Tag Archives: sentence reform

Congress to Try, Try Again on Sentencing Reform – Update for September 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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WE’RE BACK, BABY!

wereback170921After serving as a showpiece for what great bipartisanship can accomplish, the Sentencing Reform and Corrections Act of 2015 foundered on the shoals of presidential campaign politics last year, never making it to a floor vote in the Senate due to the fears of Majority Leader Mitch McConnell (R-Kentucky) that the vote could tarnish Republicans at the polls.

The bill, originally introduced in 2015, would cut mandatory minimum sentences for certain drug offenses and armed career criminals while increasing mandatory minimums for other offenses such as domestic violence. The bill was watered down early on in the process to satisfy law-and-order senators by eliminating any retroactive provisions. In other words, changing the law so that newly convicted people would not face unintended “stacked” mandatory minimums made sense, but relieving sentences of people who were given those “stacked” sentences the day before the bill passed did not.

flipflop170920Watered down or not, the SRCA fell to demagoguery from the likes of Sen. Ted Cruz (R-Texas), who supported the measure before he started running for president, but then opposed it on the campaign trail. An even greater foe was then-Sen. Jefferson Beauregard Sessions III, who is now Attorney General.

Nevertheless, building on the Senate’s success in repealing Obamacare and passing comprehensive tax reform, some U.S. senators are now planning to take a second stab at passing a bipartisan criminal justice reform bill after it stalled amid GOP infighting. Sens. Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) said Tuesday that they will reintroduce the SRCA, but they did not specify exactly when.

“While the political landscape in Washington has changed, the same problems presented by the current sentencing regime remain,” Grassley said. Despite the fact the bill has been worked on now over three different congresses, Durbin believes it the “best chance in a generation to right the wrongs of a badly broken system.”

The bill cleared the Senate Judiciary Committee in 2015, with Sen. John Cornyn (R-Texas) – one of the co-sponsors – predicting it would come to a floor vote soon afterwards. As Senate law-and-order conservatives started taking whacks at it, House Speaker Paul Ryan (R-Wisconsin) questioned whether the House would even be willing to debate the version of SRCA the Senate was cooking up. The bill died with the end of the last congress.

Starting with the day after its death last January, Grassley and Durbin began expressing interest in reviving the criminal justice bill. Along with Sen. Mike Lee (R-Utah), reportedly met with President Trump’s son-in-law and senior adviser Jared Kushner last March to discuss the issue. Kushner has a special interest in federal criminal justice reform.

sessions170918The push to pass the criminal justice reform bill could set up a potential fight with the Dept. of Justice, and Sessions, who was one of the leading opponents against the legislation when he was a member of the Senate. It is not known how much influence the AG still has with the President, who thinks Sessions is both “weak” and an “idiot.”

Sen. Thom Tillis (R-North Carolina), another supporter of the criminal justice reform effort, speculated last January that Sessions as attorney general would have as a chief objective enforcing what Congress sends him — even if he disagrees with it — rather than slipping into the role of legislator and try to change the laws. “He’s going to be focused on being the nation’s top law enforcement official,” Tillis said. “I don’t necessarily see him weighing in heavily on public policy choices that President Trump makes.”

The Hill, Senators to reintroduce bipartisan criminal justice bill (Sept. 19, 2017)

– Thomas L. Root

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Rethinking Prisology’s “Hail Mary” – Update for July 11, 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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“RE-PRISE” OLOGY

Last week, we reviewed (and roundly criticized) the nonprofit Prisology for its current effort to convince the United States Sentencing Commission to adopt a new, kinder and gentler sentencing table (Chapter 5A of the Guidelines).

trump170717We questioned the efficacy of an online letter-signing campaign, arguing that – unlike the 2014 drug quantity 2-level reduction – there is no consensus for changing the Table right now, and indeed a Justice Department led by Jefferson Beauregard Sessions III, would likely be quite hostile to the effort. We pointed out that even if such a change were to be effected, the likelihood of a new Sentencing Table being made retroactive was less likely than Trump giving up Twitter. We feared that the effort would provide false hope to inmates, and wondered whether Prisology might be pumping up its contacts list by soliciting the names, addresses, emails and phone numbers of people signing its online petition.

