August 2, 2014
"Swift, Certain, and Fair Punishment — 24/7 Sobriety and Hope: Creative Approaches to Alcohol- and Illicit Drug-Using Offenders"
The title of this post is the title of this notable new article by Paul Larkin of The Heritage Foundation available via SSRN. Here is the abstract:
Local and state government officials in South Dakota and Hawaii have implemented a creative way to address some of the problems stemming from alcohol and drug use. The South Dakota 24/7 Sobriety program and Hawaii’s Opportunity Probation with Enforcement (HOPE) project seek to deal with those problems by combining an old criminological theory with modern technological devices. Criminologists, both old and contemporary, have believed that the certainty and celerity of punishment are more effective components of deterrence than is the severity of a penalty. In fact, anyone who has been a parent will tell you that the swift and certain use of a mild or moderate punishment is far more likely to deter unwanted conduct than the threat of an infrequently used severe punishment imposed at some point down the road.
South Dakota and Hawaii have developed innovative programs to deal with substance use and noncompliance with the conditions of supervision. Both programs address this problem. Starting from the proposition that certainty and celerity are more important than severity when measuring the effectiveness of punishment and using a rigorous alcohol-testing regimen, South Dakota has made strides toward the reduction of problem drinking and the attendant harms that it can produce. Hawaii has independently developed and followed a similar approach to the use of drugs and crime, subjecting certain offenders to rigorous, random drug urinalysis punished by the certain imposition of a modest stint in jail for those who fail the required tests. Those creative approaches are worth serious consideration as an effective and humane means of addressing the grim problems that alcohol- and drug-abusers pose for victims and society.
August 2, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack
Documenting the high health-care costs of an aging prison population in Oklahoma
This notable article from Oklahoma, headlined "Inmate health costs rise, prisons scramble for solutions," highlights a modern corrections reality facing more and more jurisdictions as the economic costs of tough-on-crime policies come into focus. Here are excerpts:
Taxpayers forked over nearly $1 million last year to buy inhalers to treat asthma and emphysema among inmates in state prisons. The state also paid for 530,647 inmate prescriptions.
Those represent just a fraction of the health expenses for the state’s approximately 25,000 inmates, which cost $36.6 million last year, according to a review by the State Auditor and Inspector’s office.
That total amounts to an 11 percent increase from 2010 to 2013, and experts say the number likely is to keep swelling, especially as the inmate population ages. “That is something Oklahoma has in its future, and it’s definitely something to keep an eye on,” said Maria Schiff, director of Pew Charitable Trust’s State Healthcare Project, which recently researched prison health care costs.
According to the Pew report, Oklahomans paid the least in the nation in prisoner medical expenses, at $2,558 per inmate, while Californians spend the most at $14,495. That was based on expenses in fiscal year 2011. But that number is growing. By fiscal 2013 — the most recent year for which data is available — Oklahomans spent an average of $7.58 per inmate per day in medical expenses, said Department of Corrections spokesman Jerry Massie.
A prison’s health care spending usually depends on the size of its prisoner population and its age, Schiff said. Oklahoma’s percentage of inmates 55 and older was near the top in the nation, the Pew researchers found. That trend also was detected by the state’s audit, which found that nearly 43 percent of the state’s inmates are older than 40. That percentage has been steadily growing.
That’s a key finding, the audit noted, because older inmates typically have more illnesses and infirmities, and they cost taxpayers at least double what’s spent on their younger counterparts. The number of older inmates sentenced for the first time has grown nationally, Schiff said. They join inmates sentenced in the 1980s who simply are aging in prison....
Finding a balance in funding can be complex, Gary Jones, state auditor and inspector, noted in the report. That’s because the Corrections Department has no control over criminal laws, who gets prosecuted, the length of sentences imposed or the number of people entering its system. “Proponents of ‘tough-on-crime’ and policymakers advocating rigorous sentencing laws must act responsibly and commit sufficient financial resources to fund the infrastructure, operations and specialized programs needed to accommodate the resultant expansion of a demographically demanding inmate population, or find ways in which to be smart on crime, keeping in mind the ever-increasing cost to Oklahoma taxpayers,” Jones wrote in his report.
There may be no easy solution, but Jones’ staff proposed one alternative in the audit — releasing older and terminally ill inmates. That’s not a popular choice, as legislator Jeannie McDaniel, D-Tulsa, discovered. She proposed a bill that could have led to the release about 600 or 700 inmates age 65 or older if they met certain conditions, including conviction for a non-violent crime. The Parole Board ultimately would have made the decision, she said.
McDaniel said she got the idea from Louisiana’s early release for an aging population at its Angola prison. “Their success was great, and they saved the money,” she said. “These were people that were not threats to society. Their costs were eating up the prison budget.”
But McDaniel said she met resistance from prosecutors who felt the Parole Board shouldn’t be able to overturn sentences handed down by a judge or jury. She hopes to introduce a similar bill during this coming session, she said.
Schiff said a number of states have passed guidelines for geriatric release. Among the advantages of those programs is expense: While freed inmates likely end up on Medicaid, the state shares those costs with the federal government. Also, the state doesn’t need to pay to drive freed inmates to appointments. But early release is controversial in many places where lawmakers struggle to decide which prisoners should qualify and under what circumstances, Schiff said.
"Cougar caged: Public sex nets woman, 68, six months in the slammer"
The title of this post is the irrestistable sentencing headline from this Sun-Sentinel article discussing a recent Florida sentencing. (This Huffington Post article on the same case went with this headline: "Grandma Will Spend 6 Months In Jail For Public Sex.") Here are the randy details via the HuffPo piece:
A married grandma of 14 faces six months behind bars after she had public sex with a man who was not her husband at a public pavilion in Florida. Peggy Klemm, 68, and her 49-year-old copulation co-conspirator, David Bobilya, were sentenced Wednesday after their romp at Lake Sumter Landing Market Square, Click Orlando reports. Apparently, a retirement community there called The Villages, which houses 100,000 people, is known for its wild nights, $3.75 cocktails and public sex.
Klemm likely got arrested because she was on probation for a previous reckless driving charge, the Daily Mail reports. She was slapped with six months in jail when she took a plea deal for the public sex. Klemm and Bobilya were caught with their pants around their ankles having sex against the Bait Shack hut at 10:30 p.m. on June 12.
She stood in front of a judge on Wednesday and mouthed "I love you" to her husband of 50 years, Frank Klemm, who stood beside her despite the philandery. "She is a super woman as far as I'm concerned," he told Click Orlando. "And she deserves a second chance. That's all I have to say."
She apologized through tears as she walked out of court. She'll get credit for time served and has 135 days left to her sentence. Bobilya is also serving a six-month sentence.
UPDATE: I am intrigued and pleased (I think) that a commentor claiming to be this defendant's child has written about the case in the comments and provided this link to a website about the defendant's situation. Proof yet again that there are multiple sides to every criminal justice story.
August 1, 2014
Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform
I have previously questioned the assertion that significant federal sentencing reform is inevitable, and the failure of the current Congress to make serious progress on the Smarter Sentencing Act or other notable pending federal sentencing reform proposals has reinforced my generally pessimistic perspective. But this effective new article from the Washington Examiner, headlined "2016 contenders are lining up behind sentencing reform --- except this one Tea Partier," provides further reason to be optimistic that federal sentencing reform momentum will continue to pick up steam in the months ahead. Here are highlights:
Sen. Marco Rubio hasn’t hammered out a firm position on mandatory minimum sentencing laws yet. A year ago, that would have been perfectly normal for a Republican senator and rumored presidential contender. But over the last months, most of the potential Republican nominees have voiced support for policy changes that historically might have gotten them the toxic “soft on crime” label. These days, though, backing prison reform lets Republicans simultaneously resurrect compassionate conservatism and reach out to voters who wouldn’t typically find much to love from the GOP.
