August 24, 2013
AG Holder's speech at "Dream March" stresses fairness and "equal justice" (... as federal crack prisoners keep waiting)I just got an e-mail providing this link to the text of Attorney General Eric Holder's prepared remarks which he delivered today in Washington DC as part of the "National Action to Realize the Dream March." Here are some excerpts that caught my eye (with my emphasis added):
It is an honor to be here — among so many friends, distinguished civil rights leaders, Members of Congress, and fellow citizens who have fought, rallied, and organized — from the streets of this nation, to the halls of our Capitol — to advance the cause of justice.
Fifty years ago, Dr. King shared his dream with the world and described his vision for a society that offered, and delivered, the promise of equal justice under law. He assured his fellow citizens that this goal was within reach — so long as they kept faith with one another, and maintained the courage and commitment to work toward it. And he urged them to do just that. By calling for no more — and no less — than equal justice. By standing up for the civil rights to which everyone is entitled. And by speaking out — in the face of hatred and violence, in defiance of those who sought to turn them back with fire hoses, bullets, and bombs — for the dignity of a promise kept; the honor of a right redeemed; and the pursuit of a sacred truth that’s been woven through our history since this country’s earliest days: that all are created equal....
But today's observance is about far more than reflecting on our past. Today’s March is also about committing to shape the future we will share — a future that preserves the progress, and builds on the achievements, that have led us to this moment. Today, we look to the work that remains unfinished, and make note of our nation's shortcomings, not because we wish to dwell on imperfection — but because, as those who came before us, we love this great country. We want this nation to be all that it was designed to be — and all that it can become. We recognize that we are forever bound to one another and that we stand united by the work that lies ahead — and by the journey that still stretches before us.
This morning, we affirm that this struggle must, and will, go on in the cause of our nation’s quest for justice — until every eligible American has the chance to exercise his or her right to vote, unencumbered by discriminatory or unneeded procedures, rules, or practices. It must go on until our criminal justice system can ensure that all are treated equally and fairly in the eyes of the law. And it must go on until every action we take reflects our values and that which is best about us. It must go on until those now living, and generations yet to be born, can be assured the rights and opportunities that have been too long denied to too many.
The America envisioned at this site 50 years ago — the “beloved community” — has not yet been realized. But half a century after the March, and 150 years after Emancipation, it is finally within our grasp. Together — through determined effort; through a willingness to confront corrosive forces tied to special interests rather than the common good; and through devotion to our founding documents — I know that, in the 21st century, we will see an America that is more perfect and more fair....
To AG Holder's credit, back in April 2009, his Justice Department went to Capitol Hill to tell Congress that the current Administration then believed (and still believes?) that a commitment to fairness and equal justice required completely eliminating the differential treatment of crack and powder cocaine in federal sentencing law. But since that time, the Obama Administration has suggested it is content with Congress's decision to merely reduce — from 100-1 to 18-1 — the differential treatment of drug quantities for crack and powder. Moreover, this Administration has made no real effort to help those sentenced before the passage of the Fair Sentencing Act to get any fair or equal benefits from the new law's reduced crack sentencing terms.
Indeed, from its initial advocacy to limit "pipeline" cases from getting the benefit of the FSA's reduced mandatory minimums, to its continued disinclination to seek to help folks still serving excessively long sentences based on the pre-FSA 100-1 crack laws, the Holder Justice Department's actions suggest they do not really think a commitment to fairness and equal justice calls for doing much of anything to help crack offenders sentenced before August 2013.
Please understand that I know full well the range of forcefully legal arguments and political considerations which can be made to justify preventing thousands of federal prisoners still serving excessively long crack sentences from getting any benefits from the FSA. But I also know full well that if Dr. King were alive today, he surely would be advocating forcefully for this Administration to live up to its commitment to fairness and equal justice and to do something to help those federal prisoners still languishing in prison based on the unfair and unequal sentences required by the pre-FSA crack laws.
Indeed, with current federal prisoners in mind, I think we still are awaiting the day that Dr. King dreamed of and spoke about when he ended his speech in this way:
[I dream of] the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring."
And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!
Let freedom ring from the snowcapped Rockies of Colorado! Let freedom ring from the curvaceous slopes of California!
But not only that; let freedom ring from Stone Mountain of Georgia! Let freedom ring from Lookout Mountain of Tennessee!
Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.
And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! free at last! thank God Almighty, we are free at last!"
I suppose we all need to just keep dreaming, while still stressing the "fierce urgency of now."
August 24, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (32) | TrackBack
Debate continues after Mizzou Gov vetoes bill to take juve sex offenders off registriesAs reported in this AP piece, headlined "Vetoed bill could affect 870 Mo. sex offenders," the Show Me state is showing all of us how a focused debate over juvenile sex offenders can play out these days. Here are the basics:
A Missouri bill removing the names of juvenile sex offenders from public registries could affect hundreds more people than originally estimated and help hide the whereabouts of some high-profile offenders, Gov. Jay Nixon said Wednesday.
The Democratic governor pointed to new figures and specific examples of sex-offenders as he traveled to St. Louis and Kansas City to try to build a case for why legislators should sustain his veto of the bill.... Republican legislative leaders have said the measure is a likely target for a veto override, noting that it passed originally with overwhelmingly support.
Under the bill, people who are younger than 18 when they commit sex offenses would no longer appear on law enforcement websites that list the home addresses and physical description of sex offenders. Adults who are currently listed because of sex offenses committed as juveniles also could be removed from the public registry five years after their convictions or release from prison.
Supporters of the bill have said the public registries leave a permanent mark on adults who may have been convicted as teenagers for consensual sexual activities with younger juveniles. They have said such people deserve a second chance outside of the public spotlight.
The bill passed the House 153-0 and the Senate 28-4 earlier this year. Nixon has said the legislation would weaken state laws and undermine public safety....
"The leadership of the House may be ready to help violent sex offenders hide from the public and law enforcement, but their victims, and the millions of Missourians who use these websites to help keep their families safe, are not," Nixon said.
