Two questions for Jeff Gamso, Scott Greenfield and others with like experience

I have a lot of respect for Jeff Gamso and Scott Greenfield. I also have two questions for them. Others with like experience should chime in as well. But before I ask those questions, I urge you to read Close Your Eyes and Pretend Really Hard from Jeff and The Ferguson Lie from Scott.

I have absolutely no experience with grand juries except to the extent that I have picked several of them as the Chief Judge, I have compelled testimony before grand juries and extended immunity in doing so, and I regularly took grand jury returns when I was a magistrate judge. But, I have never represented a client before a grand jury, and I have never been a prosecutor who has presented evidence before a grand jury. I know next to nothing about the standards prosecutors typically employ at the federal level when deciding to seek an indictment before a grand jury.

With the foregoing by way of introduction, I ask Jeff and Scott and others with similar experiences the following two questions:

1.  Is the failure of the Missouri grand jury to indict Mr. Wilson (a) a godsend for Attorney General Holder or (b) a curse for Attorney General Holder?

2.  If you were a “straight up” federal prosecutor, would you seek a federal indictment of Mr. Wilson?

Jeff and Scott and others experienced in this area have absolutely no obligation to answer my questions. But inquiring minds want to know.

RGK

A clemency proposal that deserves strong support from President Obama and AG Holder

A helpful reader brought to my attention a piece on the New York Times editorial page that proposes a complete reworking of the clemency process. Specifically, it proposes a broadly representative and non-partisan commission to make recommendations to the President about pardons and clemency.

Given my awful experience with Hamedah Hasan (Merciless), I urge President Obama and Attorney General Holder to get behind this proposal, and strongly so. They should so if only to publicly proclaim “mea culpa, mea culpa, mea maxima culpa” – “through my fault, through my fault, through my most grievous fault.” A public expiation of their manifest sins would do them and the rest of us (not to mention those who deserve mercy) a world of good. If Obama and Holder aren’t total hypocrites they will do so.

I reprint the piece in full:

On Jan. 20, 2009, in his last moments as president, George W. Bush gave Barack Obama a hard-earned bit of wisdom: whatever you do, he said, pick a pardon policy and stick with it.

It was sage advice, yet, more than five years later, President Obama has not heeded it. As a result, as one former pardon attorney has said, the clemency power is “the least respected and most misunderstood” power a president has. Yet it is granted explicitly by the Constitution as a crucial backstop to undo an unjust conviction or to temper unreasonably harsh punishments approved by lawmakers. It also can restore basic rights, like the right to vote, that many people lose upon being convicted.

In the past, presidents made good use of it, but as tough-on-crime policies became more popular, the number of grants fell dramatically. Judging by the numbers, Mr. Obama, who has, so far, granted just 62 clemency petitions, is the least merciful president in modern history.

The Obama administration took a stab at remedying the situation in April when it replaced its feckless pardon attorney and announced that it would consider granting clemency to thousands of low-level drug offenders serving what Mr. Obama called “unjust” sentences. The effort, dubbed Clemency Project 2014, was a promising start, but it has already run into significant hurdles, most recently a ruling barring hundreds of federal public defenders from assisting inmates in filing their petitions.

Even if the project succeeds, it is a one-time fix that fails to address the core reasons behind the decades-long abandonment of the presidential power of mercy. A better solution would be a complete overhaul of the clemency process. First and foremost, this means taking it out of the hands of the Justice Department, where federal prosecutors with an inevitable conflict of interest recommend the denial of virtually all applications. Instead, give it to an independent commission that makes informed recommendations directly to the president.

That proposal, which has been made before, gets new attention in an upcoming article in the University of Chicago Law Review by two law professors, Rachel Barkow and Mark Osler. Such a commission’s membership, the authors write, must be politically balanced and have a wide range of perspectives, including those of prosecutors, defense lawyers, judges, inmates, academics, officials from corrections and law enforcement, and victims’ rights advocates.

This design would give the president bipartisan support in making what is often a politically sensitive decision. Particularly in a tough-on-crime age, the risk of even one person committing another crime is enough to deter grants of clemency across the board. That is another argument for a well-financed commission, which can collect data on the results of clemency grants — data that could then be used to better inform future decisions.

