Committee Newsletter | Winter 2017, Vol. 3, No. 2
LETTER FROM THE COMMITTEE CO-CHAIRS
A lot has happened since our last newsletter.
The seemingly interminable presidential campaign concluded with a surprising result: the
election of Donald J. Trump as the next president of the United States. Two of our newsletter
contributors prognosticate what Mr. Trump’s election—including his “law and order” campaign
rhetoric—will mean for criminal justice over the next few years.
This newsletter also highlights the YLD 2016 Fall Conference with a recap of one of its criminaljustice CLE programs. The Detroit host committee organized a fantastic series of events with
CLE programs, sightseeing, and networking and social activities. There will be more exciting
programs at the upcoming ABA 2017 Midyear Meeting in Miami and YLD 2017 Spring
Conference in Montreal. We hope that you can join us there.
Last month, our Committee hosted its first #YLDCJCchat Twitter hashtag conversation. The
event was a success, as we chatted about entering and practicing in the criminal-justice field,
necessary criminal-justice reforms, and challenges that a new presidential administration and
attorney general will bring. We hope to host a follow-up conversation in the New Year, so look
for the announcement and join us as we continue the #YLDCJCchat.
The Committee has also been hard at work preparing a recommendation and report for YLD
policy on laws governing victim restitution. Thank you to all who provided comments and
suggestions. We recently submitted our recommendation and report to the YLD Assembly
Speaker, and the recommendation will be considered at the ABA 2017 Midyear Meeting.
As we work on ideas and events for 2017, please do not hesitate to contact us with any ideas
for CLE programs, newsletter articles, or #YLDCJCchat topics. We are always looking for our
members to reach out and get involved.
We hope you have enjoyed happy holidays, and we wish you a wonderful new year.
Jin-Ho King ([email protected])
Scott MacMullan ([email protected])
Co-Chairs
ABA YLD Criminal Justice Committee
© 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent
of the American Bar Association.
Criminal Justice Committee Newsletter
Winter 2017, Vol. 3, No. 2
____________________________________________________________________________________________________________________
TABLE OF CONTENTS
____________________________________________________________________________________________________________________
ARTICLES >>
A Discussion on Prosecuting Law Enforcement
By Jin-Ho King
Updates from the October 2016 ABA YLD Conference…………………………………….3
Potential Construction Project Fraud in the Trump Era
By Josh Spitalnik
The forecasted increase in infrastructure construction could lead to a spike in fraud…...5
Criminal Justice and the Trump Administration
By Corey Lyles
What to expect from Attorney General Sessions…………………………………………….9
NEWS AND ANNOUNCEMENTS >>………………………………………...11
Spread the Word on 2017-2018 YLD Scholarships
Selection of the Top 40 Young Lawyers
2017 YLD Spring Conference
Page 2 of 12
Criminal Justice Committee Newsletter
Winter 2017, Vol. 3, No. 2
____________________________________________________________________________________________________________________
ARTICLES
A Discussion on Prosecuting Law Enforcement
By Jin-Ho King
On October 22, 2016, the ABA YLD Ethics and
program entitled “Prosecutorial Discretion in the Wake
Co-Chair of the Racial Justice and Diversity Committee
moderated a lively discussion on issues that prosecutors
bring charges against police officers.
Professionalism Committee hosted a
of Public Outcry.” Mwanaisha Sims,
of the ABA Criminal Justice Section,
face when deciding whether or not to
The panel consisted of the following distinguished speakers:

Kiana Franulic, an attorney in private practice in Michigan;

Daniel L. Lemisch, the First Assistant U.S. Attorney for the Eastern District of
Michigan;

Stan A. Germán, the Executive Director of the New York County Defender
Services; and

Mike Sievers, an attorney in private practice in New Mexico who served on
the special prosecution team that tried two former Albuquerque Police officers
for the 2014 murder of James Boyd.
