• DOJ's secret subpoena of AP phone records broader than initially revealed

    Information has emerged  in the Justice Department seizure of Associated Press phone records as well as the news that reporter for Fox News is now a target of a leak investigation concerning North Korea.  NBC's Michael Isikoff reports.  

    By Michael Isikoff
    National Investigative Correspondent, NBC News

    The Justice Department’s secret subpoena for AP phone records included the seizure of records for five reporters' cellphones and three home phones as well as two fax lines, a lawyer for the news organization tells NBC News.


    David Schulz, the chief lawyer for the AP, said the subpoenas also covered the records for 21 phone lines in five AP office lines -- including one for a dead phone line at  office in Washington that had been shut down six years ago. The phone lines at four other offices – where  100 reporters worked — were also covered by the subpoenas, Schulz said. 

    Although AP had given general information about the subpoenas last week, it provided new details Monday about the number of cell and home phone records as it considers possible legal action against the Justice Department.

    Schultz said the subpoena for a Washington phone line that had been shut down years ago raises questions about assertions by Deputy Attorney General James Cole, in a letter last week, that the subpoenas were narrowly crafted and only issued after a "comprehensive investigation" that included over 550 interviews and reviewing tens of thousands of documents.

    Cole had said in his letter to the AP that "consistent with Department policy, the supboenas were limited in both time and scope."

    Schultz confirmed that the subpoenas for the phone records were secretly issued to Verizon, which turned them over to the Justice Department without any initial notice to AP. On May 10, Justice notified AP of the subpoenas in a one-sentence letter, citing department guidelines that require such notice for media phone records after 90 days.

    The  AP is considering filing legal action to challenge the Justice Department subpoena as overly broad and inconsistent with the department's own guidelines. On CBS’ “Face the Nation” on Sunday, AP President and CEO Gary Pruitt said the secret subpoenas were "so sweeping, so secretively, so abusively and harasssingly … overbroad, that it constitutes … an unconstitutional act."

    Justice Department officials did not respond to requests for comment.

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  • AP, DOJ clash over seriousness of leak that prompted phone records seizure

    Jonathan Ernst / Reuters

    U.S. Attorney General Eric Holder calls on a reporter during a news conference at the Justice Department on Tuesday.

    By Michael Isikoff
    National Investigative Correspondent, NBC News

    Justice Department and Associated Press officials clashed Tuesday over leaked classified information that led the government to seize AP phone records, with Attorney General Eric Holder saying it “put the American people at risk” and the news organization’s chief executive insisting it delayed publishing its story until it was assured “national security concerns had passed.”

    The day of back-and-forth public sallies came as new details emerged about negotiations between the AP and U.S. officials over the unauthorized release of classified information on a foiled bomb plot in Yemen, information that apparently triggered the investigation.

    “This was a very, very serious leak,” Holder said at a news conference. “I’ve been a prosecutor since 1976 – and I have to say that this is among, if not the most serious, in the top two or three most serious leaks that I’ve ever seen. It put the American people at risk – and that is not hyperbole.”


    Holder defended the secret subpoena for about two months of AP phone records on 20 separate telephone lines without prior notice as a necessary step, saying that trying to find the source of the leak “required very aggressive action.”

    Holder’s comments and a letter from Deputy Attorney General James Cole defending the seizure of the AP records – without notifying the news organization until last week --  drew a stern response from AP President and CEO Gary Pruitt. He  blasted the action as "overbroad under the law," saying  that "more than 100 journalists work in the locations served by those telephones."

    "Rather than talk to us in advance, they seized these phone records in secret, saying that notifying us would compromise their investigation," Pruitt said in a statement late Tuesday. “They offer no explanation of this, however.

    Julie Fletcher / AP file

    Associated Press President and CEO Gary Pruitt.

    "Instead they captured the telephone numbers between scores of AP journalists and the many people they talk to in the normal business of gathering news."

    Pruitt also defended the AP's decision to publish the story that apparently sparked the leak investigation.