The governor's office distributed information about specific sex offenders who could be removed from the list if lawmakers were to override his veto. Among them is Daniel Winfrey, who was 15-years-old in April 1991, when sisters Julie and Robin Kerry were raped and killed at the Chain of Rocks Bridge over the Mississippi River in the St. Louis area. Winfrey pleaded guilty to second-degree murder and rape after agreeing to testify against several others involved in the crime.
Other offenders that the governor's office cited as likely to be removed from the public registry included men who had been convicted as juveniles of rape, sexual assault and sodomy against children who were ages 5, 6, 7 and 8.
Nixon spokesman Scott Holste said the legislation would benefit people who committed "heinous" acts. "These aren't Romeo and Juliet people we're talking about here," Holste said.
A week for lots of notable military sentencing headlines
Three high-profile cases involving military crimes and prosecutions all included notable sentencing developments this week. Here are examples of the headlines (with the stories linked):
And if you want all the highlights of these three stories via one link, check out this new posting via the Washington Post, headlined " Robert Bales, Nidal Malik Hasan, Manning: A busy week for military justice."
August 23, 2013
"Vice Crimes and Preventive Justice"The title of this post is the title of this notable new paper by Stuart Green now available via SSRN. Especially as I spend this semester discussing prohibition of various substances in my conjunction with teaching a marijuana law seminar (and working on this related blog), I am definitely adding this piece to my weekend reading list. Here is the abstract:
This symposium contribution offers a reconsideration of a range of "vice crime" legislation from late 19th and early 20th century American law, involving matters such as prostitution, the use of opiates, illegal gambling, and polygamy. According to the standard account, the original justification for these offenses was purely moralistic (in the sense that they criminalize conduct solely or primarily because it is intrinsically wrong or sinful and not because of its negative effect on anyone) and paternalistic (in the sense that they limit persons' liberty or autonomy supposedly for their own good); and it was only later, in the late 20th century, that those who supported such legislative initiatives sought to justify them in terms of their ability to prevent harms.
This piece argues that the rationale for these vice crimes laws was much more complicated than has traditionally been thought, encompassing not just moralistic justifications but also a wide range of harm-based rationales -- similar to those that underlie modern, technocratic, "preventive justice" legislation involving matters such as anti-social behavior orders, sex offender registration, stop-and-frisk policing, and the fight against terrorism.
August 22, 2013
Eleventh Circuit finds way-below guideline sentence substantively unreasonable for abusive corrections officersI have long hoped that reasonableness review would have some more teeth in the circuits, and a panel ruling by the Eleventh Circuit today in US v. McQueen, No. 12-10840 (11th Cir. Aug. 22, 2013) (available here), provides a reminder that reasonableness review does seem to have at least a little more bite when prosecutors appeal a sentence they consider way too low. Here are the final paragraphs of the panel opinion in McQueen:
[T]aking the § 3553(a) factors as a whole as well as the district court’s findings, we can only conclude that McQueen’s and Dawkins’s sentences were substantively unreasonable and that the district court abused its considerable discretion in imposing them. Undoubtedly, a district court has great discretion in balancing the § 3553(a) factors. Still, it must afford “some weight to the factors in a manner that is at least loosely commensurate with their importance to the case, and in a way that ‘achieve[s] the purposes of sentencing stated in § 3553(a).’” Id. (alteration in original) (quoting United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006)). If a district court instead commits a clear error of judgment in weighing the sentencing factors and arrives at a sentence beyond the range of reasonable sentences, we are duty bound to vacate and remand for resenten cing. United States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir. 2007) (per curiam). As we see it, the trial court focused virtually exclusively on one factor -- unwarranted disparities -- to the near abandonment of other critical factors and arrived at sentences falling profoundly outside the range of reasonable sentences.
Accordingly, we vacate the sentences imposed on McQueen and Dawkins and remand to the district court for further review and resentencing. In so doing we do not suggest what the sentence should be; nor do we intimate that no variance is justified. We simply hold that downward variances of more than 90% where one corrections officer brutalized more than five young prisoners and then lied about it, and another intentionally sought to conceal these serious crimes are unreasonable.
New York Times editorial board rightly highlights "Pardon Rates Remain Low"I was pleased to see this morning that the New York Times has this new editorial discussing clemency issues under the headline " "Pardon Rates Remain Low." Here are excerpts:
Attorney General Eric Holder said many encouraging things in his important speech on the future of sentencing reform, but the most striking thing may have been what he did not say. In all his 4,000 words on America’s “broken” legal system — and particularly on its outlandishly harsh and ineffective sentencing laws — there was not one mention of executive clemency.
That power, which the Constitution explicitly grants to the president, has always served as an indispensable check on the injustices of the legal system and as a means of demonstrating forgiveness where it is called for. It was once used freely; presidents issued more than 10,000 grants of clemency between 1885 and 1930 alone. But mercy is a four-letter word in an era when politicians have competed to see who can be toughest on crime....
As ProPublica has documented, the pardon process has devolved into a mockery of itself, riven by arbitrariness, racial disparity and charges of abuse. Pardons of powerful, well-connected individuals like Marc Rich, by Bill Clinton, and Lewis Libby, by George W. Bush, have only increased cynicism about the process.
Meanwhile, President Obama’s use of the pardon power remains historically low. In four and a half years, he has received almost 10,000 applications for clemency and has granted just 39 pardons and one sentence commutation. No one seems to know why some requests are granted and others denied. To call it a lottery is unfair to lotteries; at least if you pick the right numbers, you’re guaranteed to win....
As the experience of many states shows, a functional pardon system must also be accountable. This can mean requiring the executive to publish an annual report on pardon policy and practice. Currently the president has no obligation to explain his grants or denials, which undermines public trust in the system.
In this light it is disheartening that the Obama administration continues to resist calls to remove the current head of the pardon office, Ronald L. Rodgers, despite a finding by the Justice Department’s inspector general that in 2008, Mr. Rodgers misrepresented material information in recommending that the president deny a petition for clemency.
