December 28, 2013
Seeking nominations for top sentencing stories of 2013As time permits over the next few days, I likely will review the blog archives for 2013 and begin to assemble a list of what I consider the top sentencing stories for the year coming to a close. As is usually the case, significant sentencing decisions by the Supreme Court will be sure to make the list. But at least a few other development emerging from other courts and other branches are sure also to be noted.
As the title of this post reveals, I welcome and encourage input from readers as I think about what 2013 wrought.
George Will laments "mandatory minimums as sledgehammers"
This past week, Washington Post columnist George Will made heavy use of recent opinions by Judge John Gleeson to join the chorus of commentators lamenting federal mandatory minimum sentencing statutes. Here are the closing paragraphs from this commentary, headlined "The sledgehammer justice of mandatory minimum sentences":
Kenneth Harvey was 24 in 1989 when he committed a crack cocaine offense. He had two prior offenses that qualified as felony drug convictions even though they were not deemed serious enough for imprisonment. They, however, enabled the government to make an 851 filing. He will die in prison. Harvey is 48.
Thousands of prisoners are serving life without parole for nonviolent crimes. Gleeson, who is neither naive nor sentimental (as a prosecutor, he sent mobster John Gotti to die in a supermax prison), knows that most defendants who plead guilty are guilty. He is, however, dismayed at the use of the threat of mandatory minimums as “sledgehammers” to extort guilty pleas, effectively vitiating the right to a trial. Ninety-seven percent of federal convictions are without trials, sparing the government the burden of proving guilt beyond a reasonable doubt. Mere probable cause, and the meager presentation required for a grand jury indictment, suffices. “Judging is removed,” Gleeson says, “prosecutors become sentencers.” And when threats of draconian sentences compel guilty pleas, “some innocent people will plead guilty.”
Barack Obama, Attorney General Eric Holder and Sens. Pat Leahy (D-Vt.) and Rand Paul (R-Ky.) are questioning the regime of mandatory minimum sentences, including recidivism enhancements, that began with the Anti-Drug Abuse Act of 1986. Meanwhile, the human and financial costs of mass incarceration mount.
December 27, 2013
Fascinating lead-crime-rate forecast that incarceration levels will decline significantly in coming years
Regular readers know I am very intrigued by (but still at least a bit skeptical concerning) the social science research that suggest that lead exposure level better account for variations in violent crime rates than any other single variable. Consequently, I have to link to this new item sent my way by researcher Rick Nevin, titled "It Will Not Take 88 Years to End Mass Incarceration," which responds to a recent commentary by sentencing reform advocates (noted in this post) lamenting how little incarceration rates have declined even as crime has continued its historic decline over the last decade. Without vouching for the data, I am eager to highlight Nevin's concluding sentiments in this interesting little data discussion:
Nevin (2000) showed that per capita use of lead in gasoline from 1941-1975 explained 90% of the variation in the USA violent crime rate from 1964 to 1998. Nevin (2007) showed the same relationship between preschool lead exposure trends and violent and property crime trends in the USA, Britain, Canada, West Germany, Finland, France, Italy, New Zealand, and Australia. The time lag in every nation reflected lead-induced neurodevelopmental damage in the first years of life affecting behavior in the late-teens and 20s when offending peaks. The best-fit lag for burglary was 18 years, reflecting property crime arrests that have historically peaked at ages 15-20. The best-fit for violent crime was 23 years, consistent with violent crime arrest rates that have peaked in the early-20s.
The ongoing violent crime rate decline (down 32% from 1998-2012) has been slowed by an increase in older offenders born across years of pandemic lead poisoning. This has been slowed by an increase in older offenders born across years of pandemic lead poisoning. This rise in arrest rates for older adults has occurred even as juvenile arrest rates have fallen to record lows, due to ongoing declines in lead paint exposure over the 1990s.
The Sentencing Project and other advocates for sentencing reform need to acknowledge the extreme divergence in arrest and incarceration trends by age. Opponents of sentencing reform often assume that “mass incarceration” is a key factor behind the USA crime decline over the past two decades, but arrest and incarceration trends by age discredit that theory: The largest arrest rate declines have been recorded by younger age groups that have also recorded large incarceration rate declines, while arrest rates have increased for older age groups despite rising incarceration rates for older adults.
Arrest and incarceration trends by age also cast doubt on the theory that budget constraints and public policy reforms have been a large factor in the overall prison population decline over recent years. The declining prison population is clearly not explained by shorter prison terms or early releases for older prisoners, but by steep arrest rate declines for younger Americans. It isn’t the public policies that have changed: It’s the people, and specifically the percent of people poisoned by lead exposure in early childhood.
