August 1, 2009
Defending the prison cuts in the new California budget
Writing in the Sacremento Bee, Michael Vitiello has this new commentary, headlined "Prison budget cuts, done well, do no harm," praising the prison reforms in California's recently hammered out budget. Here is how the commentary starts:
Watching California's recent budget negotiations could make grown-ups cry. But one potentially healthy development is the proposal to reduce the prison budget by $1.2 billion.
Many scholars and nonpartisan observers have argued for several years that California's prison budget is bloated and that sensible policies could reduce expenditures without sacrificing public safety. Not everyone agrees. For example, when Republican Assemblyman Sam Blakeslee learned that the Democrats and the governor backed early prisoner release and creation of a sentencing commission, he accused the Democrats of "concocting a radioactive corrections bill that includes the worst of the worst – a sentencing commission and release of 27,000 prisoners." According to Blakeslee, "such policies would endanger the public and (are) unacceptable."
Attacks such as these may explain why many legislators have feared being accused of being soft on crime. Dating back at least to the Willie Horton ads during the 1988 presidential election, politicians have feared the "soft on crime" label. No matter how sensible a proposal, legislators wonder what will happen to their careers if a prisoner released on their watch commits a well-publicized crime.
So what are the realities about early prisoner release programs and sentencing commissions? While neither is a panacea, both offer realistic chances of reducing prison costs while maintaining public safety.
When Californians read about high recidivism rates for paroled prisoners, we can be forgiven for fearing early release programs. Our recidivism rates far exceed the national average. Elsewhere, prison and parole officials have developed far better systematic intervention programs, including better prisoner re-entry programs, which reduce recidivism rates. California is in an excellent position to benefit from similar programs.
California has an aging prison population, expensive to maintain and unlikely to re-offend upon release. Around the nation, far less "progressive" states have adopted early release programs for older prisoners based on a variety of actuarial factors and have avoided recidivism entirely in that population.
That is not surprising given a number of facts: Violent crime is a young man's game; by the time an offender reaches 30 years old, his violent conduct is on the decline. While that is not true for all offenders, data collection – like everywhere else in the computer age – has improved measurement of risk and protective factors, allowing accurate predictions about the probability of recidivism. Thus, a well-thought-out early release program could protect the public, while reducing prison costs.
Some recent related posts:
- Prison reforms and cuts left uncertain in final California budget deal
- Economic necessity finally forcing long-needed reform in California
- "State police chiefs' association backs prison plan in budget"
- "The Fiscal Crisis in Corrections: Rethinking Policies and Practices"
- Reviewing how tough times are resulting in prison releases
District judge rejects plea deal offered to crooked state judges
As detailed in this New York Times article, " a federal judge rejected the plea agreement of two former Pennsylvania county judges who pleaded guilty in February to a kickback scheme that involved sending juveniles to private detention facilities." Here are more details:
The ex-judges, Mark A. Ciavarella Jr. of the Luzerne County juvenile court and Michael T. Conahan of the Luzerne County Court of Common Pleas, pleaded guilty in February to wire fraud and income tax fraud for taking more than $2.6 million in kickbacks to send teenagers to two privately run youth detention centers.
In a highly critical order, issued Friday, Judge Edwin M. Kosik of Federal District Court in Scranton, Pa., said he based his decision on the comments and conduct of the two men after they entered guilty pleas to serve 87 months in prison....
Judge Kosik said the plea agreements were well below the sentencing guidelines. The men face a maximum penalty of 25 years, a fine of $250,000, a maximum term of supervised release of up to 5 years to be determined by the court, Judge Kosik said.
The full memorandum and order from Judge Kosik is available at this link.
Hot debate over whether DOJ is going soft on porn
At Politico, Josh Gerstein has this intriguing article, headlined "Porn prosecution fuels debate," which discusses a variety of issues concerning federal prosecution of obscenity crimes. Here is a snippet:
Social conservatives railed against the Clinton Administration for not prosecuting adult obscenity and were disappointed when few such cases were brought in the early years of the Bush Administration. Things perked up a bit in 2005 when Attorney General Alberto Gonzales set up an Obscenity Prosecution Task Force, which ultimately focused on prosecuting fetish, bestiality and so-called fringe porn.