The Boyd murder trial in Albuquerque served as a launching point for a thoughtful
discussion about barriers to the prosecution of police officers. Mr. Sievers provided specific
insight on the challenges he and his colleagues faced as special prosecutors. For instance, he
noted how difficult the direct examinations of their own witnesses—police officers who
investigated the alleged murder—proved to be. These critical eye witnesses testified only
reluctantly against their former colleagues, and eliciting the evidence necessary to prove the
prosecution’s case required careful questioning. Even so, the prosecution came up short: the
jury was unable to decide the case unanimously, and the court declared a mistrial.
Mr. Lemisch spoke about the barriers that existing law poses to criminal prosecutions of
police officers. To illustrate, Mr. Lemisch discussed one federal civil rights statute, 18 U.S.C.
§ 242. The statute criminalizes deprivations of rights under color of law, but Mr. Lemisch noted
that convicting a police officer for a shooting death requires proof both that (1) the officer’s use
of excessive force was unreasonable as viewed from the eyes of a reasonable officer at the
scene and (2) the officer acted with specific intent to violate the decedent’s rights.1 In other
words, the shooting needed to have been more than the product of poor judgment: the officer
needed to know that what he did was wrong. Against the backdrop of these statutory
requirements, the public outcry at failures to prosecute officers for shooting deaths may be
1
Cf. Graham v. Connor, 490 U.S. 386, 396 (1989) (defining the excessive-force standards under the
Fourth Amendment).
Page 3 of 12
Criminal Justice Committee Newsletter
Winter 2017, Vol. 3, No. 2
____________________________________________________________________________________________________________________
misplaced: many prosecutors decline to prosecute because the law imposes such difficult
elements of proof. The state of the law makes many of these decisions inevitable, even if
undesirable.
Mr. Germán observed that the public outcry in recent years has been decades in the
making, with distrust of police arising from policies like New York’s stop-and-frisk program. This
program resulted in more than five million stops and street interrogations from 2002 to present.
Of those stopped, over eighty percent were black or Latino.2 Nearly ninety percent of those
stopped were innocent.3
Ms. Franulic suggested ways to address this racial disparity. She identified the Racial
Justice Improvement Project as one concerted effort to reform the criminal-justice system to this
end. She also discussed how updated police training on implicit bias and de-escalation
techniques may help, as well may requiring officers to rotate between different jurisdictions as
part of their training.
Finally, the panelists discussed alternatives to criminal prosecution to hold police officers
accountable for wrongdoing. Civil suits, federal monitoring, and Department of Justice consent
decrees all provide means to channel public outcry toward reform.
This program was one of several criminal-justice events during the ABA YLD Fall
Conference in Detroit. The next major conference is the ABA Midyear Meeting, to be held on
February 2–5, 2016, in Miami, Florida. After that, the ABA YLD will host its Spring Conference
on May 4–6, 2017, in Montréal, Québec.
Jin-Ho King is partner with Milligan Rona Duran & King LLC, where he focuses his practice on
criminal and civil appeals.
2
See N.Y. Civil Liberties Union, Stop-and-Frisk Data, http://www.nyclu.org/content/stop-and-frisk-data
3
See id.
Page 4 of 12
Criminal Justice Committee Newsletter
Winter 2017, Vol. 3, No. 2
____________________________________________________________________________________________________________________
Potential Construction Project Fraud in the Trump Era
By Josh Spitalnik
Prior to his campaign, Trump’s name was synonymous with construction and real-estate
development. Skylines across the country have buildings bearing the Trump name. It is widely
believed that the Trump presidency will mean a continuation of his construction legacy. During
his campaign, Trump talked about the need for improvements to the nation’s infrastructure. He
characterized airports in New York and Los Angeles as third-world,1 and widely criticized an
aging public transportation system.2 Trump announced as a campaign promise a trillion-dollar
plan for major investments into the country’s infrastructure.3 During his victory speech, he
reiterated his focus on construction, stating, “We are going to . . . rebuild our highways, bridges,
tunnels, airports, schools, hospitals. We’re going to rebuild our infrastructure, which will
become, by the way, second to none.”4
Dodge Data & Analytics, a highly regarded construction forecaster, believes there will be
an immediate surge in construction projects resulting from the Trump Presidency. 5 Moreover,
there are indications that Trump will push on infrastructure during his first hundred days.6
Experts speculate that New York trains and subways will get a major jolt, including possible
funding to create a new rail tunnel under the Hudson River in order to increase train travel
capacity into Penn Station.7 New York Democrat and upcoming Senate Minority Leader Chuck
Schumer has publicly pledged to work with President-elect Trump on an infrastructure bill.8
1
Dana Varinsky, During one of the debates, candidate Trump stated that airports in New York and Los
Angeles
were
like
a
third
world
country,
Sep.
