Barr Tells Senators He Backs Sentencing Reforms

William Barr, who was known as a hard-liner on crime during his previous stint as Attorney General in the President George H. W. Bush administration, said he had “no problem with reforming the sentencing structure” as outlined in the First Step Act, which was passed by Congress and signed by Trump in late December.

William Barr, President Trump’s nominee for attorney general, will support the new First Step Act that reforms federal sentencing practices and prison rehabilitation programs, he told the Senate Judiciary Committee on Tuesday.

Barr, who was known as a hard-liner on crime during his previous stint as Attorney General in the administration of President George H. W. Bush, said he had “no problem with the approach of reforming the sentencing structure” as outlined in the law passed by Congress and signed by Trump in late December.

Barr argued that it was unfair to compare the Justice Department’s approach to criminal justice in the early 1990s to the situation today, the Washington Post reports.

“In 1992, when I was attorney general, the violent crime rates were the worst in American history, the sentences were extremely short,” Barr said, noting average sentences for rape were three years, and murder, just five to seven. “The system had broken down, and through a series of administrations, the laws were changed.”

“I understand that things have changed since 1992,” Barr told Sen. Dick Durbin (D-IL), a leading supporter of the First Step Act.

Barr also said it would be an “abuse of power” for Trump to intervene in an investigation he “has a stake in,” the Associated Press reports. Barr told senators he believes such an action would be a breach of the president’s constitutional duties and could violate federal law depending upon the circumstances. 

Barr was responding to questions from California Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, in light of a memo he wrote criticizing special counsel Robert Mueller’s obstruction-of-justice investigation.

Barr has said the memo was intended to be narrowly focused on one of Mueller’s reported interpretations of obstruction. Barr also says his memo was based solely on public reporting and not any confidential information.

Barr said he doesn’t believe special counsel Robert Mueller “would be involved in a witch hunt.” Trump has repeatedly used that term to criticize the special counsel’s investigation and has suggested he is being targeted by the Justice Department. Mueller is investigating potential ties between Russia and the 2016 Trump campaign.

Barr told senators he would look into how an FBI counterintelligence investigation was opened into whether Trump was secretly working on behalf of Russia’s interests. Barr said he never had heard of the FBI opening such an investigation on an U.S. president.


TX Court Stops Execution Over Bite Mark Evidence

Blaine Milam, who was convicted of killing a 13-month-old girl in a brutally botched exorcism, was granted a last-minute stay Monday over concerns about the bite mark evidence used to convict him and the possibility he might be too intellectually disabled to execute. It would have been Texas’ first execution of 2019.

Blaine Milam, the East Texas man convicted of killing a 13-month-old in a brutally botched exorcism, was granted a last-minute stay Monday over concerns about the bite mark evidence used to convict him and the possibility he might be too intellectually disabled to execute, the Houston Chronicle reports.

Milam, 29, who was scheduled to die Tuesday, would have been Texas’ first execution of 2019. Defense attorney Jennae Swiergula argued that the conviction rested on “junk science.” Milam was sent to death row for killing Amora Bain Carson, whose body was found in his trailer, covered in bites and bruises.

The trial was moved more than two hours away after intense media coverage of the sordid allegations including everything from drugs to demonic possession.

In a late appeal, Milam’s lawyers argued against the state’s reliance on bite-mark testimony, which was a key part of his trial, reports the Texas Tribune. His lawyers also claimed he was intellectually disabled and therefore ineligible for execution.

In December 2008, Milam called 911 and police in Rusk County arrived to find the body of Amora Carson, according to court opinions. The medical examiner counted 24 human bite marks on the baby’s body and found evidence of blunt force trauma and sexual assault.

Milam told investigators he had no idea what had happened, and that he and his girlfriend had returned home to find the child dead. In the end, he was sentenced to death and the child’s mother – Jessica Carson – was given a life without parole sentence.

The mother first thought Milam was possessed by the devil. Then, the couple decided that baby Amora was possessed instead. In 2008, they beat the child with a hammer, bit her and sexually assaulted her in an attempt to cast out the demon.

Carson later admitted to the Texas Rangers that her daughter had died during the ill-fated exorcism.