Six months into the Obama Administration, the task force is still in business and is still headed by a former U.S. Attorney for Utah under President Ronald Reagan, Brent Ward....
Since Obama’s inauguration, prosecutors have pressed on with pending obscenity cases and accepted guilty pleas in one high-profile prosecution brought in Pittsburgh. However, there have been no announcements of new adult obscenity indictments, a trend that Justice Department officials declined to discuss, though they did note that federal prosecutions for child pornography have continued apace.
July 31, 2009
China saying it will use death penalty less
This AP article, headlined "China says death penalty to be used more sparingly," reports on a planned cut back on capital punishment from the world's leader in executions. Here are a few details:
The highest court in China, which executes more people than any other country, has called for the death penalty to be used less often and for only the most serious criminal cases, state media reported Wednesday. The remarks indicate that the Supreme People's Court, which reviews all death sentences from lower courts before they are carried out, could overturn more of them.
Rights group Amnesty International reported earlier this year that China put at least 1,718 people to death in 2008. The penalty is used even for nonviolent crimes such as corruption or tax evasion.
The court will revise legislation to cut down the number of death sentences and will stress commuting sentences to life in prison for some criminals who show good behavior, a senior director in charge at the court told the Legal Daily newspaper. "A policy of strictly controlling and being cautious to use the death penalty ... requires judicial departments to use as few death penalties as possible, meaning you don't kill those who you don't have to kill," the official was quoted as saying in an interview, a partial transcript of which was published on the Legal Daily Web site.
"Why it’s time to end the war on drugs"
The title of this post is the headline of this commentary by Matthew Engel from the Financial Times. Here is a snippet:
For decades many academics and professionals have regarded the current blanket prohibition on recreational drugs (though not alcohol or tobacco) as absurd, counter-productive and destructive. But there has never been any political imperative for change, and a thousand reasons to do nothing.
But 2009 has seen a change: among the academics and professionals who study this issue, from Carlisle Racecourse to the think-tanks of Washington, there is growing sense that reform is possible and increasingly urgent. The argument is not that drug use is A Good Thing. It is that the collateral damage caused by the so-called war on drugs has now reached catastrophic proportions. And even some politicians have started to think this might be worth discussing. The biggest single reason (as with so much else this year) is the Obama Effect. In one way, this may be short-lived since the president’s reputation will eventually be tarnished by reality. But the chief barrier to reform has been that the international agreements barring the drugs trade have been enforced primarily by threats of retaliation from the White House.
Obama is the third successive president believed to have used illegal drugs: Bill Clinton famously did not inhale; in a conversation that was secretly taped when he was governor of Texas, George W. Bush didn’t deny that he had smoked marijuana or used cocaine; Obama has admitted using both dope and “a little blow”. Unlike the other two, he is also on record as favouring decriminalisation of cannabis and more generally addressing the problem. The president having other preoccupations, there is no sign of him proposing the Do What The Hell You Like Bill to Congress any time soon. There is every sign that the blanket ban on other people’s initiatives has been partially lifted.
Obama has also come to power amid a growing sense of alarm about the US prison population. Nearly four million Americans are either physically in jail (including almost 5 per cent of all black males) or under some form of state or federal jurisdiction. About 20 per cent of these are listed as having committed drug offences. But this must be a gross underestimate of reality. I recently asked a British judge what percentage of the defendants in his court were there for drugs-related crimes: not just direct breaches of the drug laws, but also crimes committed by those whose behaviour was affected by drug use or who were trying to obtain money to buy them. He thought for a moment then said: “Sixty per cent. And most of the rest involve alcohol.” We may assume that, in the more drug-pervasive American culture, the figure would be higher than this.
Tenth Circuit reverses Nacchio's sentence while thoughtfully discussing federal fraud sentencing
Though a thoughtful ruling in a major case, the Tenth Circuit today has reversed the sentence imposed on former Qwest CEO Joe Nacchio following his conviction for insider trading. The unanimous panel opinion in US v. Nacchio, No. 07-1311 (10th Cir. July 31, 2009) (available here), is a must-read for everyone involved or interested in white-collar sentencing issues.
