January 27, 2009
New (award-winnning) ABA Journal essay on the problems of mass incarceration
I am pleased to learn and to report that this new essay about the problems of mass incarceration appears in the February 2009 ABA Journal after having been "selected by the ABA JournalBoard of Editors as the winner of the 2009 Ross Essay Contest." The essay is by Ben Trachtenberg, and it titled "Incarceration Policy Strikes Out: Exploding prison population compromises the U.S. justice system." Here are a few excerpts:
At midyear 2007, U.S. prisons and jails held 2,299,116 inmates, meaning more than 1 percent of American adults were incarcerated. We top the world in per capita imprisonment, increasing our lead every year. Since 2000, while the total U.S. population increased by 7 percent, our prison population has grown by 19 percent. Our massive imprisonment costs needless billions and, perversely, hinders effective crime control. We need to reduce our prison population....
A rational criminal justice system would — while shortening sentences of certain offenders — keep others out of prison altogether. With alternative treatments and punishments, a state shrinks its prison budget, allows convicts to keep their jobs and support their families, and makes recidivism less likely....
By adopting “smart on crime” programs instead of knee-jerk toughness, states can reduce crime while spending less. Reworked federal incentives would encourage smart state policymaking. While no one supports freeing rapists and murderers, warehousing every offender wastes money, destroys lives and contributes to our shameful status as the world’s leading incarcerator. We need Washington to reward good policy, not costly grandstanding that bankrupts our state governments and confines more than one of every 100 American adults.
Notable (and cert-worthy?) Pennsylvania Supreme Court decision on application of Atkins
This post at How Appealing alerts me to a recent ruling from Pennsylvania that providing a fitting follow-up to this recently-noted law review article discussing the challenges that lower courts are having implementing Atkins, the Supreme Court's 2002 Eighth Amendment ruling barring the execution of mentally retarded defendants. This new article on the ruling in The Legal Intelligencer details the basics:
In a decision that may prove to be a lightning rod in the debate over Pennsylvania's use of the death penalty, the state Supreme Court has ruled that any criminal defendant with mental impairments, short of being legally defined as "mentally retarded," can be executed for capital offenses. A dissenting justice accused the majority of being "draconian" and warned the ruling might lead to putting mentally retarded people to death.
The justices in the 5-2 decision in Commonwealth v. Vandivner ruled that those seeking waiver of the death penalty must show records noting a defendant's mental illness began before his or her 18th birthday -- a decision Justice Max Baer labeled as problematic for certain defendants.
"To say this is troubling is an understatement," Baer wrote in his concurring and dissenting opinion. "Many defendants, such as appellant, were not afforded the specialized expert attention, IQ tests, or adaptive assessments memorialized in school records, required by the majority to corroborate their claim of mental retardation."
As some readers may know, states have implemented Atkins in a variety of ways (which was to be expected when the Supreme Court in Atkins expressly left it to the states to administer is broad and vague holding). Assuming cert in sought in this case, the fact that death row defendant Vandivner here had the burden to prove his retardation and the fact that this burden was applied quite stringently could draw the Justices' attention. Or, if the Supreme Court ends up doing something notable in the capital cases of Bobby v. Bies (08-598) it took up a few weeks ago (details here), there might be some GVR juice in Vandivner.
Some related posts:
- The challenges of implementing Atkins
- The death penalty and mental illness
- How many have sought off death row using Atkins?
- California Supreme Court opinion implementing Atkins
- Oklahoma court develops Atkins procedures
Some mid-Term SCOTUS reflections and predictions
As noted here at SCOTUSblog, the Justices have now started another long recess. I suppose they deserve some time off after the flurry of SCOTUS action (much of it involving criminal justice topics) in recent weeks, though the Justices surely have the kindest work schedule of any top government actors inside the Beltway. (I am, of course, jealous because I would love four weeks away from snowy Ohio this time of year.)
The break seem like a good time to take stock of the Term so far and to start making predictions for the SCOTUS months ahead. And, with all the other DC transitions afoot, perhaps folks would also like to comment more broadly on the overall work of the Roberts Court and on its likely future. Here are a few of my own reflections and predictions, with my usual focus on criminal justice and sentencing issues.
