Are the Dems taking criminal justice reform seriously enough?

On Monday, at a forum involving former prisoners, only three Democratic nominees showed up to answer questions.  One of them is former prosecutor Kamala Harris, who has a terrible record on criminal justice reform.  Meantime, Donald Trump is speaking about criminal justice reform at every turn.  This issue has traditionally belonged to the left, but it seems to be up for grabs in the next election.  From the Marshall Project:

Harris faced questions about her record as a prosecutor in San Francisco and later as California’s attorney general, and whether she had been committed enough to “progressive prosecution.” She defended her actions, positioning herself as the only Democratic candidate who has taken tangible steps toward “reforming the criminal justice system.” The senator pointed to her creation of a reentry and job training program, for example.Harris’s critics say she opted for the most politically palatable programs while shying away from more substantive approaches, like declining to prosecute more low-level offenses, that could have reduced the number sent to prison each year in California.
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As senator, Harris has been a vocal critic of President Trump’s First Step legislation, calling it a “compromise of a compromise.” The act granted early release for thousands of non-violent drug offenders. Harris said Monday that did not go far enough. “You took a step, but you just learned how to walk,” she said. “We need the plan for step ten.”She said on day one as president, she would conduct a comprehensive audit of the criminal justice system to understand areas for reform. Her plan also includes allocating federal funding to help local counties clear people’s criminal records, removing clemency from the Department of Justice and legalizing marijuana.

Ed Carnes to take senior status

Big news out of the 11th Circuit... Chief Judge Ed Carnes is taking senior status.  That means Donald Trump will get another judge on that court.  Currently pending are Barbara Logoa and Robert Luck.  But this seat won't go to a Florida lawyer or judge.  This one will go to someone from Alabama. 

The word is that District Judge Andrew Brasher is the favorite.  He's from the Middle District of Alabama.  If confirmed along with Lagoa and Luck, Trump will have appointed 6 judges to the court. 

Chief Judge Carnes has been on the court since 1992 (Bush) and has been Chief since 2013.

NED Award to Patricia Seitz

The Federal Bar Association's NED award holds a special place in my heart.  The NED is named after Edward B. Davis, known to his friends as Ned.  He was the ideal federal judge -- smart, funny, old-school, and a real human being.  I've never heard anyone say a negative word about him or his wife, Pat Davis.  Two of the best.  And yes, I'm biased since I clerked for Judge Davis.

Last night, the local Federal Bar Association gave the annual NED award to Judge Patricia Seitz.  Congratulations to Judge Seitz for this amazing honor.

Judge Altonaga, a former Judge Davis clerk, introduced Judge Seitz.  That was really cool, especially since Judge Altonaga is Judge Davis'
second favorite law clerk.

 h/t for the picture from last night's event from Michelle Suskauer

Raag Singhal advances to Senate floor

Congrats to Judge Singhal, who advances to the Senate floor for a full vote. He sailed out of committee this morning.

Addicted to jail (Probation Officers)

A few weeks ago, I wrote this piece in The Hill, "We're addicted to jail."  It addressed a problem that we have in the United States -- we jail too many people for too long.  I offered one modest proposal, that we get more defenders and civil lawyers on the bench and fewer prosecutors:

One easy fix — appoint more criminal defense lawyers and civil lawyers to the bench and fewer prosecutors. According to the Cato Institute, former prosecutors are “vastly overrepresented” throughout the judiciary. As to federal judges alone, the ratio of former prosecutors versus former criminal defense lawyers is four to one (and if you include lawyers who worked for the government on the civil side, the ratio is seven to one). A criminal case or a civil rights case has a 50 percent chance to be heard by a former prosecutor and only a six percent chance to be heard by a judge who has handled a case against the government. Cato explains the unfairness of this with a simple example — we would never allow four of the seven referees of a Ohio State-Michigan football game to be alumni of Michigan. Ohio State fans would never tolerate it. And yet, there are no criminal defense lawyers on the Supreme Court and there hasn’t been one for more than 25 years.

In many cases, former prosecutors have never represented a person sentenced to jail. They have never visited a client in jail. They have never explained to a family — while the family cried — that their loved one is going to be taken from them. As prosecutors, they have only put a lot of people in jail. And so, as judges, this addiction to jail continues, even for someone like Deandre, who ends up serving a jail sentence because he overslept.

I've decided to continue to write on this subject and offer other proposals with the hope of trying to fix the over-criminalization problem that both sides of the aisle agree on (when they literally can agree on nothing else).  If you'd like to write a response (and sign your name) or make your own proposal, please feel free to email me and I will post it.

