Failure to pass First Step Act would be a step backward

The federal First Step Act this week dominated national #cjreform news, with President Donald Trump endorsing the bipartisan #cjreform legislation. But Majority Leader Mitch McConnell appears ready to renege on his promise to hold a vote during the lame-duck session. Here in Texas, John Cornyn is one of the bill sponsors, while our D.C. allies presently consider junior Senator Ted Cruz as "leans no."

Here's a summary of the bill from Families Against Mandatory Minimums, and here's law prof Mark Osler giving a run down on the bill's contents. Learn what the bill is about, then go here to contact Ted Cruz's office to ask him to support the legislation.

Earlier this year, the Perfect-Is-The-Enemy-Of-The-Good Caucus on the Democratic side were complaining that the legislation did not go far enough. But mercifully, those voices have STFU here in the homestretch. (Thank heavens! Grits was really starting to get annoyed at some folks whom I otherwise respect.) Sen. Dick Durbin (D-IL), who has been the best D reform champion in the US Senate, gave an excellent speech this week explaining why Democrats should hold their nose at voting with the President and support bipartisan justice reforms on the table.

Certainly, this bill doesn't go as far as your correspondent might like. But there's an unspoken benefit to passing the legislation beyond its contents. Getting to a vote on reform legislation in Congress provides a template to work from when pursuing future legislation. Without it, most senators won't have to take a stance, and the politics of the issue remains mushy and difficult to assess.

Texas has received much praise for its 2007 probation reforms, which have been hailed as a national model and a precedent for this federal bill. But what's less well known is that earlier reform votes at the Texas Lege in 2001 and 2003 - related to corroborating testimony of drug informants and mandating probation for the first offense on user-level drug-possession charges - provided the vote template upon which advocates built the '07 coalition. The latter couldn't have happened without the former.

In that sense, the First Step legislation is aptly named. Once it passes, other #cjreform legislation may well be possible. But if it fails, momentum will die and it could be years before the opportunity arises again. Failure to close, when the legislation is SO close to its denouement, would be a harsh disappointment and a bitter pill to swallow.

Reforming use-of-force policies, incarcerating pregnant women because they're poor, and other stories

Let's share a few links with Grits readers, just to clear the browser tabs:

Charles Sebesta as Inspector Javert
Defrocked prosecutor Charles Sebesta is waging a legal battle to overturn the state bar's decision to disbar him, reported Brandi Grissom at the Dallas News. He was already retired so this legal campaign, which must be costing the guy a small fortune, is all about ego. It's like watching Inspector Javert drown himself in the Seine.

State invests $400K in defense support on DNA mixtures
The Houston Chronicle ran a feature on the review of DNA mixture cases going statewide through the Forensic Science Commission, which Grits has discussed at some length. That report included this notable news:

Signs posted in Texas prison libraries in December tell inmates in English and Spanish about the issue and provide a Harris County post office box to which inmates may write if they believe their cases included this kind of DNA evidence.

Bob Wicoff, head of the appellate division for the Harris County Public Defender's Office, said about five to seven letters arrive each day, but he anticipates the box eventually could receive hundreds.

Backed by a $400,000 grant from the Texas Indigent Defense Commission, Wicoff will spend the next several years steering the statewide effort for the defense bar, aided by volunteer lawyers and law students. He will train lawyers to understand the science and vet cases to see whether they meet the criteria.

Dueling use-of-force reform suggestions
Grits earlier mentioned that Campaign Zero, a project of the national Black Lives Matter movement, had begun targeting use of force policies as an avenue for reform. Now the Police Executive Research Forum has come out with its own set of more moderate reform proposals on the topic. As I wrote in an email to two of Grits' contributing writers, between those two sets of suggestions - plus the legion of law enforcement interests who will just say "no" to any reform proposals - new terms of debate over use of force policies are beginning to emerge. For the first time in my life, people don't just ask Sam Walker what to do and then stop the debate!

More conservatives push for asset forfeiture reform
The Institute for Policy Innovation, a conservative think tank which to my knowledge has never done much on criminal justice before, is hosting an event on asset forfeiture next week in Dallas in collaboration with the Right on Crime campaign. See a column in the Fort Worth Star-Telegram from their president on the topic.

Incarcerating poor pregnant women pretrial in Tarrant County
In the Star-Telegram, see a story about women taking prenatal classes in the Tarrant County Jail. Particularly disturbing, some of the 20 pregnant inmates in the Tarrant County Jail are "waiting to make bail," meaning a judge deemed they were eligible to be released but they didn't have enough money to pay a bail bondsman. So poor women stay incarcerated and county taxpayers pick up the tab for their prenatal education classes and healthcare instead of Medicaid. Does that make any sense?

Cornyn pushing federal sentencing reform
Grits doesn't track federal stuff much but can't help but notice that Sen. John Cornyn continues to expend political capital on criminal justice reform even as Texas' junior senator and active presidential candidate Ted Cruz opposes it. Bully for Cornyn, and good luck to him.

Texas will see most federal drug offenders released

With the advent last year of new rules from the federal sentencing commission, the largest number of federal drug prisoners scheduled to be released in the coming months and years will return home to Texas. An attorney quoted by the SA Express-News explained, “The reason they’re being released is because the Sentencing Commission lowered the guideline, and a judge granted a motion made by the defendant to have their sentence lowered under that guideline.”

More than 50,000 people sentenced between 1991 and October 2014 will likely be eligible for some sort of sentence reduction, with the average change being 23 months, according to the Sentencing Commission. The average sentence under the new guidelines will be 8.5 years in prison.

Nearly 4,000 offenders sentenced by judges in the Western District of Texas, which is headquartered in San Antonio and stretches west to El Paso and north to Waco, are likely eligible for reduced sentences.

Judges in the Southern District of Texas, which includes Houston, Laredo and the Rio Grande Valley, have granted the most reductions, 870.