Rep. Paul Ryan is one of the latest potential presidential candidates to tout mandatory minimum sentencing reform as part of a conservative strategy to reduce poverty.... [H]e has debuted a new anti-poverty agenda that includes support for the Smarter Sentencing Act, a bill with a Senate version co-sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Tea Party favorite Sen. Mike Lee, R-Utah, and a House version from Rep. Bobby Scott, D-Va., and Raul Labrador, R-Idaho. That bill would shorten some of the mandatory minimum sentence lengths and also would expand the “safety valve” that keeps some non-violent drug offenders from facing mandatory sentences.
“It would give judges more discretion with low-risk, non-violent offenders,” Ryan said in a speech at conservative think tank American Enterprise Institute. “All we’re saying is, they don’t have to give the maximum sentence every time. There’s no reason to lock someone up any longer than necessary.”
Ryan is the latest in a string of potential presidential contenders to get on board with prison reform. But it’s likely the state of criminal justice reform would look different without Texas Gov. Rick Perry. In 2007, the Texas legislature adopted a budget designed to reduce the number of people incarcerated and spend more money on treatment. Since then, the state has closed three adult and six juvenile prisons, crime rates have reached levels as low as in the 1960s, and recidivism rates have dipped.
Perry has used his national platform to tout this reform — at a Conservative Political Action Conference (panel with Americans for Tax Reform President Grover Norquist, for instance, he said real conservatives should look to shut down prisons and save money — and other states have adopted reforms following the Lone Star State model.
Sen. Rand Paul, another 2016 favorite, has been one of prison reform’s most vocal boosters. In an April 2013 speech at Howard University — a speech that got mixed reviews — he drew plaudits for criticizing mandatory minimum sentencing laws. “Our federal mandatory minimum sentences are simply heavy-handed and arbitrary,” he said, per CNS News. “They can affect anyone at any time, though they disproportionately affect those without the means to fight them. We should stand and loudly proclaim enough’s enough.”
That speech took prison reform one step closer to becoming a national conservative issue, rather than just the purview of state-level think tank wonks and back-room chats among social conservative leaders.
And, of course, New Jersey Gov. Chris Christie addressed the issue in his second inaugural, connecting support for prison reform to his pro-life convictions.
None of this support means that legislation like the Smarter Sentencing Act has good odds in this Congress. Brian Phillips, a spokesman for Lee, said that since House Majority Leader Eric Cantor’s astounding primary loss, House Republicans have become more gun-shy about any sort of politically complicated reform measures. And GovTrack.us gives that bill a 39 percent chance of being enacted.
But that doesn’t mean conservative appetite for prison reform will abate. Molly Gill, government affairs counsel for Families Against Mandatory Minimums, said interest in the issue is growing. “ It can’t go away,” she said. “If Congress doesn’t fix it now, it’s still going to be a problem next year. It’s going to be a problem at the Department [of Justice], it’s going to be a problem in appropriations committees, it’s going to be a problem for the Commerce, Justice and Finance subcommittees when they’re doing appropriations bills — because there is no more money coming, and we’re just going to keep stuffing people into overcrowded prisons.”...
For now, most of the Senate Republicans publicly eyeing 2016 bids have co-sponsored Lee and Durbin’s Smarter Sentencing Act — except Rubio, who said his office is examining it. “I haven’t looked at the details of it yet and taken a formal position,” he said. “We study those things carefully.”
Some recent and older related posts:
- Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms
- Others starting to appreciate "Rand Paul, Criminal Justice Hero"
- Gov Chris Christie talking up drug sentencing reform as a pro-life commitment
- Senator Rand Paul and Governor Chris Christine continue to make the case for criminal justice reforms
- "4 Reasons Conservatives Are Embracing Prison Reform"
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- 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."
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Newt Gingrich saying again that "backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause"
- "Right on Crime: A Return to First Principles for American Conservatives"
July 31, 2014
More potent reviews of criminal justice data via the Washington Post's Wonkblog
In this post last week, titled " "There’s little evidence that fewer prisoners means more crime," I made much of some recent postings on the Washington Post Wonkblog and suggested that sentencing fans ought to make a habit of checking out Wonkblog regularly. This set of new posts at that blog reinforce my views and recommendation:
Though all these posts merit a close read, I especially recommend the first one linked above, as it meticulously details all significant problems with all the "science" claims made by the federal government to justify marijuana prohibition. Here is how that piece it gets started:
The New York Times editorial board is making news with a week-long series advocating for the full legalization of marijuana in the United States. In response, the White House's Office of National Drug Control Policy (ONDCP) published a blog post Monday purporting to lay out the federal government's case against marijuana reform.
That case, as it turns out, it surprisingly weak. It's built on half-truths and radically decontextualized facts, curated from social science research that is otherwise quite solid. I've gone through the ONDCP's arguments, and the research behind them, below.
The irony here is that with the coming wave of deregulation and legalization, we really do need a sane national discussion of the costs and benefits of widespread marijuana use. But the ONDCP's ideological insistence on prohibition prevents them from taking part in that conversation.
Making a libertarian case for "Why the Death Penalty Needs to Die"
The title of this post is drawn from the headline of this notable new commentary by Nick Gillespie at The Daily Beast. Here are excerpts:
As a libertarian, I’m not surprised that the state is so incompetent that it can’t even kill people efficiently. But I’m far more outraged by the idea that anyone anywhere seriously thinks the death penalty passes for good politics or sane policy. It’s expensive, ineffective, and most of all, deeply offensive to ideals of truly limited government.
Consider that between 1980 and 2012, California spent $4 billion administering death penalty cases while actually executing just 13 individuals, according to a study produced by Loyola Marymount Law Professor Paula Mitchell. What’s more, Mitchell told Reason TV’s Tracy Oppenheimer, when the death penalty is in play, “the legal costs [per case] skyrocket to an extra $134 million per year, well above the cost to implement life without possibility of parole.” Given the severity and finality of the punishment, it makes all the sense in the world to make sure due process was followed in all death penalty cases. I’m sure death costs more in California (everything else does) than in other states, but there’s just never going to be a way to make it less than a huge waste of taxpayer money....
Here’s one more [reason to kill the death penalty] that would hold true even if through some miracle the government could make the finances work, guarantee absolute accuracy in convicting only guilty perps, and show that executions significantly deterred crime: The state’s first role — and arguably its only one — is protecting the lives and property of its citizens. In everything it does — from collecting taxes to seizing property for public works to incentivizing “good” behaviors and habits — it should use the least violence or coercion possible. No matter how despicable murderers can be, the state can make sure we’re safe by locking them up behind bars for the rest of their — and our — lives. That’s not only a cheaper answer than state-sanctioned murder, it’s a more moral one, too.
Sixth Circuit panel finds one-day prison sentence unreasonable for white-collar defendant
The Sixth Circuit today has reinforced its reputation as one of the circuits most likely to declare a below-guideline sentence unreasonable with a unanimous panel ruling in US v. Musgrave, No. 13-3872 (6th Cir. July 31, 2014) (available here). Because post-Booker appellate sentence reversals are rare, this relatively short opinion is a must read for everyone who following federal sentencing law and policy closely. In addition, at a time when debates over white-collar sentencing rules and practices remain hot, all those who follow white-collar crime and punishment will want to be sure to check out this opinion as well.
Here is how the Musgrave opinion starts and finishes:
A jury found Paul Musgrave guilty of one count of conspiracy to commit wire and bank fraud and to make false statements to a financial institution; two counts of wire fraud; and one count of bank fraud. The district court sentenced him to one day of imprisonment with credit for the day of processing — a downward variance from his Guidelines range of 57 to 71 months’ imprisonment and below the government’s recommendation of 30 months’ imprisonment. On appeal, the government asserts that Musgrave’s one-day sentence is substantively unreasonable. For the following reasons, we vacate the district court’s sentence and remand for resentencing....