Some recent related posts:
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Do lead exposure realities continue to best explain modern crime-rate realities?:
- Uh-oh: BJS reporting significant spike up in violent and property crime for 2012
- FBI releases 2012 crime statistics showing stability in relatively low crime rates
- New National Academy of Sciences effort seeking to unpack the crime decline
As fights over John Hinckley's fate continue three decades after his violent crime, what are enduring CJ legacies or lessons?
The question in the title of this post is prompted by this interesting recent Politico piece headlined "Hinckley home for the holidays." Here are the basics:
John Hinckley will almost certainly be home for the holidays, which will bring much joy to his 86-year-old mother but not to the U.S. Justice Department. No matter whether there has been a Democrat in the White House or a Republican, the Justice Department has argued against letting Hinckley out of the mental hospital where he has been incarcerated since 1982.
His family, lawyers and a number of psychiatrists and psychologists who have treated Hinckley over the years say he has responded successfully to treatment, is no longer a danger to himself and others, and that he should be allowed more and more days outside the hospital.
Hinckley had been allowed 10 days per month to visit his mother in Williamsburg, Va. He is not allowed to make visits in Washington because the president of the United States lives in Washington and the last time Hinckley came across a president, Hinckley shot him. Hinckley is also not allowed to visit his sister in Dallas, because the home of former President George W. Bush is a 10-minute walk away. Even in Williamsburg, Hinckley is trailed by Secret Service agents, and he must carry a GPS-enabled phone that tracks his whereabouts.
On average, a person convicted of a violent crime in America serves about five years in prison. Hinckley has served 31 years in St. Elizabeths Hospital, even though he was found not guilty of any crime because a jury decided he was insane at the time he shot Ronald Reagan, press secretary James Brady, D.C. police officer Thomas Delahanty and Secret Service agent Timothy McCarthy....
Last week, a federal judge extended the amount of time Hinckley can spend outside St. Elizabeths to 17 days per month. The seriousness with which Hinckley’s request for added visiting time was treated is indicative of how seriously the government still takes his case: Over a four-month period, lawyers battled for two weeks, and the judge’s decision was an incredible 106 pages long....
The hearing did provide some droll moments. In arguing that Hinckley was not fit to be outside of his mental hospital for a longer period of time, the government said one of his girlfriends at St. Elizabeths was “floridly psychotic.” To which Hinckley’s lawyer replied: “Who is he going to meet at St. Elizabeths?”
Hinckley’s case contains some valuable lessons: The insanity defense is very rarely used in America and usually fails when it is used. Hinckley succeeded, but what has it gotten him? More than three decades in a mental hospital may be better than more than three decades in prison, but unlike a prisoner serving a sentence with a maximum number of years, Hinckley, 58, can be locked up in the hospital until he dies.
Before Hinckley shot Reagan, he had been stalking Jimmy Carter. In October, 1980, Hinckley was arrested at Nashville’s Metropolitan Airport for concealing three handguns and 30 rounds of ammunition in his carry-on luggage. He paid a fine of $62.50 and was released from custody. Four days later, Hinckley, who had undergone psychiatric treatment for depression, went to Dallas, where he bought a gun and six bullets at a pawnshop for $47. Hinckley used this weapon to shoot Ronald Reagan, James Brady and the two law enforcement officers.
Today’s Brady law, which was enacted in 1993 and requires background checks for some gun purchases, is named for James Brady and might have prevented Hinckley from buying that gun. In 1988, his last full year in office, Reagan endorsed the Brady Bill, even though Reagan was not a fan of gun-control laws. His personal affection for Brady might have had something to do with it, but Reagan also said it was a good idea to see if a potential gun buyer had “a record of any crimes or mental problems, or anything of that kind.” The National Rifle Association condemned Reagan’s statement.
St. Elizabeths, built in 1855 as the Government Hospital for the Insane, once housed 8,000 patients. As the hospital crumbled from neglect, and as laws and attitudes about mentally ill people changed, the population dropped to its current 300 and a new hospital was built in 2010. St. Elizabeths no longer needs all of its vast 350 acres, where feral cats still roam, some of which are cared for by Hinckley, who often visits PetSmart on his home visits right after he goes to Wendy’s. About 176 acres of the property will be used for the new $3.4 billion headquarters complex of the Department of Homeland Security.
As most criminal law professors know, one of the legal legacies of Hinckley's case was a significant retrenchment of insanity doctrines in many states. But as Hinckley's own case may highlight, perhaps that it is ultimately a blessing and not a curse even for mentally unstable criminal defendants. And, as most gun control advocates know, Hickley's crime created a uniquely potent person and symbol in support of gun control laws. But as recent high-profile deadly shootings highlight, there is reason to perhaps fear that the US is unable or unwilling to pursue gun control laws that would be likely able to prevent mentally unstable persons from having access to firearms.