Yesterday, we got a call from Brandon Sample, president of Prisology and a well-known federal post-conviction attorney. Our conversation was extended and cordial. While Brandon did not convince us that Prisology’s effort was not just tilting at windmills, and while we did not convince him that our Eeyore-like pessimism was justified, we thought much of what he said was worth recounting. Thus, today’s Reprise on Prisology.

eeyorelisa170711We suggested last week that Prisology was taking an outsized piece of credit for the Sentencing Commission’s 2014 2-level reduction, when in fact it was more likely that the much larger Families Against Mandatory Minimums – which also claimed a leadership role in convincing the Commission to drop the drug levels – had pulled the laboring oar. Brandon disagreed, reporting to us that Prisology came early to that party, delivering “tens of thousands” letters in support of the reduction to the Commission. He said that FAMM’s 2014 efforts on the 2-level reduction were surprisingly minimal, and its after-the-fact claim that it had been out front on it was exaggerated.

We have no reason to doubt Brandon’s explanation, and several reasons to accept it.  We heard from one inmate reader who recalled the 2014 campaign vividly:

As a person who was around and ‘in the trenches’ behind bars when the drugs minus two amendment cycle was happening I can state that FAMM’s letter writing campaign was only a 3rd of what Prisology’s was.  FAMM had people mailing letters directly to the sentencing commission, and if memory serves they provided a template.  Prisology, on the other hand, had people mailing a template letter (similar to what they have now) directly to Prisology so that they could deliver them in a lump sum (more impactful) to the sentencing commission.  They ended up delivering right around 50,000 letters. Double what ever FAMM could have.

sizzle170711What both Brandon and our reader described reminds us of a phenomenon we have observed several times over FAMM’s 27-year history. FAMM started at a kitchen table: now, it is big. Some 70,000-supporters big. FAMM has a nice budget, paid staff, and a PR machine. This is fine, exactly what a nonprofit Washington-based advocacy group should have.  With size can come institutional bias, tunnel vision on issues, and all too often an instinct for self-preservation that makes the organization too quick to adopt a not-invented-here philosophy and a disdain for any other group working in the same arena. People are like that: organizations are like that, too.  At times, we have thought FAMM cared more about the sizzle than it did the steak.

We also suggested that Prisology had seemed to be dormant since 2014. Brandon admitted that the group was not grinding out press releases during that time, so that a review of the website might make it seem so. Part of that problem results from Prisology lacking the well-tuned and professional media shop that larger organizations (such as FAMM) keep humming with self-adulatory releases.

However, Brandon argues, press releases or not, Prisology remained active after 2014, spearheading among other things Freedom of Information Act litigation against the Bureau of Prisons (something of which we were aware) and maintaining a focus on the Sentencing Commission and congressional initiatives during the period. He makes a good point. Maybe our reviewing Prisology’s website for news releases was not the best metric. Judging an organization’s activity by counting the number of press releases may be sort of like judging the quality of a college football program by the quality of the band. You would be right some of the time – USC, Ohio State, Michigan, Alabama and Auburn all have large, lavish marching bands. But the best bands in the nation also include Tennessee, Ohio University (the Bobcats) and perennial Big 10 doormat Purdue. Like the statisticians say, there just ain’t any correlation.

purdue170711We also talked to Brandon about the D.C. Circuit debacle on the Prisology FOIA suit last spring. We said at the time we could not figure out how the organization could have made such a rookie mistake on standing. Brandon explained Prisology’s strategy, based on the principle that if an agency is by law supposed to make something available in the public reading room, you shouldn’t have to ask for it as a condition of filing suit. It’s not what we would have suggested, Article III standing seeming to us to be a somewhat different issue than whether FOIA should make you ask for something that ought to be available without asking. But for the same reason Strickland v. Washington holds that lawyers’ strategic choices are largely immune from ineffective assistance of counsel claims, we defer to Prisology’s strategic choice.