In several states that already have such commissions — such as Pennsylvania, South Carolina and Alabama — clemency decisions are more transparent, more predictable, and much more frequent than in the federal system.

Mr. Obama’s failure to wield the pardon power more forcefully is all the more frustrating when considered against the backdrop of endless accusations that he is exercising too much executive authority, sometimes — his critics say — arbitrarily if not illegally. In this case, he should take advantage of a crucial power that the Constitution unreservedly grants him.

The Editorial Board, It’s Time to Overhaul Clemency, New York Times, August 18, 2014.

RGK

More ostrich

I had a transfusion yesterday. It took six hours. By the time I was done, I had no energy to reply to the extremely thoughtful comments I received in relationship to More about AG Holder as an ostrich. I feel better this morning, so I will use this post to reply to the comments and, more importantly, concentrate on the 16 other social science variables specified by Dr. Oleson to get at the issue of a defendant’s likelihood to reoffend.

Let’s face it friends, “race” is low-hanging fruit. It is too easy to attack, although the social science data on race when used as a predictive metric for sentencing is not really about genetics (“race”) as a causative factor in crime. It is about being correlated with crime, and there is a huge difference between the two (causation and correlation). But the word “race” is too freighted with the notion of “discrimination,” so let’s just agree for the sake of argument that empirical data on “race” will never be used at sentencing.

OK. But what about the other social science predictors? Things like gender. Or socio-economic background. The things that our delicate AG Holder seemed so frightened about.

Dr. Oleson’s complete list, with the exception of race, is set out below together with the page of his second article (attached to yesterday’s post) where the discussion about the variable is found initially:

1. Criminal Companions ……………………….. 1353
2. Criminogenic Needs …………………………. 1354
3. Antisocial Personality ……………………….. 1354
4. Adult Criminal History ………………………. 1355
5. Race .……………………………………… 1356
6. Pre-Adult Antisocial Behavior ………………… 1359
7. Family Rearing Practices …………………….. 1359
8. Social Achievement ………………………….. 1360
9. Interpersonal Conflict ……………………….. 1361
10. Current Age ………………………………… 1361
11. Substance Abuse ……………………………. 1362
12. Family Structure …………………………….. 1363
13. Intellectual Functioning ………………………. 1364
14. Family Criminality ………………………….. 1365
15. Gender …………………………………….. 1365
16. Socio-Economic Status of Origin ……………… 1366
17. Personal Distresss …………………………… 1366

Why shouldn’t a federal judge take these 16 other variables into account when deciding what sentence to impose, particularly when the judge is trying to reduce the federal prison population be selecting out the “non-violent?” Go ahead, make my day!

RGK

More about AG Holder as an ostrich

My post entitled Like the ostrich that buries its head in the sand, Mr. Holder is wrong about data-driven sentencing drew mostly criticism and even some anger. I was therefore glad to receive an e-mail from James C. Oleson a former senior lawyer with Administrative Office of the United States Courts forwarding two article that he has written on data-driven sentencing. Oleson is extraordinarily knowledgable about the Sentencing Commission, the Sentencing Guidelines and data-driven sentencing relating to predictions of recidivism.

Dr James Oleson, B.A., M.Phil., J.D., Ph.D.

Dr James Oleson

James C. Oleson earned his B.A. in psychology and anthropology from St. Mary’s College of California, his M.Phil and Ph.D. in criminology from the University of Cambridge, and his J.D. from the law school at the University of California, Berkeley (Boalt Hall). Between 2001 and 2004, he taught criminology and sociology at Old Dominion University, in Norfolk, Virginia, where in 2004 he was selected as the university’s “rising star professor.” In 2004, he also was selected as one of the four U.S. Supreme Court Fellows for the 2004-05 year (and was later selected from that group as the 2004-2005 Tom C. Clark Fellow).

After the end of the fellowship, he was appointed as Chief Counsel to the newly formed Criminal Law Policy Staff of the Administrative Office of the U.S. Courts, and he served in that capacity between 2005 and 2010. Dr. Oleson is now on the faculty of the prestigious University of Auckland in New Zealand.* Since arriving at the University of Auckland in 2010, he has taught in the areas of psychological criminology, sentencing, and penology. He is a Senior Lecturer in Criminology and Director of Research at the School of Social Sciences.