    The May 2012 AP article disclosed what it said was a CIA operation that foiled a plot to  plant a bomb on a  plane from Yemen on the first anniversary of Osama bin Laden's death.  

    The covert operation involved an informant working for British intelligence, who passed along information about a plot to detonate a refined version of a so-called “underwear bomb” aboard a U.S.-bound aircraft, intelligence officials told NBC News.  The leak, and the CIA’s subsequent claim that it was behind the operation, infuriated the British, who said it put their operative at risk, according to the officials, who spoke on condition of anonymity.

    Prior to the publication of the story, there were extensive negotiations among AP, White House and CIA officials, said the officials. The AP initially agreed to hold the story until May 8, 2012, thereby giving intelligence officials time to minimize any risk to the informant and his family, they said.

    But as first reported by Reuters, the agreement broke down at the last minute over AP demands that the U.S. government officials not confirm the details of the news organization’s account for an hour after publication. A source familiar with the negotiations said White House officials concluded they could not make such a promise given they expected to be deluged with media inquiries about the matter.

    Erin Madigan, a spokeswoman for the AP, disputed the Reuters account.

     “As we told Reuters a year ago, at no point did AP offer or propose a deal in relation to this story. We did not publish anything until we were assured by high-ranking officials with direct knowledge of the situation, in more than one part of the government, that the national security risk was over and no one was in danger.”

    In any case, the AP ran the story on May 7. That evening, shortly before the network news broadcasts, then-White House Counter-Terrorism Adviser John Brennan held a background briefing for former counterterrorism advisers. The former advisers then appeared on television networks to talk about the foiled plot and maintain that intelligence officials had “inside control” over it.

    Brennan, now CIA director, later told the Senate Intelligence Committee that he conducted the briefing to avoid “dangerous questions and speculation” about the operation.

    Pruitt on Tuesday denied the article posed a threat to national security.

    "We held that story until the government assured us that the national security concerns had passed," he said. "Indeed, the White House was preparing to publicly announce that the bomb plot had been foiled.

    "The White House had said there was no credible threat to the American people in May of 2012. The AP story suggested otherwise, and we felt that was important information and the public deserved to know it."

    Pruitt's statement  came after he received a letter from Cole, the deputy attorney general, which said  "there was a basis to believe" the phone numbers subpoenaed "were associated with AP personnel involved in the reporting of classified information." He said the subpoenas were "limited to a reasonable period of time" and were only taken after all "alternative investigative steps had been taken …  including conducting over 550 interviews and reviewing tens of thousands of documents." 

     The statement from the AP came as criticism of the Justice subpoena mounted on Capitol Hill and elsewhere.

     The House Judiciary Committee is planning to grill Holder about the matter at a previously scheduled oversight hearing on Wednesday, said Rep. Bob Goodlatte, the panel’s chairman.

    “We definitely have some pointed questions about how and why it was decided to request such a broad and lengthy” subpoena, he told NBC News.

    Holder has recused himself in the case, apparently because he had prior knowledge of the information that was leaked. If Holder says he can’t answer detailed questions about the case because of his recusal, Goodlatte said the panel will follow up with Cole, his deputy.

    “We will definitely be pursuing this matter,” Goodlatte said.

    His comments came as others voiced sharp criticism of the AP subpoena. Former Attorney General Michael Mukasey told Fox News on Tuesday that “it was a broader gathering of information that should never have been authorized.”

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  • Ex-FEMA official to plead guilty to steering contracts to Gallup during job hunt

    By Michael Isikoff
    NBC News

    A former top official of the Federal Emergency Management  Agency will plead guilty to a  felony conflict of interest charge for helping arrange millions of dollars in contracts to the Gallup Organization at the same time he was negotiating a $175,000 job with the polling firm.

    A nine-page “criminal information” document filed by federal prosecutors in Washington, D.C., this week charges that Timothy Cannon, 64, who served as the director of FEMA’s “human capital division” between 2007 and 2009, “knowingly and willfully” participated in the award of contracts to Gallup while he was arranging to accept employment  with the firm.