Most will be released over the next five years as their new prison terms expire.

When it announced the reductions last year, the Sentencing Commission said it delayed releases until November to give the Justice Department, which oversees the Bureau of Prisons, time to prepare for the influx. Many of those being released next month are likely already in halfway houses.

In all, "The Justice Department expects 6,000 low-level drug offenders will be released next month under new sentencing guidelines. About a third will be deported and more than 4,000 will be returning to society. In total to date, 13,187 offenders have received a sentence reduction under the program." Even so, in the most recent period more than 62 percent of federal drug sentences involved mandatory minimums, so the situation has been mitigated but not resolved.

Bar alleges DA misconduct in Willingham case, bad closed-records bill, auditing forfeitures, testing for steroids, diligent participation credits (federal and state) and other stories

Here are a few odds and ends that deserve readers' attention but didn't make it into individual posts during a busy week:

State bar accuses Willingham prosecutor of misconduct
Reported the Marshall Project, "the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters." The bar "accuses [former Navarro County DA John] Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana." From the bar complaint: "Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel. Specifically, [he] failed to make timely disclosure to the defense details of an agreement for favorable treatment for Webb, an inmate, in exchange for Webb's testimony at trial for the State."

SA4 case headed toward denouement
Again from the Marshall Project, a review of the San Antonio Four case and the difficulty of evaluating the veracity of child accusers who recant. Wrote Maurice Chammah, the SA4 cases "fall into an increasingly visible category of prisoners who have been freed due to evidence of a wrongful conviction but have not been formally declared 'innocent' by courts." This was also a case where Texas' new junk science writ came into play.

Making state employees DOB secret invites unchecked corruption
State Rep. Cindy Burkett has filed legislation to disallow people from accessing state employees birth dates under open records requests, the Dallas News reported, but this is a terrible idea that would dramatically reduce accountability in state government. As a practical matter, for an investigative reporter, a campaign opposition researcher, private investigators, citizen activists, or any independent fact finder investigating state government, date of birth is the main way one can viably distinguish individuals, especially if they have common names. (Is "Randy Jones" from the signature line of a state contract the same person as "Randall Jones" who seems to have received favorable terms on a land deal with the same company? You need a DOB to tell.) Remove that tool and much of the old-school paper trail work involving public information requests and courthouse records becomes nigh-on impossible. I understand the privacy-based impetus behind this bill, but it's profoundly misguided.

State auditor reviewing Dallas DA forfeiture expenditures
The State Auditor is investigating the asset forfeiture funds of former Dallas DA Craig Watkins following allegations that he improperly used the account to settle a civil suit over a car wreck he caused which included a gag order. The auditor's report is expected in May, reported the Dallas News.

Prison riot spurs busted contract
The feds are ending a contract with the South Texas prison where immigration detainees recently rioted, reported the Houston Chronicle. See more from Texas Prison Bidness.

State to stop steroid testing HS athletes, still no mandate to test cops
I've never understood why Texas chose to test high school athletes for steroids - despite little evidence there's a big problem with their use at that level - but never chose to test police officers, for whom there's ample evidence of significant steroid use. (To their credit, a few departments including Dallas and Arlington PD have begun testing on their own.) The state is finally going to ditch testing for high school athletes; I still think they'd expose a lot more problems by spending a fraction of that money testing police officers.

Cornyn backs aggressive sentence reductions for program participation, will Texas?
See an update on federal sentencing reforms being pushed by Texas Sen. John Cornyn. Under his bill, "Medium and low risk prisoners could earn a 25 percent sentence reduction or transfer to a halfway house or home confinement through completion of programs." That's slightly more generous, even, than the (up to) 20 percent sentence reduction which would be available to state jail felons for "diligent participation" in programming under SB 589 by Sen. Jose Rodriguez, which was heard on Wednesday in the Senate Criminal Justice Committee. Perhaps Sen. Cornyn endorsing an even more aggressive version of the same idea will help Mr. Rodriguez's cause.

Stingrays and non-disclosure agreements
The New York Times this week ran a feature on the worrisome requirement that local police departments which by "StingRays" and other surveillance devices from the Harris Corporation must file non-disclosure agreements which they claim trump open records laws or, in the case of Houston PD, even a duty to disclose to prosecutors how they use the devices. These issues will soon be prominently raised in Texas as Dwayne Bohac's HB 3165, which would require law enforcement to get a warrant to target an individual's phone using the device. His bill also trumps these sorts of NDAs, making information about Stingrays subject to the usual provisions of the Public Information Act.

How jailhouse snitch testimony can 'backfire,' even with corroboration
Vice.com has a thoughtful discussion of problems with overuse jailhouse informants, even in states like California which require corroboration of their testimony (a provision, writer Kevin Munger could have added, which Texas passed two years before the Golden State).

Texas Western, Southern Districts lead way in prosecuting immigration violators

While routine immigration violations are generally a civil offense, there is a category of federal prosecutions - for "illegal reentry" - that are explicitly criminal charges. The US Sentencing Commission prepared this fact sheet (pdf) summarizing data regarding prosecution of illegal reentry, the main criminal charge filed against repeat offenders. Texas' Western (3,664) and Southern (3,387) Districts had the second and third most cases among all US Attorney divisions behind Arizona (3,873) in 2012. The fourth ranked District, New Mexico, prosecuted  fewer than 2,000 cases. Overall, the charges do not appear to be targeted at serious criminal offenders. "Fewer illegal reentry offenders were also assigned to the highest Criminal History Category (from 9.4% in fiscal year 2008 to 5.4% in fiscal year 2012)."

Via the US Sentencing Commission and Doug Berman.

Texas reforms helping change D.C. gridlock on drug-law sentencing

Changing attitudes in Texas are altering the conversation in Washington D.C. about drug law reform. For evidence, check out these two items published today which both cite Texas de-incarceration strategies as contributing to new momentum for reforming federal drug laws:

• The Hill: Amid gridlock, a surprising accord on drug-law sentencing
• The American Prospect: Prison reform: No longer politically toxic?

