« February 4, 2018 - February 10, 2018 | Main | February 18, 2018 - February 24, 2018 »

February 17, 2018

Should jail inmates face tougher sentencing for applauding charged cop killer as he was brought into jail?

A helpful reader alerted me to this interesting AP story, headlined "Jail inmates applaud career criminal accused of killing Chicago police commander, may face reprisals," that provides the basis for the question that is the title of this post.  Here are the particulars:

Five Cook County Jail inmates who applauded as the man charged with the fatal shooting of a Chicago police commander was led by their cell could face reprisals for their actions, a jail official said Friday.

Cara Smith, the chief policy officer for Sheriff Tom Dart, said a security video shows them clapping as suspect Shomari Legghette was being led past a crowded holding cell on Thursday after his first court appearance.  The inmates were in the holding cell awaiting action on their cases.  Legghette is charged with first-degree murder in Tuesday's shooting death of Commander Paul Bauer.

She said the five inmates were transferred overnight from Chicago to a jail in southern Illinois, where it will be more difficult for family and friends to visit them while they are in custody.

The jail also is forwarding to prosecutors the video and reports of the incident Thursday afternoon so they can use the information if the inmates are convicted, she said. "The conduct that those detainees engaged in was disgraceful... and speaks to their character," Smith said.  "We feel it should be considered by prosecutors in connection with their sentencing."  The video could be a "factor of aggravation" considered by a judge in sentencing.

But Steve Greenberg, a prominent Chicago defense attorney, said there is no way the inmates should be penalized for what he said is a clear exercise of their right to free speech.  "These inmates ... no matter how vile or disgusting you may think their expression is, they have an absolute right under the First Amendment to express those feelings and it is a violation of their rights as citizens to penalize them or consider that as aggravation," said Greenberg, who is not representing any of the men.

The video was taken moments after the 44-year-old Legghette appeared in court on charges of first-degree murder of a peace officer, armed violence, unlawful use of a weapon by a felon and possession of a controlled substance.

Police say they wanted to question Legghette Tuesday when he took off running and Bauer pursued him on foot. He caught Legghette near the James R. Thompson Center, a government building, where the two struggled and Legghette fell down the stairs.  Bauer either fell or ran after him to a landing where, Legghette, wearing a bullet proof vest and armed with a semi-automatic handgun, allegedly shot the 53-year-old Bauer six times.

February 17, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (21)

February 16, 2018

Spotlighting how local district attorney elections have become focal point for criminal justice reform advocates

BnwxbIoIgAAVLkBThis notable NBC News piece, headlined "Criminal justice reformers aim big by targeting local DA races," reports on how greater modern attentiveness to the role of prosecutors in the criminal justice system is now leading to greater modern concern for who gets elected to these positions. Here is how it gets started:

If you can’t win big, go small. That’s the strategy gaining momentum among criminal justice reformers in the age of Trump, as the federal government hardens its approach to law enforcement.

Instead of pouring money and energy into squeezing change out of Washington, national civil rights organizations are teaming with local groups to push their agendas in county-level district attorney races, where a few thousand votes can determine who asserts the most influence over the local justice system.

Picking their targets carefully, and crunching election data to influence pivotal voter blocs — and benefiting from the largesse of liberal billionaire George Soros — these crusaders have already racked up big wins, most recently in Philadelphia, where civil rights lawyer Larry Krasner was elected chief prosecutor last year.

Using Krasner as proof that their strategy can work, the American Civil Liberties Union, Color of Change and like-minded political action committees are now fixating on several 2018 races, with Dallas at the front of a list that could also include Baltimore; Charlotte, North Carolina; Los Angeles; Oakland, California; San Diego and St. Louis, as well as parts of Massachusetts, Oklahoma and Oregon.

Each will involve teams of campaign strategists and targeted voter-education drives, from public forums to digital advertising, and the hiring of formerly incarcerated men and women to canvass neighborhoods, asking voters to demand that candidates pledge to curb mass incarceration — and to cast ballots for those who agree. In some cases, political action committees will steer donations to campaigns that embrace their vision. In others, reformers are recruiting upstart candidates.

“We want to send a clear message that these are the real issues and the litmus test in the election, and to demonstrate the public demand for it,” said Scott Roberts, a senior campaign director at Color of Change, which organizes online campaigns focused on ending injustices against African-Americans. “We can put out a press release, but the candidates, the people who are trying to get votes, will respond on a deeper level when they’re hearing about it from people as they are out campaigning.”

This is a new development in American politics, where district attorney races have rarely attracted outside attention, let alone intense interest from voters. Incumbents usually run unopposed, research has found. And when they do face opposition, they usually win, with races focused on the candidates’ character and experience, or controversial cases, rather than discussions of policy.

“That conventional wisdom has been turned on its head,” said David Alan Sklansky, a professor at Stanford Law School who studies prosecutors and how they wield power. “In a growing number of races, people have defeated incumbents by running on platforms that are very policy heavy. They’re not calling for more punishment, but more sensible policies,” from police oversight to criminal sentencing.

The trend began about five years ago, when Ken Thompson defeated longtime Brooklyn District Attorney Charles Hynes. Since that 2013 election, self-described reform candidates have taken office in Chicago, Denver, Houston, and Orlando, Florida, and in smaller jurisdictions in Louisiana, Mississippi, New Mexico and Texas. Many were lifted into office by outcries over police shootings, wrongful convictions or the disproportionate numbers of poor people and minorities behind bars.

The movement has been supported by new research into the causes of the three-decade rise in prison populations, which peaked in 2009, long after crime began to decline. In his 2017 book, "Locked In," Fordham University law professor John Pfaff blamed prosecutors, “the most powerful actors in the criminal justice system,” for driving drastic increases in felony cases, all but a tiny fraction of which result in plea bargains. Those locally elected prosecutors, Pfaff wrote, are rarely held accountable by voters for their decisions.

But Pfaff also documented how reform candidates have started to challenge that narrative. Some have received donations from political action committees connected to Soros, who heads the Open Society Foundation. Some have received tactical help from national reform groups like the ACLU and Color of Change. But others haven’t, which Sklansky takes as evidence that the movement has been driven from the bottom as much as from the top.

February 16, 2018 in Who Sentences | Permalink | Comments (5)

New GAO report explores "Federal Prisons: Information on Inmates with Serious Mental Illness and Strategies to Reduce Recidivism"

The United States Government Accountability Office yesterday released this lengthy report with the title that is the quoted portion of the title of this post.  This "Highlights" page summarizes "What GAO Found":

About two-thirds of inmates with a serious mental illness in the Department of Justice's (DOJ) Federal Bureau of Prisons (BOP) were incarcerated for four types of offenses — drug (23 percent), sex offenses (18 percent), weapons and explosives (17 percent), and robbery (8 percent) — as of May 27, 2017.  GAO's analysis found that BOP inmates with serious mental illness were incarcerated for sex offenses, robbery, and homicide/aggravated assault at about twice the rate of inmates without serious mental illness, and were incarcerated for drug and immigration offenses at about half or less the rate of inmates without serious mental illness.  GAO also analyzed available data on three selected states' inmate populations and the most common crimes committed by inmates with serious mental illness varied from state to state due to different law enforcement priorities, definitions of serious mental illness and methods of tracking categories of crime in their respective data systems.