"White man charged with 'knockout game' hate crime. Racial hypocrisy?"
Folks on this blog (myself included) often discuss and debate the impact of racial issues, federalism and prosecutorial discretion on the operation of our nation's criminal justice systems. Consequently, this new Christian Science Monitor article with the same headline of this post just caught my eye as blogworthy. Here is the article's subheading: "The Obama administration's decision to charge a white man with a hate crime for allegedly punching a black man as part of the knockout game has led to criticism that it is applying the law unevenly." And here is more from the piece:
The US Department of Justice on Thursday stepped into the cultural fray about the so-called “knockout game” when it brought federal hate crime charges against a white Texas man for assaulting an unsuspecting black man.
The decision shines a brighter spotlight on the knockout game, in which an assailant tries to knock out a bystander with a single punch. A spate of incidents have gathered national attention in recent months, though it is unclear whether the game has become more popular or whether the Internet has simply allowed for isolated incidents to be broadcast more widely.
The majority of the reported incidents, however, have involved black men targeting white victims – and none triggered federal involvement. The fact that the Justice Department has elected to step in now, when a black man was the victim, has led to criticism among conservative pundits that the Obama administration is applying the hate-crime statute unevenly....
Conrad Barrett was arrested Thursday and charged under federal hate crimes law, which defines a hate crime as “motivated by enmity or animus against a protected class.” (The Federal Bureau of Investigation also lists anti-white crimes as hate crimes.)...
Federal prosecutors say Mr. Barrett planned the Nov. 24 attack, which he filmed with his cellphone. He approached “G.C.”, an elderly black man, and said, “How’s it going, man?” then punched him so hard that G.C.'s jaw was broken in two places and he lost three teeth. Barrett then allegedly cried “knockout!” and ran.
He was caught after he told the tale at a bar, where an off-duty cop was present. Federal prosecutors argue that the attack was motivated by racial animus because police uncovered videos where Barrett allegedly used racial epithets and at one point said that black people “haven’t fully experienced the blessing of evolution.” In another video from the day of the assault, Barrett says, “If I were to hit a black person, would this be nationally televised?”
A single hate crime charge carries a maximum of 10 years in federal prison and a $250,000 fine.
Some conservative bloggers see racial hypocrisy in the charges. “This case shows how warped law enforcement has gotten as a result of hate crime legislation,” writes Rick Moran on the American Thinker blog. “No matter who is in charge, the law will always be selectively enforced. It makes a mockery of the notion of equal justice under the law.”
Concern about the game has percolated within the black community. This fall, several black leaders, including Philadelphia Mayor Michael Nutter, spoke out about the knockout game and warned black parents, in particular, about the consequences for dangerous behavior by their kids.
Hate crime charges have been brought this year against one black suspect accused of playing the knockout game, but they were state charges brought by New York in the case of a knocked-out Jewish man.
For his part, Jack Levin, a criminologist at Northeastern University in Boston, is not convinced that knockout game attacks are growing. He argues in an upcoming journal article that racially fueled knockout attacks are in the news is because they’ve actually become rarer than in the past, so they are more notable. The 1990s, he says, had far more reports of so-called “thrill hate crimes” -- think white teenagers beating up homeless men....
According to FBI hate crime statistics, 22 percent of the 3,297 reported racially motivated hate crimes in 2012 were anti-white, while 66 percent were anti-black. (Others included anti-Pacific Islander and anti-Alaskan native attacks.) The Justice Department insisted Thursday that it does not discriminate in how it makes decisions on hate crime charges. “Suspected crimes of this nature will simply not be tolerated,” said US Attorney Kenneth Magidson of the Southern District of Texas. “Evidence of hate crimes will be vigorously investigated and prosecuted with the assistance of all our partners to the fullest extent of the law.”
Especially in light of the fact that "thrill" beatings are likely always to be localized assaults and that such crimes may actually be declining even as media reports about them increased, I am inclined to criticize the feds for getting involved at all before I will express concerns about racial disparities in how local federal prosecutors decide to bring hate-crime federal charges. More broadly, to the extent that a lot of federal involvement in state matters has often been justified by a concerns that southern courts have in the past been much more concerned about white victim than black ones, the fact that the feds have gotten involved in a case like this in Texas (perhaps after state authorities were slow to respond) involving a younger hoodlum going after elderly man, makes me hesitant to throw around labels like racial hypocrisy until I had more detailed information about why prosecutors moved forward with federal charges in this case but not in others.
