* Ms. Love now represents applicants for executive clemency. Her client Clarence Aaron was one of those commuted by President Obama on December 19.
On December 19, President Obama commuted the prison sentences of eight people convicted of trafficking in crack cocaine and sentenced to lengthy prison terms. Each person had spent at least 15 years behind bars, and all but two were serving a mandatory life term. The President was generally commended for his acts of mercy, the only reservation being that he had not done more to provide relief to thousands of similarly situated individuals still imprisoned under laws he himself characterized as “unjust.”
One of those whose sentence the President commuted was Clarence Aaron, a college student with no prior record who was sentenced in 1993 to three life terms based on his limited role in two drug transactions for which he was paid $1500. Another was Stephanie George, described by the sentencing judge as the “bag holder and money holder” for her crack-dealing boyfriend, whose life sentence was based on two prior convictions for selling a total of $160 worth of crack.
Clarence Aaron is now on his way home, as are Stephanie George and the other members of the December 19 Eight, most of whom thought they would never see home again. So it is time to consider what happens now for the hundreds of similarly situated individuals still behind bars.
The President himself acknowledged, in a statement accompanying the grants, that while he had taken “an important step toward restoring fundamental ideals of justice and fairness,” that step “must not be the last.” He urged Congress to act on “reform measures already working their way through Congress” to provide relief from “a disparity in the law that is now recognized as unjust.” The specific “reform measure” the President was referring to is the Smarter Sentencing Act, which would make the 2010 Fair Sentencing Act (FSA) fully retroactive. The impression left by his statement was that passage of this bill, along with policy changes announced by the Attorney General in August 2013, would be sufficient to restore fairness to the legal system, and that the job of doing justice had now passed to Congress.
The Justice Department announced last month that JP Morgan Chase would pay a record $13 billion for its role in the mortgage crisis that produced the Great Recession of 2008. The Justice Department deserves praise for reaching a civil settlement that will restore billions to investors and homeowners who were misled by JP Morgan Chase and Washington Mutual, the failing savings and loan that JP Morgan Chase bought in the midst of the financial crisis. In addition, if there is sufficient evidence, the Justice Department still can bring criminal charges against the individuals involved in the corporate wrongdoing.
It is unlikely that JP Morgan Chase will face criminal charges, however, despite causing billions in losses and untold more in collateral damage to the global economy. Instead, if the bank pays anything more, it almost certainly will be the beneficiary of a disturbing shift in corporate prosecution policy that began in the Bush administration and has accelerated during the Obama administration: the increased use of deferred prosecution and non-prosecution agreements to address corporate wrongdoing. Under these agreements, corporations can avoid criminal charges if they pay large penalties, improve their compliance programs, and cooperate in investigations. Yet plea agreements -- the preferred approach to corporate crime before the last decade -- offer the same benefits without making it appear that justice can be bought.
The Justice Department’s embrace of deferred prosecution and non-prosecution agreements has been dramatic. From 2004 through 2012, the Justice Department entered 242 deferred prosecution and non-prosecution agreements with corporations, after entering just 26 in the preceding 12 years combined (half of which occurred from 2001 to 2004). The use of the agreements has become so routine that the Justice Department’s Criminal Division now resolves most of its corporate criminal cases using “non-criminal alternatives” to prosecution. From 2010 to 2012, the Criminal Division entered more than twice as many deferred prosecution and non-prosecution agreements with corporations (46) as plea agreements (22).
Nor are these small cases involving technical violations of the law. The Justice Department agreed to a deferred prosecution with HSBC even though the bank was involved in nearly a trillion dollars of money laundering, much of it from drug trafficking. The Justice Department entered a non-prosecution agreement in the Upper Big Branch Mining disaster even though 29 miners died, and the Labor Department found that Massey, the company that owned the mine, committed over 300 violations of federal mine safety laws and kept a double-set of books to hide its misconduct from safety inspectors.
The failure to prosecute corporations like HSBC and Massey sends the wrong message about how our society views corporate misconduct and sows doubts about the Justice Department’s commitment to address corporate crime. The Justice Department would never allow individuals who committed such serious crimes to escape prosecution. So why the double-standard for corporate defendants? Why has the Obama administration continued the questionable corporate crime policies of the Bush administration?
When Gil Kerlikowske took office as drug czar four years ago, he said he was going to retire the concept of the war on drugs. During Obama’s first term, however, his policies did not live up to the bold rhetoric. There were a handful of reforms -- perhaps most notably, a reduction (though not elimination) of the disparity between crack and powder cocaine. But at its core, federal drug policy remained almost entirely unchanged between 2009 and 2012.
In recent weeks, the Obama administration has turned its words into action by tackling one of the most significant and criticized features of the drug war: mandatory minimum sentencing.
Enacted in the 1980s, the mandatory minimum drug sentencing laws were the embodiment of the “war on drugs” mentality. Indeed, it’s difficult to think of another federal law or policy as closely linked to the drug war.
Last month, Attorney General Eric Holder announced a new charging policy, instructing federal prosecutors not to seek mandatory minimum sentences in drug cases that met certain criteria. With some of the criteria left open to interpretation, I wrote last month that only time would tell the policy’s true impact. Will the Department of Justice closely monitor local prosecutors to ensure compliance and consistent interpretation of the policy? Or, will federal prosecutors be given the leeway to circumvent or narrowly apply the new policy?