BOP does not track costs related to incarcerating or providing mental health care services to inmates with serious mental illness, but BOP and selected states generally track these costs for all inmates.  BOP does not track costs for inmates with serious mental illness in part because it does not track costs for individual inmates due to resource restrictions and the administrative burden such tracking would require.  BOP does track costs associated with mental health care services system-wide and by institution.  System-wide, for fiscal year 2016, BOP spent about $72 million on psychology services, $5.6 million on psychotropic drugs and $4.1 million on mental health care in residential reentry centers.  The six state departments of corrections each used different methods and provided GAO with estimates for different types of mental health care costs.  For example, two states provided average per-inmate costs of incarceration for mental health treatment units where some inmates with serious mental illness are treated; however, these included costs for inmates without serious mental illness housed in those units.

DOJ, Department of Health and Human Service's Substance Abuse and Mental Health Services Administration (SAMHSA), and criminal justice and mental health experts have developed a framework to reduce recidivism among adults with mental illness.  The framework calls for correctional agencies to assess individuals' recidivism risk and substance abuse and mental health needs and target treatment to those with the highest risk of reoffending.  To help implement this framework, SAMHSA, in collaboration with DOJ and other experts, developed guidance for mental health, correctional, and community stakeholders on (1) assessing risk and clinical needs, (2) planning treatment in custody and upon reentry based on risks and needs, (3) identifying post-release services, and (4) coordinating with community-based providers to avoid gaps in care.  BOP and the six states also identified strategies for reducing recidivism consistent with this guidance, such as memoranda of understanding between correctional and mental health agencies to coordinate care.  Further, GAO's literature review found that programs that reduced recidivism among offenders with mental illness generally offered multiple support services, such as mental health and substance abuse treatment, case management, and housing assistance.

February 16, 2018 in Offender Characteristics, Reentry and community supervision | Permalink | Comments (1)

February 15, 2018

Interesting statements from Senate Judiciary Committee on Sentencing Reform and Corrections Act of 2017 ... and now passage by 16-5 vote!

As I write this, the Senate Judiciary Committee is in the midst of a discussion of the Sentencing Reform and Corrections Act of 2017, and the discussion is quite interesting (though relatively predictable given the articulated past and present positions of various members).   The discussion can be followed at the SJC website here, where one can also find a host of amendments offered by members and Senator Chuck Grassley's official statement.  Here is a portion of Senator Grassley's statement, which summarizes the bill and also why Senator Grassley has become its chief advocate:

Today, we’re also marking up the Sentencing Reform and Corrections Act. This legislation reforms mandatory minimum prison sentences to focus on the most serious drug offenders and violent criminals. This is a bipartisan bill that cuts costs, reduces crime, and optimizes the criminal justice system. It is supported by a diverse array of groups including FreedomWorks, the American Conservative Union, Prison Fellowship, Families against Mandatory Minimums, the NFL, the ACLU, and the NAACP.

It is also a bill with policies that enjoy broad national support. A recent poll showed that the American people strongly support improving our criminal justice system. 87% of Americans and 83% of Republicans believe that mandatory minimums for nonviolent offenders should be replaced by a system focused on judicial discretion. 76% of Americans and 68% of Republicans believe the criminal justice system needs significant improvements. 87% of Americans and 80% of Republicans think we’re spending too much money on prisons that should be used instead for treatment, rehabilitation, law enforcement, and victim services.

The bill gives judges additional discretion in sentencing defendants with minimal non-violent criminal histories that may trigger mandatory minimum sentences under current law. It also applies some of these reforms retroactively, including the Fair Sentencing Act.  But before this happens, judges must first review eligible inmates’ individual cases, including criminal histories and conduct while incarcerated to determine whether a sentence reduction is appropriate.

Importantly, the bill preserves cooperation incentives to aid law enforcement in tracking down kingpins and stiffens penalties for individuals convicted of serious violent felonies. It also adds new mandatory minimums for certain crimes involving interstate domestic violence and the provision of weapons to terrorists and prohibited countries.

Additionally, it creates a new five-year sentencing enhancement for trafficking of heroin laced with fentanyl.  In addition, the bill establishes recidivism reduction programs to help prepare low-risk inmates to successfully re-enter society. Qualifying inmates may receive reductions to their sentences through time credits upon successful completion of recidivism reduction programming....

Yesterday, Attorney General Sessions sent us a letter setting forth his views on the Sentencing Reform and Corrections Act.  When I read his letter, it was almost as if Senator Sessions was back on the Judiciary Committee.  But that’s the problem. He is now the Attorney General and is charged with executing the laws that Congress passes, not interfering with the legislative process.  Certainly we value input from the Department of Justice, but if General Sessions wanted to be involved in marking up this legislation, maybe he should have quit his job and run for the Republican Senate seat in Alabama.

I’ve talked to Attorney General Sessions about this bill many times. He opposes the elimination of mandatory minimums, as do I.  He believes in being tough on crime, and so do I. But I also believe in being fair.  This is a view shared by the last Republican Attorney General, Michael Mukasey, who testified in support of this bill last Congress. So we have one Republican Attorney General who thinks this bill is good policy, and one who has some concerns....

This bill is good public policy. It is the result of years of careful negotiations.  We’ve demonstrated that this bill has significant bipartisan support.  Twenty-two United States Senators are cosponsors, including more than half of the members of this committee.  I look forward to continuing to work with the administration and the House on a legislative solution that the President can sign into law.

A few prior related posts:

UPDATE: Around 12noon and after an interesting debate over an amendment proposed by Senator Cruz to strip the SRCA of its retroactivity provisions and other reforms, the full SJC voted finally on the bill as proposed and voted 16-5 in favor of it. Now the issue becomes whether Senate Majority Leader will bring the bill to the Senate Floor for a full vote. I fear he will not, but we shall see.

February 15, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences | Permalink | Comments (7)

Will Florida school shooting mass murderer thwart efforts to raise age for limit on application of the death penalty?

As noted in this post last week, the ABA House of Delegates earlier this month asked for all death penalty jurisdictions to ban capital punishment for any offender who committed their crime at the age of 21 or younger.  But, as the title of this post wonders, the push for raising the age on limits on the death penalty could be impacted by the horrible crimes committed yesterday in Florida.  This article, "Suspect in Florida shooting could face death penalty for 17 counts of premeditated murder," provide these basics:

Nikolas Cruz, the suspect in the shooting at a Florida high school on Wednesday, could face the death penalty after being charged with 17 counts of premeditated murder.

Sheriffs in Broward County posted custody records online Thursday, the morning after they arrested Cruz. They listed 17 separate counts of premeditated murder, matching the latest casualty figures from officials.

Cruz, 19, will stand trial as an adult. In Florida, a judge can impose the death penalty if a sentencing jury unanimously recommends it.

I am not at all surprised that Cruz may soon be facing the death penalty, and I will not be at all surprised if supports of the death penalty will make Cruz a poster-child example of why the age for death penalty eligibility ought not be raised.

A few prior related posts:

February 15, 2018 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (37)

"Aching bad: 'Kingpin Granny' nicked in huge prescription drugs bust"

As a fan of Breaking Bad, I could not resist using the title of this news report of a notable drug dealer as the title of this post.  Here is the story:

Silver surfers are known to rattle from the numerous pills foisted on them by doctors as their health fails, but one Tennessee veteran stands accused of possessing drugs with an altogether different purpose.

Dubbed "Kingpin Granny" by Decatur County cops, The Smoking Gun reported that 75 year-old wheelchair-bound Betty Jean Jordan was arrested at her home in Parsons, 160km (100 miles) southwest of Nashville, on Friday following an undercover investigation in which agents bought tabs from her.

