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Federal judge calls Attorney General’s mandatory sentencing decision ‘bad policy’

He cites “many, many horror stories.”

Attorney General Jeff Sessions

Federal judge calls Attorney General’s mandatory sentencing decision ‘bad policy’

He cites “many, many horror stories.”

federal judge in Rhode Island has joined a growing number of judges speaking out against mandatory minimum sentencing across the country. Last week, Chief U.S. District Court Judge William Smith of the District of Rhode Island slammed the harsh federal sentencing mandated by Attorney General Jeff Sessions earlier this year, calling it “bad policy.”

During an interview with local news station WPRI last ThursdaySmith said that he is firmly against this type of sentencing, which imposes immutable prison terms for various crimes and strips away judges’ ability to use discretion during the sentencing process. Mandatory minimums hypothetically level the playing field for convicted offenders, removing the implicit bias underlying sentencing decisions. But in practice, Black and Latino people are far more likely than their white counterparts to receive mandatory minimum sentences. The policy also leads to harsh sentencing that isn’t proportionate to the crime committed.

“There are many, many horror stories about the application of mandatory minimums to defendants who really should not have gone to prison for as long as they did,” said Smith, who was appointed during President George W. Bush’s first term. “I think it’s bad policy to take the discretion away from trial court judges.”

Smith argues that there are many factors that should be taken into consideration when making a sentencing decision, including the nature of the crime and the history of the person who committed it. A blanket policy ignores the context that judges would otherwise account for. “With every defendant, there is a whole story,” he said. “There’s a life that’s been lived — often a complicated life.”

But there’s another glaring problem with mandatory minimum sentencing that Smith left out: it doesn’t work. Researchers and criminal justice advocates have long debunked the idea that it reduces crime. What it has done instead is cause the prison population to skyrocket without increasing public safety.

“Each individual city has its own culture, its own people, history, structure, the relationships between the police and a community,” Greg Newburn, a policy director at Families Against Mandatory Minimums previously told In Justice Today. “We don’t know why crime has gone up in a lot of these cities, and why it’s gone down in others. To say in the abstract that [mandatory minimums are] the better solution is a fool’s errand.”

Rhode Island threw out mandatory minimum sentencing for defendants found guilty of nonviolent drug offenses in 2009. Many other states have passed similar reforms. Nevertheless, people convicted for federal crimes are still haunted by draconian sentencing that Sessions wants heavily enforced.

Smith is not the first to criticize Sessions’ directive. In April, one day after he quit his job as a federal judge in Tennessee, Kevin Sharp condemned mandatory sentencing that leaves judges hopeless. “The drugs-and-guns cases, you say it like that and it sounds like they’re all dangerous,” he told a reporter from the Tennessean. “Most of them are not. They’re just kids who lack any opportunities and any supervision, lack education and have ended up doing what appears to be at the time the path of least resistance to make a living.”

In June, U.S. District Court Judge Mark Bennett of Iowa explained to NPR that this policy also hurts people struggling with drug abuse. “They have a medical problem. It’s called addiction, and they’re going to be faced with five and 10 and 20-year and sometimes life mandatory minimum sentences. I think that’s a travesty,” he said.

But with tough-on-crime Sessions steering the ship, criticism of the policy by federal judges like Smith, Bennett, and Sharp is likely to be ignored.

Will Contra Costa County’s next District Attorney commit to criminal justice reform?

Will Contra Costa County’s next District Attorney commit to criminal justice reform?

After 10 years under the reign of Mark Peterson, the Contra Costa County District Attorney’s office will finally get a much-needed facelift. In September, the county’s Board of Supervisors will have a chance to pick an interim district attorney who might better represent the interests of the California’s seventh largest county.

It might seem an easy task to follow Peterson’s act: the scandal-ridden D.A. resigned in June after being detained on felony perjury and grand theft charges, and admitted to embezzling $66,000 in campaign funds for personal use. In many ways, it would be a challenge to look worse than Peterson. But assuming the 12 candidates intend to avoid such scandals, they have a bigger task ahead — finally leading the office toward the criminal justice reform initiatives the community has supported for years.

On August 12, the five finalists participated in a public forum, answering policy questions from community members and stakeholders. Diana Becton, Paul Graves, Thomas Kensok, Brad Nix, and Patrick Vanier touched oneverything from the death penalty, to immigration, to police misconduct.

The issues discussed at the forum matter not just because they reflect a growing national awareness of prosecutors’ roles in mass incarceration and the power they can wield in leading criminal justice reform, but because Contra Costra County voters have been ignored on this front for years. During his tenure, Peterson repeatedly voted against the interests of the electorate on criminal justice reform issues. The former D.A. opposed Prop. 47Prop. 36, and Prop. 57, all of which were supported by the majority of voters in his county. Peterson, a staunch “law-and-order” prosecutor, also denied the existence of racism in the criminal justice system.

Now the county’s board of supervisors can assess which candidate will promise to turn things around and restore public trust in the D.A.’s office before the public votes in June 2018. Some of the contenders seem well aware of the issues Peterson ignored or denied: Diana Becton, Patrick Vanier, and William Green have all been vocal about their commitment to reducing racial disparities in law enforcement.