In the first article, J.C. Oleson, BLOWING OUT ALL THE CANDLES: A FEW THOUGHTS ON THE TWENTY-FIFTH BIRTHDAY OF THE SENTENCING REFORM ACT OF 1984, 45 University of Richmond Law Review 693 (2010) (PDF here Blowing Out All the Candles), Oleson mounts a scathing criticism of the Guidelines and introduces what I call the “actuarial based risk of reoffense” construct as a way of meaningfully reforming the Guidelines.

In his second article, J.C. Oleson, RISK IN SENTENCING: CONSTITUTIONALLY SUSPECT VARIABLES AND EVIDENCE-BASED SENTENCING, 64 S.M.U. Law Review 1329 (2011) (PDF here 64SMULRev-4 (Oleson) (1)), Oleson identifies the 17 variables that social scientists have accepted as valid risk predictors of recidivism (including race, age, gender, socio-economic status of origin) and then explains why they should survive Constitutional scrutiny. He also attached a helpful appendix to his article that takes the various risk assessment instruments and shows what variables are included in each instrument.

Readers who have a serious interest in federal sentencing, the Guidelines and reforms thereto should carefully read both of Dr. Oleson’s articles. If Attorney General Holder thought it necessary to give a speech–a preemptive strike really–opposing actuarial based risk of reoffense sentencing, this is an issue that is not likely to go away. Indeed, one might even hope that as Congress looks at sentencing reform the ideas so carefully articulated by Dr. Oleson might emerge front and center in the debate. Otherwise, all of us concerned with sentencing reform might just as well follow the example of Mr. Holder, and stick our heads in the sand.

RGK

*My son earned his Masters degree with First Class Honours at Massey University in New Zealand.

 

Please read Scott Greenfield’s post “Numbers Don’t Lie (But People Do)”

Yesterday, I posted “Like the ostrich that buries its head in the sand, Mr. Holder is wrong about data-driven sentencing.” Today, Scott Greenfield at Simple Justice has posted a rejoinder entitled “Numbers don’t lie (But People Do). Scott makes excellent points about reliance at sentencing on social science data if used to predict future violence. Read Scott’s post.

I add the following more as a clarification than anything else:

I am not terribly wound up by the idea that I am under pending reforms supposed to reduce the number of offenders in federal prison by trying to determine at sentencing which are likely to be violent when released and which are not likely to be violent upon release. Indeed, if you read the Rorschach test of sentencing, that is 18 U.S.C. § 3553(a), you will struggle to find a directive that I ought to look at prison overcrowding and the cost to the federal fisc. That “little” problem aside, I am not at all sure that I am competent to read, understand and apply the relevant social science data that would allow me to rationally determine the risk of future violence. But if Attorney General Holder wants federal judges to be seriously sensitive to the issue of future violence and prison overcrowding he is, in my opinion, being obtuse or disingenuous when he suggests that we ignore mounting social science data that rely upon “immutable characteristics” and other factors (like socio-economic information*) that make the rest of us twitchy about issues of race, gender, age and poverty. The Attorney General should not be allowed to have his cake and eat it too by suggesting we ignore the uncomfortable.

RGK

*Philadelphia is highly segregated. Yet the successful prediction instrument, with a 66% accuracy rate, developed in the City of Brotherly Love uses zip codes as a scoring factor. See Nancy Ritter, Office of Justice Programs, National Institute of Justice, Predicting Recidivism Risk: New Tool in Philadelphia Shows Great Promise (February, 2013).

Like the ostrich that buries its head in the sand, Mr. Holder is wrong about data-driven sentencing

Attorney General Eric Holder, addressing criminal defense lawyers, expressed a concern about the use of empirical data to sentence people. One assumes he has similar concerns about the use of empirical data to to decide how offenders should be supervised when out on the streets on supervised release.

The Wall Street Journal wrote the following on August 1, 2014 detailing Holder’s remarks:

Attorney General Eric Holder warned Friday that a new generation of data-driven criminal justice programs could adversely affect poor and minority groups, saying such efforts need to be studied further before they are used to sentence suspects.

