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January 13, 2018

Campaign to recall Brock Turner's sentencing judge turns in many signatures

As reported in this local article, headlined "Effort to recall Stanford rape case judge submits almost 100,000 signatures," a high-profile lenient sentence may soon be putting a California judge's job in jeopardy. Here are the details:

The campaign to recall a judge who issued what many considered a light sentence to a former Stanford swimmer convicted of sexual assault cleared its first hurdle Thursday.

Recall organizers, led by Stanford law Professor Michele Dauber, filed a petition and nearly 100,000 signatures with the Santa Clara County Registrar of Voters in San Jose to place a measure on the June ballot to recall Superior Court Judge Aaron Persky.

If successful, it would be the first recall of a California judge in 87 years.

In June 2016, Persky sentenced former Stanford swimmer Brock Turner to six months in jail after he was found guilty of sexually assaulting an unconscious woman by a dumpster outside of a fraternity party on the college campus, resulting in a national outcry that Turner received special treatment. Prosecutors had argued that Turner should spend six years in state prison, but Persky gave him six months in county jail. He ended up being released in three.

While Persky became a prominent public figure after the Turner decision, the recall campaign has attempted to demonstrate a pattern of judicial bias that extends beyond Turner’s case.... At a news conference Thursday morning, Dauber listed a series of cases in which she believed Persky’s handling of sexual assault cases had been too lenient, including a 2011 civil trial on the alleged gang rape of a 17-year-old high school girl by members of the De Anza Community College baseball team. Persky allowed defendants to show photos of the victim wearing a revealing outfit to the jury....

After serving half of his sentence, Turner was required to register as a sex offender after moving back home with his family in Ohio. He recently appealed his conviction, arguing that he didn’t receive a fair trial.

To qualify for June’s election, the Persky recall campaign was required to turn in 58,634 valid signatures by Feb. 2. Organizers submitted a petition with 94,518 signatures that filled 11 boxes outside of the Registrar of Voters office, which now has 30 days to verify them. “We are very confident that we are going to have thousands more than we need to qualify,” Dauber said.

Persky has tried several times to block the recall effort....

Persky based Turner’s jail sentence on a recommendation from the county probation department. The judge noted that prison would have “a severe impact” on the former Stanford swimmer. The petition to place the recall on the ballot is only the first step in the campaign to push out Persky, Dauber said. If the recall is placed on the ballot, voters also will be asked to select a candidate to fill Persky’s seat on the bench. Cindy Hendrickson, an assistant district attorney for Santa Clara County, is the only candidate to date who has filed papers.

On Thursday, Dauber framed the recall effort in historical context by describing the first successful recall effort in California history. “In 1913, the women’s clubs of San Francisco, much like we have done here, banded together to recall a judge named Charles Weller for lenient decisions on sexual assault,” she said.

Dauber also noted the national momentum of the current #MeToo movement. “Women are standing up and refusing to accept the normalization of harassment and abuse by privileged men, and the movement runs all the way from Hollywood to Silicon Valley to media to politics to the legal profession,” Dauber said, expressing support for Hendrickson.

Persky’s ruling — along with the publication of a gut-wrenching letter the victim read in court during Turner’s sentencing hearing — prompted former Vice President Joe Biden to write an open letter to the victim noting that she is a “warrior” who has been failed by many people and institutions.

In a number of prior posts about the Brock Turner case, I have noted concerns both about the lenient sentence he received and about the campaign to recall his judge. Here is just a sampling of the prior posts this case has generated:

January 13, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Noticing the rise in LWOP as death sentencing declines in Texas

This lengthy article from the Houston Chronicle, headlined "Harris County leads Texas in life without parole sentences as death penalty recedes," provides an astute review of the sentencing impact of a decline of death sentencing.  Here are excerpts (with the closing sentences prompting some commentary):

Once known as the "capital of capital punishment," Harris County is now doling out more life without parole sentences than any other county in the state.

In the 12 years since then-Gov. Rick Perry signed the life without parole or "LWOP" bill into law, Harris County has handed down 266 of those sentences — nearly 25 percent of the state's total, according to data through mid-December obtained from the Texas Department of Criminal Justice.

"It's concerning, but this is like economics or engine performance, there's no free lunch," said Houston defense attorney Patrick McCann. "We have far fewer death cases than we used to. That's a tremendous win. But now we have a lot of LWOP sentences."

The county's reliance on the lengthiest sentence available in capital murder cases comes as the Houston area — and Texas as a whole — has shifted away from capital punishment. For the first time in more than 30 years, 2017 saw no new death sentences and no executions of Harris County killers. And although part of that downturn stems from the possibility of life without parole, some experts see possible drawbacks....

Andy Kahan, the city of Houston's victim advocate, described life without parole as a "saving grace" for victims' families. "Like it or not, there's some really evil people out there that commit some horrible atrocities that deserve to be locked up for life," he said. "In a utopian world it'd be great if we didn't have to have it but that's not reality."

While Harris County grabs the lion's share of the state's life without parole sentences, Dallas County came in right behind with 120, according to Texas Department of Criminal Justice data through Dec. 18. Tarrant County had 69 of the state's 1,067 total such sentences, while Bexar County had 47 and Hidalgo had 26....

Just over 17 percent of the state's population lives in Harris County, according to Texas Department of State Health Services population projections for 2016. That makes for an LWOP rate of 6 sentences per 100,000 residents, which is higher than in all but two counties with populations over 100,000.

In comparison to murder figures, the relatively large number of life without parole sentences looks less surprising. According to an analysis of DPS data, in 2016 Harris County accounted for 27.7 percent of the state's murders and 22.7 percent of the murders cleared.

And while Harris County accounts for a disproportionate number of total executions nationwide — more than any other county or entire state, except the rest of Texas — it has generated only a small fraction of the total life without parole sentences across the country, based on TDCJ figures and a 2017 Sentencing Project report.

"Where the corporate culture has changed is the willingness to seek death," McCann said, referring to local prosecutors. "Cases that ten years ago would have been death even with LWOP are now charged as non-death," McCann said. "But that doesn't mean that they've stopped charging the LWOP cases."