Brandon says that Prisology is not done, and it intends to make another run at compelling the BOP to honor its FOIA obligations. It always bothered us that Wile E. Coyote would only try something once, fail at it, and then – instead of tweaking the technique – move on to something completely different. Fortunately, Prisology is no Wile E. Coyote. We think the FOIA issue Prisology raised has merit, and needs to be heard.

That leaves our concern that Prisology may be using the online petition gambit to build an email and phone list for fundraising. Brandon says no. Despite the fact Prisology has collected untold riches from donors in the past – probably a couple hundred bucks total, Brandon says – he says that none of the information gathered for the Sentencing Commission letters will be used for any purposes other than to file with the Commission. Comparing Prisology’s modest “donate” buttons to FAMM’s neon-light-at-midnight “DONATE TO FAMM” button, we think it’s pretty clear that emptying donors’ wallets is not a primary mission at Prisology.

hailmary170613We still have serious doubts about the likelihood that Prisology’s “Hail Mary” pass on the Sentencing Table will work, and – if it does – that it will ever be retroactive. And we would prefer that the sentencing reform community turn a laser-like focus on an issue likely to be adopted and made retroactive. But while we still caution that people should not be getting hopes up that the Prisology effort will soon deliver lower sentences to just about everyone, we nevertheless salute its effort.

More important, based on Prisology’s promise that the information it collects will not be abused, we think that having family and friends complete the online letter does not harm, and may advance,  sentence reform efforts.

– Thomas L. Root

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Easter Bunny, Unicorns, and Low-Level Drug Offenders Don’t Exist! – Update for May 31, 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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 DOG BITES MAN

Dogbite160314The debate over the May 10th release by Attorney General Jefferson Beauregard Sessions III of a new directive that effectively cancels the 2014 Holder memorandum continues to rage. Predictably, federal prosecutors love the Sessions Memo. Dog bites man!

Last week, to the shock and amazement of absolutely no one, the National Association of Assistant United States Attorneys – the private association of AUSAs that helped sink federal sentencing reform last year by arguing that there is no such thing as a nonviolent drug offender – now argues that there’s no such thing as a low-level drug offender in the federal system, and that all the Sessions Memo does is to force prosecutors to carry out the will of Congress.

“There’s nothing… other than Eric Holder’s own personal opinion of what he considered to be a low-level offender, that provides that we should ignore the law,” Steve Wasserman, NAAUSA treasurer, told reporters last Thursday. He argued that the law as written by Congress already includes several “safety valve” provisions, and the discretion given to senior prosecutors under the Sessions Memo already provides ample avenues for sparing the truly deserving from long terms in prison.

The mandatory minimum sentences that sentencing reform advocates and their supporters in the media oppose, he said, apply only to weights that are atypical of personal use or small-scale dealing. Besides, even when mandatory minimums do cut in, NAAUSA argued, that “doesn’t necessarily mean that the person initially charged with the mandatory minimum is going to end up with the mandatory minimum sentence. In fact, only about 13% of our federal prisoners are serving mandatory minimum sentences and the reason for that is that even though we may charge, the individual may meet the safety valve requirement… or they may be someone who is willing to cooperate with us … that allows us to go back to the court… and explain that this is someone who has provided us with what we call ‘substantial assistance’ which allows the court to reduce the mandatory minimum.”

bling170531What NAAUSA is really saying is that the Sessions Memo once again makes it open season on black defendants. In an amazingly candid admission, Larry Leiser – a current federal prosecutor and NAAUSA president – the president of the group and a current prosecutor, told reporters on a conference call last Thursday that the Sessions Memo will let AUSAs aggressively prosecute drug crimes committed by people “wearing heavy gold and chains and hot cars as a result of their participating in the distribution of these drugs, as opposed to going out and earning an honest living.”

When a reporter braced Leiser, asking whether the remark could be construed as racist, Leiser responded, “It’s intended to be just the reality that unfortunately there are many people in the minority communities that are caught up in this terrible blight of drugs.”

