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The Racial Politics of Clemency

The Obama Administration's Department of Justice is going all-out in its drive for clemency for a large segment of federal inmates convicted of drug offenses. It's also making a big display of it, with a prominent rollout this week.

Why?  And why now?

This is the depressing answer:  Politics, and specifically the politics of the mid-term elections, in which control of the Senate is widely thought to be at stake.

That answer probably seems counter-intuitive. The conventional wisdom is that Presidential clemency is a political loser.  It got a bad name with Clinton's midnight pardons on the way out the door, and hasn't really recovered. Polling confirms what common sense and experience tell us:  The public overwhelmingly thinks that the problem in the criminal justice system is not that we have too many prisoners serving sentences that are too long, but that too many criminals are released too early. This is why Presidential pardons have so often been given at Christmastime, which provides the cover of compassion in addition to being conveniently the month after the election.

So what's the difference this time?

Hold the Phone on the SSA

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The primary argument for the Smarter Sentencing Act  --  the proposal that would slash by half mandatory minimum sentences for drug dealers  --  is that MM's, though often only a half to a third of what the guidelines range would be for a given offender, are still unnecessarily harsh, and are driving the federal prison budget through the roof.  To save money if for no other reason, we need for these offenders to be spending less time behind bars.

It is becoming increasingly clear, however, that we don't need a statutory change to do that. The President has always had unilateral power to reduce what he views as excessive sentences. Still, many have argued, up to now, that citing his clemency power is like citing the Abominable Snowman, because it never really seems to show up where anyone can see it.

That's where today's long and seemingly well-informed Yahoo news article comes in. It reports that the President is making ready to issue "hundreds if not thousands" of sentencing commutations to exactly the people the SSA is designed for.  And this is not the first time we've heard about this.

With the President apparently making ready to fix the "problem" at which the SSA is aimed (assuming one views it as a "problem"),  and simultaneously demonstrating that he's more than ready to fix such "problems" should they arise in the future, Congress should, at the minimum, defer action on the SSA to see what the lay of the incarceration land is after what is shaping up as the President's sweeping action.
My post yesterday describing White House Counsel Kathryn Ruemmler's remarks about Presidential clemency did not go nearly far enough.  Now that I take a closer look at the AP report, I have to wonder whether something very, very broad is afoot. Specifically, I wonder whether the President is planning to implement the heart of the Smarter Sentencing Act on his own.  It would scarcely be the first time this President by-passed Congress.

Here is what Ms. Ruemmler is reported to have said:

"The president believes that one important purpose [of executive clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice," Ruemmler said in remarks prepared for delivery Tuesday at New York University's law school. "This effort also reflects the reality that our overburdened federal prison population includes many low-level, nonviolent offenders without significant criminal histories."  ***

[She also] said the Justice Department plans in the coming weeks to encourage worthy inmates to request commutations, with bar associations offering to help with applications. She said Obama's new budget proposal calls for seven more staffers to be added to the Office of Pardon Attorney to handle applications, saying that the two years the office has taken to resolve petitions in recent years has been "unacceptably long." She said Obama met with U.S. attorneys last month and asked them to personally review petitions to consider "whether granting clemency would be consistent with the values of justice and fairness that are the hallmark of the best traditions of the Department of Justice."

To me, this sounds like a mass commutation is in the works, and I gather I'm not the only one who senses this.

More Mush from DOJ, cont'd.

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Yesterday, I noted that, contrary to what Eric Holder told Congress, the so-called Smarter Sentencing Act does  not "restore discretion" to judges.  The main thing it does is cut the minimum sentences applicable to dealers in heroin and other extremely dangerous drugs. But the sentences would still be mandatory.

It occurs to me that I omitted to mention another whooper Mr. Holder told  almost in the same breath.  He testified that the SSA "will ensure that the toughest penalties are reserved for the most dangerous or violent drug traffickers."

One has only to read the text of the proposed Act (Sec. 4 in particular) to see that this stands the truth on its head.  The Act gives the biggest breaks to the most dangerous (and repeat) offenders. Thus, for the relative small fry, the reduction is 3 years, from a mandatory minimum of 5 to a mandatory minimum of 2.  But for the really bad actors, the reduction is 10 years, from 20 to 10, or more than three times as much.

With math like that, perhaps Mr. Holder's next job will be in the Indiana Legislature.

More Mush from DOJ, Plus a Little Fib

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Cutting and pasting from his last 3000 speeches,  Attorney General Holder testified today before the House Judiciary Committee.  He repeated his standard lines in favor of cutting by half the minimum required sentences for drug dealers  --  which, of course, he never actually identifies as "cutting by half the minimum required sentences for drug dealers." Instead, he talks in roundabout language designed to obscure what's actually going on. Thus, he uses the always-a-good-tipoff set of phrases like "evidence-based," "commonsense change," and "tough and smart."

