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Chapter V–Criminal Justice
Black/Hispanic Incarceration
The core focus of President Obama and his Administration in connection was with criminal justice reform affecting minorities. People of color were meant to benefit overwhelmingly from these major reform objectives, thus making the Obama Administration criminal-justice reform effort an appropriate affirmative-action topic. President Trump’s stressed the importance of the First Step Act[1] as a major criminal justice reform. As of late July ,2019, it has operated to release some 3,000 prisoners from U.S. prisons—most of them minorities and the largest group of them being drug offenders. In addition 1,691 prisoners had their sentences reduced because the First Step Act made retroactive the Fair Sentencing Act of 2010[2] which provided the same punishment for crack and powder cocaine crimes. (Initially, the punishment was greater for crack cocaine criminality.) Some 900% of those whose sentences were reduced were African American.[3]
In the wake of George Floyd’s death and the , President Trump has become a “law and order” as he was at the beginning of his presidency. Of course, this reversal is related to that death, but it might have something to with the prison releases and other reforms occurring during both the Obama and Trump Administrations.
In recent years, the Black-White prison-incarceration disparity has been 7 to 1, with Blacks being the 7. Critical to this disparity is drug-enforcement. Prison populations in America have exploded in large measure because of the “war on drugs.” More are incarcerated in the U.S. than in any other industrialized nation, and--as reported by Professor Paul Butler in 2010-- Blacks and Hispanics make up three-fourths of those incarcerated, with 80-90% of those imprisoned being Black in seven States. Crack-cocaine offenses are an important reason for Black imprisonment.[4] In fiscal 2008, about half of the Federal drug-trafficking cases involved crack or powder cocaine. In that year, 80.6% of the sentenced Federal crack-cocaine defendants were African Americans, while Hispanics were a majority of the convicted powder-cocaine defendants. Crack offenders were sentenced to an average of 115 months in prison; powder offenders, 91 months.[5] Harvard Law Professor Randall Kennedy has underlined the absence of evidence that the crack-powder punishment disparity as stipulated in the initial Statute was racially biased, particularly since leading African-American Congress members supported the measure.[6] Nonetheless, in 2007, presidential candidate Barack Obama--while proclaiming his “Smart on Crime” policy at Howard University promising equality for all in the administration of criminal justice.- There Obama opined that the crack-powder punishment disparity was racist.
We can have a crime policy that’s both tough and smart. If you’re convicted of a crime involving drugs, of course you should be punished. But let’s not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them. Judges think that’s wrong. Republicans think that’s wrong. Democrats think that’s wrong, and yet it’s been approved by Republican and Democratic Presidents because no one has been willing to brave the politics and make it right. That will end when I am President.
I think it’s time we also took a hard look at the wisdom of locking up some first-time, non-violent drug users for decades. Someone once said that “…long minimum sentences for first-time users may not be the best way to occupy jail space and/or heal people from their disease.” That someone was George W. Bush – six years ago. I don’t say this very often, but I agree with the President. The difference is, he hasn’t done anything about it. When I’m President, I will. We will review these sentences to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of non-violent offenders. And we will give first-time, non-violent drug offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior. So let’s reform this system. Let’s do what’s smart. Let’s do what’s just.
Now, there is no doubt that taking these steps will restore a measure of justice and equality to America. They will also restore a sense of confidence to the American people that the system doesn’t just work – it works for everyone. In his comments on the killing of Trayvon Martin, the President referred to the racial disparities in American criminal justice:[7]
The African-American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws -- everything from the death penalty to enforcement of our drug laws. …
Now, this isn't to say that the African-American community is naïve about the fact that African-American young men are disproportionately involved in the criminal justice system; that they’re disproportionately both victims and perpetrators of violence. It’s not to make excuses for that fact -- although black folks do interpret the reasons for that in a historical context. They understand that some of the violence that takes place in poor black neighborhoods around the country is born out of a very violent past in this country, and that the poverty and dysfunction that we see in those communities can be traced to a very difficult history. …
In an interview with David Remnick reported in the January 27, 2014 issue of the New Yorker magazine,[8] President Obama highlighted the negative criminal justice disparities affecting Blacks and Hispanics in the conduct of drug-use enforcement. To the President, marijuana smoking was less dangerous than alcohol use:
Less dangerous, he said, “in terms of its impact on the individual consumer. It’s not something I encourage, and I’ve told my daughters I think it’s a bad idea, a waste of time, not very healthy.” What clearly does trouble him is the radically disproportionate arrests and incarcerations for marijuana among minorities. “Middle-class kids don’t get locked up for smoking pot, and poor kids do,” he said. “And African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support to avoid unduly harsh penalties.” But, he said, “we should not be locking up kids or individual users for long stretches of jail time when some of the folks who are writing those laws have probably done the same thing.”
Presidential Clemency
Much can be done to alleviate the criminal justice burden on minorities through the Presidential exercise of clemency. But during his first term—and even at the eleventh hour of the second—President Obama’s exercise of the pardon and commutation dimensions of this formidable clemency power had made only a modest dent in the Federal prison population. And it seems that President Trump will share this modesty. During his first term in office, Trump employed his clemency authority only in a handful of cases. Many were well-known (like financier Michael Milikin) and were often prompted ,it appears, by celebrities. However, President Trump has established an advisory group (bipartisan and including a clemency beneficiary) to inform him about potential candidates for clemency. This scheme has resulted in the release of commoners, and is meant to reduce the bureaucratic alleged morass associated with the Justice Department approach to clemency.[9]
President Obama, like his recent predecessors, was criticized for his initial reticent use of his pardon and commutation powers.[10] For examples, President Carter approved 21% of petitions for pardons or commutations (563 of 12,627 petitions); Reagan granted 12% (406/3,404); George H.W. Bush, 5% (77/1,466); Clinton 6% (457/7,489); and George W. Bush 2% (200/11,074). Near the close of his first term (June, 2012), President Obama granted but 1% of 6,662 of the petitions for pardons and commutations his pardon office received.[11] A close observer of Federal sentencing --Professor Douglas Berman of the Ohio State Law School-- found the Obama first Administration disappointing. He noted that despite calling for a “new dawn of justice” during his 2007-2008 Presidential campaign, the President had shown “a notable disinclination” to promote that “new dawn.” Excepting his “tepid” effort to reduce the punishment gap between crack and powder cocaine, the Obama Administration largely followed a “tough on crime” agenda in nearly all criminal justice areas, “including marijuana policy, Federal prosecutorial powers, the war on drugs, the clemency process,” and little was undertaken to “pioneer long-needed reforms.”[12]
President Obama’s reticence was much reduced after winning his second term when he was no longer eligible to be elected President again. However, there are those who attribute Obama’s reticence to organizational snafus in the Justice Department’s clemency petition apparatus.[13]
The President’s first-term reticence in connection with criminal-justice reform doubtless had many roots, but one may have been his hesitancy--particularly before his second term-- to publicly focus on policies manifestly connected with Negritude, given his commitment to be President of all Americans. Clemency affecting so many Black prisoners might have cultivated the charge that President Obama was “too Black”--a charge that he attempted to avoid, playing the typical political game of blame avoidance.[14]
Clemency action proceeded apace --though in a very uneven fashion--during the Obama second term when the pressure about appearing “too Black” was reduced. Still the total impact of presidential pardons and commutations has been marginal when considered in conjunction with the total Federal prison population of his time which was close to 200,000. By January 20, 2017 (the end of the Obama Administration), 1,696 formal commutations had been granted mostly for minority drug offenders.[15] In Fiscal Year 2012, the most serious offense of roughly half (94,678 of 181,964) of the prisoners in Federal jails was drug-related.[16] To be fair, though Obama’ssecond-term clemency actions set a presidential record, it should also be noted (though seldom publicized) that President Obama at the end of 2016 also denied 14, 485 petitions for clemency as well as closing without action another 4,242 petitions. Further, the number of positive clemency actions by President Obama fell far short of the 10,000 predicted by Obama’s Attorney General Holder.[17]
Crime-Charging Policy
Additionally, during the second term Federal crime-charging policy for drug offenses was changed by the Attorney General (using the President’s prosecutorial discretion) This change reduced imprisonment for drug offenses. And a 2014 revision (supported by the Obama Administration[18]) by the formally independent U.S. Sentencing Commission drug-incarceration guidelines worked (with judicial assistance) to free thousands of drug criminals, and might ultimately release about one-fourth of all the inhabitants in the Federal prisons. Most of the clemency afforded by the President came during the last year of his second term. Thus, President Obama could appear throughout most of his presidency as very “stingy” in his grant of pardons/commutations, (honoring the “tough-on-crime” constituency, while the Federal prison population was reduced. Of course, the releasing of prisoners was “playing with fire”-- raising the potentiality of increased havoc in the Black ghettos which President Obama knew are so badly infected with criminality. Yet, if he were so inclined, Obama could blame any increase in crime not on his clemency actions, but on the to-be-discussed Attorney General’s changed, charging policy and the U.S. Sentencing Commission guidelines which are implemented by the Federal judiciary. One should recall that President Obama was proficient in the game of blame avoidance.