RELATED: Ideology, interest and Texas' probation reforms

Roundup: Top stories cropping up during Grits' recent absence

Grits is still poking around at news stories that cropped up while this blog was on a brief hiatus and thought I'd share a few that may not make it into independent posts.

Houston police union balks at mandatory DWI blood draws
The Harris County DA now requires blood tests in every DWI case where drivers refuse a breath test. The police union, reported the Houston Chronicle (July 28) objects because it takes police off the street and makes them unavailable for other routine tasks. "'They're not going to be as savvy on how to do these warrants, so it's going to take them six to eight hours, and that means the officer is off the street for that entire time,' [HPOU President Ray] Hunt said. 'It's a major issue.'" Grits' take: The new DA is willing to sacrifice police coverage to make securing DWI convictions easier, an option available to him because police and prosecutors' funding come from different pots (city vs. county). Whether that's a wise public policy choice depends on whether you think maximizing police coverage or misdemeanor convictions improves safety more. IMO the strongest evidence argues for the former, but reasonable folks may disagree.

Bribery investigation targets Denton Sheriff
Reported the Dallas Morning News (Aug. 9), "The Denton County sheriff (William Travis) is under investigation over allegations that he tried to bribe a political opponent to quit an election and also tried to bribe a former deputy into abandoning a lawsuit against the department." All involved deny the allegations. Here's a link to the affidavit written by Texas Ranger James Holland to seize the cell phone of Constable Jesse Flores as part of the investigation into Sheriff Travis. As an aside, readers in the comments pointed out that a Denton County Sheriff was convicted of bribery 25 years ago, also based on offering a political opponent a job to drop out of the race.

Light sentence for cop who stole from crime scene
A Houston police officer pled guilty for stealing cash from a crime scene. He received deferred adjudication with two years of probation and could ultimately have the conviction wiped from his record. After all, one supposes, he was only stealing from criminals.

GOP critic blasts Montgomery County private prison maneuvers
A blogger at GOP Vote complains that the Montgomery County Commissioners Court has launched into a seemingly never-ending jail building spree without consulting voters.

Opposition mounting to McAllen's private jail scheme
Fifty groups have signed onto a letter opposing a speculative jail privatization scheme in McAllen, the McAllen Monitor reported. Here's a copy of the letter. Notably, the Monitor knew about the proposed deal and intentionally failed to report it for more than a year. If they hadn't, the opposition might have a better chance of influencing the process.

News flash: Parole board must follow laws
This story from ABC's Good Morning America about Texas parole laws is possibly the most ignorant thing I've seen written by a professional reporter in 2013, which is saying something. The writer complains of a "loophole" requiring murderers (or anyone else) convicted between 1977 and 1987 to be released via a since-eliminated "mandatory supervision" law, under which they're let go when time served plus good time equals their sentence. What a crock! Since when is it a "loophole" to apply the law as written? Anyway, that hasn't been the case for years but it would be unconstitutional (in spades) to apply ex post facto rules to sentences issued under the old regime. This story was a) 26 years old, so not "news," b) utterly ignorant of the law and reality, and c) blatant demagoguery. Pathetic that this garbage passes for journalism at a major national news outlet.

Pot busts lowered to Class Cs in Hudspeth County to save jail space
Hudspeth County has no room at the inn jail for drivers caught with marijuana at the Border Patrol checkpoint in Sierra Blanca so the Sheriff gives folks Class C paraphernalia tickets and sends them on their way. Said Sheriff Arvin West, "The last thing in this world I want to be is a pothead hero, but the laws we’ve got now don’t work. Something’s gotta change."

Did Texas DPS unwittingly conspire in using NSA spy intel for drug cases?
Despite my intense interest, Grits hasn't written much about the NSA metadata collection scandal because it's being intensively covered at the national level and isn't a Texas-specific issue. But the revelation that the DEA uses that intel then lies about its sources in court, pretending probable cause was generated at traffic stops, almost certainly has implications for cases in Texas, and our Department of Public Safety may have been an unwitting accomplice to this fraud. Reported Reuters:

two senior DEA officials defended the program, and said trying to "recreate" an investigative trail is not only legal but a technique that is used almost daily. (Emphasis added.)

A former federal agent in the northeastern United States who received such tips from SOD described the process. "You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said.

DPS wouldn't have known about the NSA angle. From their perspective, the state police just received and acted on tips from the DEA. But if they then conspired to pretend the stop was based solely on a traffic violation and failed to disclose the DEA intel to defense counsel, that would be a significant breach of trust. Though not Texas-specific, Gideon at A Public  Defender lays out the implications of this revelation as well as anyone I've seen.

New Holder policy either 'conservative,' 'lawless,' or (most likely) just pro-prosecutor
Conservatives are split over US Attorney General Eric Holder's announcement that the USDOJ will no longer pursue charges with mandatory minimums in drug possession cases. Marc Levin and Vikrant Reddy from the Texas Public Policy Foundation wrote in The National Review that Holder had adopted "conservative sentencing reforms" while columnist Charles Krauthammer bloviated that the decision amounted to "lawlessness." Our old pal Vanita Gupta had a column in the New York Times framing the issue of drug-war based overincarceration in terms of Texas' Tulia episode and suggesting more effective ways to reduce it. Ken at Popehat provided a good explanation of what Holder's new policy will mean in practice and the drawbacks of relying on prosecutorial discretion to limit mass incarceration. At Forbes, Jacob Sullum reminds us that the Obama Administration's record on the drug war has been generally atrocious. He points out that if Holder's "criteria identify people who do not deserve mandatory minimums, they also identify people who deserve the president’s mercy" via the pardon process. Don't hold your breath.