The full opinion runs 59 pages and has lots of notable quotes. Here is one of many sections (with important cites and footnotes left out) that should whet the appetite of sentencing fans:
Contrary to the district court’s net-profit approach, a disgorgement approach is entirely consonant with central principles of federal sentencing policy in that it endeavors to hold the defendant accountable for the portion of the increased value of the stock that is related to his or her criminally culpable conduct. Consequently, it militates against the creation of unwarranted sentencing disparities among similarly situated defendants.
Federal sentencing is individualized sentencing: the sentencing court seeks to craft a sentence that fully reflects a particular defendant’s criminally culpable conduct, including the harm caused by it, and the defendant’s personal circumstances....
However, if the impact of unrelated twists and turns of the market is ignored in the sentencing calculus then an insider trading defendant is likely to suffer a sentence that is detached from his or her individual criminal conduct and circumstances. And this detachment can have a profound, detrimental impact onanother objective of federal sentencing — the elimination of unwarranted disparities between similarly situated defendants.
Therefore, from a policy perspective, it makes sense to adopt a sentencing approach that is focused on a defendant’s criminally culpable conduct and has the effect of excising — even if not completely — unrelated market forces from the sentencing calculus, thereby narrowing the zone of unpredictability in sentencing. Such is the disgorgement approach we adopt here: it takes into consideration the fact that stocks have inherent value (quite apart from criminally fraudulent conduct) and seeks to exclude that unrelated value from the computation of a defendant’s punishment, and it sets a logical, temporal cutoff point for assessing the gain of the illegal conduct, i.e., the point when the information is disclosed and absorbed by the market.
As this excerpt spotlights, this big sentencing opinion from the Tenth Circuit in the Nacchio case covers matters of great interest and importance to both sentencing theorists and practicing corporate lawyers. And how often do I get to say that?
Recommended reading on race and criminal justice after the "beer summit"
In the wake of the so-called "beer summit" — which probably has gotten so much attention because everyone is tired of thinking hard about hard issues like health care reform — here is a piece from SSRN that everyone should check out. The piece by Ian Haney-Lopez is titled "Post-Racial Racism: Crime Control and Racial Stratification in the Age of Obama," and here is the abstract:
What does the 2008 election of Barack Obama to the United States presidency portend for race in America? This Essay uses the tremendous racial disparities in the American crime control system to assess race and racism as key features of contemporary society. The Essay begins by considering a compelling thesis that racialized mass incarceration stems from backlash to the civil rights movement. If true, this raises the possibility that Obama’s election, potentially marking the end of backlash politics, also represents a likely turning point in the war on crime.
The Essay then reconsiders mass imprisonment from the perspective of “racial stratification,” a structural theory that emphasizes the simultaneous formation of racial categories and the misallocation of resources between races. A stratification approach leaves one less sanguine about rapid change in American race relations, though without disparaging either the historic nature of Obama’s inauguration or the possibility of incremental improvements in racial justice. Reflecting the continued need to push for positive racial change, the Essay concludes by arguing morally and politically for a renewed focus on racism, in particular on “post-racial racism.”
July 30, 2009
"Mandatory Sentencing Guidelines by Any Other Name: When 'Indeterminate Structured Sentencing' Violates Blakely v. Washington"
The title of this post is the title of this new article available via SSRN by Bradley Hall. Here is the abstract:
While striking down Washington's mandatory sentencing guidelines scheme in Blakely v. Washington, the Supreme Court made clear that '[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment . . .’ and the judge exceeds his proper authority.' Conversely, the Court approved of sentencing schemes that do not employ mandatory sentencing guidelines based on judicial fact-finding, but instead vest judges with full sentencing authority at the moment of conviction, i.e., schemes in which judge-found facts are not 'essential to the punishment.'
The Court imprecisely referred to these unproblematic schemes, however, as 'indeterminate,' apparently borrowing from another characteristic common to the nonguideline sentencing schemes that were widespread prior to the 1980s: the idea that a defendant’s actual time in custody is not “determined” solely by the sentencing judge, but depends in part upon nonjudicial factors, typically an executive branch parole board.