One crazy function of the federal criminal justice system is that probation officers, who are mostly non-lawyers, prepare a presentence investigation report, which includes a calculation of the federal sentencing guidelines.  In other words, these officers are analyzing complex legal questions and making a determination, many times after only speaking to the prosecution about the case.  Those reports often-times take the most extreme view of the guidelines (even more extreme than the government's view of the guidelines), views that are not supported by the plea agreement, by the law, or by the facts.  The reports also do not ever include reasons for why there should be a downward variance under 3553.  They simply repeat their standard policy that there are no factors that warrant a variance.  And then some judges will meet with probation officers ex parte and discuss the guidelines and potential sentences, all without hearing from the parties.  It's an upside-down practice.

So here's another modest proposal, this one regarding probation officers --

1.  Probation officers should not do any analysis of the guidelines whatsoever.  That should be left to the parties to each submit their guideline calculations. The judge and her law clerks can then analyze the parties' submissions and rule on any disagreements.  The same for variance arguments (up or down).    

2. Just as importantly, judges should not have ex parte meetings with probation officers before the sentencing (or accept ex parte "blue sheets" with probation recommendations as to sentence).  It's simply not fair to the parties.  The judge that I clerked for -- Judge Edward B. Davis -- would occasionally meet with a probation officer in chambers when he had a question about something in the report.  But he would never do it without the parties.   I remember one exchange he had with a probation officer who had not recommended minor role for a drug courier.  Judge Davis asked him why the reduction was not considered even though the case law was clear that it was to be decided on a case by case basis.  The PO responded that his office had a policy of never including it.  Judge Davis chuckled and asked, "Don't you work for me?" 

 We have a real jail problem.  The federal guidelines are in part to blame.  That issue is exarcerbated when probation officers have the ability to shape the debate over how those guidelines are applied and then have access to the judge without the parties before sentencing.  There is no downside to making these small changes to our sentencing process. 

Bigger ones to follow.

"Corruption fighter to controversy, Kastrenakes lauded for smarts, chided for ‘God complex’"

That's the title of this Palm Beach Post article which profiles Palm Beach judge John Kastrenakes.  From the intro:

The two faces of Judge John Kastrenakes — vigilant defender of the law and unbridled hothead — played out in stark relief this month after his decision to send a juror to jail for 10 days.
WEST PALM BEACH — When John Kastrenakes arrived at the Palm Beach County Courthouse 10 years ago to take a seat on the powerful circuit bench all that was missing was a shining steed.
After sending five elected officials in the county to prison, the career prosecutor was feted as a gleaming knight who would use his formidable skills as a dogged crime fighter to continue to chip away at the area’s reputation as “Corruption County.”
A year later, he grabbed headlines for far different reasons.
Stopped for driving the wrong way in the parking lot of a service plaza on Florida’s Turnpike, Kastrenakes became irate. Blasting the Florida Highway Patrol trooper as “a liar,” he said he would never believe her and would doubt the veracity of any FHP officer who appeared in his courtroom.
Concerned about his ability to be fair, state prosecutors asked him to step down from seven cases built by FHP troopers. Kastrenakes agreed and apologized for his outburst.
The two faces of Kastrenakes — vigilant defender of the law and unbridled hothead — played out in stark relief this month.
Howls of overreaching and racial bias greeted his decision to send a 21-year-old West Palm Beach juror to jail for 10 days. Ruling that DeAndre Somerville willfully violated his orders, Kastrenakes found the young black man guilty of contempt of court after he explained that he overslept and didn’t call to report his absence because his cellphone was broken.
Florida state Sen. Bobby Powell, D-Riviera Beach, has asked the Judicial Qualifications Commission to investigate Kastrenakes.

Investiture for Roy Altman

It will be a big party on the top floor of the Wilkie Ferguson courthouse tomorrow afternoon for Judge Roy Altman.  Congrats to Judge Altman.

Judge Rodney Smith’s investiture will be next.

Then, if all goes according to plan, Judge Raag Singhal will be confirmed and have his.

We are still waiting on that 5th open district seat in Fort Pierce.

Lagoa and Luck on the Senate calendar

Judges Barbara Lagoa and Robert Luck will have their first hearings before the Senate tomorrow (Wednesday) morning at 10am and will answer any questions the Judiciary Committee might have.  After this hearing, they'll answer written questions from the Senators.  Floor votes should come relatively quickly. 

If you are interested in getting all the news as it happens, you should follow @fedjudges on Twitter.