Sessions’ resumption of the “get tough” policies that reigned before the 2014 Holder Memo comes as The Economist again published a withering critique of the American system of incarceration. The magazine reported that Barack Obama’s reform “caused a modest reduction in the number of federal prisoners (who are about 10% of the total). Donald Trump’s attorney-general, Jeff Sessions, has just torn it up. This month he ordered prosecutors to aim for the harshest punishments the law allows, calling his new crusade against drug dealers ‘moral and just’. It is neither.”

The Economist observes that “a ten-year sentence costs ten times as much as a one-year sentence, but is nowhere near ten times as effective a deterrent. Criminals do not think ten years into the future. If they did, they would take up some other line of work. One study found that each extra year in prison raises the risk of reoffending by six percentage points. Also, because mass incarceration breaks up families and renders many ex-convicts unemployable, it has raised the American poverty rate by an estimated 20%.”

pros170531Unfortunately, the problem – whether under Obama or Trump or any of their predecessors – is simply this: DOJ is run by prosecutors. “Despite an obvious conflict of interest,” former AUSA and law professor Mark Osler writes, “the Department of Justice evaluates clemency petitions, runs federal prisons, decides what forensic evidence to introduce in federal cases, and advises the president on criminal justice reform. And make no mistake — prosecutors dominate the agency, with the 93 United States Attorneys playing the leading role in setting policies across a range of issues and career prosecutors running most of the divisions.”

A building full of prosecutors, Osler argues, will instinctively push back against criminal justice reforms, regardless of whether a president is hostile to reform or is as progressive as was Obama. Osler notes that while “it seemed President Obama was sincerely committed to reforming federal criminal law, his results were disappointing. And though some of this failure can be blamed on a recalcitrant Congress, that excuse only goes so far. A close examination of Obama’s record shows that many of the administration’s reforms were subverted by the DOJ, not Congress.”

Nowhere is this more evident than in the position of NAAUSA, whose members are current criminal division line AUSAs. “We at the federal level don’t prosecute ‘low-level drug offenders’,” Wasserman declared, but rather only people in the trafficking business.

In other words, Reason’s Jacob Sullum notes, “you can’t be a low-level drug offender if you participate in distribution. Hence the phrase ‘low-level drug dealer’ is, according to Wasserman, oxymoronic.”

unicornbunny170531NAAUSA’s position on the issue is sophomoric, yet unsurprising from a prosecutorial mindset. There is no distinction between someone who becomes addicted to opioids because of an injury, supplying his or her habit by selling extra pills, and the leader of a gang selling heroin on the streets of an inner city and protecting its business with guns and violence. If you sell, you’re a trafficker, and all traffickers are high-level and violent. As Sullum argues, “it is possible to draw distinctions among people convicted of trafficking, based not only on the amount of drugs involved but also on the role the offender played. A courier or street dealer might participate in an operation that handles a large quantity of drugs, but he is still on a low level compared to the people running the operation.”

While NAAUSA denies that any federal drug offenders are “low-level” or “non-violent,” at the same time it argues the law “already provides ample avenues for sparing the truly deserving from long terms in prison.” The avenue is principally sentence reductions for defendants who provide “substantial assistance” to the authorities or who qualify for the statutory “safety valve” (which lets qualifying nonviolent, low-level drug offenders avoid mandatory minimum sentences) It must be hard for NAAUSA to posit such a claim while at the same time denying that such things as “low-level” or “non-violent” drug trafficking defendants exist.