A careful examination of its earlier precedents reveals that the Supreme Court has never been concerned with the existence of a parole board when it has used the term 'indeterminate.' Rather, the Court’s sole concern has been whether a sentencing scheme employs mandatory sentencing guidelines that narrow a judge’s sentencing discretion.
Buoyed by the Supreme Court’s acceptance of 'indeterminate sentencing' in an otherwise confusing post-Blakely landscape, but without the least bit of thought as to what the Court actually meant by the term, some state courts have found that any sentencing regime employing a parole board, and therefore meeting the dictionary definition of 'indeterminate,' withstands constitutional scrutiny. The Michigan and Pennsylvania courts have led the way. Those states employ what Steven Chanenson has aptly called 'Indeterminate Structured Sentencing' (ISS) schemes because they include both a parole component (they are 'indeterminate') and a sentencing guidelines component (they are 'structured').
In upholding these schemes, the state courts’ primary concern has been the 'indeterminate' side of this equation, but this Article argues that it is the form of the 'structure,' rather than the presence of a parole board, that governs the Blakely analysis. Specifically, when indeterminate (parolable) sentencing involves mandatory sentencing guidelines, as in Michigan, it runs afoul of Blakely. Although a sentence in Michigan takes the form of a parolable range, leaving an additional layer of discretion to a parole board, the range often increases in severity based on judge-found facts. Thus, judges are regularly required to 'inflict punishment that the jury’s verdict alone does not allow . . . .'
"Mentally ill struggle to meet sex registry regulations"
The title of this post is the headline of this sad article from The Tennessean. Here is how it starts:
Carlton Hunter consistently fails to register as a sex offender, and he has served nearly 500 days in jail over the past five years as punishment for that. Hunter, 45, was convicted in 1990 of two counts of attempted rape. He has racked up dozens of arrests since, almost all nonviolent misdemeanors: obstructing a passageway, public intoxication, possession of drug paraphernalia. And after he gets released on the minor charges, a new warrant inevitably is issued for his arrest when he fails to report it to the sex offender registry.
Hunter is homeless. He also is mildly mentally retarded and has paranoid schizophrenia. His attorneys say he has no family, nobody to watch over him, and he simply can't comprehend or comply with the rules of the sex offender registry.
The state agreed, granting Hunter an exception. He no longer will have to follow the rules of the registry. And though Hunter is an extreme case, some advocates are concerned that the law may need to be changed to deal with repeat offenders who lack the mental capacity to follow it. "In terms of understanding mental illness, it's inconceivable that anyone could meet the requirements if they're mentally incapacitated," said Ben Middleton, senior vice president of core services at Centerstone.
Though there's no way to track how many people on the sex offender registry have mental illness, an analysis of the database showed that 9 percent of the 1,300 offenders in Nashville list themselves as homeless. Roughly 50 percent of those homeless offenders have been arrested for violating the laws of the registry in Nashville, according to their court records. About 30 percent of homeless people have a severe mental illness, according to the National Alliance on Mental Illness.
House bill to end crack/powder disparity continues moving forward
This post at Jurist provides an effective review (with lots of links on the latest news on a bill to equalize federal sentences for crack and powder cocaine offenses. Here is the start of its report: "The US House Judiciary Committee voted 16-9 Wednesday to approve a bill that would eliminate sentencing disparities for powder and crack cocaine offenses. The bill, co-sponsored by committee chairman John Conyers (D-MI) would eliminate the distinction between the two forms of the drug under federal law."
Some innovative approaches to sentencing drunk drivers
At Grits for Breakfast, Scott Henson has this extended post on a new proposal being implemented in Harris County, Texas for dealing with drunk driving offenders. Here are the basics via Grits: "Bottom line, all first time DWI defendants will be offered two options: 30 days in jail or two-years on probation in a newly created (and poorly named) 'diversion' program, after which charges will be dismissed." This Houston Chronicle story highlights the negative buzz the proposal is getting from the defense bar:
Defense lawyers said the Harris County District Attorneys office's new DWI diversion program, set to begin Aug. 1, may be unworkable, and possibly illegal, after hearing the details Wednesday....
JoAnne Musick, president of the Harris County Criminal Lawyers Association, said the program is coercive and appears to thwart the intent of the Legislature, which prohibits deferred adjudication for DWI offenses.