A defendant’s sentence must reflect the seriousness of the offense, promote respect for the law, and provide just punishment. 18 U.S.C. § 3553(a)(2). In imposing a sentence, the district court must explain, based on permissible considerations, how its sentence “‘meshe[s] with Congress’s own view of the crimes’ seriousness.’” United States v. Peppel, 707 F.3d 627, 635 (6th Cir. 2013) (quoting United States v. Davis, 537 F.3d 611, 617 (6th Cir. 2008)). The collateral consequences of the defendant’s prosecution and conviction are “impermissible factors” when fashioning a sentence that complies with this directive. Peppel, 707 F.3d at 636. A district court’s reliance on these factors “does nothing to show that [the defendant’s] sentence reflects the seriousness of his offense. Were it otherwise, these sorts of consequences— particularly ones related to a defendant’s humiliation before his community, neighbors, and friends—would tend to support shorter sentences in cases with defendants from privileged backgrounds, who might have more to lose along these lines.” United States v. Bistline, 665 F.3d 758, 765–66 (6th Cir. 2012). Thus, when a district court varies downward on the basis of the collateral consequences of the defendant’s prosecution and conviction, the defendant’s sentence will not reflect the seriousness of the offense, nor will it provide just punishment. See Peppel, 707 F.3d at 636; Bistline, 665 F.3d at 765–66.
Impermissible considerations permeated the district court’s justification for Musgrave’s sentence. In imposing a sentence of one day with credit for the day of processing, the district court relied heavily on the fact that Musgrave had already “been punished extraordinarily” by four years of legal proceedings, legal fees, the likely loss of his CPA license, and felony convictions that would follow him for the rest of his life. “[N]one of these things are [his] sentence. Nor are they consequences of his sentence”; a diminished sentence based on considerations does not reflect the seriousness of his offense or effect just punishment. Bistline, 665 F.3d at 765. On remand, the district court must sentence Musgrave without considering these factors....
In the context of white-collar crime, we have emphasized that “it is hard to see how a one-day sentence” would “serve the goals of societal deterrence.” Davis, 537 F.3d at 617. “‘Because economic and fraud-based crimes are more rational, cool, and calculated than sudden crimes of passion or opportunity, these crimes are prime candidates for general deterrence.’” Peppel, 707 F.3d at 637 (quoting United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006)); see also Davis, 537 F.3d at 617.
Consideration of general deterrence is particularly important where the district court varies substantially from the Guidelines. See, e.g., Aleo, 681 F.3d at 300 (explaining that the greater the variance, the more compelling the justification based on the § 3553(a) factors must be). This is even truer here, given that the crimes of which Musgrave was convicted are especially susceptible to general deterrence and the fact that there is a general policy favoring incarceration for these crimes. Indeed, “[o]ne of the central reasons for creating the sentencing guidelines was to ensure stiffer penalties for white-collar crimes and to eliminate disparities between white-collar sentences and sentences for other crimes.” Davis, 537 F.3d at 617. More importantly, Congress understood white-collar criminals to be deserving of some period of incarceration, as evidenced by its prohibition on probationary sentences in this context. Id. Where a district court’s view of a particular crime’s seriousness appears at odds with that of Congress and the Sentencing Commission, we expect that it will explain how its sentence nevertheless affords adequate general deterrence. Id.; Camiscione, 591 F.3d at 834. The district court failed to do so here.
Musgrave must be resentenced. The district court relied on impermissible considerations and failed to address adequately how what amounted to a non-custodial sentence afforded adequate general deterrence in this context. Nevertheless, it bears repeating that “[w]hile appellate courts retain responsibility for identifying proper and improper sentencing considerations after Booker, it is not our task to impose sentences in the first instance or to second guess the individualized sentencing discretion of the district court when it appropriately relies on the § 3553(a) factors.” Davis, 537 F.3d at 618 (citing United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008) (en banc)). The district court’s sentence is vacated, and the case is remanded for the district court, in its discretion, to impose a sentence sufficient but not greater than necessary to serve the § 3553(a) factors.
I view the main message of this Musgrave case, along with other cited cases in which the Sixth Circuit has reversed similar one-day sentences on appeal, that the Sixth Circuit generally believe that at least a short period of incarceration is nearly essential for any serious crime for which the guidelines recommend years of incarceration even if the defendant is a relatively sympathetic first offender not likely to re-offend.
July 31, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0) | TrackBack
"Attorney General Eric Holder to Oppose Data-Driven Sentencing"
The title of this post is the headline of this important new article from Time detailing that the Attorney General is formally coming out against some of the data-driven, risk-based sentencing reforms based on concerns about the potential impact on equal justice. Here are highlights from this article (with more to follow in coming posts):
Citing concerns about equal justice in sentencing, Attorney General Eric Holder has decided to oppose certain statistical tools used in determining jail time, putting the Obama Administration at odds with a popular and increasingly effective method for managing prison populations. Holder laid out his position in an interview with TIME on Tuesday and will call for a review of the issue in his annual report to the U.S. Sentencing Commission Thursday, Justice department officials familiar with the report say.
Over the past 10 years, states have increasingly used large databases of information about criminals to identify dozens of risk factors associated with those who continue to commit crimes, like prior convictions, hostility to law enforcement and substance abuse. Those factors are then weighted and used to rank criminals as being a high, medium or low risk to offend again. Judges, corrections officials and parole officers in turn use those rankings to help determine how long a convict should spend in jail.
Holder says if such rankings are used broadly, they could have a disparate and adverse impact on the poor, on socially disadvantaged offenders, and on minorities. “I’m really concerned that this could lead us back to a place we don’t want to go,” Holder said on Tuesday.
Virtually every state has used such risk assessments to varying degrees over the past decade, and many have made them mandatory for sentencing and corrections as a way to reduce soaring prison populations, cut recidivism and save money. But the federal government has yet to require them for the more than 200,000 inmates in its prisons. Bipartisan legislation requiring risk assessments is moving through Congress and appears likely to reach the President’s desk for signature later this year.
Using background information like educational levels and employment history in the sentencing phase of a trial, Holder told TIME, will benefit “those on the white collar side who may have advanced degrees and who may have done greater societal harm — if you pull back a little bit — than somebody who has not completed a master’s degree, doesn’t have a law degree, is not a doctor.”
Holder says using static factors from a criminal’s background could perpetuate racial bias in a system that already delivers 20% longer sentences for young black men than for other offenders. Holder supports assessments that are based on behavioral risk factors that inmates can amend, like drug addiction or negative attitudes about the law. And he supports in-prison programs — or back-end assessments — as long as all convicts, including high-risk ones, get the chance to reduce their prison time.
But supporters of the broad use of data in criminal-justice reform — and there are many — say Holder’s approach won’t work. “If you wait until the back end, it becomes exponentially harder to solve the problem,” says former New Jersey attorney general Anne Milgram, who is now at the nonprofit Laura and John Arnold Foundation, where she is building risk-assessment tools for law enforcement. For example, prior convictions and the age of first arrest are among the most powerful risk factors for reoffending and should be used to help accurately determine appropriate prison time, experts say.
And data-driven risk assessments are just part of the overall process of determining the lengths of time convicts spend in prison, supporters argue. Professor Edward Latessa, who consulted for Congress on the pending federal legislation and has produced broad studies showing the effectiveness of risk assessment in corrections, says concerns about disparity are overblown. “Bernie Madoff may score low risk, but we’re never letting him out,” Latessa says.
Another reason Holder may have a hard time persuading states of his concerns is that data-driven corrections have been good for the bottom line. Arkansas’s 2011 Public Safety Improvement Act, which requires risk assessments in corrections, is projected to help save the state $875 million through 2020, while similar reforms in Kentucky are projected to save it $422 million over 10 years, according to the Pew Center on the States. Rhode Island has seen its prison population drop 19% in the past five years, thanks in part to risk-assessment programs, according to the state’s director of corrections, A.T. Wall....
Holder says he wants to ensure the bills that are moving through Congress account for potential social, economic and racial disparities in sentencing. “Our hope would be to work with any of the Senators or Congressmen who are involved and who have introduced bills here so that we get to a place we ought to be,” Holder said.
July 30, 2014
"The Federal Marijuana Ban Is Rooted in Myth and Xenophobia"
The title of this post is the headline of this latest editorial in the New York Times series explaining its editorial judgment that marijuana prohibition should be ended (first noted here). Here are excerpts:
The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria during the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time. This racially freighted history lives on in current federal policy, which is so driven by myth and propaganda that is it almost impervious to reason.