To some extent, Texas' relatively low LWOP use compared to national numbers may stem from the fact that prosecutors have only had the option for life without parole since 2005. Before that, the harshest choices were death — or the possibility of release after 40 years....

Texas became the last death penalty state to adopt the option, after Harris County prosecutors dropped their opposition. Initially it only applied to capital murder, but later the law was expanded to include crimes like repeated sexual assault of a child.

From the statute's inception, Harris County was one of its biggest users. "It's not surprising because Harris County is also the driver of the death penalty numbers and most juvenile commitments as well," Henneke said. "Across the board Harris County is the incarceration county."...

Unlike with death-sentenced cases, there's no automatic appointment of post-conviction appellate counsel and no punishment phase of the trial, which makes the whole process quicker and cheaper. "Life without parole was an unintentional gift to major urban prosecutors' offices," McCann said. "It makes it very easy to dispose of a large number of violent and often youthful offenders without any more thought than one would need to toss away a piece garbage."

The last few passages highlight what has long been my enduring concern as abolitionist have pushed for LWOP sentences as an alternative to the death penalty. Though the extreme LWOP sentence may at first be only available for the worst murders, once on the books it can and often does creep to be applicable to a range of other crimes. And capital cases come with super due-process, much of which is constitutionally requires; LWOP can be imposed, as this article puts it, "quicker and cheaper." While I understand why abolitionists celebrate the use of LWOP in order to engineer a decline in capital cases, I also lament the various ways abolitionist advocacy for LWOP alternatives have contributed to modern mass incarceration and further entrenched carceral commitments and contentments.

January 13, 2018 in Death Penalty Reforms, Scope of Imprisonment | Permalink | Comments (11)

January 12, 2018

Supreme Court grants cert on a couple of (small?) sentencing cases

Via this order list, the US Supreme Court added twelve cases to its merits docket.  A couple involve sentencing issues, and here they are with an assist from SCOTUSblog:

Chavez-Meza v. United States, No. 17-5639

Issue: Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.

Lagos v. United States, No. 16-1519

Issue: Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim's own purposes and unprompted by any official government action.

As the title of this post suggests, my first take is that these issues are pretty small in scope and significance.  But I am still always excited to see SCOTUS care about sentencing matters.

January 12, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

"Mental Health Courts and Sentencing Disparities"

The title of this post is the title of this notable new empirical paper now available via SSRN authored by E. Lea Johnston and Conor Flynn.  Here is the abstract:

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants.  This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts.  Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score.  Information on the mental health court — including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of early discharge, and consequences of unsuccessful termination — derive from interviews with key mental health court professionals, five years of collected sentencing and dispositional data, and court materials.  The Pennsylvania Commission on Sentencing provided the county-level data, which were disaggregated by offense and criminal history score. The article analyzes sentencing for twelve offenses spanning four offense grades.

The findings are striking.  First, analysis reveals that anticipated mental health court sentences typically exceed — by years — the supervisory periods that offenders would otherwise receive in a county criminal court.  Second, mental health court participants with multiple convictions were significantly more likely to receive consecutive, as opposed to concurrent, sentences than those sentenced by traditional courts.  Third, the analysis suggests the mental health court usually does not divert individuals from jail or prison sentences — a primary justification for these courts — but instead merely extends state control over individuals with serious mental illnesses.  Fourth, key mental health court actors appear unaware of likely sentencing disparities or the high rate of participant failures.  Thus, offenders choosing between mental health and traditional courts may go uninformed about these fundamental differences.  The article concludes with suggestions for future research.

January 12, 2018 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

January 11, 2018

Notable comments by Prez Trump during meeting on prison review

I spent most of Thursday on the road, and various news stations were reporting on statements by Prez Trump others than those on the topic of prison reform. But, as this official White House page reveals, Prez Trump made some comments during a meeting that ought not be overlooked. Here are excerpts:

We’ll be discussing a number of opportunities to improve our prison system to better promote public safety and to help former prisoners reenter society as productive citizens. Very important. Very big topic. It’s become a very big topic, especially, I think, over the last 12 months or so. We’ve been focused on it very strongly.

We support our law enforcement partners, and we’re working to reduce crime and put dangerous offenders behind bars. At the same time, we want to ensure that those who enter the justice system are able to contribute to their communities after they leave prison, which is one of many very difficult subjects we’re discussing, having to do with our great country.

The vast majority of incarcerated individuals will be released at some point, and often struggle to become self-sufficient once they exit the correctional system. We have a great interest in helping them turn their lives around, get a second chance, and make our community safe. Many prisoners end up returning to crime, and they end up returning to prison. Two-thirds of the 650,000 people released from prison each year are arrested again within three years.

We can help break this vicious cycle through job training — very important, job training — mentoring, and drug addiction treatment. And you know how we’re focused on drugs pouring into our country and drug addiction. It’s a big problem even as we speak of this subject. We’ll be very tough on crime, but we will provide a ladder of opportunity to the future....

My administration is committed to helping former inmates become productive, law-abiding members of society.

This Hill article about the meeting, headlined "Trump, Kushner meet with advocates on prison reform," includes quotes from advocates and lawmakers suggesting reasons for optimism and pessimism concerning possible federal legislative reforms moving forward after this notable meeting.

January 11, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (10)

Press reports indicate White House listening session to be focused only on reentry issues, not sentencing reform

As noted here yesterday, there are plans for an afternoon meeting at the White House on criminal justice issues.  But, as this new Newsweek article details, it seems that sentencing reform is not going to be part of the discussion.  The article's headline provides the essentials, "Trump and Kushner's Prison Reform Plan Not Expected to Reduce Sentences or Fix Prison Conditions," and here are the details:

President Donald Trump will hold a listening session on prison reform Thursday that will focus on improving prisoner reentry – the process of preparing inmates for release–with a conservative approach, multiple people in talks with the administration told Newsweek.

The session is only expected to include politicians and religious and nonprofit leaders from the right. It is not expected to include discussion on topics like prison conditions or sentencing reform.