"It could have been a good program. It could have been an exceptional opportunity for people who have made a mistake and driven when they shouldn't have,” Musick said. “At the same time, I think it's very poor planning and execution on how to conduct the program.” She said the plan is coercive because defendants have to waive their rights, sign a contract and plead guilty. She said defendants could be sent to jail at the smallest amount of evidence of a mistake or if they fail to fulfill every requirement.
Meanwhile, this story from USA Today, which is headlined "U.S. may require anti-DWI locks on vehicles," spotlights what strikes me as a more effective and sophisticated approach to sentencing first-offense drunk drivers:
A national campaign against first-time drunken-driving offenders is gaining ground as states and the federal government weigh mandatory use of devices requiring violators to prove their sobriety before their engines start. Three more states have enacted laws this year requiring all violators to install devices called alcohol ignition interlocks, bringing to 11 the number of states with such rules. The instrument blocks a vehicle engine from starting if it detects alcohol on the breath of drivers.
The current version of a federal transportation funding bill, which could be debated by Congress this fall, requires all 50 states to mandate the devices for anyone convicted of drunken driving or risk losing federal highway money. Today, 47 states and the District of Columbia have interlock ignition laws for at least some offenders. Alabama, South Dakota and Vermont have no such laws. They are installed in about 150,000 vehicles in the USA — a number that would approach 1 million if they were required for every convicted drunken driver.
Proponents of broader use of interlock systems — including MADD, the Insurance Institute for Highway Safety and the Governors Highway Safety Association — say they would save an additional 4,000-8,000 lives a year. They point to New Mexico, which was a perennial national leader in alcohol-related crashes in 2005 when it became the first state to require ignition interlocks for all convicted drunken drivers. The interlock law was part of a campaign that has spurred a 35% drop in drunken-driving deaths there.
Some related posts on sentencing drunk drivers:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- Is capital punishment for drunk driving morally required?
- More examples of undue leniency shown to repeat drunk drivers
Heller's impact on felon-in-possession crimes finally starting to generate attention
As regular readers know, I have been blogging about the possible impact of the Second Amendment on federal felon-in-possession crimes and sentencing since the Supreme Court first granted cert in Heller. Now, thanks to a terrific concurrence by Judge Tymkovich (discussed here) about Heller and the 922(g)(1) felon-in-possession law in US v. McCane, No. 08-6325 (10th Cir. July 28, 2009) (available here), this issue is finally starting to get some broader attention.
Specifically, in this post at SCOTUSblog, Lyle Denniston responds to Judge Tymkovich's opinion and asks "Did Heller say too much?". Similarly, in this post at The Volokh Conspiracy, Eugene Volokh comments thoughtfully on Judge Tymkovich's opinion. Here is hoping that other big bloggers and also the media start engaging with this issue more thoughtfully and dynamically.
Some related Second Amendment posts:
- Might Judge Sotomayor think the Second Amendment "deserves to be on equal footing with the First Amendment" for ex-cons?
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Even the Chief and Justice Scalia are content to damn gun possession with faint praise
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- Notable new Alaska appellate decision on denying gun rights to non-violent felons
- "Why Can’t Martha Stewart Have a Gun?"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
Should having multiple sclerosis be a viable defense to a local pot charge?
The question of this post is inspired by this commentary piece, which is headlined "Judge forgets to bring conscience to work, denies MS patient proper defense," and complains about a legal ruling from a state court in New Jersey. Here are the basics:
A New Jersey man with Multiple Sclerosis is being charged for growing his own medicine to treat his pain and muscle spasms. John Ray Wilson, of Franklin, New Jersey is facing the charge of operating a drug manufacturing facility for growing his own medicine, and the Judge is refusing to allow any mention of the man’s medical condition at trial.
A lot of people might ask why this man didn’t just go to the doctor and get medications. The answer, according to Wilson’s attorney, is simple. Wilson had no health insurance and could not afford to pay for the medications to treat his condition. This is what led Wilson to seek alternative remedies like bee venom and medical cannabis.
Now, none of this matters, because Judge Robert Reed is refusing Wilson to admit his medical condition as an excuse for growing his own medicine. The judge states his reason being New Jersey does not currently comprehend the use of marijuana for medicinal purposes. Apparently, they also don’t comprehend the fact that one’s ability to pay or afford his/her medical care has no impact on the reality that he/she is sick.