That all said, this case and the reaction thereto provides further support for my belief that everyone tends to favor a potent federal criminal justice system and unregulated federal prosecutorial discretion unless and until the feds start using their broad powers in ways that a particular group dislikes.
December 26, 2013
Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders
Thanks to this Christmas night post at How Appealing, I just discovered that on Christmas eve the Supreme Judicial Court of Massachusetts issued two big related rulings (available here and here) which not only held that the Supreme Court's Miller ruling is to be applied retroactively but also that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights." Because I am on the road today, I will not have the chance to consume this significant rulings fully, but I can here link to and quote from this lengthy report on the rulings from the Boston Globe:
The state’s highest court struck down life sentences without parole for juveniles on Tuesday, saying scientific research shows that lifelong imprisonment for youths is cruel and unusual because their brains are “not fully developed.”
The Massachusetts Supreme Judicial Court decision is retroactive, meaning that, as one example, John Odgren, the suburban special needs student who stabbed 15-year-old James F. Alenson in the bathroom at Lincoln-Sudbury Regional High School on Jan. 19, 2007, and received a mandatory life sentence, now could have a chance of parole one day.
“We are very hopeful that the parole board is going to examine these kids’ lives carefully and will be giving them a real meaningful opportunity for release,” said Patty Garin, Odgren’s attorney. But some district attorneys said they were concerned about the ruling and would argue against parole in some cases.
The decision is a marked reversal for Massachusetts, where juveniles found guilty of murder have faced some of the harshest laws in the nation. The decision also is notable for its reliance on the growing field of research into the juvenile brain.
“Simply put, because the brain of a juvenile is not fully developed, either structurally or functionally, by the age of eighteen, a judge cannot find with confidence that a particular offender, at that point in time, is irretrievably depraved,” the court wrote. “Therefore, it follows that the judge cannot ascertain, with any reasonable degree of certainty, whether imposition of this most severe punishment is warranted.”...
The ruling goes farther than the Supreme Court decision in 2012 that struck down automatic sentences of life without parole for juveniles.... Because the Massachusetts high court’s decision is retroactive, prisoners sentenced as juveniles will “at the appropriate time” be afforded a parole hearing.
Lawyers said such inmates will have to have served at least 15 years before being considered for parole. There are currently 63 inmates in Massachusetts who were sentenced when they were juveniles to life sentences without the possibility of parole for first-degree murder....
The decision drew immediate praise from Governor Deval Patrick, who in September signed legislation that raises the age of juvenile jurisdiction from 17 to 18 and has pushed to reduce the number of teenagers sentenced to life without the possibility of parole. “I applaud today’s Supreme Judicial Court’s ruling,” the governor said in a statement. “Young people, even ones who commit terrible crimes, are developmentally and now constitutionally different from adults. Our SJC has wisely held that, while violent felons will be held accountable, youthful ones deserve every opportunity for rehabilitation.”
Some district attorneys questioned the decision. Essex District Attorney Jonathan W. Blodgett said the ruling will strip away the closure that victims’ families believed they had gained. “I am concerned for families who thought they had finality about their loved ones being murdered,” said Blodgett, who is president of the Massachusetts District Attorneys Association. “Now they have to go through these parole hearings.”
Suffolk District Attorney Daniel F. Conley said in a statement, “We are mindful of the literature on young adults’ brain development, and we already exercise great discretion in charging juveniles with murder. But we’re also keenly aware of the cases at issue here. Some fact patterns demand life imprisonment. Some defendants do not deserve parole. We will argue — as often and as forcefully as necessary — against parole in those cases.”
For years, Massachusetts has had some of the most punitive penalties in the country for juvenile offenders convicted of murder. Two decades ago a series of brutal murders galvanized public demands for harsher penalties. In 1996, legislators responded with a law that mandated that juveniles 14 years and older charged with murder be tried as adults.
Because Massachusetts’ penalties for first-degree murder is mandatory life without parole juveniles found guilty of that crime faced a lifetime of incarceration. As a result, Massachusetts became a leader in the number of youths facing life sentences without parole.
As of last year, the majority of youth with such sentences were concentrated in Massachusetts and four other states: California, Louisiana, Michigan, and Pennsylvania, according to the Campaign for the Fair Sentencing of Youth. “People thought if we have an extreme response, kids would stop doing bad things, and that has not turned out to be true,” said Naoka Carey, executive director of Citizens for Juvenile Justice, a nonprofit based in Massachusetts.
Carey said the SJC ruling brings Massachusetts back to the middle — she noted that other states that have abolished life without parole for juveniles include Wyoming, Colorado, and Texas. “We’re in some conservative company,” she said.