In attendance will be three Republican governors who instituted criminal justice reform in their states–Governor Nathan Deal of Georgia, Governor Matt Bevin of Kentucky and Governor Sam Brownback of Kansas–along with televangelist Paula White, according to Derek Cohen, the director of Right on Crime at the Texas Public Policy Foundation, which has been in discussions about conservative reentry reform methods with the Trump administration. “All the policy issues we’ve discussed with the administration have a conservative orientation,” said Cohen, who added that prison ministries are crucial to a successful release. “Faith is going to be an integral part of any reentry plan.”

The Texas Public Policy Foundation and the Trump administration have discussed cutting government regulation to make it easier for former prisoners to get jobs, Cohen said. Getting rid of restrictions that bar ex-cons from working as barbers, for example, allow inmates to more easily get a job upon release and reduce the likelihood of recidivism, he added.

Koch Industries general counsel Mark Holden will also attend the meeting, which he said will be at 1:30 p.m. in the White House’s Roosevelt Room. “Our point of view at Koch is prisoner reentry needs to begin at day one of the sentence” and not “60 or 90 days out” from release, said Holden, who had also been involved in the prison reform talks that Trump senior adviser and son-in-law Jared Kushner began last summer. Holden added that mental health and drug treatment, along with vocational training, need to happen inside prisons so inmates are prepared for life outside when they are released.

“I’m delighted that the president has made this a priority,” said Pat Nolan, director of the American Conservative Union Foundation’s Center for Criminal Justice Reform, which has also been in prison reform talks with the Trump administration. “I’ve been working since 1996 to help build a conservative movement in criminal justice reform, and this is a very important turning point.” Cohen and Nolan will not be at the Thursday session, but others from their organizations are attending....

Kushner’s Office of American Innovation is also working on an apprenticeship plan for released prisoners that could match inmates with employers, according to a conservative leader who has been working with the White House on the reforms, but it’s unclear whether that initiative will be announced Thursday.

Excluding organizations that are seen as liberal, like the ACLU or the NAACP, and leaving out sentencing reform was necessary to gain the support of “old guard conservatives” like U.S. Attorney General Jeff Sessions, who will also attend the meeting, the conservative leader said. “Reading the tea leaves, I think what they’ve done is sat down with Mr. Sessions and got him to agree to part of the reforms,” said the conservative leader, who requested anonymity in order to freely discuss the issue. He added that he expects White House Chief of Staff John Kelly to attend and that Housing Secretary Ben Carson and Labor Secretary Alexander Acosta came to previous meetings on the issue.

The White House did not respond to a request for comment late Wednesday evening.

Recent related post:

January 11, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

January 10, 2018

A not-quite random collection of notable recent sentencing pieces

This week, though only half done, has been full of links to reports or commentaries or other items that seemed blogworthy but that I have not yet found time to blog about.  Particularly because I likely will be off-line much of the rest of this week, I figured I could make up for lost time with a big round-up.  So here goes, in no particular order:

January 10, 2018 in Recap posts, Recommended reading | Permalink | Comments (3)

Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed?

The Wall Street Journal has this notable article today headlined "U.S. to Seek Death Penalty More Often for Violent Crimes; Attorney General Jeff Sessions authorizes federal prosecutors to seek capital punishment in two murder cases and is said to be weighing it in others, including Manhattan terror attack." Here are excerpts (with two particular lines emphasized):

The Justice Department has agreed to seek the federal death penalty in at least two murder cases, in what officials say is the first sign of a heightened effort under Attorney General Jeff Sessions to use capital punishment to further crack down on violent crime.

In a decision made public Monday, Mr. Sessions authorized federal prosecutors to seek the death penalty against Billy Arnold, who is charged with killing two rival gang members in Detroit.  The decision followed the first death-penalty authorization under Mr. Sessions, made public Dec. 19, when he cleared prosecutors in Orlando to seek a death sentence against Jarvis Wayne Madison, who is charged with fatally shooting his estranged wife in 2016.

The Justice Department is also considering seeking death sentences against Sayfullo Saipov, accused of killing eight people in November by driving a truck onto a Manhattan bike lane, and against two defendants in the 2016 slaying of two teenage girls by MS-13 gang members on Long Island, outside of New York City, according to people familiar with the deliberations.

Mr. Sessions views the death penalty as a “valuable tool in the tool belt,” according to a senior Justice Department official. The official said the death penalty isn’t only a deterrent, but also a “punishment for the most heinous crimes prohibited under federal law.” The Justice Department under President Donald Trump expects to authorize more death penalty cases than the previous administration did, the official said....

The last federal execution was in 2003. Since 1963, three federal defendants have been executed. The federal government has secured 25 death sentences since 2007, down from 45 death sentences between 1996 and 2006....

Only 2% of death-penalty cases are sentenced in federal court. Several types of murder cases fall under federal jurisdiction, including those involving drug trafficking, racketeering or — in Mr. Madison’s case — interstate domestic violence and interstate stalking.

The Obama administration sought the federal death penalty in at least four dozen cases, fewer than the Bush administration, according to the Federal Death Penalty Resource Counsel, a federally funded program to assist death penalty lawyers. The cases authorized under the previous administration included ones involving terrorism, the killing of children or law-enforcement officers, and murders by prisoners already serving life sentences.

But in recent years, a Justice Department review of the drugs used to execute prisoners prompted an effective moratorium on federal executions.

Mr. Sessions appears to be seeking the death penalty against a broader set of violent crimes. Former Justice Department officials under President Barack Obama said they typically wouldn’t have authorized capital punishment in a case like Mr. Arnold’s, which involves gang-on-gang violence. Murder cases with “victims who were themselves involved in criminal activity” are the ones where death penalty decisions tend to fluctuate by administration, said David Bitkower, a former Justice Department official under Mr. Obama who prosecuted two death-penalty gang cases.

Eric Holder, who served as attorney general from 2009 to 2015, personally opposed the death penalty. Loretta Lynch, Mr. Holder’s successor, called capital punishment “an effective penalty” at her confirmation hearing.

Mr. Sessions has put combating violent crime at the center of his agenda, encouraging prosecutors to pursue longer prison sentences and approving the hiring of dozens of new violent-crimes prosecutors.

