or captured: to preserve any dignity, for the good of the country he needs to resign,” Dobbs tweeted. Meanwhile, former Sen. Richard Shelby (R-Alabama), who for years served in the Senate alongside Sessions, says that if he were in the AG’s position, he would stop taking abuse from Trump. “I wouldn’t stay at all unless the president wanted me to stay, if he appointed me,” Shelby said. “I wouldn’t be anybody’s whipping boy. I wouldn’t be belittled because the president’s saying he doesn’t have any confidence in you.”

Washington Examiner, Trump pardons Kristian Saucier, former sailor jailed for submarine pictures (Mar. 9, 2018)

Axios, Trump launches council for prison reform and crime prevention (Mar. 7, 2018)

Washington Post, Trump administration studies seeking the death penalty for drug dealers (Mar. 9, 2018)

Sentencing Law and Policy: Trump Administration reportedly looking (seriously?) at the death penalty for serious drug dealers (Mar. 10, 2018)

The Cedar Rapids Gazette, Grassley the maverick re-emerges in feud with Sessions (Mar. 6, 2018)

The Hill, Fox Business host claims ‘Sessions has fallen ill,’ calls for him to resign (Mar. 3, 2018)

The Hill, Alabama senator: If I were Sessions, I’d quit and stop being Trump’s ‘whipping boy’ (Mar. 1, 2018)

– Thomas L. Root

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Four Foxes Nominated to Guard Henhouse – Update for March 7, 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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FOUR FOXES NOMINATED TO GUARD SENTENCING COMMISSION HENHOUSE

The U.S. Sentencing Commission, currently considering a “first offender” proposal that would reduce the Guidelines of people with no prior record, had better act quickly. Last Thursday, President Trump announced four nominees to the Commission, three federal judges and a guy named Bill Otis. All of them will require Senate approval.

henhouse180307Otis’ nomination marks one of Trump’s most powerful statements yet against sentencing reform. A man described as “a prominent pro-prosecution crusader,” Otis has a history as the worst kind of AUSA, a guy who oversaw criminal prosecutions without ever actually doing any of them himself. He is a vigorous advocate for lengthy prison sentences and mandatory minimum laws (especially for drug sentencing, and is a staunch supporter of the Attorney General’s re-emphasis on them. He dismisses reformers as “pro-criminal” advocates who want to be “nice to drug pushers” by letting “robe-wearing partisans” impose more lenient sentences. And he supports life without parole for juveniles. Slate.com quotes him as writing that to avoid longer sentences, criminals should “consider quitting the smack business and getting a normal job like everybody else.”

“Congress should abolish the Sentencing Commission,” Otis testified at a 2011 House Judiciary Committee hearing. “By far the most important purpose for which it was created no longer exists—to write binding rules for district courts to use in sentencing. It does have some secondary functions—for example, to study possible statutory improvements, as well as gather and publish statistics about sentencing practices—but when its core function has been demoted to making increasingly ignored non-rules, it’s time to turn the page.”

Otis’ appointment to the Commission “drew reactions of horror and condemnation from criminal justice advocates,” Reason.com reported. Those denouncing the choice ranged from the pro-inmate Families Against Mandatory Minimums and the conservative Cato Institute. Such criticism of Otis and Judge Henry Hudson of Virginia could make it harder for the full slate of four to win swift U.S. Senate confirmation. Before Trump’s announcement, criminal justice reform activists were quietly urging the White House not to nominate Hudson.

hudsonB170811Trump and Sessions appeared to have had a falling out last week, when the President called the AG’s handling of the FISA wiretap investigation “disgraceful.” Sessions then pushed back against the insult, saying he was presiding over DOJ’s investigation in a constitutional manner. But the next day, Trump nominated three Republicans and one Democrat to the USSC, and all three Republicans – Hudson, Otis, and Judge William Pryor – are Sessions allies. Of particular note is Hudson, known colloquially in Virginia as Henry “Hang ’em High” Hudson. Sessions recommended Hudson for the USSC in August 2017 and has now gotten his wish.

