Tuesday, November 17, 2015

Fitting follow-up to cursory Dem debate comments about criminal justice

As the numerous Prez debates all start to blend into one another, I am no longer making a habit of blogging about questions I would like to see asked or about the occasional tepid comment about criminal justice reform from one candidate or another.  Nevertheless the Democratic debate over the weekend had one of the most extended (and yet still cursory) discussions of criminal justice issues, and these two recent article provide an effective review and commentary of what was said and of what still needs to be discussed a lot more:

From The New Republic here, "The Democrats Have Learned to Say, "Black Lives Matter." Now What?: Why Democrats can't get complacent about police brutality."

From Vox here, "Next time, Democrats should debate these Black Lives Matter and criminal justice questions"

I especially liked these proposed debate questions from the Vox article:

Experts say undoing mass incarceration would likely require imprisoning fewer violent offenders and even releasing some of them.  Is that something you'd be willing to consider?

Has the Obama administration done enough to prevent aggressive prosecutions by US attorneys?  What would you do differently?

More than 86 percent of prisoners are in state facilities.  What can the federal government do to encourage decarceration in the states?

Should drug courts mandate rehabilitation and treatment with the threat of incarceration?

November 17, 2015 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, November 09, 2015

Former Virginia AG explains why he finds conservative opposition to sentencing reform "so baffling"

Ken Cuccinelli, the former attorney general for Virginia, has authored this notable FoxNews commentary asserting that true conservatives should be true supporters of modern sentencing reform efforts. The piece, headlined "Criminal justice reform: Conservative states have a record of success. So why ignore it?", merits a full read. Here is how it gets started:

With Congress currently considering several different approaches to criminal justice reform, interested parties have long noted that the current situation at the federal level is untenable, featuring stubbornly high recidivism rates, a ballooning prison population, and a Bureau of Prisons that constitutes an ever-growing proportion of the Justice Department’s budget.

In short, we aren’t getting the sort of return on investment — both in terms of cost, but most importantly, public safety — that we’ve come to demand of other areas of government. In such situations, conservatives must take the lead when government has grown inefficient, which is why some recent opposition to reform from the right is so baffling.

Commentators have variously suggested that this effort is “bipartisanship at its worst,” or that our crime rate has declined in recent years because “we have taken crime more seriously” by keeping “serious criminals in jail, not letting them out” despite an entire body of scholarship to the contrary.

Unfortunately, such commentary is long on histrionics — with suggestions that essentially equate re-evaluating mandatory sentences to allow for more tailored, individualized punishments as tantamount to Congress throwing open prison doors indiscriminately — and short on facts and experience which, hitherto, conservatives have prized.

America’s crime rate has indeed fallen substantially in recent decades, but this is due in large part to a paradigm shift in what it means to be “tough on crime.” We can agree that keeping serious criminals in prison is an effective means of preserving public safety, but we must also recognize that the axiom of “putting people in jail and throwing away the key” does not apply to all offenders universally, and can actually be counterproductive.

Incarcerating non-violent offenders in the same population as more dangerous criminals has the effect of inculcating the former into a culture of criminality common among the latter, making them more of a risk to public safety upon release than when they originally went in.

“Tough on crime” policies, particularly mandatory sentences, tend to set such circumstances in stone, and vitiates the possibility of seeking out alternative, evidence-based programs that can divert amenable offenders into treatment. Such programs are more cost-effective, and most importantly, have been proven to reduce the likelihood of recidivism.

November 9, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, November 03, 2015

American Pot: will Ohioans make this the day marijuana prohibition died? UPDATE: NO, Issue 3 loses big

FrontAs students in my various classes know well, I have been more than a bit obsessed over the controversial campaign seeking to bring dramatic marijuana reform to my home state of Ohio this year.  My interest in this campaign is not only because I have a front-row seat on all the action and know a lot of the leader players, but also because (as hinted in the title of this post) I believe national marijuana prohibition throughout the United States will be functionally dead if a controversial marijuana legalization proposal can win in a swing state in an off-off-year election with nearly all the state's establishment politicians working overtime to defeat it.  

Stated more simply, if a majority of Ohio voters today vote to repeal marijuana prohibition in the state, I think it becomes all but certain that national marijuana prohibition will be repealed before the end of this decade.  These realities led me to start thinking about the famous lyrics of one of my all-time favorite songs, American Pie.  So, at the risk of making light of a serious issue on a serious day, I will carry out these themes by doing a poor man's Weird Al Yankovic:

A long, long time ago
I can still remember how that mary jane used to make me smile
And I knew if Ohio had a chance
We could make those politicians dance
And maybe they'd be hoppy for a while
But February made me shiver
With every complaint drug warriors delivered
Bad news in the reform plan
I couldn't be sure who was the man
I can't remember if I cried
When I read about the monopolies tried
But something touched me deep inside
The day the marijuana prohibition died

So bye, bye, American Pot Prohibition

Drove my Prius to the polls
but the polls gave me confusing choices
And them good ole boys were drinking whiskey 'n rye
Singin' this'll be the day prohibition dies
This'll be the day prohibition dies

Whatever my students and all other Ohioans think about these issue, I sincerely hope everyone goes out to vote so that we get a large and representative indication of what Buckeyes really think about thse matters.

November 3, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (7)

Sign of the sentencing reform times: Louisiana Gov candidates spar over prison reform plans

Louisiana-prisons-jailsThis local article, headlined "Gubernatorial candidates spar about Louisiana’s high incarceration rate," provides a report on the notable and telling political debate over prison policies now going on in the Bayou. Here are details:

Republican David Vitter’s first television ad against his Nov. 21 runoff opponent Democrat John Bel Edwards takes aim at Edwards’ position on criminal justice — specifically, Edwards’ talking points about Louisiana’s high incarceration rate. The ad claims Edwards, who is being backed by the Louisiana Sheriffs Association, wants to release “5,500 violent thugs” from prison — a position that Edwards says has been misconstrued and taken out of context.

In reality, both candidates support some form of prison reform, including the expansion of early release programs for nonviolent offenders. Edwards and Vitter won the top two spots in Louisiana’s Oct. 24 primary, sending them to a head-to-head runoff to succeed Gov. Bobby Jindal, who can’t seek re-election due to term limits and has set off on a presidential campaign.

Lafayette Parish Sheriff Michael Neustrom, one of the sheriffs backing Edwards in the governor’s race, said he thinks progressive programs that aim to reduce the prison population responsibly are needed in Louisiana. “We have to do things differently,” he said. He said Louisiana prisons are overcrowded with minor, nonviolent offenders and that reform would be both economical and smart for the state.  He noted that Texas could be a model for the types of reform that should be implemented here.

Louisiana has earned the dubious distinction of having — not just the nation’s — the world’s highest incarceration rate.  There are nearly twice as many people jailed in Louisiana per capita as the national average. As of 2014, there were nearly 40,000 people behind bars in the state.  The prison system costs Louisiana nearly $350 million a year.  It’s an issue that the Louisiana Legislature has grappled with for several years, slowly winnowing away some of the mandatory minimum sentencing requirements implemented decades ago.

“We have to look at proven strategies that have been implemented elsewhere,” Edwards said in an interview Friday.  He said he thinks Louisiana should take a serious look at pretrial diversion programs, including sobriety and drug courts, as well as special programs for the mentally ill and veterans. Edwards is a military veteran. “That’s the type of approach we should take,” he said, adding that the reduced costs on incarceration could be reinvested to reduce crime.

He said Vitter’s characterization of his views is misleading. The 5,500 figure, which Edwards has noted in several speeches — not just the Southern University speech the Vitter ad cites — is the number of prisoners that puts Louisiana above the state with the No. 2 incarceration rate.  He’s used it as a hypothetical number that Louisiana would need to reduce by just to get out of the No. 1 spot.  “I have never said I have a plan to release anybody,” he said, noting that the state has to set goals that it would like to achieve.

Asked about his views on sentencing reform and Louisiana’s high incarceration rate, Vitter referred reporters to his policy plan, “Together, Louisiana Strong.” The plan includes a chapter on “fighting violent crime and reforming criminal justice,” but it doesn’t specifically outline efforts to reduce Louisiana’s prison population. It mentions that Vitter wants to implement “cost-effective work release and monitoring programs,” but doesn’t provide details on those ideas. “I support common sense,” Vitter said Friday. “It is fundamentally different from John Bel Edwards.”

Vitter said he had not read recent legislative proposals that have aimed to reduce penalties for nonviolent offenses as a way to rein in the prison population.  He repeatedly characterized Edwards’ comments as a “proposal” that his opponent has made and said his main objection is to the figure named. “We don’t need to pick an arbitrary number,” he said. “That’s a completely irresponsible proposal.”