First, though the Court is keeping busy, the Court has neither decided nor has on the docket any obvious blockbusters. And, in light of all the blockbusters last Term (Heller, Baze, Boudemine, Gall and Kimbrough), the lower profile is perhaps intentional and probably should be welcomed.
Second, the Court continues to show interest is lots of criminal justice issues, including lots of sentencing matters. Though not involving blockbuster concerns, cleaning up circuit splits and some error-correction in various criminal settings remains a priority for this Court. Notably, the Court seems able to issue opinions in criminal justice cases more quickly than in other areas, perhaps in part because the "smaller" cases the Court is now taking do not prompt multiple opinions (and can often be resolved unanimously).
Third, as evidenced by the recent summary reversals in Spears and Nelson (discussed here), as well as the consequential ACCA ruling in Chambers (discussed here), sentencing issues still will often get more defendant-friendly treatment in the Supreme Court than in just about any other appellate court. However, as the Ice ruling limiting Apprendi shows, even some purportedly liberal justices do not find all defense sentencing claims compelling. And, as other rulings document, criminal defendants raising non-sentencing issues still fare much better in the Ninth Circuit and some other lower courts than in front of the Justices.
Fourth, the new President and his Administration's legal team surely could and likely will quickly shift the nature and context of some on-going constitutional debates. Most obviously, with the closing of GITMO, the Justices won't have to save space and energy for all the detainee issues that helped keep them busy over the last five years. In turn, I suspect the Second Amendment will soon become a key battleground for constitutional controversy over who gets to make decision about how best to balance liberty and security. (I note here the Court has not yet resolved this Term's one Second Amendment sleeper case Hayes, which concerns a federal prohibition on gun possession by those convicted of a misdemeanor crime of domestic violence.)
Fifth, the Justices should have no problem continuing to find sentencing issues to ponder in the months and years ahead. At some point it will have to take up a post-Booker acquitted conduct case, and there are plenty of small and large post-Bookercircuits splits that need the Court's input. In addition, all the federal and state sex offender legislation, not to mention a host of technocorrection innovations, should keep the cert pool full of cert-worthy goodies.
"Sex Offenders' GPS Devices Not a Silver Bullet, States Say"
The title of this post is the title of this intriguing article from the site Government Technology. Here are excerpts from the start of a piece that is a must-read for anyone hoping (or fearing) that GPS tracking is the future of corrections:
GPS monitoring -- embraced as a simple technological solution for tracking the whereabouts of convicted sex offenders -- is proving to be something less than a silver bullet for state and local public safety agencies.
Convinced that GPS monitoring was the answer to the sex offender problem, judges and lawmakers began mandating the technology for high-profile parolees. Beginning in 2005, the technology was widely deployed as means to ensure that offenders complied with the terms of their release, such as staying a safe distance from schools or a victim's home.
Monitoring systems typically consist of a GPS receiver/portable tracking device, radio frequency transmitter, stationary charging unit, cellular telephone and computer software to review GPS data. The devices allow officials to track the parolees' whereabouts -- when everything works properly and when offender cooperates.
But there are problems with the way the technology is used and monitored. False alarms number in the thousands in some jurisdictions, straining manpower and casting doubt on the viability of GPS as a tracking tool for high-profile felons.
In Arizona, a 2007 legislative study found more than 35,000 false alerts by 140 subjects wearing the GPS-monitoring devices. In California, the percentage of transient parolees, those who've been declared homeless, has increased by 900 percent since a law was passed that included GPS as part of the solution. Now, officials say, they're guessing about where the offenders are because more have become transient and the GPS monitoring can be unreliable, especially when the offenders lack real housing where they can charge the devices....
Though public safety officials typically agree that GPS is a valuable tool, they say it's not a replacement for personal contact with the subject, his co-workers, family and friends that keeps the offender honest.
Some related posts on GPS tracking and related technocorrections:
- Is the future parole with GPS and other techno-reentry devices?