In a 2003 speech, Justice Anthony Kennedy said that “a people confident in its laws and institutions should not be ashamed of mercy.” In the 10 years since that speech, requests for mercy have increased even as the prospects for reform have not. In the first 10 months of fiscal 2013, 2,000 inmates applied for commutations, more than in any single year in history.
Executive clemency may not be the ideal way to ameliorate the system’s excesses, but for many people stuck with an unjustly long sentence or a conviction that prevents them from getting jobs, business licenses or even public housing, it remains the only way....
Mr. Holder was right to call for a substantial overhaul of our criminal justice system. But any meaningful reform must include the clemency process, by which we temper our most punitive tendencies. It is long past time for the president to heed the words of Justice Kennedy and reinvigorate this fundamental executive prerogative.
Kudos to the New York Times editorial board for giving this issue significant attention in the wake of AG Holder's speech (and for the great line "[t]o call it a lottery is unfair to lotteries...."). The Obama Administration's record on this issue is truly abysmal, especially given that President Obama rode into the White House in 2008 by stressing the themes of hope and change into the White House.
Especially disconcerting is Obama's failure to date to use his clemency powers (or really to do anything of significance) to help the many thousands of low-level crack offenders still serving (now-repealed) severe mandatory minimum prison sentences based on the old 100-1 crack/powder sentencing ratio. Back in 2007 on the campaign trail in his speech to Howard Univesity (as I discussed in this 2010 law review article), then-candidate Barack Obama had this to say about those federal prisoners:
When I'm President, we will no longer accept the false choice between being tough on crime and vigilant in our pursuit of justice.... We can have a crime policy that's both tough and smart. If you're convicted of a crime involving drugs, of course you should be punished. But let's not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them. Judges think that's wrong. Republicans think that's wrong. Democrats think that's wrong, and yet it's been approved by Republican and Democratic Presidents because no one has been willing to brave the politics and make it right. That will end when I am President.
Though I suppose President Obama deserves some credit for the passage of the Fair Sentencing Act, even the revised federal penalties under that law with its new 18-1 ratio still mean that "the punishment for crack cocaine [is] much more severe than the punishment for powder cocaine." And, more to the point of this post, the only reason I can surmise to explain why President Obama has not been willing to grant commutations to some significant number of the thousands of prisonder serving sentences that judges and Republicans and Democrats all think are wrong is because President Obama even in his second term is still , in fact, NOT "willing to brave the politics and make it right."
I know that there are at least 2000 federal prisoners who applied for clemency just this last year who continue to reasonably hope that President Barack Obama remembers that his clemency powers provide one of the very best ways for him to be "vigilant in our pursuit of justice." But, as the NY Times highlights, in this arena many now have been hoping for nearly five years to see any real change.
Some recent and a few older posts concerning federal clemency practices:
- "How to Awaken the Pardon Power"
- New Slate pitch for Prez to use clemency powers to address crack sentencing disparities
- "Clemency Reform: We're Still Waiting"
- "Clemency for the 21st Century: A Systemic Reform of the Federal Clemency Process"
- Will Prez Obama's clemency record ever match his inaugural rhetoric?
- "Why Has Obama Pardoned So Few Prisoners?"
- "Barack the Unmerciful: Obama's amazingly stingy clemency record"
- New York Times editorial assails Prez Obama's considerable clemency failings
- "Obama Has Granted Clemency More Rarely Than Any Modern President"
- Updated numbers on President Obama's disgraceful clemency record
- Noting President Obama's (still) stingy clemency record
- ProPublica reveals more ugliness in federal clemency process
- "A no-pardon Justice Department"
- Effective USA Today coverage of President Obama's clemency stinginess
- "Obama should exercise the pardon power"
- NYTimes op-ed assailing Obama's pathetic pardon practices
Making a potent argument for executions by firing squad rather than lethal injectionRobert Blecker, responding in part to the seemingly endless litigation and problems surrounding lethal injection execution protocols, has this new provocative CNN commentary under the headline "With death penalty, let punishment truly fit the crime." The full piece is a must-read, and here are excerpts highlighting why:
No matter how vicious the crime, no matter how vile the criminal, some death penalty opponents feel certain that nobody can ever deserve to die -- even if that person burned children alive, massacred a dozen strangers in a movie theater, or bombed the Boston Marathon. Other opponents admit the worst of the worst of the worst do deserve to die. They just distrust the government ever to get it right.
Now that pharmaceutical companies refuse to supply the lethal drugs that U.S. corrections departments have used for years to execute criminals -- whether from their own genuine moral objections or to escape a threatened economic boycott -- states have begun to experiment. Death penalty opponents, who call themselves abolitionists, then protest the use of these untried drugs that just might cause a condemned killer to feel pain as he dies.
Let the punishment fit the crime. We've mouthed that credo for centuries, but do we really mean it? We retributivists who believe in justice would reward those who bring us pleasure, but punish severely those who sadistically or wantonly cause us pain. A basic retributive measure -- like for like or giving a person a taste of his own medicine -- satisfies our deepest instincts for justice.
When the condemned killer intentionally tortured helpless victims, how better to preserve some direct connection short of torture than by that murderer's quick but painful death? By ensuring death through anesthesia, however, we have nearly severed pain from punishment....
I, too, oppose lethal injection, but not because these untried new drugs might arbitrarily cause pain, but because they certainly cause confusion.
Lethal injection conflates punishment with medicine. The condemned dies in a gurney, wrapped in white sheets with an IV in his veins, surrounded by his closest kin, monitored by sophisticated medical devices. Haphazardly conceived and hastily designed, lethal injection appears, feels, and seems medical, although its sole purpose is to kill....
Publicly opposing this method of execution, I have found odd common ground with Deborah Denno, a leading abolitionist scholar who relentlessly attacks lethal injection protocols. Although Denno vigorously opposes all capital punishment, we both agree that the firing squad, among all traditional methods, probably serves us best. It does not sugarcoat, it does not pretend, it does not shamefully obscure what we do. We kill them, intentionally, because they deserve it.