LBB recommends sentencing commission to enhance consistency, contain costs of criminal sentences

The Texas Legislative Budget Board has issued their "Texas State Government Effectiveness and Efficiency Report: Selected Issues and Recommendations" (pdf, pp. 271-280), and the portion on criminal justice offers up a fascinating suggestion (or really, two related ones):

Recommendation 1: Amend statute to establish a sentencing commission to review Texas sentencing laws comprehensively to align penalties with offenses, modernize laws, and study statewide sentencing dynamics every ten years.

Recommendation 2: Include a contingency rider in the 2014–15 General Appropriations Bill to appropriate $1.15 million in General Revenue Funds to operate a sentencing commission and implement a statewide sentencing dynamics study.

Among the concerns spawning this reccommendation:

Although the Texas Legislature modifies provisions of the Texas Penal Code every biennium, the last comprehensive review of the code occurred 20 years ago. It resulted in removal of some obsolete offenses and adjustments in punishment for other off enses. However, some of the Punishment Standards Commission’s recommendations resulted in longer sentences and longer probation terms for some offenses. Longer sentences contribute to growing system costs, and there has been no thorough review of sentencing laws since then to adjust for these increased costs.

Sentencing policies affect sentence lengths and prison admissions, which affect prison populations. Any changes in these factors can have a significant effect on available criminal justice resources. Despite modest prison population decreases, costs to incarcerate offenders continue to increase steadily from $2.0 billion to $2.5 billion from fiscal years 2007 to 2013.

Recommendations made by sentencing commissions in other states have resulted in significant savings and prison population decreases. Texas lacks a process to assess sentencing practices and may be foregoing savings and other efficiencies that may be achieved through sentencing reform.

LBB's report laments a trend Grits has described before in some detail: The eye-popping expansion of prison inmates in Texas compared to general population growth in recent decades. "The correctional institution count of approximately 14,000 prisoners in 1970 has increased to more than 152,000 in fiscal year 2012, a 963 percent increase during the past 40 years. The Texas population increased at a significantly lower rate of 125 percent in the same period." Citing the Vera Institute of Justice, the report asserts that, "growth in prison populations during the past several decades is not due to increased crime, but to sentencing policies that have increased the number of offenses resulting in incarceration, the length of sentences, and the length of probation."

According to the LBB, Texas established periodic commissions to evaluate sentences in the penal code about once per decade beginning in 1971, but the last such effort occurred in the early '90s, making such a re-evaluation long overdue. The report describes how similar commissions in other states have resulted in significant cost savings:

Sentencing commissions have addressed costs through recommendations often characterized as getting “smart on crime.” For example, in Alabama, based on recommendations from the state’s sentencing commission, the Legislature authorized increases in the number of community corrections programs by nearly 80 percent from fiscal years 2003 to 2008. The state estimated that placing offenders in prison, rather than community corrections, would have cost the state more than $23.0 million in operation costs in fiscal year 2008, rather than the $6.1 million appropriated for community corrections that year. Similarly, in 2003, Kansas passed legislation providing for alternative sentencing policies for non-violent drug possession offenders. The Kansas Sentencing Commission operates the program, which requires first and second-time low-level drug offenders to be sentenced to community corrections intensive supervision instead of being sentenced to prison. Since its implementation, the Kansas program has grown to serve approximately 1,400 offenders per year that otherwise would have received less treatment and supervision. Often sentencing commissions recommend enhancing penalties for some crimes, while minimizing others. In November 2009, for example, the Colorado Commission on Criminal and Juvenile Justice recommended increasing the allowable amount of marijuana (from one ounce to four ounces) that can be possessed and qualify as a petty offense. In the same report, the commission also recommended re-categorizing the level for the first felony offense of selling marijuana to a minor. The recategorization resulted in an increased penalty.

Another notable example of a comprehensive sentencing commission is that of South Carolina. Established by legislation in 2008, the commission worked closely with the Pew Charitable Trusts’ Center on the States. Pew’s Public Safety Performance Project is well respected by states working to review their criminal justice systems. In February 2010, the sentencing commission made recommendations to the South Carolina Legislature, which were overwhelmingly approved and implemented that summer. The legislation required a comprehensive review of the state’s laws relating to sentencing and parole policies. Significant changes enacted include: expanding the list of violent crimes, creating an attempted murder offense, and requiring drug offenders to pay drug-treatment court fees. At the same time, the new laws reduced the penalty for non-violent burglary, expanded probation options for first and second-time drug possession offenders, and established good behavior incentives for those on supervision. Additionally, the legislation established an oversight committee to monitor implementation and to report on the amount of cost savings, of which 35 percent would be transferred from prisons to probation and parole operations. In its report, the commission anticipated helping the state avoid $317.0 million in new prison construction and save $92.0 million in prison operating costs over the next five years due to a reduction in the number offenders being incarcerated.

A sentencing commission in Texas, says the LBB, should focus on the following priorities:

• study sentencing practices across the state;
• balance county and state criminal justice responsibilities with resources;
• identify offenses whose penalties should be adjusted to better align them with the severity of the offense;
• analyze how community supervision, parole, and sentencing terms in Texas compare to other states’ terms;
• devise an approach that would allow the state to balance sentencing policies with correctional resources; and
• enhance consistency and reduce disparity in sentencing.

Grits applauds the idea of a sentencing commission to fulfill those described purposes, but I wonder at the wisdom of making it permanent and can see good arguments on both sides of the question. On one hand, every session the Legislature creates dozens of new crimes and penalty enhancements, so perhaps a permanent sentencing commission would help rein in that ill-conceived legislative habit. At a minimum, perhaps the additional data they'd be authorized to gather would provide more accurate assessments of the costs of penalty enhancements, which LBB's budget estimators generally claim, contrary to reason and common sense, may be approved by the Lege with no additional cost to the taxpayers. Best case: It could provide institutional support for continuing and expanding de-incarceration initiatives begun in 2007, which made a good start at reducing incarceration pressures but plateaued instead of expanding in the following two biennia.

