Tag Archives: sessions

Taking the “Justice” Out of DOJ – One Position at a Time – Update for November 27, 2017

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

Attorney General Jefferson Beauregard Sessions III
     Attorney General Jefferson Beauregard Sessions III in a seriously retouched photo.

Anyone who wonders where Attorney General Jefferson Beauregard Sessions III will take the Dept. of Justice has to look no further than a brief filed last month in McCarthan v. Collins.

Late last July, we wrote about McCarthan, which deals with when and under what terms an inmate may use a 28 USC 2241 motion. Recall that every inmate gets to file one motion under  28 USC 2255, but only one: filing a second 2255 motion requires prior approval of a court of appeals, which is granted only in unusual circumstances.

One such circumstance is a new Supreme Court ruling changing a constitutional rule and made retroactive. The 2015 Johnson decision, that declared part of the Armed Career Criminal Act unconstitutional, is the most recent example of such a case.

But sometimes changes in the law are not based on the constitution, like a 1995 Supreme Court decision holding that the lower courts had been misinterpreting 18 USC 924(c) – which punishes using a gun in a crime of violence or drug offense – and locking up people to whom the statute did not apply. The decision was purely one of statutory interpretation, with no constitutional dimension at all. Because of that,  people who had already filed a 2255 motion were prohibited from filing another one, because the nonconstitutional change in the law did not qualify them for a second 2255.

For that kind of problem, 2255 has a “saving clause” at 28 USC 2255(e), which provides that a prisoner may use the other form of federal habeas corpus – a petition under 28 USC 2241 – if it “appears that the remedy by [2255] motion is inadequate or in-effective to test the legality of his detention.”

Some of the people who say this really are...
Some of the people who say this really are…

For the past 20 years, prisoners have been allowed to use 2241 to challenge convictions that suddenly became non-convictions because statutes had been reinterpreted in such a way that the inmates were no longer guilty of a crime. And what could make more sense? If a guy has been locked up for a decade, and he already used up and lost his 2255 motion nine years before, does that make it fair to keep him in prison another 10 years for something that’s no longer a crime?

Many years ago, Dan McCarthan walked away from a halfway house, a mistake that caught him an escape charge. At the time Dan was convicted of a felon-in-possession gun charge, all escapes were deemed to be violent, and that got him 15 years under the ACCA. But then, in 2009, the Supreme Court held escape was not a violent crime. Because the decision was based on interpreting the statute and not the constitution, it did not entitle Dan to file a second 2255, so he filed a 2241.

The district court threw out Dan’s 2241, but a three-judge panel on the 11th Circuit held he was entitled to seek review using that petition. Then, the Circuit decided to rehear Dan’s case en banc, and told the parties to brief the question of whether the 2241 was even usable in this kind of case.

Meme171127The Circuit – by a 7-4 vote last March, with six different opinions totaling more than 150 pages – held that an initial Section 2255 motion is an adequate and effective remedy to “test” a sentence, even when circuit precedent forecloses the movant’s claim at the time of the motion. After all, the Circuit said, a movant could have asked the court of appeals to overrule its precedent, sought Supreme Court review, or both. The en banc decision asserted the saving clause in Section 2255(e) is concerned only with ensuring that a person in custody has a “theoretical opportunity” to pursue a claim, even if, at the time of the initial 2255 motion, the claim was virtually certain to fail in the face of adverse precedent. In other words, you have to raise arguments even when the court has already said the arguments are futile.

Prior to the 11th Circuits’s decision in Dan’s case, only the 10th Circuit took such a draconian view of the saving clause. But now, the circuit split is 9-2, and thousands of federal inmates are shut out of relief.

Dan filed a petition for writ of certiorari with the Supreme Court last summer, asking the Court to resolve the circuit split by ruling that the 2255 savings clause was intended to throw a lifeline to someone who never had a reasonable chance because circuit precedent foreclosed his argument. He argued that “the conflict on the question presented cries out for the Court’s intervention. The arguments on both sides of the conflict are well developed, with the benefit of numerous opinions across nearly every regional circuit over the last two decades. There is little room for the law to develop further… This case satisfies all of the criteria for the Court’s review, and the petition for a writ of certiorari should therefore be granted.”

This is where the plot thickens. For the last 16 years, the Justice Department had taken the same view held by Dan and 9 out of 12 circuits. DOJ even said so in at least 11 separate Supreme Court filings. But that was then. This is now, and now, the AG wants to have it both ways.

