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November 7, 2008

Aspirations and realism about drug sentencing reform

I have the honor of being in Boston today to participate in a terrific symposium hosted by the New England Journal on Criminal and Civil Confinement.  The symposium is called "High Crimes: Punishing America’s Drug Offenders," and details about the event can be found at this link

Among the topics I plan to discuss is what I hope and what I expect President Obama might do on the drug sentencing front. My views are informed in part by what now appears on the President-Elect's new transition website. Here are some comments from the website under a tab on Civil Rights:

The Problem...

Disparities Continue to Plague Criminal Justice System: African Americans and Hispanics are more than twice as likely as whites to be searched, arrested, or subdued with force when stopped by police. Disparities in drug sentencing laws, like the differential treatment of crack as opposed to powder cocaine, are unfair....

Barack Obama and Joe Biden's Plan...

Reduce Crime Recidivism by Providing Ex-Offender Support

Obama and Biden will provide job training, substance abuse and mental health counseling to ex-offenders, so that they are successfully re-integrated into society. Obama and Biden will also create a prison-to-work incentive program to improve ex-offender employment and job retention rates.

Eliminate Sentencing Disparities

Obama and Biden believe the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated.

Expand Use of Drug Courts

Obama and Biden will give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior.

I am hopeful that the new administration will do all this and a lot more on drug sentencing.  Realistically, I think a number of status quo biases and entrenched interests will make it much harder that anyone expects to bring real change I can believe in to this important area of crime and punishment.

November 7, 2008 at 08:33 AM | Permalink

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Comments

Wow! Double wow!

Posted by: Mark Osler | Nov 7, 2008 10:05:36 AM

I am hopeful that there will be moves toward legalization.

Posted by: | Nov 7, 2008 11:10:24 AM

While it does not deal specifically with drug offenders (as this post does), I think the comments of Mayor Booker (Newark, NJ) on MSNBC is noteworthy, especially in light of the "transition website" statement.

In response to a question about how/when Obama should pursue "ideological" issues Mayor Booker said the following:

BOOKER: Look-I was told that about one of the biggest problems in America right now, is that we are wasting blood and treasure in the prison industrial complex. And people told me this was a left issue, you can't talk about reducing the number of prisons or helping guys when they come back.

I'm now a mayor in a majority of African-American city that has a Manhattan Institute partnering with me on exit and re-entry (ph), because I didn't sell it as ideological, I sold it as an American issue, that we are wasting billions of dollars in the state of New Jersey, we're housing people. What if we do simple basic things to empower their lives? Not only do we lessen our prison population because of that, but we create taxpayers.

Transcript: http://www.msnbc.msn.com/id/27576148/
Video: http://www.youtube.com/watch?v=v8o6oKao5Y8 (the quoted comment comes at about the 7:50 mark in the 8:54 interview)

Posted by: DEJ | Nov 7, 2008 11:46:04 AM

Disparities Continue to Plague Criminal Justice System: African Americans and Hispanics are more than twice as likely as whites to be searched, arrested, or subdued with force when stopped by police.

Many of these incidents between police and minorities are avoidable altogether. One of the reasons why there are so many of these incidents have to do with expectations—the expectation for all people to behave according to the way WE think they should behave. Most of these negative and hostile encounters can be resolved by educating officers to be more sensitive to the cultures of others and learn to recognize that some people, even if they are Americans and White, have certain inabilities that may give the perception of being hostile, defiant, and disrespectful, even though that is not their intention.

For example, people with ADHD and/or MR are MORE likely than those without ADHD and/or MR to have encounters with police. What is the reason? The individual’s communication style and/or body language. Too often, we look for what we THINK is the obvious reason, race, ethnicity, gender, age, social status, etc… when really the officer is treating people based on the visual clues he has been trained to notice and attend to. It often is not RACE or ethnicity that dictates how an officer treats an individual but how the PERCEIVES the action of the individual he has just “hyper-focused” on. That look and/or move that tells him something may be up and to be on guard.