In appeals, Milam alleged that the state withheld exculpatory evidence at trial, that he was denied the right to present a defense, that he was intellectually disabled under the current definition and that the bite mark evidence underlying his conviction isn’t reliable science.

Last month, the Court of Criminal Appeals ruled in another case that the conviction had relied heavily on testimony regarding bite mark science no longer considered reliable.

Despite the court’s decision, Texas is still set to host the nation’s first execution of the year. Robert Jennings is scheduled to die on Jan. 30, according to the Texas Department of Criminal Justice. Five other executions are scheduled in the state through May.

See Also: Forensic Science Reform at ‘Crossroads’


Should Race be the Only Factor in Promoting Police Diversity?

Better racial representation in our police forces is important, but a would-be officer’s residence can also have a major impact on making on improving a department’s legitimacy in a community, argue two researchers.

Racial representation that reflects the diversity of a community is a key ingredient in improving relations between police and the communities they serve. This was one of the key recommendations in the final report of the President’s Task Force on 21st Century Policing, released in 2015.

The rationale is simple: Officers whose demographic characteristics reflect the communities in which they serve are more likely to have an interest in promoting equity, and to understand the racial perspectives and dynamics, within those communities. But does a racially representative force actually lead to better policing outcomes?

Arthur Rad

Abdul Rad

In a review of James Forman Jr.’s “Locking Up Our Own: Crime and Punishment in Black America,” Devon Carbado and L. Song Richardson highlight a surprising finding: Over-policing in black neighborhoods implicates not only white officers, but black officers as well. Due to racial anxiety induced by their white peers, black officers “may experience stronger incentives” than their white counterparts to over-police and employ violence in order to avoid looking “soft” on crime.

Thus, while diversifying the racial makeup of our police forces is a critical dimension of reform, it is not the only step we need to take. In addition to creating departments that are more racially reflective of the communities they serve, we need to properly conceptualize what a truly “reflective” police force should look like.

It may be the case that, when it comes to policing outcomes, fair geographic representation is just as important as fair racial representation.

It is no secret that police forces across the nation are predominantly white. Using Department of Justice survey data, one study found that this is the case even in majority black jurisdictions. Given this reality, some departments have doubled down on efforts to reform their recruitment practices so that their officers are more racially representative of the communities they serve.

While improving racial representation in our police forces is an important goal, we must also consider whether problems will persist if we designate race as the only necessary consideration when creating a force that reflects community demographics.

One element frequently neglected by departments that hire minority officers is residency.

Arthur Rizer

Arthur Rizer

Officers from outside jurisdictions — regardless of whether their race matches that of those they are sworn to protect — may not have a vested interest in policing equitably. On the other hand, recruits of any race who live inside the jurisdiction of a given department have an immediate connection in the communities they serve, which may help offset the pressure to over-police that some black officers experience.

Racial and geographic disparities in officer hiring are inextricably linked, meaning that solving one disparity could exacerbate the other. For instance, it may be the case that trying to recruit from a wider pool of racially underrepresented populations could result in the hiring of more recruits from areas outside a given department’s jurisdiction.

Departments thus need to be cognizant of both elements simultaneously. In other words, if the goal is to create not only a more representative police force, but a more effective one, departments need to consider race along with place of residence when recruiting new officers.

We should ensure that the individuals joining the police force have a stake in promoting equity and understand the communities within which they work, something that is not necessarily the case if race is the only factor considered.

The locales from which officers are hired represent a critical dimension that departments need to consider in the recruitment reform process. Otherwise, we may see “racially reflective” police forces that continue or exacerbate the problems we already have.

Abdul Rad is an associate fellow with the R Street Institute. Arthur Rizer, a former police officer and Department of Justice prosecutor, and a retired U.S. Army officer, is the Director of Criminal Justice and Civil Liberties at R Street. They welcome comments from readers.


Barr Will Call Completion of Russia Probe in ‘Best Interest’ of Americans

William Barr, President Trump’s nominee for attorney general, will tell senators Tuesday it is “vitally important” that special counsel Robert Mueller be allowed to complete his Russia investigation.