Article II, Section 2 of the U.S. Constitution stipulates that the President “shall have Power to grant “Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” If total, a pardon removes the “existence of guilt.[19] A reprieve is a stay of execution, stopping the impositions of Federal law such as the exercise of prosecutorial discretion not to criminally prosecute, or prosecute for lesser offenses. (The reprieve capacity also helps shape the seemingly contradictory Article II requirements that the President supervise the bureaucracy, and “take care fhat
the laws be faithfully executed,”[20] meaning in part that Presidents and their executive officers are given broad leeway to determine what the dictates of good faith require in the way of executing the laws. Presidential clemency has been determined by the U. S. Supreme Court to include commutations--reductions in criminal punishment-- which often have come with conditions--on the grounds that Presidents may extend their clemency mercy upon whatever terms they please.[21] Thus, President Nixon commuted the prison sentence of Teamster-Union leader Jimmy Hoffa to time served on the condition that he refrain from Union management activities during the remainder of the prison term to which he had been sentenced.[22]
Recent “feedback”[23] from liberals and conservatives incorporated a growing insistence that U.S. criminal justice policy is “broken” because of such matters as over-incarceration; costliness of Federal prisons; and racial/ethnic disparities. Such concerns prompted the Obama Administration to propose reforms in its clemency policy: (1) An August, 2013 policy calling for the use of the President’s prosecutorial discretion to end mandatory minimum sentences for non-violent drug offenses—the charging guidelines change; (2) an April, 2014 policy to prioritize and expedite clemency applications for drug offenders, particularly the “old-law” crack offenders who received more severe punishment than powder-cocaine lawbreakers. (The 2010 Fair Sentencing Act[24] which equalized the punishment for crack and powder cocaine operated prospectively, but not retroactively.) Both initiatives were designed to appear bold, and both are bundles of screaming issues. At first though, some commentary on Federal prisoner release resulting from the U.S. Sentencing Commission’s guidance revision.
The U.S. Sentencing Commission and Sentence Reduction: Drug Mandatory-Minimums
The U.S. Sentencing Commission is a seven-member Commission. Each member thereof is nominated by the President and appointed for six-year terms with the consent of the Senate.[25] The Commission was created by the Sentencing Reform Act of 1984[26] with the purpose of U.S. prison-sentencing more determinate, so that the guilty serve comparable sentences. To that end and to avoid the wild sentencing variation, the Commission has established guidelines for Federal prison terms which terms are adjusted for such variables as the defendant’s criminal history. and how particular crimes were performed. ,Though the U.S. Supreme Court has converted the guidelines from requirements to suggestions,[27]They remain the “lodestone” of Federal judicial sentencing.[28]
In 2014, the Commission recommended that punishment (both prospectively and retrospectively) for drug crimes be reduced on the average by some twenty-five months. Congress might have rejected this plan, but it did not, The sentence reduction plan was first operative in November, 2015. The scheme involves sentence-reduction petitions by prisoners forwarded to Federal judges who could grant sentence reductions if they determined that the petitioners were no threat to society. Reportedly, about 6,000 prisoners were released in November, 2015, with one-third to be deported as illegal immigrants, while the remainder were to be subject to terms of supervised probation. The year 2016 was to witness another Commission-originated release of 8,000 with an estimated total of 49,000 to be freed from prison in the upcoming years.[29]
Influencing the Commission’s drug-sentencing reduction policy were such factors as state sentencing-reductions; the enormous and growing costs of Federal prison operation; the notion that drug sentencing was especially disruptive of minority society, and was altogether too severe; and the prodding of the Obama Administration.[30] The latter did delay by one-year the inaugural release of drug prisoners to allow more time for judges to determine whether applicants passed the societal-safety test, but the President himself was pleased with the initial release when he said that: "These men and women were not hardened criminals, but the overwhelming majority had been sentenced to at least 20 years. … I believe that at its heart, America is a nation of second chances. And I believe these folks deserve their second chance."[31]
The Obama Clemency Project Initiative, April, 2014
Change in Charging Guidelines, August 2013 In late April, 2014, Deputy U.S. Attorney General James Cole announced a “priority” clemency application process (called the Clemency Project/Initiative) allowing prisoners in the Federal jails --with the assistance of pro bono lawyers assigned by the Justice Department--to apply for clemency. These applications were to be reviewed by the Clemency Project group consisting of the U.S. Pardon Attorney, Federal public-defender lawyers, and representatives from select organizations.[32] The clemency applications were to be submitted to the President on a priority and expedited basis if the clemency petitioners involved conformed with the following:[33]
• They are currently serving a Federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
• They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
• They have served at least 10 years of their prison sentence;
• They do not have a significant criminal history;
• They have demonstrated good conduct in prison; and
• They have no history of violence prior to or during their current term of imprisonment.
The President’s primary objective was to free non-violent drug offenders not covered by the Fair Sentencing Act.[34] How were the concepts “non-violent,” “low-level, and significant ties” to “large-scale criminal organizations, gangs, or cartels” to be defined”? Drug crimes were considered throughout much of the history of the war on drugs as inherently violent.[35] Can it not be expected that prisoners who have served at least ten years in criminally poisonous environments will endanger the already crime-ridden minority communities? Did not the Obama clemency initiative constitute playing with fire?
The President’s legal counsel—Neil Eggleston—portrayed the total Obama clemency effort as exceptional. At the end of his second term Obama’s commutations exceeded the total of those given by eleven of Obama’s immediate presidential predecessors.[36] A different picture of the Obama commutations by others.
By summer, 2016, some 30,000 prisoners applied for the clemency offered by Deputy Attorney General Cole in April, 2014 (the ClemencyInitiative Project). Of these, about 9,000 were considered worthy of review by the Department of Justice, and as of August 2016, the President granted 562 commutations. Various explanations have been offered for this paucity: the determination of whether prisoners would have received more lenient sentences under current law has proven quite difficult to establish; the determination by the Clemency Project reviewers felt that many clemency petitioners received an appropriate sentence; fear of recidivism; and pressure from the “tough-on-crime” crowd. [37] The Inspector General of the Department of Justice noted that the targeted applicant body (the crack offenders) was not asked to provide clemency applications. Rather, applications were requested from the entire Federal prison population, resulting in such a large body of applicants that it exceeded the initial capacity of administrators to properly handle them. Consequently, requests for pardons (as opposed to commutations) were suspended in September, 2014 to allow a greater focus on commutations. Still, by the end of 2015, President Obama had granted a mere 175 commutations, leaving 1521 to be awarded in 2016, up to January 20, 2017 the last day of the Obama Administration when the Clemency Initiative ended. That number was reached only by changing some of the criteria announced by Cole above. For example, the ten-year imprisonment minimum was reduced by taking into account “good behavior” during imprisonment. And throughout, the President refused to award clemency to non- citizens even though they constituted some 25% of the Federal prison population. [38] Given the above-mentioned “rush to judgment,” one must wonder whether meritorious applications were treated properly.