Some people may support the firing squad because it allows us to put blanks in one of the guns: An individual sharpshooter will never know whether he actually killed the condemned. This strikes me as just another symptom of our avoidance of responsibility for punishment. The fact is, in this society, nobody takes responsibility for punishing criminals. Corrections officers point to judges, while judges point to legislators, and legislators to corrections. Anger and responsibility seem to lie everywhere elsewhere -- that is, nowhere. And where we cannot fully escape responsibility -- as with a firing squad -- we diffuse it....
Ironically, even as we recoil from punishing those who most deserve it, we readily over-punish those who don't. A "war on drugs" swells our prisons. We punish addiction and call it crime; we indiscriminately and immorally subject a burglar or car thief to the same daily life in prison we also reserve for rapist murderers.
The time has come to make punishment more nearly fit the crime. To face what we do, and acknowledge, with regret but without shame, that the past counts.
So part of me hopes the abolitionists succeed with their latest campaign against death by lethal injection. We should banish this method. Let the abolitionists threaten to boycott gun manufacturers. See where that gets them. Meanwhile, the rest of us will strive to keep our covenants with victims, restore a moral balance, and shoot to kill those who deserve to die.
Rest assured, when we can only achieve justice by killing a vicious killer, We, the People will find a constitutional way to do it.
August 21, 2013
ABA Criminal Justice Section Call for Papers and ConferenceUpon request, I am pleased to be able to share this announcement sent my way by Dr. William W. Berry III:
On Oct. 31-Nov. 1, 2013, the ABA criminal justice section will host its annual conference, this year at the Omni Shoreham in Washington, D.C. The first event of the conference, on the afternoon of Thursday, Oct. 31, is a workshop for scholarly papers relating to criminal justice. The workshop will run from 1-4 p.m.
All papers on criminal law, criminal procedure, or criminal justice topics are welcome. Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop. Workshop presenters must also attend the criminal justice panels on Friday, Nov. 1. There will be three academic panels scheduled on Friday, one prior to lunch and two in the afternoon.
This is an excellent opportunity for academics at any stage of their careers, or those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces. Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee.
Rooms at the Omni Shoreham are available at the conference rate of $169/night and can be reserved at 1-800-THE-OMNI (800/843-6664) (ask for the ABA 2013 Criminal Justice Section Fall Program).
To apply to workshop a paper, please email an abstract of your paper of no more than 500 words to Will Berry at firstname.lastname@example.org by Sept. 1, 2013. Space is limited and presenters will be chosen by members of the organizing committee.
Please spread the word to those who might be interested, including those not yet in academia.
"It's Not Just Federal Prisons: State Prisons Are a Mess, Too"The title of this post is the headline of this notable new National Journal piece. Here are excerpts:
In Arkansas, there aren't enough prison beds for all the inmates. Tasked with housing 14,753 people, the state's prisons have fallen around 280 beds short, with 1,400 state inmates being held in county jails as of Monday. Arkansas's state prison director told the corrections board that there are 300 beds ready for use, but it would cost $8 million to hire new employees and run the new facilities.
Arkansas isn't the only state with a bed problem: Arizona has been relying on temporary beds to make up for only having 37,000 beds for 41,000 inmates.
When U.S. Attorney General Eric Holder spoke to the American Bar Association about the economic and moral costs of the U.S. criminal justice system last week, he was mainly talking about federal prisons. But prisons at the state and local level aren't in any better shape....
If you need more proof of how bleak things are, just look at some of what's happened in the last few weeks.
On July 8, a hunger strike broke out in California prisons over a policy that allowed inmates associated with gangs to live in isolation for long periods of time.... When the strike began, it included almost 30,000 of the state's 133,000 inmates. That number is down to around 130. On Monday, a federal judge ruled that California will be able to force-feed the remaining strikers.
California's prison problem is also fundamentally economic. In May, a judge ordered California to reduce its inmate population by 9,600 to prevent overcrowding. California unsuccessfully appealed the ruling to the Supreme Court. Gov. Jerry Brown on Monday said that California wouldn't "do a mass release" and a spokesman said the administration is "working with the Legislature to avoid the prospect of inmate releases." That could mean spending hundreds of millions of dollars to stem overcrowding. But even just releasing prisoners can come at a huge cost. According to the LAPD, it costs about $18 million to keep track of felons who are released from state prisons to the counties, and more than half of the thousands who are already released annually are eventually sent back to prison.
Then there's the violence. Five prisons have been placed on lockdown in Illinois in the last week for unrelated incidents after a wave of violence. That includes violence against prison guards. Then there's the rise in suicides. In Washington, D.C., there have been four suicides at the Central Detention Facility in less than a year. In the last decade, there have only been eight suicides total at that facility. A Bureau of Justice Statistics report released this month shows a recent uptick in suicides at local prisons.
Renewing focus on federal prisons is a start, but it doesn't totally address all of the problems in the U.S. criminal justice system.
New op-ed from former federal judges Paul Cassell and Nancy Gertner lament defender cutsAnother notable set of voices appears in this new Wall Street Journal commentary headlined "Public Defenders Fall to the Sequester: Steep budget cuts compromise the justice system and won't save money in the long run." The piece is co-authored by two of my favorite former federal district judges, Paul Cassell and Nancy Gertner, and here are excerpts:
[D]ue to the combination of general budget austerity and sequestration, the federal public defender system — a model of effective indigent defense for the past 40 years — is being decimated. As former federal judges from opposite ends of the ideological spectrum, we both understand that these shortsighted cuts threaten not only to cripple the federal defender system, but to disrupt the entire federal judiciary—without producing the promised cost savings.
A decrease of nearly 10% in the federal public defender budget for 2013 has already resulted in layoffs and up to 20 days of furloughs in many federal defender offices. In a number of states, federal courts have been forced to delay criminal cases because of public defender furloughs and layoffs....
These steep budget cuts will not save us money in the long term. Delays in trials require many defendants to spend more time in costly pretrial detention facilities. But the flow of criminal prosecutions has not abated, so the unavailability of public defenders will simply force courts to engage private attorneys more frequently. Most federal judicial districts have a public defender office and, in those districts, it is more cost effective to have the office handle a majority of cases.