The cannabis plant, also known as hemp, was widely grown in the United States for use in fabric during the mid-19th century. The practice of smoking it appeared in Texas border towns around 1900, brought by Mexican immigrants who cultivated cannabis as an intoxicant and for medicinal purposes as they had done at home....
The law enforcement view of marijuana was indelibly shaped by the fact that it was initially connected to brown people from Mexico and subsequently with black and poor communities in this country. Police in Texas border towns demonized the plant in racial terms as the drug of “immoral” populations who were promptly labeled “fiends.”
As the legal scholars Richard Bonnie and Charles Whitebread explain in their authoritative history, “The Marihuana Conviction,” the drug’s popularity among minorities and other groups practically ensured that it would be classified as a “narcotic,” attributed with addictive qualities it did not have, and set alongside far more dangerous drugs like heroin and morphine.
By the early 1930s, more than 30 states had prohibited the use of marijuana for nonmedical purposes. The federal push was yet to come. The stage for federal suppression of marijuana was set in New Orleans, where a prominent doctor blamed “muggle-heads” — as pot smokers were called — for an outbreak of robberies. The city was awash in sensationalistic newspaper articles that depicted pushers hovering by the schoolhouse door turning children into “addicts.” These stories popularized spurious notions about the drug that lingered for decades.
Law enforcement officials, too, trafficked in the “assassin” theory, under in which killers were said to have smoked cannabis to ready themselves for murder and mayhem.
In 1930, Congress consolidated the drug control effort in the Federal Bureau of Narcotics, led by the endlessly resourceful commissioner, Harry Jacob Anslinger, who became the architect of national prohibition. His case rested on two fantastical assertions: that the drug caused insanity; that it pushed people toward horrendous acts of criminality. Others at the time argued that it was fiercely addictive....
The country accepted a senselessly punitive approach to sentencing as long as minorities and the poor paid the price. But, by the late 1960s, weed had been taken up by white college students from the middle and upper classes. Seeing white lives ruined by marijuana laws altered public attitudes about harsh sentencing, and, in 1972, the National Commission on Marihuana and Drug Abuse released a report challenging the approach.
The commission concluded that criminalization was “too harsh a tool to apply to personal possession even in the effort to discourage use,” and that “the actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.” The Nixon administration dismissed these ideas.
During the mid-1970s, virtually all states softened penalties for marijuana possession. Thirty-five states and the District of Columbia have made medical use of some form of the drug legal. The Justice Department’s recent decision not to sue states that legalize marijuana — as long as they have strong enforcement rules — eases the tension between state and federal laws only slightly but leaves a great many legal problems unresolved.
The federal government has taken a small step back from irrational enforcement. But it clings to a policy that has its origins in racism and xenophobia and whose principal effect has been to ruin the lives of generations of people.
Prior related posts:
- New York Times: "on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization" of marijuana
- "The Injustice of Marijuana Arrests"
Should civilly committed sex offenders get in trouble for watching Game of Thrones?
The question in the title of this post is prompted by this intriguing local article from Virginia, which is headlined "Sex offender claims he was unfairly punished for watching HBO." Here are the notable details:
A human rights advocate for a state facility that provides treatment for civilly committed sex offenders in Virginia has filed a complaint on behalf of one of those sex offenders alleging unfair treatment.
The complaint was filed on July 21, 2014 with the Virginia Center for Behavioral Services and alleges residents at the Virginia Center for Behavioral Rehabilitation (VCBR) were unfairly punished for watching HBO. VCBR is a residential treatment facility for civilly committed sexually violent predators, according to the facility’s website.
“On the weekend of June the 27th, HBO was offered as a promotional by the cable provider,” committed sex offender Elijah Howell said. Howell and fellow committed sex offender Robert Baugh told us they watched “We Are the Millers” that weekend with approval from a VCBR staff member. “He said the programming was pre-approved, and there would be no problem with us watching it,” Howell said.
But, the next day, they said roughly 50 of the more than 200 residents at VCBR were punished for watching nudity on HBO and accused of “sexual behavior.”
“It dropped me down from a blue card to a red…there’s a lot of stuff you can’t do when you become a red card,” Baugh said. The residents worry their time at VCBR will be extended for something they said is not a valid punishment.
“When you go to court and you have a sexual behavior observation note… it’s gonna look like this guy doesn’t understand what he’s doing and still getting sexual behavior notes,” Baugh said.
The human rights advocate at VCBR who filed the complaint, Tammy Long, alleges the residents did not engage in sexual behavior. She cites VCBR’s facility instructions, which state sexual behavior involves physical contact. “These convicted sex offenders in this particular facility have all served their criminal time, and then they’ve been civilly committed, not voluntarily, for treatment,” ACLU of Virginia Executive Director Claire Gastanaga said. “So at this point the purpose is supposed to be therapeutic not punitive.”
Gastanaga said if the complaint is accurate, it shows unfair treatment. “It’s about some people doing it because they can…it’s almost bullying,” Gastanaga said.
A spokesperson for the state agency that oversees VCBR said he cannot comment on specific investigations, but human rights complaints are investigated by the Department of Behavioral Health and Developmental Services Office of Human Rights.
After another ugly execution, will Missouri and Texas have any difficulties keep up monthly execution plans?
Recent troubled executions in Ohio, then Oklahoma, and most recently Arizona have seemingly contributed at least somewhat to a slowed pace of executions nationwide throughout 2014. Nevertheless, Missouri and Texas have, so far, successfully completed scheduled executions on a pace of nearly one per month throughout out 2014. In addition, as this DPIC list of scheduled executions spotlights, the next five serious executions dates over the next few months are in Missouri and Texas (with 2 and 3 slated executions, respectively, scheduled in the next seven weeks).
While I am sure national advocacy organizations will continue to make calls for abolition of the death penalty due to the trio of recent ugly executions in other states, I am not sure if this advocacy makes one whit of impact on key capital decision-makers in Missouri and Texas. Time will tell if the abolistionist advocacy is really aided by all the ugly executionsin 2014, and the places for everyone to be watching most closely in the short term are the Show Me and Lone Star states.
Indiana reforms highlight how sentencing laws impact cops as well as courts
This interesting local article from Indiana, headlined "Meth Suppression Unit Encounters Positive, Negative Aspects to Massive Sentencing Overhaul," spotlights some of the ways sentencing reform impacts law enforcement operations and priorities. Here are excerpts:
Indiana's criminal sentencing reform took effect nearly a month ago and police detectives and prosecutors are still trying to take it all in. The overhaul brought sweeping changes for law enforcement officers, especially the Evansville Police Department's Meth Suppression Unit.
During the 2013 session, the General Assembly passed House Enrolled Act 1006 which re-wrote the felony portion of the state's criminal code. The new law expands upon the state's four levels of felonies (Class A-D) and creates six levels of felonies (Level 1-6). The reform was intended to ease prison crowding and give judges more discretion to let low-level offenders serve their time in community correctional programs.
For example, what was once a Class A felony became a Level 1 or Level 2 felony, depending on severity. As part of the reform, offenders would have to serve 75% of their sentences instead of the current 50%. While the reform strengthens the sentences for sex crimes and violent crimes, it lessens the sentences for drug crimes. While it has some positive and negative aspects, the jury is still out on the reform, said Evansville Police Detective Patrick McDonald.
"For me, I've been on the street now for 10 years," Det. McDonald said. "There hasn't been a major overhaul of the criminal code like this. Under the old system, manufacturing [meth] was manufacturing [meth]. It was never able to be enhanced by weight so now we have to look at how we process meth labs and try to get a weight out of that."...
The criminal sentencing overhaul eliminated some enhancement charges the Meth Suppression Unit frequently used, McDonald said. McDonald detailed one such example in which a man previously convicted of meth was allegedly caught trying to buy pseudoephedrine, the key ingredient in meth production. Because that man had already been convicted of a meth-related offense, prosecutors added the enhancement charge which bumped up his sentence by eight years.