27,
2016,
Businessinsider.com,
http://www.businessinsider.com/trump-laguardia-airport-redesign-2016-9/
2
Adam Justice, Donald Trump: US becoming a ‘third-world country’, Feb. 11, 2016, International
Business Times, http://www.ibtimes.co.uk/donald-trump-us-becoming-third-world-country-1543231
3
Kim Slowey, Trump campaign announces $1T infrastructure plan driven by private investment, Oct. 28,
2016, Construction Dive.com, http://www.constructiondive.com/news/trump-campaign-announces-1tinfrastructure-plan-driven-by-private-investme/429268/
4
Steve Schaefer, The Stock Market Is Buying President-Elect Trump’s Big Infrastructure Promises, Nov.
10, 2016, Forbes, http://www.forbes.com/sites/steveschaefer/2016/11/10/the-stock-market-is-bettingtrump-will-make-good-on-his-infrastructure-promises/#634dddd43e80
5
Dodge Data & Analytics: President-Elect Donald Trump likely to be a plus for the construction industry,
Nov. 21, 2016, http://m.contractormag.com/management
6
Jeremy W. Peters & Maggie Haberman, Trump picks Elaine Chao for Transportation Secretary, Nov. 29,
2016, N.Y. Times, http://www.nytimes.com/2016/11/29/us/politics/elaine-chao-transportation-trump.html
7
Alfonso A. Castillo, Experts: Trump’s roots, background may be boon for MTA, LIRR, Dec. 4, 2016,
Newsday,http://www.newsday.com/business/experts-trump-s-roots-background-may-be-boon-for-mta-lirr1.12699177
8
Siobhan Becker, Schumer pledges to work with Trump on infrastructure bill, Dec. 12, 2016, Long Island
Business News, http://libn.com/2016/12/12/schumer-pledges-to-work-with-trump-on-infrastructure-bill/
Page 5 of 12
Criminal Justice Committee Newsletter
Winter 2017, Vol. 3, No. 2
____________________________________________________________________________________________________________________
With the anticipated influx of federal and state funding for infrastructure projects, there
will also be a substantial increase in funding being set aside for Disadvantaged Business
Enterprises (“DBEs”), Minority Business Enterprises (“MBEs”), and Women Business
Enterprises (“WBEs”), which in turn could lead to more cases of fraud. Those wrongly taking
advantage of these provisions risk criminal and civil penalties under federal, state and municipal
false-claims acts, as well as debarment from future public-contract work.
The United States Congress enacted the first statutory provisions governing DBEs in
1983.9 Among other things, these statutes aimed to prevent discrimination in the award and
administration of infrastructure contracts.10 While the federal guidelines set forth DBE
standards, state and city governments have enacted similar statutes for MBEs and WBEs.
In general, the requirements to be certified as a DBE, MBE or WBE (collectively,
“D/M/WBE”) are (1) that the company be at least 51% owned by one or more individuals who
are both socially and economically disadvantaged (i.e., minorities or women) and (2) that these
individuals have independent control over the company’s day-to-day operations.