November 3, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, November 02, 2015

Prez Obama takes criminal justice reform tour to New Jersey, but Gov Christie not pleased by visit

This Reuters article, headlined "Obama pitches help to ex-criminals, draws N.J. governor's ire," details notable talk from notable officials about criminal justice reform today in the Garden State.  Here are the particulars:

President Barack Obama announced new measures to smooth the integration of former criminals into society but his visit to New Jersey on Monday irked the state's governor, a struggling Republican presidential candidate.

Obama, a Democrat who has made criminal justice reform a top priority of his final years in office, praised organizations in Newark for their efforts to help those who have served prison terms to reintegrate into civilian life. "We've got to make sure Americans who have paid their debt to society can earn their second chance," Obama said in a speech at Rutgers University in Newark, a city of about 280,000 that has grappled for decades with poverty and high rates of violent crime.

Obama said he was banning "the box" that applicants had to check about their criminal histories when applying for certain federal jobs. He praised companies such as Wal-Mart, Target, Koch Industries, and Home Depot for taking similar measures in the private sector. The president noted that Congress was considering similar measures.

But New Jersey Governor Chris Christie, who is failing to gain traction in his bid for the Republican Party's nomination to run for the White House in the November 2016 election, said Obama's policies had hurt police departments nationwide. "(Obama) does not support law enforcement. Simply doesn't. And he's going to come today to New Jersey in a place where, under my tenure, we have reduced crime 20 percent and reduced the prison population 10 percent," Christie said on MSNBC TV. "It's a disgrace that he's coming to New Jersey today to take credit for this stuff when he's been someone who's undercut it."

The new steps unveiled by the White House included up to $8 million in federal education grants over three years for former inmates as well as new guidance on the use of arrest records in determining eligibility for public and federally assisted housing....

White House spokesman Josh Earnest questioned the reasoning behind Christie's less friendly welcome on Monday. “Governor Christie’s comments in this regard have been particularly irresponsible, though not surprising for somebody whose poll numbers are closer to an asterisk than they are double digits. Clearly this is part of the strategy to turn that around,” Earnest said.

For more on the specific proposals annouced by President Obama today, this official White House Fact Sheet provides lots of details under the heading "President Obama Announces New Actions to Promote Rehabilitation and Reintegration for the Formerly- Incarcerated."  

Some analysis of the Prez's proposals can be found in this Atlantic piece with this lengthy headline: "Obama's Plan to Help Former Inmates Find Homes and Jobs: Between 40 and 60 percent of ex-offenders can’t find work. Will the president’s new initiative help?"

November 2, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

Thursday, October 29, 2015

Leading Dems stake out notable positions on death penalty and marijuana reform

For sentencing and criminal justice fans, last night's GOP Prez debate was a big snooze.  But, as the two articles linked below highlight, the leading Prez candidates for the Democrats made headlines in this arena yesterday:

October 29, 2015 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Friday, October 23, 2015

Would Paul Ryan as House Speaker dramatically improve prospects for federal sentencing and marijuana reform?

Great_white_hope_rectThe question in the title of this post post prompted by this news that "Rep. Paul Ryan officially declared his bid for House speaker Thursday after consolidating the support he needs to be elected by his colleagues next week," and Ryan's prior comments about sentencing reform and marijuana policy.  Specifically, as detailed in a bunch of older prior posts linked below, Ryan back in 2012 stated that he favored allowing states to set their own marijuana policies, and in 2014 Ryan expressed support for the Smarter Sentencing Act and released an anti-poverty plan that stressed the need for federal sentencing reforms in order "to tap [past offenders'] overlooked potential and ameliorate the collateral impact on children and families."

Of course, past statements and policy positions often get conveniently forgotten or can even change dramatically when a politician pursues a new leadership role at a new political time.  (For example, as stressed in this post on my marijuana reform blog Donald Trump once suggested full legalization would be the only way to "win" the drug war, but to date nobody in the MSM has asked about this position or pressed him about his views on the potential economic benefits of marijuana legalization.)   So it is possible that Ryan as House Speaker would not prioritize or even now fully support significant federal sentencing and marijuana reforms.  

But, as regular readers know well, there is a significant generational divide (especially within the GOP) concerning federal criminal justice reform issues.  Generally speaking, younger politicians like Ryan have been much more supportive of reform (and vocal about their support of reform) than older folks like out-going House Speaker John Boehner.  Consequently, even if Ryan as House Speaker might not be inclined to make criminal justice reform a top priority, I suspect the younger GOP generation with which he is linked could considerably increase the chances that the House become much more invested and aggressive in making big federal criminal justice changes in the months and years ahead.

A few prior related posts about (future long-time House Speaker?) Paul Ryan and the true conservative case for federal sentencing and marijuana reform:

October 23, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, October 18, 2015

Referendum on legislative death penalty appeal now officially on Nebraska ballot for 2016

Images (2)As reported in this local article, headlined "Death penalty supporters put repeal on hold till 2016 vote," Nebraska is going to be the locus and focus for a lot of death penalty debate over the next year. Here is why:

A pro-death penalty group has submitted enough valid signatures to postpone the repeal of capital punishment and place a referendum on the issue on the November 2016 ballot, it was confirmed Friday.

Nebraska Secretary of State John Gale said Friday that he has sent letters certifying the success of the petition drive mounted by Nebraskans for the Death Penalty, a group backed by Gov. Pete Ricketts.

The group launched a signature drive in June shortly after the Nebraska Legislature overrode a veto by Ricketts to abolish the death penalty in the state.

Gale said the petition drive had not only submitted enough signatures to force a vote on the issue during the 2016 general election, but also to postpone the repeal until that vote is taken. “More than 143,000 signatures were verified to our office from counties where signatures were collected, which was more than enough to meet each of those thresholds,” Gale said in a press release.

Chris Peterson, a spokesman for the pro-capital-punishment group, said in a press release that the campaign to retain the death penalty has begun. “Our message is simple: the death penalty is an appropriate punishment for the most heinous of murders, it protects public safety officers from criminals who otherwise have nothing to lose by murdering a corrections officer, and is a worthwhile deterrent if it saves even a single life,” Peterson said.

Dan Parsons, a spokesman for the anti-death-penalty coalition Nebraskans for Public Safety also issued a statement. “Nebraska voters will have the same opportunity the Legislature did to have a thoughtful discussion on whether to bring back a failed system that hasn’t been used in nearly two decades, is not a deterrent, and is a waste of taxpayer dollars,” Parsons said.

As a result of Friday’s announcement, the death penalty remains on the books, according to Nebraska Attorney General Doug Peterson, who also issued a press release. But the state still lacks the necessary drugs to carry out a lethal injection execution. Even if the state could obtain the drugs, legal scholars have expressed doubt that the Nebraska Supreme Court would approve a death warrant pending the Nov. 8, 2016, vote....

Ricketts issued a statement Friday after the verification: “Nebraskans continue to tell me that the death penalty is an important public safety tool. Today’s announcement takes us one step closer to giving the voters a say in retaining the death penalty.”

One thing that could prevent a vote on the issue would be a court order, and death penalty opponents have filed two lawsuits in an attempt to do that. One of the lawsuits claims that Ricketts should have been listed as an official sponsor of the petition drive because he was a major financier of the effort, contributing $200,000.... The second lawsuit maintains that the ballot language approved by the Nebraska Attorney General’s office was misleading and slanted.

October 18, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, October 13, 2015

Hoping for (and even expecting) some criminal justice reform discussion during Democrats' first Prez debate

Regular readers know I am ever eager to have the national political conversation focus on criminal justice issues, and thus today I am giddy with pre-Democrat-debate anticipation.  As detailed in lots of prior posts linked below, there are plenty of criminal justice topics that would merit attention given that all the Democratic candidates have made notable criminal justice reform statements and have a diverse set of (lengthy) government service records in this arena.  Topics that are less likely to engage the GOP field but should lead to some interesting discourse among the Democratic Prez candidates include the death penalty (which candidate Michael O'Malley catgorically opposes) and private prisons (which candidate Bernie Sanders categorically opposes) and full Colorado-style marijuana legalization (which perhaps everyone opposes except the majority of voters in many key states).

Of particular note, especially with a majority of the Democratic candidates having served in the Senate, tonight's debate is the first since a bipartisan group of Senators announced the remarkable Sentencing Reform and Corrections Act of 2015 (basics of SRCA here).  It would be real interesting, though perhaps much too wonkish, to ask the candidates whether they share some liberal concerns that SRCA does not go nearly far enough to combat the problems of mandatory minimum sentencing and mass incarceration.  I would especially like to hear from former Senator Jim Webb, who was complaining about mass incarceration for years before doing so became hip, on this topic.

Because I will off-line much of the rest of today, this will be my last pre-debate post on criminal justice politics.  I will close by linking to some prior relevant Campaign 2016 posts and also by encouraging readers to fill the comments with questions they would like to see asked of the candidates.

October 13, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Could local DA elections be a critical means to fighting mass incarceration?

