Going further than what the Justice Department advocated, the United States Sentencing Commission voted unanimously Thursday to retroactively apply sentence reductions to those convicted of federal crack offenses.
In a much-anticipated meeting, the bipartisan commission voted 6-0 to apply an amendment of the 2010 Fair Sentencing Act to prisoners already in jail, meaning that as many as 12,000 federal prisoners could have their sentences shortened.
“Today’s action by the Commission ensures that the longstanding injustice recognized by Congress is remedied,” said Judge Patti B. Saris, the chair of the Commission.
The Fair Sentencing Act lowered the sentence for those convicted of crack offenses; before the act, someone caught with 5 grams of crack was given a minimum of five years in jail, while it would have taken 500 grams of powder cocaine to trigger the same amount of jail time. That 100:1 ratio is now 18:1, and the Commission’s decision means that prisoners who were convicted under the old guidelines can benefit from the change. The average sentence reduction for prisoners will be approximately three years, according to the Commission.
The decision went further than what the Justice Department had advocated. Attorney General Eric Holder is in favor of retroactively applying the reductions, but recommended that certain categories of more serious criminals not be eligible for sentence reductions. The Commission rejected that position, arguing that those with longer criminal histories or violent records have already received longer sentences than other crack felons.
Commissioners emphasized, however, that sentence reductions will be made on a case-by-case basis and that public safety risk is a legitimate factor in declining early release.
“The decisions will continue to be in the hands of the judges,” said Commissioner Ricardo H. Hinojosa, who is also the Chief Judge for the Southern District of Texas.
Still, the issue is a controversial one and has received both strong support from advocacy groups such as Families Against Mandatory Minimums and the NAACP, and strong opposition from many in law enforcement.
The National Association of Assistant United States Attorneys is in strong opposition, citing the possible impact on public safety as a result of thousands of convicted drug dealers potentially leaving prison earlier than expected.
Some in Congress have also raised opposition, and, in addition to pointing out crime concerns, have argued that the commission is going against the will of Congress, as nothing in the 2010 law implied that the change should be made retroactive.
Commissioner Ketanji Brown Jackson said that “congressional silence” on the issue was not a legitimate reason against the decision, arguing that the Commission was simply fulfilling the statutory duty to reduce sentences given it by the 2010 act and that the magnitude of the issue necessitates action.
Jackson said the main issue was one of fundamental fairness and of eliminating the “long and persistent shadow” that she said has been cast over the crack convictions and the justice system because of the earlier harsh guidelines. Absent from the Commissions’ discussions but implicit in their decision was the need to reverse racial discrepancies that the sentence guidelines had caused: African Americans are more likely to be street dealers and therefore to be arrested in possession of crack cocaine, while wholesalers in possession of powder would get off more lightly.
Saris alluded to this problem in her remarks, as she noted that the heavy sentences had targeted low-level dealers, not the mid- and-upper level ones they were intended to.
Commissioners also cited more practical concerns as additional reasons for the change, including an expected $240 million in savings for a Bureau of Prisons that is currently 37% over capacity, and noted that studies had shown that those prisoners released early on crack sentences did not differ in recidivism rates from those who served their full sentences.
The commission’s decision had an immediate personal effect on some in the audience: relatives of those currently imprisoned on crack convictions.
Angela Johnson of Hampton, Virginia came with her family to the meeting and said afterward that she hoped that her son, who has served the last four years in federal prison for a crack offense, would be released much sooner as a result of the Commission’s decision.
“It took so long, but I’m impressed,” she said.
Prisoners may begin asking the courts to shorten their sentences starting November 1, a delay the Commission said is designed to give time to the criminal justice system to prepare to handle the cases administratively and to allow Congress to review the decision.
A new collection of essays, Prosecutors in the Boardroom, explores what the book’s editors call an often overlooked practice: prosecutors regulating industries.
Rachel E. Barkow and Anthony S. Barkow of NYU Law School answered Main Justice’s questions over email about the book and the legal landscape it discusses.