    Lawyers familiar with the matter say the new case against Cannon is noteworthy because it provides an unusual window into the world of federal contracts – complete with explicit email exchanges among Cannon and Gallup executives, including the firm’s chief executive officer, James Clifton. 

    “Ah, yes, I got another 500k put on the contract. Cool huh?” Cannon emailed one unidentified Gallup employee on Jan. 6, 2009, just six days before a job interview with the firm in which he discussed salary terms, according to the criminal complaint.

    “Tim has had a distinguished career in the military and as a federal employee,” his lawyer, David Schertler, said Thursday. “To get this matter behind him, he’s agreed to plead guilty to one felony count.” He added that his client “has accepted responsibility for his conduct.”

    The filing by prosecutors is the latest development in a widening federal probe into Gallup—perhaps the world’s most venerable and best known polling firm --  prompted by a whistleblower lawsuit filed by Michael Lindley, who previously served as its director of client services. The Justice Department last summer joined the lawsuit, accusing Gallup of bilking the government –  including routinely inflating bills by  tens of millions of dollars for polling for FEMA, the U.S. Mint and the U.S. Passport Agency.

    Gallup said in a statement at the time that the charges in the Justice Department civil suit were based “on the false allegations of a former disgruntled employee.” 

    The criminal complaint against Cannon does not identify Gallup by name, referring only to a “Company A.” But three legal sources familiar with the case, who spoke with NBC News on condition of anonymity, said that the company in question is Gallup and that the CEO quoted in the emails is the polling firm’s top executive, Clifton. In addition, the same conduct outlined in the criminal information has already been publicly described in the amended Justice Department civil suit that identifies both Gallup and Clifton by name. 

    Asked about the charges, Gallup emailed a statement from William E. Kruse, its vice president for law, stating:  “Today’s filing was not against Gallup, but rather DOJ’s allegations against a former FEMA employee. As such, there is nothing Gallup can comment on in regards to this development.”

    The complaint alleges that Cannon first had discussions with Gallup officials in 2007 about the firm providing services for a FEMA project called the “BEST Workforce Initiative.” The following summer, Gallup, was awarded the contract – originally valued at about $6 million over five years --  to poll FEMA employees and provide training to FEMA managers.

    By then, Cannon had already had multiple discussions with Gallup about a job and his interest had come to the attention of Clifton, the firm’s CEO.

    “If (Cannon)  gets us a big deal at FEMA… i (sic) think we should hire him … because he will be a ‘client’ hire … which might be good,” the Gallup CEO wrote in an April 25, 2008 email. Later in the same email chain, Clifton asked, “Is the ink dry yet on our deal with fema (sic)?”

    Then, on or about Nov. 18, 2008, another Gallup employee wrote in an email to Clifton: “I talked to Tim today. He asked for a job.”

    Clifton  replied: “What about ethics… are we okay with all of that … he is a significant client … am sure you know rules …  gee he seems like a winner to me … I don’t think these guys are as expensive as one might think … and he has a military background.” (Cannon served for 15 years in the U.S. Army, retiring in in 2001 as a colonel, according to Schertler, his lawyer.)

    The criminal complaint charges that, during a two week period between Jan. 21 and Feb. 3, 2009, Cannon signed five separate forms expanding Gallup’s work with FEMA and giving the firm an additional $1.6 million in business. Gallup then sent Cannon a letter dated Feb. 5 offering him a post as "partner" in its government division. “I am very excited about joining (Gallup) and I look forward to working with you,” he wrote in an email to the firm that same day.

    But  the job offer quickly ran into problems. Cannon retired from FEMA on Feb. 27, 2009, after signing a form on which he checked the “none” box in response to a question asking if he had any agreement for future employment, according to the complaint.  That same day, he asked Gallup to provide him with a new job offer letter dated Feb. 27 — to replace the one he had already received on Feb. 5. Gallup responded by sending him a new letter dated March 2, 2009, it said.

    At that point, Gallup executives started to have concerns: In one email exchange detailed in the complaint, a Gallup employee stated he was “getting more red flags about Tim Cannon” and there was speculation among his co-workers at FEMA “that this is improper. They are pretty mad.  This may get in the way of future business with FEMA.” 