For right now, I want to highlight one thing Holder said that's simply not so.  He stated (prudently tucked into his eighth paragraph) that the Smarter Sentencing Act "would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes."

Well, not really.  The SSA says not one word about judicial discretion, and, as John Malcolm of Heritage has pointed out, actually adds three mandatory minimums to existing law.  To that extent, the SSA reduces such discretion.

It's the Justice Safety Valve Act, sponsored by the even more extreme Pat Leahy and Rand Paul, that would let judges run wild again, as in the bad old days of the crime-ballooning Sixties and Seventies.  The Smarter Sentencing Act "merely" cuts mandatory minimum sentences, but they remain mandatory, and not subject to the the whim ideology temperament frolic discretion of  judges.

Why the Use of Informants is Risky

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Because one of them might turn out to be Al Sharpton.

In what has to be one of the oddest criminal law stories I've seen for a while, Al Sharpton, who yesterday denied that he had been an FBI informant in the 1980's, today admits it and says it's old news.  

I was a federal prosecutor for many years, and I can tell you that informants are necessary, particularly in mob and big drug conspiracy cases.  But they're a boatload of trouble. For one thing, anyone in a position to have lots of information about extortion rackets or drug dealing is unlikely to have the character of the Pope.  The defense lawyer in cross examination is going to go to town.  

For another, such people are likely to have been life-long fabulists, and Big Al is no exception. Indeed, Rev. Sharpton is the prototype liar, having concocted one of the most remarkable hoaxes of recent times in the Tawana Brawley rape hoax.  

None of this, of course, keeps Big Al from being a frequent, honored guest of Barack Obama.  Records show that Sharpton had more visits with the President last year than Harry Reid.  Gads, I hope he wasn't wearing a wire!

UPDATE:  One acid commenter on Powerline notes, "Considering that Al ratted on the mob, he should be as nervous as a virtuous intern at the Clinton Foundation."
When I debated the merits of the proposed Smarter Sentencing Act before the Senate Republican Policy Committee, my opposite number was John Malcolm, formerly Deputy Assistant Attorney General for the Criminal Division.  John has been a friend for years, and I was fortunate to have such an affable and knowledgeable opponent.

One of the claims made in behalf of the SSA is that it's being backed by a number of conservative groups and individuals.  This claim is correct.  John rattled off several of them, including but not limited to Right on Crime, Americans for Tax Reform, Newt Gingrich, David  Keene and George Will.

So I got to thinking:  Are conservatives really the mainstays of this bill?  Find out for yourself.
Several weeks ago, the so-called Smarter Sentencing Act was passed out of the Senate Judiciary Committee on a 13-5 vote, with all ten Democrats and three Republicans (Lee, Cruz and Flake) voting in favor.  The opposition was led by Ranking Member Chuck Grassley.  I have previously analyzed the law and the politics of the SSA.  If enacted, it would be the most significant generally applicable piece of federal sentencing legislation since the SRA 30 years ago.

Yesterday, I had the opportunity to address the Senate Republican Policy Committee about this bill, arguing that it should be defeated.  My friend John Malcolm of the Heritage Foundation, and chairman of the Federalist Society's Criminal Law Practice Group, took the other side.

My opening statement follows the break.  Please bear in mind that this was a partisan speech to a partisan audience; C&C itself is not partisan, although the views expressed here more often coincide with those of Republicans rather than Democrats.

A Death Sentence in Connecticut

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A second jury has unanimously reimposed the death penalty on a man who murdered three people, including 9-year-old Kylie Flannery, in Bridgeport, Connecticut in 2006.  AP has this story.

The Connecticut Legislature voted in 2012 to abolish the death penalty for future cases but not past ones.  CJLF's brief in the Connecticut Supreme Court supporting the prospective-only feature is here.

This verdict illustrates why the repeal vote was wrong.  Not once but twice, 12 citizens have decided unanimously that any punishment less than death for this particular crime is insufficient.  By taking that option off the table for future cases, the Connecticut Legislature has turned its back on justice.

Abolition of the death penalty is essentially an elitist cause.  People who live in safe, leafy neighborhoods can wring their hands over the poor, unfortunate wretches on death row and ignore the suffering of the people these monsters have murdered as well as the families left behind.  For politicians, a vote to abolish gets them good press and brownie points with some well-heeled supporters.  It appears not to hurt them with the general public as long as crime remains low on most voters' list of priorities.

In recent years, crime has been off the radar screen as wars in the Middle East, the financial crisis, the recession, and the fight over health care have taken center stage and while crime rates have dropped to lows unseen in decades.  In part, "tough on crime" has been a political victim of its own success.  In part, it has been undermined by the ebb and flow of unrelated historical events.