Why did you think this book was necessary?
Anthony Barkow (photo courtesy Juliana Thomas)
Especially in the wake of the Arthur Andersen prosecution, we have an entered an era in which prosecutors and firms have embraced a concept we call “regulation by prosecutors.” “Regulation by prosecutors” involves prosecutors reaching agreements with companies, under the threat of prosecution, which allow the companies to avoid indictments so long as they meet the prosecutors’ regulatory terms. The agreements go by different names. In the federal system, they consist of non-prosecution agreements (“NPA”) and deferred prosecution agreements (“DPA”). In some states, they are known as settlement agreements. When the agreements require companies simply to obey the law or pay for prior bad acts, they are not particularly noteworthy because they are incidental to the traditional exercise of executive power.
But in many of these agreements, prosecutors impose affirmative obligations on companies to change personnel, revamp their business practices, and/or adopt new models of corporate governance. These dictates are often sweeping and some prosecutors have imposed them on industries, not just isolated companies, by bringing charges against all the key entities. They resemble, in significant respects, the structural injunctions courts have imposed in areas like prison and school reform and the regulations promulgated by administrative agencies.
The practice of regulation by prosecutors raises a number of fundamental questions that we believe merited a book on the topic. Perhaps most fundamentally, there is the question of how the government should seek to deter corporate misconduct and the role of the criminal law in that endeavor. Relatedly, there is the question of prosecutorial competence and legitimacy to set regulatory terms. What is the comparative institutional competence of prosecutors to regulate as compared with traditional regulatory agencies like the Securities and Exchange Commission? Are there differences in the relative competence of state versus federal prosecutors in pursuing this kind of regulation? What factors – accountability, expertise, independence, ethical concerns, efficiency or lack thereof – make prosecutorial participation in the regulation desirable or undesirable? How could these factors be adjusted to improve the quality of that participation? What safeguards can promote good practices in prosecutorial involvement in corporate governance, and what measures can improve coordination and minimize collisions between prosecutors and regulatory agencies? How much power should corporate monitors have, and by what process should they be appointed?
These are fundamental questions that scholars have not widely addressed, and policymakers must address. We wanted to assemble a group of leading scholars in the field to begin that analysis.
When did the trend of having prosecutors regulate companies begin to ramp up?
Recent years have shown a dramatic increase in the use of DPAs and NPAs by federal prosecutors, rising from a mere eleven negotiated between 1993 and 2001, and 23 between 2002 and 2005, to 66 between 2006 and 2008. Some, especially those negotiated under Chris Christie, the former U.S. Attorney in New Jersey (and now the governor), were quite controversial. These agreements went far beyond insisting that a company cease breaking the law, and resulted in the appointment of corporate monitors with broad mandates to oversee the corporations’ compliance with the agreement — and its business practices more generally — and one even required Bristol-Myers Squibb to endow a professorial chair at Christie’s law school alma mater. Recent efforts by the New York Attorney General’s Office under Eliot Spitzer and Andrew Cuomo also exemplify this sort of regulation-by-prosecutor.
Rachel Barkow
You write that there are serious questions about whether prosecutors are necessarily competent to also act as regulators. What is your conclusion? Is this too much power in the hands of already powerful prosecutors?
Whether a regulatory regime makes sense requires careful assessment of the regime’s costs and benefits, and the same holds true for the regulatory system enforced by prosecutors and created through DPAs, NPAs, settlement agreements, and corporate monitors. Just as regulatory reform in general must rest on reliable empirical information, so, too, must regulatory reform in the context of prosecutors’ offices. So we need more empirical data about the effectiveness of settlement agreements in reducing misconduct, the costs of their use, and availability of alternatives, and the costs and benefits of particular terms within agreements. The book sets out the key questions that we should be asking to guide that empirical inquiry.
If prosecutors are taking on the roles of regulators, what is the point of the many existing regulatory agencies?