In a speech in Philadelphia to a gathering of the National Association of Criminal Defense Lawyers, Mr. Holder cautioned that while such data tools hold promise, they also pose potential dangers.

“By basing sentencing decisions on static factors and immutable characteristics—like the defendant’s education level, socioeconomic background, or neighborhood—they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society,” Mr. Holder told the defense lawyers. Criminal sentences, he said, “should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.”

Although I think Holder’s point of view is is naive and manifestly wrong, we should at least thank the Attorney General for flagging a very important issue. With that acknowledged, let’s look a little deeper.

As compared with Holder’s concern, there is a movement at the federal level to seriously examine the huge data bases that exist in order to make predictive judgments about how offenders are likely to do in the future and to factor that data driven analysis into the judicial process. Indeed, a former policy analyst for the federal courts wrote three years ago that:

Evidence-based sentencing is based upon social science. Criminological meta-analysis has identified fifteen key variables that are significantly related to recidivism: 1) criminal companions, (2) antisocial personality, (3) adult criminal history, (4) race, (5) pre-adult antisocial behavior, (6) family rearing practices, (7) social achievement, (8) interpersonal conflict, (9) current age, (10) substance abuse, (11) intellectual functioning, (12) family criminality, (13) gender, (14) socio-economic status of origin, and (15) personal distress. If those variables can be used in sentencing, it may be possible to safeguard public safety while reducing the financial and social costs associated with mass incarceration.

J.C. Oleson, Risk Assessment at Sentencing, ASU Law Journal (June 20, 2011). See also Administrative Office of the United States Courts Office of Probation and Pretrial Services, An Overview of the Federal Post Conviction Risk Assessment (September 2011).

Notice from the foregoing that “immutable characteristics” or “static factors” like race, gender and age are included. If race, gender or age are predictive as validated by good empirical analysis, and we truly care about public safety while at the same time depopulating our prisons, why wouldn’t a rationale sentencing system freely use race, gender or age as predictor of future criminality? The same can be said of factors like antisocial behavior, family criminality and other factors that have in the past made us queasy because they were thought to focus too much on the poor.

In my opinion, the use of empirical methods to assess risk at sentencing and upon supervised release is the most important aspect of the present movement toward criminal justice reform. We can and should aspire to depopulate our prisons. We can and should aspire to treat certain offenders less harshly. We can and should do a better job of helping offenders on supervised release. But if we believe that public safety is or should be a central goal of our criminal justice system we ought not to ignore the truth–certain characteristics that we have shied away from in the past because we worried too much about vague notions of “equality” or “fairness” tell us a lot about future danger. The Attorney General was wrong to put his head in the sand like the proverbial ostrich when he suggested those factors be ignored. The rest of us ought not to make the same mistake.

RGK

Merciless

Yesterday, I linked to SL&P and asked that you read Doug Berman’s post regarding President’s Obama’s newly announced policy, heralded by General Holder, to expand clemency for nonviolent drug dealers. Today, I write about my one utterly depressing experience with DOJ and the commutation process. I also criticize President Obama and Attorney General Holder for their tardy response to a national disgrace.

Preface

I loathe “crack.” I suppose that hatred comes from seeing up close the destruction of black communities caused by that cheap and effective drug. Having an aging and poor crack whore hang herself in a cell adjacent to the courtroom where I just pronounced a long sentence upon this poor woman perhaps provides a context for my strong views. Bestowing mercy on those predators who dealt drugs to that gal, even ones who are “nonviolent” (a term I find misleading), rubs me wrong and strongly so. But I also understand why Presidential clemency helps our criminal justice system dispense a needed degree of mercy by leavening sentences that now appear too long even for those who are unquestionably criminals whose behavior has done great harm.

Stephanie Lomax, now known as Hamedah Ali Hasan

In 1993, after a jury trial, Hamedah Ali Hasan was found guilty of the following Counts in the Superseding Indictment: I (conspiracy to distribute and possess with intent to distribute cocaine), IV-VIII (distribution of and/or possession with intent to distribute cocaine), IX (interstate travel in aid of racketeering), and X (use of a communication facility in furtherance of a conspiracy). She committed the offenses between 1988 and 1991.