The moves come as the death penalty on the state and federal level has been in decline. State executions are hovering near 26-year lows, partly due to dwindling supplies of lethal drugs and growing legal scrutiny from courts....

Former prosecutors say an increase in death-penalty cases could be time-consuming and expensive for both government and defense lawyers. Appeals in death penalty cases can take decades.

There are 61 prisoners on federal death row, compared with more than 2,800 in the states.

The de facto federal moratorium on executions got started more than a decade ago in the run up to the Supreme Court's first review of the constitutionality of lethal injection protocols in Baze.   After Baze resolved the basic constitutionality of lethal injection protocols, and especially after Glossip back in 2015 had the Supreme Court making pretty clear that jurisdictions could lawfully use a number of potential lethal injection drugs, the justification for continuing the de facto federal moratorium on executions became shaky at best.  Consequently, if AG Sessions is really serious about the death penalty as a "valuable tool in the tool belt," he needs to make an effort to make sure that the tool is actually fully operational.  Sending folks to US death row when there are no executions going forward is really just another way to impose LWOP while perpetuating a functional legal fiction.

Notably, this helpful list of all 61 federal death row prisoners from the Death Penalty Information Center reveals that 10 condemned have been languishing on federal death row for two decades or longer, and most have been there more than a decade.  Especially given that Justice Breyer has often argued that long stays on death row violate the Eighth Amendment, AG Sessions might even suggest he is duty bound to try to speed up the federal execution process in order to avoid possible constitutional violations.

January 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

BJS releases "Prisoners in 2016" reporting another drop in state and federal prison populations in 2016

As reported in this press release, the "number of prisoners in state and federal correctional facilities fell by 1 percent from year-end 2015 to 2016, the Bureau of Justice Statistics announced today. This was the third consecutive year that the U.S. prison population declined." here is more from the release:

State and federal prisons held an estimated 1,505,400 prisoners in 2016, 21,200 fewer than in 2015. The population of the Federal Bureau of Prisons (BOP) accounted for more than a third (34 percent) of the total change in the prison population, dropping by 7,300 prisoners, from 196,500 to 189,200 prisoners. Although the overall prison population decreased, the number of prisoners held in private facilities increased 2 percent in 2016

State and federal prisons admitted 2,300 fewer prisoners in 2016 than in 2015. The BOP accounted for the majority (96 percent) of the decline, down 2,200 admissions.

More than half (54 percent) of state prisoners were serving sentences for violent offenses at year-end 2015, the most recent year for which data were available. Nearly half (47 percent) of federal prisoners had been sentenced for drug offenses as of Sept. 30, 2016, the most recent date for which federal offense data were available. More than 99 percent of those drug sentences were for trafficking.

In 2016, the rate at which people were sentenced to more than one year in state or federal prison (imprisonment rate) was the lowest since 1997. There were 450 prisoners per 100,000 U.S. residents held in state and federal prisons in 2016, compared to 444 prisoners per 100,000 in 1997.

The imprisonment rate decreased for non-Hispanic adult black, non-Hispanic adult white and adult Hispanic prisoners from 2015 to 2016. The rate of imprisonment decreased 4 percent for black adults (from 1,670 to 1,608 per 100,000), 2 percent for white adults (from 281 to 274 per 100,000) and 1 percent for adult Hispanic prisoners (from 862 to 856 per 100,000).

During the decade between 2006 and 2016, the rate of imprisonment decreased 29 percent for black adults, 15 percent for white adults and 20 percent for Hispanic adults.

The full 36-page BJS report, excitingly titled Prisoners in 2016 and full of data of all sorts, is available at this link.

January 10, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Interesting report of plans for Prez Trump to hold a "listening session on prison reform" this week

Axios has this notable new scoop about notable White House plans including President Trump under the headline "Scoop: Jared's policy push on prison reform."  Here are the details:

President Trump tomorrow will hold a listening session on prison reform, after six months of quiet exploration of the issue by senior adviser Jared Kushner (who turns 37 today).

Why it matters: The White House sees this as a conservative issue (save money, cut crime) that could get bipartisan support (spending for workforce development), heading into a midterm election year when it'll be even harder to get congressional accomplishments than it was last year.

  • Under the auspices of Kushner's Office of American Innovation, administration officials have met with faith-based leaders, former inmates who have been rehabilitated, conservative leaders, and experts on the issue.
  • Attorney General Jeff Sessions will join Thursday's session.
  • Jared and his wife, Ivanka Trump, held a dinner discussion at their home, including Sens. Dick Durbin (D-Ill.), Amy Klobuchar (D-Minn.), Mike Lee (R-Utah) and Sheldon Whitehouse (D-R.I.)
  • The administration is exploring possible legislative proposals and administrative actions. An early step could include a push for public awareness involving churches.
  • The issue came up during this weekend's Camp David meeting with GOP congressional leaders.

Koch Industries general counsel Mark Holden, a longtime champion of the issue, told me he has been impressed with Kushner's passion, and that the approach the administration is exploring "has been showed to markedly reduce recidivism."

Jared Kushner's interest and "passion" for criminal justice reform is not big or new news, but the direct involvement of President Trump and Attorney General Sessions in talks about possible federal reforms does strike me as big news. It is worth watching as the rest of this week unfolds whether and how the White House or the Prez himself speaks about this planned meeting (either before or after it takes place).  I am still not prepared to assert that significant federal statutory sentencing reform is becoming likely, but this reported meeting seems like a good and important sign.

January 10, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

January 9, 2018

Two notable new additions to the Senate Judiciary Committee that should generally hearten sentencing reform advocates

As reported here by the Washington Post, "The Senate Judiciary Committee will welcome its first African American members in this century after Democrats added Sens. Kamala D. Harris (D-Calif.) and Cory Booker (D-N.J.) to the panel that handles judicial nominations and appointments to the Justice Department." Here is more:

“The Congressional Black Caucus could not be more proud of both of our Senate members and know the experience and expertise they bring to the Committee will be beneficial for all Americans,” said Rep. Cedric Richmond (D-La.), the CBC’s chairman, in a statement.