ImagesLots of sophisticated analyses of the roots and causes of modern mass incarceration, especially the empirical work done by John Pfaff, rightly suggest that the activities of local prosecutors are a critical part of the overall story.  Consequently, I find both notable and astute this new Economist commentary which suggests local elections for district attorneys can and should be a focal point for advocates looking to combat mass incarceration.  The piece is headlined "Two cheers: The best way to reduce the prison population," and here are excerpts:

In 2013 Charles Hynes, Brooklyn’s district attorney, was voted out of office after 24 years on the job. The ousting of an elected local prosecutor is rare in America. Incumbents who run for re-election win 95% of the time. Until Mr Hynes got the boot, no incumbent DA had lost a vote in Brooklyn since 1911. Mr Hynes’s fate needs to be more common, however, if America is to cease to be the world’s leading jailer. At present, it accounts for 5% of the world’s population and nearly 25% of its prisoners. Elected public prosecutors, such as Brooklyn’s Mr Hynes, are largely to blame.

The incarceration rate is like the water level in a bathtub. If the tap runs faster than the water drains, the level rises. The mandatory minimum sentences and truth-in-sentencing laws passed in the 1980s and 1990s blocked the outflow from America’s prison system. Proposals for sentencing reform, such as the bipartisan bill introduced by Chuck Grassley, a Republican senator from Iowa who chairs the Senate Judiciary Committee, would clear it a bit, by returning some discretion to judges and parole boards. But it would be even better to turn down the gushing tap.

Although the crime rate began to decline in the 1990s, the rate of admissions to prisons continued to climb for two decades, until it peaked in 2006. The criminal-justice system managed to put more and more people behind bars for 15 years, even though fewer and fewer people were committing crimes. The admissions rate has now reverted to the level in the late-1990s, but remains three times greater than it was 30 years ago when the crime rate was higher than it is today....

DAs can decide whether charges will be filed against arrested persons and, if so, what they will be charged with. Less than 5% of criminal cases go to trial: most end in plea bargains. And it is DAs who decide which plea deals to offer and accept, in effect determining whether offenders will be sent to prison and, if so, for how long. By and large, they are not a merciful lot.

They are also usually elected at county level, whereas prisons are run at state level. Short sentences — less than a year in most jurisdictions — are often served in county jails, putting county taxpayers on the hook. Punitive DAs can take the fiscal burden off the people who elect them by foisting the cost of imprisonment onto states.

If legislators cannot rein in DAs, that job must fall to voters. Because unseating an incumbent is so unusual, and because there are more than 3,000 county and state district attorneys, this may seem an unpromising path to a lower incarceration rate. But more than half of state prisoners, who make up the vast majority of the incarcerated, are housed in just ten states. Within those states, most prisoners come from a few large metropolitan jurisdictions. Moreover, these areas tend to contain lots of rehabilitation-minded liberals as well as minority voters, who are more likely to have family members in prison. Prosecutors in California and New York have already changed tack, and incarceration rates in those states have fallen.

Kenneth Thompson, Brooklyn’s first black DA, managed to knock Mr Hynes off his perch by highlighting a couple of dodgy murder convictions and speaking out against aggressive police tactics. And though sentencing reform is obviously needed too, the election of just a handful of “smart-on-crime” DAs in and around big cities like Houston, Chicago, Miami and Los Angeles could cut America’s incarceration rate even more dramatically.

I am not convinced that local DA elections are the "best way" to attack mass incarceration, but I do think that the work of all prosecutors (local, state and federal) should be subject to a lot more scrutiny and accountability and should be a concern for all those interested in modern criminal justice reforms.

October 13, 2015 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Saturday, October 10, 2015

Should GOP Prez candidates be questioned on why being pro-life and anti-government doesn't lead to death penalty opposition?

The question in the title of this post is prompted by this The Week commentary authored by Bonnie Kristin and headlined "The rise of the anti-death penalty conservative." Here are excerpts:

[P]rotesting abortion is not all the consistent pro-life ethic entails.  As typically expressed, most often in Catholic circles, consistent defense of human life in all its forms also requires opposition to the death penalty and assisted suicide (as well as any involuntary form of euthanasia).

"Life is something that comes from God and shouldn't be taken away by man," explains Father Thomas Reese, a Jesuit priest.  Those with a consistent pro-life ethic "are concerned about a person from womb to tomb."  For all Christians, consistent pro-lifers argue, "Something is definitely wrong when we claim to follow a man who halted an execution (John 8:1–11) and then was unjustly executed by the state, but still prefer justice over mercy."...

[T]here are some conservatives for whom capital punishment is already a pressing issue. "For those of us who are pro-life and maintain the far-from-radical notion that our government shouldn't kill innocent Americans, the death penalty fails to live up to our standards," argues Marc Hyden of Conservatives Concerned About The Death Penalty (CCATDP), a nonprofit that exists to question "a system marked by inefficiency, inequity, and inaccuracy."

And marked by these difficulties it most certainly is.  As CCATDP enumerates, the problems and perils of capital punishment in modern America are many.  There's the risk — as in the Glossip case and too many others, like Marlon Howell or Cameron Todd Willingham — of accidentally killing an innocent person.   More than 150 people sentenced to die in America have been exonerated in the last four decades, some after spending 30 years or more on death row.

Beyond that, the death penalty is exorbitantly expensive for taxpayers — as much as 10 times more expensive than a life sentence by some calculations.  The lengthy process drags out the grief of murder victims' families, endlessly resuscitating it with a new appeal or evidence.  And there's no evidence that the threat of death deters crime.  Furthermore, capital punishment is implemented in a systemically unfair manner: Factors like where you live, your race and the race of your alleged victim, and even whether your judge is elected or appointed can all influence whether you're sentenced to prison or death.

With inequities like these, Hyden argues, there's nothing "limited or wise about giving an error-prone government the power to kill its citizens, especially when many of us don't trust the state to even deliver mail."

In spite of the evidence that — as conservatives tend to agree in other policy arenas — the government is neither competent nor trustworthy, polling suggests that CCATDP is still in the minority on the right: Only 11 percent of Americans oppose both abortion and the death penalty. There is "no significant correlation between attitudes about the legality of abortion and views on capital punishment," according to Robert P. Jones of OnFaith, and if we zoom in on Tea Partiers, support for a consistent pro-life ethic drops to just 7 percent.

So in 2016, Republican debate moderators looking for a tough but thoughtful question to add to their list should consider question grilling presidential contenders on the death penalty.  Thanks to the Planned Parenthood footage — not to mention the cross-partisan popularity of the broader cause of criminal justice reform, as well as the consistently pro-life Pope Francis — the timing is good.  And thanks to the clear discrepancies between opposition to big government handing out a license to kill, on the one hand, and support for the death penalty on the other, the chance to catch candidates in hypocrisy is pretty good, too.

Some prior related posts:

October 10, 2015 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Thursday, October 08, 2015

What major federal criminal justice reform now gets 90% support in key swing states?

In this post and others at Crime & Consequences, Bill Otis rightly notes that relatively little objective polling has focused on the array of federal sentencing and correction reforms that are being actively proposed and promoted now by many leaders in the US Senate and House.  Like Bill, I would like to see the media and other independent groups conduct polling on some key aspects of federal drug sentencing and broader rehabilitation-oriented prison reform proposals now being considered on Capitol Hill.

Critically, though, thanks largely to voter-initiated, state-level reforms over the last few years, we are starting to see a lot more media and other independent groups conduct polling on one particular aspect of the federal criminal justice system: blanket marijuana prohibition and criminalization.  The latest polling numbers in this space come from the independent Quinnipiac University Poll, and it finds remarkably high public support for ending marijuana prohibition in swing states in order to allow adults "to legally use marijuana for medical purposes if their doctor prescribes it."  This Quinnipiac press release about its poll places emphasis on closely-divided (and gender/age-distinctive) views on recreational marijuana reform, but I find the medical marijuana poll numbers most remarkable and important. Here are excerpts from the press release (with my emphasis added):

"If men are from Mars and women are from Venus, then the Red Planet might be the more spacey place. That's because men are more likely than women to support legalization of marijuana for recreational use," said Peter A. Brown, assistant director of the Quinnipiac University Poll. "Not surprisingly support for the change is linked to age, with younger voters more likely to see personal use of pot as a good thing."

"But despite the support for legalization, a majority of voters in Florida, Ohio and Pennsylvania say they would not use the drug if it were legal," Brown added. "Only about one in 10 voters opposes legalizing marijuana for medical purposes." ...

Florida voters support legalizing personal marijuana use 51 - 45 percent.... Voters support legalizing medical marijuana 87 - 12 percent....

Ohio voters support legalizing personal marijuana use 53 - 44 percent.... Voters support legalized medical marijuana use 90 - 9 percent.