Some other enhancement charges have been clarified and more clearly defined, McDonald said. He cited the enhancement charge of dealing drugs within 1000 feet of a park or school. Under the new sentencing guidelines, detectives no longer have to prove children were present; the enhancement charge is applicable when it can be 'reasonably expected' that children are present.
The reform also brought drastic changes to what level felony shall apply to how much narcotics detectives discovered. "What used to be dealing over three grams [the General Assembly] raised that up to be 28 grams," McDonald said. "Three grams is a fairly significant amount, about $300 to $350 worth of meth or cocaine. What we historically considered a 'dealer weight' has been pushed down to minimal prison time."
July 29, 2014
"Right on Crime: A Return to First Principles for American Conservatives"
The title of this post is the title of this new article by Marc Levin and Vikrant Reddy which I recently discovered via the Right on Crime blog. Here is an excerpt from the tail-end of the article's introduction:
The idea that conservatives are ideologically committed to mass incarceration is — and always was — a caricature. American incarceration rates increased significantly in recent decades, and many on the right supported this increase, but conservative support for increased incarceration was linked to unique historical circumstances, not to any philosophical commitment. Moreover, while conservatives were correct in the early 1970s that some increase in incarceration was necessary to ensure that violent and dangerous offenders served significant prison terms, the sixfold increase in incarceration from the early 1970s to the mid-2000s reached many nonviolent, low-risk offenders. Now, as crime rates are declining, conservatives are increasingly focused on developing policies that prioritize using limited prison space to house violent offenders while looking for alternative sanctions to hold nonviolent offenders accountable, restore victims, and protect public safety. In generating and advocating these policies, conservatives are returning to first principles: skepticism of state power, insistence on government accountability, and concern for how public policy affects social norms.
In this article, we discuss the conservative return to first principles in criminal justice. In Part II, we explain the modern problem of mass incarceration. Then, in Part III, we note the historical reasons behind the push to increase incarceration in the 1980s and 1990s. In Part IV, we detail legislative reforms to remedy the incarceration problem that are consistent with conservative ideological principles.
Alabama struggling (and facing lawsuits) as sentencing toughness produces overcrowded prisons
As reported in this new local article, headlined "Governor Bentley to feds, prison reform advocates: 'You all are crazy to sue us'," elected officials in Alabama are struggling to figure out how best to deal with too many prisoners and prison problems. Here are the details:
Gov. Robert Bentley acknowledged the immense problems facing the state's prison system but said Monday that his administration needs time to address them, not lawsuits. Speaking at the annual convention at the Alabama Sheriffs' Association, Bentley said his message is the same whether his audience is the U.S. Justice Department or advocacy groups like the Southern Poverty Law Center.
"You all are crazy to sue us," he said. "What good does it do to sue us?"
Bentley said he is as interested as anyone in solving problems that include overcrowding and allegations of mistreatment of inmates. He said he wants to work with anyone who has ideas about how to improve the system but added that lawsuits only divert time and money away from those solutions.
The Montgomery-based Southern Poverty Law Center has, in fact, sued the state over its prisons. The organization alleged last month that the state has failed to meet its constitutional responsibilities to provide adequate health care to prisoners. Maria Morris, an attorney for the Southern Poverty Law Center, said her organization had no choice but to sue to force improvement to years-old problems.
The Justice Department so far has not sued. But a scathing report in January detailing alleged abuses at the Tutwiler Prison for Women in Wetumpka has raised fears among the state's elected leaders that federal authorities are preparing to do so.
Bentley said the state cannot solve its prison problem without taking further steps to reduce long sentences, although he offered no specific proposals. "It is a real problem in this state. Not only is it a problem, but our sentencing of our prisoners is a real problem," he said.
The Legislature already has taken action in recent years on that front. Sentencing guidelines designed to reduce penalties for certain nonviolent and drug crimes have been "presumptive" since October, meaning that judges must cite specific reasons if they depart from the recommendations.
As far as addition action, Bentley said the state is waiting recommendations from the Justice Reinvestment Initiative, a program coordinated by the National Council of State Governments Justice Center. He acknowledged the political difficulty of taking on the prison issue.
"I can't run for governor talking about prison reform. People say, 'I don't care about that,'" he said. "But they do care if you have to raise taxes to build more prisons. They do care if you let violent prisoners out."
Bentley suggested changes in the state's Habitual Felony Offender Act, which was designed to crack down on repeat criminals but has helped spark a massive increase in the state's prison population since its passage in 1977. "The habitual offender act probably has increased our prison population more than anything else," he said.
Bentley said he opposes leniency for violent criminals and sex offenders – "I don't think we ought to let them out" – but said some nonviolent offenders serving longer prison terms because of the law probably can be rehabilitated faster. "If we don't do that, we're going to have to find money to build more prisons," he said.
July 28, 2014
"The Injustice of Marijuana Arrests"
The title of this post is the headline of this latest editorial in the New York Times series explaining its editorial judgment that marijuana prohibition should be ended (first noted here). This lengthy editorial is authored by Jesse Wegman, and here are excerpts:
America’s four-decade war on drugs is responsible for many casualties, but the criminalization of marijuana has been perhaps the most destructive part of that war. The toll can be measured in dollars — billions of which are thrown away each year in the aggressive enforcement of pointless laws. It can be measured in years — whether wasted behind bars or stolen from a child who grows up fatherless. And it can be measured in lives — those damaged if not destroyed by the shockingly harsh consequences that can follow even the most minor offenses.
In October 2010, Bernard Noble, a 45-year-old trucker and father of seven with two previous nonviolent offenses, was stopped on a New Orleans street with a small amount of marijuana in his pocket. His sentence: more than 13 years. At least he will be released. Jeff Mizanskey, a Missouri man, was arrested in December 1993, for participating (unknowingly, he said) in the purchase of a five-pound brick of marijuana. Because he had two prior nonviolent marijuana convictions, he was sentenced to life without parole.
Outrageously long sentences are only part of the story. The hundreds of thousands of people who are arrested each year but do not go to jail also suffer; their arrests stay on their records for years, crippling their prospects for jobs, loans, housing and benefits. These are disproportionately people of color, with marijuana criminalization hitting black communities the hardest.
Meanwhile, police departments that presumably have far more important things to do waste an enormous amount of time and taxpayer money chasing a drug that two states have already legalized and that a majority of Americans believe should be legal everywhere....
Nationwide, ... [f]rom 2001 to 2010, the police made more than 8.2 million marijuana arrests; almost nine in 10 were for possession alone. In 2011, there were more arrests for marijuana possession than for all violent crimes put together.
The costs of this national obsession, in both money and time, are astonishing. Each year, enforcing laws on possession costs more than $3.6 billion, according to the American Civil Liberties Union. It can take a police officer many hours to arrest and book a suspect. That person will often spend a night or more in the local jail, and be in court multiple times to resolve the case. The public-safety payoff for all this effort is meager at best: According to a 2012 Human Rights Watch report that tracked 30,000 New Yorkers with no prior convictions when they were arrested for marijuana possession, 90 percent had no subsequent felony convictions. Only 3.1 percent committed a violent offense.
The strategy is also largely futile. After three decades, criminalization has not affected general usage; about 30 million Americans use marijuana every year. Meanwhile, police forces across the country are strapped for cash, and the more resources they devote to enforcing marijuana laws, the less they have to go after serious, violent crime. According to F.B.I. data, more than half of all violent crimes nationwide, and four in five property crimes, went unsolved in 2012.
The sheer volume of law enforcement resources devoted to marijuana is bad enough. What makes the situation far worse is racial disparity. Whites and blacks use marijuana at roughly the same rates; on average, however, blacks are 3.7 times more likely than whites to be arrested for possession, according to a comprehensive 2013 report by the A.C.L.U.
While the number of people behind bars solely for possessing or selling marijuana seems relatively small — 20,000 to 30,000 by the most recent estimates, or roughly 1 percent of America’s 2.4 million inmates — that means nothing to people, like Jeff Mizanskey, who are serving breathtakingly long terms because their records contained minor previous offenses....