On the other hand, a permanent sentencing commission at the federal level has worsened the problems the LBB proposal aims to resolve, enhancing "consistency" and reducing "disparity" by boosting sentences and associated costs instead of moderating the most extreme sentences. Federal judges routinely grouse about mandatory minimums and harsh sentencing guidelines that they feel force them to hand down unjust sentences.

Still, at this historical juncture the state could seriously use the sort of comprehensive evaluation LBB called for in these recommendations, and in the near term it's a good idea. Members of the Legislative Budget Board are appointees of the Governor, the Lt. Governor and the Speaker and their proposals frequently end up rolled into legislation that enjoys the blessing of the leadership. That doesn't ensure its passage, of course, but one can expect the suggestion at a minimum to be seriously considered.

Snitching shaves time off of thousands of federal sentences

In the federal system, reported USA Today ("Federal prisoners use snitching for personal gain, " Dec. 14), "Snitching has become so commonplace that in the past five years at least 48,895 federal convicts — one of every eight — had their prison sentences reduced in exchange for helping government investigators, a USA TODAY examination of hundreds of thousands of court cases found. The deals can chop a decade or more off of their sentences." See an interactive map detailing the number of deals federal prosecutors cut with informants by federal district from 2006 to 2011. Here's a remarkable excerpt from the story:

Every year for the past decade, 11% or more of the people convicted of a federal crime got a shorter sentence because they provided "substantial assistance" to investigators, a USA TODAY examination of federal sentencing data shows. That figure almost certainly understates the extent to which defendants cooperate because some get breaks that aren't reflected in court records and others only pass on information that the government doesn't find useful.

In return, prisoners offer up names and addresses of drug dealers. They wear recording devices or let police listen to their phone calls. They introduce undercover agents to their contacts inside crime organizations.

That kind of help has become indispensable for law enforcement. The Drug Enforcement Administration told the Justice Department's inspector general in 2005 that it "could not effectively enforce the controlled-substances laws of the United States" without its confidential sources.

Cooperation is especially common when drugs are involved. Nationwide, at least a quarter of the people sent to federal prison in drug-trafficking cases over the past five years successfully traded information for a shorter sentence

See related Grits posts:

• Woman forced to become drug snitch in aftermath of petty drug stop
• Little fish
• Police informant use leads to tolerating crimes, solving them and testing community loyalties
• Natapoff: Snitching reforms require 'changing the culture of secrecy and deregulation' among law enforcement
• Dallas home invader snitches, walks free, then fingers competitors while starting new crew
• Dallas drug cop had informant sign blank payment forms
• Dallas fake drug informant shows how 'cooperation' benefits can promote crime
• Petty cash to informants: Routine technique or inducement to perjury?
• Florida passed compromised snitching reforms
• Hollywood film focuses on convictions based on Hearne informant 
• Hinojosa: Corroborate jailhouse informants
• El Paso flooded with drugs for five years while authorities watched

Plea bargaining and the innocent defendant

Has the rise of overcriminalization and the ascendancy of plea bargaining heightened the risk that innocent defendants may plea guilty? Those questions were raised in a must-read article published in the Wall Street Journal this week ("Federal guilty pleas soar as plea bargains trump trials," Sept. 23) which explored the likelihood that significant numbers of innocent people are enticed to plea guilty to avoid harsh federal sentencing guidelines. From the story:

The triumph of plea bargaining in the federal system, which has gathered pace in recent years, is nearly complete. Guilty pleas last year resolved 97% of all federal cases that the Justice Department prosecuted to a conclusion. That is up from 84% in 1990. During that period, the number of federal defendants nearly doubled amid a crackdown on crimes ranging from drug trafficking to fraud, while the number going to trial fell by nearly two-thirds.

This relentless growth in plea bargaining has sparked a backlash among lawyers, legal scholars and judges—evidenced by recent federal court decisions, including two from the Supreme Court. Weighing on many critics is the possibility illustrated by the Kassab case: that the innocent could feel pressured into pleading guilty.

One troubling factor is that, when cases are plea bargained, prosecutors aren't forced to actually prove their cases or turn over so-called Brady material. "Among the legal protections given up by a defendant when he pleads is the right to receive evidence from the prosecution that supports a claim of innocence. That means a person might plead guilty to a crime not knowing prosecutors are holding exculpatory evidence."

The Journal attributed the trend to mandatory sentencing regimes in the federal system (and their state-level counterparts) which have given prosecutors extraordinary leverage in negotiating pleas:

Behind the dominance of the plea bargain is the rapid growth in the number of federal criminal laws and the stiffening of sentences by Congress and the U.S. Sentencing Commission, a board created in the 1980s. After scandals at Enron and other companies in the early 2000s, for example, Congress increased the potential sentence for certain types of fraud to 20 years from five years.

Federal guidelines not only toughened punishments but also formalized a system to reward defendants who plead guilty by reducing sentences if they accept responsibility or cooperate with prosecutors, among other things. As part of plea deals, federal prosecutors often drop additional charges that could add years, or decades, to a sentence. Going to trial brings none of those benefits for the accused.

The article cited concerns expressed in:

two related decisions this year by the Supreme Court, which said defendants hadn't been adequately represented by their attorneys during the plea-bargaining process. Plea bargains "have become so central to the administration of the criminal justice system" that defendants should receive the kind of protections associated with going to trial, Justice Anthony Kennedy wrote.

Justice Antonin Scalia dissented from the decisions but wrote that the system encourages a prosecutor to charge an individual with so many criminal counts that it "effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense."

A sidebar to the story (not available to non-subscribers) cited research by a pair of academics, Lucian Dervan and Vanessa Edkins, to be published next year in an article titled "The Innocent Defendant's Dilemma."  They studied the behavior of students falsely accused of cheating on tests, finding that "more than half of the innocent participants were willing to falsely admit guilt in return for a benefit" of reduced consequences. Their analysis of the implications of that finding deserves exploration in greater detail.