The primary concern for inmates is that provisions like “First Offender,” even if adopted before the newbies are confirmed on the Commission, will never become retroactive. Retroactivity is usually decided after a new Guidelines provision is adopted, but the new appointees are unlikely to support that.

Slate.com, Law and Order: Dinosaurs (Mar. 1, 2018)

Business Insider, Trump’s sentencing panel picks may face uphill Senate path (Mar. 2, 2018)

Daily Caller, Trump’s Sentencing Commission Nominees Show He May Not be That Angry at Jeff Sessions (Mar. 1, 2018)

Reason.com, Trump Nominates Man Who Called for Abolishing U.S. Sentencing Commission to U.S. Sentencing Commission (Mar. 1, 2018)

– Thomas L. Root

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President Lets Steam Out of Sentencing Reform Engine – Update for March 5, 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 TRAIN WRECKS SENTENCING REFORM


President Trump last Tuesday urged Congress to move ahead with legislation to help prisoners prepare for life after release, but did not call for sentencing reforms such as changing mandatory minimum sentences for drug and gun crimes.

trainwreck180305The White House said it sees no path forward for legislation to reduce mandatory minimum prison sentences, instead throwing its support behind measures aimed at reducing recidivism rates. “The conclusion we reached was that, at this time, it’s appropriate for us to go forward with prison reform,” a senior administration official said.

The Hill reported that Trump’s “position represents a major setback for Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who has been working to move his criminal justice reform bill through Congress after it stalled last session.” US News said the problem is a divide between hard-liners and moderates, one that leaves “President Trump stranded in the middle and, as is the case on other issues such as gun control and immigration, not firmly in either camp.”

Criminal justice groups across the political spectrum have championed prison and reentry reform, including evangelical Christian organizations and business groups. Jared Kushner, Trump’s son-in-law and a senior White House adviser, supports sentencing reform as well, but in the last week, his personal problems have multiplied, and how long he can remain in the White House is uncertain.

sessions180215Even Kushner’s support has been too little to move forward any sentence changes, because of the opposition of Attorney General Jefferson Beauregard Sessions III. President Trump is in the middle of a Twitter battle with Sessions, who Trump thinks has mishandled issues connected to the Russian meddling investigation, but seems to defer to Sessions on criminal justice reform issues.

Sen. Grassley told reporters on Wednesday the chances for his proposal, at the moment, aren’t very good. But he is not giving up. “This would be a bipartisan policy win for the Administration, and it seems like a no-brainer to me that we should get this done and the president would be backing it, Grassley said. He plans to use his substantial political clout to press Trump to change his mind. Axios noted last month that Trump bends over backwards to keep Grassley happy, because as Judiciary Chairman, Grassley played a crucial role in delivering two of Trump’s biggest successes: the confirmation of Supreme Court Justice Neil Gorsuch and a modern record number of circuit court judges approved in a president’s first year.

coldwater180305Nevertheless, Democrats and advocacy groups are not optimistic. Sen. Cory Booker (D-New Jersey), a Judiciary Committee member and Sentencing Reform and Corrections Act of 2017 supporter, said, “the landscape looks horrible to me, and we don’t see an appetite for making these kinds of changes.”

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog last Wednesday that “for various reasons and for lots of offenders, significant prison reform could end up even more consequential than some proposed sentencing reform… Some version of the PRRA looks now to be the only significant federal criminal justice reform proposal with a realistic chance of becoming law in 2018.”

Reason.com, White House Touts Prison Reforms but Throws Cold Water on Sentencing Bill (Mar. 1, 2018)

US News, Trump Urges Prison Reform, not Sentencing Overhaul, After Pushback (Feb. 27, 2018)

The Hill, White House deals blow to Grassley’s criminal justice bill (Feb. 27, 2018)

Sentencing Law and Policy, Trump White House expresses opposition to sentencing reform part of SRCA of 2017 (Feb. 28, 2018)

– Thomas L. Root

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President Throws His Weight (Sort of) Behind Prison Reform – Update for February 5, 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 BACKS PRISON (NOT SENTENCING) REFORM

education180205During his State of the Union address last Tuesday, President Trump said his administration will pursue reforms to federal prison system reentry programs. “As America regains its strength, this opportunity must be extended to all citizens,” Trump said. “That is why this year we will embark on reforming our prisons to help former inmates who have served their time get a second chance.”