Even if a person never goes to prison, the conviction itself is the tip of the iceberg. In a majority of states, marijuana convictions — including those resulting from guilty pleas — can have lifelong consequences for employment, education, immigration status and family life. A misdemeanor conviction can lead to, among many other things, the revocation of a professional license; the suspension of a driver’s license; the inability to get insurance, a mortgage or other bank loans; the denial of access to public housing; and the loss of student financial aid....
As pioneers in legalization, [Colorado and Washington] should set a further example by providing relief to people convicted of crimes that are no longer crimes, including overturning convictions. A recent ruling by a Colorado appeals court overturned two 2011 convictions because of the changed law, and the state’s Legislature has enacted laws in the last two years to give courts more power to seal records of drug convictions and to make it easier for defendants to get jobs and housing after a conviction. These are both important steps into an uncharted future.
US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice
Regular readers are likely familiar with the remarkable series of opinions issued by US District Judge John Gleeson in which he has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. But, as reported in this New York Times piece, headlined "Citing Fairness, U.S. Judge Acts to Undo a Sentence He Was Forced to Impose," Judge Gleeson's latest opinion discusses how federal prosecutors ultimately aided his efforts to undo an extreme mandatory minimum sentence. Here are the basics:
Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts. But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.
As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.
More recently, Judge Gleeson began his own campaign on Mr. Holloway’s behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway’s convictions. The payoff from Judge Gleeson’s efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.
“Prosecutors also use their power to remedy injustices,” Judge Gleeson wrote in a memorandum released on Monday. “Even people who are indisputably guilty of violent crimes deserve justice, and now Holloway will get it.”...
Mr. Holloway was charged in 1995 with three counts of carjacking and using a gun during a violent crime (even though it was an accomplice, and not Mr. Holloway, who carried the gun), along with participating in the chop shop. The government offered him a plea deal of about 11 years. He turned it down after his lawyer assured him he could win at trial. Mr. Holloway did not win.
For the first conviction on the gun count, the law required Mr. Holloway to receive five years. But for the second and third convictions, the law required 20 years for each one, served consecutively, a requirement known as “stacking,” which some judges and lawyers argue sounds like a recidivism provision, although it can be applied for crimes, like Mr. Holloway’s, committed hours apart that are part of the same trial.
None of Mr. Holloway’s co-defendants, who all pleaded guilty, received more than six years. At Mr. Holloway’s sentencing in 1996, Judge Gleeson said that “by stripping me of discretion,” the stacked gun charges “require the imposition of a sentence that is, in essence, a life sentence.” (The remainder of the 57 years was the 12 years required for the three carjackings.)...
At a hearing on the Holloway case this month, an assistant United States attorney, Sam Nitze, said that “this is both a unique case and a unique defendant,” citing his “extraordinary” disciplinary record and his work in prison. Also, he said, three of Mr. Holloway’s carjacking victims have said that the 20 years that Mr. Holloway had served in prison was “an awfully long time, and people deserve another chance.” Mr. Nitze agreed to vacate the two convictions, while emphasizing that this should not be taken as indicative of Ms. Lynch’s view on the stacking provision in other cases.
In his opinion issued last week, Judge Gleeson said that Mr. Holloway’s sentence illustrated a “trial penalty,” where those willing to risk trial could be hit with mandatory minimum sentences “that would be laughable if only there weren’t real people on the receiving end of them.”
Judge Gleeson's full 11-page opinion in Holloway v. US, No. 01-CV-1017 (E.D.N.Y. July 28, 2014)(available for download below), is a must-read for lots of reasons. The opinion is not be easily summarized, but this part of its conclusion provide a flavor of what comes before:
It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s nothing we can do” about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder. It takes time and involves work, including careful consideration of the circumstances of particular crimes, defendants, and victims – and often the relevant events occurred in the distant past. It requires a willingness to make hard decisions, including some that will be criticized.
This case is a perfect example. Holloway was convicted of three armed robberies. He deserved serious punishment. The judgment of conviction in his case was affirmed on direct review by the Supreme Court, and his collateral attack on that judgment failed long ago. His sentence was far more severe than necessary to reflect the seriousness of his crimes and to adequately protect the community from him, but no one would criticize the United States Attorney if she allowed it to stand by doing nothing. By contrast, the decision she has made required considerable work. Assistant United States Attorney Nitze had to retrieve and examine a very old case file. He had to track down and interview the victims of Holloway’s crimes, which were committed 20 years ago. His office no doubt considered the racial disparity in the use of § 924(c), and especially in the “stacking” of § 924(c) counts. He requested and obtained an adjournment so his office could have the time necessary to make an extremely important decision....
This is a significant case, and not just for Francois Holloway. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government’s representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices....
A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.
Numerous lawyers have been joining pro bono movements to prepare clemency petitions for federal prisoners, and indeed the Department of Justice has encouraged the bar to locate and try to help deserving inmates. Those lawyers will find many inmates even more deserving of belated justice than Holloway. Some will satisfy the criteria for Department of Justice support, while others will not. In any event, there’s no good reason why all of them must end up in the clemency bottleneck. Some inmates will ask United States Attorneys for the kind of justice made possible in this case, that is, justice administered not by the President but by a judge, on the consent of the Department of Justice, in the same courtroom in which the inmate was sentenced. Whatever the outcome of those requests, I respectfully suggest that they should get the same careful consideration that Ms. Lynch and her assistants gave to Francois Holloway.
Fascinating Fourth Circuit split over how federal sentencing problems should inform guideline interpretation
I just noticed a notable ruling by a split Fourth Circuit panel from late last week in US v. Valdovinos, No. 13-4768 (4th Cir. July 25, 2014) (available here). The precise legal issue concerning guideline interpretation in Valdovinos is not all that compelling, but how the judges dispute the right way to resolve the issue surely is. Here is how the panel majority opinion (running 18 pages) concludes:
For the foregoing reasons, we hold that North Carolina’s legislatively mandated sentencing scheme, not a recommended sentence hashed out in plea negotiations, determines whether an offender’s prior North Carolina conviction was punishable by more than a year in prison. Because Valdovinos’s offense of conviction was indeed punishable by imprisonment exceeding one year, it qualifies as a predicate felony under Section 2L1.2(b)(1)(B) of the Guidelines [thereby enhancing his sentence]. We appreciate the fervor and policy arguments of our friend in dissent. Indeed, we can agree with many of the latter. What we cannot agree with is that “application of relevant precedent” does not require the result here. Carachuri and Simmons do just that. The judgment of the district court is affirmed.
Here is how Judge Davis's remarkable dissenting opinion (running 30 pages) gets revved up and concludes (emphasis in the original):
Our disagreement as to the outcome in this case stems, I think, less over the content and application of relevant precedent and more from a fundamental disagreement regarding our role as arbiters of a flailing federal sentencing regime. Where, as here, we have been presented with a choice in how to interpret the interstices of federal sentencing law, and where one choice would exacerbate the harmful effects of over-20 incarceration that every cadre of social and political scientists (as well as an ever-growing cohort of elected and appointed officials, state and federal, as well as respected members of the federal judiciary) has recognized as unjust and inhumane, as well as expensive and ineffectual, this insight can and should inform our analysis. I deeply regret the panel’s failure to take advantage of the opportunity to do so here....
Here, in a tiny corner of the chaotic morass that is federal sentencing law, Mr. Valdovinos has offered us a measured approach, to a novel issue of federal sentencing law, that adheres to Supreme Court and our relevant circuit precedents and is consistent with our values. If accepted by this panel, his argument, which is surely more than merely “clever”, see ante, at 8, would affect a tiny number of federal cases drawing legal relevance from North Carolina’s historical (and now superseded) sentencing regime. And Mr. Valdovinos’s sentence in this case likely would be reduced to a bottom guideline of 15 months, instead of the bottom guideline sentence he received, 27 months. He’d soon be on his way home to Mexico, if not already arrived.