While it will take at least a few more months to know the answers to these questions, last week Attorney General Holder issued a second memo that provides reason for optimism. Holder’s most recent memo expands the new policy by applying it to defendants who have already been charged and encouraging prosecutors to follow the guidance even in cases where the defendant has already pled guilty and is awaiting sentencing, where it is “legally and practically feasible.”
This development is a hopeful sign that the Department of Justice is serious about its new policy.
by Sam Kamin, Director, Constitutional Rights & Remedies Program and Professor, University of Denver Strum College of Law
The Department of Justice recently announced how it would enforce federal marijuana law in those states seeking to legalize marijuana under their own laws. In a memo to United States Attorneys around the country, Deputy Attorney General James Cole set out the priorities that govern the federal government’s enforcement of the Controlled Substances Act’s (CSA) marijuana prohibition. The government, Cole wrote, was primarily concerned with the distribution of marijuana to minors, the involvement in marijuana trafficking of organized crime, the distribution of more serious drugs along with marijuana, and the transfer of marijuana from states where the drug was legal under state law to those where it was not. So long as those states seeking to legalize marijuana had robust regulatory regimes in place to address these concerns, businesses acting in conformance with state law would generally not be an appropriate target of federal enforcement, whether criminal or civil.
The DOJ memo marks a major change in direction for the federal government. As recently as 2010, Attorney General Holder had made clear to the people of California that the federal government would not countenance a state decriminalizing and regulating recreational marijuana manufacture and sale. Furthermore, previous enforcement memoranda from the DOJ had drawn a distinction between legitimate medical use of marijuana on the one hand (which the government stated would not be an enforcement priority) and large-scale commercial production (which remained a valid target for federal prosecution). The 2013 Cole Memo makes clear that the size and for-profit nature of marijuana establishments was but one factor to be considered by United States Attorneys in determining whether to enforce the CSA in states that had sought to legalize marijuana.
For state officials in Washington and Colorado – which both passed marijuana legalization initiatives in 2012 – this word from the DOJ was long-overdue good news; with this announcement, the states could complete the final stages of their marijuana regulations and begin licensing businesses to open their doors in early 2014.
But the memo can do only so much to alleviate the uncertainty and confusion caused by the continuing federal marijuana prohibition. In the first place, the memorandum is a unilateral act of the executive and can always be undone by other unilateral executive actions; when a new presidential administration takes over in January 2017, there is no telling how it will view the federal government’s marijuana enforcement priorities.
The Supreme Court’s conservative majority has been itching to gut the landmark Voting Rights Act for some time and today it took a big step toward doing so. The conservative bloc led by Chief Justice John Roberts Jr. invalidated Section 4 of the Voting Rights Act (VRA), which includes a formula for determining the states, towns and localities that must obtain approval or preclearance from the federal government for proposed changes to their voting laws and procedures.
This time around a constitutional challenge brought by officials in a mostly white Alabama County gave the conservative bloc what it needed. Writing for the majority in Shelby County v. Holder, Roberts noted that in Northwest, his conservative colleagues “expressed serious doubt about the Act’s continued constitutionality.”
Roberts continued, “We explained that Sec. 5 ‘imposes substantial federalism costs’ and ‘differentiates between States, despite our historic tradition that all the States enjoy equal sovereignty.’ We also noted that ‘[t]hings have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’ Finally we questioned whether the problems that Sec. 5 meant to address were still ‘concentrated in the jurisdictions singled out for preclearance.’” Sec. 4 includes the forumla for deciding what jursidictions must comply with the VRA's Sec. 5 preclearance provision.
Though the case raised constitutional claims of equality among Americans, like ensuring minorities are not deprived of a fundamental right to vote, the conservative justices in Shelby were much more interested in equality among the states. As they put, citing Northwest, a “fundamental principle of equal sovereignty. Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’”
“The Voting Rights Act sharply departs from these basic principles,” Roberts wrote. “It suspends ‘all changes to state election law – however innocuous – until they have been precleared by federal authorities in Washington, D.C.”
The conservative bloc was also incredibly confident that voter discrimination in the covered jurisdictions, mostly in the South, is a thing of the past. The majority pointed to an increase in minority registration and turnout.
While voter discrimination allegedly subsided, Congress made the VRA more stringent and its formula for determining covered jurisdictions remained static, the majority groused. “Coverage today is based on decades-old data and eradicated practices,” Roberts wrote.
When Congress reauthorized the VRA in 1996, which it did overwhelmingly, it should have altered its coverage formula, Roberts argued. “It instead reenacted a formula based on 40-year-old facts having no logical relationship to the present day,” he said.
Roberts also claimed that the majority was carefully invalidating a provision of the VRA, and maintained the Court was providing “no holding” on Section 5. Instead Roberts said Congress could create a new formula.
The dissent, lodged by Justice Ruth Bader Ginsburg and joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, however, found that the majority had usurped a job for Congress, and in a rather sloppy manner. (Congress, Ginsburg wrote, should be given deference in its constitutional authority to create appropriate legislation to enforce the 14th and 15th Amendments.)