Trump brought up prison reform again last Thursday in a speech to GOP legislators during their retreat in West Virginia. “We can reform our prison system to help those who have served their time get a second chance at life,” he told the lawmakers.

A sharp split remains in Congress over sentencing reform, but there seems to be a consensus on prison reform. The difference between the two is this: sentencing reform focuses on reducing potential sentences – including mandatory minimums – while prison reform offers more reentry programs in prison, for which prisoners could get up extra days off for completing approved programs.

reform160201Trump’s comments are a change in tone for the President, who made tough-on-crime talk a standard of his 2016 presidential campaign. But even as he embraces prison reform, Trump suggests his Administration might seek tougher drug laws in response to the opioid crisis.

Supporters of reform are expressing cautious optimism that a deal can be made to improve conditions in federal prisons, bolster anti-recidivism efforts and allow federal prisoners to earn “time credits” for making it through education or other programs, despite legislative clashes over immigration and opioids and the impending midterm elections. Rep. Doug Collins (R-Georgia), an author of the bipartisan Prison Reform and Redemption Act (H.R. 3356), called the moment of apparent consensus “a unique opportunity.”

Ohio State University law prof and sentencing expert Doug Berman wrote last week that while “‘back-end’ prison reforms to facilitate earlier release from prison for all federal offenders and enhanced reentry efforts are quite possible and may truly be a priority for the Trump Administration; it would also seem that “front-end” sentencing reforms to reduce mandatory minimum terms for drug trafficking offenses many not be possible and may be actively opposed by the Trump Administration.”

The New Republic said that “reducing mandatory minimums and over-criminalization will be a tough sell, while programs to help prisoners re-enter society and find jobs could find a receptive audience in the White House.” However, the Administration cut back on BOP education programs last May, and further BOP job cuts may make it hard for the agency to find enough people to direct rehabilitation programs. Fewer staff means fewer programs means fewer qualified courses means fewer additional good-time credits. The New Republic said, “It would be a Nixon-in-China moment if Trump genuinely tried to combat mass incarceration—which is to say, it’s highly unlikely.”

nixon180205Yet less than a week later, the same author in the same magazine suggested that “Trump’s rhetoric of late gives hope for bipartisan efforts in Congress to push through a criminal-justice reform bill this year. While Trump prides himself as a master dealmaker, he’s been content to let Republican lawmakers and his top advisers sketch the details of major legislation on health care, tax reform, and immigration. As long as he’s not actively hostile to whatever lawmakers send him, reformers could find Trump more amenable to the final package if they can convince him it’s a win.”

Reason.com, Trump says in SOTU that Administration will pursue prison reforms (Jan. 30, 2018)

Gant News, ‘American carnage’ President presides over prison reform push (Feb. 2, 2018)

Sentencing Law and Policy, Prez Trump, in his first State of the Union address, mentions “reforming our prisons” and need to “get much tougher on drug dealers” (Jan. 30, 2018)

The New Republic, Is Trump serious about prison reform? (Jan. 30, 2018)

The New Republic, A Chance for Criminal-Justice Reform Under Trump (Feb. 5, 2018)

– Thomas L. Root

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

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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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BRIGHT YOUNG WHIZ-KID MEETS STONE WALL… WALL WINS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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TRUMP HOLDS WHITE HOUSE MEETING ON SENTENCING REFORM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root LISAStatHeader2small

Pardon me… – Update for December 14, 2017

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CLEMENCY HOPEFULS EXPECTING LUMP OF COAL

Well, boys and girls, the stockings are soon to be hung by the chimney with care, in hopes that the annual emesis of Presidential pardons and commutations flow from the White House in celebration of Christmas.

Obama leaves town, stranding 7,800 commutation applications.
Obama left DC, stranding 10,000 commutation applications.