As the year 2015 ended, The Federal prosecutor lobby (the Association of U.S. Assistant Attorneys) complained bitterly about President Obama’s exercise of clemency :[39]
Early Release of Drug Traffickers Doesn’t Meet Administration’s
Own Criteria for Clemency
On Friday, December 18, President Obama, working in conjunction with the Justice Department, ordered the early release of another 91 convicted drug traffickers from fully lawful sentences their criminal behavior had earned. This brings to approximately 150 the number of traffickers given early release through executive clemency in just the last 14 months.
When it announced this clemency project, the Administration committed to granting clemency only if six very specific criteria were met, including that the defendant was a non-violent, low-level offender, did not have a significant criminal history, and had no history of violence. Sadly, that has not been the case. In fact, many of the drug traffickers being released had armed themselves with firearms (one with 40 firearms); many were leaders or supervisors in their crimes (one was the lead defendant in a 69 day trial); many had multiple prior felony convictions (one had 8 prior felony drug trafficking convictions); and the vast majority were involved in conspiracies to distribute large quantities of dangerous drugs, often hundreds of thousands of dollars’ worth of methamphetamine or cocaine.
Significantly, these clemency releases are in addition to the 46,000 drug traffickers who are being released through retroactive softer sentences the White House and the Justice Department sought from the U. S. Sentencing Commission. As has been widely reported, 6,000 to 8,000 of these convicted drug traffickers were released early last month, and another 8,500 will be released in the next ten months.
No one is claiming these released traffickers are innocent, nor that the drugs they trafficked are harmless. No one is claiming that some -- probably most -- won't do it again. In fact, this class of drug offenders deals in potentially lethal drugs and has a high rate of recidivism (up to 77% according to a study by the Bureau of Justice Statistics). And no one can provide certainty that addicts – the young, the old, the weak and the vulnerable – will not die as a result of these releases.
For all of these reasons, the National Association of Assistant United States Attorneys has called on the White House and the Justice Department—entities the President promised would be transparent during his tenure—to release all of the information used in deciding to grant clemency in these cases, including the following:
• The recommendation of the U. S. Attorney and law enforcement officials in the district of conviction;
•
• A detailed description of the drug trafficking crimes that resulted in the conviction; and
• The defendant’s criminal record.
Similarly, as to the thousands of drug traffickers who have been and are being released through reductions in the sentencing guidelines, NAAUSA today has called on the White House and the Department of Justice to disclose the names, detailed descriptions of the trafficking crimes they committed, and their criminal histories.
Making this information available will allow the American people to judge for themselves whether the current prisoner release stream is prudent, much less necessary. Public disclosure of this information is particularly imperative in light of the on-going heroin epidemic and rising murder rates we are experiencing from coast to coast.
Finally, we encourage advocates for retroactive and prospective reductions in federal sentences to use honest language. Vague terms like "drug offender" and "low-level, non-violent offender" imply that the sentences targeted for reduction are for simple drug use or marijuana convictions. That is false. The federal sentences being reduced – and further reductions proposed in Congress now -- are for drug trafficking, not mere use or simple possession. Personal use of marijuana — “smoking a joint" — has never been the focus of federal drug prosecutions. Despite the implication by “sentencing reform” proponents to the contrary, the great majority of the drug dealers chosen for early release were trafficking in heroin, methamphetamine, and cocaine in substantial quantities. And many were armed drug traffickers prepared to engage in violence as an integral part of their business. For many, it was far from the first time.
Americans need more information than they are getting in order to decide whether now is the time to reverse the strong sentencing policies that, for the last generation, have helped slash crime rates and keep us all safer.
In August 2013, Attorney General Holder, citing racial/ethnic disproportionalities associated with mandatory-minimums drug sentencing[40] ordered his prosecutors (U.S Assistant Attorneys) to exercise the prosecutorial discretion constitutionally afforded the President (as part of his clemency powers) not to charge drug-offender defendants with mandatory-minimums if, among other things, the defendants were non-violent, had no significant criminal history, and were not significantly tied to criminal groups. Where such non-violent, low-level defendants were involved, the prosecutors (U.S. Assistant Attorneys) were instructed to seek non mandatory-minimum sentence remedies: plea bargains involving less imprisonment; prosecuting for crimes not involving mandatory minimums; submitting offenses to States for non-Federal prosecution.[41]
In his criminal justice reform efforts, Attorney General Holder has insisted that he spoke for President Obama,[42] giving credence to the notion that he was, as some claimed, Obama’s enforcer[43] and “heat shield.”[44] It is to be recalled that the Attorney General instituted an April, 2013 drug-charge policy change meant to reduce mandatory-minimum sentencing for non-violent offenders. According to Holder,[45] this charging-policy reform instructed Federal prosecutors to avoid citing drug weights (used to impose mandatory-minimum imprisonment penalties) when charging drug-defendants. This charge-reform did substantially reduce mandatory-minimum incarceration according to the Attorney General.[46] And reducing mandatory-minimum sentences for drug crimes--and Blacks constitute 80% of those imprisoned by Federal drug mandatory minimums-- has been an ongoing theme of the Obama Administration.[47] But the Inspector General of the Department of Justice found that only 74 of the 94 prosecutorial districts had “updated their local policies to reflect (What Obama and Holder called) Smart on Crime policy changes regarding mandatory minimum charging decisions.”[48] Importantly too, Federal prosecutors vigorously protested the Attorney General’s support of Congressional efforts to reduce mandatory minimum sentences. A January 27, 2014 letter to the Attorney General from the National Association of Assistant United States Attorneys reads in significant part:[49]
As non-political career officers of the Department of Justice, our duty is to pursue justice. …We are exceedingly mindful of the force of that authority and the ethical imperative to steer clear of its abuse in the performance of our official responsibilities. This is why we do not join with those who regard our Federal system of justice as “broken” or in need of major reconstruction. Instead, we consider the current Federal mandatory minimum sentence framework as well-constructed and well worth preserving.
We believe the merits of mandatory minimums are abundantly clear. They reach only the most serious of crimes. They target the most serious of criminals. They provide us leverage to secure cooperation from defendants. They help to establish uniform consistency in sentencing. And foremost, they protect law-abiding citizens and help hold crime in check.
In the 1980’s, our country underwent a crime epidemic that took root, in significant measure, because of the proliferation of crack cocaine, heroin, methamphetamines and PCP in communities across America. Violence became rampant; thirty years ago, the murder rate was twice what it is now, and the overall crime rate was not far behind. Bi-Partisan majorities in Congress took action. They passed mandatory sentencing laws to combat the pernicious of crimes…. Among the laws Congress passed were mandatory minimum sentences for drug trafficking that required judges to give at least a rock bottom sentence for the most harmful offenses.
As a result, we now have more uniformity in sentencing, and most importantly crime is now half of what [it] was in the era before mandatory minimum sentences took hold. The principal beneficiaries of this massive crime reduction are those who were disproportionately crime victims in the past—minority groups, particularly those in the inner cities. When crime starts to rise, as it did before mandatory sentencing laws and will again if we tear down the statutes that have helped keep us safe—minorities, disproportionately, will be the victims. The rest of our citizens won’t be far behind.
The Trump Response Until the First Step Act ( 2018)[50]
The Trump Administration would have nothing to do with Holder’s guidance on charging. Instead, Federal prosecutors were ordered to seek the maximum punishment for which were readily provable. Attorney General Sessions [51] explained the change in the charging formula:
Drug trafficking is an inherently violent business. … You collect… [drug debts] by the barrel of a gun. For the approximately 52,000 Americans who died of a drug overdose in 2015, drug trafficking was a deadly business.
Yet in 2013, subject to limited exceptions, the Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence. ….This was billed as an effort to curb mass incarceration of low-level offenders, but in reality it covered offenders apprehended with large quantities of dangerous drugs. The result was that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent. Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.