State legislative leaders said they plan to move quickly to overhaul juvenile sentencing laws that might conflict with Tuesday’s ruling. “The legislation currently pending that require the eradication of such sentences will be fast-tracked to ensure constitutional compliance with the ruling of the SJC,” said Representative Eugene L. O’Flaherty, a Chelsea Democrat who is the House chairman of the Judiciary Committee. Carey said there are currently a number of legislative options, but that any law will have to give meaningful opportunity for parole.
The SJC’s ruling came in the case of Gregory Diatchenko, who was 17 in 1981 when he murdered a man in a car in Kenmore Square. He has been in prison for more than three decades. The court ruled that he was eligible to be considered for parole immediately....
“I’m happy that Gregory Diatchenko is going to have a meaningful opportunity for release, which he deserves. He’s a living embodiment of what the [Supreme Court] case was all about. He does not deserve to die in prison. He’s not who he was when he was 17,” said Benjamin Keehn, Diatchenko’s attorney. Keehn was on his way to see his client at MCI Norfolk on Tuesday to relay the news. He said his client is 49 years old, two credits shy of a bachelors degree, and has been a Buddhist for over 10 years.
The court also ruled in the separate case of Marquise Brown, who was convicted of first-degree murder in a 2009 slaying. He has not been sentenced. The court ruled that because Brown was 17 at the time of his crime, he cannot be sentenced to life without parole.
The Diatchenko ruling was unanimous. In a concurring opinion, Justices Ralph Gants, Barbara Lenk, and Fernande R.V. Duffly, emphasized that defendants need to have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” They urged that decisions on parole be informed by an attention to the “distinctive attributes of youth.
December 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
December 25, 2013
Astute commentary concerning meager crack clemency mercy finally shown by Prez Obama
In part because long-overdue and still meager grants of clemency by President Obama garnered so much MSM attention, I have not blogged much more about the Prez's decision to commute a few crack sentences last week (basics here). But especially on this holy day, I thought it useful to provide links to a few subsequent piece of commentary that effectively highlight why a lot more use of the clemency power is still needed and justified for mercy to even be even a glimmer of hope for the tens of thousands of non-violent offenders still serving the harsh sentences that the federal criminal justice system too regularly hands out:
Senators Paul and Booker celebrate Festivus with sentencing and drug war reform tweeting
As highlighted in this article, "Sen. Rand Paul's (R-Ky.) 'airing of grievances' on Twitter Monday morning actually led to an important side discussion between him and Sen. Cory Booker (D-N.J.) about drug policy — one that could preview a renewed push on reforms next year." Here is more:
It started when Paul, during his homage to "Seinfeld," joked that one of his grievances was with the Twitter-savvy Booker: "One more Festivus grievance about bipartisanship. @CoryBooker doesn't RT me enough."
Booker responded, in kind: "U, me & 'feats of strength:' Senate floor, name the time MT"
Then things got a little more serious: "@CoryBooker how about mandatory minimum sentencing reform instead?"
And then Booker threw in a caveat of his own: "Yes, If u throw in reforming Fed Hemp & Marijuana laws u've got a deal! RT"
Paul reminded him of his stance on reforming marijuana laws: "@CoryBooker I am the Senate author of Hemp bill!"
Booker ended it by declaring an end to the "War on Drugs" in 2014: "I know. U told me last week. Here is to a 2014 where we take on the failed war on drugs RT"
I am pleased that the two Senators who have talked the most about federal sentencing reform have extended the discussion to the Twitterverse. But, as I have said before and will keep saying again, reform talk is cheap and only meaningful if and when advocates can turn this talk into action.
Some recent and older related posts:
- Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?
- Is it too early want the new Senator from NJ to get going on sentencing reform?
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"
- Does Senator Ted Cruz agree with GOP Senators Mike Lee and Rand Paul about the need for federal sentencing reform?
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
- Another notable GOP member of Congress advocating for federal sentencing reform
Controversial Montana judge adds notable writing requirement to max sentence for assault
As reported in this Los Angeles Times article, headlined "Judge sentences man to write 'boys do not hit girls' 5,000 times," a Montana judge who made headlines for a lenient sentence in a rape case is now making news with a novel sentence in an assault case. Here are the details:
The Montana judge who sparked ire by sentencing a former teacher to 30 days in jail for the rape of a 14-year-old girl has ordered a man convicted of punching his girlfriend to write “Boys do not hit girls,” 5,000 times.
District Judge G. Todd Baugh, whose actions in the rape case sparked a national furor and a petition drive to have state officials take disciplinary action, sentenced Pace Anthony Ferguson on Monday to the writing exercise, in addition to six months in jail, for fracturing the woman’s face in three places during an August 2012 argument. Ferguson, 27, also was ordered to pay $3,800 in medical bills that came as a result of the woman's injuries.