Pennsylvania voters are divided on legalizing personal marijuana use, with 47 percent in favor and 49 percent opposed.... Voters support legalizing medical marijuana 90 - 9 percent.

Among other stories, these latest poll numbers reinforce my concern that federal laws and our federal political leaders (including, it seems, most of the candidates running to be our next President) are badly out of touch with public views on marijuana reform. Even in these purple swing states, roughly 90% (!) of those polled say, in essence, that they do not support blanket marijuana prohibition and criminalization, and yet blanket marijuana prohibition persists in federal law and precious few elected federal office holders (or those seeking to be elected office holders) are willing even to talk about seeking to change these laws in the short term.

That all said, I am getting a growing sense that, over time, more and more promiment establishment politicians are coming to understand just how talking seriously (and modestly) about marijuana reform can be a winning political issue (especially among younger voters).  Still, as evidenced by some recent posts at my Marijuana blog, the politics, policies and practicalities of marijuana reform are so dynamic, I find myself unwilling ever to make bold predictions about what might happen next in this reform space.

Some recent posts from Marijuana Law, Policy & Reform:

October 8, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (5)

Thursday, October 01, 2015

Basic elements of Sentencing Reform and Corrections Act of 2015

As I write this, I am watching (at this link) the tail end of speeches being given by a series of US Senators discussing their pleasure and thanks concerning the bipartisan agreement to propose the Sentencing Reform and Corrections Act of 2015 (which I will start calling SRCA 2015).  Here are links to two documents provided by the Senate Judiciary Committee summarizing what appears in this bill:

Here ais the full text of the summary document:

WOWSA!!  And the more detailed section-by-section analysis suggests that lots and lots of badly over-sentenced federal offenders subject to extreme mandatory minimum sentencing provisions in not-so-extreme cases (including folks I have represented or filed amicus briefs on behalf of like Weldon Angelos and Edward Young) might be able to get retroactive relief if this legislation becomes law!!  Thus, to summarize, just the introduction of SRCA 2015 is a huge development, and I strongly believe its provisions can will significantly reshape the federal sentencing and prison system if (and I hope when) it becomes law.

Though I will still need to see the precise text before I will be in a position to really assess all that appears in this bill, these summary documents confirm my hope that this bill was likely to be among the biggest and most ambitious federal sentencing reform efforts we have seen since the enactment of the Sentencing Reform Act more than three decades ago.  Mega-kudos to all involved, Senators and staffers and advocates of all stripes, and now let's see if all the good mojo that this SRCA 2015 represents might get this bill through the Congress in the coming weeks!!

UPDATE The full text of the SRCA runs 141 pages, and the folks at FAMM have it available at this link.

October 1, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22)

Wednesday, September 23, 2015

Prez candidate Bernie Sanders: "We Must End For-Profit Prisons"

BernieAs noted in this prior post, last week Senator (and Presidential candidate) Bernie Sanders announced his commitment to ending use of private prison in the United States. This week he has followed up by authoring this Huffington Post commentary under the headline "We Must End For-Profit Prisons." Here are excerpts taken from the start and end of the piece along with its major headings in-between:  

The United States is experiencing a major human tragedy. We have more people in jail than any other country on earth, including Communist China, an authoritarian country four times our size. The U.S. has less than five percent of the world's population, yet we incarcerate about a quarter of its prisoners -- some 2.2 million people.

There are many ways that we must go forward to address this tragedy. One of them is to end the existence of the private for-profit prison industry which now makes millions from the incarceration of Americans. These private prisons interfere with the administration of justice. And they're driving inmate populations skyward by corrupting the political process.

No one, in my view, should be allowed to profit from putting more people behind bars -- whether they're inmates in jail or immigrants held in detention centers. In fact, I believe that private prisons shouldn't be allowed to exist at all, which is why I've introduced legislation to eliminate them.

Here's why:

For-profit prisons harm minorities....

For-profit prisons abuse prisoners....

For-profit prisons victimize immigrants....

For-profit prisons profit from abuse and mistreatment....

Prison industry money is corrupting the political process....

For-profit prisons are influencing prison policy ......

... and immigration policy....

For-profit companies exploit prison families....

Young people are being mistreated and exploited....

I have introduced legislation that will put an end to for-profit prisons. My legislation will bar federal, state, and local governments from contracting with private companies to manage prisons, jails, or detention facilities. Regulators will be directed to prevent companies from charging unreasonable fees for services like banking and telecommunications.

My legislation also takes steps to reduce our bloated inmate population. It reinstates the federal parole system, which was abolished in the 1980s, so that officials can individually assess each prisoner's risk and chance for rehabilitation. It ends the immigrant detention quota, which requires officials to hold a minimum of 34,000 people captive at any given time. And it would end the detention of immigrant families, many of whom are currently held in privately-owned facilities in Texas and Pennsylvania.

It's wrong to profit from the imprisonment of human beings and the suffering of their friends and families. It's time to end this morally repugnant practice, and along with it, the era of mass incarceration.

I have long tended to have an agnotic view of the private prison industry, in part because I generally tend to favor free-market solutions to big problems and in part because I view the public prison industry to be chock full the big problems stressed by Sanders in this commentary.  Nevertheless, Sanders makes a strong case that private prisons exacerbate public harms in incarceration nation.  Moreover, it is now quite interesting and important that a significant rival to Hillary Clinton for the Democratic nomination for President is now making prison reform a big priority on the campaign trail.

Some prior related posts:

September 23, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Investigating how elected judiciary may impact capital punishment's administration

USA-DEATHPENALTYReuters has this new investigative report exploring the relationship between an elected judiciary and a jurisdiction's administration of the death penalty.  The full headline and subheading provide a summary of the themes of the report: "Uneven Justice: In states with elected high court judges, a harder line on capital punishment. Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed, a Reuters analysis finds, suggesting that politics play a part in appeals. Now, the U.S. Supreme Court is about to decide whether to take up the issue in the case of a Ohio cop killer." Here are passages from the report:

Ohio is one of the states where high court judges are directly elected – and that, a Reuters analysis found, makes a big difference in death penalty appeals.

A review of 2,102 state supreme court rulings on death penalty appeals from the 37 states that heard such cases over the past 15 years found a strong correlation between the results in those cases and the way each state chooses its justices. In the 15 states where high court judges are directly elected, justices rejected the death sentence in 11 percent of appeals, less than half the 26 percent reversal rate in the seven states where justices are appointed.

Justices who are initially appointed but then must appear on the ballot in “retention” elections fell in the middle, reversing 15 percent of death penalty decisions in those 15 states, according to opinions retrieved from online legal research service Westlaw, a unit of Thomson Reuters.

Some academic studies over the past 20 years have mirrored the Reuters analysis, showing a relationship between the result in death penalty appeals and how state supreme courts are selected. The U.S. Supreme Court has not addressed these findings in its rulings.

Now, however, at least three current justices are sympathetic to the idea that political pressure on judges is a factor that leads to arbitrary, and perhaps unconstitutional, application of the death penalty. The findings, several legal experts said, support the argument that the death penalty is arbitrary and unconstitutional because politics – in addition to the facts – influence the outcome of an appeal.

Courts have a responsibility to protect a defendant’s constitutional rights without political pressure, especially when the person’s life is at stake, said Stephen Bright, a Yale Law School lecturer who has worked on hundreds of death defenses. “It’s the difference between the rule of law and the rule of the mob,” Bright said....

State supreme courts automatically review every death penalty verdict. Apart from examining whether any legal errors were made, judges must also weigh different factors to decide whether the death sentence is an appropriate punishment. Was it the defendant’s first offense or do they have a history of violent behavior? When a death sentence is reversed, the offender usually gets life in prison instead.

But as the Reuters analysis suggests, external factors may come into play. The election effect was a far stronger variable in determining outcomes of death penalty cases than state politics and even race. Justices in states that supported Democratic President Barack Obama in the 2012 election reversed death sentences at roughly the same rate as those that went for Republican candidate Mitt Romney, at around 14 percent.

African-American defendants had lower reversal rates in both elected and appointed states. Nationally, death sentences were reversed 15 percent of the time for whites, compared with 12 percent for African-Americans, according to the Reuters findings.

Reuters did not analyze the possible impact of the race of the victim on death penalty appeals. The analysis also excluded a category of death penalty appeals known as habeas challenges, because state supreme courts are not required to hear them and overwhelmingly refuse to do so....

In 2013, Justice Sonia Sotomayor cited a study showing that Alabama judges are more likely to impose the death penalty in election years, part of a failed effort to persuade her colleagues to review an Alabama capital case.

Last June, in Glossip vs. Gross, the high court voted 5-4 that the method of execution in Oklahoma is constitutional. In dissent, Justices Stephen Breyer and Ruth Bader Ginsburg cited studies showing capital punishment is arbitrary because of racial bias, as well as political pressure, “including pressures on judges who must stand for election."