    On March 26, 2009, Gallup withdrew the job offer, according to the complaint. In September, CEO Clifton forwarded an email about Cannon to company employees stating: “This is a guy that was our sponsor at FEMA. When he was applying we broke some of the rules of the US Gov on the ‘how’ we do it ... so we had to let him go.” 

    Michael Isikoff is NBC News' national investigative correspondent.

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  • Investigation finds no evidence AG Eric Holder knew of 'Fast and Furious' gun-running sting

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    U.S. Border Patrol agent Brian A. Terry was killed during a shootout with Mexican bandits south of Tucson, Ariz., in December 2010. Weapons seized afterward were later linked to Operation Fast and Furious, an ATF effort to trace the flow of weapons to Mexican drug cartels.

    By Pete Williams
    NBC News

    A long-awaited report on the U.S. government’s controversial gun-trafficking operation known as “Fast and Furious” released Wednesday found no evidence that Attorney General Eric Holder knew of the botched effort to trace the flow of guns to Mexico’s drug cartels prior to its public unraveling in January 2011. 

    The report by the Justice Department’s Inspector General Michael Horowitz said there is "no evidence that ... Holder was informed about Operation Fast and Furious, or learned about the tactics employed by ATF in the investigation" before Congress began pressing him for information about it in early 2011.

    The Justice Department inspector general found no evidence that Atty. Gen. Eric Holder even knew about the operation that brought more than 2000 guns into Mexico. Fourteen federal law enforcement officials, however, are connected to the botched gun trafficking operation. NBC's Pete Williams reports.

    The inspector general did determine that the acting deputy attorney general, Gary Grindler, received a briefing about the ill-fated gun-tracing operation in March 2010, but that the briefing "failed to alert Grindler to problems in the investigation." 

    The report also concluded that the operation was "seriously flawed and supervised irresponsibly" by federal officials in Arizona, who allowed it to continue in hopes of scoring a big case against a gun-trafficking organization despite obvious problems. 

    No one in Arizona, at ATF headquarters in Washington or at the Justice Department acted to end the operation until two weapons that were allowed to flow into Mexico were found at the scene of a shootout where a federal border agent, Brian Terry, was killed in December 2010.

    "Fast and Furious" was an attempt to trace the flow of guns from the US into Mexico.  ATF agents were instructed to allow suspected gun runners for the Mexican cartels to take guns into Mexico, because local ATF officials and local prosecutors believed they could then follow the weapons to the cartel higher-ups in Mexico.  It didn't work that way, and roughly 2,000 guns were lost, most of them AK-47-type rifles, the report said.

    Even after two of the trafficked guns showed up at the scene of Terry's death, senior ATF leaders did little to find out what went wrong.  Instead, the report said, Kenneth Melson, then the acting ATF director, seemed more concern that agents were leaking information to the news media about the botched operation.

    Read the full report

    Holder, in a statement issued immediately after the report's release, said its "key conclusions are consistent with what I, and other Justice Department officials, have said for many months now," that senior Justice Department officials were unaware of the "flawed strategy and tactics" that dated back to the administration of George W. Bush and made no effort to "cover up information or mislead Congress about it."

    Holder also announced that Melson, who was transferred out of the top job at the ATF last year, was retiring, effective immediately. A second Justice Department official, former Deputy Assistant Attorney General Jason Weinstein, has resigned. The report said Weinstein failed to tell Attorney General Holder about problems with the Fast and Furious operation. 

    In all, 14 current federal employees were singled out in the report for potential disciplinary action.

    The report's publication seemed to do little to end the bitter rivalry between Holder and Rep. Darrel Issa, the California Republican who was among the first to question the Fast and Furious operation.

     "It is unfortunate that some were so quick to make baseless accusations before they possessed the facts about these operations -- accusations that turned out to be without foundation and that have caused a great deal of unnecessary harm and confusion," Holder said in his statement.  