Harris, a former attorney general of California, was seen as a likely candidate to join the committee after Sen. Al Franken (D-Minn.) announced his resignation late last year. The appointment of Booker was more of a surprise, coming one year after Booker testified against the appointment of then-Sen. Jeff Sessions (R-Ala.) as attorney general, a rare move for one senator to make against another. Sometime after that hearing, Booker learned that he and Harris were “second and third in line” if openings came up.

“The Trump administration has repeatedly demonstrated its hostility to the ideals of civil rights and equal justice for all,” Booker said Tuesday in a statement announcing his appointment. “As a member of the Senate Judiciary Committee, I will make it my mission to check and balance President Trump and Attorney General Sessions.”

No African American senator has sat on the Judiciary Committee since the 1990s, when Carol Moseley Braun, a Democrat from Illinois, became the first black woman elected to the Senate. There had been pressure on Democrats to elevate Harris; in the end, Senate Minority Leader Chuck Schumer opted to elevate both of the Senate’s black Democrats.

Harris’s appointment was possible because Democrat Doug Jones’s victory last month in Alabama shrank the Republican advantage on two committees. (Republicans now have one-seat advantages on the Judiciary Committee (11 to 10) and Finance Committee (14 to 13); Sen. Sheldon Whitehouse (D-R.I.), who is in his second term, will join the latter committee.)

Senator Booker has been a fairly vocal advocate for sentencing reform since his election to the Senate back in 2013, and he has sponsored bills on a range of criminal justice issues. Senator Harris has worked as a state prosecutor and has expressed support for criminal justice reform in various ways since becoming a Senator just last year.  (Conveniently, Mother Jones has this interesting lengthy new profile of Senator Harris, headlined "The Secret to Understanding Kamala Harris: And why it’s making her a flash point in the Democratic Party," which highlights why some on the left do not see her as a true reform ally.)

Critically, in recent years it has been Senate leadership, not the Senate Judiciary Committee, that has been a roadblock to getting significant statutory sentencing reform enacted.  Thus, the addition of Senators Booker and Harris to the Judiciary Committee does not, in and of itself, directly impact in any dramatic way the likelihood of some form of sentencing reform getting passed in 2018.  But their knowledge and reform-minded vision could and should impact the Committee's work in various ways in the coming year that should be heartening to advocates of sentencing reform.  And their place on the Committee could become a very big deal if the Democrats were able to take back control of the Senate come November.

January 9, 2018 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Taking a close look at the state of women's incarceration in the states

Women_overtime_select_statesThe very fine folks at the Prison Policy Initiative have a very fine new report on incarceration rates and populations for women in the United States.  The report is titled "The Gender Divide: Tracking women’s state prison growth," and the full report is a must read for anyone interested in prison population data and/or the importance of analyzing modern criminal justice systems with gendered sophistication. Here are excerpts from the start and end of the report: 

The story of women’s prison growth has been obscured by overly broad discussions of the “total” prison population for too long. This report sheds more light on women in the era of mass incarceration by tracking prison population trends since 1978 for all 50 states. The analysis identifies places where recent reforms appear to have had a disparate effect on women, and offers states recommendations to reverse mass incarceration for women alongside men.

Across the country, we find a disturbing gender disparity in recent prison population trends. While recent reforms have reduced the total number of people in state prisons since 2009, almost all of the decrease has been among men. Looking deeper into the state-specific data, we can identify the states driving the disparity.

In 35 states, women’s population numbers have fared worse than men’s, and in a few extraordinary states, women’s prison populations have even grown enough to counteract reductions in the men’s population. Too often, states undermine their commitment to criminal justice reform by ignoring women’s incarceration.

Women have become the fastest-growing segment of the incarcerated population, but despite recent interest in the alarming national trend, few people know what’s happening in their own states. Examining these state trends is critical for making the state-level policy choices that will dictate the future of mass incarceration.

Nationally, women’s incarceration trends have generally tracked with the overall growth of the incarcerated population. Just as we see in the total population, the number of women locked up for violations of state and local laws has skyrocketed since the late 1970s, while the federal prison population hasn’t changed nearly as dramatically. These trends clearly demonstrate that state and local policies have driven the mass incarceration of women.

There are a few important differences between men’s and women’s national incarceration patterns over time.  For example, jails play a particularly significant role in women’s incarceration (see sidebar, “The role of local jails”). And although women represent a small fraction of all incarcerated people, women’s prison populations have seen much higher relative growth than men’s since 1978. Nationwide, women’s state prison populations grew 834% over nearly 40 years — more than double the pace of the growth among men.

While the national trend provides helpful context, it also obscures a tremendous amount of state-to-state variation.  The change in women’s state prison incarceration rates has actually been much smaller in some places, like Maine, and far more dramatic in others, like Oklahoma and Arizona. A few states, including California, New York, and New Jersey, reversed course and began decarcerating state prisons years ago. The wide variation in state trends underscores the need to examine state-level data when making criminal justice policy decisions....

The mass incarceration of women is harmful, wasteful, and counterproductive; that much is clear.  But the nation’s understanding of women’s incarceration suffers from the relative scarcity of gender-specific data, analysis, and discourse.  As the number of women in prisons and jails continues to rise in many states — even as the number of men falls — understanding this dramatic growth becomes more urgent.  What policies fuel continued growth today?  What part does jail growth play?  Where is change needed most now, and what kinds of changes will help? This report and the state data it provides lay the groundwork for states to engage these critical questions as they take deliberate and decisive action to reverse prison growth.

January 9, 2018 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Making the case against juvenile sex offender registration requirements

Rebecca Fix has this new commentary that caught my eye under the headlined "Young Sex Offenders Shouldn’t Have to Register; It’s Ineffective and Hurts Everyone Around Them." The whole piece (and its many links) are worth checking out, and here is how it gets started:

Sex offender registration policies were initially developed for adults with sexual offenses, but have recently been extended to include youth with sexual offenses as well.  At first glance, sex offender registration and notification (hereafter referred to as SORN) may make us feel safer, produce relief knowing that these individuals are being punished.