Breitbart.com, Federal Prosecutors Hit Back at Media Criticism of Sessions Sentencing Memo (May 29, 2017)

The Daily Caller, Federal Prosecutor Says DOJ’s New Focus On Drug Crimes Will Target People Wearing ‘Heavy Gold And Chains’ (May 25, 2017)

Economist, America’s prisons are failing. Here’s how to make them work (May 27, 2017)

Mark Osler, The Problem with the Justice Department, The Marshall Project, (May 31, 2017)

Jacob Sullum, Federal Prosecutors Say They Never See Low-Level Drug Offenders, Reason.com (May 30, 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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Abandon Hope? Not this Congresswoman… – Update for April 18, 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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TILTING AT WINDMILLS

We had an email from an inmate this week asking whether we were aware of a bill pending in Congress that would reduce by the half sentences of nonviolent inmates over 45 years old without any shots.

retread170418The short answer is yes, there is such a bill. The long answer is that this bill – H.R. 64, Federal Prison Bureau Nonviolent Offender Relief Act of 2017 – is the mother of all retreads, having been pending in the last Congress as H.R. 71, Federal Prison Bureau Nonviolent Offender Relief Act of 2015, and the Congress before that (H.R. 62, Federal Prison Bureau Nonviolent Offender Relief Act of 2013), and the Congress before that (H.R. 223, Federal Prison Bureau Nonviolent Offender Relief Act of 2011), and… well, you get the picture.

We can track the pedigree of the Federal Prison Bureau Nonviolent Offender Relief Act all the way back to the 108th Congress (2003-2004), which is when lone wolf Sheila Jackson-Lee (D-Texas) first introduced the measure. She’s been tilting at the same windmill ever since, with her one-sponsor-only bill as certain a fixture in each new Congress as is the State of the Union address.

In 2015, one commentator wrote about Rep. Jackson-Lee’s bill (and others like it) that “these bills have very little likelihood of passage since only one representative, their author, has officially signed on as supporting them. Most of them were also introduced last Congress but were shelved.”

About 10,000 bills get introduced in every 2-year Congress, and only about 3% of them are passed. With the last Congress not able to even bring the Sentence Reform and Corrections Act of 2015 to the floor – after virtually all of its retroactive provisions (that would have helped federal inmates) were gutted – the “nonviolent offender” sentencing bill had no chance of even being taken up by a committee.

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

The new Administration, to put it charitably, is considerably less concerned than were Administrations of the past that federal inmates may be serving unfairly long sentences. Breitbart News, a right-wing website formerly run by Trump confidante Steve Bannon, was beating the drum last Saturday for a close audit of the 1,715 inmates whose sentences were commuted by President Obama. Most of those inmates are not released yet, but that did not deter Brietbart News, which quoted former federal prosecutor Bill Otis as saying, “What Attorney General Jeff Sessions’ Justice Department needs to do now is track the hundreds of fellows who got these pardons and commutations. With overall recidivism rates for drug offenses already being 77%, I think we have a pretty good idea, but the public should get specifics: How many of these guys re-offend; what’s the nature of the new crime; were there related violent crimes in the mix as well; and how many victims (including but not limited to addicts and overdose victims) were there?”

We monitor the bills being introduced in Congress every week. So far, nothing approaching the 2015 SCRA has been introduced.

Just last week, The Hill reported that Attorney General Jeffrey Sessions has directed federal prosecutors to crack down on violent crime. Sessions has tapped Steven Cook, a federal prosecutor and outspoken opponent of criminal justice reform, to lead Sessions’ new Task Force on Crime Reduction and Public Safety.

Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, was quoted as saying,

Obama moved away from that approach, and I think in the criminal justice world there seemed to be a consensus between the right and left that those policies, those rigid policies of the war on drugs and trying to get the highest sentence all the time, had failed… I don’t know if he is really going to be able to persuade the department to follow his lead on this.

Whiting questions whether Sessions would be able find 94 prosecutors to appoint as U.S. Attorneys who will back his new tough on immigration crime/violent crime approach.

windmill170418With this attitude prevailing in the Justice Department, any surge on sentencing reform (not to mention interest in executive clemency) is extraordinarily unlikely to occur. Nevertheless, a salute to Rep. Jackson-Lee, who makes Don Quixote look like a quitter.

Breitbart News, How Federal Agencies Keep Americans In The Dark About Crime Statistics (Apr. 16, 2017)

The Hill, Sweeping change at DOJ under Sessions (Apr. 16, 2017)

– Thomas L. Root

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Leftovers – Update for April 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.