Governments have established myriad goals for minority participation in federal, state
and city construction contracts. In New York State, Governor Cuomo has aggressively pushed
for higher D/M/WBE goals, setting the State’s target at 30% D/M/WBE participation for all state
funded contracts.11 In New York City, Mayor De Blasio has set as the city’s ten-year goal to
award $16 billion to D/M/WBE firms under the city’s OneNYC Plan, and has reported awards in
2015 to M/WBE firms totaling $1.6 billion.12 These participation goals and set asides have
provided tremendous opportunities for minority and women-owned businesses, especially in the
construction industry.
These tremendous opportunities are bound to attract fraudsters. One fraudulent method
is to use a “pass-through” or “front company.” One recent example I encountered was an
engineer who wanted to start a new firm “owned” by a woman, with the new WBE firm
subcontracting all of the work to the non-WBE engineering firm and operating out of the same
facility with the same employees to save on overhead.
One of the major sources of enforcement against D/M/WBE fraud are the false-claims
statutes. For federal matters involving DBEs, the False Claim Act (“FCA”), 18 U.S.C. § 1343 et.
9
History of the DOT DBE Program, available at https://cms.dot.gov/civil-rights/disadvantaged-businessenterprise/history-dot-dbe-program
10
Code of Federal Regulations, Title 49, Part 26, §26.1 available at http://www.ecfr.gov/cgibin/retrieveECFR?gp=&SID=2a025d2a3f9600e7112181bf91fa7406&r=PART&n=49y1.0.1.1.20#se49.1.2
6_11
11
14th Proposal of Governor Cuomo’s 2016 Agenda: Increase Opportunity for Minority and WomenOwned Businesses, January 11, 2016, available at https://www.governor.ny.gov/news/14th-proposalgovernor-cuomo-s-2016-agenda-increase-opportunity-minority-and-women-owned
12
OneNYC
M/WBE
Bulletin,
available
at
http://www1.nyc.gov/assets/mocs/downloads/pdf/MWBEReports/OneNYC%20MWBE%20Bulletin%20FY
2015.pdf
Page 6 of 12
Criminal Justice Committee Newsletter
Winter 2017, Vol. 3, No. 2
____________________________________________________________________________________________________________________
seq., provides that those who devise a scheme to defraud or obtain money or property by false
or fraudulent pretense through the use of wire or mail shall be fined or imprisoned for up to
twenty years, or both. New York’s FCA analogue is State Finance Law § 189 et. seq., while
New York City’s analogue is N.Y.C. Administrative Code § 7-801 et. seq.
Recent enforcement efforts include the Manhattan District Attorney’s August 2015
formation of a Construction Fraud Task Force to identify and prosecute fraud and corruption in
the construction industry.13 In August 2016, a Canadian steel contractor, DCM Erectors, Inc.
and its owner and chief executive, Larry Davis, were convicted by a federal jury in Manhattan on
charges of wire fraud and conspiracy to commit wire fraud arising from the $580 million in work
DCM performed at the World Trade Center. The prosecution argued that DCM hired two
purported MBEs as front companies and paid kickbacks to the MBEs to state that they
performed work that was in fact performed by DCM.14 The prosecution also argued that DCM
transmitted fraudulent invoices, as well as false payroll reports, via email and fax, and also
accepted fraudulently obtained payments via wire.15 DCM faces substantial fines, and its owner
faces up to twenty years in prison.16
Ultimately, the government’s case against DCM hinged on the argument that DCM’s
minority subcontractors failed to provide a “commercially useful function” on the project. Under
the D/M/WBE laws, in order for a subcontractor’s work to qualify against the project’s minorityparticipation goals, the D/M/WBE contractor must perform a “commercially useful function” in
furtherance of the contract.17 This requires the subcontractor to, among other things: (a) be
responsible for the execution of the work of the contract, (b) carry out the responsibility by
actually performing, managing, and supervising the work involved, and (c) be responsible for
negotiating pricing for material, determining quality and quantity of material, ordering material,
and installing material.18 The D/M/WBE rules further provide that the D/M/WBE cannot just be
an extra participant in the transaction through which funds are passed in order to obtain the
appearance of participation (i.e., a “pass-through”), especially with respect to the D/M/WBE’s
13
Citywide Construction Fraud Task Force convened to investigate misconduct in the midst of historic
development boom, Aug. 5, 2016, available at http://manhattanda.org/press-release/citywideconstruction-fraud-task-force-convened-investigate-misconduct-midst-historic14
Nate Raymond, World Trade Center contractor found guilty of fraud scheme, Aug. 10, 2016, Reuters,
http://www.reuters.com/article/us-new-york-fraud-wtc-idUSKCN10L2CO
15
U.S.