It’s almost hard to recall the euphoria a year ago, with thousands of federal prisoners – nearly all of them drug offenders – followed events at the White House like they never had before, awaiting word on presidential clemency as the clock wound down on President Barack Obama. By the time The Donald rode down Pennsylvania Avenue, PBO had commuted more than 1,700 federal prisoner sentences. But Barry and Michelle climbed about the ex-presidential helicopter leaving 10,000 clemency petitions languishing on his desk without action.

We have had a lot of people whom Obama left hanging wondering whether the new President would take up their cause. The Atlantic magazine considered the question last week, and those folks probably will not like the answer. The Atlantic quotes Mark Osler, one of the architects of Obama’s clemency program, as predicting that the remaining 10,000 commutation petitions “will still be pending when the present occupant of the White House leaves—unless they’ve been fed to the shredder in the interim.”

While Osler, a law professor and clemency expert, said he disagreed with the former president over some elements of the petitioning process, “at least Obama’s heart was in the right place. Clemency is going nowhere in the Jeff Sessions DOJ.”

The Atlantic said DOJ could not be reached for comment on plans for clemency, but the magazine suggests the Trump Administration’s intentions seem manifestly different from Obama’s. “Where the previous White House tried to roll back the harshest sentences for low-level drug offenses,” the article said, “Attorney General Jeff Sessions has revived mandatory minimums. Where Obama supported criminal-justice reform, Trump has promised a return to “law and order.”

coal171215No one should forget that both Trump and Jefferson Beauregard Sessions III were harsh critics of Obama’s Clemency Initiative, calling its expanded guidelines “a thumb in the eye” of law-enforcement and court personnel. Thus far this year, Trump has issued three pardons – one last August for Arizona sheriff Joe Arpaio, well known for his systematic mistreatment of jail inmates and immigrants, and two turkeys during Thanksgiving Week.

The only pardon talk going on right now has to do with current and former White House staff, with the clemency power being used as a bludgeon against Special Counsel Robert Mueller. It may be high drama, but for federal prisoners, it is nothing but one big lump of coal.

The Atlantic, I Don’t See Much Mercy in Donald Trump or Jeff Sessions (Dec. 9, 2017)

American Constitution Society, Considering Presidential Pardons after Flynn’s Guilty Plea (Dec. 11, 2017)

– Thomas L. Root

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

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LISAStatHeader2smallNEWS FROM THE WHITE HOUSE

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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A Couple of Sentencing Tidbits from Washington – Update for April 21, 2017

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

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SENTENCE REFORM – WAITING FOR THE DONALD

We’ve been hearing since last year that leadership in the House and Senate intend to resurrect the Sentence Reform and Corrections Act of 2015 in some form this year. But – like the weather – everyone seems to talk about it, but no one is doing anything about it.

Thus far this legislative year, as we’ve noted, there has been a dearth of criminal justice reform legislation introduced in Congress. A report released yesterday by the Brennan Center for Justice at New York University may hint at why.

Waiting170421On the subject of sentence reform, the Report notes that in January 2017, Sen. Charles Grassley (R-Iowa), chair of the Senate Justice Committee, and House Speaker Paul Ryan (R-Wisconsin) committed to reintroduce some version of the failed SRCA. However, the Report says, both Ryan and Grassley “are rumored to be waiting for the administration to announce its position before moving forward.”

Rumors flew in March, when President Trump’s son-in-law and advisor Jared Kushner met with Grassley and Sen. Dick Durbin (D-Illinois) – the top-ranking Democrat on the Committee, to discuss sentencing and reentry legislation. Kushner, whose father did federal time for white-collar offenses, has more reason than most to favor federal sentencing reform, and reports say that he does.

The Brennan Report says, “Trump’s personal positions on such bills are unknown. It remains to be seen whether any advice from Kushner and backing by conservative reform advocates will influence the President. Some conservatives support expanding reentry services, and modest sentencing reductions for low-level offenders. The Trump Administration could take a similar stance, backing modest prison reform in Congress while continuing to pursue aggressive new prosecution strategies.”