William Barr, President Trump’s nominee for attorney general, will tell senators Tuesday it is “vitally important” that special counsel Robert Mueller be allowed to complete his Russia investigation, the Associated Press reports. “I believe it is in the best interest of everyone — the President, Congress, and, most importantly, the American people – that this matter be resolved by allowing the Special Counsel to complete his work,” Barr will say, according to his prepared remarks.

william barr

william barr

Barr also says it is “very important” that Congress and the public be informed of the prosecution team’s findings. “For that reason, my goal will be to provide as much transparency as I can consistent with the law,” Barr will say.

He said he will base his judgments on the Mueller report “solely on the law and will let no personal, political, or other improper interests influence my decisions.”

Brett Kavanaugh’s Supreme Court confirmation tore the Senate Judiciary Committee apart. The panel is trying to put itself back together before a contentious fight over Barr’s nomination, Politico reports. Its new chairman, Sen. Lindsey Graham (R-SC), denounced Democrats in Kavanaugh’s hearing on sex assault allegations. The panel includes three Democrats mulling a 2020 presidential run. Graham must set the tone, and he’s not making promises.

“I’m going to let it be up to [Democrats]. You pick these fights at your own peril. [Barr will] be challenged for sure. Hopefully respectfully,” he said. Sen. John Cornyn (R-TX) said,

“I guess the question we all have is, ‘Is this going to be Kavanaugh 2.0?’ Where it’s really not about the search for the truth, it’s more about character assassination.”

Barr will struggle to attract Democratic votes but can be confirmed without bipartisan support.


Odds of Dying from Opioid Overdose Now Greater Than Auto Crash: Study

A study by the National Safety Council concludes the worsening opioid crisis now tops the list of the causes of “preventable deaths” for Americans.

An American is more likely to die from an accidental opioid overdose than from a motor vehicle crash, according to the National Safety Council (NSC).

The odds─one in 96─surpass the one-in-103 odds of dying in a car crash for the first time in history, the NSC said in its analysis  of “unintentional, preventable injuries” released Monday.

“The nation’s opioid crisis is fueling the Council’s grim probabilities, and that crisis is worsening with an influx of illicit fentanyl,” the NSC said in a statement accompanying the data.

Ken Kolosh, manager of statistics at the National Safety Council, added that the opioid figures underlined the rise in accidental deaths from all causes, averaging 466 lives lost every day.

Americans are dying from accidents “at rates we haven’t seen in half a century,” despite the general increase in U.S. longevity, he said. “This new analysis reinforces that we must consistently prioritize safety at work, at home and on the road to prevent these dire outcomes.”

NSC analysis of data compiled by the Centers for Disease Control and Prevention also shows that falls – the third leading cause of preventable death behind drug overdose and motor vehicle crashes – are more likely to kill someone than ever before.

The lifetime odds of dying from an accidental fall are one in 114 – a change from one in 119 just a year ago.

Preventable injuries are the third leading cause of death, claiming an unprecedented 169,936 lives in 2017 and trailing only heart disease and cancer, the NSC said.

The full report can be downloaded here.


The Groveland Four: Racism, ‘Miscarriage of Justice’ and the Press

Florida Gov. Ron DeSantis’ pardon of four young black men wrongly accused in 1949 of raping a white woman recalls the insidious role played by the media at the time.

Belated mea culpas were issued last week to the Groveland Four, young black men subjected to racist vigilantism following a dubious rape allegation 70 years ago in Florida.

On Friday, the Florida Board of Executive Clemency pardoned the men, two years after their descendants received an official apology from the state legislature.

“I don’t know that there’s any way you can look at this case and think that those ideals of justice were satisfied,”  said Florida Gov. DeSantis.

“Indeed, they were perverted time and time again, and I think the way this was carried out was a miscarriage of justice.”

The Orlando Sentinel, whose vitriolic owner was the spearhead of inciteful press coverage, weighed in with an apology of its own:

“We’re sorry for the Orlando Sentinel’s role in this injustice. We’re sorry that the newspaper at the time did between little and nothing to seek the truth. We’re sorry that our coverage of the event and its aftermath lent credibility to the cover-up and the official, racist narrative.”

