December 20, 2010
"Think outside the prison walls"
The title of this post is the headline of this Indianapolis Star editorial endorsing proposals to restructure Indiana's sentencing system. Here are excerpts:
Gov. Mitch Daniels' endorsement of proposed corrections reforms should add needed momentum to legislative action that is long overdue.
The details will be devilish, of course, as the Indiana General Assembly sets about overhauling a penal code that's nearly four decades old. More than 100 laws have been passed in that span that have lengthened prison sentences, and not a one that has taken the other direction.
The result: Indiana's prison population has soared in this decade while those of neighboring states have grown only modestly. The same is true of costs, which are projected to reach $1 billion a year by 2017. This, in a state enduring serial revenue shortfalls....
Reduced and alternative sentencing for nonviolent offenders is the key recommendation in a detailed report from The Pew Center on the States and the Council of State Governments Justice Center.... The merits of alternatives to incarceration are manifest when it comes to reclaiming lives. Even if that were not enough to move lawmakers from their politically comfortable get-tough posture, the monetary cost of locking up nearly 30,000 Hoosiers ought to compel them to think and act beyond the walls.
This piece from another local paper, which is headlined "Panel recommends graduated sentencing for drug, theft crimes," provides more details on the reform proposals being discussed in Indiana. It also highlights that political rhetoric might still get in the way of needed policy reforms:
Gov. Mitch Daniels said he supports sentencing changes that save money and reduce prison population growth. But [state Rep. Linda] Lawson, deputy leader of House Democrats, said she's not sure the restructuring plan will be approved by the Republican-controlled General Assembly, even with the Republican governor's endorsement.
"I can see right now several legislators getting up on the House floor and holding direct-mail pieces and saying, 'See this right here; if you vote for this you're going to be soft on crime and they're going to do a piece of literature on you that's going to look just like this,'" Lawson said. "It just depends on how persuasive those legislators are.
Incoming California AG plans to shake up state's approach to crime and punishment
Yesterday's Los Angeles Times had this notable piece about California's new Attorney General-elect, which is headlined "The time may be right for Kamala Harris; She hopes the tough economy, shifting public opinion and her savvy transition team will bolster her prison reform goals." Here are snippets from the piece:
Kamala Harris, the state's next attorney general, last week announced a transition leadership team that was a marvel in its political heft... [which] underscored Harris' intent to ... upend decades of California attitudes about crime and punishment.
Along with some of the better-known names were a number of reformist police chiefs, like Los Angeles' former leader William Bratton, San Francisco's George Gascon and Oakland's Anthony Batts, who in the future may serve as symbolic assurance to voters as Harris works to make the criminal justice system reform criminals rather than lock them up perpetually.
Californians have been far more ensconced in the lock-'em-up camp, of course, loading ballots with measures to extend sentences and preclude judicial flexibility. But Harris believes that she has a new and powerful ally: the foundering economy.
Harris, currently San Francisco's district attorney, has made no secret of her desire to shake up the prison system. Nine days before the election, from the pulpit of Greater Zion Church in Compton, she mocked those who called her views "radical."
"We need to incorporate that age-old concept of redemption into the work that we do in the criminal justice system in California," she said, to murmurs of support from the congregants. "It is a broken system and there has to be reform…. Yes, I am radical in my belief in what we can do to improve the system. How we can change without being caught up and burdened with just a blind adherence to tradition. How we can be smart on crime and not just talk about 'Are you soft? Are you tough?'"...
"Smart on Crime" is something of a Harris franchise, the name of her 2009 book. In it, and during her campaign, Harris argued that criminal justice money is wasted on the "revolving door" that prison has become as 70% of the 120,000 convicts released annually end up being caught committing new crimes.
She believes that prison should be the punishment for serious offenders and that greater pains should be taken to prod milder offenders with education, counseling, probation and other community-based support. "I firmly believe in and advocate accountability and consequences when you are talking about rapists and murderers and child molesters — you've got to lock them up," she said. "But you've also got to look at the fact that crime is not monolithic."
Policy-wise, what Harris is talking about is an extension of the statistics-based policing advocated by chiefs like Bratton and used to help drive down crime in Los Angeles and elsewhere. Her argument is that at a time when California's budget is under siege, it makes no sense to spend tens of thousands of dollars housing prisoners who could be helped by programs that cost one-tenth the amount.
"Because of the crisis that we are facing in terms of the economy, we now have an opportunity to be very practical," she said, noting that voters she met this year "don't want to have a conversation about rhetoric and ideology."...
Politics-wise, however, elected officials and voters themselves usually recoil from reform efforts that could be painted as coddling criminals.... But recent polling suggests that, more than in past years, Californians may be in the mood to at least entertain changes to the system. Poll after poll has found that Californians want cuts in the prison budget, and those cuts would be entertained during the present period of lower crime rates rather than in the emotion of high-crime years.