First, it’s not a criminal prosecutor’s job to regulate an industry. His or her job is to investigate and prosecute specific instances of misconduct. The expertise and authority necessary to regulate and prescribe rules rests in the agencies and the democratically-elected legislatures. Second, criminal prosecutors can never be the sole source of regulation of anything. There simply are not enough of them, and the penalties they mete out are at the very top of a pyramid of alternative penalties. Selecting the right penalty for particular misconduct — whether jail time, criminal fines, civil penalties or injunctive actions, regulatory or licensing consequences, or merely market-imposed consequences — is a fact-dependent and contextual inquiry. Thus, in order to regulate industries broadly, and calibrate penalties appropriately, other regulatory mechanism are essential. Finally, regulation is often required even when acts aren’t criminal. Prosecutors are necessarily reactive – they respond when criminal behavior occurs. Agencies, in contrast, can be proactive and address problems even when they do not rise to the level of criminal conduct.
Is this prosecutorial power one that is overlooked? Is there a need for increased education and focus on it in law schools and in the country in general?
There isn’t enough attention to prosecutorial power in general, whether in law schools, academic scholarship, or policy circles. There’s a tendency to focus on trials because that’s where the settled case law is, whereas prosecutorial decision-making — particularly as exercised in making charging and decisions about dispositions without trials — drives most outcomes in the criminal justice system. And that decision-making is essentially unregulated by judicial decisions. But schools, scholars, and policymakers shouldn’t just focus on trials or court decisions; this is an example of an area that demands more attention precisely because of its lack of regulation. But at the Center on the Administration of Criminal Law at NYU, this issue receives a great deal of scrutiny.
To you, does the political success of regulatory-prosecutors such as Andrew Cuomo show that there is a public appetite for such get-tough on corporate corruption tactics? What does that mean for the evolving corporate/legal landscape?
There is absolutely a public appetite for this sort of tactic. Indeed, there is usually a public appetite for a tough-on-crime approach. And sometimes that’s the right approach. But sometimes it’s not. The trick is deciding when it’s appropriate and when it’s not.
Is the U.S. system a model that other countries should follow, or an example to be avoided?
The U.S. model has its advantages: it can ensure that prosecutors and companies avoid the destruction of a company (as happened to Andersen), but still vindicate important government and societal interests (eradicating wrongdoing). But the practice is largely unregulated, and insufficiently studied. The U.S. model has something to offer to other countries, but we — and they — must study the success and failure of this practice in order to maximize the benefits derived from it.
Anthony S. Barkow is the Executive Director of the Center on the Administration of Criminal Law at NYU School of Law. He was a federal prosecutor for 12 years, the last six of which were spent in the United States Attorney’s Office for the Southern District of New York, where he primarily prosecuted securities fraud and national security cases.
Rachel E. Barkow is a Professor Law and the Faculty Director of the Center on the Administration of Criminal Law at NYU School of Law. She is also a member of the Manhattan District Attorney’s Office Conviction Integrity Policy Advisory Panel.
Attempting to change the direction of a congressional probe, the ranking Democratic member of the House Oversight and Government Reform Committee held a forum Thursday focusing entirely on reforming gun trafficking laws – not blaming Justice Department officials.
Rep. Elijah E. Cummings (D-Md.) used momentum from an investigation into the Bureau of Alcohol, Tobacco, Firearms and Explosives’ Operation “Fast and Furious” to organize a panel of law enforcement experts and gun safety advocates. The panelists pushed for tighter restrictions on straw purchasers and firearms trafficking in an effort to curb gun violence along the U.S.-Mexican border.
“It just seems like we have a situation that cries out … for folks putting political considerations to the side and trying to address this issue,” Cummings said.
But Cummings’ remarks also highlighted the lack of Republican attendees at the forum. Their absence, as well as a report released by Cummings’ early Thursday, highlighted the divergent approaches the two parties have taken during the probe.