Reducing funding for federal defender budgets means that the remaining federal defenders have less time and fewer resources with which to investigate cases, conduct legal research and hire expert witnesses. This loss severely compromises their ability to represent their client at trial, destroying the adversarial process at the heart of our system. Without balanced, vigorously litigated cases, wrongful convictions may become more common, imprisoning the innocent and allowing the guilty to walk free.
These mistakes — inevitable in an underfunded system — will create even more expenses down the line, through appeals, unlawful-detention proceedings and retrials. As Supreme Court Justice Stephen Breyer noted in March in congressional testimony about the effects in general of the sequester, it is "cheaper to have a decent lawyer in the first place."...
As Congress works to reach agreement on spending for next year, its members must know that proceeding with steep cuts to the federal defenders not only threatens to undermine justice, but is bad fiscal policy.
Only with full funding of federal defenders will we avoid the ripple effect that will clog judicial dockets, delay both criminal and civil proceedings in federal courts—and undermine the efficiency of a federal defender system that has effectively served justice for the past 40 years.
Recent related posts:
- Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?
- "Sequestration Will Wreak Chaos On U.S. Federal Prisons"
- Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)
- "How the Sequester Threatens the U.S. Legal System"
- "Can Constitutional Rights Be Sequestered?"
- Sequester now requiring still more foolish cuts to federal criminal justice services
Bradley Manning gets 35 years from military judge for espionage convictionsAs reported in this breaking news update from USA Today, "Army Pfc. Bradley Manning was sentenced to 35 years in prison after being convicted of espionage and other charges in connection with a massive leak of classified material." Here is more:
The judge in the case, Army Col. Denise Lind, announced the sentence in a military courtroom in Fort Meade, Md. He also received a dishonorable discharge, will forfeit his pay and benefits and was reduced in rank.
Manning faced a maximum of 90 years in prison after his conviction last month on charges of espionage, theft and fraud. Manning was convicted of the largest leak of classified material in U.S. history and was at the center of a growing debate over government secrecy.
Prosecutors urged the judge to sentence Manning to 60 years as a deterrent to others who might be tempted to leak secret documents. "He betrayed the United States, and for that betrayal, he deserves to spend the majority of his remaining life in confinement," Capt. Joe Morrow had said during the sentencing hearing.
Manning's defense had urged the military to sentence Manning, who served as an intelligence analyst in Iraq, to no more than 25 years in prison....
The U.S. government said his actions jeopardized U.S. interests and exposed informants and sources to danger. Manning's defense painted him as a misguided idealist who opposed the war in Iraq. "He had pure intentions at the time that he committed his offenses," defense attorney David Coombs said during the sentencing hearing. "At that time, Pfc. Manning really, truly, genuinely believed that this information could make a difference."
Manning's defense attempted to "play up the human aspect" of Manning by highlighting mental health issues, said Phil Cave, a former military lawyer now in private practice. Defense witnesses testified about Manning's "gender-identity disorder," which contributed to the mental stress he was under....
Under military law, the sentence will be automatically appealed. He would probably be eligible for parole after he served one-third or 10 years of his sentence, whichever is longer.
I have blogged very little about this high-profile sentencing case in large part because I am very ignorant about US military sentencing law and procedure. For example, I did not realize that parole remained available for lengthy military sentences (given that federal civilian law eliminated parole from the sentencing system three decades ago), nor am I conversant on what formal rules or guidelines may have impacted the seemingly broad sentencing discretion of Army Col. Denise Lind or could still play a role in the automatic appeal provided by military law.
Both due to my basic ignorance and due to the high-profile nature of this case, I welcome both informed and uninformed opinions on this sentencing outcome. Do folks think 35 years in prison (with parole eligibility in less than 12 years when Manning will still be in his mid-30s) is a fair and effective sentence in this case? Why or why not?
August 21, 2013 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (22) | TrackBack
August 20, 2013
"North Carolina appeals court strikes social media ban for sex offenders"
The title of this post is the headline of this local press report on a notable intermediate state appeals court ruling today. Here are the details:
The full 21-page opinion in NC v. Packingham, No. 10 CRS 57148 (N.C. App Aug. 20, 2013), is available at this link.
The North Carolina Court of Appeals on Tuesday struck down North Carolina's ban on registered sex offenders using social media sites like Facebook and Twitter. The court said the ban in N.C. General Statute 14-202.5 "is not narrowly tailored, is vague, and fails to target the 'evil' it is intended to rectify."
"The statute violates the First Amendment's guarantee of free speech, and it is unconstitutional on its face and as applied. Accordingly, we vacate the trial court's judgment," wrote the court.
The ruling centered around a Durham case in which Lester Gerard Packingham appealed his felony conviction for accessing a commercial networking site last year. According to the trial records, the Durham Police Department was looking at evidence that registered sex offenders were using the websites MySpace and Facebook, and an officer recognized Packingham's photo on Facebook.
The North Carolina law says registered sex offenders may not use commercial social media sites if they know the site "permits minor children to become members or to create or maintain personal Web pages."
But in its ruling, the appeals court said the law "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal [of preventing contact with children.]"
North Carolina Attorney General Roy Cooper wanted the law but admits it may have to be rewritten, but he will try to appeal the North Carolina Supreme Court. Cooper notes that there are still laws on the books that investigators can use to charge suspects with soliciting children online. However, he believes we need a law to try to prevent child sex crimes before they happen....
If Cooper's attempt at an appeal fails, he says he will go back to the legislature to see if they can craft a new sex offender social media law that will withstand a legal challenge.
US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinionLong-time readers know that big federal sentencing news can often come from the heartland in the form of potent lengthy opinions by US District Judge Mark Bennett. His latest important sentencing work, which a number of helpful readers have made sure I would not miss, comes in US v. Young, No. 5:12-cr-04107 (D. Iowa Aug. 16, 2013) (available for download below). I could say much about so many notable passages in this 75-page Young opinion (which includes 20+ pages of data-rich appendices at the end), but I will be content to let the first few paragraph highlight why this opinion is a must-read for all who follow the federal sentencing system:
This case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice (DOJ) of § 851 drug sentencing enhancements. These enhancements, at a minimum, double a drug defendant’s mandatory minimum sentence and may also raise the maximum possible sentence, for example, from forty years to life. They are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction in state or federal court (even some state court misdemeanor convictions count), no matter how old that conviction is.
Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.
These decisions are shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency. See In re Oliver, 333 U.S. 257, 266–271 (1948) (“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by . . . the English Court of Star Chamber.”). Attorney General Holder’s August 12, 2013, Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Holder 2013 Memo), while establishing a national policy for § 841 enhancements, does nothing to pull aside the cloak of secrecy shrouding the nationwide disparities in the application of § 851 enhancements.
August 20, 2013 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (47) | TrackBack
Revised Post (revised yet again) upon request
Regular readers know all about the controversy and pending en-banc litigation engendered by a decision rendered three months ago by a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here).....
ADDITIONAL ORIGINAL MATERIALS IN REST OF THIS POST REMOVED upon reasonable requests by lots of reasonable folks for reasonable reasons, in my judgment....
August 20, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (5) | TrackBack
"International Trends in Prison Privatization"The title of this post is the title of this notable new research paper from The Sentencing Project. Here is how the report was summarized in an e-mail I received today:
[Just released is] a new report of The Sentencing Project that analyzes the growth of private prisons internationally. In International Growth Trends in Prison Privatization, by Cody Mason, we find that at least 11 nations on five continents have followed the lead of the United States in contracting with profit-making entities to operate prisons.
Key findings of the report include:
• International use of private prisons is predominantly found in English-speaking countries, including Australia, Scotland, England and Wales, New Zealand, and South Africa.
• While the United States maintains the highest number of individuals held in private prisons, other nations incarcerate a higher proportion of prisoners privately. Leading nations in this regard are Australia (19%), Scotland (17%), and England and Wales (14%).
• Reports from a number of countries indicate that private prisons have experienced problems relating to violence, drug use, and inefficiency in operations.
Sequester now requiring still more foolish cuts to federal criminal justice servicesAs reported in this USA Today piece, headlined "Public defenders, probation services to have cutbacks," another fiscal shoe is dropping as a result of sequester in a manner that seems likely to harm both the federal justice process and crime control efforts. Here are the details:
The federal judiciary for the first time is cutting the fees of court appointed defense lawyers, including those representing death penalty defendants, to deal with the "dire consequences'' of required government budget reductions known as sequestration.
The reductions, outlined in a notice to U.S. District Judge Catherine Blake, chairwoman of the Federal Judicial Conference Committee on Defender Services, are part of an unprecedented criminal justice cost-cutting effort that also will scale back operations of federal probation services at a time when authorities are planning to rely more heavily on programs like probation to help reduce the rising federal prison population.
The cuts in attorneys' fees will be implemented next month with payments dropping from $125 per hour to $110 in non-death penalty cases and from $179 per hour to $164 in cases where capital punishment is being sought.
The reductions are aimed at saving $50 million during the next 13 months to avoid further cuts into the full-time staff of the federal defenders service. The defender program consists of both full-time public defenders, who have been targeted for furloughs and layoffs, and private court-appointed lawyers who assist in the representation of the indigent. In addition to the fee cuts, millions of dollars in fees to the outside court-appointed counsels, scheduled for payment in fiscal year 2014 (beginning in October), would be deferred into fiscal year 2015.
In the letter to Blake made public Monday, William Traxler Jr., chairman of the Judicial Conference's Executive Committee, warned that the fee cuts "may impact the delivery of justice, but are necessary to avoid permanent damage to the federal defender program."
"Measures of this kind, however, are not sustainable in the long term and certainly would not be required if the judiciary were receiving an appropriate level of funding in this account," Traxler said....
Notice of the fee reductions come less than a week after the chief judges of 87 federal districts warned congressional leaders and Vice President Biden that funding reductions to the judiciary have "put public safety at risk."
Although the number of convicted offenders supervised by probation officers is expected to increase from a record 187,311 in 2012 to 191,000 by 2014, the number of probation and pre-trial services officers employed by the judiciary to supervise those offenders has been reduced by 7% since 2011 to a staff of about 6,000....
"Cuts to officer staffing levels have forced cutbacks in these activities to crisis levels," the judges said in the letter last week. "Particularly troublesome is the 20% cut that had to be made to the … allotments that fund drug, mental health and sex offender treatment and testing services for offenders and electronic GPS monitoring."
U.S. District Judge Loretta Preska, chief judge of New York's Southern District and one of the two main authors of the judges' letter, said the appeal to Congress is the first she can remember in more than two decades on the bench. In her own district, forced budget reductions have hit the probation and treatment programs especially hard, Preska said in an interview, requiring a 43% cut in substance abuse treatment for offenders, a 7% drop in mental health treatment and a 24% cut in special location monitoring programs, including GPS monitoring of those on supervised release.
She said the reduction in attorneys' fees is "very dangerous" in regions of the country like New York, where legal fees are especially high. "Fees of $125 per hour is virtually charity work in New York," she said. "We want to make sure we can attract competent lawyers to join the panel" of court appointed attorneys. "We are very concerned," she said.
These cuts, though seemingly necessary because of the failure of Congress to act on funding issues, are hard to even consider "penny wise" and they are certainly "pound foolish." Less funding for evidence-based treatment programs are very likely to lead to increased recidivism and its associated long-term costs. And poor funding of defense services are very likely to lead to inadequate representation in some cases which likewise creates long-term costs due to future appeals and/or the imposition of excessive prison sentences.
I am pleased that the district judges are taking steps to alert Congress to the crisis that these budget issues are now producing, but I am disappointed that others in the federal judiciary are not also making a bigger deal about these issues. In particular, I believe both the US Sentencing Commission and the Justices of the Supreme Court could and should be saying a lot about these issues given that they both have unique institutional insights and responsibilities concerning the functioning and fairness of the federal criminal justice system.
Recent related posts:
- Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?
- "Sequestration Will Wreak Chaos On U.S. Federal Prisons"
- Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)
- "How the Sequester Threatens the U.S. Legal System"
- "Can Constitutional Rights Be Sequestered?"