Will this be the year crime reappears on the voters' radar?  In Colorado, it is an element of Gov. Hickenlooper's surprising electoral weakness.  In California, backlash against Gov. Brown's "realignment" folly may be an element in California Republican Party's return from the grave.  We will have to wait and see.

Adegbile Nomination Defeated

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Susan Davis reports for USA Today:

The U.S. Senate narrowly defeated President Obama's nominee to oversee the Justice Department's Civil Rights Division due to Republican and law enforcement objections to the role he played in the defense of convicted cop-killer Mumia Abu-Jamal.

Only 47 senators, all Democrats, voted to advance Debo Adegbile's nomination while 52 senators voted to block him, including 7 Democrats. Vice President Biden presided over the vote in the event he could break a tie, which was unnecessary after Democrats failed to muster enough support.

Of course, supporters say the predictable things:

Democrats, lawyers groups and civil rights activists hailed Adegbile as one of the nation's leading civil rights attorneys with impeccable credentials honed over two decades in the profession. He has worked as an aide in the U.S. Senate as well as the NAACP Legal Defense and Education Fund and has argued two civil rights cases on voting rights before the Supreme Court.

"There is no question about his competence," said Senate Minority Whip Richard Durbin, D-Ill., prior to the vote.

Senator Durbin is actually the Majority Whip, but that's a nice thought.  Maybe next year.  [Update: The article has been corrected.]  Did Senator Durbin say that competence is all that matters when Justice Alito was nominated?  I don't think so.  As always in Washington, "where you stand depends on where you sit."

See also yesterday's post, containing links to numerous earlier posts on this matter.

Adegbile Nomination in Trouble

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Wesley Lowery has this post at The Fix, the WaPo's political blog, on the nomination of Debo Adegbile to head the USDoJ Civil Rights Division.  It is titled, "Remember Mumia Abu-Jamal? He may derail Obama's pick for top civil rights post."

Under new Senate rules approved last November, Adegbile will need to secure a simple majority of senators -- 51 votes -- to clear a procedural hurdle before he is confirmed. But Adegbile's confirmation is at risk of falling short of the votes needed as Democrats face pressure from Republicans and several national law enforcement groups who oppose his nomination.

The first sign that the Adegbile nomination could be in real trouble came last week, when Sen. Bob Casey (D-Pa.) said he would not vote in favor of confirmation.
See earlier posts Jan. 9, Feb. 4, Feb. 6, Feb. 6 (again), Feb. 19, and Feb. 26.
Senator Pat Toomey (Pennsylvania) and Philadelphia District Attorney Seth Williams had this op-ed in the WSJ Monday on the controversial nomination of Debo Adegbile to head the DoJ's Civil Rights Division. 

It is not the fact that NAACP-LDF defended a murderer under Mr. Adegbile's watch that disqualifies him, but the manner in which they went about it.  And, no, the fact that he was not the lead attorney on the case does not matter.  It was done under his watch, and, given the high profile of the case, it is inconceivable that he did not know and approve of it.
...there were leaders who sought to put criminals in jail, rather than get them out.  

Yes, well, that was then.  The Justice Department that exists now goes hat-in-hand to pro-criminal groups, seeking their assistance in snuffing perfectly legal sentences for guilty men.  It does this while turning its back on the career prosecutors who, under increasing hardships and sometimes under threat, work to enforce laws the Attorney General sniffs at.  Meanwhile, DOJ embraces as one of the Attorney General's top Assistants a man who made his bones doing a PR campaign for a cop killer.

At this point, it's fair to ask:  Who is the Department of Justice working for?
Last week, I noted the posts by Sasha Volokh on studies of faith-based prisons and the selection bias problem.  Volokh explains selection bias in more detail, but in a nutshell a comparison of outcomes between a "treatment" group and a "control" group tells us nothing if the groups are selected in a way that makes one group more likely to achieve the outcome for a reason other than the treatment.  Any claim that a difference in outcomes shows the effectiveness of the treatment is junk science.

Now exactly this kind of junk, indeed an extreme example of this kind of junk, has been cited by none other than the Attorney General of the United States on the subject of felon disenfranchisement.  He has been called out on this by none other than the previous Attorney General of the United States in this op-ed in the WSJ (subscription).

Public Opinion on Felon Suffrage

The Rasmussen Poll has this report, beginning with this odd paragraph (emphasis added):

Voters in 11 states can permanently lose their right to vote if convicted of a felony. Among most other states, that right can be restored only after serving some combination of their jail time, parole and probation. But most voters believe someone convicted of a felony should regain the right to vote after serving their sentence problem-free.
What's with the "but"?  Completion of the period of parole or probation is part of the sentence, so the proposition endorsed by most voters is consistent with the law of most states.

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