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Trump-endorsed criminal justice reform bill would do a lot more good if it were made retroactive


What you’ll read today

  • Spotlight: Trump-endorsed criminal justice reform bill would do a lot more good if it were made retroactive

  • Boston’s new D.A. pushes back against prosecutors’ ‘punishment-centric’ point of view

  • Is a Philadelphia agency’s seizure of vehicles a new form of civil asset forfeiture?

  • Portland scuttles protest-restricting ordinance

  • Black ‘good guy with a gun’ stops a shooter, is immediately killed by cops

  • New York court says cops cannot make arrests for ICE

  • ICE pose as cops to round up immigrants more easily

In the Spotlight

Trump-endorsed criminal justice reform bill would do a lot more good if it were made retroactive

For those of us in the criminal justice policy world, the lesson of Nov. 6 was, roughly speaking: there is hope for criminal justice reform, at least at the local and state level. Carroll Bogert, president of the Marshall Project, wrote that the “midterms revealed a country as polarized as ever–except on criminal justice reform.” Now, it seems that there might be hope for a federal shift as well. “Lawmakers are expected to make a renewed effort to pass a criminal justice reform bill by the end of the year after punting the issue into the lame-duck session,” writes Jordain Carney for The Hill. “Advocates for the proposal are hoping it has new momentum after McConnell pledged before the midterms that he would measure support for legislation and bring it to the floor if it can get the 60 votes needed to pass.” Bringing the bill to the Senate floor would be a significant victory for a bipartisan group of senators which has tried for years to get a vote but repeatedly run up against opposition from a small but vocal group of Republicans. “Trump adviser and son-in-law Jared Kushner has also prioritized the ongoing negotiations to merge prison reform and sentencing reform, and he’s been at the center of the Senate talks.” [Jordain Carney / The Hill]

As of yesterday afternoon, President Trump was expected to lend his support to what the New York Times called “a substantial rewrite of the nation’s prison and sentencing laws.” (Reason, on the other hand, calls it “fairly modest.”). The legislative compromise, called the First Step Act, would chip away at some of the tough-on-crime federal laws passed during the 1980s and 1990s that contributed to the explosion in incarceration. “Among the long-sought changes incorporated into the legislation is language shortening mandatory minimum sentences for some nonviolent drug offenses, including changing the ‘three strikes’ penalty to 25 years from life in prison,” reports The Times. “They would give judges greater ability to use so-called safety valves to sidestep mandatory minimums” in nonviolent drug cases. The bill would also clarify that the much-maligned stacking mechanism that creates a new crime and adds years to any sentence if a person possessed a firearm while committing another crime––even a drug offense––should apply only to those who were previously convicted. [Nicholas Fandos and Maggie Haberman / New York Times] The stacking provision leads to such unjust outcomes that even the former attorney general Jeff Sessions agreed it should be changed when he served in the Senate. [Jacqueline Alemany / Washington Post] The bill would also scale back some of the harshness of life in prison by mandating that people be held closer to their homes and banning the shackling of pregnant prisoners. [Scott Shackford / Reason]

Unlike an earlier proposal, after a Democratic concession, this bill would not apply the new limits on the “stacking” provision or the reduction of mandatory minimums retroactively. Without retroactivity, its ability to tackle the federal prison population is significantly diminished. One provision would, however, be retroactive: a reduction in the astonishing sentencing disparity between crack and powder cocaine signed into law in 2010, which left Black people in prison for decades for crack-cocaine offenses, while their largely white counterparts charged with powder cocaine offenses did far less time. This retroactivity could affect thousands of people serving draconian sentences. [Nicholas Fandos and Maggie Haberman / New York Times]

The National Fraternal Order of Police (FOP), the nation’s largest police organization, surprised and delighted reform advocates when it announced its support for the First Step Act. But lawmakers got FOP’s support by promising not to make sentencing reforms besides the crack-cocaine reform disparity retroactive. “So those handed mandatory minimum life sentences for a drug offense under federal three-strikes regulations cannot request mercy to get their sentences cut to 25 years,” notes Scott Shackford for Reason. “This seems cruel, but hey, it keeps prison guards on the job.” [Scott Shackford / Reason]

The question of retroactivity might sound technical and wonky, but it is the difference between seriously reducing incarceration levels and tinkering at the margins. Florida’s passing of Amendment 4 this month gained much attention, but equally important was the passage of Amendment 11, which repealed much of the state’s “savings clause,” an 1880s-era section of the state Constitution that prohibited the legislature from changing criminal sentences after someone has been convicted, which criminal justice advocates, including the ACLU, said was a crucial way to reduce incarceration levels. [Andrew Pantazi / Florida Times-Union] The path is now paved for Florida to bring down its prison population through retroactive sentence reductions. But an ambitious ballot initiative that aimed to “deal a blow to the war on drugs and mass incarceration,” Issue 1, failed in Ohio. It was designed to reduce incarceration in part by reclassifying drug possession offenses as misdemeanors and making those new drug statutes retroactive: People currently incarcerated for drug offenses could have petitioned for new sentences. [German Lopez / Vox]

Even if the First Step Act did apply retroactively, the federal prison population is a small percentage of the overall U.S. prison population, so the overall numbers of incarcerated people in the country would not change drastically. But normalizing the idea of retroactive justice reforms would be a worthy goal in itself—it might be the only way we can ever “cut 50,” cut 40, or even get past a trim.