v.
Larry
Davis,
14
MAG
1687,
Complaint
available
at
https://www.justice.gov/sites/default/files/usao-sdny/legacy/2015/03/25/Davis,%20Larry%20Complaint.pdf
16
Contractor faces 20-year sentence over World Trade Centre minority fraud, Aug. 15, 2016, Global
Construction
Review,
http://www.globalconstructionreview.com/news/contractor-faces-20-yearsent7ence-ov7er-wor7ld/
17
Code of Federal Regulations, Title 49, Part 26, §26.55(c) available at http://www.ecfr.gov/cgibin/retrieveECFR?gp=&SID=2a025d2a3f9600e7112181bf91fa7406&r=PART&n=49y1.0.1.1.20#se49.1.2
6_11
18
Id. at §26.55(c)(1).
Page 7 of 12
Criminal Justice Committee Newsletter
Winter 2017, Vol. 3, No. 2
____________________________________________________________________________________________________________________
hiring of subcontractors. 19 Where a D/M/WBE hires another company to perform part of the
work, then that subcontractor’s work cannot count towards the D/M/WBE goal unless that
subcontractor is itself a certified D/M/WBE.20
With the anticipated boom in federally funded construction projects under Trump,
together with the increase in D/M/WBE goals, it is likely that crackdowns on D/M/WBE fraud will
continue to increase. Speaking at an event following the elections results, United States Deputy
Attorney General Sally Yates was “optimistic” that the Trump administration will continue along
the path of stressing individual accountability.21 In September 2015, Yates issued a memo
stressing the need for individual accountability for corporate wrongdoing.22 The memo’s
standards are applicable to all investigations and prosecutions into corporate wrongdoing—
including D/M/WBE construction fraud cases.23
Joshua Spitalnik represents contractors performing public works, commercial, and high-end
residential construction, including many D/M/WBE contractors. He regularly speaks at D/M/WBE
outreach events promoting compliance with D/M/WBE goals.
19
Id. at §26.55(c)(2).
20
Id. at §26.55(a)(3).
21
C. Ryan Barber, DOJ’s Sally Yates Is ‘Optimistic’ Trump Won’t Trash Namesake Enforcement Memo,
Nov. 30, 2016, National Law Journal, http://www.law.com/sites/almstaff/2016/11/30/dojs-sally-yates-isoptimistic-trump-wont-trash-namesake-enforcement-memo/
22
Sally Quinlan Yates, Individual Accountability for Corporate Wrongdoing, Sep. 9, 2015, available at
https://www.justice.gov/dag/file/769036/download
23
Id. at 3.
Page 8 of 12
Criminal Justice Committee Newsletter
Winter 2017, Vol. 3, No. 2
____________________________________________________________________________________________________________________
Criminal Justice and the Trump Administration
By Corey Lyles
In early 2017, Senator Jefferson Beauregard Sessions III will come before his
Congressional colleagues for hearings to determine whether he will become the 84th Attorney
General of the United States. If confirmed, the senator will become the key overseer of his
predecessors’ respective legacies during a time of significant change for the Department of
Justice (“DOJ”) and the country. Over the past eight years, there have been several surprising
pivots by the DOJ: softer approaches to immigration enforcement;1 sentencing reduction
recommendations;2 closer scrutiny of police departments mired in controversy over abusive
practices;3 and increased emphasis on expanding protections for LGBTQ individuals.4 There are
always changes with a new administration, but this change in the DOJ leadership may result in
serious rollbacks in many areas of progress, including criminal-justice reform.