Led by Chairman Rep. Darrell Issa (R-Calif.) and Sen. Charles Grassley (R-Iowa), Republicans have focused largely on holding high-level ATF and DOJ officials accountable for authorizing the operation that allegedly allowed thousands of firearms to be sold to straw purchasers in Arizona and trafficked into Mexico – a violation of federal law.
Meanwhile, Cummings and other Democratic members have used testimony from various law enforcement agents to buttress calls for enhanced gun trafficking laws and tighter reporting requirements on firearm sales.
Cummings downplayed this partisan backdrop Thursday, saying that the forum was an attempt to address problems brought to his attention by ATF agents who testified during the committee’s June 15 hearing.
“The whistleblowers came in and said, yes we’ve got to deal with Fast and Furious … but they also said, we’ve got some other problems,” Cummings said. “These are words that came from the witnesses that were called by my colleagues and Mr. Issa.”
But Rep. Carolyn Maloney (D-N.Y.) didn’t pull her punches, criticizing Republican committee members for ignoring testimony from the ATF agents.
“Despite the majority’s own witnesses testifying to the need for better tools to curb gun trafficking, the majority doesn’t even want to talk about it,” she said at the forum.
Maloney said she plans to introduce a bill addressing “gaping loopholes” in gun trafficking law within the next week. It would specifically prohibit firearms trafficking — currently not addressed under federal law — and raise penalties for straw purchasers.
Cummings has said he also wants more robust reporting of the sale of so-called “long guns,” or high caliber firearms designed for military use.
Kristen Rand, legislative director with the Violence Policy Center, said the easy availability of military-grade weapons in many states has allowed drug cartels to wage war with virtual impunity across the border.
“The average American would be shocked if they knew what today’s gun industry is,” Rand said. “The vast majority of the gun industry today is focused on making these weapons of war … and they don’t really care who they’re selling them to.”
Testimony from law enforcement experts also highlighted the difficulty of prosecuting straw purchasers, reinforcing comments from June 15 when ATF Special Agent Peter Forcelli called the laws “toothless.”
Cummings and Issa joined a bipartisan group that recently traveled to Mexico to speak with federal police, intelligence agents and Mexican government officials, who Cummings said shared the concerns of officials in the U.S.
“Almost everything we heard here today, they told us when we were on the ground” in Mexico, Cummings said. “Basically they’re almost begging us to help them do their job.”
Attorney General Eric Holder said on Thursday that he has decided to order an investigation into possible criminal conduct by members of the Central Intelligence Agency or their subcontractors in the deaths of two detainees who were held for possible ties to terrorism.
Holder’s announcement, likely to set off a political firestorm with the 10th anniversary of the Sept. 11 attacks drawing near, follows a probe of more than three years that was headed by John H. Durham, a prosecutor from Connecticut. The Attorney General’s decision that a full-scale investigation is now warranted is a significant blow to the CIA as it goes through a time of transition, with a new Director, David Petraeus, confirmed by the Senate on Thursday.
Details of when and where the two detainees died were not included in Holder’s statement. It has long been known that some detainees in CIA custody were subjected to the ordeal known as “waterboarding” and even more extreme measures, as The New York Times reported in 2009.
The latest development in the case comes more than three years after then-Attorney General Michael Mukasey ordered Durham to investigate the destruction of scores of interrogation videotapes by the CIA, in defiance of a federal court order (see Main Justice’s earlier report.)
In August 2009, Holder recalled, “based on information the Department received pertaining to alleged CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.”
“I made clear at that time that the Department would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees,” Holder said, noting that Durham and his team “reviewed a tremendous volume of information pertaining to the detainees.”
Perhaps significantly, Holder said Durham’s review “included both information and matters that had never previously been examined by the Department.”
No matter how the investigation unfolds in the months ahead, the timing is apt to be politically fraught, as the 2012 election season moves into full swing, the conflicts in Iraq and Afghanistan wear on the minds of politicians and their constituents, and the two major parties debate over which has made the country safer.