Retired U.S. Supreme Court Justice John Paul Stevens, who has said he believes the death penalty to be unconstitutional, said in an interview that the Reuters findings “definitely lend support” to his side of the debate because they show how arbitrary capital punishment can be.

September 23, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Monday, September 21, 2015

Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?

The question in the title of this post is prompted by this The Week feature article which has a headline promising to go "Inside the growing conservative movement to end the death penalty." Here is how the piece starts and ends:

After years of sitting on death row in Oklahoma, Richard Glossip was scheduled to die on Wednesday.  But today, Friday, he's still alive.  That's thanks to a last-minute, two-week reprieve — which was granted in no small part because of a growing cadre of conservative activists who oppose the death penalty.

Glossip's case — he was convicted of hiring someone to kill his boss — had exhausted every avenue of appeal, even briefly heading to the Supreme Court last year as the justices weighed the legality of lethal injection.  But time and again, state officials and the legal system rejected his team's claims of innocence.

In recent weeks, pressure began to mount from evangelicals, young activists, and figures in the local media who wanted the state to take one last look at his case.  The outreach to these groups came largely from an organization called Conservatives Concerned About the Death Penalty.  Their outreach specialist is a man named Marc Hyden, a former campaign field representative for the National Rifle Association who argues that opposing capital punishment is a natural philosophical fit for tough-minded conservatives.

"Point to a single government program that works flawlessly.  Death penalty supporters have to accept that it's a human-run program and so my question is, how many innocent people are you willing to execute?" Hyden told me.

The fallibility of government is just one of several strategic points from which Hyden and his conservative constituency come at capital punishment.  They are also quick to point out that putting someone to death is far more expensive than simply keeping them in prison. Then there's the empirical data challenging whether the threat of execution is truly a disincentive for would-be criminals.  Some anecdotal accounts challenge whether families of victims benefit in any measurable way from seeing a perpetrator put to death.  And for the truly committed pro-life believer, there is the larger philosophical dilemma of whether a God-fearing society should be empowering the state to execute its citizens....

Conservatives Concerned About the Death Penalty got off the ground in 2010 in Montana, an ideal breeding ground for forward-thinking conservative positions.  After all, this is the same state where citizens have tussled with the federal government over using their gun registration cards to purchase medical marijuana.

Conservatives Concerned About the Death Penalty has expanded to states including Florida, Delaware, Tennessee, Kentucky, North Carolina, Texas, Georgia, Connecticut, and Nebraska.  The latter two abolished capital punishment this year.  Altogether, seven states have banned the death penalty since 2000, by far the biggest shift in American history.

Over the coming days and weeks, Glossip's case will bring an increased spotlight to capital punishment and whether it has a place in modern American society.  It's unlikely any one case will prove to be the tipping point, but when you consider that just five years ago, legalized marijuana and gay marriage seemed farfetched to most, it's not crazy to think that with a bipartisan coalition opposing it, the death penalty may soon find itself on life support, too.

September 21, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, September 17, 2015

Notable Left/Right morality accounting of the "Truth about Mass Incarceration"

Cover_20150921_tocProviding the cover feature piece for the September 21 issue of The National Review, Stephanos Bibas has this notable new commentary reflecting on the political rhetoric and statistical realities that surround modern crime and punishment in the United States.  The piece is headlined "Truth about Mass Incarceration," and I highly recommend the piece in full.  Here is an except from heart of the commentary, as well as its closing paragraph:

So the stock liberal charges against “mass incarceration” simply don’t hold water.  There is no racist conspiracy, nor are we locking everyone up and throwing away the key.  Most prisoners are guilty of violent or property crimes that no orderly society can excuse.  Even those convicted of drug crimes have often been implicated in violence, as well as promoting addiction that destroys neighborhoods and lives.

But just because liberals are wrong does not mean the status quo is right.  Conservatives cannot reflexively jump from critiquing the Left’s preferred narrative to defending our astronomical incarceration rate and permanent second-class status for ex-cons.  The criminal-justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guards’ unions, and they consume huge shares of most states’ budgets.  And cities’ avarice tempts police to arrest and jail too many people in order to collect fines, fees, tickets, and the like.  As the Department of Justice found in its report following the Michael Brown shooting in Missouri, “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” That approach poisons the legitimacy of law enforcement, particularly in the eyes of poor and minority communities.

Conservatives also need to care more about ways to hold wrongdoers accountable while minimizing the damage punishment does to families and communities.  Punishment is coercion by the state, and it disrupts not only defendants’ lives but also their families and neighborhoods.  Contrary to the liberal critique, we need to punish and condemn crimes unequivocally, without excusing criminals or treating them as victims.  But we should be careful to do so in ways that reinforce rather than undercut conservative values, such as strengthening families and communities....

American criminal justice has drifted away from its moral roots. The Left has forgotten how to blame and punish, and too often the Right has forgotten how to forgive. Over-imprisonment is wrong, but not because wrongdoers are blameless victims of a white-supremacist conspiracy. It is wrong because state coercion excessively disrupts work, families, and communities, the building blocks of society, with too little benefit to show for it. Our strategies for deterring crime not only fail to work on short-sighted, impulsive criminals, but harden them into careerists. Criminals deserve punishment, but it is wise as well as humane to temper justice with mercy.

September 17, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Wednesday, September 16, 2015

Hoping (again) to hear criminal justice reform discussion during tonight's GOP debate

Regular readers know I am ever eager to have the national political conversation focus on criminal justice issues, and thus today I am giddy with pre-GOP-debate anticipation again.  As just explained via this new post over at Marijuana Law, Policy and Reform, the location and run-up to tonight's debate has me thinking that federal marijuana laws and policies could possibly get some attention.  In addition, as detailed in lots of prior posts linked below, there are plenty of other criminal justice topics that would merit attention as CNN tries to encourage a "real debate" among the GOP candidates on topics in which they have some real disagreements.

I am due to be off-line the rest of this afternoon, so this will be my last pre-debate post.  I will close it not only by linking to lots of my pre-debate questions from last month, but also by again encouraging readers to fill the comments with questions they would like to see asked of the candidates.

Some recent related posts:

September 16, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates | Permalink | Comments (6)

Monday, September 14, 2015

Is the death penalty on "life support" or about to have a quickened pulse?

NptuDCEThe question in the title of this post is prompted by this huge new USA Today article headlined "Courts, states put death penalty on life support." Here are some excerpts from the lengthy article that is well-told in multiple chapters:

If there is such a thing as a lock for the death penalty, the case against Daniel Higgins appeared to be just that. Already sought for sexually assaulting a child, Higgins killed Sheriff's Sgt. Michael Naylor last October with a point-blank shot to the head, making him the only deputy slain in the department's 130-year history. "I wanted him dead," Sheriff Gary Painter says of the murderer.

But Naylor's widow, Denise Davis, said she couldn't bear the likely rounds of appeals that could stretch on for decades.  Higgins was allowed to plead guilty and was sentenced to life without the possibility of parole.  The death penalty in America may be living on borrowed time.

The emotional and financial toll of prosecuting a single capital case to its conclusion, along with the increased availability of life without parole and continuing court challenges to execution methods, have made the ultimate punishment more elusive than at any time since its reinstatement in 1976.

Prosecutors, judges and juries also are being influenced by capital punishment's myriad afflictions: racial and ethnic discrimination, geographic disparities, decades spent on death row and glaring mistakes that have exonerated 155 prisoners in the last 42 years.

Those trends may be squeezing the life out of the death penalty.  That doesn't even take into account the added burden of legal clashes, legislative repeals, and problems finding and administering drugs for lethal injections.

The Supreme Court in June upheld a controversial form of lethal injection by the narrowest of margins, thereby giving Oklahoma the green light to reschedule three executions.  But courts in many states continue to wrestle with that issue, and the justices have four more death penalty cases on their docket this fall challenging the roles of Kansas juries, Florida judges and Georgia prosecutors....

Still, the Supreme Court has twice upheld the constitutionality of lethal injection, first in 2008 and again in June, when the justices ruled 5-4 that Oklahoma can use a sedative involved in three botched executions last year.  Justice Samuel Alito, writing for the majority, said challengers could not suggest a better alternative.

The ruling gave impetus to states such as Alabama and Mississippi seeking to jump-start executions after a hiatus of several years.  But it also rejuvenated legal efforts by groups opposed to the death penalty, who continue to fight against lethal injection protocols in several states....

Several states took the high court's ruling as a reason to rejuvenate the death penalty. Missouri wasted little time resuming executions, putting David Zink to death two weeks later, on July 14.  Texas, by far the nation's leader in executions with 528 since the Supreme Court reinstated capital punishment in 1976, followed suit with an execution in August and has six more on tap this year.

States from Florida to Montana that have not killed anyone for several years are in court, seeking to rejuvenate dormant death penalties.  Some states are establishing backup methods in case lethal injections become impossible.  Eight permit electrocution, three allow gas chambers, three allow hanging, and two would use firing squads -- as Utah did in 2010 and 2013....