Baugh told Ferguson to number the list, 1 through 5,000, sign it and mail it to him by May 23, according to the Billings Gazette. The six months in county jail is the maximum allowed sentence for the misdemeanor assault.
Ferguson made two appearances in court on Monday. After being sentenced by Baugh, Ferguson appeared before District Judge Gregory R. Todd for a disposition hearing. The judge ruled that Ferguson had violated the terms of his release from prison after a 2003 robbery conviction and ordered the man to spend eight years in state prison.
December 23, 2013
"Can We Wait 88 Years to End Mass Incarceration?"
The title of this post is the headline of this new Huffington Post commentary by Marc Mauer and Nazgol Ghandnoosh of The Sentencing Project. Here is how it gets started:
By many measures, there is growing momentum for criminal justice reform. Changes in federal drug-sentencing policy, passed by Congress in 2010, will help to reduce sentence lengths and racial disparity. We hear less "tough on crime" rhetoric and budget-conscious conservatives are embracing sentencing reforms. The Attorney General has criticized aspects of the criminal justice system and directed federal prosecutors to seek reduced sanctions against lower-level offenders.
In light of this, one would think we should celebrate the new figures from the Bureau of Justice Statistics (BJS) showing a decline in the U.S. prison population for the third consecutive year. This follows rising prisoner counts for every year between 1973 and 2010. BJS reports that 28 states reduced their prison populations in 2012, contributing to a national reduction of 29,000. Beset by budget constraints and a growing concern for effective approaches to public safety, state policymakers have begun downsizing unsustainable institutional populations.
The break in the prison population's unremitting growth offers an overdue reprieve and a cause for hope for sustained reversal of the nearly four-decade growth pattern. But any optimism needs to be tempered by the very modest rate of decline, 1.8 percent in the past year. At this rate, it will take until 2101 -- 88 years -- for the prison population to return to its 1980 level.
Other developments should also curb our enthusiasm. The population in federal prisons has yet to decline. And even among the states, the trend is not uniformly or unreservedly positive. Most states that trimmed their prison populations in 2012 did so by small amounts -- eight registered declines of less than 1 percent. Further, over half of the 2012 prison count reduction comes from the 10 percent decline in California's prison population, required by a Supreme Court mandate. But even that state's achievement is partly illusory, as it has been accompanied by increasing county jail admissions.
Three states stand out for making significant cuts in their prison populations in the past decade: New York (19 percent), California (17 percent), and New Jersey (17 percent). The reductions in New York and New Jersey have been in part a function of reduced crime levels, but also changes in policy and practice designed to reduce the number of lower-level drug offenders and parole violators in prison. But the pace of reductions in most other states has been quite modest. Moreover, 22 states still subscribed to an outdated model of prisoner expansion in 2012.
Reviewing the state of the death penalty in the Buckeye state
One of many reasons I am so very grateful to be able to teach and research sentencing law and policy at The Ohio State University Moritz College of Law is because Ohio is an especially interesting and dynamic state with respect to its application of the death penalty. And this local article, headlined "Ohio executes inmates more than most states: State is 4th among 32 with death penalty, while support, availability of drugs wane," provides an effective review of the state of the death penalty in the state these days. Here are excerpts:
Three ... executions occurred in Ohio [in 2013], which ranked fourth in executions behind Texas, Florida and Oklahoma.... Those executed were Frederick Treesh for the 1984 murder of Henry Dupree in Lake County; Steven T. Smith for the 1998 murder of Autumn Carter in Richland County; and Harry Mitts Jr. for the 1994 murders of John Bryant and Sgt. Dennis Glivar in Cuyahoga County. Billy Slagle was set to be executed this year for the 1988 murder of Mari Anne Pope in Cuyahoga County, but he committed suicide just days before the scheduled date.
Mitts was the last prisoner executed before the state’s supply of pentobarbital expired. Ohio’s new policy would use a never-tested combination of midazolam and hydromorphone if pentobarbital became unavailable.
Convicted murderer Ronald Phillips was scheduled to be the first recipient of the drug combination, but Gov. John Kasich delayed Phillips’ execution until July to see whether the inmate could donate his organs to ailing relatives.
Now, Dennis McGuire, who raped and fatally stabbed a pregnant woman, is set to be the first executed with the new combination. He is seeking a reprieve of his execution, which is scheduled for Jan. 16....
The number of inmates on Ohio’s death row, currently 140, has declined every year since 2003, according to December population counts from the state prison system.
A task force assembled by the Ohio Supreme Court and Ohio State Bar Association in 2011 to review Ohio’s use of the death penalty has made several suggestions for changes to state law. Those include eliminating the death penalty for inmates with serious mental illness during the time of the offense and standardizing pay for attorneys defending capital cases....