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

Elsewhere in the Report, the Brennan Center predicts that “recommendations for more punitive immigration, drug, and policing actions” will flow from the Administration over the next few months. It notes that a crime task force established by Attorney General Jeffrey Sessions is scheduled to deliver its first report by July 27. The Center foresees the task force calling for “a rescission of Obama-era memos on prosecutorial discretion, which helped decrease the federal prison population, and diverted low-level drug offenders away from incarceration.”

Brennan Center for Criminal Justice, Criminal Justice in President Trump’s First 100 Days (April 20, 2017)

– Thomas L. Root

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COMPASSIONATE KISSES

We watched with some glee a year ago when the U.S. Sentencing Commission horse-shedded the BOP over that agency’s chary use of compassionate release. It was fun while it lasted, but it didn’t last very long.

compas160418“Compassionate release,” a provision enshrined in 18 USC § 3582(c)(1), was enacted by Congress in the Sentencing Reform Act of 1984. Besides replacing the prior sentencing regime with the Guidelines, the Act strictly limited the ability of federal courts to revisit sentences once they became final (that is, the time for appellate review expired). Parole was eliminated, with sentences to be served fully (with an allowance of about 14% for good conduct in prison).

One safety valve crafted into the Act by Congress was to give courts the ability to modify or terminate sentences if prisoners were able to show “extraordinary and compelling” reasons justifying early release. Congress tasked the Sentencing Commission with the job of identifying the criteria to be used in determining whether a reason was “extraordinary and compelling.” The statute delegated BOP with the task of identifying prisoners who met these criteria. The idea was that the BOP would identify who qualified, and then petition the district court for grant of compassionate release. The district judge would make the final determination.

The entire process was considered by Congress to be an act of grace. Inmates have no right to petition the court directly under 18 USC 3582(c)(1). They may not seek judicial review of a BOP refusal to recommend release. They may not appeal a district court’s denial of compassionate release. This means the power to free a prisoner is placed in the hands of the jailer whose job it is to keep him locked up, who incidentally is represented by the prosecutor – the US Attorney – whose job it is to lock up federal criminal offenders.

So how does the system work? We’ll let the numbers speak. In 2015, out of about 205,000 federal inmates, the BOP found extraordinary and compelling circumstances justifying compassionate release only 62 times. That works out to 0.03% (or about 3 prisoners out of every 10,000). Those odds stink. It’s hard to believe that so few prisoners qualify for compassionate release.

table170421The BOP’s stinginess has drawn fire from the Sentencing Commission. At the April 2016 hearing we noted above, commissioners complained that the BOP had adopted its own definition of “extraordinary and compelling.” The criteria the Commission adopted directed the BOP to confine itself to determining if a prisoner meets the criteria the Sentencing Commission adopted, and – if so – bringing a motion for reduction in sentence to the district court.

BOP’s management of compassionate release is no different than a district judge deciding that she would adopt her own definition of “career offender,” no matter what the Sentencing Commission might say in Chapter 4B of the Guidelines.

compassion160124In an article published this week by Learn Liberty, Mary Price – general counsel to Families Against Mandatory Minimums – cited cases where even the most slam-dunk compassionate release cases took over a year for the BOP to process. She noted that the BOP was hurting itself as well as the affected inmates: compassionate release of elderly and infirm inmates makes economic as well as social sense, and saves the BOP from caring for the most expensive and least dangerous of its inmates.

Ms. Price wrote that

if the BOP is unable or unwilling to treat the compassionate release program as Congress intended, Congress should take steps to ensure that prisoners denied or neglected by the BOP nonetheless get their day in court. Congress can do so by giving prisoners the right to appeal a BOP denial to court or to seek a decision from the BOP in cases… in which delays stretch out over months or even years. Such a right to an appeal will restore to the courts the authority that the BOP has usurped: to determine whether a prisoner meets compassionate release criteria and if so, whether he deserves to be released.

Institute for Humane Studies, George Mason University, Mary Price, How the Bureau of Prisons locked down “compassionate release” (Apr. 18, 2017)

– Thomas L. Root

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Sentencing Reform has Quite a Week for a Corpse – Update for February 3, 2017

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

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FLIGHT OF THE PHOENIX

phoenix170203Congressman Bob Goodlatte (R-Virginia), chairman of the House Judiciary Committee, said yesterday that his agenda for the 115th Congress includes comprehensive sentencing reform, which was subject of a two year-long bipartisan push in both houses of the 114th Congress before being run down and killed by the 2016 elections.