The subsequent raid on the gangster granny's property uncovered over a thousand pills including the opioid painkiller Oxycodone, smack addict weaner Methadone and anti-anxiety tranq Xanax. Cops also said they seized more than $12,000 in "cash and assets".

Jordan was slapped with six felony narcotic charges – one count of drug manufacturing/delivery/sale, two counts of possession of a prescription drug with intent, one count of possession of a prescription drug – plus one count of evading arrest.

The little old lady was taken to the county slammer but was released after posting the $50,000 bond. Meanwhile, authorities are further investigating the alleged distribution ring and hope to make more arrests.

February 15, 2018 in Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (0)

February 14, 2018

AG Sessions writes to Senator Grassley to say passages of SRCA "would be a grave error"

Via this new HuffPost piece, headlined "Jeff Sessions Opposes Bipartisan Drug Sentencing Reform Bill," I see that Attorney General Jeff Sessions has now officially weighed in on the Sentencing Reform and Corrections Act of 2017 due to be considered by the Senate Judiciary Committee tomorrow morning. Here are the basics:

Attorney General Jeff Sessions has come out swinging against a bipartisan drug sentencing reform bill that has the support of many of his former Republican colleagues in the Senate, warning that the legislation would be a “grave error” and not allow adequate punishment for “a highly dangerous cohort of criminals.”

In a Feb. 14 letter to his former colleague Sen. Chuck Grassley (R-Iowa), who chairs the Senate Judiciary Committee, Sessions wrote that he “strongly” urged the Senate to consider the ramifications of the bill.

“In recent years, convicted drug traffickers and other violent criminals have received significant sentencing breaks from the federal courts and the United States Sentencing Commission.” Sessions wrote. “Passing this legislation to further reduce sentences for drug traffickers in the midst of the worst drug crisis in our nation’s history would make it more difficult to achieve our goals and have potentially dire consequences.”

The full text of the three-page letter from AG Sessions to Senator Grassley is embedded in the HuffPost piece (and is also available here thanks to Politico), and it starts this way:

This letter presents the views of the Department of Justice on S. 1917, the "Sentencing Reform and Corrections Act of 2017." S. 1917 presents issues of very great importance to the public safety of the United States and will impact a number of cases.

The legislation would reduce sentences for a highly dangerous cohort of criminals, including repeat dangerous drug traffickers and those who use firearms, and would apply retroactively to many dangerous felons. regardless of citizenship or immigration status. In my opinion, if passed in its current form, this legislation would be a grave error....

I would strongly urge the Senate to consider carefully the potential ramifications of this legislation in its current form.  In recent years, convicted drug traffickers and other violent criminals have received significant sentencing breaks from the federal courts and the United States Sentencing Commission.  Passing this legislation to further reduce sentences for drug traffickers in the midst of the worst drug crisis in our nation's history would make it more difficult to achieve our goals and have potentially dire consequences.  In addition, as you know, the Administration supports helping former inmates who have served lawfully imposed sentences and have demonstrated a commitment to a better life, and is working closely with Congress to achieve a responsible reform along these lines.  Respectfully, this legislation runs counter to this serious Administration-wide effort.

A few prior related posts:

UPDATE: I just saw that Senator Grassley took to Twitter to respond to the letter from AG Sessions:

February 14, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (4)

Notable advocate for clemency on behalf of next condemned to die in Texas

According to this Death Penalty Information Center page, Alabama, Florida and Texas all have executions scheduled for February 22.  This new Los Angeles Times story, headlined "Texas father seeks clemency for son who tried to kill him," discusses the notable person making a notable pitch for clemency for the killer scheduled to be executed.  Here are excerpts:

In a week, Thomas "Bart" Whitaker, 38, is scheduled to be executed for plotting a 2003 attack that left his mother and brother dead and almost killed his father. That father, Kent Whitaker, is doing everything he can to halt the execution. Inspired by his Christian faith and his son's repentance, the 69-year-old retired construction firm comptroller hopes to have his son's sentence commuted.  "The death penalty in this case is the wrong punishment," he said.

Kent Whitaker forgives his son. He paid for lawyers to fight the death sentence at trial in 2007, and got down on his knees and begged prosecutors to seek a life sentence.

Texas is known for capital punishment, executing more inmates than any other state in the country — three this year, seven last year. But Kent Whitaker notes that it is also a victims' rights state, meaning his wishes should be taken into account. "Juries routinely defer to victims in cases to spare the life of a killer," he said.

Thomas Whitaker's last chance is a clemency petition filed with the seven-member Texas Board of Pardons and Paroles, which makes a recommendation to the governor by majority vote.  Clemency is rare.  One of Whitaker's attorneys won it for another convicted murderer, Kenneth Foster, hours before he was scheduled to die in 2007, based on arguments drawn from Scripture.  Parole board members in Texas are bound by their consciences, not the law, and some told the lawyer afterward that his biblical arguments had influenced their votes.

So in Thomas Whitaker's clemency petition, his attorney cited the Old Testament story of Cain, who after murdering his brother Abel was marked — but not killed — by God. He also cited the New Testament parable of the prodigal son, forgiven and accepted by his father after he strayed because he repented. "You have a collision between two interests. Every one of those board members is a death penalty supporter. A nd every one of them is there to protect victims' interests. They have to decide if it is more important to execute Thomas Whitaker or spare Kent Whitaker," attorney Keith Hampton said.

Board members don't confer about clemency: They send their votes to the state individually. Condemned inmates and their families can request to meet a member of the board, but it's not guaranteed.   Last week, board member James LaFavers, a former Amarillo detective, met Whitaker's son on death row. They spent two hours talking. On Tuesday, the chairman of the board, former Lubbock County Sheriff David Gutierrez, met with Kent Whitaker, his new wife and brother in Austin for half an hour.  The chairman didn't ask any questions, just listened as Kent Whitaker made his case for clemency. He said his son had been a model prisoner for 11 years, that the family had asked prosecutors not to seek the death penalty at trial and "it ought to mean something when a victim asks for mercy."

Thomas Whitaker has confessed to plotting the murder of his family. His father believes he has reformed behind bars. Prosecutors disagree.

Whitaker was a troubled teenager.  After he was arrested for breaking into his high school with friends to steal computers, his parents sent him to a private Christian school, then Baylor University and Sam Houston State University. But he stopped attending.  The night of the attack, the family went out to dinner to celebrate his graduation, unaware that it was a lie — he had missed too many classes....

As they entered their house in the Houston suburb, an accomplice shot them, fatally wounding his mother, Tricia, 51, and 19-year-old brother, Kevin. A bullet passed just inches from Kent Whitaker's heart. Thomas Whitaker was shot in the arm to make it appear he too was a victim.  He then called 911.  It would be years before he admitted his role in the crime. A thousand people attended the funeral at the largest church in the family's conservative suburb, Sugar Land — including Thomas Whitaker. "He sat there smiling, acting as victim, knowing that he killed them," prosecutor Fred Felcman said.  Shortly before Whitaker was to be charged in 2004, he fled to Mexico, where he was caught a year later.

Felcman argued at trial that Whitaker planned to kill his family for a million-dollar inheritance. He had two accomplices — the gunman, who pleaded guilty in exchange for a life sentence, and a getaway driver, who got 15 years in prison. Although Whitaker was not the triggerman, Felcman argued, he "was the ringleader. He literally led his family back to be assassinated."