Before that policy change, the violent crime rate in the United States had fallen steadily for two decades. … Within one year after the Justice Department softened its approach to drug offenders, the trend of decreasing violent crime reversed. In 2015, the United States suffered the largest single-year increase in the overall violent crime rate since 1991. …
[T]here were more than 15,000 murders in the United States in 2015, representing a single-year increase of nearly 11 percent. …
The increase in murders continued in 2016. Preliminary data from the first half of 2016 shows that large cities in the United States suffered an average increase in murders of nearly 22 percent compared with the same period from a year earlier. …
Defenders of the status quo perpetuate the false story that federal prisons are filled with low-level, nonviolent drug offenders. The truth is less than 3 percent of federal offenders sentenced to imprisonment in 2016 were convicted of simple possession, and in most of those cases the defendants were drug dealers who accepted plea bargains in return for reduced sentences.
Federal drug offenders include major drug traffickers, gang members, importers, manufacturers and international drug cartel members. To be subject to a five-year mandatory sentence, a criminal would have to be arrested with 100 grams or more of heroin with the intent to distribute it — that is 1,000 doses of heroin. …
But it’s not our privileged communities that suffer the most from crime and violence. Minority communities are disproportionately impacted by violent drug trafficking. Poor neighborhoods are too often ignored in these conversations. …
There are those who are concerned about the fate of drug traffickers, but the law demands I protect the lives of victims that are ruined by drug trafficking and violent crime infecting their communities. Our new, time-tested policy empowers police and prosecutors to save lives.
As he noted above, Attorney General Sessions was concerned about violent crime, and sought transformatioally to bring about a safe America. President Trump also has stressed the violent crime in America, and embraced the Attorney General’s approach. For example, in his presidential inaugural, President Trump referred to the criminal carnage in America, and promised to help the nation be safe again.[52] Before his removal, Attorney General Sessions was active in this supposed-safety pursuit by among other ways seeking to end some Federal fund allocations to “sanctuary cities” which in various ways refused to cooperate with Federal officials in the implementation of immigration policies;[53] and charging those who illegally entered this country with a crime (as opposed to a civil offense) [54]--the theory being that illegal aliens brought crime.
As seen in the following message, President Obama continued to urge prison operational and sentencing reform even in the “eleventh hour” of his presidency. The message also incorporates an emphasis on reforming police operations, a considerable concern of his Administration. Some two dozen police departments were investigated by the Obama Administration generally for racially discriminatory practices--among other matters—resulting in several “consent decrees” involving judicial supervision of police operational reform. [55] Attorney General Sessions regarded the consent decrees as the vilification of the police causing law-enforcement inefficiency.[56] President Trump also supported the notion that the police were a noble group protecting the safety of Americans.[57] But Trump did support that prison-operation reform that could help educate inmates so that they could learn new skills and thus reduce recidivism. The Trump initial effort in this connection was attacked by congressional members in part because it called for the establishment of prisoner-risk information by the U.S Bureau of Prisons, and such information posed the threat of illegal disparate impact in that minorities—given their arrest records—were likely to be judged greater risks than Whites.[58] The Trump effort was also criticized because it did not incorporate sentencing reform.[59] By November, 2018 (after Sessions was removed as Attorney General), Trump incorporated sentencing reduction in his promotion of criminal justice reform. The July2015 Obama and Trump November messages on criminal justice reform follow:
The Latter-Day Obama Criminal Justice Reform Policy, and the Trump Administration “First Step” Act
Late in the second term, President Obama continued to urge criminal justice reforms described in the President’s own remarks at the NAACP Convention of July, 2015:[60]
We made progress, but our work is not done. By just about every measure, the life chances for black and Hispanic youth still lag far behind those of their white peers. Our kids, America’s children, so often are isolated, without hope, less likely to graduate from high school, less likely to earn a college degree, less likely to be employed, less likely to have health insurance, less likely to own a home.
Part of this is a legacy of hundreds of years of slavery and segregation, and structural inequalities that compounded over generations. (Applause.) It did not happen by accident. (Applause.) Partly it’s a result of continuing, if sometimes more subtle, bigotry -- whether in who gets called back for a job interview, or who gets suspended from school, or what neighborhood you are able to rent an apartment in -- which, by the way, is why our recent initiative to strengthen the awareness and effectiveness of fair housing laws is so important. (Applause.) So we can’t be satisfied or not satisfied until the opportunity gap is closed for everybody in America. Everybody.
But today, I want to focus on one aspect of American life that remains particularly skewed by race and by wealth, a source of inequity that has ripple effects on families and on communities and ultimately on our nation -- and that is our criminal justice system. … (Applause.)
There’s a long history of inequity in the criminal justice system in America. When I was in the state legislature in Illinois, we worked to make sure that we had videotaping of interrogations because there were some problems there. We set up racial profiling laws to prevent the kind of bias in traffic stops that too many people experience. Since my first campaign, I’ve talked about how, in too many cases, our criminal justice system ends up being a pipeline from underfunded, inadequate schools to overcrowded jails. (Applause.)
What has changed, though, is that, in recent years the eyes of more Americans have been opened to this truth. …
So let’s look at the statistics. The United States is home to 5 percent of the world’s population, but 25 percent of the world’s prisoners. Think about that. Our incarceration rate is four times higher than China’s. We keep more people behind bars than the top 35 European countries combined. And it hasn’t always been the case -- this huge explosion in incarceration rates. In 1980, there were 500,000 people behind bars in America -- half a million people in 1980. …Today there are 2.2 million. It has quadrupled since 1980. Our prison population has doubled in the last two decades alone.
Now, we need to be honest. There are a lot of folks who belong in prison. (Applause.) If we’re going to deal with this problem and the inequities involved then we also have to speak honestly. There are some folks who need to be in jail. They may have had terrible things happen to them in their lives. We hold out the hope for redemption, but they’ve done some bad things.
Murderers, predators, rapists, gang leaders, drug kingpins -- we need some of those folks behind bars. Our communities are safer, thanks to brave police officers and hardworking prosecutors who put those violent criminals in jail. (Applause.)
And the studies show that up to a certain point, tougher prosecutors and stiffer sentences for these violent offenders contributed to the decline in violent crime over the last few decades. Although the science also indicates that you get a point of diminishing returns. But it is important for us to recognize that violence in our communities is serious and that historically, in fact, the African American community oftentimes was under-policed rather than over-policed. Folks were very interested in containing the African American community so it couldn’t leave segregated areas, but within those areas there wasn’t enough police presence.
But here’s the thing: Over the last few decades, we’ve also locked up more and more nonviolent drug offenders than ever before, for longer than ever before. (Applause.) And that is the real reason our prison population is so high. In far too many cases, the punishment simply does not fit the crime. (Applause.) If you’re a low-level drug dealer, or you violate your parole, you owe some debt to society. You have to be held accountable and make amends. But you don’t owe 20 years. You don’t owe a life sentence. (Applause.) That's disproportionate to the price that should be paid.
And by the way, the taxpayers are picking up the tab for that price. (Applause.) Every year, we spend $80 billion to keep folks incarcerated -- $80 billion. Now, just to put that in perspective, for $80 billion, we could have universal preschool for every 3-year-old and 4-year-old in America. (Applause.) That's what $80 billion buys. (Applause.) For $80 billion, we could double the salary of every high school teacher in America. (Applause.) For $80 billion, we could finance new roads and new bridges and new airports, job training programs, research and development. (Applause.) We're about to get in a big budget debate in Washington -- what I couldn’t do with $80 billion. (Laughter.) It’s a lot of money. For what we spend to keep everyone locked up for one year, we could eliminate tuition at every single one of our public colleges and universities. (Applause.) …
Roughly one-third of the Justice Department’s budget now goes toward incarceration -- one-third. And there are outstanding public servants at our Justice Department, starting with our outstanding Attorney General, Loretta Lynch -- (applause) -- and we’ve got some great prosecutors here today -- and they do outstanding work -- so many of them. But every dollar they have to spend keeping nonviolent drug offenders in prison is a dollar they can’t spend going after drug kingpins, or tracking down terrorists, or hiring more police and giving them the resources that would allow them to do a more effective job community policing.