August 19, 2013
Making the case for releasing more of the tens of thousands of "Graying Prisoners"Jamie Fellner, who is a senior adviser at Human Rights Watch and focuses on US criminal justice issues, has this notable new New York Times op-ed headlined "Graying Prisoners." Here are highlights:
More and more United States prisons resemble nursing homes with bars, where the elderly and infirm eke out shrunken lives. Prison isn’t easy for anyone, but it is especially punishing for those afflicted by the burdens of old age. Yet the old and the very old make up the fastest-growing segment of the prison population.... [A]t least 26,100 men and women 65 and older incarcerated in state and federal prisons, up 62 percent in just five years.
Owing largely to decades of tough-on-crime policies — mandatory minimum sentences, “three strikes” laws and the elimination of federal parole — these numbers are likely to increase as more and more prisoners remain incarcerated into their 70s and 80s, many until they die....
[S]ome older inmates committed violent crimes, and there are people who think such prisoners should leave prison only “in a pine box.” Anger, grief and the desire for retribution are understandable, and we can all agree that people who commit serious crimes should be held accountable. But retribution can shade into vengeance. While being old should not be an automatic get-out-of-jail-free card, infirmity and illness can change the calculus of what justice requires.
It is worth asking: What do we as a society get from keeping these people in prison? People like the 87-year-old I met who had an “L” painted on his left shoe and an “R” on his right so he would know which was which and who didn’t even seem to know he was in prison. Or the old men I watched play bingo in a prison day room who needed staff members to put the markers on the bingo cards for them.
Attorney General Eric Holder gave his answer to this question on Aug. 12 when he announced new compassionate release policies for the Bureau of Prisons. Elderly and infirm federal prisoners who have served a significant part of their sentence and pose no danger will now be eligible for early release.
Recidivism studies consistently show declining rates of crime with age. Those who are bedridden or in wheelchairs are not likely to go on crime sprees. The scores of older prisoners I have met want to spend their remaining time with their families; they are coming to terms with mortality, regret their past crimes and hope, if time permits, to make amends.
Keeping the elderly and infirm in prison is extraordinarily costly. Annual medical costs for older prisoners range from three to nine times higher than those for younger ones, because, as in the general population, older people behind bars have high rates of chronic disease and infirmities and require more hospitalizations and medical care.
I have talked with dozens of correctional staff members who acknowledge that officers are not trained to manage geriatric prisoners. Nor are there enough of them to give the extra attention such prisoners may need — to ensure they take their medications, find their way to their cell, are clean if they are incontinent.
So what can be done? Compassionate release and medical parole programs exist in many prison systems, but they are poorly used and often exclude people who committed violent crimes or sex offenses even if those people are no longer able to repeat such crimes.
If the programs were properly devised and used, some aging prisoners could go back to their families. Others could be released to nursing homes or assisted-living facilities — although it is increasingly difficult to find private facilities that will take former prisoners. States and the federal government should also jettison laws requiring mandatory sentences that condemn offenders to old age in prison, without regard to whether they pose a threat to the public or have the potential for rehabilitation.
If we aren’t willing to change sentencing laws or make more use of compassionate release, we’ll need to pour vast sums of money into prisons to provide adequate conditions of care for the soaring population of geriatric prisoners. That means investing in special training for correction officers; in round-the-clock medical care; in retrofitting buildings, wheelchair-accessible cells and bathrooms; in units with lower bunks and no stairs; and in increased hospice care for the terminally ill.
But do we really want to go that route? In the case of frail and incapacitated prisoners who can safely be released to spend what remains of their lives under supervised parole, release is a far more compassionate, sensible course.
Latest news on chemical logistical challenges now surrounding lethal injectionThe New York Times has this effective new report, headlined "Death Row Improvises, Lacking Lethal Mix," discussing some of the latest notable logistical realities surrounding lethal injection protocols. Here are excerpts:
The decision by the Missouri Supreme Court to allow propofol, the same powerful anesthetic that caused the death of Michael Jackson, to be used in executions — coming at a time when Texas, Ohio, Arkansas and other states are scrambling to come up with a new drug for their own lethal injections — is raising new questions about how the death penalty will be carried out.
“The bottom line is no matter what drugs they come up with, despite every avenue these states have pursued, every drug they have investigated has met a dead end,” said Deborah Denno, a professor at Fordham Law School who studies execution methods and the death penalty. “This affects every single execution in the country. It just stalls everything, stalls the process.”
With manufacturers now refusing to supply corrections departments with the drugs they had been using for executions, some states, like Georgia, have been resorting to obtaining drugs from compounding pharmacies — specialty drugmakers — which death penalty opponents say lack the proper quality control. Other states, as they run low on their old stock of drugs and are unable to replace them, are turning to new, untried methods like propofol or simply announcing that they are searching for a solution....
[Recent developments have] left states unsure of what to do when their stockpiles run out — use some other drug like propofol, buy versions of sodium thiopental or pentobarbital from a compounding pharmacy, or abandon lethal injections altogether and return to some other form of capital punishment.
“It’s an artificially created problem,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty. “There is no difficulty in using a sedative such as pentobarbital. It’s done every day in animal shelters throughout the country. But what we have is a conspiracy to choke off capital punishment by limiting the availability of drugs.”
The issue is expected to come to a head soon. Both Texas, the state with the busiest death house, and Ohio have said they would introduce a new lethal injection protocol in the next couple of months. Officials in both of those states have said in court filings that they would run out of their stockpiles in September.
“Corrections departments often buy a year’s supply of the drugs they use, but it has a shelf life and it’s expiring,” said Richard C. Dieter, the executive director of the Death Penalty Information Center. “I think we are about to have some new breakthroughs on what the states are using. A lot of them will probably follow whatever Texas decides to do.”
On Wednesday, the Missouri Supreme Court decided to allow executions using propofol to move ahead in October and November. There is no question that it would kill, but since it has never been used in an execution, death penalty opponents say, there is no way to say how much pain might be involved or what dose should be administered.