    "I hope today's report acts as a reminder of the dangers of adopting as fact unsubstantiated conclusions before an investigation of the circumstances is completed," he said. 

    In his own statement, Issa said, "Contrary to the denials of the attorney general and his political defenders in Congress, the investigation found that information in wiretap applications approved by senior Justice Department officials in Washington did contain red flags showing reckless tactics and faults Attorney General Eric Holder’s inner circle for their conduct.

     "It’s time for President Obama to step in and provide accountability for officials at both the Department of Justice and ATF who failed to do their jobs," Issa said.

    Politically charged partisan dispute
    The operation has become a politically charged partisan dispute heading into the November elections, with congressional Republicans charging that the Obama administration has withheld documents that would show the involvement of senior government officials, including Holder.

    On June 28, the Republican-led House of Representatives voted to hold Holder in contempt of Congress for failing to disclose internal Justice Department documents in response to a subpoena – the first time that sanction has been imposed on a sitting member of a president’s Cabinet.

    The department’s inspector general spent more than a year investigating the so-called “gun-walking” scandal  – in which agents of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, commonly known by the ATF acronym, in Arizona allow suspected gun runners to take guns into Mexico. The Fast and Furious operation was part of a broader initiative known as Project Gunrunner. 

    Local ATF officials and local prosecutors believed they could then follow the weapons to the cartel higher-ups in Mexico.  It didn't work that way. Thousands of guns were lost and only lower-level straw buyers of the weapons were ever arrested. 

    Two of the weapons turned up at the scene of a shootout where a federal border agent, Brian Terry, was killed on Dec. 14, 2010, near the Mexico border, though those guns were never tied directly to his death. 

    A Mexican legislator, Humberto Benitez Trevino, claimed last year that weapons that crossed the border during the attempted sting have been linked to the deaths or wounding of at least 150 Mexican civilians, but did not provide any supporting documentation or say how that number was calculated.

    Pete Williams is NBC News justice correspondent; NBC News Projects Editor Mike Brunker also contributed to this report.

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  • Justice Department alleges 'gross negligence' by BP in Gulf oil spill

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    A worker uses a suction hose to remove oil washed ashore from the Deepwater Horizon spill in Belle Terre, La., on June 9, 2010.

    By Andrew Callus
    Reuters

    LONDON -- Hopes that BP can settle early out of court on liability for its 2010 U.S. Gulf of Mexico oil spill looked forlorn on Wednesday after U.S. prosecutors laid out a legal case for gross negligence on which tens of billions of dollars hang.

    In the two years that have passed since the spewing Macondo deep-water well was capped, the Department of Justice has made it clear BP may have a gross negligence case to answer -- implying a potential $21 billion fine on top of other payments,  some already made, others yet to be determined.

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    The British oil company has been vehement in denying such liability for the United States' worst offshore environmental disaster, which killed 11 people and poured crude into the sea for months. It repeated that position after the DoJ filing on Tuesday.

    Nevertheless, the parties have been in talks about a multi-billion-dollar settlement that could cover outstanding liabilities, and two months ago the Financial Times raised expectations there was a deal in the air by reporting that BP was hoping to pay $15 billion to put the case behind it, while the DoJ was holding out for $25 billion.

    The window of opportunity for a deal before the November presidential election and ahead of a trial scheduled to start in January has narrowed since then, and now investors see the weight of uncertainty on the British oil company's share price sticking around for a long time to come.

    "The market was hoping that some sort agreement would be reached, either before the presidential elections or ahead of the trial," said Ivor Pether, a fund manager at Royal London Asset Management.

    "We don't know when or whether they will reach agreement, but the aggressive language in today's DOJ statement might well reduce the chances of a swift settlement."

    Related story

    In Isaac's wake, Gulf beaches stained with oil tar

    BP shares were down 4 percent on Wednesday morning after 39 pages of DoJ court papers homed in on a key well pressure test, saying the way it had been "so stunningly, blindingly botched in so many ways, by so many people, demonstrates gross negligence."