Felcman said Kent Whitaker has been used by his son. "Most people have a conscience so they don't try to manipulate people outright. He does," Felcman said.  The prosecutor has tried 13 capital cases. About half resulted in death sentences. "There's certain crimes you have to forfeit your life for," he said, in part because it's the will of the people. "As soon as Bart Whitaker gets executed I will feel safer, and there are other people who feel that way, too."...

If the board doesn't grant clemency, Whitaker plans to attend his son's execution. When his son looks out of the glassed-in chamber, he wants him to see a caring face among the crowd. Kent Whitaker already has nightmares about what he will witness.   "I hope the board will focus on how this execution will affect those of us who are living," he said. "We've all worked hard to get past our grief, and we're all going to be thrown back into that, realizing that Bart's gone too, that he was the last member of my immediate family. It looks like I'm going to be victimized all over again. What kind of justice is that?"

February 14, 2018 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

"Reentry Court Research: An Overview of Findings from the National Institute of Justice’s Evaluation of Second Chance Act Adult Reentry Courts"

The title of this post is the title of this new report on findings about eight programs that received funding and technical assistance from the Bureau of Justice Assistance under the Second Chance Act of 2007.  Here is part of the report's abstract:

Background: There are myriad challenges associated with the reentry of formerly incarcerated individuals, coupled with a dearth of rigorous research examining reentry courts. It is well known that formerly incarcerated individuals face overwhelming obstacles, such as limited occupational or educational experiences to prepare them for employment, drug and alcohol addictions, mental and physical health challenges, strained family relations, and limited opportunities due to the stigma of a criminal record.  Reentry courts seek to address these challenges by assessing the individuals for risks and needs; linking them to appropriate community-based services; and overseeing the treatment process through ongoing court oversight, probation or parole supervision, and case management.  Under the Second Chance Act (SCA) of 2007 (Pub. L. 110-199), the Bureau of Justice Assistance funded reentry programs including the eight sites participating in this National Institute of Justice Evaluation of SCA Adult Reentry Courts.  This document provides a summary overview of the evaluation and complements three annual reports that provide more detailed information on the program processes and populations, research methods, and findings....

Results: Results were mixed across sites.  One site consistently demonstrated positive outcomes across the interview, recidivism, and cost analyses with the reentry court successfully delivering more substance abuse treatment and other services than what was received by the comparison group.  In addition, reentry court participants out-performed the comparison group in reduced recidivism (re-arrests and re-conviction) and reincarceration (revocation and time in jail or prison).  Two sites had neutral, trending toward positive, results with reduced participant re-arrests but with other outcomes (such as convictions and re-incarceration) not significantly different between the participants and the comparison group.  Two other sites had mixed results (e.g., participants had significantly fewer re-arrests but significantly increased re-incarceration) and two had negative results (e.g., participants had significantly more re-arrests and incarceration while other outcomes were no different between groups).  Cost findings were similarly mixed with two sites experiencing cost savings due mainly to lower recidivism costs and fewer victimization costs for reentry court participants ($2,512 and $6,710 saved per participant) and the remainder experiencing loss (ranging from just over -$1,000 to almost -$17,000 loss per participant). The research protocol and process evaluation findings are documented in three annual project reports; research caveats include a lack of detailed treatment service data. Also, reentry court program investment costs are described, but the comparison of cost estimates is limited to outcomes and does not include net benefits based on investment in non-reentry court case processing in the comparison group.

Conclusions: Key processes that set the one site with positive outcomes apart from the other sites was the high level of consistency and intensity of substance abuse treatment, wraparound services for multiple criminogenic needs, high intensity supervision, as well as an increased use of praise from the judge along with other incentives and sanctions.  In addition, the eligibility criteria for this site required that participants have a substance use disorder with risk levels ranging from moderate to high (based on their local risk assessment with a three point scale that ranged from low to high).  In contrast, other site eligibility criteria did not require a substance use disorder and participant risk levels were mostly high to very high (depending on the assessment tool used and their specific scoring and risk category criteria).  It is possible that the sites with less positive results did not have the appropriate level and type of services consistently available to best serve the varying risk levels of their participants.

This detailed report reinforces yet again the conclusion I often, somewhat depressingly, reach when looking at careful research on an important topic: many of our most pressing criminal justice problems are really complicated and lack simple solutions.

February 14, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

February 13, 2018

Mapping the politics and making the case against the Sentencing Reform and Corrections Act of 2017

Over at the Powerline blog, Paul Mirengoff has this lengthy post about the Sentencing Reform and Corrections Act of 2017 titled "Leniency Legislation Is Back."  The post title previews Paul's disaffinity for the SRCA, and his post explains why after some forecasting about the politics surrounding the bill.  I recommend his post in full, and here are excerpts:

The [SRCA] bill that died two years ago is before the Judiciary Committee.  It will breeze through that body. Three of the legislation’s main opponents two years ago — Jeff Sessions, David Perdue and David Vitter — are no longer on the committee (Sessions and Vitter are no longer in the Senate).  Sens. Orrin Hatch and Ted Cruz remain and are likely to oppose the bill again, and Sen. Ben Sasse, a new member of the committee, might join them. But the committee will approve the leniency legislation, most likely with only three dissenters.

What happens then? I hope McConnell will make the same calculation he made two years ago under similar circumstances. However, Team Leniency, which includes the Majority Whip (Sen. Cornyn) and the Judiciary Committee chairman (Sen. Grassley), will push hard for a vote.

Meanwhile, many potential opponents of the legislation are focused on other matters, most notably immigration reform. The opposition troops have not yet been rallied.

On the plus side, though, Sen. Tom Cotton, who along with Jeff Sessions led the charge against leniency legislation two years ago, has his eye on this ball, notwithstanding his key role in the immigration battle.

The biggest difference between now and two years ago is, of course, that Donald Trump is president, not Barack Obama. The second biggest difference, for purposes of the sentencing reform debate, flows from the first — Jeff Sessions is the Attorney General.

Sessions still vigorously opposes reducing the mandatory minimums. His view is shared, I think, by President Trump. I’ve heard that the White House might make its opposition known publicly this week.

If Trump is against the leniency bill, it would be especially pointless for McConnell to bring it to a vote. Why split the GOP members and force them to vote on highly controversial legislation when the president doesn’t want the bill and likely would veto it?

My main purpose in writing this post is to call attention to the push for leniency legislation — to rally the troops. As for the merits of the bill, there are three main reasons why I oppose it.

First, the current mandatory minimums have been instrumental in the dramatic decrease in violent crime the U.S. has enjoyed since they were instituted. Why change a system that has been so effective in reducing violent crime?

Second, the leniency legislation would apply retroactively, Thus, thousands of prisoners could petition to be released even though they haven’t completed their legally imposed sentences.  Given the high recidivism rate for federal drug offenders — around 70 percent — the legislation is guaranteed to yield more crime, and not just by those released early but also by those sentenced to less time under the bill.

Third, the leniency legislation grants judges too much discretion in sentencing.  We know from the high-crime era before mandatory minimums that liberal judges will abuse that discretion to go soft on serious offenders.  With a raft of new Obama-appointed judges, this error will likely produce the same sort of damage we lived through during that era....

As I said, the leniency bill is a done deal in committee. What counts now is how President Trump and Majority Leader McConnell respond.

I’m cautiously optimistic that the legislation will again die on the vine, but we shouldn’t simply assume that it will. We need to watch this one closely.