She had no criminal history and she had no misconduct while on pretrial release in 1992 and 1993. She had two children and was pregnant with a third at the time I sentenced her. Hasan, who is black, was fleeing an abusive relationship when she moved from Oregon to Omaha to operate a drug business with two relatives. She was in her early twenties.

Hasan was held responsible for 5.9 kilograms of cocaine base, placing her at base offense level 40. She received a three-level upward departure for her role as a manager in the conspiracy.  On October 20, 1993, I sentenced Hasan to the following concurrent terms of imprisonment: Counts I and VII — life; Counts IV and V — 480 months; Counts VI and VIII — 240 months; Count IX — 60 months; and Count X — 48 months.  I wrote a very long opinion explaining why I felt bound to impose the life sentence even though I thought it was far too harsh.

On November 1, 1994, Amendment 505 to the Sentencing Guidelines eliminated base offense levels 42 and 40 from the drug quantity table in U.S.S.G. § 2D1.1. The amendment was made retroactive. In 1998, Hasan filed a motion to reduce her sentence under 18 U.S.C. § 3582(c)(2)[1] in light of retroactive Amendment 505. Hasan also asked the Court to consider her post-sentencing rehabilitative conduct during her imprisonment as grounds for a downward departure under U.S.S.G. § 5K2.0. In resentencing Hasan in 1999, under § 3582(c)(2), I applied Amendment 505 and reached a new total offense level of 41. I also departed 8 levels downward to offense level 33 based on her post-sentencing in-prison rehabilitative conduct under U.S.S.G. § 5K2.0.

I, therefore, granted Hasan’s motion to reduce her sentence and sentenced her to the following concurrent terms of imprisonment: Counts I, IV, V, VI, VII, and VIII — 144 months; Count IX — 60 months; and Count X — 48 months. The Eighth Circuit initially affirmed the sentence; however, the panel’s opinion was vacated and the case was heard en banc. United States v. Hasan, 205 F.3d 1072, 1075-76 (8th Cir. Feb. 29, 2000), vacated, 213 F.3d 1049 (8th Cir. 2000). The original panel  majority concluded the opinion stressing Hasan’s extraordinary rehabilitation in prison, and stated, “Although the Government does not argue Hasan’s rehabilitative efforts are not extraordinary, we agree with the district court that they are. We thus affirm the district court’s resentencing order.”

There was never any doubt that Hasan had been rehabilitated.  The evidence presented at my hearing and otherwise proved her rehabilitation beyond question. It is accurately itemized in detail in her counsel’s 2010 letter supporting the second application for commutation which may be found here on pages 8 through 11. So far as I know, no government official has ever disputed any of this evidence.

The en banc Eighth Circuit Court concluded that the I abused my discretion in granting a downward departure under § 5K 2.0 in a § 3582(c)(2) resentencing. United States v. Hasan, 245 F.3d 682, 684-85 (8th Cir. 2001). The Eighth Circuit explained that a district court under the relevant circumstances must make two determinations: (1) the sentence that it would have imposed had the new sentencing range been the applicable range at the time of the original sentencing; and (2) whether to give the defendant the benefit of that reduced sentence. Id. At step (2) the district court may consider any applicable factors listed in 18 U.S.C. § 3553(a) only insofar as it considers where within the new guideline range to sentence the defendant; § 3553(a) may not serve as a mechanism for a departure below the guideline range. Id. at 685. Therefore, the Eighth Circuit concluded that I abused my discretion in departing below the new guideline range under § 3553(a) because a downward departure was not granted at the original sentencing. Id. at 686 (discussing U.S.S.G. § 1B1.10). Since post-sentencing conduct could not have been a factor at the original sentencing, the Eighth Circuit stated that the below-the-guideline sentence could not stand. Id. at 686-90. The court reversed my grant of the downward departure motion and remanded the case for imposition of a 324-month sentence. Four judges dissented, stating that the earlier panel decision explained their reasoning. Id. at 690-91. Hasan’s petition for certiorari was denied. Hasan v. United States, 534 U.S. 905 (2001).

On remand in 2002, and pursuant to the mandate of the Circuit, I resentenced Hasan to the following concurrent terms of imprisonment: Counts I, IV, V and VII — 324 months; Counts VI and VIII — 240 months; Count IX — 60 months; and Count X — 48 months.