    Uncertainty over whether BP can continue to operate in Russia, and whether it can even exit its business there at a decent price, have combined with the oil spill wrangle to put BP's share valuation based on earnings at a discount to the sector in Europe, even though it is the second largest next to Royal Dutch/Shell .

    "While these (DoJ) accusations are not entirely new or surprising, they appear to be a firming of the DoJ language," said Credit Suisse analyst Kim Fustier in a note.

    "This suggests to us that a settlement acceptable to BP is not imminent, and lowers BP's chances of settling in the low end of the $15 (billion)-$25 billion range. Hence, if it cannot get to a satisfactory agreement we think it might be best for BP to continue to litigate, which would maintain the Macondo overhang for longer than we'd hoped. ... We believe a settlement or $20 billion or less would be a positive."

    Breakup talk revived
    Pressure for closure on the spill and in Russia is something chief executive Bob Dudley has become used to since he took over from Tony Hayward in the aftermath of the spill.

    And on Wednesday, one analyst revived suggestions that the company should be broken up to release underlying value on the business.

    "We reiterate that the best outcome for long-suffering BP shareholders, and indeed the only credible route to unlock our increased SoTP (sum-of-the-parts) value … is a demerger of remaining assets starting with the U.S.," said Investec analyst Stuart Joyner in a note.

    Joyner said that valuation would be more than 68 percent higher than BP's current share price, and suggests there could be $90 billion of hidden value in a stock valued at around $132 billion. Other analysts' calculations based on pre-Macondo comparisons with rival Shell have put total lost value at between $60 billion and $70 billion.

    "BP died when it failed to cap the Macondo spill in the first few days," said Joyner. "The CEO did a good job of saving BP from forced liquidation, but we do not believe he can revert to its pre-Macondo strategy." 

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  • Despite Supreme Court ruling, many minors may stay in prison for life

    By Suevon Lee
    ProPublica

    When Dennis Epps learned in June that the Supreme Court had struck down mandatory life without parole sentences for kids convicted of murder, he was hopeful. His brother, David, was given such a sentence for home burglary-murder committed at 16 and has spent most of his 48 years behind bars.

    "I was thinking he was going to get some kind of release, because he served 32 years on a life sentence," Epps told ProPublica.

    But Epps's brother is unlikely to be going anywhere soon. A few weeks after the ruling, Iowa Gov. Terry Branstad announced he would commute the life without parole sentences of 38 juvenile offenders, and make them eligible for parole after 60 years. David Epps would be in his mid-seventies when he could first be released.

    Under the Supreme Court's ruling, minors can still get life without parole sentences — just not automatically after a conviction; instead a judge will need to decide, taking into account the minor's youth.

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    For the roughly 2,500 juvenile offenders already sentenced to life in prison without parole, the upshot of the ruling — Miller v. Alabama — seemed clear: "They will all get another bite at the sentencing apple," Dan Filler, a professor at Drexel University's Earle Mack School of Law, wrote shortly after the ruling.

    That may not happen if Iowa's governor or many other states get their way.

    "Justice is a balance and these commutations ensure that justice is balanced with punishment for those vicious crimes and taking into account public safety," Gov. Branstad said in announcing his order.

    The governor's action, which sidesteps any potential resentencing hearings, has sparked criticism and legal challenges.

    Stephen Bright, director of the Southern Center for Human Rights in Atlanta who teaches at Yale Law School, called the governor's order "questionable legally and bad public policy."

    "The main point of the Miller decision — and the main concern of any sentencing — should be individualized sentencing based on factors about each human being," he said. "Obviously, nothing about any of the 38 individuals was taken into account, just as it was not when they were sentenced to life imprisonment without parole."

    Yet Filler, the Drake law professor who wrote about the ruling, said it actually leaves the details to states to iron out. "When you look at the decision closely, it implicitly leaves room for exactly what the governor of Iowa did," he told ProPublica. "It doesn't give us any guidance. You have to see this decision as entirely cloudy. Different states are going to try different things."