Paul's analysis and criticism of the SRCA is crude in a number of particulars, mostly because he is discussing and taking issue only with Title I of the SRCA dealing with sentencing reform, while ignoring the arguably more consequential parts of the bill dealing with corrections and the creation of a national crime commission.  But I still thought it useful to reprint the thinking and rhetoric of those inclined to be against the bipartisan criminal justice reform effort moving forward in the Senate this week.

A few prior related posts:

UPDATE: One reason I described Paul Mirengoff's criticisms of the sentencing part of the SRCA as crude is because I thought he had his data off about the "recidivism rate for federal drug offenders" which he pegs at "around 70 percent."   I just had a chance to check his numbers aided by this big report that the US Sentencing Commission released last year titled "Recidivism Among Federal Drug Trafficking Offenders." Here is one key statistic from the report's executive summary: 

Federal drug trafficking offenders had a substantially lower recidivism rate compared to a cohort of state drug offenders released into the community in 2005 and tracked by the Bureau of Justice Statistics.  Over two-thirds (76.9%) of state drug offenders released from state prison were rearrested within five years, compared to 41.9 percent of federal drug trafficking offenders released from prison over the same five-year period.

Paul may have been thinking of the BJS report on state drug offenders when coming up with his 70 percent number, but the Commission data shows the recidivism rate to be much lower. That said, even a much lower predicated recidivism rate does not completely undercut his basis for arguing that retroactive application of sentencing reductions will "yield more crime."   By the same token, these recidivism realities themselves help make the case for corrections part of the SRCA; high rates of recidivism provide strong evidence that our prison system needs the kinds of "Recidivism reduction programming and productive activities" that appear in Title II of the SRCA.

February 13, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)

Retired Missouri judge now expressing regret about giving 16-year-old offender 241 years in prison for role in two armed robberies

Evelyn Baker, a retired Missouri circuit court judge, has this notable new opinion piece in the Washington Post under the headline "I sentenced a teen to die in prison. I regret it." Here are excerpts:

“You will die in the Department of Corrections.” Those are the words I spoke as a trial judge in 1997 when I sentenced Bobby Bostic to a total of 241 years in prison for his role in two armed robberies he committed when he was just 16 years old.

Bostic and an 18-year-old friend robbed a group of six people who were delivering Christmas presents to a needy family in St. Louis.  Two shots were fired.  A bullet grazed one person, but no one was seriously injured.  The two then abducted and robbed another woman — who said she was groped by Bostic’s accomplice before the two released her. They used the money they stole from her to buy marijuana.  Despite overwhelming evidence against him, Bostic chose to go to trial.  He was found guilty.

Bostic had written me a letter trying to explain his actions, but despite this, he had not, in my view, demonstrated sufficient remorse.

I told him: “You are the biggest fool who has ever stood in front of this court. . . . You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice. . . . Your mandatory date to go in front of the parole board will be the year 2201.  Nobody in this room is going to be alive in the year 2201.”

I thought I was faulting Bostic for his crimes.  Looking back, I see that I was punishing him both for what he did and for his immaturity.  I am now retired, and I deeply regret what I did.  Scientists have discovered so much about brain development in the more than 20 years since I sentenced Bostic.  What I learned too late is that young people’s brains are not static; they are in the process of maturing.  Kids his age are unable to assess risks and consequences like an adult would.  Overwhelming scientific research shows that children lack maturity and a sense of responsibility compared with adults because they are still growing.  But for the same reason, they also have greater capacity for reform.

That’s perhaps not surprising.  As a society, we recognize that children and teens cannot and do not function as adults.  That’s why below a certain age you cannot vote, join the military, serve on a jury or buy cigarettes or alcohol....

Most courts have understood the Supreme Court’s 2010 decision to mean that the Constitution prohibits sentences like the one I gave to Bostic.  While I did not technically give him “life without parole,” I placed on his shoulders a prison term of so many years combined that there is no way he will ever be considered for release.  He won’t become eligible for parole until he is 112 years old — which means he will die in prison, regardless of whether he rehabilitates himself or changes as he grows older.

I see now that this kind of sentence is as benighted as it is unjust.  But Missouri and a handful of other states still allow such sentences, and the Missouri courts have affirmed the sentence I handed down.

This week, the Supreme Court will consider whether to take Bostic’s case and, if the justices do, they will decide whether his sentence is an outcome the Constitution can countenance.  The court should take the case and give Bostic the chance I did not: to show that he has changed and does not deserve to die in prison for something he did when he was just 16.

Imposing a life sentence without parole on a child who has not committed murder — whether imposed in a single sentence or multiple sentences, for one crime or many — is wrong.  Bostic was immature, and I punished him for that.  But to put him, and children like him, in prison for life without any chance of release, no matter how they develop over time, is unfair, unjust and, under the Supreme Court’s 2010 decision, unconstitutional.

I am pleased to see a judge who imposed a functional LWOP sentence now recognizing and advocating that functional LWOP sentences create the same constitutional concerns as formal LWOP sentences that the Supreme Court found to violate the Eighth Amendment in Graham.  That said, I find it a little rich this judge now asserting that she "learned too late" that juvenile brains are different than adult brains.  Also, as the judge's commentary hints and as this local article from a few years ago about the case confirms, it seems Bostic's decision to go to trial rather than his crimes largely accounts for his need now to seek constitutional relief from the Supreme Court:

Bostic is serving a vastly greater sentence than Hutson, his accomplice, who received 30 years and will be eligible for parole six years from now.

Both men were accused of firing guns that night. The only difference: Bostic went to trial and Hutson pleaded guilty.

February 13, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

"Brain Development, Social Context and Justice Policy"

The title of this post is the title of this new paper available via SSRN authored by Elizabeth Scott, Natasha Duell and Laurence Steinberg. Here is its abstract:

Justice policy reform in the past decade has been driven by research evidence indicating that brain development is ongoing through adolescence, and that neurological and psychological immaturity likely contributes in important ways to teenagers’ involvement in crime.  But despite the power of this trend, skeptics point out that many (perhaps most) adolescents do not engage in serious criminal activity; on this basis, critics argue that normative biological and psychological factors associated with adolescence are unlikely to play the important role in juvenile offending that is posited by supporters of the reform trend.  This Article explains that features associated with biological and psychological immaturity alone do not lead teenagers to engage in illegal conduct.  Instead the decision to offend, like much behavior in adolescence, is the product of dynamic interaction between the still-maturing individual and her social context.  The Article probes the mechanisms through which particular tendencies and traits linked to adolescent brain development interact with environmental influences to encourage antisocial or prosocial behavior.

Brain development in adolescence is associated with reward-seeking behavior and limited future orientation.  Further, as compared to adults, adolescents are particularly sensitive to external stimuli (particularly peers), easily aroused emotionally, and less able to regulate strong emotions.  The Article shows how these tendencies may be manifested in different teenagers in different ways, depending on many factors in the social context.  By analyzing this intricate relationship, the Article clarifies how social environment influences adolescent choices in ways that incline or deter involvement in crime and in other risky behavior.  Thus a teenager who lives in a high-crime neighborhood with many antisocial peers is more likely to get involved in criminal activity than one in a neighborhood with few such peers, even though the two may not differ in their tendencies and propensities for risk-taking.