- The inevitability of GPS tracking and cost-saving technocorrections
- Another reason to believe GPS technocorrections are inevitable
- Why tight budget times will speed path to technocorrections
- Are microchip implants for offenders inevitable?
- UK getting serious about GPS through microchip implants
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- The devil's in the details of GPS tracking of sex offenders
- More on the pros and cons of GPS tracking
- New article examining incapacitation innovations
January 26, 2009
The challenges of implementing Atkins
I just noticed on SSRN this new paper on how well (or should I say how poorly) lower courts are implementing the Eighth Amendment capital ruling barring the execution of mentally retarded defendants. The piece is titled "Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases", and here is the abstract:
Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical definitions. These state deviations have the effect of excluding from Atkins's reach some individuals who plainly fall within the class it protects. This article focuses on the cases of Roger Cherry, Jeffrey Williams, Michael Stallings and others, who represent an ever-growing number of individuals inappropriately excluded from Atkins. Left unaddressed, the state deviations discussed herein permit what Atkins does not: the death-sentencing and execution of some capital defendants who have mental retardation.
Though Booker did not help Booker, the reduced crack guidelines did
The significance of the US Sentencing Commission's decision to make its reduced crack guidelines retroactive has been usefully highlighted by a ruling today in favor of a defendant with a well-known name: Freddie Booker. As sentencing fans recall, though Booker won his Supreme Court case, he was sentencing again to the same 360-month term imprisonment at resentencing because the Booker remedy authorized sentence-enhancing judicial fact-finding as long as the guidelines were treated as advisory. But today, as reported here via an e-mail from a federal defender, Freddie finally go a sentencing break:
Although meager, and way too late, I am pleased to report that Freddie Joe Booker finally got at least a small amount of relief. Chief Judge Crabb in the Western District of Wisconsin today granted Freddie Booker's 3582 motion and reduced his 360-month sentence to 324 months (bottom of range two levels lower).
January 26, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (3) | TrackBack
Sixth Circuit issues first Spears remand
The per curiam ruling by the Supreme Court last week in Spears (basics here) stressed that it acted via summary reversal because of the need to "promptly remove from the [jurisprudential] menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible" in light of the teachings of Kimbrough. Today, the Sixth Circuit has the distinct honor of being the first lower court to serve up a Spears remand through US v. Johnson, No. 07-2447 (6th Cir. Jan. 26, 2009) (available here):
In light of the Supreme Court’s recent decision in Spears v. United States, — S. Ct. —, No. 08-5721, 2009 WL 129044 (Jan. 21, 2009), we VACATE Johnson’s sentence and REMAND for resentencing. Spears held that district courts have the power to categorically reject and vary from the crack-cocaine sentencing guidelines based on a policy disagreement with the guidelines, even in a mine-run case such as this. Because the district court sentenced Johnson without the benefit of Spears, we remand for resentencing to give the district court an opportunity to impose a sentence with full recognition of its authority to reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines.
Disappointingly, Sixth Circuit Judge Cook was not on the panel, so I can take the culinary metaphors just so far with this first ruling. Mangia!
Recent related posts:
- Lots of criminal justice action from SCOTUS, including a sentencing per curiam
- Dueling with Spears (aka digesting Spears)
- An insider's reaction to the SCOTUS summary reversal in Spears
- Effective review of Spears ruling
New opinion from Judge Adelman explaining why drug guidelines merit less respect under 3553(a)
I just received a short but still important new sentencing decision from US District Judge Lynn Adelman. Judge Adelman imposes a below-guideline sentence in US v. Thomas, No. 08-CR-238 (E.D. Wisc. Jan. 24, 2009) (available for download below), based on part on the conclusion that the powder cocaine drug trafficking guideline is entitled to less respect because it is not based on an "empirical approach" or study and expertise from the US Sentencing Commission. Here is a key paragraph from the opinion in Thomas:
As indicated above, the guidelines recommended that defendant served 27-33 months in prison. In considering this recommendation, I noted that the Sentencing Commission “departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes.” Gall, 128 S. Ct. at 594 n.2. The Commission did not at the time of adoption explain how this scheme furthered the purposes of sentencing or otherwise justify the recommended sentences by reference to past practice or other research or study, and sentences in drug cases have since increased far above pre-guideline practice. See U.S. Sentencing Commission, Fifteen Years of Guideline Sentencing 48-49, 53 (2004). Such guidelines, which do not take account of empirical data and national experience, and do not exemplify the Commission’s exercise of its characteristic institutional role, are generally entitled to less respect. See Kimbrough, 128 S. Ct. at 575.