    Indeed, some states have suggested they don't plan on rolling back minors' life without parole sentences, pointing out the Supreme Court left unclear whether its ruling should be applied retroactively to minors already sentenced. (Twenty-six states currently have mandatory life without parole statutes for juveniles. Here's a list and a map showing where.)

    "It is the Attorney General's position that this rule does not apply retroactively," Alabama Solicitor General John C. Neiman Jr. told us. "Ultimately whether it will apply retroactively is going to be a question that will be litigated in, and decided by, the courts."

    The ruling
    In its June 25 decision, a 5-4 majority on the Supreme Court ordered an individualized approach to sentencing for juveniles convicted of murder to consider proportionality of punishment to the nature of the crime and offender's history.

    Sentencers are now required to "follow a certain process — considering an offender's youth and attendant circumstances — before imposing a particular penalty," wrote Justice Elena Kagan for the majority. Among the unique characteristics of youth cited were "immaturity, impetuosity, and failure to appreciate risks and consequences."

    While the opinion didn't impose a categorical ban on life without parole sentences for juveniles, it requires that authorities "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison."

    The decision follows in the steps of a recent line of Supreme Court cases stating that kids, by virtue of their youth and lack of fully matured brains, are different from adults and have greater capacity for rehabilitation. In 2005, the Court struck down the death penalty for those under 18. In 2010, it forbade life without parole for juveniles convicted of crimes that aren't murder.

    The patchy aftermath of the 2010 decision illustrates the challenges states have faced in implementing changes to their laws. Florida — which dispensed the lion's share of life without parole sentences to minors for non-homicides — is still grappling with how to address the ruling. Greater discretion in judges' hands has also led, in some cases, to 70- to 90-year sentences for minors — while not technically life, a comparable term of years.

    What's next?
    In the wake of Miller, some states around the country have already taken legislative action. North Carolina recently passed an amendment granting juvenile lifers parole review after 25 years. It also requires judges to consider such factors as age, immaturity, intellectual capacity, mental health history, and the influence of familial or peer pressure when imposing punishment.

    In Michigan, which boasts the second-highest number of juvenile lifers, criminal defense attorneys have begun mobilizing legal assistance for current inmates despite disagreement as to whether or not the court's decision is retroactive.

    In Pennsylvania, the state with the most number of juvenile offenders serving life without parole (444), the state Senate Judiciary Committee recently solicited testimony from various stakeholders to decide how to proceed. The issue of retroactivity there, too, remains uncertain.

    Iowa's recent executive order is not the first time a governor preemptively took action following a Supreme Court ruling: In 2005, Gov. Rick Perry of Texas commuted the death sentences of 28 juvenile offenders, changing them to life sentences with the possibility of parole after 40 years. Around the same time, he had also signed a mandatory life without parole statute for juveniles; Texas abolished the statute in 2009.

    If the Iowa governor's order stands, 38 juvenile offenders — including David Epps — will not be eligible for parole until they reach their mid-70s, about the normal life expectancy of Americans. But of course prison can prematurely age people. The National Institute of Corrections designates an elderly or aging prisoner as age 50 and older.

    Recidivism rates also decline the older a prisoner gets: In Iowa, statistics show these rates drop markedly once an inmate reaches age 45 and even more dramatically by the time he's 55.

    In light of the governor's action in Iowa, any hope Dennis Epps had of ever seeing his brother get out of prison was short-lived. The governor "might as well have left them serving a life sentence, because that's pretty much what that is," he said.

  • No, 'crackheads' aren't coming to get you

    Msnbc.com's Alex Johnson explains why sentences for crack cocaine will be closer to penalties for powder cocaine.

    By M. Alex Johnson
    NBC News

    No, thousands of "crackheads" aren't going to start flooding America's streets Tuesday.

    That's just one of several myths that have surrounded the U.S. Sentencing Commission's vote in June to make federal sentence reductions retroactive for current prisoners convicted of crack possession or use.

    What happens Tuesday is that some eligible federal prisoners who have petitioned for reduced sentences under rules Congress passed last year can begin being released. Those rules sought to address a disparity that meant crack offenders were given the same mandatory five-year minimum sentence as were offenders in possession of 100 times as much powder cocaine.