And then, of course, there are costs that can’t be measured in dollars and cents. Because the statistics on who gets incarcerated show that by a wide margin, it disproportionately impacts communities of color. African Americans and Latinos make up 30 percent of our population; they make up 60 percent of our inmates. About one in every 35 African American men, one in every 88 Latino men is serving time right now. Among white men, that number is one in 214.
The bottom line is that in too many places, black boys and black men, Latino boys and Latino men experience being treated differently under the law. (Applause.)
And I want to be clear -- this is not just anecdote. This is not just barbershop talk. A growing body of research shows that people of color are more likely to be stopped, frisked, questioned, charged, detained. African Americans are more likely to be arrested. They are more likely to be sentenced to more time for the same crime. (Applause.) And one of the consequences of this is, around one million fathers are behind bars. Around one in nine African American kids has a parent in prison.
What is that doing to our communities? What’s that doing to those children? Our nation is being robbed of men and women who could be workers and taxpayers, could be more actively involved in their children’s lives, could be role models, could be community leaders, and right now they’re locked up for a non-violent offense.
So our criminal justice system isn’t as smart as it should be. It’s not keeping us as safe as it should be. It is not as fair as it should be. Mass incarceration makes our country worse off, and we need to do something about it. (Applause.)
But here’s the good news. …
In fact, today, back in Washington, Republican senators from Utah and Texas are joining Democratic senators from New Jersey and Rhode Island to talk about how Congress can pass meaningful criminal justice reform this year. (Applause.) That’s good news. That is good news. Good news. …
There are states from Texas and South Carolina to California and Connecticut who have acted to reduce their prison populations over the last five years and seen their crime rates fall. (Applause.) That’s good news.
My administration has taken steps on our own to reduce our Federal prison population. So I signed a bill reducing the 100-1 sentencing disparity between crack and powder cocaine. (Applause.) I’ve commuted the sentences of dozens of people sentenced under old drug laws that we now recognize were unfair, and yesterday I announced that I’m commuting dozens more. (Applause.)
Under the leadership of Attorney General Eric Holder -- now continued by Loretta Lynch -- Federal prosecutors got what he called “Smart on Crime,” which is refocusing efforts on the worst offenders, pursuing mandatory minimum sentences 20 percent less often than they did the year before. The idea is you don’t always have to charge the max. To be a good prosecutor, you need to be proportionate. And it turns out that we're solving just as many cases and there are just as many plea bargains, and it’s working. It’s just that we’ve eliminated some of the excess.
And recently, something extraordinary happened. For the first time in 40 years, America’s crime rate and incarceration rate both went down at the same time. That happened last year. (Applause.) …
Now I want to spend the rest of my time just laying out some basic principles, some simple ideas for what reform should look like, because we're just at the beginning of this process and we need to make sure that we stay with it. …
So I want to begin with the community because I believe crime is like any other epidemic –- the best time to stop it is before it even starts. (Applause.) And I’m going to go ahead and say what I’ve said a hundred times before or a thousand times before, and what you've heard me say before, if we make investments early in our children, we will reduce the need to incarcerate those kids. (Applause.)
So one study found that for every dollar we invest in pre-K, we save at least twice that down the road in reduced crime. Getting a teenager a job for the summer costs a fraction of what it costs to lock him up for 15 years. (Applause.) Investing in our communities makes sense. It saves taxpayer money if we are consistent about it, and if we recognize that every child deserves opportunity -- not just some, not just our own. (Applause.) …
Places like West Philly, or West Baltimore, or Ferguson, Missouri -- they’re part of America, too. They're not separate. (Applause.) They’re part of America like anywhere else. The kids there are American kids, just like your kids and my kids. So we’ve got to make sure boys and girls in those communities are loved and cherished and supported and nurtured and invested in. (Applause.) And we have to have the same standards for those children as we have for our own children.
If you are a parent, you know that there are times where boys and girls are going to act out in school. And the question is, are we letting principals and parents deal with one set of kids and we call the police on another set of kids. That's not the right thing to do. (Applause.)
We’ve got to make sure our juvenile justice system remembers that kids are different. Don't just tag them as future criminals. Reach out to them as future citizens. (Applause.)
And even as we recognize that police officers do one of the toughest, bravest jobs around -- (applause) -- and as we do everything in our power to keep those police officers safe on the job -- I’ve talked about this -- we have to restore trust between our police and some of the communities where they serve. (Applause.) And a good place to start is making sure communities around the country adopt the recommendations from the task force I set up -- that included law enforcement, but also included young people from New York and from Ferguson, and they were able to arrive at a consensus around things like better training, better data collection -- to make sure that policing is more effective and more accountable, but is also more unbiased. (Applause.)
So these are steps in the community that will lead to fewer folks being arrested in the first place. Now, they won’t eliminate crime entirely. There’s going to be crime. That’s why the second place we need to change is in the courtroom. (Applause.)
For nonviolent drug crimes, we need to lower long mandatory minimum sentences -- or get rid of them entirely. (Applause.) Give judges some discretion around nonviolent crimes so that, potentially, we can steer a young person who has made a mistake in a better direction.
We should pass a sentencing reform bill through Congress this year. (Applause.) We need to ask prosecutors to use their discretion to seek the best punishment, the one that's going to be most effective, instead of just the longest punishment. We should invest in alternatives to prison, like drug courts and treatment and probation programs -- (applause) -- which ultimately can save taxpayers thousands of dollars per defendant each year. …
[O]n Thursday, I will be the first sitting President to visit a Federal prison. (Applause.) And I’m going to shine a spotlight on this issue, because while the people in our prisons have made some mistakes -- and sometimes big mistakes -- they are also Americans, and we have to make sure that as they do their time and pay back their debt to society that we are increasing the possibility that they can turn their lives around. (Applause.) …
And that’s why we should not tolerate conditions in prison that have no place in any civilized country. (Applause.) We should not be tolerating overcrowding in prison. We should not be tolerating gang activity in prison. We should not be tolerating rape in prison. And we shouldn’t be making jokes about it in our popular culture. That’s no joke. These things are unacceptable. (Applause.)
What’s more, I’ve asked my Attorney General to start a review of the overuse of solitary confinement across American prisons. (Applause.) The social science shows that an environment like that is often more likely to make inmates more alienated, more hostile, potentially more violent. Do we really think it makes sense to lock so many people alone in tiny cells for 23 hours a day, sometimes for months or even years at a time? That is not going to make us safer. That’s not going to make us stronger. And if those individuals are ultimately released, how are they ever going to adapt? It’s not smart.
Our prisons should be a place where we can train people for skills that can help them find a job, not train them to become more hardened criminals. (Applause.) …
Here’s another good idea -- one with bipartisan support in Congress: Let’s reward prisoners with reduced sentences if they complete programs that make them less likely to commit a repeat offense. (Applause.) Let's invest in innovative new approaches to link former prisoners with employers and help them stay on track. Let’s follow the growing number of our states and cities and private companies who have decided to “Ban the Box” on job applications -- (applause) -- so that former prisoners who have done their time and are now trying to get straight with society have a decent shot in a job interview. (Applause.) And if folks have served their time, and they’ve reentered society, they should be able to vote. (Applause.) …
We can’t ask our police, or our prosecutors, or our prison guards, or our judges to bear the entire burden of containing and controlling problems that the rest of us are not facing up to and willing to do something about. (Applause.)
So, yes, we have to stand up to those who are determined to slash investments in our communities at any cost -- cutting preschool programs, cutting job-training programs, cutting affordable housing programs, cutting community policing programs. That’s shortsighted. Those investments make this country strong. (Applause.) We’ve got to invest in opportunity more than ever.
An African American man born roughly 25 years ago has just a one-in-two chance of being employed today. More than one in three African American children are growing up in poverty. When America’s unemployment rate was 9.5 percent, when I first came into office, as it was going up, we properly recognized this is a crisis. Right now, the unemployment rate among African Americans is 9.5 percent. What should we call that? It is a crisis. And we have to be just as concerned about continuing to lift up job opportunities for these young people. (Applause.)