The pardon came after a dramatic, hour-long meeting  during which the families of the men accused of the assault told DeSantis and his three-member Cabinet – meeting as the clemency board – that there is overwhelming evidence the men were innocent and there was no rape, reported USA Today.

The woman, who was 17 when she said she was raped, sat in a wheelchair and later told Gov. DeSantis and the Cabinet the rape did indeed happen, saying she was dragged from a car, had a gun put to her head and was told not to scream or they would “blow your brains out.”

At one point, the two sides briefly clashed. Beverly Robinson, a niece of one of the Groveland Four, was speaking to the governor and the Cabinet when she turned to the woman and her sons.

“It never happened. You all are liars,” Robinson said.

“That’s enough out of you,” the woman said.

“I know it’s enough out of me. It’s always enough when you’re telling the truth,” Robinson replied.

Five years ago, TCR’s David J. Krajicek looked into journalism’s role in the case—both the rabid local coverage and the crucial attention from northern newspapers that shed light on the scandal.

His report, part of a series of case studies commissioned by John Jay’s Center on Media, Crime and Justice, examining “how ‘mob journalism’ and media ‘tunnel vision’ turn journalists into tools of the prosecution,” was published in February 2014.

A full copy of the report can be downloaded here.


SC Prison Report Warned of Staff Shortages Before Riot: Paper

A report commissioned by the state found half of South Carolina’s prisons had fewer than 50 percent of the recommended staff. A month after the report was issued, a riot at the Lee Correctional Facility in Bishopville, S.C., left seven dead and 22 injured.

One month before the violence in South Carolina’s Lee Correctional facility left seven dead and 22 injured, a report commissioned by the state Department of Corrections warned that the state’s prison system was operating with half the staff required to keep it safe, reports the Charleston Post and Courier.  Columnist Steve Bailey said the 320-page report warned the state would have to double the current staff to more than 4,000 to meet industry standards.

The report written by Tom Roth, a former Illinois warden, was issued a month before the facility in Bishopville, SC exploded in what Bailey said was “America’s deadliest riot in a quarter century.” Roth visited 13 men’s and women’s state prisons, including Lee Correctional. Half the prisons had fewer than 50 percent of the recommended staff — one just 38 percent. Not a single prison had more than 62 percent of the needed manpower, said Bailey, who obtained the report after a Freedom of Information request. He noted that about 178 pages of the document were redacted — “including staffing levels for every prison and who knows what else?”


Can Public Defenders be Reformers?

Defense attorneys spend more time with criminal defendants than anyone else in the justice system. So if they care about better outcomes, they need to go beyond their traditional roles, says the head of the Milwaukee Public Defender’s Office.

Defense attorneys and public defender offices have an important role to play in the broad, collaborative effort to achieve reform in the American criminal justice system.

And they must be prepared to advocate for a fair and effective systemic reform that transcends the areas of traditional defense concern.

The nationwide movement for change starts with the recognition that criminal justice system outcomes are disappointing for a significant number of Americans. That includes both the traumatizing effects of incarceration and being a victim of a crime, the inadequacy of treatment of those with mental illness and addictions, and the rates of recidivism and repeat victimization.

There also are problems frequently identified by exonerations, crime lab failures and, less commonly, actual misconduct.

Two critical shifts in thinking should accompany this recognition.

First, we have had an almost single-minded focus on the adjudication of cases at the expense of an equivalent attention to system outcomes. This old approach has led to a mistaken elevation of a competitive ethic which evaluates itself solely on short-term measures: number of arrests, prosecutions, convictions, or prison sentences.

Longer-term indicators are ignored or distrusted if adjudicatory practices seem to be in order.

Second, reform efforts, including Sentinel Events analyses which reflect a determination to learn from errors, are possible only when trust is created among system partners with differing and often seemingly antagonistic responsibilities.

The non-blaming Sentinel Events approach, first developed in the medical and aviation fields, is now increasingly being applied to the justice system. For defense attorneys, it means being willing to build trusting relationships with judges, prosecutors, police, and probation agencies whenever possible, because those relationships create opportunities that can reduce harm to their clients.