Nebraska this year became the first "red" state to ban capital punishment.  That law faces potential repeal in 2016 if death penalty proponents can put it to a vote.  The attention Nebraska received overshadowed near-misses in Delaware, where Rep. Sean Lynn says the death penalty is applied in discriminatory fashion, and Montana, where Rep. David Moore says the costs are proving to be unaffordable....

The debate over lethal injection has energized legislatures as well as courts and corrections departments.  North Carolina and Arkansas, two Southern states seeking to rejuvenate their dormant death penalties, approved laws this year that impose secrecy on the source of lethal injection drugs.  Arkansas recently purchased a new supply of drugs.

The problem for the legal system is that it's more of a medical issue.  Some drugs, such as sodium thiopental and pentobarbital, no longer can be obtained from European drug makers.  That has sent states scurrying to compounding pharmacists, where the drugs they get are not subject to Food and Drug Administration regulation.

But those pharmacists aren't pleased.  Its trade group in March discouraged members from "participating in the preparation, dispensing or distribution of compounded medications for use in legally authorized executions."  A week later, the American Pharmacists Association called executions "fundamentally contrary to the role of pharmacists as providers of health care."

I would recommend this USA Today article to anyone looking for an effective up-to-date account of the current state of the death penalty in the United States. But while the piece details all the notable barriers and hurdles in the way of continued use of the death penalty and execution, it does not fully note that the Glossip case could well have removed enough legalistic barriers to allow traditional "death belt" states and a few others to conduct multiple executions in the coming months.

Notably, this Death Penalty Information Center scheduled execution page details nine serious execution dates in five different states for the month of October. If all (or even most) of these executions get carried out without any unusual difficulties or Supreme Court intervention, I suspect additional states will feel emboldened to try a bit harder to get its death machinery up-and-running again in 2016.  And especially if Ohio can get the drugs it needs to conduct executions, I think 2016 could see a significant uptick in nationwide executions.

Especially with a death penalty referendum on the ballot in Nebraska and a presidential election season in full swing, I think 2016 will be an especially interesting and important year for the future of the death penalty in the United States.  Though it is certainly possible to look at recent developments to predict the coming demise of capital punishment, the death penalty in the United States has historically found ways to stay alive and kicking.

September 14, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing | Permalink | Comments (6)

Thursday, September 10, 2015

"No Reason to Blame Liberals (or, the Unbearable Lightness of Perversity Arguments); Review of the First Civil Right: How Liberals Built Prison America, by Naomi Murakawa"

The title of this post is the title of this new review by Margo Schlanger available via SSRN discussing a provocative book about the American political left's role in mass incarceration.  Here is the abstract:

This is a review of The First Civil Right: How Liberals Built Prison America, by political scientist Naomi Murakawa.  Murakawa takes as her target a conventional wisdom that explains the rise of mass incarceration as a victory of Republican law-and-order over Democratic civil rights.  Rather, she argues, starting right in her subtitle, “liberals built prison America.”  It was liberals, she claims, who “established a law-and-order mandate: build a better carceral state, one strong enough to control racial violence in the streets and regimented enough to control racial bias in criminal justice administration.”  Her major point along these lines is that the liberal preoccupation with using fair, non-racist procedures has contributed importantly to the growth of the carceral state, taming reform urges, entrenching the punitive regime.  This argument sounds in perversity — on Murakawa’s account, liberalism’s attempt to improve racial justice using procedural tools not only fails, it is counter-productive, entrenching and worsening the system’s inequities.

The review critiques Murakawa's focus on federal crime policy as missing the more important state and local dynamics.  In addition, it argues that Murakawa's perversity argument is essentially aesthetic — that she adduces only post-hoc/propter-hoc kind of evidence that the liberal proceduralism she highlights has accompanied the ballooning of the incarcerated population.  That is far from enough to convict generations of liberals — many though not all of whom decried overincarceration, as well as the unfair procedures that accompanied it — of the charge that they “built prison America.”

Prior related posts:

September 10, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Thursday, September 03, 2015

"The simple truth about why mass incarceration happened"

The title of this post is the headline of this effective recent Vox piece by German Lopez. Here are excerpts:

How could US politicians possibly think it was a good idea to incarcerate millions of Americans starting in the 1980s, creating the system of mass incarceration we have today?

It's a question that gets tossed around a lot nowadays, with varied answers — from claims it was an attempt to control the population to arguments that private prisons created a profit motive for locking up millions of Americans.

But there's a much simpler explanation: The public wanted mass incarceration. It's easy to forget now, but the politics of crime were huge in the 1990s.  According to data from Gallup, never before or after the nineties have so many Americans said that crime is the most important problem facing the country today.

Americans had a very good reason for these concerns.  From the late 1960s to the early 1990s, crime was unusually high.  The country was still coming off what was perceived as a crack cocaine epidemic, in which the drug ran rampant across urban streets and fueled deadly gang violence.  So Americans, by and large, demanded their lawmakers do something — and politicians reacted with mass incarceration and other tough-on-crime policies.

It's very easy in hindsight to consider this an overreaction — now that we know crime began its decades-long decline in the early 1990s, and now that research has shown that mass incarceration only partly contributed to this decline.  But people didn't know that at the time. They didn't know crime was about to begin its long-term drop, and the research on mass incarceration was far from conclusive. Politicians thought crime would get worse, not better.

In fact, there were warnings at the time that things were on the verge of getting worse. One prominent concern in the 1990s — based on what turned out to be very bad social science research — suggested that there was an incoming epidemic of superpredators, violent youth who would rob and kill people....

In this context, it was expected that all politicians — liberal and conservative — take a tough stance on crime.  That's partly why liberals like Hillary Clinton, Joe Biden, and Bernie Sanders supported the 1994 crime law that contributed to mass incarceration.  It's why dueling candidates for governor in the liberal state of New York campaigned on who could be tougher on crime.  And it's why practically every state passed tough-on-crime policies throughout the 1980s and 1990s....

Popular demand for tough-on-crime laws in the past doesn't in any way excuse the devastation lawmakers inflicted on millions of people through mass incarceration and other policies.  But based on voters' concerns in the 1990s, if a politician didn't contribute to the problem back then, he or she may not be prominent enough to run for president today.  That's how America ended up with mass incarceration — and the seemingly contradictory Democratic presidential candidates for 2016.

September 3, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Wednesday, August 26, 2015

Notable talk of crimnal justice reform at GOPAC State Legislative Leaders Summit

My local Columbus Dispatch has this notable article about notable policy message that was delivered to top GOP state lawmakers at a notable conference this week.  The article is headlined "Packing prisons not the answer, lawmakers told," and here are excerpts:

Meeting in a state where more than 50,000 people live in prisons built to hold about 39,000, Republican state lawmakers from across the country were told Tuesday that “tough on crime” must be replaced by a smarter approach to criminal justice.

“Conservatives recognize we have too many criminal laws,” said Patrick Purtill Jr., director of legislative affairs for the Faith and Freedom Coalition, told a room of GOP lawmakers attending the annual GOPAC State Legislative Leaders Summit, held this year in Columbus.

“We’re sending too many people to prison. We’re spending too much money to keep them there for far too long. And we’re doing too little to re-enter them into our communities. It’s becoming increasingly clear that over-criminalization and over-incarceration are making our communities less safe.”

Republicans are leading the country on criminal-justice reform, said David Avella, chairman of GOPAC, a national group that grooms Republican lawmakers and candidates and provides forums for the sharing of conservative policies. “If you want to look at how we heal some of the divisions our country faces right now, this is a winning issue for us,” he told the conference, which runs through Thursday.

The Faith and Freedom Coalition is one of seven organizations stretching across the ideological spectrum that is partnering with the U.S. Justice Action Network to implement laws that reduce prison populations, implement more rational criminal penalties, and do more to help inmates re-enter society.

Ohio, along with Pennsylvania and Michigan, currently are the Action Network’s three target states for criminal justice reform. The group is working with Ohio lawmakers such as Senate President Keith Faber, R-Celina, and Rep. Barbara Sears, R-Sylvania. “These reforms make us safer. They’re not just cost-saving measures,” said Holly Harris, executive director of the Justice Action Network, pointing to Pew Chartable Trusts data that shows states with the biggest drops in prison populations also are seeing some of the greatest decreases in crime rates....

Faber, an attorney and former probation officer, told the [Ohio legislature's] Recodification Committee in June to “ swing for the fences.” He told GOPAC attendees that he knows Republicans have traditionally approached criminal justice with a “tough on crime” attitude. “This isn’t about making sure the bad guys get out earlier,” he said. “But we need room for the really bad guys, and the question is what do we do about the people that aren’t so bad?”