Stories From The Appeal

Newly elected Suffolk County DA Rachael Rollins. [Photo illustration by Anagraph]

Boston’s New D.A. Pushes Back Against Prosecutors’ ‘Punishment-centric’ Point of View. Suffolk County District Attorney Rachael Rollins’s promise to decline to prosecute several offenses is a rejection of the punitive tradition of prosecutors and perhaps signals a new kind of reform that spurns criminal justice as a solution to public health problems. [John Pfaff]

Is a Philadelphia Agency’s Seizure of Vehicles a New Form of Civil Asset Forfeiture? The city’s experiment with civil asset forfeiture was supposed to end, but the practices of its parking agency and some in state law enforcement suggest that police may be turning to other forms of property confiscation. [Ryan Briggs]

Stories From Around the Country

Portland scuttles protest-restricting ordinance: Earlier this week, the Daily Appeal focused on a proposed Portland, Oregon, ordinance that would have restricted the “location, duration, and size of protests” in the city, according to the Portland Mercury. Many constitutional lawyers, civil rights advocates, and elected officials came out against the ordinance, saying that it would have a chilling effect on those wanting to demonstrate peacefully, and would not safeguard their civil rights, as Mayor Ted Wheeler had suggested. Yesterday, the City Council voted it down, citing concerns about the proposed ordinance’s constitutionality and efficacy. Some also worried that the policy would ignore the heightened threat of hate groups in Portland. [Alex Zielinski / Portland Mercury]

Black ‘good guy with a gun’ stops a shooter, is immediately killed by cops: The statement released by the police in the killing of Jemel Roberson last weekend outside Chicago reads almost as a parody of evasive police talk: “A Midlothian officer encountered a subject with a gun and was involved in an officer-involved shooting. The subject the officer shot was later pronounced deceased at an area hospital.” Roberson, a 26-year-old Black man, was working as a security guard at a lounge when a fight broke out, and someone started shooting. Roberson returned fire and managed to detain the shooter by pinning him to the ground and placing his knee on the man’s back. When the police arrived, they apparently believed Roberson was the assailant, even though his vest said “security,” and multiple people were yelling at them not to shoot. The police shot and killed Roberson. According to Reason: “This is an example of a good guy with a gun stopping a bad guy with a gun, only to be murdered by another bad guy with a gun: the state.” Apparently, the good guy with a gun is supposed to be white. [Robby Soave / Reason]

New York court says cops cannot make arrests for ICE: A Brooklyn appeals court ruled yesterday that local law enforcement officials in New York are legally prohibited from arresting undocumented immigrants on behalf of federal authorities. The ruling was based on the case of Susai Francis, an immigrant from India who was arrested on Long Island. After he pleaded guilty to a misdemeanor DUI charge, a judge ordered his release, but he was taken back into custody by Suffolk County sheriffs, acting pursuant to a detainer order from ICE. The court ruled that the sheriffs were breaking state law, holding, “While state and local law enforcement officers are indeed permitted to cooperate with federal authorities, and specifically with ICE, there is no authority for the cooperation to extend” to arrests. “This critical ruling makes clear that police and sheriffs in New York not only should not, but cannot do ICE’s bidding,” said Donna Lieberman, the executive director of the New York Civil Liberties Union. [Chris Sommerfeldt / New York Daily News]

ICE pose as cops to round up immigrants more easily: ICE agents are increasingly misleading people into believing they are local law enforcement officials to create a ruse. This is what happened to Osny Sorto-Vasquez, a 24-year-old nursing student from Honduras in the DACA program, who had recently been charged with a minor misdemeanor. When he went out to meet with the people he believed to be local police seeking to protect him, they revealed themselves as ICE and took him into custody, where he remains. “You had a court date and you didn’t go to that court date,’” Sorto-Vasquez recalls one of the officers saying. “I said, ‘Ma’am, I was 8 years old.’” An ICE spokesperson said that its officers frequently identify themselves simply as police but “never pretend that they are from any other law enforcement agency.”  [Betsy Woodruff / Daily Beast]

Thanks for reading. We’ll see you tomorrow.

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