The Article’s interactive model offers powerful support for laws and policies that subject adolescent offenders to more lenient sanctions than adults receive and that tailor dispositions to juveniles’ developmental needs.  Our examination confirms and illuminates the Supreme Court’s conclusion that juvenile offenders differ in important ways from adult counterparts; juveniles deserve less punishment because their offenses are driven by biological and psychological immaturity, and also because, as legal minors, they cannot extricate themselves from social contexts (neighborhoods, schools and families) that contribute- to involvement in crime.  The model also confirms that correctional facilities and programs, which constitute young offenders’ social settings, can support healthy development to adulthood in individual offenders, or affect their lives in harmful ways.

February 13, 2018 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Marti Gras highlights from Marijuana Law, Policy & Reform

Though I have blogged here a bit about AG Jeff Sessions rescinding the Cole Memo and related policies, I have not done yet done in 2018 any round-ups of posts of note from the blogging I now do over at  Marijuana Law, Policy & Reform.  So, here are just some (of many) legal and policy highlights from MLP&R that sentencing fans might find worth checking out:

February 13, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

February 12, 2018

Interesting tales of a local grand jury that decided some drug cases were not as criminal as a ham sandwich

This recent local article from Arizona, headlined "Tucson grand jurors rebel against drug prosecutions," provides an interesting report on some interesting work by a local grand jury.  Here are highlights:

You may have heard that saying: If prosecutors want to, they could get a grand jury to indict a ham sandwich. It’s a knock on how much control prosecutors hold over the grand juries to whom they give evidence for possible indictments.

The 269th Pima County Grand Jury could not be controlled like that.  That 16-member grand jury met from July to October last year, one of two county grand juries meeting twice a week in Tucson at the time.  But this one was led by a criminal-defense attorney and populated by freethinkers who took to heart their role as “conscience of the community.”

They went so far as to decline to indict people even though there was enough evidence to show probable cause, foreman Natman Schaye and others told me. That, in essence, is grand-jury nullification — not carrying out the law because, in the jury’s opinion, it is unjust.  “There were cases where we felt like, maybe there’s probable cause, but this is not something that we believe should result in a felony,” Schaye said.

Rick Myers, a well-known Tucsonan who is a member of the Arizona Board of Regents, also was on the Notorious 269th. What bothered him was the many cases of small quantities of drugs that were charged as Class 4 felonies, as state law dictates. He said he began making a distinction between what’s actually a “crime” and what’s “breaking the law.”

The reason, another grand juror, Jodi Kautz, said was: They were presented with possession cases involving drug amounts as tiny as 2/100th of a gram, a trace amount. “We left every day frustrated, and frustrated for society,” Myers said. “There’s a whole lot of people getting charged for things that are not hurting other people.” As a grand juror, he said, “You want to not just be a rubber stamp. You want to do what’s right.”...

Deputy County Attorney Malena Acosta, who runs the grand juries, and Thomas Weaver, the chief criminal deputy, told me the number of drug cases is a function of the number of arrests by police. “We respond to what comes through the door,” Weaver said. “If we’re getting more cases presented to us, then there will be more cases charged.”

He also noted that a significant proportion, maybe half, of the cases brought to them are never brought to a grand jury, because of problems with the cases. And it’s not as if the prosecutors have a choice on how to charge the possession cases involving any drug except marijuana.  Meth, cocaine, heroin — whatever someone has, and however much, that will earn them a class 4 felony.  Marijuana possession can be treated as a misdemeanor.

LaWall explained her thinking on charging decisions: “If police officers bring us cases, and the evidence is there, we make our decisions based on legal reasoning. If the evidence proves a crime was committed, we have an ethical obligation to follow the law.”  She also noted that her office has created various programs that are alternatives to prison for drug offenders, but they occur after they are convicted, so they’d have to be charged to take part.

As to the grand jurors’ decision to reject some cases with adequate evidence, Acosta said that really isn’t their place.  They take an oath to follow the law before taking their seats, she said. “If somebody has a particular agenda, I suppose they can go to the Legislature and say, ‘We don’t like this law, maybe you should change it.’ But the grand jury isn’t the place for that kind of activity,” she said.

Joel Feinman was happy to hear of grand jurors exercising their usually unused muscles.  The Pima County public defender has been compiling data on the steadily growing number of felony cases and drug prosecutions in an effort to reduce jail stays and prison sentences.  His most stunning discovery concerned the amount of drugs possessed by those charged in the 725 felony drug cases his office has received in the last five months.  The median amount in all those cases, he said, was 0.496 of a gram.  “Felony filings are at an all-time high, felony drug filings are at an all-time high — and are a plurality of the cases — and the median amount is half a sugar packet,” he said.

That’s what bothered some of the grand jurors of the Notorious 269th.  “The drugs are the ones that bug me,” said Myers, the regent. “I feel like we have a puritanical view of even a minuscule amount of drugs.” Said Schaye: “It’s tremendously frustrating. We put far too many people in prison, and it does no good.”... “We all took it extremely seriously, because these are people’s lives. A felony really screws you over.”

February 12, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

NY Times editorial laments "The Problem With Parole"

This new New York Times editorial, headlined "The Problem With Parole," discusses problems with offender supervision that are not confined only to parole policies and practices. Here are excerpts:

States that set out a decade ago to trim prison costs have learned that success lies in a few areas — rolling back draconian sentencing that drove up prison populations in the first place, and remaking parole and probation systems, which have, in numerous cases, sent as many or even more people to jail for rule violations as the courts do for new crimes.

Significant progress has been made on both fronts.  Yet New York, a national leader in reducing its prison population, could do much more to reform its parole and probation systems.

These systems were established across in the United States in the 19th century.  The premise was that steering people who commit minor offenses to probation, rather than prison, and shortening prison sentences with parole in exchange for good conduct further the goal of rehabilitation.  But that notion fell out of favor after the country embraced mass incarceration in the late 20th century, driving up the prison population from about 200,000 at the start of the 1970s to a peak of 1.6 million at the end of the 2000s.

The woefully underfunded parole system fell in line with the jail-first agenda.  Parole officers, who were buried under massive caseloads, sent parolees back inside for technical violations, like failing drug tests, missing curfew or socializing with friends they had been forbidden to see.  With nearly five million people in the nation under supervision — more than twice the number housed in prisons and jails — the parole and probation systems have become what corrections researchers now describe as a significant driver of recidivism.

Even law-and-order states have grasped the need to refashion so-called hair-trigger community supervision systems that reflexively and unnecessarily send people to prison for minor infractions that have no bearing on public safety.  Some have hired additional case workers to make their systems more effective, have given newly released inmates better access to drug treatment or mental health care, or have developed community sanctions that send only the most troubled or repeat-prone offenders back to prison.

A recent analysis by the reform-focused Council of State Governments Justice Center found that states like Arizona, Colorado, Georgia, Michigan, North Carolina, South Carolina and Texas have seen dramatic reductions over the last decade in recidivism connected to probation or parole.

Then there is New York. The state, which has closed more than a dozen prisons over the last decade alone, is a national standout when it comes to sentencing reform. But a new study from Columbia University’s Justice Lab calls on state lawmakers to do significantly more to address the problems with the community supervision system, which come at a considerable cost to the local jails where most of the people locked up for state parole violations are held....

Gov. Andrew Cuomo has called on the State Legislature to make changes that would help those in custody for parole violations, such as abolishing money bail for people accused of misdemeanors, eliminating state supervision fees for people on parole and reviewing how child support is calculated for people incarcerated for more than six months.