But for the moment, at least, Holder got some support from a prominent Republican, as the chairman of the House Permanent Select Committee On Intelligence, Rep. Mike Rogers of Michigan, praised Holder’s decision. “The Attorney General’s decision is a significant step forward,” Rogers said, according to the Talking Points Memo blog. “I am pleased that the Department of Justice has finally substantially lifted an undeserved cloud of doubt and suspicion from all of our intelligence professionals.”
Rep. Frank Wolf (R-Va.) has asked the Internal Revenue Service to investigate whether the Council on American-Islamic Relations illegally solicited or received funds from foreign governments and agents.
In a letter to IRS Commissioner Douglas Shulman, Wolf said he was pleased that CAIR’s tax-exempt status had been revoked over the organization’s failure to file disclosure reports. Nevertheless, Wolf said, alluding to CAIR executive director Nihad Awad, “I am concerned that Awad and CAIR may be soliciting — and receiving — funds from other unsavory foreign governments and organizations, including some that may be sponsors of terror.”
CAIR describes itself as a civil rights group that promotes justice and mutual understanding. Federal prosecutors have traced CAIR’s origins to a U.S. support network for the militant Palestinian group Hamas, which at the time of CAIR’s founding in the mid-1990s was conducting a campaign of suicide bombings against Israel.
Wolf is chairman of the Commerce-Justice-science Appropriations subcommittee, which funds key counterterrorism agencies.
Sen. Michael Bennet of Colorado and 15 of his fellow Democratic senators have urged Attorney General Eric Holder to have the Department of Justice investigate the voter-identification laws recently enacted by some states to determine whether those laws violate the Voting Rights Act.
“These laws are a solution in search of a problem,” Bennet told The Denver Post. “Voting is integral to the strength of our democracy, and we should be working to increase voting participation, not keeping valid voters from having their voices heard.”
“Since January, voter ID laws have been passed in Wisconsin, South Carolina, Alabama, Texas, Kansas and Tennessee; Ohio, Pennsylvania and New Hampshire are also considering proposals,” Bennet said in a statement. Sen. Harry Reid of Nevada, the majority leader, was among those who signed the letter. They said there were already laws adequate to guard against voter fraud, which they said was rare in any event.
“These laws have the potential to disenfranchise thousands of eligible voters and disproportionately affect particular populations. Studies have shown that as high as 11 percent of eligible voters nationwide do not have a government-issued ID,” Bennet said. “This percentage is higher among seniors, racial minorities, low-income voters and students.”
The issue of voter fraud “gained traction in Colorado after newly elected Secretary of State Scott Gessler testified before a U.S. House committee in March, saying that between 106 and 11,000 noncitizens may be registered to vote in Colorado,” The Post noted. Gessler, a Republican, “favors a stronger voter-ID law that would eliminate the possibility of illegal immigrants casting ballots,” The Post said.
Democrats are generally wary of tough voter-ID laws, seeing them as Republican maneuvers to disenfranchise those who would typically vote Democratic. Gessler is a former DOJ prosecutor in Washington and is an election law expert, according to his website, which describes him as dedicated to free and open elections for all voters, regardless of party affiliation.
One of the U.S. Attorneys ousted during the 2006 firing scandal is representing the family of a Border Patrol agent whose death has ties to a controversial Bureau of Alcohol, Tobacco, Firearms and Explosives gun smuggling program, the Arizona Daily Star reported Thursday.
Paul Charlton, who served as Arizona U.S. Attorney from 2001 to 2007, will help determine if the family of Border Patrol agent Brian Terry should take legal action in connection with his death in December, which allegedly came at the hands of Mexican bandits who appear to have links to Operation Fast and Furious. Two guns from the program, which allowed guns to fall into the hands of Mexican drug cartels in an effort to track them, were recovered near Terry’s body.
The Border Patrol agent’s death initiated an investigation by House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) into the program. Issa held hearings on the operation earlier this month with testimony from Terry’s family.