Obama the Merciless: Is DOJ to blame?

The Washington Post has a compelling story about a man's quest for a federal sentence commutation from the Bush and Obama Administrations and the biased interpretations, flawed through omission and understatement, given the President by the Office of the Pardon Attorney at the US Department of Justice. It's a substantial story so those interested should read the whole thing, or here's a brief summary from P.S. Ruckman at Pardon Power.

Grits' immediate interest lies in reported criticisms of the internal workings of the Pardon Attorneys office, including calls to outright abolish it. In the case of Clarence Aaron highlighted in the story:

That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests.

Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application. In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.

But it's not must one individual thwarting more active clemency recommendations, some argue, but an institutional, prosecutorial anti-clemency bias from prosecutors at the Justice Department:

Last week, the American Constitution Society sponsored a panel discussion on Capitol Hill devoted to the pardon issue. President Obama’s former White House counsel Gregory B. Craig said the president could issue an executive order eliminating the pardon office.

“We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice,” Craig said.

He advocated for a bipartisan review panel that would report directly to the president.

The number of pardons awarded has declined sharply in the past 30 years, as have commutations. Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one. Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants.

A former pardon office lawyer said some applicants have been turned down “en masse” with little, if any, review, a claim the Justice Department disputes.

Here's an interesting tidbit: "Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful. Under Bush, approvals fell to barely better than one in 1,000." Obama's record is even poorer.

Under Barack Obama's US Pardon Attorney Ronald Rodgers, paralegals began vetting cases instead of attorneys, and large batches of cases would allegedly be denied en masse with little review (though of course Rodgers insists the review was adequate):

Under Rodgers’s predecessors, staff lawyers reviewed each case, gathered pre-sentence and Bureau of Prisons progress reports and wrote recommendations based on their research.

“Some reports were shorter, just a paragraph or two,” said Margaret Love, who served as a pardon attorney from 1990 to 1997. “But there was always enough of a report that you could get an idea of what the basic facts and issues were.”

For the first 2¹/₂ years under Rodgers, however, most petitions were handled by paralegals, not staff attorneys, and recommended for denial in batches, said Samuel Morison, a lawyer who spent more than a decade in the pardons office before leaving in 2010 to work for the Defense Department. He said Rodgers instituted the change when there was a significant backlog.

“The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied,” Morison said.

The story of Clarence Aaron, who at 24 was "sentenced to three life terms for his role in a cocaine deal, even though it was his first criminal offense and he was not the buyer, seller or supplier of the drugs," is certainly troubling, but it mostly just affects him, his family and loved ones (and of course taxpayers footing the bill for his incarceration). Even more concerning are reported changes in institutional practices by President Obama's pardon attorney giving at best minimal consideration to the thousands of clemency requests they receive, ensuring there will be many more Clarence Aarons, most of whose cases won't be nearly so well publicized..

Mitt Romney's pardon record is even worse - he never once issued clemency to anybody when he was Governor of Massachusetts - so I don't expect this to become a campaign issue. It just doesn't cut along partisan lines. There's a firm bipartisan consensus that the constitutional clemency power has become an anachronism barely worth considering.

Grits finds that ironic. The history of the US presidency throughout the past century involved the accumulation of ever-greater power within the executive branch, much of it through regulatory infrastructure justified by constitutional theories that would leave the Framers' jaws agape. By contrast, clemency authority is an actual, named constitutional power of the presidency, not one assumed after the fact nor assigned by Congress or the judiciary. But this critical presidential power has faded to virtual irrelevance, even though Alexander Hamilton believed (see Federalist 74) "easy access" to clemency was essential to keep the justice system from becoming too "sanguinary and cruel."

Why is this the one area where presidents, especially this president, seem reluctant to exercise their constitutional authority at all, much less seek its expansion as in every other realm of their office? Is DOJ to blame?

MORE: P.S. Ruckman has posted the relevant documents in Clarence Aaron's case.

See prior, related Grits posts:

• Obama may have stingiest pardon record of any American president
• Obama the Merciless
• Eat the turkey, pardon O. Henry! President quotes Texan writer but won't pardon him
• Institutional prosecutorial bias limits federal pardon recommendations from DOJ
• Perry should expand clemency, trump Obama in Christmastime ritual

Average of 3 years shaved off federal crack cocaine sentences

This AP story from Friday describes changes in federal law that will to the early release of some 12,000 prisoners convicted of crack-related federal drug offenses:

The 1980s-era federal laws punished crack-related crimes much more severely than those involving powdered cocaine — a practice criticized as racially discriminatory because most of those convicted of crack offenses were black.

More recently, the penalties for crack were reduced to bring them more in line with those for powder, and Tuesday was the first day inmates locked up under the old rules could get out early.

Some 12,000 prisoners are expected to benefit from reduced sentences over the next several years, with an estimated 1,900 eligible for immediate release as of Tuesday. On average, inmates will get three years shaved off their sentences. The reductions do not apply to people found guilty of crack offenses under state laws. ...

Inmates' requests for sentence reductions were decided on a case-by-case basis, with courts taking into consideration such factors as the prisoner's behavior behind bars and threat to society.

At Sentencing Law & Policy, Doug Berman notes that reduced sentences for crack offenses has resulted in the first reduction in the federal prison population in recent memory.

US House votes to reduce crack/powder disparity

I just finished watching the US House floor debate on S1789 reducing the crack/powder disparity in federal sentencing guidelines from 100-1 to 18-1 and am pleased to see the bill is now headed to the President in a rare bipartisan moment for Washington. I'd prefer they equalize it - the issue is the quantity of drugs required to trigger federal mandatory minimum sentences - but this is a substantial improvement. The bill raises from 5-28 grams the amount needed to trigger mandatory minimums.