Several years later, Hasan filed motion, and a supporting brief, relying on the then recent retroactive amendments to the existing crack cocaine sentencing guidelines set out in U.S.S.G. § 2D1.1 as well as U.S.S.G. § 1B1.10. The government filed no brief in opposition. I recused himself from that case.  On July 8, 2008, I wrote that:

ORDER as to defendant Hamedah A. Hasan Hamedah Hasan has filed a motion to reduce her sentence due to the amendment of the crack cocaine Guidelines which have now been made retroactive. I am no longer impartial when it comes to Hamedah Hasan. I asked the President to commute her sentence* and I appeared in a film** about her, urging that she be given relief. More recently, I was advised by the Justice Department that the commutation request was denied by the President, and I expressed my disgust about that decision to her lawyer.*** Therefore, IT IS ORDERED that I recuse myself from Hamedah Hasan’s case . . .

The case was reassigned to Judge Smith Camp.  Although initially agreeing that Ms. Hasan’s sentence ought to be reduced, Judge Smith Camp ultimately denied the motion on June 24, 2009 concluding that the law was against Hasan because of the highly intricate way the statutes defined “original sentence” for purpose of determining whether the amendments applied. Judge Smith Camp’s decision was correct in all particulars, although her heart was certainly not in it.

The second application for clemency followed on or about February 11, 2010 and a national campaign was begun to free Hasan. See, e.g., here (scroll down). So far as I know, that clemency application was never ruled upon.

On November 7, 2011, and applying the 2011 amendments to the “crack” Guidelines, and based upon the government’s stipulation, Judge Smith Camp reduced Hasan’s sentence of 324 months (my 2002 sentence compelled by the en banc opinion of the Court of Appeals) to 262 months. With credit for good time, Hasan was released a few minutes before 9 a.m. on Feb. 7, 2012. See here for a poignant account of that release. She had served between 18 and 19 years in federal prison having convinced everyone with knowledge that she had been fully rehabilitated long before. The child that Hasan gave birth to in prison was nearly an adult. The clemency provisions of the Constitution and our laws on clemency had failed Hasan and the rest of us. Her treatment was merciless rather than merciful.

President Obama and Attorney General Holder

It is worth remembering that clemency is entrusted to the President under the Constitution. Article I, Section 2, Clause 1 of the Constitution. (The President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”) Clemency is not some incidental matter found in some long forgotten phrase in some dusty statute.

President Obama and Attorney General Holder have known for a long time that the clemency process was a sham.  For example, in 2010, Margaret Love, former U.S. Pardon Attorney (1990-1997), warned President Obama and Attorney General Holder that “To date, President Obama has taken no steps to reform and reinvigorate a pardon process that has, in Justice Anthony Kennedy’s words, been ‘drained of its moral force.'” Margaret Colgate Love, THE TWILIGHT OF THE PARDON POWER, 100 Northwestern University, School of Law, Journal of Criminal Law & Criminology, 1169 (2010). Ms. Love asked: “Why has the president’s pardon power essentially ceased to function?”**** She provided objective and detailed answers to that question. Until this week, President Obama and Attorney General Holder ignored the red flags and did nothing.

Why do they act now?  I have my own cynical speculations, but they are only speculations. What I do know is this:  President Obama and Attorney General Holder deserve no credit for doing the right thing at this late date. The federal criminal justice system has been sullied and harmed by their sloth-like approach to this pressing national problem of Constitutional dimensions. They deserve no praise. On the contrary, they deserve the same merciless treatment that Hasan received. It is time for them to shut up, stop crowing, and get on with fixing the problem once and for all.

RGK

*In 2003, I advised the Pardon Attorney that I vigorously supported the clemency application of Hasan. However, that application was denied by the Bush administration.

**I appeared in Reverend Melissa Mummert’s 2008 award winning documentary “Perversion of Justice” where I decried the failure to release Hasan. As the film documents, the title “Perversion of Justice” are my words. The link provides a short version of the documentary.

***That lawyer was Korey Reiman, whose young head is as bald as my old one. Korey began to help Ms. Hasan as a law student and continued to assist her throughout the nearly 20 years that followed. Korey makes me proud to be lawyer.

****For clemency statistics for each President, see here.

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