DOJ told the Supreme Court that it no longer believed that federal prisoners serving longer prison terms than the law allowed were entitled to challenge their sentences in court, because they could have raised the issue themselves years before (when their chance of prevailing was theoretical at best and located somewhere between slim and none). 

curtain171127That change of position alone is duplicitous, but the next part is downright gutless. Given the fact of a substantial circuit split, you might be forgiven for thinking that DOJ would suggest the Supreme Court should take this case to settle the issue. But instead, Sessions’ department doesn’t want the Supremes to touch it, even though the DOJ brief acknowledges that the legal question is significant and that its new position could condemn inmates to serve out unlawful sentences.

Last week, The New York Times observed that “it is one thing for a new administration to switch sides in a legal dispute. That is merely unusual. It is another to urge the Supreme Court to deny review in a case that would test whether the government’s new position is correct.”

Dan’s petition is scheduled to be considered at the Supreme Court’s conference on Friday, December 1.  It could be decided then or get relisted for one or more subsequent conferences.

New York Times, Serving Extra Years in Prison, and the Courthouse Doors Are Closed (Nov. 20, 2017)

– Thomas L. Root


Congress to Try, Try Again on Sentencing Reform – Update for September 21, 2017

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


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


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

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


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


Dept. of Justice Gets Tough With Sentencing Commission – Update for August 10, 2017

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


The United States Sentencing Commission, a 7-member judicial agency charged with writing and amending the federal sentencing guidelines faced a manpower crisis earlier this year, as only two voting members remained. The Senate increased that number to the minimum needed for a quorum by approving two Obama holdover nominations in March.

Nevertheless, the shortage of a voting quorum for three months left the Commission unable to assemble a slate of sentencing guidelines amendments for 2017. To get the Commission back to fighting trim will require three more commissioners be appointed by President Trump and approved by the Senate.

Attorney General Jefferson Beauregard Sessions III

Enter everyone’s favorite compassionate conservative, Attorney General Jefferson Beauregard Sessions III. Sessions yesterday urged the White House to nominate federal judge and ex-prosecutor Henry E. Hudson to the Commission. Judge Hudson, who as a prosecutor was nicknamed “Hang ’Um High” Henry Hudson and said he lived to put people in jail, earned fame as a prosecutor for railroading a developmentally disabled man into prison for a rape he didn’t commit. Hudson’s successor exonerated the man when inconsistencies in the case led detectives to pursue other leads, ultimately linking a serial killer to the murder. Faced with the evidence that he had convicted the wrong guy, Hudson wrote in his memoirs, “I certainly wish him the best, and regret what happened. However, I offer no apologies.”

HudsonA170811At the same time, Sessions is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders. In public comments filed with the Sentencing Commission on July 31, the Dept. of Justice asked it to preserve mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.

hudsonB170811DOJ also encouraged the Commission to abandon the categorical approach (Mathis v. United States) for determining which state crimes are crimes of violence supporting much higher sentencing ranges for “career offenders.” The Department complains that the “categorical approach,” which requires courts to “focus solely on whether the elements of the crime of conviction sufficiently match the elements of a generic version of the crime,” focuses on the abstract elements of the statute “and largely ignores the conduct that the defendant actually committed. This approach has resulted in some repeat violent offenders… receiving a sentencing range that is lower than their conduct and criminal history warrant. The categorical approach also consumes an inordinate amount of time for trial court judges, appellate court judges, probation officers, prosecutors, and defense attorneys.”

hangem170811DOJ argues that “the time has come to abandon the categorical approach in those cases involving the enumerated felonies clause. The Department would be pleased to work with the Commission to develop a workable and fair approach that focuses less on formalism and more on the defendant’s conduct.”

Of course it would. And Judge Henry “Hang ‘Em High” Hudson is just the kind of commissioner with whom DOJ would like to work.

Dept. of Justice, Response to Request for Public Comment, Proposed Priorities for Amendment Cycle, 82 FR 28381(filed July 31 2017)

Wall Street Journal, Sessions Promotes Tough-On-Crime Judge for Sentencing Panel (Aug. 10, 2017)

– Thomas L. Root


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

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


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



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


Abandon Hope? Not this Congresswoman… – Update for April 18, 2017

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



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


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

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


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

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