"Legitimizing Local Variations in the Federal Sentencing System"
The title of this post is the title of this effective new piece on SSRN. Here is the abstract:
This Essay attempts to provide an all-things-considered approach to justifying local sentencing variations in the federal system. Instead of trying to eliminate those disparities, this Essay contends that the federal sentencing system should embrace regional variations to increase the moral credibility of the system at the local level. To do this, it argues for the creation of regional sentencing commissions (one for each federal circuit), which would promulgate their own, regional sentencing guidelines. By premising each set of guidelines on Professor Paul H. Robinson’s distributive principle of empirical desert, which is informed by lay intuitions of justice, the federal system would be made to respond to community norms and conditions, thereby increasing local credibility.
July 29, 2009
Split DC Circuit says federal judges cannot increase a prison sentence for rehabilitative reasons
As detailed in this post from The BLT, the DC Circuit ruled yesterday that federal district judges "cannot use a greater likelihood of rehabilitation to justify a longer prison sentence for a criminal defendant." The ruling comes is In re: Sealed Case, No. 08-3029 (DC Cir. July 28, 2009) (available here), which starts this way:
Sentenced to eleven years in prison after pleading guilty to unlawful distribution of 2.1 grams of heroin, defendant appeals, arguing that the district court improperly sought to promote his rehabilitation through a longer term of imprisonment. Although defendant’s failure to object to the district court’s reasoning at sentencing limits us to plain error review, we agree that 18 U.S.C. § 3582(a) expressly prohibits sentencing courts from treating rehabilitation as a reason for imposing a longer term of imprisonment. In light of this clear statutory provision, and because this case also meets the remaining elements of the stringent plain error test, we vacate the sentence and remand for resentencing. Also, in accordance with our general practice and the government’s concession, we remand defendant’s additional claim that he received ineffective assistance of counsel.
As The BLT post notes, the "8th and 9th circuits have both determined that district judges can sentence a defendant to a longer prison sentence to promote rehabilitation. The 2nd and 3rd circuits say judges cannot increase a prison sentence for rehabilitative reasons."
Justice news of notes from The BLT
The Blog of Legal Times (aka The BLT) has lots and lots of recent posts of note (many of which should be of special interest for criminal justice fans):
- D.C. Circuit Bars Longer Sentences to Rehabilitate Prisoners
- 11th Circuit Nominee Questioned on Sentencing
- Federal Grand Jury Indicts Von Brunn in Holocaust Memorial Shooting
- Sotomayor Vote Likely Late Next Week
- Senate Must Move on Legal Nominees, Leahy Says
- Special Prosecutor in Stevens Case Given Subpoena Power
- Public Defenders: 'Systemic Failure' at DOJ Demands Censure
"The Fiscal Crisis in Corrections: Rethinking Policies and Practices"
The title of this post is the title of an important new report from the Vera Institute of Justice, which is available at this link. Here is Vera's description of its efforts:
States across the United States are facing the worst fiscal crisis in years. All but two states are dealing with budget deficits, and spending is being cut across the board. Second only to Medicaid, corrections has become the fastest growing general fund expenditure in the United States. Considered off limits for many years, corrections budgets are now subject to these same cuts. Based on a survey of enacted FY2010 state budgets and other recent sentencing and corrections legislation, this new report from Vera’s Center on Sentencing and Corrections found that at least 22 states have reversed the trend of recent decades and cut funding for corrections. This report examines the form of these cuts, including reductions in operational costs, reforms in release policy, and strategies for reducing recidivism, and it highlights some of the innovations that states are pursuing for long-term savings while also maintaining public safety.
"Neoliberal Penality: A Brief Genealogy"
The title of this post is the title of this new piece from Bernard Harcourt available here via SSRN. Anyone thinking a lot (or even a little) about modern mass incarceration ought to be reading all of Professor Harcourt's work, and here is the abstract from this new piece:
The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration — the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s — of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century. It is important, instead, to explore the arc of penality over a longer course: to relate recent developments to their earlier kin at the turn of the twentieth century.