So today, I’ve been talking about the criminal justice system, but we have to recognize that it’s not something we can view in isolation. Any system that allows us to turn a blind eye to hopelessness and despair, that’s not a justice system, it is an injustice system. (Applause.) But that is an extension and a reflection of some broader decisions that we’re making as a society. And that has to change. That has to change. …
Sometimes I get in debates about how to think about progress or the lack of progress when it comes to issues of race and inequality in America. And there are times where people say, “Oh, the President, he’s too optimistic.” Or “he’s not talking enough about how bad things are.” Oh, let me tell you something, I see what happens. My heart breaks when I see families who are impacted. I spend time with those families and feel their grief. I see those young men on street corners and eventually in prisons, and I think to myself, they could be me; that the main difference between me and them is I had a more forgiving environment so that when I slipped up, when I made a mistake, I had a second chance. And they’ve got no margin for error. (Applause.)
I know -- I know -- how hard things are for a lot of folks. But I also know that it takes steps. And if we have the courage to take that first step, then we take a second step. And if we have the courage to take the second step then suddenly we’ve taken 10 steps. The next thing you know, you’ve taken 100 steps. And that’s true not just for us as individuals, but that is true for us as a nation.
We are not perfect, but we have the capacity to be more perfect. Mile after mile; step after step. And they pile up one after the other and pretty soon that finish line starts getting into sight, and we are not where we were. We’re in a better place because we had the courage to move forward. (Applause.) So we cannot ignore the problems that we have, but we can’t stop running the race. (Applause.) That’s how you win the race. That’s how you fix a broken system. That’s how you change a country. …
President Trump repeatedly argued that he was able to achieve criminal justice reform while his predecessor was unable to do.[61] (And it is clear that in this connection, President Trump was looking for greater electoral support from minority communities.) In this regard he was referring to the First Step Act which was signed into being on December 31, 2018. Given the comments of the association representing the U.S. Assistant Attorneys (the U.S. prosecutors) cited above, the Act failed to promoted the safety of the American society.[62] The Act incorporated sentencing reform allowing for a more liberal calibration days-off (for good behavior) one’s prison sentence; it made retroactive the abolition of the disproportionate distinction between the punishment for crack-cocaine as compared with its powder version; and called for the creation of a “recidivism-potential” classification which would rank all prisoners in U.S. jails as to their recidivism potential.[63]
In July of 2019, the Justice Department announced that 1, 800 had been released because of the First Step Act’s retroactive application of the abolition of the distinction between crack and powder cocaine. Some 90% of these were Black.[64] In addition, some other 3100 were released because of the first Step Act’s liberalization of the days-off calibration. These were primarily drug offenders and mainly minorities.[65] In January, 2020 the U.S. Department of Justice also noted what had happened to the recidivism-potential analysis:[66]
“Today is another milestone in implementing the First Step Act,” said Attorney General William P. Barr. “Beginning today, inmates will have even greater incentive to participate in evidence-based programs that prepare them for productive lives after incarceration. This is what Congress intended with this bipartisan bill. The First Step Act is an important reform to our criminal justice system, and the Department of Justice is committed to implementing the Act fully and fairly.”
Some of the key developments are described here:
• In accordance with the First Step Act and due on Jan. 15, 2020, all inmates in the Bureau of Prisons (BOP) system have received an initial assessment using the Justice Department’s risk and needs assessment tool known as the Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN). Initially released last July, the tool is designed to measure risk of recidivism of inmates.
• As of Jan. 15, 2020, inmates will be assigned to participate in evidence-based recidivism reduction programs and productive activities based on an initial needs assessment conducted by BOP. Participation and completion of those assigned programs and activities can lead to placement in pre-release custody or a 12-month sentence reduction under the First Step Act. A list of these programs will be published on the BOP’s website.
• In response to the public comments received and in coordination with the Independent Review Committee (IRC), the Justice Department has made changes to PATTERN that enhance its effectiveness, fairness and transparency. These changes had only a slight effect on PATTERN’s high-level of predictability and include:
o Adding a dynamic measure of offender’s “infraction free” period during his or her current term of incarceration;
o Modifying programming measures by adding psychology treatment programs (Bureau Rehabilitation and Values Enhancement Program (BRAVE), Challenge, Skills Program, Sex Offender Treatment (both residential and non-residential), Steps Toward Awareness, Growth, and Emotional Strength Program (STAGES), and Step Down programs), the faith-based Life Connections Program (LCP), and the BOP’s Drug Education program, to the “Number of programs completed (any)” measure and combine technical/vocational and Federal Prison Industries (UNICOR) into a new work programming measure; and
o Removing Age of first arrest/conviction and voluntary surrender.
• The department will also begin a pilot program to publish recidivism data and other First Step Act updates on a quarterly basis.
The efficient and effective implementation of the First Step Act continues to be a priority for the Department of Justice and for the Trump Administration. In this follow-up report, the Justice Department highlights changes made to PATTERN as a direct result of public input received during the 45-day public comment period that followed its publication in July 2019. National Institute of Justice (NIJ) held special listening sessions in early September 2019. During the sessions, NIJ and its partners engaged with stakeholders to ensure BOP can implement the most equitable, effective, and predictive tool possible, and to meet the goals of the FSA.
The BOP is working to incorporate these recommended changes to the risk assessment tool and will conduct a review to determine which inmates may have their risk score and level adjusted. In the interim, inmates will continue to be assigned to programs and activities based on their risk and needs and if eligible, will receive credit upon completion. The department believes that any updates to an inmate's risk score based on these changes will be minimal.
The department continues to work with the IRC and our experts to identify ways to improve PATTERN, while maintaining its high level of predictability, in addition to the feedback received from a range of stakeholders. This input has been invaluable as we strive to ensure the equity and effectiveness of PATTERN.
In addition, the Justice Department will soon release a funding opportunity to support continued implementation of the FSA. In the coming weeks, the NIJ will solicit proposals for a five-year project to review and revalidate PATTERN. For more information visit the NIJ webpage .
Remarks by President Trump on H.R. 5682, the FIRST STEP Act[67]
November 14, 2018
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THE PRESIDENT: Hello, everybody. Thank you very much for being here. Appreciate it. And thank you very much, everybody. I’m grateful to be here today with members of the House and Senate who have poured their time — and they really have — their heart, and energy into the crucial issue of prison reform.
A very respected man — Chairman Chuck Grassley — and my friend. Where’s Chuck? Chuck? Thank you, Chuck, very much. You’ve worked hard on this. And Bob Goodlatte. I saw Bob here. Thank you, Bob. Great job. Senators Lindsey Graham, Mike Lee, Tim Scott, Rand Paul, and Doug Collins — fantastic people who’ve worked so hard and we appreciate very much what you’ve done. We really do. Thank you all very much.
Working together with my administration over the last two years, these members have reached a bipartisan agreement. Did I heard the word “bipartisan”? Did I hear — did I hear that word? (Laughter and applause.) That’s a nice word. Bipartisan agreement on prison reform legislation known as the FIRST STEP. And that’s what it is; it’s the first step. But it’s a very big first step.
Today, I’m thrilled to announce my support for this bipartisan bill that will make our communities safer and give former inmates a second chance at life after they have served their time. So important.
And I have to tell you, I was called, when I announced and when we all announced together this news conference, by some of the toughest, strongest law enforcement people — including politicians, by the way — who are so in favor of it. And I was actually surprised by some. Like, as an example, Mike Lee — (laughter) — and Rand Paul, and others. No, it’s got tremendous support at every level. It’s really great.
And we’re all better off when former inmates can receive and reenter society as law-abiding, productive citizens. And thanks to our booming economy, they now have a chance at more opportunities than they’ve ever had before. It is true. Our economy is so strong, that when people are getting out of jail, they’re actually able to find jobs.
And I have three instances of companies that hired people coming out of prison, and they are so thrilled by the performance of these people. And now they’re doing it more and more and more. And a lot of people are seeing this. It’s great.
They wouldn’t have had the opportunity, frankly, except for the fact that the economy is so strong. And our job market is the lowest and best it’s been in over 50 years, and seems to be getting even better.