But the Columbia study calls on the Legislature to do a lot more. It recommends that the state adopt several common-sense reforms, most of which have already shown promise in other states. These include: adopting a system of graduated sanctions and rewards, instead of automatically dumping people into jail for minor infractions; capping jail terms for minor parole violations; requiring a judicial hearing before parole officers can jail people accused of technical violations; shortening parole terms for people who stay out of trouble for specified periods of time; and using the savings reaped from cutting the prison population to expand education, substance abuse and housing opportunities for parolees, who need considerably more help than they’re getting to forge stable lives in their communities.

These proposals would be a heavy lift in the conservative New York State Senate. But they make good policy and economic sense, and would bring the state to the forefront of the parole reform movement.

February 12, 2018 | Permalink | Comments (0)

"Yes, Trump is embracing criminal justice reform"

The title of this post is the headline of this new opinion piece that struck me as notable for any number of reasons: the piece appears in the right-leaning Washington Examiner and is authored by well-known conservatives Ken Blackwell and Ken Cuccinelli.  The piece also ends with a call for Congress to catch up to states in the criminal justice reform arena.  Here are excerpts:

Throughout the last election cycle, there came fevered predictions from many commentators on the Left that, given candidate Donald Trump’s frank messaging about returning to "law and order" and confronting violent crime in American cities, criminal justice reform efforts were officially dead in the water.  Criminal justice reform appears “bleak in the age of Trump,” stated one article. “How Criminal Justice Reform Died,” intoned another.

Such fatalism was both misplaced and inaccurate. Misplaced, because the lion’s share of successful criminal justice reforms over the last ten years have advanced at the state and local levels, not in D.C.— mainly by southern red states. With oversight over roughly 90 percent of the country’s incarcerated population, the states will always be the primary mover of criminal justice policies, not the federal government.

But such predictions have now been proven inaccurate as well, given recent remarks made by now-President Trump about the need for federal prison reform....

Society is justified in expecting individuals to take ownership not just for their actions, but also for their reformation. This is hampered, however, when the weight of accumulated barriers to re-entry becomes a millstone. Research has been clear that getting a job upon release is among the most critical steps to reducing a person’s likelihood for recidivism. When President Trump and others say society has a “great interest” in helping ex-offenders get on the path of self-sufficiency, he’s speaking a well-established truism.

Fortunately, conservative states have long since begun helping ex-offenders land on their feet upon release. Chief among them: Texas, long known as a “tough on crime” stalwart. In 2007, state lawmakers passed a $241 million “justice reinvestment” package to increase capacity for substance abuse and mental health treatment and expand probation and parole services, as well as community-based diversion programs. This avoided the immediate need for $2.1 billion in spending just to meet their expected needs for new prison capacity.

More recently, Texas has passed indemnity laws to insulate employers and landlords from liability when they extend a job or lease to ex-offenders.  This makes it less likely that a criminal record will be an insuperable barrier to work or finding a place to live. Communities in Texas have been getting safer at the same time.  Crime rates have fallen by 31 percent, while incarceration rates have fallen by more than 20 percent. Eight prisons have been shuttered even as Texas’ population has soared, saving millions in annual operating costs.

In 2012, Georgia began investing in efforts aimed at reducing recidivism, including an expansion of in-prison educational resources.  They’ve since reduced their prison population and nearly eliminated its backlog of inmates awaiting transfer, all the while reducing crime by 8 percent and saving $25 million.  A large reform package passed in Louisiana last year has similar aims of steering less serious offenders away from incarceration and into more effective community-based programs. South Carolina, Utah, Alaska, Kentucky, and others have passed comprehensive reforms, as well.

As we mentioned above, the states are the natural gatekeepers for criminal justice reform.  But Congress has shortcomings within its own prison system to address, and is quickly running out of excuses for doing so.  President Trump, whom so many on the Left falsely assumed would spell the end of reform, has instead sounded a clarion call to advance it. He was right for doing so, as many conservative states have proved, and it's time Congress took up that challenge as well.

February 12, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

February 11, 2018

Sentencing Reform and Corrections Act of 2017 now has 20 sponsors in the Senate but...

1518381838864this Roll Call article suggests Senators cannot figure out how to break a "logjam" that is created by the Attorney General and Prez Trump. The Roll Call article is headlined "Senators Ponder How to Break Criminal Justice Logjam: With Trump not on board with bipartisan bill, 'we’re stuck,' Grassley says," and here are excerpts:

Senate Judiciary Committee members grappled Thursday with the best strategy to overhaul the nation’s criminal justice system, since the leading bill has broad bipartisan support but the White House apparently backs only one part of it.

Chairman Charles E. Grassley of Iowa set a markup next week for a bill that represents a hard-negotiated compromise — first struck in 2015 — that backers say would pass the Senate with a bipartisan supermajority if brought to the floor. It is expected to easily advance from the committee and could be a signature legislative accomplishment for the Senate.

A broad and politically varied coalition of lawmakers and advocacy groups off Capitol Hill generally back the overhaul, which has two main components. One section aims to reduce sentences for nonviolent drug offenders, and the other aims to ease re-entry for prisoners.

But Majority Leader Mitch McConnell didn’t bring a version of the legislation to the floor in the last Congress because of opposition to the sentencing section from law enforcement groups and some Republican senators, Majority Whip John Cornyn of Texas told the committee Thursday. And now, President Donald Trump has voiced support only for the prison changes.

Cornyn, the Senate’s No. 2 Republican leader, said, “I honestly don’t see a path forward” this year for the broader bipartisan bill. “I’m worried that if we just revisit the Sentencing Reform and Corrections Act, which failed during the Obama administration, given this change in the new administration and its views on the sentencing reform component of it, we’re going to have nothing to show for our efforts,” said Cornyn, using the bill’s formal title. “I know we all tried to work together on this and it just didn’t work out.”

Instead, Cornyn said the committee’s best opportunity to move a criminal justice bill would be his legislation, proposed along with Republican Sen. Mike Lee of Utah and Democratic Sen. Sheldon Whitehouse of Rhode Island, which contains only provisions aimed at easing re-entry for prisoners — “and then building on that as we can” with an amendment process on the floor. That process could include amendments on sentencing, based on a bill introduced in previous sessions by Lee and Democratic Whip Richard J. Durbin of Illinois.

Grassley responded that the compromise bill would be the best way to get the sentencing and prison provisions into law. The measure currently has 19 co-sponsors, and he said the backers are seeking more. “It’s a matter of process and around here — nothing gets done unless it’s bipartisan,” Grassley said. “And I don’t often agree with Sen. Durbin, but we put together a bill that we worked really hard and we think it’s the only way of advancing both bills.”

Whitehouse said he would support both ways of moving forward since the sentencing bill was proposed five years ago, but that Cornyn’s strategy “actually might provide a more realistic way of getting this matter resolved.” The Senate, however, could end up in the same place if the prison bill gets to the floor and then a supermajority of senators add the sentencing portion back in with an amendment, Whitehouse said. “Waiting here for there to be the ultimate global concord to sort this out has yielded five years of nothing and I’m ready to go forward,” Whitehouse said.

Grassley countered, however, that there could still be senators who would block the prison bill from the floor if they knew there were more than 60 senators supporting a sentencing amendment. “That’s what we face,” Grassley said. “There’s some people around here [who] are just a little bit afraid of what you call an Assistant U.S. Attorneys Association and they’re stopping everything from being done that is so successful in the other states. When people are willing to stand up to those leaders of the Senate, we’ll get something done in both areas.”