Senator Sessions has been involved in criminal law in one capacity or another for
decades. He has served the state of Alabama as its attorney general, U.S. attorney, and since
1997 as one of its U.S. senators. He has an extensive record of sponsoring,5 or cosponsoring,6
various crime-related bills since his early days in the Senate.
1
See Executive Office for Immigration Review to Revise Docketing Practices Relating to Certain Priority
Cases (Feb. 4, 2016), Department of Justice, Office of Executive Immigration Review,
https://goo.gl/gvhL1w (noting reprioritization of docketing practices to handle influxes of unaccompanied
minors); see also Helping the Victims of Human Trafficking (Sept. 26, 2012), Department of Justice Office
of Public Affairs, https://goo.gl/WwacQn (highlighting efforts to provide supplemental services to human
trafficking victims including legal services).
2
See In Milestone for Sentencing Reform, Attorney General Holder Announces Record Reduction in
Mandatory Minimums Against Nonviolent Drug Offenders (Feb. 17, 2015), Department of Justice, Office
of Public Affairs, https://goo.gl/FCiDtm; see also Sari Horwitz, Justice Department set to free 6,000
prisoners, largest one-time release, The Washington Post (Oct. 6, 2015), http://wpo.st/PX2Q2
(highlighting efforts by Congress and the DOJ to reduce harsh sentence imposed on low level drug
offenders and to reduce prison populations).
3
See, e.g., Consent Decree, United States v. The City of Ferguson, No. 4:16-cv-000180-CDP (E.D. Mo.
2016).
4
See Attorney General Holder Directs Department to Include Gender Identity Under Sex Discrimination
Employment Claims (Dec. 18, 2014), Department of Justice, Office of Public Affairs,
https://goo.gl/DtGgQ0; See also U.S. Departments of Justice and Education Release Joint Guidance to
Help Schools Ensure the Civil Rights of Transgender Students (May 13, 2016), Department of Justice,
Office of Public Affairs, https://goo.gl/jqXxhb; See also Tierney Sneed, DOJ Sues To Block North
Carolina’s Anti-LGBT Bill, TPM (May 9, 2016), https://goo.gl/T84HAh
5
Sessions has sponsored twenty crime-related bills including: the Drug Sentencing Reform Act of 2007,
S. 1383, 110th Cong.; the Anti-Terrorism Protection of Mass Transportation and Railroad Carriers Act of
2003, S. 1608, 108th Cong.; and the Civil Asset Forfeiture Reform Act of 1999, S. 1701, 106th Cong.
6
Sessions has co-sponsored over 100 bills related to criminal law including: the Lifesaving Gear for
Police Act, S. 2694, 114th Cong. (2016); the Strengthening Investigations of Sex Offenders and Missing
Children Act of 2011, S. 1792, 112th Cong.; and the Fair Sentencing Act of 2010, S. 1789, 111th Cong.
Page 9 of 12
Criminal Justice Committee Newsletter
Winter 2017, Vol. 3, No. 2
____________________________________________________________________________________________________________________
Senator Sessions has evinced conservative stances on numerous issues, which could
signal a retreat on key criminal-justice reforms.7 He has often criticized the Obama
administration as weak on law enforcement.8 He has taken issue with many of the Obama
administration’s efforts to reduce the federal prison population, citing concerns that offenders
released due to changes in sentencing policies increase violent risks to citizens.9 Additionally,
Sessions has expressed concern with the rising number of drug overdoses and reductions in
prosecutions of drug traffickers by the administration.10 He takes a staunch “law and order”
view on many of these issues, categorizing them as easily resolvable with the hallmark “tough
on crime” approach of the war on drugs. As studies from organizations such as the Drug Policy
Alliance,11 the Sentencing Project,12 and the Heritage Foundation13 have shown, the moredraconian aspects of the war on drugs have produced far-more-negative results for defendants
of color. The war on drugs has caused significant socio-political and economic drains on
minority communities, helping create a vicious cycle where new generations become ensnared
by patterns of criminality and imprisonment. Returning former criminals to the street on its own
is not enough: the government must provide programs for societal reentry to prevent recidivism.