    Since the so-called 100:1 ratio was imposed in 1986 — shortly after the cocaine-related death of college basketball star Len Bias — it has come to be widely regarded as racially discriminatory. That's because the great majority of those convicted of crack possession are African-American — about 84 percent, according to Justice Department statistics. By contrast, African-Africans make up only about 30 percent of those convicted of possession of powder cocaine.

    In June, the Sentencing Commission voted unanimously to redress what it called the "fundamental unfairness" of the old law by allowing prisoners convicted before it was changed to seek to reduce their sentences to be in line. 

    The new policy applies only to those convicted in federal court — the tens of thousands of crack cocaine convicts in state prisons aren't affected. And it effectively applies only to those federal prisoners convicted after 2007, when the Sentencing Commission similarly allowed federal crack prisoners to seek retroactive reductions after a different adjustment of the guidelines.

    That's a narrow subsection, comprising prisoners convicted in federal court of crack possession since the last adjustment. The commission projects it covers about 12,000 inmates in 116 federal prisons across the country.

    Not all of those 12,000 prisoners will have their sentences reduced. For one thing, there's no way to know how many will actually seek reductions, particularly those who are near the ends of their sentences anyway. 

    And the reduction isn't automatic; prisoners must go before federal judges, allowing for potentially dangerous or violent offenders to be screened out. When the courts went through the same process three years ago, they rejected more than a third of petitioners. 

    The average reduction is projected to be about three years. Even with that reduction, the average sentence will still be about 10 years; that means many of those who win sentence reductions will still have several more years to serve.

    • U.S. Sentencing Commission statement on new guidelines (.pdf)

    All told, projections are that between 1,000 and 2,000 prisoners across the country will be eligible for immediate release when the policy takes effect Tuesday.

    History does tell us that at least some of them will re-offend. But if the 2008 release is any indication, it won't be because they were let out early.

    Source: U.S. Sentencing Commission, May 2011

    Federal statistics show no difference in recidivism between crack defendants who were released early under a 2007 program and those who finished their sentences.

    In May, the Sentencing Commission published its analysis of what happened to the approximately 16,000 prisoners who went free when their sentences were reduced after the earlier policy went into effect in March 2008. It compared their outcomes against those of a similar number of crack cocaine offenders who completed their sentences.

    Over the two-year period, 30 percent of the early releases were arrested again for a new crime, the statistics show.

    And what about the control group? More of them — 33 percent — were arrested again. 

    It's tempting to say the statistics show that early release makes crack offenders less likely to re-offend, but in fact the difference is within the statistical margin of error. What it does show is that there's no appreciable difference in recidivism between the two groups. (See chart above.)

    • Read the entire U.S. Sentencing Commission analysis (.pdf)

    (Regardless of whether they are released early or not, crack offenders are about half as likely to be arrested again as are federal criminal offenders overall, 59 percent of whom the Justice Department says are re-arrested within two years of release.)

    More reality check: The new policy doesn't, in fact, wipe out the disparity in cocaine sentencing. It's the result of a compromise as Congress debated the new sentencing guidelines last year. True, the crack possession-to-powder possession isn't a whopping 100:1 anymore. But it's still 18:1 — meaning you can have 18 times more powder cocaine than crack in your possession and still wind up with the same minimum sentence. 

    There's one last misperception, perhaps the biggest of them of all. It's the persistent belief that the 1986 law disproportionally cracking down on crack was passed because Len Bias died after a night of crack-fueled celebration over his having been picked second in the NBA draft. His death came at the peak of the 1980s concern over crack and its role in drug gang violence that drove homicide rates into the hundreds a year in several major cities.

    But Len Bias did not die from smoking crack cocaine.

    At their annual seminar on sentencing, federal prosecutors reported last year: "Ironically, Len Bias's death was later shown to have been from a powder cocaine overdose — not a crack cocaine overdose as initially believed."

    The paper is titled "Still Haunted by Len Bias." (.pdf)