Issa and Sen. Charles Grassley of Iowa, the top Republican on the Senate Judiciary Committee, who also is probing the program, have said they intend to hold top Justice Department officials accountable.
Charlton, currently a shareholder at the law firm of Gallagher & Kennedy PA in Phoenix, said he will monitor the congressional investigations and examine the facts of Terry’s death in determining if his clients should take legal action.
“We want to be careful about how we talk about this because we don’t have all the facts,” Charlton told the Daily Star. “Once we have the facts, then we’ll make a decision.”
Charlton was one of nine U.S. Attorneys fired during the George W. Bush administration scandal that made national headlines and prompted congressional investigations. Bush officials stated that his dismal was partly due to his decision not to seek permission from DOJ officials in D.C. before he ordered the electronic recording of interviews with criminal suspects in his district.
Main Justice reported in April 2010 that the Attorney General’s Advisory Committee, a group of U.S. Attorneys who counsel the Attorney General on DOJ policies, was reviewing the FBI’s policy of using pen and paper to record interviews. But the committee hasn’t made any recommendations public.
The FBI’s long-standing policy has garnered criticism from prosecutors, defense lawyers and judges.
President Barack Obama on Wednesday tapped Gregory K. Davis to lead the Southern District of Mississippi U.S. Attorney’s Office.
The office hasn’t had a Senate-confirmed appointee since Dun Lampton stepped down two years ago. Temporary appointees have headed the office since his resignation. They include John M. Dowdy Jr., the current leader.
Adams currently is the acting First Assistant U.S. Attorney in the Southern District of Mississippi U.S. Attorney’s Office. She emerged as a candidate for the post in March 2010, several months after Rep. Bennie Thompson (D-Miss.), who took the lead on selecting U.S. Attorney candidates for Mississippi’s congressional Democrats, formally recommended criminal defense lawyer Christi McCoy for the post.
McCoy’s ties to a local private investigator, who was probed for his billing practices, dogged her candidacy. The Northern District U.S. Attorney’s Office, which handed the case, dropped its probe last year, clearing McCoy.
Davis, a member at the law firm of Davis, Goss & Williams PLLC in Mississippi since 1989, emerged as the frontrunner for the job in Jackson in October. His nomination comes about four months after the president nominated Felicia Adams to be the U.S. Attorney for Mississippi’s other federal judicial district, the state’s Northern District.
During this Congress, Obama now has made 10 U.S. Attorney nominations. The full Senate has yet to consider any of the nominees.
The Senate last year confirmed 76 of Obama’s U.S. Attorneys. There are 93 U.S. Attorney posts across the nation.
The Senate on Wednesday passed legislation that would exempt an additional five Justice Department positions from the confirmation process, sending the bill to the House for consideration.
The Administrator of the Office of Juvenile Justice and Delinquency Prevention and Directors of the Bureau of Justice Statistics, Bureau of Justice Assistance, National Institute of Justice and Office for Victims of Crime, in addition to about 170 other executive branch posts, would not need Senate confirmation if the bill becomes law.
In the measure introduced by Sen. Charles Schumer (D-N.Y.) in March, the Assistant Attorney General for the Office of Legislative Affairs also received an exemption. But the bill the Senate approved with a 79-20 vote Wednesday did not include an exemption for the position.
A representative for Schumer didn’t have an immediate comment for Main Justice.
The legislation stems from bipartisan negotiations at the beginning of this Congress. During the negotiations, a “gentlemen’s agreement” was reached that was intended to address concerns about filibusters. As part of the deal, Senate leaders agreed that neither party would filibuster motions to proceed to bills on the Senate floor in return for a more open amendment process.
Sen. Tom Udall (D-N.M.) had threatened to try to revamp Senate rules to facilitate a quicker end to filibusters. But he backed off after Senate leaders reached the agreement.
Filibuster critics have said the confirmation process has become bogged down by “holds” senators place on nominees, including those picked for judgeships. The legislation doesn’t address judicial nominees.