Speaking to the Federalist Society at the National Press Club, Goodlatte said, “Both Ranking Member Conyers and I remain committed to passing bipartisan criminal justice reform. We must rein in the explosion of federal criminal laws, protect innocent citizens’ property from unlawful seizures, and enact forensics reforms to identify the guilty and quickly exonerate the innocent. We must also reform sentencing laws in a responsible way and improve the prison system and reentry programs to reduce recidivism.”

Goodlatte’s announcement bookends a week that began with House Oversight Committee Chairman Jason Chaffetz (R-Utah) saying that criminal-sentencing reform proponents in Congress are optimistic that Vice President Mike Pence will be an ally, helping them to work with the Trump administration to pass sentence reform legislation.

“I’ve got reason to be hopeful,” Chaffetz told reporters at a morning session of the Seminar Network, a group of libertarian and conservative donors gathered in Palm Springs by Charles and David Koch.

Senator Sessions as AG – Don't expect that you've got anything coming.
      Incoming Attorney General Sessions – no friend of sentencing reform.

Even as Congressional Republicans started sliding sentencing reform onto the front burner, CNN darkly warned that “the future of criminal justice reform hangs in the balance as the nomination of Alabama Sen. Jeff Sessions, President Donald Trump’s pick for attorney general” was approved in a party-line vote by the Senate Judiciary Committee. CNN cited unidentified “activists” who worried that Trump would “halt former President Barack Obama’s reforms, and institute new policies that could worsen conditions.”

We’re not sure what planet CNN has been on, but we’re fairly confident that Obama’s only criminal justice “reform” of note in eight years – unless you include his arbitrary and gimmicky clemency lottery – was passage of the Fair Sentencing Act of 2010. And as for that, Sessions not only voted for the Act, but in fact worked with Sen. Dick Durbin (D-Illinois) in gaining its passage. That Act reduced the sentencing disparity between offenses for crack and powder cocaine from 100:1 to 18:1, a change widely seen as benefitting minorities, whom were statistically more likely to be involved with crack than with the standard powder. Obama loved to talk a good game, but his Administration promised much (remember Eric Holder’s grand “working group to examine Federal sentencing and corrections policy” announced with fanfare in 2009, only to disappear in the Washington swamp, never to be heard from again?) but delivered damn little.

None of this is to suggest that Trump or Sessions share enlightened views on sentencing reform. To the contrary: Trump branded many of the federal prisoners receiving clemency as “bad dudes,” a label applied in usual Trumpian fashion with little reflection and no investigation. As a senator, Sessions was one of the early and vociferous opponents of the Sentence Reform and Corrections Act of 2015, contending that it would “release many dangerous criminals back into American streets.”

President Trump says they're coming to a street corner near you .
     President Trump says they’re coming to a street corner near you
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This might be a plus. With Sessions no longer in the Senate to organize an uber-conservative revolt against sentencing reform, Sen. Tom Cotton (R-Arkansas) will stand virtually alone in trying to derail sentence reform. Sure, Sessions may still be against it, but he’ll have much bigger fish to fry over at 9th and Constitution, running the 113,500 employees at DOJ.

As for Trump, will he be an impediment to bipartisan sentencing reform? Who can predict anything with the famously impulsive President? It is noteworthy, however, to observe that last Tuesday in introducing Judge Neil Gorsuch as his nominee for Justice Antonin Scalia’s seat on the Supreme Court, Trump noted of Judge Gorsuch: “While in law school, he demonstrated a commitment to helping the less fortunate. He worked in both Harvard Prison Legal Assistance Projects and Harvard Defenders Program.”

Ohio State University law professor Doug Berman, who writes the Sentencing Law and Policy blog, found it “quite notable that… Prez Trump would stress this history.” Could it be that the President would not be as inalterably opposed to federal sentencing reform as some “activists” might fear?

– Thomas L. Root

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