Interestingly, this new Axios article has an entry, headed "Grassley twists Trump’s arm for criminal justice reform," reporting on an interview that suggests Senator Grassley might seek to use his political capital with the President to try to get the SRCA into law:

Grassley didn't deny the White House’s cool reception of his bill, but he plans to use his substantial political clout to press Trump to change his mind.

As I've reported, Trump bends over backwards to keep Grassley happy. He knows that as Judiciary Chairman, Grassley played a crucial role in delivering two of Trump's biggest successes so far: the confirmation of Supreme Court Justice Neil Gorsuch and a modern record for circuit court judges in a president's first year.

"I've carried a lot of water for the White House," Grassley told me. "They ought to give some consideration for the close working relationship we’ve had on issues we agree on." "I think people at the White House have not wanted to go against Gen. Sessions," he added, before closing with a sentence crafted perfectly to appeal to Trump's ego. "This is an opportunity for a bipartisan victory by the President of the United States."

I think the best way to convince Trump to support this bill is to move it for votes ASAP in the full Senate and House.  I suspect that if 70+ Senators and 300+ members of the House vote for these reforms, which seems quite possible, the Prez will be inclined to sign it.  For that reason, perhaps we should start a hash tag campaign: #voteonSRCA2017.

A few prior related posts:

February 11, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

"The American people have spoken: Reform our criminal justice system"

Holly Harris, executive director of the Justice Action Network, has this notable new Hill commentary with a headline that I have used as the title of this post. Here are excerpts:

Republicans and Democrats are both invested in fixing the justice system, which makes it difficult for either side to politicize this effort.  That wouldn’t be smart politics anyway. Polls show widespread support for specific reforms that will lower the swelling prison population, save money, and make communities safer.  This support is strong among voters in both parties, as well as Independents and women, who are swinging elections in this country.

Three-quarters of American voters think the country’s criminal justice system needs to be significantly improved, according to a poll conducted earlier this year by the conservative polling firm Public Opinion Strategies on behalf of the Justice Action Network.  That conviction is shared equally among Republicans, Democrats and Independents. Robert Blizzard, who conducted the poll, said, “I can’t think of a more positive issue to run on that has more bipartisan support.”  His advice matters, as his firm polls for more than a quarter of the Republicans in the House....

Congress must now stop using the president as an excuse not to bring criminal justice bills to a vote.  The House and Senate are both expected to consider legislation later this year that would implement some of the reforms that voters crave, and the president’s words on the world’s grandest political stage gave Congress a clear runway to act.

Any credible pollster out there would tell members of Congress on both sides of the aisle to tackle this issue and “go big before you go home.”  Voters, by wide margins, favor major changes to our criminal justice system.  Nine out of 10 American voters believe we should break down the existing barriers that make it harder for people leaving jails to find work and support their families.  Republicans are just as likely to hold that view as Democrats.

That is overwhelmingly good news for supporters of “ban the box” or “fair chance hiring” policies, which dozens of states have adopted that would prevent public employers from asking job applicants whether they have been convicted of a crime before they have a chance to explain their qualifications for the job.  Two-thirds of all voters want Congress to enact this policy at the federal level, and Republican governors from Kentucky, Georgia, Arizona, Oklahoma and Indiana have recently taken up this cause.

Attitudes of Americans toward incarceration have shifted dramatically since a generation of Republicans and Democrats enacted tough-on-crime policies at the state and federal levels in the 1980s and 1990s.  Voters now demand more policies that give judges and the justice system more discretion to tailor punishments specifically to individual crimes and cases.

One of the best examples of this shift is the overwhelming opposition to mandatory minimum sentences.  Some 87 percent of voters want judges to have more discretion to sentence nonviolent offenders on a case-by-case basis rather than saddle them with formulaic sentencing requirements that have clogged our prisons with people convicted of nonviolent crimes.  That includes 83 percent of Republicans.

It’s mind-boggling that this issue is controversial in Washington. Not only do Americans want to change how many people we lock up and for how long, they also want policies that will get them back on track.  Some 85 percent of voters think the primary goal of our justice system should be to rehabilitate people so they can become productive, law-abiding members of society. Americans now understand that investing in more treatment rather than more prisons will ultimately make us all safer when these individuals do not return to crime.

Americans no longer believe everyone who commits a serious but nonviolent crime should automatically wind up in prison. Some 87 percent of voters would like governments at the state and federal levels to shift some of the money spent incarcerating nonviolent offenders toward alternative programs, like electronic monitoring, community service or probation. A majority 59 percent feel strongly about it.

Budget concerns are one driver of these changing attitudes.  American voters overwhelmingly believe we spend too much money locking people up, and should spend more on treating drug addiction, helping victims and preventing future crimes.  Voters also want to see more oversight of prisons to ensure taxpayer funds are being spent responsibly.

Prior related post:

February 11, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

California judge rejects state efforts to limit reach of new parole eligibility rules approved by voters via Proposition 57

As reported in this AP piece, "California must consider earlier parole for potentially thousands of sex offenders, maybe even those convicted of pimping children, a state judge said Friday." Here is more about a notable ruling about a notable effort to limit the reach of a notable ballot initiative:

Sacramento County Superior Court Judge Allen Sumner preliminarily ordered prison officials to rewrite part of the regulations for Proposition 57.  The 2016 ballot measure allows consideration of earlier parole for most state prison inmates, but Gov. Jerry Brown promised voters all sex offenders would be excluded.

That goes too far, Sumner said in rejecting Deputy Attorney General Maria Chan's argument that the ballot measure gave state officials broad discretion to exclude any class of offenders whose release might harm public safety. "If the voters had intended to exclude all registered sex offenders from early parole consideration under Proposition 57, they presumably would have said so," Sumner said.

He said the scope of exclusions should be narrowed to only those now serving time for a violent sex offense. And he said the Corrections Department must better define what falls into that category. The judge said those who already served their time for a sex crime, even a violent one, and now are imprisoned for a different crime should be eligible for early release.

The language in Prop. 57 "left way too much wiggle room," opening the door to Sumner's ruling, said Mark Zahner, chief executive of the California District Attorneys Association that opposed the initiative. "There's a great danger of truly violent people being released early and people who commit, in this case, sex offenses that involve violence being released early."

The Governor's Office declined comment. Corrections officials did not respond to repeated requests for comment or say whether they plan to appeal. They also did not provide an estimate of how many offenders might be affected.

The ruling Friday could allow earlier parole for more than half of the 20,000 sex offenders now serving time, said Janice Bellucci, a Sacramento attorney and president of California Reform Sex Offender Laws. Her lawsuit on behalf of sex offenders argued that the rules conflict with the ballot measure's language and voters' intent in approving Proposition 57. Bellucci argued the measure requires earlier parole consideration for any sex crime not on the state's narrow list of 23 violent felonies, which includes murder, kidnapping and forcible rape.

That could allow earlier parole for those convicted of raping a drugged or unconscious victim, intimately touching someone unlawfully restrained, incest, pimping a minor, indecent exposure and possessing child pornography. The judge said corrections officials can make the case for excluding those offenders as they rewrite the regulations, but Bellucci said she will sue again if officials go too far.

The full 18-page ruling discussed here is available at this link.  Here is a key paragraph from the opinion's conclusion: 

Under Proposition 57, “Any person convicted of a nonviolent felony offense . . . shall be eligible for parole consideration after completing the full term for his or her primary offense.”  CDCR adopted regulations defining the term “nonviolent offender” to exclude anyone required to register under section 290, regardless of their current commitment offense.  CDCR’s overbroad definition must thus be set aside.

February 11, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)