One Texas execution stayed, two more still scheduled for this week
This new AP story provides the latest execution news and notes coming from Texas this week:
A federal appeals court on Monday stopped this week's scheduled execution of a man condemned for abducting, raping and strangling a 19-year-old suburban Houston woman 10 years ago. Larry Swearingen, 37, faced lethal injection Tuesday evening for the death of Melissa Trotter, whose body was found Jan. 2, 1999, in the Sam Houston National Forest south of Huntsville. The discovery came 25 days after she was last seen leaving the library at Montgomery College near Conroe.
The 5th U.S. Circuit Court of Appeals reprieve came in response to questions from Swearingen's attorneys about the timing of Trotter's death. Swearingen insisted he couldn't have killed the woman because he was in jail for outstanding traffic warrants when newly evaluated forensic evidence indicates her body was dumped in the woods not far from his home....
Swearingen would have been the fourth condemned prisoner executed this year. Two more executions are scheduled later this week in the nation's most active death penalty state....
On Wednesday, Virgil Martinez, 40, is set to die for a 1996 shooting rampage that left four people dead, including his ex-girlfriend and her 3- and 6-year-old children. On Thursday, Ricardo Ortiz, 46, was scheduled for execution for fatally injecting a fellow inmate with heroin in 1999 at the El Paso County Jail to stop the victim from testifying against him in a robbery case.
When will President Obama start acting like President Lincoln when it comes to the clemency power?
This CNN reporthighlights that President Obama is already moving fast during his second work week, having already "signed a memorandum Monday requiring the Environmental Protection Agency to reconsider an application by California to set more stringent auto emissions and fuel efficiency." In addition, as detailed at this official page, President Obama has already acted on abortion issues, ethics issues and GITMO/terror war issues. In light of all this activity, I think it is now no longer too soon to start complaining about the new President's failure to start using his clemency power.
As noted hereby PS Ruckman, President Lincoln was proactive in his use of the clemency power, and there is every reasons for the new President to consider following his lead:
Despite the fact that he was riding thin electoral support and had a Civil War on his hands, Abraham Lincoln took the time and, to some extent, the political risk, to grant pardons to almost 400 individuals in just over four years [which is] more than both George H. W. Bush and George W. Bush combined granted in a full twelve years....
Because President Lincoln frequently provided multiple explanations for his clemency decisions, we know that he considered a wide range of factors in granting these pardons but especially: good behavior during confinement, a penitent disposition, first time offenses and the youth of offenders. Scholars have noted Lincoln "thrived on the hope that each request he granted further educated a portion of the public as to the necessity of a clemency power in the justice system." With hundreds of thousands of Americans in our prisons, and thousands of applications for clemency piled up in the Department of Justice, we believe the Nation is long over-due for this side of Abraham Lincoln to re-emerge in the White House.
Even a poor math student can figure out that granting 400 pardons in four years work out to an average of 1 or 2 clemency grants each and every week. FDR, another famed President often mentioned these day, granted, on average, more than 5 clemencies per week throughout all his years in the White House. So, if President Obama really wants to follow in wise presidential footsteps, he ought to get moving on clemencies ASAP.
Some recent related posts:
- Is it too early to start demanding President Obama use his clemency power?
- Commentary on how celebrity status effects clemency commitments
- Inaugural rhetoric about freedom and liberty in prison nation
- Are the Border Agents the only federal offenders for whom President Bush feels compassion?
- A request for a commutation for Weldon Angelos
- What might 2009 have in store for . . . executive clemency?
- What do "our ideals" say about mass incarceration or LWOP for juves or acquitted conduct or the death penalty or GPS tracking or....