Eliminate Sentencing Disparities

One of the most effective ways to heal race relations and have all people feel as if they are being treated equally is to eliminate ALL real and/or perceived inequality in the system. Most men realize their wrong and the deserved punishment and NOT reoffend if he was sentenced exactly as the next man. One can appreciate how a man can continue to reoffend again and again after having been sentenced to a longer term than the next man who was fund to have committed the same crime under the same circumstances. He lives to get away with as many crimes as he can simply because he served a day, a week, a year, or an hour more than Citizen X.

successfully re-integrated into society. Obama and Biden will also create a prison-to-work incentive program to improve ex-offender employment and job retention rates.

Changing the goals of sentencing without changing current employment policies will not give us the results we want. We can teach ex-offenders how to build a mountain that waters the flowers upon it, but if we do not reduce the barriers in place to allow him to build that mountain, we do nothing. We can teach people all we want, but if we continue to have laws that forbid, for example, convicted drug offenders to build a mountain that waters the flowers upon it, we have done absolutely nothing. I hope that when Obama and Biden consider improvements in this area, that they find a way to hold parents accountable for financially supporting their children even if they are behind bars. Prisoners behind bars should fill the field jobs filled by illegal immigrants. That right there is change I can believe in.

”Obama and Biden will give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior.”

I hope they establish strict criteria for this in order to save money. I don’t see the point of sending every first time, non-violent offender to drug rehab if the person was caught with just enough weed for personal use. It’s another thing completely if the person was caught with meth for personal use. It’s obvious meth is more dangerous to the body than cannabis.

Posted by: Ange | Nov 7, 2008 7:05:19 PM

Ange

" Most men realize their wrong and the deserved punishment and not reoffend (sic) if he was sentenced exactly as the next man. One can appreciate how a man can reoffend again and again after having been sentenced to a longer term than the next man who committed the same crime under the same circumstances. He lives to get away with as many crimes as he can because he served ...more time than citizen X".

Wow! I don't know where to start. I hope you don't believe what you wrote because it is frightening. First and foremost, acceptance of responsibility is not dependent on a defendant getting a sentence he likes. It is a prerequisite for anyone who wants to change their behavior. Secondly, no two defendants, no two crimes, and no two judges are exactly alike. To rationalize and excuse new criminal activity based on some non-real world vision of a criminal justice system is inane.

Posted by: mjs | Nov 7, 2008 7:58:43 PM

Older Blacks in Iowa say that the Black disparity for Iowa prison inmates has been high for a very long time. I wondered how the racial disparity had changed because of the War On Drugs. I was able to find data on the percentage of Black Iowa prison inmates from 1978 to 2008 but after searching all of the obvious places I concluded that the older data had probably been discarded.

I then used 1950, 1960 and 1970 census data for Cedar County where the Anamosa prison is located and Lee County where the Fort Madison prison was located and several other counties with similar sized populations for comparison to obtain 12% as the lower limit to the percentage of Black prisoners with no discernible trend. I also interviewed two DOC staff members who had joined the staff prior to 1978. The mother of one of them was the Anamosa warden's daughter and his father was a prison staff member. While growing up he had been in the prison on visitors day and to attend athletic events once a week from about 1955 to 1970 when he also joined the staff. The two staff members did not think the racial disparity prior to 1978 was any different than the disparity after 1978. I think this is an important finding because the WOD was announced by President Nixon in his 1971 State of the Union Address.

From 1950 to 1978 the Black racial disparity was probably between 11 and 14 and from 1978 to 1994 it was between 12 and 13. The peak of 14 was in 1995 and the disparity decreased at a uniform rate to 9 in 2005 as Whites were incarcerated in large numbers because of the meth epidemic reducing the percentage of Black prisoners, another factor was the growth in the Black population. As the meth epidemic peaked and started to decline the Black disparity started to increase slowly reaching 10 in 2008.

Blacks first came to Iowa during and after the Civil War and for the most part they worked for railroads, coal mining companies and various manufacturing companies. Not many Blacks came to Iowa during the great migration from the Southern states instead they migrated to Iowa later when the meat packing industry was relocated in order to be close to the source of supply. Blacks are continuing to migrate to Iowa but the Black growth rate is half that of the Hispanics and the Hispanic population in Iowa is now larger than the Black population.

Crime like politics is local and I think it is very likely that the histories of the Black prison disparities will show large state-to-state variations. In any case it does not appear that the WOD had much to do with the Black disparity in Iowa prisons.