Faber hopes the committee will have recommendations by next summer. “One of the things I hope we do is give judges discretion back,” Faber said. “Another thing we need to look at is making that finer line between what is a felony and what isn’t. I also hope they look at what we need to increase the penalties for to stop that recidivism cycle.”

August 26, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, August 21, 2015

"Who Built Prison America? Not Ted Kennedy"

Regular readers may recall a couple posts earlier this year (here and here) noting a fascinating book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America.  Interestingly, Ron Weich, a prominent former staffer for Senator Ted Kennedy has this new commentary at The Crime Report (with the same headline of this post) asserting it is wrong to lay blame on Senator Kennedy for modern mass incarceration.  Here are excerpts:

One of Kennedy’s most far-reaching bipartisan accomplishments was the Sentencing Reform Act of 1984.  Yet this law serves as Exhibit A for Professor Murakawa’s theory that liberals bear responsibility for the failed criminal justice policies of that era.  She blames the sentencing guideline system established by the Act for contributing to mass incarceration and accuses Sen. Kennedy of advancing unduly punitive policies....

Murakawa has harsh words for all who supported the 1984 Act, but she singles out Kennedy for special criticism.  She decries the fact that the man she calls “the liberal lion of the Senate” included in the law various “carceral” elements such as the abolition of parole and a reduction in the availability of good-time credits for prisoners.  She tracks changes in the sentencing bills Kennedy introduced from 1977 to 1984 and argues that his bills became increasingly punitive.  She regards Kennedy as a “hard test case for my claim that Democrats aided, abetted, and legitimized a punitive law and order regime.”

The first flaw in the Murakawa book is its subtitle: How Liberals Built Prison America. No fair observer of criminal justice policy could conclude that liberals -- or conservatives or Democrats or Republicans -- bear sole responsibility for the spike in incarceration over the past half century. Rather, these disastrous criminal justice policies were a bipartisan misadventure that reflected the nation’s anger and fear about crime.

Every crime bill enacted by Congress in the 1980s and 1990s passed with broad bipartisan majorities and the support of leaders from both political parties.  Only a handful of liberal House Democrats sometimes voiced concern.  The Senate often passed crime bills by unanimous consent.

It is certainly fair to criticize Kennedy and other liberals for supporting bad crime bills. But they did not build “Prison America” by themselves, as the subtitle of Murakawa’s book unfairly suggests.

Murakawa’s narrative also fails to appreciate the complex collaborative nature of the legislative process.  She attributes to Kennedy personally the flaws she perceives in his bills. Yes, he was a lead sponsor of the Sentencing Reform Act, but he did not write the law in a vacuum.  The bill’s text is the product of years of negotiations with [Strom] Thurmond and many other members of the Senate, as well as committee markups and floor debates.

Murakawa acknowledges, but does not emphasize, the huge influence of the Justice Department in shaping the final law.  It is no surprise that a bill first introduced during President Jimmy Carter’s administration became more conservative by the time it was signed into law by President Ronald Reagan.

Too often, Murakawa conflates the role of the guideline system and mandatory minimum sentencing laws in contributing to overincarceration.  Many of the most draconian mandatory minimums for drug and gun crimes were enacted in 1986, after the passage of the Sentencing Reform Act of 1984 but before the guidelines took effect in 1987.  Kennedy recognized that mandatory minimums were unjustified once the guideline system had been established.  He repeatedly argued that guidelines are a reasonable mechanism to restrain judicial discretion, whereas mandatory minimums are blunt and unyielding.

Throughout the 1990s Kennedy fought against mandatory minimum sentencing proposals, as I detailed in my article “The Battle Against Mandatory Minimums: A Report from the Front Lines.”

He championed the safety-valve provision (18 USC 3553(f)) in the 1994 crime bill, which allows certain low-level, nonviolent offenders to be sentenced below applicable mandatory minimums.  In fact, in his 1994 reelection race against Mitt Romney, Kennedy faced brutal ads claiming he was soft on crime because he had opposed mandatory sentencing.

Kennedy and other liberals can be faulted for voting in favor of the 1986 crime bill and other bills which contained mandatory minimums, but they did not lead the charge for those policies as Kennedy had for a guideline system.  In fact, Sen. Kennedy was a leader in opposing mandatory minimums once their effect became clear and their inconsistency with the guideline system became apparent.

More generally, Kennedy was a voice for more rational criminal justice policies.  He always opposed capital punishment and, as Prof. Murakawa notes, led the unsuccessful fight to pass the Racial Justice Act which would have allowed capital defendants to challenge their sentences using statistical evidence of racial bias....

Professor Murakawa has written a thoughtful, comprehensive academic study of federal sentencing policies. A book like hers provides an important service, but it cannot be expected to take account of the rough-and-tumble aspects of the legislative arena.  During his long political career, Sen. Kennedy endured criticism that was a lot harsher and less fair than that contained in Murakawa’s book.

As someone who has been involved in criminal justice policy for many years, both before and after I worked for Sen. Kennedy, I share Murakawa’s concern about America’s overreliance on incarceration.  I also applaud the current trend toward more sensible sentencing policies.

I have no doubt that if Sen. Kennedy were alive today, he would be leading the charge for criminal justice reforms.  And he would be doing so in a bipartisan manner, working with Sens. Rand Paul, Mike Lee and other unlikely bedfellows.  That was his way.

Prior related posts:

August 21, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Thursday, August 20, 2015

"Bernie Sanders Announces Bill to Abolish Private Prisons, Hints at Marijuana Policy Platform"

The title of this post is the headline of this notableg piece via the Marijuana Politics website that reports on some recent statements by Senator Sanders on the campaign trail that should be of special interest to sentencing law and policy fans. Here are excerpts (with links from original):

Bernie Sanders isn’t done talking about criminal justice reform — in fact, he’s merely getting started.  The presidential contender continues to rise in the polls and sensible Drug War reforms will only increase his standing with the Democratic base.

Appearing at a campaign rally in Nevada on Tuesday, the Vermont Senator and Democratic presidential candidate talked at length about the unfairly punitive policies that plague the American justice system and disproportionately affect people of color in the United States. Speaking to the crowd of 4,500 supporters gathered outside the University of Nevada, Sen. Sanders went beyond his previous speeches on the issue, announcing that, come September, he will be introducing federal legislation which would abolish for-profit private prisons.

“When Congress reconvenes in September,” Sanders said, “I will be introducing legislation, which takes corporations out of profiteering from running jails.”

Tackling the problem of for-profit prisons is a bold move for a federal legislator, as the prison industry is a hugely profitable part of the U.S. economy.  The top two private prison companies in the country, Corrections Corporation of America and GEO Group, have a combined annual revenue of over $3 billion, much of which is spent lobbying elected officials to protect their bottom line.  While some states, such as New York and Illinois, have enacted laws to ban the privatization of prisons, for-profit prisons have tragically remained a staple of the American criminal justice system, in large part due to the country’s skyrocketing incarceration rates made possible by the War on Drugs.

Bernie Sanders also indicated that the War on Drugs will be a focus of his campaign. “We want to deal with minimum sentencing,” Sanders said Tuesday,  “Too many lives have been destroyed for non-violent issues.  People that are sent to jail have police records. We have got to change that.  Our job is to keep people out of jail, not in jail.”  According to audience members, Bernie Sanders also said that his campaign will be addressing marijuana legalization in the weeks to come.

August 20, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences? | Permalink | Comments (3)

Monday, August 17, 2015

Should there really be so much left-leaning distrust for the Koch brothers' criminal justice reform work?

MaxresdefaultThe question in the title of this post emerged as read this lengthy Washington Post article about recent federal sentencing reform efforts headlined "Unlikely allies: A bipartisan push for sentencing reform unites President Obama and the Koch brothers, but many are still waiting behind bars."  Here are the excerpts that especially generated the question in the title of this post (with some links preserved):

When he gives speeches, Charles Koch says he asks those in the audience to raise their hand if they have never made a mistake that could have gotten them in serious trouble.  “I’ve never had anyone raise his or her hand,” he said in his office on the sprawling Koch Industries campus here.  “There, but for the grace of God or good luck or good fortune go all of us.”

The industrialist said his interest in overhauling the criminal justice system is not new.  For 12 years, Koch Industries, the country’s second-largest private company with a $115 billion valuation according to Forbes, has been working with the National Association of Criminal Defense Lawyers, and is providing funding to train lawyers who represent indigent defendants.  The group honored Koch Industries a few years ago with its Defender of Justice Leadership award.

He describes his focus on sentencing reform as part of his libertarian philosophy of limited government and his commitment to removing barriers of opportunity for the poor.  He said Obama should do more and do it faster to rectify the effects of mandatory minimum sentences, especially for the disadvantaged and men and women of color.

“Clemency for a few — to me, that isn’t just,” said Koch, noting that the president has not granted clemency to Angelos despite appeals to do so from a large group of bipartisan lawmakers.  “If you have 1,000 people who got unjust sentences, to give clemency to [a few] — what about the others? Why should they suffer?”