New law review article on post-Booker disparity makes headlines in Boston
This morning's Boston Globe has this effective new article reporting on this important new academic research just published in the Stanford Law Review about post-Booker sentencing realities in the District of Massachusetts. The Globe article is headlined "Disparity cited in sentence lengths; Analyst studying Hub’s US judges alleges bias risk," and it does a nice job summarizing the basic findings of Professor Ryan Scott's just published article titled "Inter-Judge Sentencing Disparity After Booker: A First Look." Here are excerpts from the Globe coverage:
Since the US Supreme Court struck down mandatory sentencing guidelines five years ago in a landmark ruling, the difference in the average sentences of the most lenient and most severe federal judges in Boston has widened, according to a new study that says the trend threatens to undermine fairness.
Now that the guidelines are only advisory, the three most lenient jurists impose average prison sentences of slightly more than two years for all crimes, said the study in the Stanford Law Review published this week. The two toughest impose average sentences double that.
The findings are troubling, said the author of the study, Ryan W. Scott, an associate professor at Indiana University’s Maurer School of Law, because they raise the specter of defendants getting markedly different punishments depending on the politics and biases of the judges before whom they appear. "It offends our notions of equality and consistency and the rule of law that an offender’s sentence should depend on which judge happens to be assigned to the case," Scott, who analyzed 2,262 sentences imposed by 10 judges in Boston, said in an interview.
Scott uses the letters A through J to identify the judges when comparing sentencing patterns, and declined to identify them by name. But he describes four judges who have increasingly set sentences at below guideline ranges as "free at last judges." He calls two whose sentencing patterns have remained largely unchanged "business as usual judges."
The "free at last judges" sentence defendants below the guideline range three or four times as often as they did before the Supreme Court ruling — as much as 53 percent of the time, he wrote. The "business as usual judges" sentence below the guidelines at essentially the same rate they did before the ruling — as little as 16 percent of the time.
Thus, the effect of a judge on sentence length has increased in importance, Scott said. But it still pales in comparison with other factors, he said, including the crime for which a defendant was convicted, the offender’s criminal history, and what the advisory sentencing guidelines recommend.
Two of the US district court judges whom Scott studied, Nancy Gertner and William G. Young, said they welcomed his analysis, a draft of which has been circulating in legal circles for several months. But both judges, whom Scott thanks in the 68-page article for cooperating, said he gives short shrift to the importance of tailoring sentences to individual defendants....
Chief Judge Mark L. Wolf, the top judge in the Massachusetts district court, said he has no idea which judge he is in the study. But he acknowledged that he has increasingly sentenced some defendants, particularly those accused of dealing crack cocaine, below the guideline ranges since the framework became advisory, he said. Wolf is among many federal judges who have long criticized the disparity between the harsh punishments for dealing crack and the less severe penalties for powdered cocaine, a disparity the federal government has narrowed in recent years.
Although Wolf has sentenced more drug offenders to less than the guidelines recommend in recent years, he said, he has increasingly sentenced white-collar offenders to more than the guidelines advise....
The Supreme Court rulings [in Booker and its progeny] transform[ed] what had been a mandatory framework into an advisory one. But that has caused the difference in the length of the average sentence imposed by the most severe and most lenient judges in Boston to grow, Scott writes.
Before the Booker case in 2005, the difference stood at 15 months, in cases where crimes carried no mandatory minimum sentences, according to Scott’s findings. Since the three Supreme Court rulings, the difference has grown to almost 40 months. "I’m just pointing out that the differences among judges have become more stark since Booker, and that’s a worrying development," Scott said.
Another federal judge in Boston, Patti B. Saris, has been nominated by President Obama to be a member and chairwoman of the Sentencing Commission. The Senate Judiciary Committee recently voted, 18-1, to confirm her nomination. The full Senate is expected to vote shortly.
Even the most casual follower of federal sentencing developments since Booker should not be surprised by the findings in the Scott study. Indeed, Justice Breyer himself candidly acknowledged when he invented the Booker advisory guideline remedy that this system likely would increase disparity, and he stressed that it was up to Congress to decide whether an alternative system to the one he was creating to deal with constitutional problems with sentence-enhancing judicial fact-finding was to be preferred. That Congress has left the Booker advisory system entirely unchanged now for six full years continues to surprise me much more than empirical documentation of increased post-Booker sentencing disparities.
Perhaps one reason Congress has not responded to Booker legislatively is the sense, even among the most ardent fan of mandatory federal sentencing guidelines, the increased disparity since Booker is not really such a bad thing in light of the alternative ways of reforming the federal sentencing system. We got an advisory system in the first place largely because federal prosecutors balked at the prospect of having to comply with the new constitutional requirements for proving up sentence enhancements set out in Blakely, and there has been little evidence in the last six years that federal prosecutors have become bigger fans of Blakely rights. Moreover, as Scott's research shows, even with the effect of a judge on sentence length has increasing after Booker, legally relevant factors like the defendant's crime and criminal history still are the principal drivers of sentence lengths. Thus, to paraphrase Pangloss from Candide, perhaps despite increased disparity, after Booker we may be living in the best of all possible federal sentencing worlds.
December 20, 2010 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
"Search for guidelines on death penalty cases continues to consume justices' time"
The title of this post is the headline of this new article in today's Washington Post. Here are some excerpts:
When the Supreme Court hands down a list of the (few) cases it has picked for its docket and the (many) petitions it has rejected, it sometimes is accompanied by a commentary from one or more of the justices. More often than not, the subject is the death penalty.