That the majority declines the opportunity to decide this case on the foundations discussed herein is regrettable, a choice that not only ignores the growing wisdom informed by widespread acknowledgement of our unjust federal sentencing jurisprudence, but actually hinders its progress. Would that my friends could see that it’s a new century, complete with a host of profound and valuable insights at our avail. I discern no compelling reason why, in the performance of our adjudicative responsibilities, which every member of the panel has unfailingly carried out to the best of our ability in this case and in full accordance with our solemn oath to “administer justice,” 28 U.S.C. § 453, we ought not to draw on these insights.
One of them is that sometimes, in our shared quest for justice under law, it requires so little of us to achieve so much. Respectfully, I dissent.
July 28, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
"Are Opponents Of The Death Penalty Contributing To Its Problems?"
The question in the title of this post is the headline of this notable recent NPR story. Here are excerpts:
Kevin Cooper was convicted of murdering a married couple and two children, and was sentenced to die. That was back in 1985. Cooper is still awaiting execution on California's death row.
San Bernardino County District Attorney Michael Ramos, who is handling the case, blames the long delay on Cooper's multiple appeals in state and federal courts. "This is all a big strategic plan to really manipulate the system to attack capital punishment, not just in California, but in the United States," Ramos says.
The death penalty is under considerable pressure, both from court decisions and a series of problematic executions, including one this week in Arizona. Six states have abolished the death penalty over the past seven years. Death penalty supporters such as Ramos say this is no accident. They believe opponents intentionally toss sand in the gears of the execution process, and then complain that the system doesn't work. "It's a delaying tactic that then allows them to scream it's unconstitutional because it's been delayed too long," Ramos says.
Defense attorneys dismiss this as nonsense. The problems with the death penalty, they say, were not created by its opponents. "It's not the defense attorneys who are holding executions up," says Deborah Denno, a law professor at Fordham University. "Not by a long shot."...
Last week, U.S. District Judge Cormac Carney found California's system of capital punishment unconstitutional because executions are delayed for too long and are "arbitrary" in terms of which condemned prisoners are ever actually executed. Death penalty supporters argue that it's the killers — and their attorneys — causing most of the delays.
"Having done everything they can to cause the problem, they decry the problem," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, which defends victims' rights.
But many of the delays aren't caused by defense attorneys, rather the very lack of them, Denno says. In California, it can take years for a condemned prisoner even to be appointed counsel, and years more to wait for what is known as a post-conviction hearing.
"Even before a case gets to federal court, there's often more than 10 years of delays built into the system that don't have anything to do with what's brought from the defense," says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City, Mo., which defends the condemned....
In addition to traditional questions regarding innocence and adequacy of counsel, defense attorneys now will typically challenge a state's method of execution. Lethal injections, which for years had a more anodyne reputation than gas chambers or the electric chair, have become problematic in and of themselves....
Scheidegger, the foundation attorney, says death penalty opponents, having successfully promoted lethal injections at the expense of older methods by portraying it as more humane, are now undermining states' use of drugs through their legal challenges.
Recent related posts on the California capital ruling by US District Judge Carney:
- Federal district judge declares California's death penalty unconstitutional under Eighth Amendment
- Lots of notable discussion of yesterday's notable decision striking down California's death penalty
- Furman and randomness (not just delay) at heart of California capital ruling
- Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell
July 27, 2014
New York Times: "on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization" of marijuana
The title of this is drawn from the heart of this this important new New York Times editorial calling for the legalization of marijuana. The editorial is headlined "Repeal Prohibition, Again," and it kicks off a series of pieces about marijuana law and policy. Here are excerpts from the editorial:
The federal government should repeal the ban on marijuana. We reached that conclusion after a great deal of discussion among the members of The Times’s Editorial Board, inspired by a rapidly growing movement among the states to reform marijuana laws.
There are no perfect answers to people’s legitimate concerns about marijuana use. But neither are there such answers about tobacco or alcohol, and we believe that on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization. That will put decisions on whether to allow recreational or medicinal production and use where it belongs — at the state level.
We considered whether it would be best for Washington to hold back while the states continued experimenting with legalizing medicinal uses of marijuana, reducing penalties, or even simply legalizing all use. Nearly three-quarters of the states have done one of these.
But that would leave their citizens vulnerable to the whims of whoever happens to be in the White House and chooses to enforce or not enforce the federal law.
The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to F.B.I. figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals....
Creating systems for regulating manufacture, sale and marketing will be complex. But those problems are solvable, and would have long been dealt with had we as a nation not clung to the decision to make marijuana production and use a federal crime.
In coming days, we will publish articles by members of the Editorial Board and supplementary material that will examine these questions. We invite readers to offer their ideas, and we will report back on their responses, pro and con.
We recognize that this Congress is as unlikely to take action on marijuana as it has been on other big issues. But it is long past time to repeal this version of Prohibition.
I will be covering this notable editorial development, reactions to it, and the coming Times series more fully at Marijuana Law, Policy & Reform.
Another effective review of how Obamacare could be "an antidote to crime"
Regular readers likely recall a number of posts in which I highlighted ways in which the Affordable Care Act (aka Obamacare) could have a significant impact on a number of criminal justice realities in the years to come. A helpful readers alerted me to this notable new Christian Science Monitor article on this topic headlined "Obamacare for ex-inmates: Is health insurance an antidote to crime?". Here are excerpts:
In the enduring quest to discover what can prevent criminals from reoffending, a new holy grail is emerging: health-care services.
Excitement is stirring inside the justice system, as corrections officials work to link inmates who are leaving custody with health services in their communities, courtesy of President Obama’s Affordable Care Act (ACA). The idea is to enroll thousands of ex-offenders in Medicaid, the federal-state health insurance program for the poor, thus making them eligible for treatment for mental health issues, substance abuse, and chronic medical problems that most have never before consistently received on the outside.
The hoped-for result: a reduction in the share of those who reoffend, and a drop in incarceration costs related to securing public safety. “This is a huge opportunity,” says Kamala Mallik-Kane, who studies correctional systems, inmates, and health policy at the nonprofit Urban Institute. “The unprecedented step of connecting these newly eligible people to health insurance has incredible potential to change the trajectory of inmates to reintegrate back into society and not back into the justice system.”...
[But] it is much too soon to know if the excitement among justice experts is justified. No state or county expects to see, this early, a sea change in its correctional systems, recidivism rates, or health-care costs. And it’s not known, for instance, at what rate ex-offenders who enroll in Medicaid actually use health services in their communities.
Many experts, moreover, are wary of the notion that health reform and access to Medicaid for formerly imprisoned men can truly transform America’s criminal-justice system. “Medicaid enrollment for inmates is not the silver bullet,” says Paul Howard, a senior fellow at the Manhattan Institute, a conservative think tank and director of its Center for Medical Progress.
He suggests that Medicaid, a $265 billion federal expenditure in 2013, is not yielding adequate results for the cost – and that it’s time to take “a long and hard look” before expanding it to serve even more people. “Extending those benefits to a historically transient and difficult population with a whole host of social-issues challenges will not change their approach to health care or [their] behaviors,” warns Mr. Howard.
Enthusiasts for Medicaid sign-ups for ex-inmates build their hopes on research indicating that recidivism rates fall when prisoners and ex-prisoners receive mental health treatment. A 2010 study by David Mancuso of the Washington State Institute of Public Policy, a state-based policy think tank, found that for state residents enrolled in Medicaid and receiving substance abuse treatment, arrest rates dropped by as much as 33 percent compared with rates for those who didn’t receive treatment, leading to lower correctional costs and better public safety.
In any case, about 8 million prisoners leave America’s prisons and jails every year. Since the rollout of Obamacare last October, ex-offenders account for about 1 million of the 6 million new Medicaid beneficiaries enrolled in expansion states.
While incarcerated, prisoners have a constitutionally protected right to health care, with costs usually covered by the state (even if they have their own health insurance). Typically, privately contracted health companies or public hospital systems provide such care. Most jails and prisons have on-site clinics – in some cases, even full-service hospitals.
While some say the quality of prisoner care could be better, it’s more robust than what usually greets indigent ex-inmates on the outside. In many states, inmates who’ve been diagnosed with chronic conditions receive a small supply of medication upon release, but often no medical provider or insurance for refills – creating a gap in their health care. Correctional health professionals across the United States share stories of inmates who get rearrested so they can get medication....