During the debate, Texas Congressman Ron Paul quipped that instead of the "Fair Sentencing Act" the bill should be called the "Slightly Fairer Sentencing Act" because they didn't reduce it to 1:1, calling to repeal the entire war on drugs. Houston Congresswoman Sheila Jackson Lee made some strong comments in favor of the legislation, and even authors of the original 1986 legislation said they couldn't justify the 100-1 disparity.

Texas Congressman Lamar Smith opposed the bill, saying Congress shouldn't reduce penalties for any drug crimes. The bill "sends the wrong message to drug dealers," he said, warning that the law would wreak havoc, using bombastic language about crack "ravaging" communities. It turned out not to matter; the legislation passed on a voice vote.

FWIW, in an era when everyone says Congress spends too much and never cuts the budget, the Congressional Budget Office says "S. 1789 would lead to reduced spending for the federal prison system totaling $42 million over the 2011-2015 period," likely much more in the out years.

President Obama has said he'll sign this landmark legislation if it reaches his desk, so congrats to everyone who worked on it for what appears to be a substantial, if decidedly incremental victory.

MORE: Via press release from Families Against Mandatory Minimums:

While S. 1789 will not eliminate the mandatory minimum for trafficking crack cocaine, it will substantially reduce racial disparity in cocaine sentencing.  The infamous 100-to-1 sentencing ratio will be reduced to 18 to 1.  Moving forward, 28 grams of crack cocaine will trigger a five-year prison sentence and 280 grams of crack will trigger a 10-year sentence.   Once enacted, the law could affect an estimated 3,000 cases annually, reducing sentences by an average of about two years and saving an estimated $42 million over five years. The bill does not provide any relief for people in prison serving crack cocaine sentences because it does not provide for retroactivity. The bill also provides for enhanced sentences for drug offenses involving vulnerable victims, violence and other aggravating factors.

For more detailed information about the history of the federal crack disparity and the changes that will result for S. 1789, click here. 

The bill passed out of committee 16-9. See additional commentary from Sentencing Law and Policy, the Sentencing Project, AP, Stop the Drug War, and Huffington Post.

New sentencing blog on the block

Doug Berman turns us onto the new blog SentenceSpeak from the group Families Against Mandatory Minimums. I was particularly interested to read this post quoting Supreme Court Justice Anthony Kennedy on the question of mass incarceration:

When a questioner referred to comments Kennedy made in 2004 about America’s exploding prison population, the justice responded:

"If you were asked to design a penal system that would win the prize for the worst system, the one you’ve got would at least be runner-up.

“If cost is a way to activate human compassion, I’ll take it. We are squandering our resources and spending them in the wrong way.”

Kennedy said he approves of sentencing guidelines but is critical of mandatory minimums that are often imposed in drug cases.

Asked how he would define an activist court, Kennedy quipped: “An activist court is a court that makes a decision that you don’t like.”

There's also an interesting post regarding a Supreme Court ruling on the propriety of alleging crimes during the sentencing phase for which the defendant was never indicted are only supported by a preponderance of the evidence, not the higher standard of "beyond a reasonable doubt." This prosecutorial tactic is allowed in Texas state courts where the standard of proof for offenses alleged at sentencing is "beyond a reasonable doubt." But SCOTUS unanimously rejected the practice in federal venues where the standard of proof is only a preponderance of the evidence. Justice Kennedy wrote, "Elements of a crime must be charged in an indictment and proved to a jury beyond a reasonable doubt." (CORRECTION: This version corrects an erroneous interpretation in the original text; see the comment section for more detail.)

Check back with SentenceSpeak for coverage of federal sentencing issues that Grits typically doesn't tackle.

Issues surrounding Lubbock case could fill a law school seminar

Knowing there were implications regarding federal sentencing litigation over the last few years, I forwarded Doug Berman at Sentencing Law & Policy a link to a remarkable Lubbock case where a jury yesterday sentenced a defendant to life for assault on an elderly man, based largely on alleged crimes raised in the punishment phase (including child molestation) for which he'd never been found guilty. Berman's take:

This little story has so many interesting elements, I could imagine structuring an entire seminar focused on the question about whether this case vindicates or eviscerates the constitutional principles developed in Apprendi and Blakely.

If we think the most important constitutional principles of Apprendi and Blakely concern ensuring that a jury of peers, rather than just an "elite" judge, be involved in determining sentencing outcomes, then one might conclude that these Sixth Amendment interests were vindicated in this case. But I tend to read Blakely and especially Apprendi as expressing concerns about sentences being increased based on facts not found by traditional due process standards.

I suspect that at least some members of the Apprendi and Blakely majorities would be troubled by how Prieto got a life sentence. Moreover, I suspect even some members of the Apprendi and Blakely dissents might be a bit worried as to whether Fifth Amendment due process interests were fully served here (especially if Prieto did not get advance notice that his sentencing on the aggravated robbery conviction was going to be a essentially a trial and sentencing on his daughter's allegations of rape). And, of course, three members (and soon to be four) members of the current Supreme Court were not Justices at the time of Apprendi and Blakely and thus we can only speculate about what they may think about how Prieto got a life sentence here.

Some TX federal judges not waiting for Congress to fix crack sentencing disparity

Setting aside federal sentencing guidelines SCOTUS has declared voluntary, several federal judges in Texas including, most recently, Judge Leonard Davis in Tyler, have decided to reduce the disparity in drug sentencing for crack and powder cocaine, reports Jason Trahan at the Dallas News Crime Blog. He quotes an email from a federal public defender who announced:

Judge Davis adopted the current national trend toward equalization of the two forms of the same drug, rejected the Guidelines in their current form, and declared that beginning today and from this point forward, he will sentence Defendants convicted of Federal crack cocaine offenses the same as if the form of the cocaine was powder. Kimbrough was of enormous benefit to the Court in his decision.

This decision had and will have a profound impact in that the first two defendants went from 70-87 months down to 24 months and from 108-135 months to 60 months on the second (mandatory minimum prevented further reduction).