Defense attorneys have an important voice that can inform and even lead reform efforts. They spend more time with criminal defendants than anyone else in the system; only probation agents come in anywhere close.

An Active Role for Defense Attorneys

Diversion agreements, treatment courts, and deferred judgment programs all require an active role for the defense attorney working with other system professionals and their clients. These encounters, when they are effectively handled, represent an unparalleled opportunity to understand problems and identify resources in a community, and can help guide community and system partners to remedial outcomes.

Using the opportunity created when people are receiving representation to assist them to address and resolve underlying problems is what outstanding defense work is often about—keeping in mind the important ethical issues that must accompany this advanced practice.

Looked at in this light, a more holistic defense opens a window into the inadequacies of systems designed to serve people at risk.

Holistic Defense is Crime Prevention

Indeed, rightly understood, holistic defense is, in part, a crime prevention strategy. A holistic defense is an approach “in which public defenders . . . address both the immediate case and the underlying life circumstances . . . that [lead] to contact with the criminal justice system.”

Defense attorneys are students of systemic errors. They also are by training and experience deeply skeptical of reform efforts: they sense the mixed motives and unintended negative consequences lurking behind seemingly benign reform projects.

This sensibility, properly expressed, has great value in bringing honesty to discussions among stakeholders. Defense attorneys are not unique in this quality, but their work reinforces it in a regular way.

Of course, many defense attorneys balk at the suggestion that sharing their perceptions will benefit their clients. Strengthening an oppressive system seems like an obvious act of moral betrayal.

But perhaps our own thinking is in need of some reform, too, for we also are systemic actors.

Local context matters.Relationships characterized by honesty and trust are essential preconditions to any reform effort. For example, in Milwaukee County, where I head the Public Defender’s Office, there has been a sustained commitment to reform that has been rooted in many tough discussions which in turn have led to substantial improvements in pre-trial release, pre-charging diversion, post-charging deferred judgment agreements, drug treatment courts, and more.

There is nothing in these discussions that fairly could be described as surrendering clients’ sensitive information or providing moral support for oppressive law enforcement or prosecution at the expense of clients.

The strength of this collaboration has brought important resources from state, county and municipal governments and foundations, most notably, the MacArthur Foundation and National Institute of Corrections.

Understanding Violence and Trauma

Violence and the resulting trauma are the threads that run through the lives of clients and victims alike.

Both violence and trauma are poorly understood. Every experienced defense attorney has had clients who have been devastated by being the victim of violence, exposed to it, or both. Some of the worst excesses of the criminal justice system are tied to how these issues are handled.

Defense attorneys also should consider the role that they can play in helping to unravel violence by appropriately sharing their knowledge. Given the stakes for clients, defense attorneys have a responsibility to be engaged in deep learning and thoughtful efforts at violence and trauma prevention—not as members of a suppression effort, but as aspirants always to help clients in the difficult lives so many must lead.

If criminal justice reform is to be successful it must preserve its core competencies in adjudicating cases while expanding its capacity to learn from its errors to drive systemic change and reform.

Everyone needs to play a role. That includes defense attorneys, who have a critical voice that must be used─and heard.

Tom Reed

Thomas H. Reed

Thomas H. Reed has been a member of the Milwaukee Trial Office of the Wisconsin State Public Defender since 1982, and has served as the Regional Attorney Manager since 2000 for an office of approximately 60 attorneys. He is currently the Vice Chair of the Milwaukee County Community Justice Council. He welcomes comments from readers.


2018 Called ‘High Point’ in Restoring Rights to Individuals with Criminal Records

Some 30 states and the District of Columbia passed laws or enacted statutes aimed at helping people with criminal records overcome barriers to reintegrating with civilian society last year, according to the Collateral Consequences Resource Center. The most promising legislative development focused on ending restrictions on occupational licensing.

Some 30 states and the District of Columbia passed laws or enacted statutes aimed at helping returning incarcerees adjust to life in civilian society, representing a “high point” in national efforts to restore rights and status to people with a criminal record, according to the Collateral Consequences Resource Center (CCRC).