7
See Sessions Comments On Revised Criminal Sentencing Bill (Apr. 28, 2016),
http://www.sessions.senate.gov/public/index.cfm/2016/4/sessions-comments-on-revised-criminalsentencing-bill
8
See Sessions: President Obama’s Unprecedented Commutations of Violent Drug, Gun Felons Will Inflict
Long-Term Harm on the Nation (Aug. 5, 2016), http://www.sessions.senate.gov/public/index.cfm/newsreleases?ID=98A3011F-B35C-4223-92F4-857A5EC3E47F, ¶¶ 3-4 (where the Senator criticizes the
Obama administration’s push for criminal-justice reform weakening penalties for certain federal felons).
9
Id.
10
See CHART: Federal Drug Prosecutions And Sentences Plummet As Overdose Deaths Reach Record
High (Apr. 1, 2016), http://www.sessions.senate.gov/public/index.cfm/news-releases?ID=B24723267D2D-4C42-B4FA-70D00A226A79 (where the Senator raises his concern for rising drug overdoses and
falling federal drug trafficking prosecutions).
11
See THE DRUG W AR, MASS INCARCERATION AND RACE (English/Spanish), Drug Policy Alliance,
http://www.drugpolicy.org/resource/drug-war-mass-incarceration-and-race
12
See Marc Mauer and Ryan S. King, A 25-YEAR QUAGMIRE: THE W AR ON DRUGS AND ITS IMPACT ON
AMERICAN
SOCIETY,
The
Sentencing
Project
(Sept.
1,
2007),
http://www.sentencingproject.org/publications/a-25-year-quagmire-the-war-on-drugs-and-its-impact-onamerican-society/, at 2, 7 (noting that blacks make up a larger portion of prison populations than other
violent offenders due to drug arrests and racially disparate sentencing).
13
See Evan Bernick and Paul Larkin, RECONSIDERING MANDATORY MINIMUM SENTENCES: THE ARGUMENTS
AND
AGAINST POTENTIAL REFORMS, The Heritage Foundation (Feb. 10, 2014),
http://www.heritage.org/research/reports/2014/02/reconsidering-mandatory-minimum-sentences-thearguments-for-and-against-potential-reforms (noting that mandatory minimum sentences have resulted in
arbitrary punishments without consideration for the drug offense, especially for low-level members of drug
organizations); see also Barbara S. Vincent and Paul J. Hofer, THE CONSEQUENCES OF MANDATORY
MINIMUM PRISON TERMS: A SUMMARY OF RECENT FINDINGS, Federal Judicial Center (1994),
http://www.fjc.gov/public/pdf.nsf/lookup/conmanmin.pdf/$file/conmanmin.pdf
FOR
Page 10 of 12
Criminal Justice Committee Newsletter
Winter 2017, Vol. 3, No. 2
____________________________________________________________________________________________________________________
These are policy priorities that need to be at the top of any DOJ checklist, and should go hand
in hand with the agency’s law-enforcement strategies.
Senator Sessions has an extensive legislative record on criminal-law issues. That record
suggests he will not champion many of the policies implemented under Attorneys General
Holder and Lynch. Sessions’s record indicates strong support for retaining current sentencing
guidelines, an emphasis on imprisonment over release and rehabilitation, and greater
protections for law enforcement, such as the Thin Blue Line Act14 co-sponsored by Sessions
and Senator Pat Toomey. In addition, Sessions has been opposed to efforts to expand the
definition of hate crimes to protect those attacked for their orientation, gender, or disability.15
The senator has also faced allegations of racist comments.16 He has responded to such
allegations by claiming that the comments in question were either were jokes, off-the-cuff
comments, or never happened. These allegations raise questions about what priorities the DOJ
will have under Sessions’s leadership. As an African-American male growing up in the south, I
dealt with similar statements being made and quickly minimized as harmless jokes. This
frivolous treatment of harmful language fails to address the issues at stake and further
entrenches divisive viewpoints that harm our national unity.