However, many of us don’t realize that these practices don’t protect our children.  Required registration of and notification about youth with illegal sexual behavior, in particular, has resulted in serious economic and psychological burdens at multiple levels, affecting not only the youth who have to register (e.g., increase in suicidal ideation), but also their families (e.g., judgment from others, loss of job), neighbors (e.g., devaluation of home value) and communities (e.g., stress levels, potential changes in reputation).

Mental health providers and child advocates like myself and colleagues at the Moore Center for the Prevention of Child Sexual Abuse who have examined policies concerning sexual offending among youth know that SORN requirements stem from an ill-fitting classification system that has deleterious consequences.

January 9, 2018 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (3)

Fourth Amendment day for SCOTUS oral arguments

The second day of Supreme Court oral arguments in calendar year 2018 brings forth two Fourth Amendment cases on the SCOTUS calendar.  Here are the basics and links to various previews via this SCOTUSblog posting:

Continuing its themed approach to argument days this session, the court is hearing two Fourth Amendment cases today, both involving searches of motor vehicles. The first argument is in Byrd v. United States, which asks whether a driver has a reasonable expectation of privacy in a rental car when he is not listed as an authorized driver on the rental contract. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. D.E. Wagner and Leonardo Mangat preview the case for Cornell Law School’s Legal Information Institute.

 This morning’s second case is Collins v. Virginia, in which the justices will consider the scope of the automobile exception to the warrant requirement. Amy Howe previewed the case for this blog; her coverage was first published at Howe on the Court.  Robin Grieff, Jonathan Kim and Hillary Rich have Cornell’s preview, and Subscript offers a graphic explainer for the case.

January 9, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

January 8, 2018

"Mass Incarceration and the War on Drugs"

The title of this post is the title of this notable new paper authored by Scott Cunningham and Sam Kang that a helpful colleague sent my way.  Here is its abstract:

US incarceration rates quintupled from the early 1970s to the present, leading to the US becoming the most incarcerated OECD country in the world.  A driving cause behind this growth was a nationwide shift to more punitive criminal justice policy, particularly with respect to drug related crimes.  This movement has since been characterized as the "war on drugs."  In this manuscript, we investigate the impact of rising incarceration rates on drug use and drug markets by exploiting a natural experiment in the Texas penitentiary system. In 1993, Texas made massive investments into its prison infrastructure which led to an over doubling of the state's prison capacity.  The effect was that Texas's incarceration rates more than doubled, due in large part to declining paroles. 

We use this event to study the effect that mass incarceration had on drug markets. We find no effect on drug arrests, drug prices or drug purity.  We also find no effect on self-referred cocaine or heroin treatment admissions.  However, we do find large negative effects on criminal justice referrals into treatment for cocaine and heroin, suggesting that mass incarceration reduces drug use in the population.  Furthermore, our results indicate that this decline is driven by incapacitation effects as opposed to deterrence effects.

January 8, 2018 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Interesting comments on reform and rehabilitation from Deputy AG Rosenstein

Deputy Attorney General Rod Rosenstein today delivered these lengthy remarks at the American Correctional Association's Winter Conference.  Folks interested in prison policies and practices, as well as the messages being delivered by the US Justice Department these days, should make time to  read the entire speech.  And sentencing fans (including students in the Sentencing class I start teaching today) may be especially interested in these interesting comments about reform and rehabilitation from the early part of the speech:

The American Correctional Association has a proud history of supporting the work of prison and jail officials.  More than 147 years ago, in 1870, corrections officials from the United States and abroad met in Cincinnati, Ohio and adopted a “Declaration of Principles” they believed should guide the field of corrections.  One of your principles is that the purpose of incarcerating criminals is “the protection of society.”

One of the most important management principles is that it is essential to articulate the big-picture goal for an organization.  That vision filters down into how other managers understand their mission, and ultimately into everything that our employees do. In law enforcement, our goal is to reduce crime.

Correctional agencies play a critical role in achieving that goal.  By providing inmates with structure, and teaching them discipline and skills during their incarceration, you increase the probability that they will become productive members of society and reduce the likelihood of recidivism.

When I read the original version of your principles, I noticed that the word “reform” appears 27 times.  The word “rehabilitate” does not appear at all.  Rehabilitation came into vogue as a sentencing goal in the 20th century.  Many people ultimately concluded that rehabilitation was not a realistic goal for prisons.

After spending almost three decades in law enforcement, I agree that we need to focus on reform of criminals, not rehabilitation.  The reason is that “re-habilitation,” by definition, is about restoring a person’s good reputation and ability to work.

There are some criminals for whom rehabilitation is a reasonable goal.  They are people who lived law-abiding lives and were productive members of society, before something went wrong and caused them to go astray.

But many of the career criminals housed in our prisons unfortunately were not properly habilitated before they offended.  The criminals who were not productive members of society need reform, not rehabilitation.

Admitting that most of our inmates need reform is not a way of disparaging the criminals.  It is instead a frank way to acknowledge that our task is more than just helping them overcome a few mistakes.  Many inmates do not just lack self-restraint.  They lack job skills.  They lack education.  They lack family structure.  They lack discipline.

While they are under governmental supervision, you have the chance to help them reform by imposing discipline and offering opportunities for improvement.  The most important thing for many inmates to learn is the discipline of following a schedule: wake up at a particular time, report to work when required, eat meals at the designated hours, and go to bed early enough to start fresh the next morning.

Some of the programs you offer also may be useful to reform inmates and set them on the right path. Programs such as institutional work assignments, prison industries, substance abuse treatment, and educational or vocational training.  Your work makes our communities safer.

The principles from 1870 also codify the professionalism that defines corrections officials.  They explain that “[s]pecial training, as well as high qualities of head and heart, [are] required to make a good prison or reformatory officer.”