Nelson's key language and the SCOTUS spirit: guidelines are really, truly advisory
For the second week in a row, the Supreme Court has issued a little per curiam opinion to make sure, yet again, that lower courts really, truly understand that the Booker remedy means that the guidelines really, truly are advisory. Today's opinion, in Nelson v. US, No. 08-5657 (S. Ct. Jan. 26, 2009) (available here), includes this key language (cites edited):
Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable. In Rita we said as much, in fairly explicit terms: “We repeat that the presumption before us is an appellate court presumption. . . . [T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.” 551 U. S., at 351. And in Gall we reiterated that district judges, in considering how the various statutory sentencing factors apply to an individual defendant, “may not presume that the Guidelines range is reasonable.” Id..
In this case, the Court of Appeals quoted the above language from Rita but affirmed the sentence anyway after finding that the District Judge did not treat the Guidelines as mandatory. That is true, but beside the point. The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable. We think it plain from the comments of the sentencing judge that he did apply a presumption of reasonableness to Nelson’s Guidelines range. Under our recent precedents, that constitutes error.
One might initially view this decision as just an example of the Justices making sure that the Fourth Circuit takes prior decisions to heart. But the fact that Justice Breyer (with Justice Alito) concurred separately to assert that the Court should have just done a GVR rather than a summary reversal suggests to me that a lot more is afoot.
Specifically, with Gall and Kimbrough and now Spears and Nelson, I sense that the Justices (perhaps save Justices Breyer and Alito) are persistently troubled by how prominent the federal sentencing guidelines remain in both district and circuit sentencing decision-making. Through Spears and now Nelson, the Justices have made extra efforts to say to lower courts that they need not, perhaps even should not, keep gravitating toward the guidelines. Though one would have hoped this message came through loud and clear through the rulings in Gall and Kimbrough, it is important to see the Justices willingness to keep smacking down the circuits that seem so unwilling to get with the full 3553(a) post-Booker program.
Lots more notable criminal justice action from the Supreme Court, including another summary reversal
The Supreme Court issued a whole bunch of opinions and granted cert on three new cases today, and there is lots of criminal action in this flurry of activity. To get effective summaries and links of all the action, readers should go SCOTUSblog, of course. I hope to get a chance to blog about some of these developments later today.
But sentencing fans will want to start by checking out another notable summary reversal on a Booker-based sentencing appeal, this time in Nelson v. US, No. 08-5657 (S. Ct. Jan. 26, 2009) (available here). Nelson is not quite as big a deal as last week's Spears decision because in Nelson the Solicitor General's office admitted error. Nevertheless, as I will highlight in a subsequent post, there is still some useful language in Nelson for other appealing within-guideline sentences.
Recent related posts:
- Lots of criminal justice action from SCOTUS, including a sentencing per curiam
- Dueling with Spears (aka digesting Spears)
- An insider's reaction to the SCOTUS summary reversal in Spears
- Effective review of Spears ruling
Another local article showing relative ease of implementing crack reductions
This effective local article, headlined "Q-C crack cocaine sentences reduced," provides yet another example of how effectively and efficiently lower courts have been implementing the reduced crack sentences that the Sentencing Commission made retroactive. Here are snippets:
After playing football for the Iowa Hawkeyes, Ernest Crank turned to dealing crack cocaine. The amount of crack he dealt landed Crank, a native of Chicago, in a federal courtroom in Davenport and then in federal prison for 20 years. Crank has learned much during time so far in prison, court documents say.
“He has taken advantage of every program made available to him,” his attorney, Clemens Erdahl, wrote in a motion to reduce Crank’s sentence. “His self-education in the law … is evidence of an excellent mind and the ability to channel his time and energy productively. Thus, defendant is a better man than the one who was incarcerated over nine years ago.”
But what Crank has come to know during his prison time has little to do with the four-year reduction in sentence he received. Instead, his request is one of thousands filed nationally as federal officials reduced the amount of time people spend in prison for dealing the highly addictive drug that affects the black community more than any other....
For the most part, the process has gone smoothly in the two federal courthouses that serve the Quad-Cities, officials said. Prosecutors and defense attorneys worked with probation officers to sift through applications to determine who was eligible and who was not. People with mandatory sentences and career offender status were out. A few people convicted of other types of crime attempted to ask for reductions, too.