What that larger perspective reveals is that the pattern of confinement and control in the past century has been facilitated by the emergence and gradual dominance of neoliberal penality. By neoliberal penality, I have in mind a form of rationality in which the penal sphere is pushed outside political economy and serves the function of a boundary: the penal sanction is marked off from the dominant logic of classical economics as the only space where order is legitimately enforced by the state. This essay traces a genealogy of neoliberal penality going back to the emergence and triumph of the idea of natural order in economic thought — back to the Physiocratic writings of François Quesnay and other economists during the 1760s. It is precisely their notion of natural order that metamorphosed, over time, into the modern idea of market efficiency that is at the heart of neoliberal penality.
July 28, 2009
Reviewing how tough times are resulting in prison releases
This new AP article, headlined "States target prisons for cuts, raising worries," provides a review of the many states being forced to make prison cuts in tough economic times. Here are snippets:
Nine states are considering closing prisons or cutting staff, according to the National Conference of State Legislatures, while others are shedding inmate education programs that researchers say are critical to reducing recidivism.
Kentucky has released more than 2,800 inmates early since last year by allowing prisoners to get more credit than normal for time served. More than 150 violent felons and two dozen sex offenders were initially set free because of a loophole that has since been closed....
And Michigan has thinned its prison population from more than 51,000 to about 47,500 through paroles and commutations and an expanded effort to keep parolees from committing new crimes. The goal is to get the number below 45,000 and close three state prisons and five prison camps to save $120 million. Gov. Jennifer Granholm's administration says only low-risk offenders are getting early parole.
The cost of running state lockups, including paying guards, offering drug treatment and running probation and parole programs, is among the biggest drains on state budgets, making them vulnerable when states face a cash crunch....
At the Stateville prison in Joliet, guard Ralph Portwood said some watchtowers already go unmanned because of cutbacks, and inmates are double-bunked almost throughout the prison. "Security has taken the back seat to the budget right now," Portwood said. "I know everyone's got a job to do. But remember, security should supersede everything."...
Several states are considering changing their systems of probation and parole by easing strict requirements that easily trip up newly released convicts. An expert panel convened by California officials said the state could save more than $800 million a year by not sending parolees back to jail for technical violations and making it easier for convicts to complete classes for early-release credit.
Ian Pulsifer, a policy specialist at the National Conference of State Legislatures, said states considering early release or easing parole and probation requirements are targeting nonviolent inmates — mostly drug offenders and those not accused of sex crimes. "States are looking at things to cut down corrections costs, but they're not going to be sacrificing public safety for the sake of saving money," he said.
Ohio Supreme Court blesses retoractive application of its response to Blakely
As detailed this official summary, the "Ohio Supreme Court on Tuesday upheld the constitutionality of a criminal sentencing decision it made in 2006, rebuffing the claims of a defendant who argued the ruling violated his rights to a jury trial and due process." The full ruling in Ohio v. Elmore, No. 2009-Ohio-3478 (Ohio July 28, 2009), is available at this link, and here is how the official summary starts:
The Supreme Court of Ohio ruled today that the resentencing of criminal offenders pursuant to the Court’s February 27, 2006 decision in State v. Foster for crimes committed before that date does not violate offenders’ Sixth Amendment right to a jury trial or their rights under the Ex Post Facto or Due Process clauses of the U.S. Constitution.
In a 7-0 decision authored by Justice Judith Ann Lanzinger, the Court also held that a trial court resentencing an offender pursuant to Foster is not required to impose the minimum prison term for each offense for which the defendant was convicted, and has discretion to order that sentences for multiple convictions be served either concurrently (at the same time) or consecutively (one after the other).
In this local article concerning the ruling, the defendant's lawyer indicates he is eager to appeal this ruling to the US Supreme Court:
Keith Yeazel, Elmore's attorney, said he will recommend to his client that he appeal the Ohio Supreme Court's decision to the U.S. Supreme Court. Yeazel said the U.S. Supreme Court has found that no more than the minimum sentence can be applied unless additional evidence is considered.
He also said Ohio law directs judges to issue concurrent sentences except under certain conditions."The Ohio Supreme Court has decided that they don't want to do what the Ohio General Assembly said they should do," Yeazel said.