Several bills introduced this year address the death penalty, yet none has received a committee vote. One introduced by House Democrats would abolish the death penalty, whereas another backed by Senate Democrats would spare anyone sentenced to death because of race. A Cincinnati Republican wants to expand the death penalty to repeat sex offenders....
Ohio has executed 52 inmates since 1999 — all were men and nearly two-thirds were white. The highest number of executions in a year since Ohio reinstated the death penalty in 1981 was eight in 2010, according to the Ohio Department of Rehabilitation and Correction. Ohio has set six executions for 2014, six for 2015 and one for 2016.
Eleven prisoners have been executed during Kasich’s tenure compared with nine in the first three years of predecessor Gov. Ted Strickland, a Democrat, and two in the first three years of Republican Bob Taft’s tenure. Kasich has commuted four death row inmates’ sentences to life in prison without parole; Strickland commuted five death sentences over four years.
None of the states that surround Ohio executed a prisoner in 2013. Michigan and West Virginia are among the 18 states that do not have a death penalty.
Isn't it crazy (and one reason for much dysfunction) that California does not have some kind of sentencing commission?
I have written a law review article emphasizing that the mere existence of a sentencing commission within a jurisdiction does not magically solve or even necessarily improve the development of sentencing and corrections laws and policies in that jurisdiction. Indeed, some might reasonably claim that in jurisdictions that have other agencies collecting system-wide data, a sentencing commission can become a costly luxury that may at times do more harm than good.
That all said, and as the question in the title of this post highlights, it strikes me as truly nuts that California has never created some kind of sentencing commission to assemble at least basic state-wide sentencing information. Indeed, given the huge mess that has long been California's massive sentencing and corrections system, and given the crisis-mode reforms and regulations imposed by judges and governors for decades now, I have to think any kind of sentencing commission in California would be able to improve matters in some way at least by being the go-to location for information about what the heck is even going on in the state on a range of sentencing and corrections issues.
These matters come to mind in reaction to this notable new article in the Sacramento Bee headlined "Sentencing commission, suggested in Sacramento, faces long odds." Here are excerpts:
Key California lawmakers this summer suggested that a commission to review and overhaul criminal sentences not only could bring coherence to a disjointed system but also perhaps ease chronic prison overcrowding in the long term. But the idea now appears stalled, despite the incentive of federal litigation that could force Gov. Jerry Brown to release as many as 10,000 inmates next spring.
Lawmakers chastened by a history of unsuccessful sentencing commission bills hold out little hope that this time could be different. “These issues are hard,” Sen. President Pro Tem Darrell Steinberg, D-Sacramento, said in an interview last week. “They’re hard to bite off politically.”
The notion of a panel to overhaul California’s penal code has percolated for decades but eluded proponents time and again. Supporters argue that a steady accumulation of different regulations, layered on top of one another over time, has led to a labyrinth of sentencing guidelines. “There is a lot of disproportionate punishment in our penal code, and that’s because not uncommonly a horrible crime may be committed in someone’s district and so the response is legislatively to get tougher,” said Sen. Mark Leno, D-San Francisco. “These are emotional issues,” he added, “and to have politics infused in all of our decision-making does not create the most sound public policy.”
State sentencing commissions are typically independent bodies, appointed by officials, that study a state’s galaxy of sentencing laws and condense them into a comprehensive framework. They issue guidelines that would increase or decrease sentences for various categories of crimes. That troubles some law enforcement leaders who see the potential for weakened sentences. And it rattles lawmakers wary about constituents – or future electoral opponents – who could hold them responsible for changes that emanated from an unelected body.
“No legislative body wants to give up power,” said Rep. Karen Bass, D-Los Angeles, a former Assembly speaker who pursued a sentencing commission during her time in the Legislature.
Historically, the state’s law enforcement community has been hostile to allowing appointed entities to dictate consequences for crimes. District attorneys, sheriffs and police chiefs have opposed past efforts, raising concerns about who would sit on panels with expansive authority to reshape criminal justice. “In California, the only times sentencing commissions come up, it has been code for sentence reductions,” said Sacramento County District Attorney Jan Scully.
But the idea resurfaced this summer when Gov. Jerry Brown, seeking to satisfy a federal order to reduce California’s prison population without resorting to more early releases, proposed spending an additional $315 million to provide more cells. Steinberg broke with the governor, rallying Senate Democrats behind an alternate plan that questioned expanded capacity.