In the Central District of Illinois, of which the Illinois Quad-Cities is a part, 307 cases were considered as of the beginning of December, according to the U.S. Sentencing Commission. Of those 139 were granted, and 168 were denied. The average decrease was 28 months.
Jeff Lang, assistant U.S. attorney, said the process was smooth for the most part. Prosecutors examined cases to determine if a person would present a substantial public safety risk if released...
In the Southern District of Iowa, which includes the Iowa Quad-Cities, 144 cases were considered as of December, according to the U.S. Sentencing Commission. Eighty were granted; 64 were denied. The average reduction was 27 months.
January 26, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
January 25, 2009
"Racial Disproportionality in the American Prison Population"
The title of this post is the start of the title of this article from the Fall 2008 issue of the Justice Policy Journal. Especially after a week in which many are eager to assert we have entered a new era when it comes to racial issues and justice issues, the article provide an important reminder of some critical criminal justice reality. As I have mentioned throughout the week, President Obama's Inaugural Address was inspirational when discussing "that noble idea passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness." But, as the JPJ article highlights, the US now denies freedom through incarceration quite unequally. Here is the start of the article's abstract:
Statistics indicate that racial/ethnic minorities, particularly black and Hispanic males, face a disproportionately high risk of incarceration in the United States. We argue that this is the most serious issue facing contemporary criminal justice policymakers. This determination is made by assessing the negative impact that incarceration can have on individuals, their communities, and the integration of minorities into the nation’s larger social, economic, and political landscape.
Should the GITMO prisoners go to Alcatraz?
Not surprisingly, the President's order to close GITMO has everyone talking about where the prisoners now held there will be sent. This Denver Post article, for example, reports on buzz already surrounding the the possibility that the GITMO detainees might be sent to the federal supermax prison in Florence, Colorado.
I think there is a pretty good chance that at least some of the GITMO detainees will end up in a federal supermax prison. But I was joyfully gobsmacked when on NBC’s “Meet the Press” this morning House Minority Leader John Boehner suggested we send them to Alcatraz.
As revealed in this official website, right now Alcatraz Island is a national park. But as detailed in official and unofficial websites, the colorful and dynamic history of Alcatraz (not to mention its secure location) makes it perhaps the most fitting locale for the next chapter of the war on terror.
Details of the prison economy problems from the Granite State
Local papers this Sunday are filled with local prison economy stories. In addition to these pieces from West Virginia, today also brings from the Concord Monitor this article, headlined "In crisis, changes for prisons: Budget challenge may reshape corrections." Here is a snippet, which includes details of the state's interesting back-end sentencing mechanism and cost calculations:
The state's corrections budget is one of the biggest and one of the hardest to cut because Commissioner William Wrenn can't simply close his prisons and send inmates home. But many think this economic crisis might be the state's best chance to find cheaper, better ways to do its prison business.
"There is nothing like lean times to make you smart," said former speaker of the New Hampshire House Donna Sytek, who saw lawmakers through a similarly severe downturn in the 1990s....
"It's not about being tough on crime or soft on crime," Wrenn said. "We are facing a huge economic challenge here. Are we doing the right thing?"
Inside the prison, Wrenn had reinstated a past practice of allowing well-behaved, successful inmates to request early release before they'd otherwise be able to do so through the courts. Inmates can petition Wrenn and a review board to recommend them for a sentence modification; if the board approves the request, it sends the petition onto the sentencing judge for a final decision.
But Wrenn isn't expecting the revived practice to be a big money-saver for the state because in the one month the policy has been in place, nine inmates have submitted petitions and the review board hasn't approved any for submission to a judge. Wrenn said his real hope is that the opportunity to win a sentence modification will persuade inmates to more actively pursue education and counseling while in prison to enhance their chances of early release.
What Wrenn is most passionate about may be the hardest of the solutions to pull off: alternative sentencing for defendants who suffer mental illness or substance abuse addiction. He and a lot of others believe that if that population could be supervised and treated in their own communities and not housed in prison cells, the benefits would be many and not only monetary.