January 8, 2018 in Criminal justice in the Trump Administration, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

SCOTUS back to work with remarkable split habeas ruling giving capital defendant another (long-shot?) chance to obtain relief

At the end of this long Supreme Court order list, comprised primarily of a long list of cases in which certiorari has been denied, comes a fascinating little per curiam opinion in Tharpe v. Seller, No. 17–6075 (S. Ct. jan 8, 2018) (available here).  The ruling is a rare summary SCOTUS win for a capital habeas defendant, and the short majority opinion provides only a small glimpse into the case (though a clear view of what motivated a majority of Justices to want to intervene).  Here are excerpts from the opinion (with cites removed):

Petitioner Keith Tharpe moved to reopen his federal habeas corpus proceedings regarding his claim that the Georgia jury that convicted him of murder included a white juror, Barney Gattie, who was biased against Tharpe because he is black. See Fed. Rule Civ. Proc. 60(b)(6). The District Court denied the motion on the ground that, among other things, Tharpe’s claim was procedurally defaulted in state court. The District Court also noted that Tharpe could not overcome that procedural default because he had failed to produce any clear and convincing evidence contradicting the state court’s determination that Gattie’s presence on the jury did not prejudice him....

Our review of the record compels a different conclusion.  The state court’s prejudice determination rested on its finding that Gattie’s vote to impose the death penalty was not based on Tharpe’s race.  And that factual determination is binding on federal courts, including this Court, in the absence of clear and convincing evidence to the contrary.  Here, however, Tharpe produced a sworn affidavit, signed by Gattie, indicating Gattie’s view that “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; that “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t my reason”; and that, “[a]fter studying the Bible, I have wondered if black people even have souls.”  Gattie’s remarkable affidavit — which he never retracted — presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.  At the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court’s factual determination was wrong.  The Eleventh Circuit erred when it concluded otherwise.

Justice Thomas, joined by Justices Alito and Gorsuch, authored a lengthy dissent to the majority's short ruling. It starts and ends this way:

If bad facts make bad law, then “unusual facts” inspire unusual decisions.  Ante, at 3.  In its brief per curiam opinion, the Court misreads a lower court’s opinion to find an error that is not there, and then refuses to entertain alternative grounds for affirmance. The Court does this to accomplish little more than a do-over in the Court of Appeals: As it concedes, petitioner Keith Tharpe faces a “high bar” on remand to obtain even a certificate of appealability (COA).  Ante, at 2.

One might wonder why the Court engages in this pointless exercise.  The only possible explanation is its concern with the “unusual facts” of this case, specifically a juror affidavit that expresses racist opinions about blacks.  The opinions in the affidavit are certainly odious.  But their odiousness does not excuse us from doing our job correctly, or allow us to pretend that the lower courts have not done theirs.

The responsibility of courts is to decide cases, both usual and unusual, by neutrally applying the law.  The law reflects society’s considered judgments about the balance of competing interests, and we must respect those judgments.  In bending the rules here to show its concern for a black capital inmate, the Court must think it is showing its concern for racial justice.  It is not.  Its summary vacatur will not stop Tharpe’s execution or erase the “unusual fac[t]” of the affidavit.  It will only delay justice for Jaquelin Freeman, who was also black, who is ignored by the majority, and who was murdered by Tharpe 27 years ago. I respectfully dissent....

Today’s decision can be explained only by the “unusual fac[t]” of Gattie’s first affidavit.  Ibid.  The Court must be disturbed by the racist rhetoric in that affidavit, and must want to do something about it.  But the Court’s decision is no profile in moral courage.  By remanding this case to the Court of Appeals for a useless do-over, the Court is not doing Tharpe any favors.  And its unusual disposition of his case callously delays justice for Jaquelin Freeman, the black woman who was brutally murdered by Tharpe 27 years ago. Because this Court should not be in the business of ceremonial handwringing, I respectfully dissent.

This is quite the way to start Supreme Court activity in 2018, a year that seems certain to have at least the usual share of SCOTUS fireworks. (I am also inspired by Justice Thomas's closing thought to imagine a new tagline for this blog: "Engaged in ceremonial handwringing since 2004.")

January 8, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

January 7, 2018

Noticing the continued decline of the federal prison population (for now) ... and a story embedded with intricacies

PrisonPopuGraphicOver at the Washington Post's WonkBlog, Keith Humphreys has this important little discussion of the federal prison population under the headlined "The number of people in federal prisons is falling, even under Trump."  Here are excerpts (with a few lines emphasized for some follow-up commentary):

When states began shrinking their prison populations almost a decade ago, the federal prison system was still growing each year and thereby undermining progress in reducing mass incarceration. But in the past four years, the federal system has cut its inmate population by one-sixth, a decrease of over 35,000 prisoners.

Because criminal justice is mainly the province of the states, the federal prison system holds only about 13 percent of U.S. inmates. Yet that is still a significant number of people in absolute terms: The system held 219,300 inmates at its peak in 2013. Four subsequent years of significant contraction dropped the federal inmate population to 184,000 by the end of 2017.

Obama-era changes to drug crime prosecution and sentencing coupled with a historic level of clemency grants to federal inmates by President Barack Obama helped bring the federal prison system to its lowest population size since mid-2004 and its lowest incarceration rate (i.e., adjusted for population) since the end of 2002.

Given President Trump’s penchant for “tough on crime” rhetoric, some observers may find it surprising that the federal prison population kept dropping under the first year of the Trump administration. The most likely cause is also the most obvious. When a nation is blessed with two decades of falling crime rates, this eventually translates into lower incarceration rates because there just aren’t as many offenders to arrest, charge and imprison.

Whether the federal prison population continues to decline will depend in part on Trump administration policies. Attorney General Jeff Sessions recently reversed the Obama-era policy of avoiding mandatory minimum sentences in low-level drug cases, which could result in some future growth in the federal inmate population even if crime continues to fall.

The other key determinant of the federal prison population’s future is whether Trump will make use of his powers to pardon or commute the sentences of federal inmates. He only did so for one inmate this year, but that doesn’t necessarily mean he won’t grant more clemencies later.

Though it is important and useful to notice that the federal prison population continued its downward trend in the first year of the Trump Administration, it is not quite accurate to attribute this reality to either "two decades of falling crime rates" or to Presidential commutation practices.  For starters, we had falling crimes rates in the decade from 1992 through 2002, and yet the federal prison population more than doubled from less than 80,000 inmates in 1992 to more than 163,000 inmates in 2002.  And we had another decade of falling crimes rates from 2002 through 2012, and yet the federal prison population rose another 55,000 inmates in that period.  And, of course, crimes rates started ticking up significantly in 2015 and 2016.