It is unclear what direction the DOJ will take in the coming years. Senator Sessions will
likely provide more insight about his vision for the DOJ during his confirmation hearings. That
the next few years will involve changes in the criminal-justice system seems certain. Whether
those changes are aimed at addressing legitimate concerns with the justice system, a rigid “law
and order” approach, or something in between will depend in significant part on Sessions’s
plans, but also on private citizens, and especially lawyers, willing to speak out against unduly
harsh and potentially discriminatory policies.
Corey Lyles is a recent graduate of Howard University School of Law and new member of the
Maryland Bar with interests in criminal justice, immigration, and civil rights.
14
Thin Blue Line Act, S. 2034, 114th Cong. (2015) (introduced by Senator Tomney to amend the federal
criminal code to expand the list of statutory aggravating factors in death penalty determinations to also
include killing or targeting a law-enforcement officer, firefighter, or other first responder).
15
See
Sessions
Expresses
Concern
about
the
Hate
Crimes
Act,
http://www.sessions.senate.gov/public/index.cfm/floor-statements?ID=a8247be2-d851-bebf-9a8a02a497fd6f1b (where the Senator takes issue with the attachment of the Matthew Shepard Hate Crimes
Prevention Act to a 2009 defense spending bill); see also Carl Hulse, House Votes to Expand Hate
Crimes Definition, New York Times (Oct. 8, 2009), http://nyti.ms/2e9HWCy
16
See The Associated Press, Jeff Sessions’ Record on Civil Rights, Race Revisited After Trump’s
Attorney General Tap, Fortune (Nov. 19, 2016), http://fortune.com/2016/11/19/jeff-sessions-race-civilrights/ (noting that allegations of racism were made public during Sessions’ unsuccessful nomination to
the federal bench); see also Scott Glover, Allegations of racism against Sessions: a closer look, CNN
(Dec. 11, 2016), http://www.cnn.com/2016/11/18/politics/jeff-sessions-racism-allegations/
Page 11 of 12
Criminal Justice Committee Newsletter
Winter 2017, Vol. 3, No. 2
____________________________________________________________________________________________________________________
NEWS AND ANNOUNCEMENTS
Spread the Word on 2017-2018 YLD Scholarships
YLD scholarship application process opened on January 1. Please spread the word to
interested young lawyers and invite them to apply. The YLD Scholarship program provides
partial conference funding, publishing opportunities, and special assignments to Division
boards, teams and committees. Scholarship categories include Solo, Small Firm, and General
Practice Division (GPSolo), Government, Public Sector and Military Lawyers, and Minorities in
the Profession. Deadline for applications is April 15.
More information available here.
Selection of the Top 40 Young Lawyers
The Annual On the Rise - Top 40 Young Lawyers provides national recognition for ABA young
lawyer members who exemplify a broad range of high achievement, innovation, vision,
leadership, and legal and community service.
A selection committee comprised of practicing attorneys in private practice and in-house
positions review completed nominations. The strength of the nomination will be subjectively
based upon the reputation of the nominator, the professional relationship between the
nominator and the nominee, and the nominator’s first-hand knowledge of the nominee’s
experience, skill, and character.
More information available here.
2017 YLD Spring Conference
Save the Date for the 2017 YLD Spring Conference May 4 – 6 in Montreal Quebec, Canada.
Join us to earn CLE credit, develop your career, and network with young lawyers from across
the U.S., Canada and the world.



Earn CLE credit and meet practice-area experts
Get effective skills and techniques to help make you a better lawyer and more
effective leader
Share perspectives and best practices on ways to advance legal profession
diversity and inclusion
More Information available here.
Page 12 of 12