Inmates cost the state not only the $32,000 a year for basic incarceration, but also thousands in medical bills because the state is obligated to cover medical expenses when inmates are behind bars. Inmates supervised on the outside, however, are eligible for private insurance or Medicaid, which means savings for the state.
It's also far cheaper to pay a probation officer to supervise an inmate in an intense alternative program than to house someone inside a prison. In a recent study, The New Hampshire Center for Public Policy Studies compared that cost by looking at a year inside prison against a year in Strafford County's Drug Court, an intensive supervision and treatment program that lets inmates live at home. The difference was staggering: $32,000 a year in prison versus about $11,400 a year in the Strafford County's alternative program.
Potent scholarship about reasonableness review and sentence explanations
The University of Chicago Law Review has published this new comment, titled "Determining 'Reasonableness' without a Reason?: Federal Appellate Review Post–Rita v United States." As detailed in these passages from the introduction, the piece provides a potent and wise account of how appellate courts should assess procedural reasonableness:
This Comment explores the circuits’ conflicting readings of the Booker and Rita rulings with respect to the adequacy of judges’ sentencing explanations and argues that a sentence is procedurally reasonable only when the appellate court can follow, recreate, and assess the district court’s basis for the sentence. Not only is this conclusion supported by Booker and Rita’s emphasis on the importance of thoroughly reasoned sentencing opinions for the evolution of the Guidelines, but also by the SRA’s focus on increased transparency and rationality in the sentencing process....
Part V discusses the centrality of explicit and thoroughly reasoned sentencing explanations to SRA’s vision of the federal judiciary’s role in the development of sentencing policy and procedures. It proposes that the First and Sixth Circuits’ reading of Rita— that a sentence is procedurally unreasonable when neither the context nor the record clearly reveals the district court’s consideration of relevant § 3553(a) factors and the reasoning for imposing the sentence — most closely comports with both the purpose and text of the SRA, and with meaningful sentencing reform more generally.
Some related posts with some recent reasonableness review scholarship:
- New article looking at post-Booker sentencing appeals
- More scholarship to add to the fall reading pile
- Some recommended sentencing reading
- Must-reads (again) on the post-Booker world in the Yale Law Journal
Reporting from West Virginia about prison economy realities
Two articles today from the Times West Virginian provide another effective local perspective on my favorite real-politick mantra, "It's the prison economy, stupid." The lead article, headlined "Running out of room: Drug courts one option in reducing prison overcrowding," starts this way:
As in many other states, the prison population in West Virginia is increasing quickly. Although violent crimes are on the decline, the population of West Virginia’s prisons is quickly outgrowing the capacity of the state’s facilities, according to Joe Thornton, deputy secretary of the West Virginia Department of Military Affairs and Public Safety, which is the agency that oversees the Division of Corrections.
Currently the state has room for 5,000 prisoners in state prisons. However, there are now 6,200 inmates who have been sentenced to terms in state prisons, Thornton said. That means there are 1,200 prisoners who should be confined to state prisons but are instead sitting in regional jails awaiting transfer to prisons when a bed opens up.
“It’s a matter of perspective, but I think we’re at a crisis level right now,” Thornton said. “And now were running out of space in the regional jails, too.” And the problem is likely to get worse. According to Thornton, the number of those sentenced to serve terms in a state prison is predicted to rise to around 8,000 by 2012. Gov. Joe Manchin has appointed a commission to study the overcrowding issue, Thornton said, and there are several solutions being discussed to deal with the overcrowding problem.
The companion article, headlined "Alternative sentencing becoming more common," starts this way:
Like many expenses, the cost of housing inmates in jails and prisons around the country is increasing.
Along with the increasing costs, inmate populations are also on the rise, and that is leaving governments on the federal, state and local levels looking for ways to cut down on the costs of housing criminals. To combat that, different forms of alternative sentencing have been thrust to the forefront.
Alternative sentencing can come in forms such as home confinement or community service and is normally reserved for non-violent offenders. The idea of the programs is to keep the offender out of jail, which reduces the fees paid by the state and counties.