Our pledge to hire American includes those leaving prison and looking for a very fresh start — new job, new life. The legislation I’m supporting today contains many significant reforms, including the following:
First, it will provide new incentives for low-risk inmates to learn the skills they need to find employment, avoid old habits, and follow the law when they are released from prison. These incentives will encourage them to participate in vocational training, educational coursework, and faith-based programs — and I want to thank Paula White, very much, because I know you very much wanted that — thank you, Paula — that reduce their chances of recidivism, and, in other words, reduce their chances of going back to prison substantially.
Second, this legislation will allow federal inmates to be placed closer to their home communities in order to help facilitate family visitation — so important — because we know that maintaining family and community ties is key to successful reentry into our society.
Third, the bill includes reasonable sentencing reforms while keeping dangerous and violent criminals off our streets. In many respects, we’re getting very much tougher on the truly bad criminals — of which, unfortunately, there are many. But we’re treating people differently for different crimes. Some people got caught up in situations that were very bad.
I give an example of Mrs. Alice Johnson, who served 21 years. And she had, I think, another 25 or so to go. So she would have been in there for close to 50 years for something that other people go in and they get slapped on the wrist — which is also wrong, by the way. Which is also wrong. But I’ll never forget the scene of her coming out of prison after 21 years and greeting her family and everybody was crying. Her sons, her grandsons — everybody was crying and hugging and holding each other. It was a beautiful thing to see. It was a very much tough situation.
Among other changes, it rolls back some of the provisions of the Clinton crime law that disproportionately harmed the African American community. And you all saw that and you all know that; everybody in this room knows that. It was very disproportionate and very unfair.
Throughout this process, my administration has worked closely with law enforcement. Their backing has ensured that this legislation remains tough on crime — it’s got to remain very tough on crime — and supports the tremendous work of our police and the tremendous job that law enforcement does throughout our country, our communities. They do an incredible job. We have great respect for law enforcement.
We’re honored that seven of the major police organizations, including the Fraternal Order of Police and the International Association of Police Chiefs, have fully endorsed this bill.
We could not have gotten here without the support and feedback of law enforcement, and its leaders are here today — two of them — especially Chuck Canterbury of FOP and Chief Paul Cell of IACP. Thank you very much. (Applause.) Thank you very much. I appreciate that very much. And these are two tough cookies. (Laughter.) They want what’s right. They want what’s right.
And interesting — if you look at Texas, if you look at Georgia, if you look at Mississippi and Kentucky and some other states that are known as being very tough — these are big supporters of what we’re doing. And some of it has been modeled after what they’ve done. They’ve done a tremendous job.
My administration will always support the incredible men and women of law enforcement, and we will continue to pursue policies that help the heroes who keep us safe. They are truly heroes.
We also thank the more than 2,000 leaders in the faith community who have signed a letter of support. We have tremendous support within the faith community. Unbelievable support.
Americans from across the political spectrum can unite around prison reform legislation that will reduce crime while giving our fellow citizens a chance at redemption. So if something happens and they make a mistake, they get a second chance at life.
Today’s announcement shows that true bipartisanship is possible. And maybe it’ll be thriving, if we’re going to get something done. When Republicans and Democrats talk, debate, and seek common ground, we can achieve breakthroughs that move our country forward and deliver for our citizens. And that’s what we’re doing today. And I have great respect for the people standing alongside of me.
I urge lawmakers in both the House and Senate to work hard and to act quickly and send a final bill to my desk. And I look very much forward to signing it. This is a big breakthrough for a lot of people. They’ve been talking about this for many, many years.
I want to thank Jared Kushner for working so hard on the bill. Thank you, Jared. (Applause.) He worked very hard. He really did. He worked very hard. He feels very deeply about it.
And it’s my honor to be involved and it’ll be an even greater honor to sign.
So good luck, Chuck and Mike and Rand and everybody — Lindsey, everybody back here. Go out and see if you can get that done. And if you can, I’m waiting. I’ll be waiting with a pen. And we will have done something — (laughter) — we will have done something that hasn’t been done in many, many years. And it’s the right thing to do. It’s the right thing to do.
Thank you all very much. Thank you very much. (Applause.)
Trump and Policing After Floyd
In the wake of George Floyd’s death at the hands of the police, the nation’s
antidiscrimination mode reached a new level of intensity. President Trump’s continued to insist that minorities could prosper again if the American economy took on the dimensions of its past leadership, as it would. [68] In short, the President as in the past, felt that minority malaise could be greatly reduced or ended by making our economy great again . Progress in job opportunities for minorities had been made before the economy was negatively affected by the corona virus.[69] But the economy would bounce back and the transformation of minority malaise would continue. President Trump’s immigration policies at the southern border were meant to end the competition which this immigrant mass posed for U.S. minorities, and his regulation reduction and tax policies would help the economy revive.
As for police reform, President Trump debunked the notion of defunding. Dismantling, or disbanding the police.[70] What was needed was more training to mitigate police misconduct.[71] But local control was essential as was evidenced by an Executive Order of June 16, 2020 which established national investigatory units for the purpose of examining police departments and their conduct . But these national units could only make recommendations. It was up to local police forces to make changes. [72]
Likewise, it seemed that President Trump’s deployment of Federal agents to several major U.S. cities was designed to establish greater Federal control to handle increased crime and the failure of localities to deal with it effectively.[73] (He reportedly said that at least some police forces were not doing their job.) But it was clarified that the Federal agents sent to the cities were there to help local police, but it could lead to greater centralization.[74]
The reader should note that both Presidents Trump and Obama sought major changes. President Obama had the objective of freeing from Federal incarceration non-violent Blacks and Latinos who had been unfairly imprisoned mainly because of drug crimes. Much of this objective was achieved through the use of presidential clemency, change in charging policy, and the guidelines of the U.S. Sentencing Commission.
Initially, President Trump embraced the view of his law and order Attorney General Jeff Sessions. An effort would be made to free America from violent crime by –among other ways—rejecting the drug-charging policies of the Obama Administration, and the use of consent decrees to reform police departments. But later, Sessions was removed. President Trump promoted the First Step Act which—conforming to the Obama objective—operated to free minorities who had been imprisoned for drug offenses. While he continued to insist on the local control of police, but—noting an increase in violent crime- he took steps which might increase national controls over police affairs. It is quite possible that President Trump has come to re-embrace the views of former Attorney General Sessions.
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The White House
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[1] Pub. L. 15-391 at
[2] Pub. L. 111-220 at
[3] Dale Chappell and Douglas Ankney, First Step Act Update: Over 1,600 Sentences Reduced, 3,000 Prisoners Released, Prison 54a Legal News, September, 2019, p. 54 at
[4] Paul Butler, Centennial Symposium: A Century of Criminal Justice: III: The People: One Hundred Years of Race and Crime,100 J. Crim. L. & Criminology 1043-1060 (Summer, 2010), 1046-1048 at
[5] Statement of Judge Hinojosa, Acting Chair of U.S. Sentencing Commission at the Crime and Drugs. U.S. Senate Subcommittee of the Senate Judiciary Committee Hearing on Addressing the Crack-Powder Disparity, April 29, 2009, p. 9 at
[6] Race, Crime, and the Law (Pantheon, 1997), 364-386.
[7] U.S. The Whitehouse, Remarks of the President on Trayvon Martin, July 19, 2013 at
[8] At
[9] Mark Osler, Trump’s Three-Track Clemency Process Just Might Work, The Hill, March 2, 2020 at
[10] Douglas A. Berman, Turning Hope and Change Talk into Clemency Action for Nonviolent Drug Offenders, 36 N.E. J. On Crim. & Civ. Con. (Winter, 2010), 59-73 at ; Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology, 1169-1212 (2010) at ; Jeffery Crouch, The President’s Power to Commute: Is It Still Relevant? 9 U. St. Thomas L. J. 681-697 (2012) at
[11] Crouch, 9 U. St. Thomas L. J. 681, 686 (cited above).
[12] Douglas A. Berman and Robert Watkins, Editors’ Observations: A Cynic’s Guide to All The Federal Sentencing Reform Buzz, 26 Fed. Sent. R. 73 (2013).