Among other provisions, Steinberg’s blueprint included a detailed plan for immediately creating an 18-member sentencing commission that could provide recommendations by the end of 2014. A letter to Brown argued that “short-term fixes provide no sustainable remedy.” Steinberg’s letter said the panel would make recommendations aimed at “long-term prison capacity, staying within the (prison capacity) cap, including changes in criminal sentencing and evidence-based programming for criminal offenders.” He included private poll results that showed nearly three-fourths of Californians supported a panel “to streamline California’s criminal statutes with the goal of safely reducing prison costs and maximizing public safety.”
But by summer’s end, the governor got his cash infusion. The final bill also created a special corrections policy committee tasked with broadly examining criminal justice in California. Last week, Steinberg called sentencing reform “a key piece” of rethinking the state’s criminal justice system. But he expressed doubt that substantial changes would materialize in the coming legislative session....
This session, Leno carried his second consecutive bill easing penalties for simple drug possession. Brown vetoed it. Part of Leno’s argument emphasized the state’s uneven sentencing statutes, which make possession of cocaine a felony but allow possession of Ecstasy or methamphetamine to be charged as misdemeanors. Leno cited such inconsistencies in arguing that the sentencing commission is “an idea whose time has come,” adding that the state’s struggles to reduce its prison population “only underscores the need for it.”...
Past sentencing commission efforts have self-destructed because the panel’s recommendations, though subject to legislative approval, would have carried the force of law, argued Sen. Loni Hancock, D-Berkeley. By contrast, Steinberg proposed a purely advisory body.
After seeing previous resentencing campaigns stymied, Hancock said an advisory commission may be the only tenable approach. Even if a commission’s recommendations remain just that, Hancock said she would push to see them implemented. “It’s just so important to cast some rational light on what goes on with our sentencing that I would be happy to see one that makes discretionary recommendations,” Hancock said.
I am pleased to hear there is talk of making a sentencing commission advisory in California because that should be one key to making such an entity a viable reality. But, were I a lawmaker in California, my proposal for a CA sentencing commission would be for the entire voting body of any such commission to be staffed only with district attorneys, sheriffs and police chiefs and for these folks on the CA commission to always have a majority of voting members. In that way, it should and could be clear that having a CA sentencing commission would not be code for sentence reductions but rather just a means for seeking greater sentencing rationality and information as defined by those very state actors elected and most responsible to the voters for seeking to ensure public safety and sensible use of tax resources to that end.
December 22, 2013
A notable reader reaction to study about youthful pot usage
I received (and got permission to post here) this notable e-mail from a reader expressing concerns about studies that indicate negative effects from youths using marijuana:
I just read your commentary on daily use of marijuana with teenagers and it's relation to memory loss and alleged relationships to schizophrenia. Perhaps there is some truth to that claim for persons who would of otherwise become schizophrenic without using marijuana. However, in my personal experiences and witnessing of 100's of friends, parents, relatives, professional, doctors, lawyers, etc., in the U.S. and abroad I can reassure the Gov't and the general public that such a report is either biased or manipulated to result in such a outrageous claim. If we the public were to believe everything from FDA, the USDA, or the DEA, we would all be unhealthy, unhappy, and extremely naïve.
My personal experience suggest just the opposite of the article you commented on. I admit I am unique when it comes to beginning my marijuana experience but nevertheless I first tried in the 2nd grade, then again in the 3rd and 4th grade. It was not until the 5th and 6th grade when I and friends began to use more heavily specifically 2 nights/week. Then intermittently there after until the present (I'm 44 y/o). I am a heterosexual, athletic, educated (graduate degree), responsible father, tax/law abiding citizens who functions in society without any abnormalities medically, psychologically, or socially. I have no cri
minal records etc. Essentially there are special interest groups that can only beat the drum of portraying marijuana as a negative drug. Unfortunately this is all these groups can do because the scientific evidence (facts) is not there to prove otherwise. More importantly reports from gov't agencies or even world renowned university's can be extremely biased based on who is funding the research.
When the public demands alcohol, nicotine or caffeine the public gets it. The same is true with marijuana with the exception of legal hurdles which are being experienced today. The facts of the effects of alcohol and tobacco on the youth and general public are astronomical medically and financially speaking. The deaths related to these two legal drugs per year are astounding (Do some real research from professional journals for more information than you want to know concerning real numbers of fatalities). The Irony of alcohol and nicotine being legal and marijuana illegal is as illogical as letting a convicted murder free from jail and arresting a innocent citizen and placing them in jail for that same murder.
If folks like yourself truly believe marijuana is an evil and harmful toward young people or any person with non biased objectionable research to prove otherwise and to not advocate simultaneously for the prohibition of alcohol and tobacco you and your constituents are as discreditable, unbelievable as a typical con man selling snake oil.