Substance abuse or mental health issues afflict the vast majority of prison inmates in the US. More than 1 million incarcerated people suffer from mental illness, the Department of Justice estimated in 2006 – almost half the total in custody. As for substance abuse, the picture is even bleaker, affecting between 60 and 80 percent of all inmates, found a 2013 report of the US Office of National Drug Control Policy.
The strongest case study might be Connecticut, which has one of the most comprehensive approaches to Medicaid enrollment in the nation. The state runs all its jails and prisons, making change easier to administer uniformly. It has four jails and 11 prisons, holding almost 17,000 inmates. Here, a person making less than about $15,800 a year qualifies for Medicaid.
The link is obvious between greater access to health care and lower recidivism rates, say state officials. “If you don’t feel well, you don’t act well,” says James Dzurenda, state correction commissioner. “The Affordable Care Act gives our released offenders access to health care, which is critical to release offenders back into the community safely, increase public safety, and ultimately reduce victimization.”...
Last year, Connecticut processed 7,794 Medicaid applications from state criminal-justice agencies. In the same period, state prison population and arrest rates dropped by about 3.4 percent, according to reports from the state Office of Policy and Management....
Enrolling in Medicaid does not guarantee an ex-inmate will instantly turn over a new leaf, of course. Moreover, the cumulative effect promises to be difficult to tease out: None of the programs now in place track inmates after they reenter the community, so there is no way to tell if ex-offenders are actually using the health insurance. Often, ex-inmates stick with their former habits of heading directly to emergency rooms for care, driving up public health costs, according to a recent study of former prisoners in Rhode Island.
Some related prior posts:
- "Can Obamacare Reduce the Cost of Corrections?"
- "Obamacare Is a Powerful New Crime-Fighting Tool"
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"Grace Notes: A Case for Making Mitigation the Heart of Noncapital Sentencing"
The title of this post is the title of this notable new article by Miriam Gohara that I just came across via SSRN. Here is the abstract:
Investigation and presentation of comprehensive life history mitigation is at the heart of successful capital litigation that has contributed to a steady decline in capital sentences. Noncapital incarceration rates have also begun to level, and various legal developments have signaled a re-ascent of more individualized noncapital sentencing proceedings. This return to individualized sentencing invites consideration of whether life history mitigation may, as it has in capital cases, hasten a turn away from mostly retributive punishment resulting in disproportionately harsh noncapital sentencing to a more merciful rehabilitative approach. The robust capital mitigation practice required by today's prevailing professional capital defense norms developed following the Supreme Court's Eighth Amendment doctrine requiring individualized capital sentences that account for the unique characteristics of the offender. No such doctrinal imperative applies to noncapital sentencing. As a result, professional noncapital defense sentencing standards, while providing a general basis for various aspects of sentencing advocacy, remain relatively underdeveloped, though the same bases for ameliorating punishment in capital cases should apply with equal practical force to noncapital cases.
At the same time, institutional and doctrinal barriers -- including high caseloads and lack of resources, the prevalence of plea bargaining, and the Supreme Court's “death is different” precedent -- present formidable challenges to routine presentation of life history mitigation in noncapital cases. Therefore, the regular presentation of life history mitigation, lacking a constitutional mandate and operating in a structure different from that of capital sentencing, will depend in the immediate term on the initiative of criminal defense lawyers with the will to consistently present it in noncapital cases. A more widespread adoption of comprehensive noncapital mitigation practice will benefit individual clients, change the expectations of sentencing courts concerning what information they should have available before ordering punishment, and provide insight into the social causes of various types of crimes. Over time, as it has in capital cases, familiarity with the mitigating force of social history may serve as a powerful basis for empathy and amelioration of overly punitive noncapital punishment.
Defender hiccup or major headache for Clemency Project 2014?
The question in the title of this post is prompted by this new article from Al Jazeera America headlined "Federal defenders potentially excluded from historic clemency drive." Here are excerpts:
Six months after the Justice Department called on defense lawyers to help it identify and vet candidates for its clemency drive, there is concern that the federal defenders — whom the DOJ invited in as key partners — might never have been authorized to participate in the first place. This could leave the initiative without the manpower it needs.
A high portion of the potential pool of inmates is represented by the federal defenders, and they have been critical in the formation and operation of Clemency Project 2014, a coalition of defense lawyers and advocates created in the wake of the DOJ’s call. (The vast majority of those prosecuted in federal courts receive court-appointed lawyers; in districts where there is a federal defenders’ office, they generally handle 60 percent of those cases.)
"Federal defenders include some of the best courtroom and appellate advocates in the United States. Having them work with the Clemency Project 2014 has been important to the work we are doing,” said Mark Osler, director of the Federal Commutations Clinic at the University of St. Thomas in Minnesota, who has been training lawyers for the Clemency Project. “Losing them as a part of the coalition would be a significant challenge.”
The courts appoint federal defenders — under the Criminal Justice Act — to represent indigent defendants in federal judicial proceedings, a service paid for by the public. Now the courts’ highest authority is considering whether those appointments can extend to representing clients in their petitions to the president for mercy, a process conducted wholly in the executive branch....
In February, the Justice Department invited representatives from a select group of its traditional rivals — the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, Families Against Mandatory Minimums and the federal defenders — to a series of meetings to discuss how the process might be structured. (A conservative organization, Judicial Watch, is currently suing the Justice Department to make those discussions public.)
The criteria that eventually emerged called for inmates who were nonviolent, low-level drug offenders without significant ties to large-scale criminal organizations. They would also have to have served at least 10 years of their prison sentences, not have a significant history of crime or violence and have demonstrated good conduct in prison.
While the Justice Department will ultimately decide which inmates to recommend to the president for clemency, it is the defense bar that has been tasked by the government with most of the upfront work, including identifying worthy candidates, recruiting and training the vast numbers of pro bono attorneys needed to assist the effort, preparing the petitions and vetting which petitions reach the Justice Department’s Office of the Pardon Attorney....
Cynthia W. Roseberry, the newly appointed head of the Clemency Project 2014, a former federal defender herself, said that “we look forward to continuing our collaboration with the federal defenders,” and that she remained confident that the project has the resources to identify all prisoners who meet the criteria for clemency and to ensure they have access to counsel at no cost....
The federal defenders declined to comment on internal discussions relating to when, if ever, consideration was given to whether they were statutorily authorized to participate in such a broad clemency effort. Kathy Nester, the federal public defender for the district of Utah and the defenders’ representative on the Clemency Project 2014 steering committee, referred to standing orders by judges in six districts already appointing defenders, saying it was evidence that the work logically falls to them. (At the time of publication, the administrative office of the courts was only able to confirm that there were four such standing orders.)
“It was a federal public defender's office that submitted the successful clemency petition in the case of Ezell Gilbert late last year,” said Nester, referring to one of the eight inmates whose sentences President Barack Obama commuted in December 2013. “This was done at the urging of [the Justice Department] and federal judges who had reviewed the case. Defenders have approached the clemency project with a good faith belief that we are supposed to take positions that are in the best interest of our clients, and that this historical opportunity for relief from unreasonable sentences would certainly fall within that mission.”
Similarly, in June, a federal defender motion in Cleveland asked for a court appointment to do clemency petitions, noting that it was the deputy attorney general, not the inmates themselves, who had requested that the defense bar seek clemency for qualified inmates. In response, the DOJ asked the court to defer appointing the defenders until the administrative office of the U.S. courts makes its decision as to whether the defenders are authorized to do such work. Neither the department nor the U.S. Attorney’s office in Cleveland would say whether this was now a department-wide position....
The more than 20,000 federal inmates who have taken up the DOJ on its invitation and asked Clemency Project 2014 to review their cases now await those who set these wheels in motion to sort it all out.
I sincerely hope there does not end up being major difficulties with federal defenders working on clemency petitions for federal inmates. And however these administrative issues get worked out, it will remain the case that there are just far too many federal prisoners who could benefit from experienced defense lawyers and far too few lawyers able to provide all the legal help needed.