Here's a link to Davis' full opinion. What a welcome breath of fresh air! One hopes other federal jurists will follow suit, and that the 5th Circuit doesn't slap them down. Also, perhaps the US House of Representatives - particularly the Texas delegation - will follow these judges' lead and eliminate the disparity entirely in currently pending legislation.

Hat tip: Sentencing Law & Policy.

US House should eliminate crack/powder disparities for cocaine sentencing

It's been a while since I've written to my Congressman under my own steam, as opposed to in response to some organization's action alert showing up in my email box, but the chance to reduce or eliminate the federal crack-powder cocaine sentencing disparity (discussed by Doug Berman at Sentencing Law & Policy here, here, and here) inspired me to send this brief message over Rep. Lloyd Doggett's constituent contact form:

Please work as hard as you can to pass the legislation just over from the Senate to reduce the crack-powder sentencing disparities over what amount triggers mandatory sentence enhancements. S. 1789 would change the disparity from 100-1 to 18-1, which is better but still unjustifiable. I'm hoping to see/hear my Congressman pushing strongly to reduce that ratio to 1-1 in the House.

On this issue, my own views are being represented most closely by the group FAMM, or Families Against Mandatory Minimums, and I'd encourage you to work with them and support their efforts on this legislation.

For more background, see http://sentencing.typepad.com/sentencing_law_and_policy/2010/03/full-senate-passes-bill-to-reduce-but-not-eliminate-crackpowder-disparity.html

Feel free to copy, modify and send your own version to your own representative, if the inspiration strikes you. You never know: Maybe for once Congress won't screw the pooch as badly as they have on healthcare. This is long overdue.

MORE: From Drug War Chronicle.

Peeking in on the feds: Texas' Western District prosecutors less generous than Southern

I've been meaning to revisit some of the testimony from last week's US Sentencing Commission hearing here in Austin, and thought I'd point out some interesting data from federal probation chiefs here in Texas and some new (to me) data on federal prison overcrowding.

According to written testimony (pdf) from Texas Southern District Probation Chief Becky Burks submitted last week to the US Sentencing Commission, immigration cases make up the overwhelming portion of the district's court docket. She notes that "in FY 2008, the Probation Office completed 6574 presentence investigations and supervised 5470 offenders in the community." Of those, "relative to the primary offense of conviction, Immigration comprised 72.5% of the cases, with drugs coming in second at 18%, and firearms, 2.9%, and fraud, 2.2% virtually tied at a distant third."

Burks testimony also describes the burden put on federal probation departments for immigration cases, pointing out that "Supreme Court and 5th Circuit case law make these presentence investigations some of the most laborious to produce and the sentencings among the most complex."

For reasons that aren't clear to me, there's a wide variation between the two districts regarding how often prosecutors support downward variances from the federal sentencing guidelines. Wrote Burks:

As it pertains to sentencing practices, 57.7% of Texas Southern’s 2008 cases were sentenced within the guideline range. While this was not drastically different from the national rate of 59.4%, it was significantly below the 5th Circuit rate of 70.4%. This perhaps resulted from higher Government sponsored below range sentences, which accounted for 34.8% of the total below range sentences imposed. Non-government sponsored below range sentences totaled 6.5%.

By contrast, according to testimony to the commission (pdf) by Probation Chief Joe Sanchez, in Texas' Western District, 78.7% of cases were sentenced within guideline range, meaning defendants received fewer sentence reductions. The Western District also saw far fewer government-sponsored downward departures, mostly for defendants who provided "substantial assistance" to the prosecution (i.e., for snitching).

What accounts for the 21-point difference between the rates of cases in Texas' Southern and Western districts sentenced within guideline range? I don't know the answer, but it's a striking number, as is the difference between the 5th Circuit's rate of downward departures overall and the national average. Texans, and especially those in the Western District, simply aren't receiving downward departures as often as defendants elsewhere, for reasons at which I could hardly guess. (Perhaps some knowledgeable commenters can shed some light on the question.)

Also noteworthy was testimony (pdf) by federal Bureau of Prisons Director Harley Lappin related to seldom-discussed overcrowding at federal facilities:

Over the past 20 years, the federal inmate population has increased more than 200%, from just under 65,000 to more than 209,000. The number of federal prisons has increased from 64 to 115, and our staff number more than 36,000 today. Over the past few years, we have not been able to build enough new facilities to keep up with the increase in the federal inmate population; tight budgets have also meant that we have not been able to increase our staffing to the level necessary to keep pace with the population growth. This has led to a dramatic increase in the inmate-to-staff ratio in our institutions, and significant crowding.

Our facilities are as crowded today as they have ever been (37% above capacity) and our inmate-to-staff ratio has increased more than 40% over the past decade – today our ratio is nearly 50% higher than that reported by the five largest State Departments of Corrections.

We are forced to double bunk nearly all of our high security inmates, many of whom are aggressive and violent and have various anti-social tendencies, and we are triple bunking nearly half of the remaining inmate population. None of our facilities were designed for triple bunking. With the inmate population expected to continue to increase by 7,000 inmates each year, we do not anticipate a reduction in the level of crowding in the near future.

According to Lappin, "The high levels of crowding and reduced staffing levels have substantially impacted the Bureau’s capacity to provide recidivism-reducing programs." Lappin lamented that what he considers the feds' "most important reentry program," Federal Prison Industries, is "dwindling rather than expanding." It's interesting to hear prison industries, which have come under fire here in Texas, described as the "most important reentry program" by the feds. (That's not how it's viewed by Texas state legislators.!)

Besides FPI, federal inmates who participate in education programs, said Lappin, "are 16% less likely to recidivate as compared to their non-participating peers." He also emphasized that "maintaining family and community ties is very important to inmate reentry."

See other testimony to the US Sentencing Commission via links to written testimony under the names of participants on last week's agenda.