Today, we have some leftovers for you, chiefly because we got so busy last week that we did not get caught up with posting before the weekend was upon us.

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NUMBERS OF THE DAY

After peaking in 2011, the number of federal criminal prosecutions has declined each year since, is now at its lowest level in nearly 20 years.

prosecutionstat170403A Pew Research Center analysis released last week reported that the 77,000 people charged in fiscal years 2016 was a 25% decline over five years before, when 103,000 defendants were charged.

Attorney General Jeff Sessions has indicated that the Justice Department will ramp up criminal prosecutions in the years ahead, leading some to suspect that the rate will climb again.

Pew Research Center, Federal criminal prosecutions fall to lowest level in nearly two decades (Mar. 28, 2017)

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CASH TAKE OF THE DAY

Last summer, USA Today reported that the DEA relies on a network of travel-industry informants, from ticket sellers to back office IT people, to single out passengers for asset seizures. The paper reported that 85% of cash seizures occurred as a result of such interdiction operations at transportation facilities or highway stops.

asset170403Turns out there’s a good reason for that. In a report issued last week, the Dept. of Justice Inspector General found the DEA has seized more than $4 billion in cash since 2007, with 81% of those seizures – totaling $3.2 billion – were conducted without civil or criminal charges being brought against the owners of the cash, and without any judicial review of the seizure. And that total does not include the value of other seized assets like cars, homes, boats or electronics.

Asset forfeiture - yeah, it kind of works like this...
Asset forfeiture – yeah, it kind of works like this…

The OIG report found the DEA could verify that only 44% of the seizures studied had been related to ongoing or new investigations or led to prosecutions. “When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution,” the report said, “law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution.”

In a written response to the Inspector General included in the report, the Justice Department’s Criminal Division disputed both the report’s findings and methodology. It maintains that civil asset forfeiture is “a critical tool to fight the current heroin and opioid epidemic that is raging in the United States.”

USA Today, DEA regularly mines Americans’ travel records to seize millions in cash (Aug. 10, 2016)

Office of Inspector General, DOJ, Review of the Department’s Oversight of Cash Seizure and Forfeiture Activities (Mar. 29, 2017)

Washington Post, Since 2007, the DEA has taken $3.2 billion in cash from people not charged with a crime (Mar. 29, 2017)

Reason, DEA Seized $4 Billion From People Since 2007. Most Were Never Charged with a Crime (Mar. 29, 2017)

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THE FIRST STIRRINGS OF SENTENCE REFORM?

Jared Kushner, son-in-law and senior adviser to President Donald Trump, met last Thursday with Sens. Chuck Grassley (R-Iowa) and Richard Durbin (D-Illinois) on Capitol Hill last Thursday to discuss revival of the sentencing reform legislation that stalled at the end of the last session of Congress.

The story broke on the paragon of journalism excellence, Buzzfeed, leaving us to withhold noting it until some more acceptable journalistic sources picked up the story. It does, however, appear to be accurate.

SR160509Grassley, chairman of the judiciary committee, and Durbin, the Democratic whip, have said they want to bring back sentencing reform legislation in this Congress. Sen. Mike Lee (R-Utah), a strong advocate for criminal justice reform, attended the meeting as well.

Grassley said he will “know in three weeks” whether the White House is interested in the legislation. He told reporters, “We’re trying to reach some accommodation, if there needs to be any adjustment to the bill we had last year.”

A broad coalition — including the ACLU and the conservative Koch Industries — says the federal criminal justice system is broken. Grassley, Durbin and Sen. John Cornyn (R-Texas), sponsored the prior bill in the Senate. House Speaker Paul Ryan, R-Wisconsin, was a strong supporter of the effort.

US News, White House Adviser Kushner, Senator Talk Criminal Justice (Mar. 30, 2017)

Buzzfeed News, White House sends Jared Kushner to meet with top senators on improving the criminal justice system (Mar. 30, 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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