Arkansas had announced that it would use pentobarbital in its executions, but when that drug became unavailable, the governor refused to schedule any more executions until the state came up with a substitute — which has not happened. California also announced, in June, that it would abandon the use of a three-drug cocktail and is studying what to replace it with. “This drug issue is a temporary problem that is entirely fixable,” Mr. Scheidegger said. “It is not a long-term impediment to the resumption of capital punishment.”
Death penalty opponents, however, feel that the rejection of one drug after another will inevitably limit capital punishment.... There were 43 executions in the United States in 2012, Mr. Dieter said, and a slightly lower number — 30 to 40 — is expected this year....
“This issue of the drugs is just a way to stop things or slow them down,” said Robert Blecker, a professor of criminal law at New York Law School and a death penalty supporter. “It’s an abolitionist tactic to gum up the works. I know why they’re doing it. From their perspective, every death delayed is a day in favor of abolition. It’s just another tactic.”
I share the perspective that we may soon have "some new breakthroughs" on how states seek to conduct executions and that many states will "follow whatever Texas decides to do." I also expect that Texas state courts and the Fifth Circuit will be relatively unlikely to halt executions based on (inevitable?) legal challenges to any new lethal injection protocols or plans. But when and how other state courts and federal courts respond to such challenges may script whether the number of execution nationwide will continue to decline in coming years or may actually start to rise at some point in the not-too-distant future.
"Crack Cocaine, Congressional Inaction, and Equal Protection"The title of this post is the title of this new paper on SSRN authored by Paul Larkin Jr. and which appears to be critical of the Sixth Circuit's (now vacated) panel decision in US v. Blewett. Here is the abstract:
Related posts on Blewett:
For decades, scholars and courts have debated whether the Anti-Drug Abuse Act of 1986 discriminates against African Americans by imposing far stiffer punishments for trafficking in crack cocaine than in its powdered form. The academy has generally concluded that the federal crack cocaine sentencing laws are racially discriminatory, while the federal courts have almost uniformly rejected the same argument. Three years ago Congress, via the Fair Sentencing Act of 2010, addressed the issue by reducing, without eliminating, the sentencing disparity. Recently, the U.S. Court of Appeals for the Sixth Circuit in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), concluded that the 2010 statute would be unconstitutional if it were not applied retroactively. The Blewett case forces this debate back into the political arena.
The Sixth Circuit misapplied equal protection law. Rather than ask whether Congress refused to apply the Fair Sentencing Act retroactively for a discriminatory purpose, the court concluded that Congress’s decision to adopt a prospective-only statute was tantamount to readoption of Jim Crow. Settled law, however, requires proof of discriminatory intent. Moreover, Congress’s refusal to adopt retroactive legislation cannot violate the Due Process Clause. The clause applies only to positive law, so Congress cannot violate the clause by not enacting legislation. Finally, the Sixth Circuit failed to consider the effect of strict enforcement of the drug laws on the innocent residents of communities where crack trafficking occurs. It may be unwise to continue to imprison crack offenders for the full length of their prison terms imposed under the strict provisions of a now-amended law, but a mistaken decision is not invariably an unconstitutional one.
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
- "Crackheaded Ruling by Sixth Circuit"
- How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
- Two weeks later, has there been any significant and noteworthy Blewett blowback?
- As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling
- Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case
- My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett
- After supplemental Blewett briefing, Sixth Circuit panel stands pat
- Full Sixth Circuit grants en banc review in Blewett
August 19, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Notable inside-the-Beltway discussion of modern sentencing politics
The Washington Post has this notable new piece with lots of notable quotes and notes about the modern politics of sentencing reform. The piece is headlined "Cuccinelli says sentencing policy should be judged, in part, on cost," but it covers both federal and state sentencing politics. Here is how the article starts:
Five days after he announced his candidacy for governor of Virginia, Republican Ken Cuccinelli II showed a side of himself seemingly at odds with his reputation as a tough law-and-order conservative.
The Virginia attorney general stood proudly at a news conference in late 2011 announcing the exoneration of a Richmond man who had spent 27 years in prison after being falsely convicted of rape. Cuccinelli had personally championed the man’s innocence, a sign of the broad evolution in Cuccinelli’s views on crime and punishment that would also lead him to argue that a frugal government should be more discerning about whom it puts behind bars.
“There is an expectation that the generic Republican position is tough on crime,” Cuccinelli said in an interview Thursday. “But even that has budget limits, particularly on the prison side."
Two decades after Republican George Allen charged into the Virginia governorship by vowing to eliminate parole for violent offenders, a rhetorical shift among the state’s leading conservatives reflects changing attitudes toward criminal justice nationwide.
U.S. Attorney General Eric H. Holder Jr. underscored the new dynamic last week when he announced reforms aimed at reducing sentences for some low-level offenders and slowing massive growth in the nation’s prison population. Republicans, who have targeted Holder on other issues, were generally supportive. The attorney general urged passage of legislation that has been introduced in Congress with bipartisan support that would give judges more discretion in applying stiff sentences to some drug crimes.
One person who discussed the plans with Holder said that the Obama administration felt like the political terrain was safe to make those kinds of policy changes because of the “conservative cover." The person spoke on the condition of anonymity because the discussion was private.
Amid fiscal problems caused in part by massive prison populations and research showing that mass incarceration causes social harm, some leading conservatives have been pushing for reforms.
A generation ago, Republicans savaged Democrats as soft on crime, until former President Bill Clinton and others joined the GOP in a crackdown that continued even as the nation’s violent crime rate plummeted to historic lows. “This is a fundamental shift in how we see criminal justice," said David A. Harris, a University of Pittsburgh professor who studies crime and police. “There is a growing awareness of the fiscal and social costs of our great experiment in mass incarceration, and the balance has shifted from trying to look unrelentingly tough to asking what works best."
In a 1994 Gallup poll, 52 percent of Americans called crime the nation’s most pressing problem. Last month, that number was 2 percent. Other surveys show that fewer Americans support mandatory prison terms for offenders than in the mid-1990s, and fewer believe courts are too lenient with criminals.