The most promising legislative development focused on ending restrictions on occupational licensing, said the CCRC, a nonprofit organization established in 2014 to promote public discussion of the collateral consequences of conviction.

“(Occupational licensing) showed the greatest uniformity of approach,”  said study authors Margaret Love and David Schlussel.

Of the 14 states that enacted laws regulating licensing in 2018, nine (added to 4 in 2017) adopted comprehensive frameworks to improve access to occupational licenses for people with a criminal record, limiting the kinds of records that may be considered, establishing clear criteria for administrative decisions, and making agency procedures more transparent and accountable.

During 2018, some 52 separate statutes (some addressing multiple restoration mechanisms),  three executive orders, and one ballot initiative aimed at enhancing the prospects for successful reentry and reintegration were enacted. In comparison, 23 states enacted 42 new restoration laws in 2017.

The CRCC said the “most consequential single new law” was the ballot initiative approved by Florida voters last fall to restore the franchise to 1.5 million people with a felony conviction.

See: Fla Ex-Felons Plan Mass Voter registration

Voting rights were also restored for parolees, by statute in Louisiana and by executive order in New York.

The largest number of new laws (27 statutes in 19 states) expanded access to sealing or expungement, by extending eligibility to additional categories of offenses and persons, by reducing waiting periods, or by simplifying procedures, the CCRC said.

The wide variety of approaches to restoration of rights seems to reflect the challenge of striking the appropriate balance between the public’s interest in having access to criminal records, the state’s public safety concerns, and the need to support individuals in their efforts to reintegrate into society,” the authors said.

“It may also reflect a degree of uncertainty about the efficacy of limiting public access to records as opposed to other more transparent forms of relief that involve limiting their use, in the workplace and elsewhere.”

Additional Reading: Ban the Box in Colleges, Too

The full CRCC report is available here.


Broward Sheriff Vows to Fight Ouster Over Parkland School Shooting

Scott Israel charged the decision to remove him as sheriff was all about “politics.” His replacement will be Broward County’s first African-American sheriff.

Broward County Sheriff Scott Israel, criticized for his office’s inadequate response to last year’s Parkland, Fl., school shooting, plans to fight  the decision to remove him from office, claiming he is a victim of “politics,” reports The Miami Herald.

Florida Gov. Ron DeSantis suspended the two-term Democratic sheriff Friday, citing the conclusions of a state panel’s investigation of the Broward County agency’s response to the Feb. 14, 2018, shootings at Marjory Stoneman Douglas High School in Parkland, said The Herald, CNN and other news outlets.

The panel found that several Broward deputies failed to run into the building to try to stop the gunman — or were slow and inadequately trained to confront the killer and stop him.

The governor’s action came three days after he was sworn in, and fulfilled a promise he made during last Fall’s election campaign to remove the sheriff.

Israel was replaced by Gregory Tony, a former Coral Springs, Fl., police sergeant with a background in active-shooter training, who will be the county’s first African-American sheriff.

Israel’s lawyer, Stuart Kaplan, said that not only would Israel fight the governor’s order, but he would run for re-election when his term ends in 2020.

“There certainly were mistakes made,’’ Kaplan said. “But in every situation we can always identify things that could be done better…it does not in any way rise to the level to single out Sheriff Israel and hold him accountable for what happened.’’

Appearing later at a meeting with reporters, Israel made clear he saw himself as a victim of political scapegoating.

“Sadly, this is not about what occurred on Feb. 14 [2018],’’ he said at a news conference at New Mount Olive Baptist Church in Fort Lauderdale. “The governor promised as a candidate — well before he had any facts about the investigation, well before the commission even began their work — that he would remove me from office.”

Israel added: “Today he merely fulfilled a campaign promise. This was about politics — not about Parkland.”

After expressing his sympathies for the families who lost loved ones in the mass shooting, Israel insisted he had not failed in his duty.

The ousted sheriff said there was no “wrongdoing” on his part.

“I served the county honorably and I will continue to do that,” he said.

The new sheriff, who now lives in Boca Raton, left the Coral Springs Police Department after 12 years in 2016, the South Florida.