Even as the number of executions falls and the death sentences handed out decrease, the court still spends a remarkable amount of its time deciding whether someone receives the ultimate punishment. Or at least deciding when other judges have made the right decision.
The court's decision to deny certiorari and leave the ruling of the lower court in place draws complaints from both ends of the bench. Liberals complain that lower courts are ignoring the justices' increasingly complex and exacting standards on what must happen before someone is executed in America. Conservative justices complain that the lower courts ignore Congress's attempts to make sure death sentences that are imposed properly are actually carried out....
A recent essay in the New York Review of Books by retired justice John Paul Stevens reiterated his statement two years ago on "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes."
It has brought new criticism both of the court's jurisprudence and its preoccupation with capital punishment — and Stevens's role in creating whatever confusion exists. But the work of the court will go on — the search for apparently elusive rules and regulations that identify who deserves the death penalty and who does not.
December 19, 2010
Federal education stimulus dollars covering prison costs in Alabama
As detailed in this local article, which is headlined "Prisons the biggest recipient of Alabama's education stimulus dollars," a big chunk of federal dollars earmarked for education has been going to prison spending in Alabama. Here are the details:
Alabama’s biggest recipient of federal education stimulus dollars thus far is not a local school system or a college: It’s the Department of Corrections, according to a Press-Register analysis.
The agency has received $118 million of $1.1 billion in stimulus funding doled out to the state by the U.S. Department of Education since 2009. The money covered health care costs for 26,000 inmates, and salaries and benefits for about 4,200 corrections officers and other employees for three and a half months, officials said.
The spending was legal: Governors were allowed to give up to 18 percent of the funding to areas other than education, such as public safety. Nonetheless, Alabama spent about $4,500 in education stimulus dollars per prisoner, about four times the amount per student in kindergarten through 12th grade....
“If we could’ve had that $118 million,” Baldwin County schools Superintendent Alan Lee said of school systems in general, “we could’ve given the prisons less business.” Studies have shown that students who fail classes and drop out are more likely to go to prison than those who do well in school....
Steve Brown, associate commissioner over administration for the Department of Corrections, said the injection of federal stimulus dollars was vital to the 31 prison facilities across the state. Without it, he said, his agency might have petitioned the Legislature for permission to release inmates, something that Brown said would not have been well-received. Or, the state would have had to skim money from all of its other departments, including education, to cover a corrections budget that has been ailing for years.
Prisons are overcrowded and the corrections department is staffed only at 80 percent of what it should be, he said. “We’ve done ‘what if’ drills before. We would’ve had to release 40 percent of our inmates. That’s not a viable option,” Brown said. Brown said that federal auditors examined the corrections department spending and gave their OK.
Notable new perspective on reasonableness review after Booker
I have long thought that appellate review was a weakest link in the Booker remedy, both jurisprudentially and practically. Thus, this new piece on SSRN by Briana Rosenbaum really caught my eye. The piece is titled "Righting the Historical Record: A Case for Appellate Jurisdiction Over Appeals of Sentences for Reasonableness Under 28 U.S.C. § 1291," and here is the abstract:
This Article is the first to critically analyze the jurisdictional basis for the Supreme Court’s mandate in United States v. Booker, 543 U.S. 220 (2005), that all courts of appeals review the length of criminal sentences for “reasonableness.” In Booker, the Court created a new kind of appellate review: review of all criminal sentences for “reasonableness.” As a result, the availability of appellate review has expanded greatly. Data from the U.S. Sentencing Commission shows that, since Booker, the number of sentence appeals has risen.
Unfortunately, the Court in Booker did not explain the jurisdictional basis for its expanded “reasonableness review.” The omission is not trivial. For decades, federal courts have held that courts of appeals do not have jurisdiction to review the length of criminal sentences. The Supreme Court may not increase the jurisdiction of these courts; the Constitution gives this power to Congress alone. Accordingly, if there is no basis for jurisdiction, the Supreme Court usurped Congress’ power to expand the jurisdiction of the federal courts. Despite this, courts of appeals have unanimously followed the Supreme Court mandate to review sentences for reasonableness, with little more justification than “because the Supreme Court said so.”
This Article, for the first time, examines the historical and legislative underpinnings of appellate review of criminal sentences in an attempt to find a justification, if any, for Booker’s expanded appellate review. The Article concludes that courts of appeals have indeed had jurisdiction under 28 U.S.C. § 1291 to review the length of sentences, and have had such jurisdiction since at least 1891. Although courts routinely rejected appeals of the length of sentences for lack of “jurisdiction” before Booker, they did so erroneously, relying on older case law without fully analyzing the basis for those decisions. In fact, this “rule of non-review” was based not on jurisdiction, but on a policy of deference to the sentencing judge -- a policy that can be changed at any point, by either Congress or the Supreme Court. In Booker, the Supreme Court exercised such a power. For the first time, this Article provides the correct jurisdictional basis for the Booker decision, and, at the same time, rights the historical record on jurisdiction over appeals of criminal sentences.