[13] Mark Osler, Trump’s Three-Track Clemency Process Just Might Work, The Hill, March 2, 2020 at
[14] See R. Kent Weaver, The Politics of Blame Avoidance, Journal of Public Policy, Vol. 6, #4, 371-398 (October-December 1996) at
[15] U.S. The White House, President Obama Commutes the Sentences of 214 Persons, August 3, 2016 at ; Mumba and Monica Akinwole-Bandele, Race Still Matters in Presidential Pardon,The Hill, January 17, 2017. At Byron Tau, President Steps Up Clemency Effort, The Wall Street Journal, August 4, 2016, A3 at Add on the Politico article
[16] U.S. Department of Justice, Bureau of Justice Statistics, Drug Offenders in Federal Prison, October, 2015. Pp. 1-2 at
[17] Gregory Korte, Obama Grants 330 More Commutations, Bringing A Total to A Record 1,715, USA Today, January 19, 2017at
[18] Judge Patti B. Saris, Chair of U.S. Sentencing Commission, A Generational Shift in Federal Drug Sentencing, November 1, 2014, p. 21 at
[19] Ex Parte Garland, 71 U.S. 333, 380 (1867) at
[20] U.S. v. Armstrong, 517 U. S. 456, 464, 463-471 (1996) at
[21] Ex Parte Wells, 59 U.S. 307, 311 (1855). At:
[22] Jeffery Crouch, The President’s Power to Commute: Is It Still Relevant? 9 U. St. Thomas L. J. 68-697 (2012) at
[23] David Dagan and Steven M. Teles, Locked In? Conservative Reform and the Future of Mass Incarceration, 651 Annals of the American Academy of Political and Social Science, 266 -276 (January, 2014) at
[24] Pub. L. 111-220; 24 Stat. 2372 at
[25] No more than four members can be of the same party.
[26] Pub. L. 98-473, 98 Stat. 1976. At:
[27] U.S. v. Booker, 543 U.S. 220 (2005) at
[28] Judge Patti B. Saris, Chair of U.S. Sentencing Commission, A Generational Shift in Federal Drug Sentencing, November 1, 2014 at .
[29] Id. The numbers to be released are subject to dispute. Thus the U.S. Council of Economic Advisors estimated in 2016 that only 6,000 would be released over five years. U.S., Executive Office of the President, Council of Economic Advisers, Economic Perspectives on Incarceration and the Criminal Justice System, April, 2016, 60-61 at
[30] Saris, Judge Patti B. Saris, Chair of U.S. Sentencing Commission, A Generational Shift in Federal Drug Sentencing, November 1, 2014, at ; National Association of Assistant U.S. Attorneys, Press Release: Early Release of Drug Traffickers, December 22, 2015 at
[31] Cited by Michelle Toh, Why The Justice Department Will Soon Release 6,000 Prisoners, The Christian Science Monitor, October 6, 2015 at
[32] American Civil Liberties Union, Families Against Mandatory Minimums; the American Bar Association; the National Association of Criminal Defense Lawyers, See ACLU Website, Clemency Project 2014 Praises Justice Department for Breathing New Life in to Clemency Process, April 23, 2014 at
[33] U.S. Department of Justice Website, Deputy Attorney General James Cole Announces a New Clemency Initiative, April 23, 2014 at
[34] U.S. Department of Justice, Office of the Inspector General, Review of the Department’s Clemency Initiative,August 4, 2018, Executive Summary. At
[35] James Forman, Jr., Locking Up Our Own: Crime and Punishment in Black America (Farrar, Straus and Giroux, 2017), 144-145.
[36] Juleyka Williams, President Obama Hits Another Commutation Milestone, The Atlantic, November 22, 2016. At
[37] Josh Gerstein, Obama’s Drug-Sentencing Quagmire, Politico, January 5, 2015. At:
[38] U.S. Department of Justice, Office of the Inspector General, Review of the Department’s Clemency Initiative,August 4, 2018, Executive Summary. At
[39] National Association of U. S. Assistant Attorneys, Early Release of Drug Taffickers, December 22, 2015 at
[40]U.S. Department of Justice Website, Remarks by the Attorney General Prepared for Delivery at the Annual Meeting of the American Bar Association’s House of Delegates, August 12, 2013 at
41 Id.
[41] U.S. Department of Justice, Attorney General Holder Remarks at American Bar Association Meeting, August 12, 2013. At:
[42] John Fund & Hans Von Spakovsky, Obama’s Enforcer: Eric Holder’s Justice Department (Broadside, 2014).
[43] Glenn Thrush, Why Holder Quit, Politco, September 25, 2014 at
[44] U.S. Department of Justice, Attorney General Holder Remarks at National Press Club, February 17, 2015. At:
[45] Id.
[46] See U.S. The White House, Remarks by the President at the NAACP Convention, July 14, 2015. At
[47] U.S. Department of Justice, Office of the Inspector General, Review of the Department’s Implementation of Prosecution and Sentencing Reform Principles Under the Smart on Crime Initiative, June, 2017, p. ii. At
[48] National Association of Assistant U.S. Attorneys, On Mandatory Minimums, January 27, 2014 at
[49] Pub. L. 115-391 at
[50] Jeff Sessions, Being Soft on Sentencing Means More Violent Crime. It’s Time To Get Tough Again, The Washington Post, Op-Ed, June 16, 2017. At
[51] U.S. The White House, The Prepared Inaugural Address, January 20, 2017. At
[52] Michael Hiltzik, Another Judge Slaps Down Jeff Sessions For Trying to Punish Sanctuary Cities Like L.A., Los Angeles Times, September 17, 2018. At
[53] Sari Horwitz and Maria Sacchetti, Session Bows to Prosecute All Illegal Border Crossers and Separate Children From Their Parents, The Washington Post, May 7, 2018. At
[54] Katie Benner, Sessions in Last Minute Act Sharply Limits The Use of Consent Decrees to Curb Police Abuses, The New York Times, November 8, 2018. At
[55] Id.
[56] The White House, Remarks By President Trump on H.R. 682, The First Step Act, November 17, 2018. At
[57] U.S. Congress, Letter Opposing the First Step Act, May 17, 2018. At
[58] Id.
[59] U.S. White House, Remarks by President at NAACP Conference, July 14, 2015. At
[60] U.S., The White House, President Trump’s Remarks on Signing The First Step Act, December 21, 2018 at
[61]The National Association of U.S. Assistant Attorneys opposed early release of Federal prisoners. See Mark Levin, Prosecutors Oppose First Step Bill, Facebook, November 15, 2018 at ; Also see National Association of U. S. Assistant Attorneys, Early Release of Drug Taffickers, December 22, 2015 at
[62] U.S., Federal Bureau of Prisons, Overview of First Step Act at
[63] Dale Chappell & Douglas Akney. First Step Act Update, Prison Legal News, September 9, 2019 aat
[64] Id.
[65] U.S., Department of Justice, Announcement on First Step Act, January 15, 2020 at
[66] U..S., The White House, Remarks By President Trump on H.R. 682, The First Step Act, November 17, 2018. At
[67] U.S., The White House, President Trump’s Remarks on Signing an Executive Order on White House Hispanic Prosperity Initiative, July 9, 2020 at
[68] U.S., The White House, President Trump’ s State of the Union Address, February 4, 2020 at
[69] Ben Gittleson, Trump Says No to Defunding, Dismantling, or Disbanding of Police, ABC News, June 8, 2020 at
[70] Peter Baker & Thomas Kaplan, Trump Defends Police, But Says He’ll Sign Order Encouraging Better Practices, The New York Times, June 11, 2020 at
[71] U.S., The White House, Executive Order on Safe Policing, June 16, 2020 at
[72] Elizabeth Thomas, Citing Crime, Trump Expands Sending Federal Agents to Cities Over Mayors’ Opposition, ABC News, July 22, 2020 at
[73] Associated Press, Trump Sends More Federal Agents to Cities, US News, July 23, 2020 at
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