“We need to put more resources towards data so we can find out who is being stopped and the reasons for those stops, so we can evaluate whether there’s disparate treatment,” said Becton at the forum.

All five candidates promised to prosecute law enforcement who engage in misconduct as they would any other citizen. Brad Nix suggested requiring deputy prosecutors to participate in trainings at the local police academy to reduce misconduct. Becton’s suggestion that officers be required to undergo de-escalation training was met by applause from an otherwise quiet audience. When it came to the death penalty, none of the five candidates promised never to use it. Short of a full commitment to abandon capital punishment, they acknowledged that they would only use it in the most severe cases. Tom Kensok promised to “cut back dramatically” on death penalty cases.

The candidates were also pressed on their stances on bail reform, specifically their support for S.B. 10. The bill, which passed the California senate with bipartisan support in May, would require a pretrial services agency to conduct a risk assessment to determine whether detaining a person is necessary for public safety, and when detention was deemed necessary, would require courts to set the least restrictive amount of cash bail possible to ensure a defendant’s return to court. Only Vanier explicitly gave his support for the bill, calling the county’s current cash bail system “inequitable.” Paul Graves called the bill “unconstitutional,” but said he would support broader bail reform efforts. Becton dodged a yes or no answer when asked if she supported it, but said that “D.A.s should be leading the discussion when it comes to bail reform.”

Last week, Becton and Kensok admitted to the East Bay Times that they had plagiarized parts of their applications for the position. It’s unclear how this revelation might impact the board of supervisors’ decision.

Sunday’s forum made clear that some of the candidates have noticed which issues Peterson disregarded, regardless of their significance to the community. Criminal justice reform in Contra Costa County is overdue, and whomever becomes the county’s next top cop has a chance to bring the kind of change the community has supported for years. If the most innovative and progressive contenders genuinely intend to implement the reforms they spoke of this past weekend, the future for Contra Costa County may be bright.

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Former Indianapolis prosecutor will not be disciplined despite findings of misconduct

Former Indianapolis prosecutor will not be disciplined despite findings of misconduct

A prosecutor who worked for Marion County Prosecutor Terry Curry will not face discipline despite findings of prosecutorial misconduct in two separate criminal cases.

Former Marion County Deputy Prosecutor Gillian DePrez Keiffner was the lead prosecutor in two criminal cases where the Indiana Court of Appeals found that Keiffner committed misconduct.

In Brandon Brummet’s case, the appellate court said that Keiffner repeatedly made derogatory comments about Brummett’s lawyers in front of the jury. As the court explained, “Here, the prosecutor not only impugned the integrity of defense counsel but also suggested that the role of defense lawyers was to help guilty men go free.” The court also found that Keiffner improperly vouched for the credibility of a prosecution witness and inappropriately commented “on the justness” of the prosecution. Finally, the court found that Keiffner committed misconduct by unfairly badgering Brummett when he testified in his own defense — at one point asking him to say which girl he “enjoyed touching” more. The court vacated Brummett’s convictions, a decision that was later affirmed by the Indiana Supreme Court.

In Bruce Ryan’s case, the Court of Appeals said that Keiffner committed misconduct by suggesting to jurors that Ryan wanted a jury trial “to try to get away with his crime,” telling jurors that the defense argument was a “trick” designed to let “guilty people go free,” and urging jurors to convict Ryan in order “to send the message that we’re not going to allow people to do this.” Although the Court of Appeals vacated Ryan’s convictions, the Indiana Supreme Court later reversed course, finding that the misconduct didn’t rise to the level of “fundamental error.”

A bar complaint was filed against Keiffner due to her behavior in both cases and the Indiana Supreme Court Disciplinary Commission sought disciplinary action against her. Although the Court of Appeals had found prosecutorial misconduct in the underlying criminal cases, that fact alone was not enough to result in disciplinary action against Keiffner.

Despite finding that the Disciplinary Commission had not met its burden of proof against Keiffner, the Indiana Supreme Court emphasized that Keiffner’s conduct was inappropriate:

We caution that by no means should our opinion today be read as an endorsement of Respondent’s actions. For the reasons outlined in Ryan and Brummett, we continue to disapprove of arguments that invite a conviction for reasons other than a defendant’s guilt, impugn the integrity of defense counsel, or otherwise create a “good guy / bad guy dichotomy” between the respective roles of the State and defense counsel.

According to the Indianapolis Star, “Of the approximately 550 criminal cases that were appealed in Marion County from January 2012 to July 2014, the Court of Appeals reversed only two because of prosecutorial misconduct, according to the prosecutor’s office. And both involved Keiffner. “

Keiffner previously received a reprimand from the Indiana Supreme Court after she was arrested for drunken driving and leaving the scene of an accident in July 2009, and ended up pleading guilty to the lesser charge of reckless driving. She resigned as a prosecutor following that incident but later rejoined the Marion County Prosecutor’s Office in 2010 after Curry was elected. She is now in private practice.

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