Age is a very important factor because the Whites in Iowa are older than the Backs and Hispanics. When age is taken into account the Black disparities are reduced about 30% for both genders, there is no racial disparity for Hispanic females and the male Hispanic disparity is about 2. Level of educational attainment is an important factor for Blacks and Hispanics (for Hispanics it is probably the dominant factor).

The racial disparities also depend on offense type/severity and prior criminal history as one would expect. I think one of the biggest barriers to reducing racial disparities is the practice of reducing a complex social-economic problem to a sound byte (mandatory minimum sentences for nonviolent first time drug offenders).

Posted by: John Neff | Nov 7, 2008 9:58:43 PM

Mjs, it is unfortunate that narrow-mindedness can be some people’s trademark. Justice is more than obeying codes lobbied by moral entrepreneurs. Cesare Beccaria’s Of Crimes and Punishment and John Rawls’ A Theory of Justice explains what I meant beautifully.

You are correct in saying that “acceptance of responsibility is not dependent on a defendant getting a sentence he likes.” However, individuals come to accept responsibility when they know that the system that has been designed to dispense punishment and mete justice is FAIR.

You are also correct and we know "no two defendants, no two crimes, and no two judges are exactly alike." The problem is NOT two judges sentencing an two different offenders differently. The problem is having the SAME judge, in the SAME court, on the SAME day, sentence two defendants who committed the SAME act, under the SAME conditions, with the SAME criminal record DIFFERENTLY.

And no, no one is attempting to "rationalize and excuse new criminal activity based on some non-real world vision of a criminal justice system." You see, in order to come up with a plan to effectuate change, there must be an UNDERSTANDING of why people do what they do, and a reasonable amount of PREDICTION that under certain circumstances people will act a certain way and NOT act a certain way under certain circumstances. The social sciences is all about being able to PREDICT behavior and having a plan to correct improper behavior and reward GOOD behavior--basis psych 101. Understanding people who commit illegal acts is NOT an attempt to rationalize and/or EXCUSE criminal behavior. Moral philosophy is a beautiful subject. I think you might enjoy it once you get a taste of it.

It is disappointing that instead of becoming a nation that encourages its people to gain greater knowledge in their area and related areas of interest, as a so-called educated society we are stuck in specializing and narrowing domain knowledge in not only our area of interest, but also those areas that connect with that area.

I hope some day law schools teach law students the SYMBIOTIC relationship between law and society and how without this kind of relationship, neither is “nuffin.’” And that by not acknowledging the relationship and shaping laws and policies in consideration of this relationship we shall continue to increase our prison population and continue to waste money on a broken system.

Here’s to keeping hope alive. Because I want you to get the very best legal education, I have decided to bring knowledge right at your fingertips. Here is an online copy of Beccaria’s Of Crimes and Punishment for your review. Click on Chapter 06 Of the Proportion between Crimes and Punishments. so you can understand FULLY what I said and meant.
http://www.constitution.org/cb/crim_pun.htm

John Rawls
http://www.wku.edu/~jan.garrett/ethics/matrawls.htm ;)

Rousseau
http://www.constitution.org/jjr/socon.htm
http://www.constitution.org/jjr/ineq.htm

Posted by: Ange | Nov 8, 2008 2:41:36 PM

the drug court thing dosent work very well I have sat in on it and have taken notes for a year and I would say that about 20 % of 100 come out ok the only thing that drug court does is to creat more ways for the courts to get more money for the county and state and to keep the courts filled up with non violent crimes (like someone with a couple of joints the whole year I sat in the drug court and watched and listened to the people there from all walks and how they came up with a new drug that would not show up on the test and they would be high while taking the test and they hyad te judge so fooled

Posted by: diana | Nov 13, 2008 11:04:14 PM

hi
This is Parker i want to say some thing about this blog i think it is about participating in terrific symposium we can gain a lot of information in this i thank for that
===========================
Parker

http://www.addictionlink.org/drug-rehab-center/iowa

Posted by: peter | Nov 22, 2008 12:35:24 AM

I'm not sure what is going to change in the Obama admin, but I too feel that drug courts are not working

Posted by: Orange County Drug Rehab | Feb 26, 2009 4:44:01 PM

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