Moreover, and perhaps even more importantly, there is actually a very limited (and quite unclear) relationship between the FBI's reported reductions in violent and property crimes — which is the data base for "falling crime rates" — and the federal criminal caseload which is primarily made up of drug and immigration and firearm and fraud offenses.  Indeed, in light of the empirics of the opioid crisis — not to mention increased marijuana activity thanks to state legal reforms — there is reason to speculate that federal drug offenses have actually been rising (perhaps significantly) in recent years.  The dynamics surrounding recent crime rates for federal immigration and firearm and fraud offenses are hard to assess, but that very reality is part of the reason it is hard to link federal prison population changes to what we know (and do not know) about crime rates.  But, without any doubt, there are still plenty of "offenders to arrest, charge and imprison" engaged in the activities that serve as the modern bread-and-butter of federal prosecution.  Though there are a range of linkages between various crime rates and various federal prosecutorial policies and practices, it is very hard to see and measure and assess with any confidence how basic criminal offending (especially as to classic state crimes) may directly impact the size of federal prison populations.

What we can effectively see and measure are changes in federal sentencing laws and federal prosecutorial practices, and these changes suggest a set of intricate stories help account for recent federal prison population changes.  For starters, the US Sentencing Commission enacted a set of broad retroactive changes to the federal drug sentencing guidelines, with crack guideline reductions in 2007 and 2011 and the "Drugs -2" reductions in 2014.  These changes reduced the sentences of, and is continuing to lead to the early release of, many thousands of federal prisoners.  In addition, and perhaps even more statistically important for the very latest federal prison data, federal prosecutors after 2012 began decreasing dramatically the number of cases getting all the way to federal sentencing.  According to US Sentencing Commission data, in Fiscal Year 2012, federal prosecutors brought over 84,000 cases to sentencing, whereas by Fiscal Year 2016, federal prosecutors brought fewer than 67,750 cases to sentencing.  And, especially with a slow transition to new US Attorney positions, it may take some time for the new Attorney General to ramp up yearly federal prosecutions (assuming he even wishes to do so).

In other words, the always dynamic stock and flow story of prison populations provides a somewhat more granular understanding of declines in the federal prison population.  Changes to federal sentencing laws made retroactive has had a significant impact on the "stock" of federal prisons.  (Prez Obama's commutations are a small part of this "stock" story, but not until they really got going in 2016, and in the end more than 25 federal prisoners got reduced sentences thanks to retroactive guideline changes for every prisoner who got a commutation from Prez Obama.)  And while guideline changes were reducing the federal prison "stock," it seems the prosecutorial policies announced by Attorney General Holder in 2013 — and perhaps other factors, including decreased national concerns about crime — finally began to reduce what had previously been, for two decades, an ever-increasing federal prison "flow."

I would predict that the May 2017 Sessions charging/sentencing memo could contribute, over time, to increasing both the stock and the flow of the federal prison population.  But other directions coming from Main Justice might complicate this story.  AG Sessions has urged US Attorneys to focus on violent crimes, and there may well be fewer of these cases to bring and they may take more time to prosecute than lower-level drug and gun and immigration cases.  But, of course, the AG has also expressed concerns about drug and gun and immigration cases, and he has been seeking to hire and empower more federal prosecutors in certain arenas.  I will be especially watching how all these developments ultimately impact the US Sentencing Commission's data on cases sentenced (and average sentence imposed) in order to try to predict where the federal prison population may be headed next.

January 7, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Candid confession of error on mandatory minimums from former Idaho Attorney General and Chief Justice

This recent op-ed from a local newspaper, headlined "Why warehouse low-risk drug offenders?," caught my attention primarily based on its author and its very first sentence.  The author is Jim Jones, and here is his bio from the piece: "Jim Jones, an Idaho native, was elected as Idaho Attorney General in 1982 and served two elected terms.  He was elected to the Idaho Supreme Court in 2004 and re-elected in 2010.  Jones served as Chief Justice from August 2015 until his retirement from the Supreme Court in January."  And here is how his commentary starts and ends:

I’ll be the first to admit that it was a mistake to support mandatory minimum sentences for drug traffickers during my tenure as Idaho Attorney General in the 1980s.  Most observers have come to realize that long mandatory sentences are not appropriate for every offender.  Legislatively mandated sentences tie the hands of judges who are best positioned to tailor the appropriate punishment for the crimes committed by a particular defendant.  And, while they do not reduce recidivism, they do needlessly inflict damage on the families of low-risk offenders.  In 2014, Idaho adopted the Justice Reinvestment Act to provide for earlier release of low-level offenders, to ensure their success by providing them greater supervision, to reduce the number of repeat offenders, and to reduce the cost of Idaho’s prison program.  The legislation had broad-based support and holds out great promise for success....

Having observed the judicial system from the inside for 12 years, I believe that our trial court judges have a good feel for who deserves to be incarcerated for a long stretch and who shows promise for staying out of further trouble.  Our judges take into account who is before them and whether they pose a societal risk, rather than just the weight of the drugs they had in their control.  That is how justice is served.  It is not served by a one-size-fits-all system of sentencing where a set of scales determines the length of the prison term.

The court system has worked hard to educate judges as to the correct balance between incarceration and rehabilitation.  Judges share information about sentencing for various offenses throughout the state to bring about a certain amount of uniformity.  The judicial system has developed drug courts to help lower-level offenders get free of drugs and put their lives back on track.  These are the measures that can reduce recidivism, salvage those who can be rehabilitated, and keep families together.  Mandatory sentences do not.  My 1980s mindset was wrong, as was the 1992 legislation.

Last year, Reps. Ilana Rubel and Christy Perry introduced legislation to eliminate the mandatory minimum sentences in the 1992 statute.  Their bill retained the maximum sentences for drug trafficking but left the length of the sentence up to the judge, who can set a minimum prison term of his or her choosing.  That legislation will come up again this year and people should urge their legislators to support it.

January 7, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)