July 9, 2014
"States Push For Prison Sentence Overhaul; Prosecutors Push Back"
The title of this post is the headline of this new NPR story highlighting who is at the forefront of efforts to thwart sentencing reforms these days. Here are excerpts:
Some red states like Louisiana and Texas have emerged as leaders in a new movement: to divert offenders from prisons and into drug treatment, work release and other incarceration alternatives. By most counts, Louisiana has the highest incarceration rate in the country. In recent years, sentencing reformers in the capital, Baton Rouge, have loosened some mandatory minimum sentences and have made parole slightly easier for offenders to get.
But as reformers in Louisiana push for change, they're also running into stiffening resistance — especially from local prosecutors. It's all happening as the number of Americans behind bars has started to decline. There are multiple reasons for that, including crime rates that have been dropping since the 1990s, as well as the impact of the Supreme Court's 2011 requirement that tough-on-crime California reduce its prison population.
And there's another factor: a growing bipartisan consensus for sentencing reform. Local politicians are getting political cover for those efforts from conservative groups like Right on Crime. "It is a growing consensus on the right that this is the direction we want to be going," says Kevin Kane, of the libertarian-leaning Pelican Institute for Public Policy in Louisiana. "Most people will point to, 'Well, it's saving money, and that's all conservatives care about.' But I think it goes beyond that."
Kane says libertarians are interested in limiting the government's power to lock people away, while the religious right likes the idea of giving people a shot at redemption — especially when it comes to nonviolent drug offenders.
Still, not everyone is embracing these ideas. In some places, there's been considerable pushback — especially when the idea of eliminating prison time for drug offenders arises....
Liz Mangham, a lobbyist, has represented the conservative sentencing reformers in Baton Rouge. While they've made progress, she says they appeared to cross a red line this spring with a bill to step down Louisiana's stiff penalties for possession of marijuana. Under current law, possession is a felony on the second offense. A third may get you as much as 20 years in prison. Mangham recalls the scene when the bill came up for a crucial hearing.
"The Judiciary Committee room was full. The anteroom across the hall, which is twice the size, was full, and the halls were full ... of [district attorneys] and sheriffs coming down to oppose the bill," she says. The bill died on the spot. In Louisiana and other parts of the South, district attorneys and sheriffs — who Mangham calls "the courthouse crowd" — have a lot of political clout at the state level. She says it's understandable why most sheriffs opposed the bill, because they house state prisoners in parish jails and every prisoner represents a payment from the state.
"So when you're making money to warehouse prisoners, why on earth would you be in favor of sentencing reform?" Mangham says.
But the district attorneys' opposition is more complex — and interesting. And it's emblematic of a growing conflict that's taking place nationally between sentencing reformers and prosecutors.
The vast majority of criminal cases in America are resolved through plea bargains. Defendants plead guilty out of fear of getting a worse sentence if they don't. Plea bargains jumped above 90 percent in the 1980s and '90s, in part because a wave of harsh new sentences for drug offenses strengthened prosecutors' hands when bargaining with defendants.
"For a DA to have the ability to dangle over someone's head 10, 20 years in jail, that provides them with tremendous leverage to pretty much get whatever they want," says Louisiana State Sen. J.P. Morrell, a Democrat from New Orleans and former public defender.
Morrell was one of the sponsors of the marijuana sentencing reform bill that failed in Baton Rouge. He says one of the benefits of that reform would have been a reduction in the power of prosecutors to, as Louisiana courthouse slang puts it, "bitch" a defendant. A reference to Louisiana's habitual offender law, it refers to a DA threatening to use past convictions — often for marijuana possession — to multiply the length of a defendant's potential sentence.
But what Morrell sees as a problem, prosecutors regard as a necessary tool. That's because many states are now considering similar reductions to mandatory minimum sentences for drug offenses, and Congress is considering a similar move for federal drug charges. Prosecutors insist they use the threat of harsh sentences responsibly but say it's a tool they can't do without. Last fall, at a hearing in the U.S. Senate Judiciary Committee, the then-executive director of the National District Attorneys Association, Scott Burns, warned against rolling back drug sentences.
"Why now? With crime at record lows, why are we looking at sweeping changes?" Burns said. He endorsed "smart on crime" reforms such as drug courts, but he cautioned against depriving prosecutors of "one of our most effective sticks."
John de Rosier, the district attorney of Calcasieu Parish, La., says "we have people all the time that we know have been involved in robberies, rapes and murders. We haven't been able to prove our cases, but we're in court with them for second-offense possession of marijuana. What do you think we're going to do?"
That's commonly referred to as "prosecutorial discretion," and it's an argument that alarms sentencing reformers like Morrell. "That level of discretion ought to be terrifying to people," Morrell says. "If you cannot convict someone of a murder, of a robbery, whatever, the fact that you have a disproportionate backup charge to convict them anyway kind of defeats the purpose of due process."
July 9, 2014 at 09:49 AM | Permalink
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"Prosecutors insist they use the threat of harsh sentences responsibly but say it's a tool they can't do without."
There are only three things a person cannot do without: food, air, water. Anything else is a psychological need. And the psychological term for something one can't do without is an addiction.
Posted by: Daniel | Jul 9, 2014 1:41:53 PM
"John de Rosier, the district attorney of Calcasieu Parish, La., says 'we have people all the time that we know have been involved in robberies, rapes and murders. We haven't been able to prove our cases, but we're in court with them for second-offense possession of marijuana. What do you think we're going to do?'"
This a-hole has suspects for crimes that haven't yet been committed. He sounds like the Claude Rains character Captain Louis Renault from Casablanca -- "Round up the usual suspects." Maybe Mr. de Rosier should join Mr. Nagin on vacation.
Posted by: ? | Jul 9, 2014 9:28:04 PM
Taking into account unconvicted conduct in prosecution has a lengthy history -- for one example out of many, the conviction of Al Capone for tax evasion.
Its not rounding up the usual suspects, it's knowing that somebody seems to be regularly associated with criminal events and taking that into account when you have a solid case against that person rather than treating them the same as somebody who has never been in trouble with the law. To most people, that is not a due process problem, it's basic common sense.
Posted by: tmm | Jul 10, 2014 11:04:12 AM
In Capone's case there were no mandatory minimums. In Prosecutor de Rosier's parish, he controls sentencing by charging offenses with mandatory minimum sentences because "we have people all the time that we know have been involved in robberies, rapes and murders. We haven't been able to prove our cases, but we're in court with them for second-offense possession of marijuana."
In my book if you can't prove your case go home--don't try to accomplish indirectly what you can't do directly.
Posted by: ? | Jul 10, 2014 8:59:02 PM
Often the reason why those robberies, rapes, and murders can't be proven is because of witness intimidation and fear. That's probably the number one reason why those crimes aren't proven in gang cases arising from the inner cities. The evidence is there at one point, and then it disappears. Funny how that works.
Posted by: abc123 | Jul 13, 2014 2:29:41 PM