But some Democratic groups remain skeptical about any recasting of the Kochs’ image as anything other than megadonors who have long backed Republican politicians, including tea party candidates.  They’ve ridiculed the effort as “Kochshank Redemption,” playing off the name of the 1994 movie “Shawshank Redemption,” about an inmate sentenced to two life terms.

Liberal blog ThinkProgress has questioned how the Kochs can support criminal justice reform while also supporting candidates such as Wisconsin Gov. Scott Walker.  As a state legislator, Walker sponsored dozens of tough-on-crime bills, including ones to increase mandatory minimum sentences and not allow parole for many offenders.

Critics have also noted the Kochs’ support for the American Legislative Exchange Council (ALEC), an advocacy group that helped push for mandatory minimum sentences, tough three-strikes laws and privatization of the prison industry.

Liberal watchdog group Bridge Project last month released a report, “The Koch Brothers’ Criminal Justice Pump-Fake,” attacking their work on criminal justice issues, saying the Kochs’ interest in reform stems from a 97-count indictment and prosecution charging the Koch Petroleum Group and several employees with violating the Clean Air Act at its refinery in Corpus Christi, Tex.

David Uhlmann — the federal prosecutor who was head of the environmental crimes section of the Justice Department — described the lawsuit as “a classic case of environmental crime: illegal emissions of benzene — a known carcinogen — at levels 15 times greater than those allowed under federal law.” “Koch pleaded guilty and admitted that its employees engaged in an orchestrated scheme to conceal the benzene violations from state regulators and the Corpus Christi community,” said Uhlmann, now a law professor at the University of Michigan Law School.

Uhlmann, along with other critics, are reluctant to accept the Kochs’ support for criminal justice reform at face value, and believe there must be a deeper political agenda — possibly to include the later pursuit of legal reforms that will benefit corporations. “Their advocacy for less draconian drug laws could prove to be a stalking horse for their long-standing efforts to protect corporate criminals and roll back environmental, health and safety laws,” he said.

Koch Petroleum was fined $10 million in the Corpus Christi case and ordered to pay another $10 million to fund environmental projects. In a plea agreement, the charges were dropped against the four employees. In Charles Koch’s opinion, the federal case was unjust. “We had four innocent employees indicted,” he said. “Okay, the company can handle it. Okay, we pay a fine and so on. What’s so upsetting is seeing what it did to them personally and their families.”

And Mark Holden, Koch Industries’ general counsel and senior vice president, said the company “was railroaded” and its experience in the Corpus Christi case “is what really started us working on criminal justice issues.”

Of the skeptics, Holden said, “People are going to believe what they want to believe. We’ve been working on these issues for 12 years now.  Charles has had these views his whole life, by and large.  Just judge us by our actions. We’re in this for the long haul.” In a nod to the moment, Holden has a T-shirt in his office with the words: “Koch. Not Entirely Awful,” playing off the words of a recent article.

Van Jones, the president of #Cut50, a group seeking to cut the incarcerated population by 50 percent over the next 10 years, and the former special adviser on Obama’s Council on Environmental Quality, defends the Kochs.

“In a democracy, when you disagree with somebody, you should really work hard against them,” Jones said. “We oppose the Koch agenda when it comes to their pro-polluter, extremist agenda for the environment, and we fight real hard.  But when you agree with them, you should work really hard alongside them.  On criminal justice reform, we’re very proud to work alongside them.”

“And,” Jones added, “I never met a single person in prison who said, ‘I sure hope the Republicans and the Koch brothers don’t help me.’ ”

This final quote from Van Jones highlights one reason why I am such a big supporter of the Kochs' criminal-justice reform efforts.  But, perhaps even more significantly, because much of my own affinity for modern sentencing refrom comes from a libertarian distrust-for-big-government, dislike-of-wasteful-government-spending foundation, I see the Kochs' efforts here as a natural out-growth of their broader philosophy and not a "pump-fake" in any way.  But maybe I am just naive in the ways of the world, and perhaps others have different views on the question in the title of this post.

Some prior related posts on Koch family efforts in support of criminal justice reform:

August 17, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (9)

Wednesday, July 29, 2015

Hoping GOP debates take up criminal justice reforms (including clemency and marijuana policy)

Next week in Cleveland is the first "real" event of the 2016 Prez campaign: the top ten of the sixteen declared GOP candidates will share the stage for a debate.  And, as the title of this post highlights, I am rooting hard (but not really expecting) that a number of criminal justice reform issues, including topics like clemency and marijuana reform, play a big role in this first big debate and in the many future debates sure to follow.

Because I am professionally engaged in criminal justice issues, I am sure it comes as no surprise that I am hoping this first debate takes up these issues.  But I also think these issues are especially (1) timely as Prez Obama and Congress start paying more attention to federal sentencing reform, and (2) likely to lead to a number of diverse and insightful discussions among the many GOP Prez candidates.  Unlike issues like ObamaCare and the Iran deal, where all GOP voices have fairly comparable records and perspectives, all the GOP candidates (both major and minor) have very different track records and have engaged in very different forms of policy advocacy on criminal justice and sentencing issues.

In a post next week, I may start articulating specific criminal justice reform question that I think would be especially valuable to pose to all GOP candidates.  For now, I just wanted to spotight my view and hope that the 2016 campaign, as it reallt gets going, will give considerable and serious attention to criminal justice issues from start to finish.

July 29, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Wednesday, July 22, 2015

Intriguing comments on prisons from GOP candidate Ben Carson

Because I cannot quite figure out which of the current 16 GOP Presidential candidates to take seriously, I am inclined to spotlight in this space any interesting comment made by any of the candidates concerning sentencing law or policy.  Today, in this lengthy Washington Post article, I see Dr, Ben Carson recently had some interesting comments about modern prison practicalities and policies:

In addressing the young Republicans, Carson also said that he, like President Obama, had visited federal prisons.  "I was flabbergasted by the accommodations -- the exercise equipment, the libraries and the computers," he said.  He said he was told that "a lot of times when it's about time for one of the guys to be discharged, especially when its winter, they’ll do something so they can stay in there."

At the same time, Carson said that too many Americans are going to prison. "We're not doing things the right way," he said. "A lot of people that we incarcerate don’t need to be incarcerated."

After the event, he elaborated. "I think that we need to sometimes ask ourselves, 'Are we creating an environment that is conducive to comfort where a person would want to stay, versus an environment where we maybe provide them an opportunity for rehabilitation but is not a place that they would find particularly comfortable?'" he told reporters.

July 22, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (11)

Friday, July 17, 2015

Gov Christie joins growing chorus of GOP leaders urging reform of "broken" criminal justice system

Download (15)As highlighted by this Politico report, headlined "Chris Christie calls for ‘fresh approach’ to criminal justice," the only GOP presidential candidate with a long history as a federal prosecutor has now joined the ever-growing group of mainstream Republican voices advocating for significant criminal justice reform. Here are the basics of what the New Jersey Governor has to say on this front:

Chris Christie, decrying the large number of Americans in prison, on Thursday said it’s time to fix what he called “a broken criminal justice system.”

“Today, our prisons contain more people than any other nation in the world – 25 percent of the world’s prisoners,” the New Jersey governor and 2016 presidential candidate said in a speech in Camden, New Jersey. “I believe in American exceptionalism, but that’s not an achievement I think any of us want.”

Christie’s call for action came almost at the same time as President Barack Obama’s tour of a federal prison in El Reno, Oklahoma on Thursday as part of his administration’s push for criminal justice reform.

In recent months, a series of deaths of unarmed black men by white law enforcement officers, and resulting riots, has sparked a national discussion about racial tensions, policing, and the U.S. prison system. It’s given a boost to a rare bipartisan push on justice reform, especially mandatory minimum sentences that disproportionately affect minority communities.

On Thursday, Christie talked about the importance of getting violent criminals off the streets, but he said harsh prison sentences don’t solve everything. “Peace on our streets is more than just the absence of violence. Justice isn’t something we can jail our way to. Justice is something we have to build in our communities,” Christie said.

He also framed his argument in terms of conservative values. “I happen to be pro-life, and I believe very strongly in the sanctity of life,” Christie said. “But I believe that if you’re going to be pro-life, then you ought to care about life beyond the womb. An unborn child is life. But life is also that 16 year-old addict lying on the floor of the county lockup.”

Specifically, Christie pointed to his own record in New Jersey as a path forward. He said New Jersey’s drug court program works, calling it a policy that keeps people out of prison and saves money. He said if he becomes president he will replicate it on the national level.

“Drug court is about making every one of our citizens long-term productive members of society again – because we should want that for everyone,” Christie said. He said that first time offenders of non-violent crimes should get treatment and non-custodial sentencing options. He also said that when people are put behind bars there needs to be a plan for rehabilitation for when they get out.

I am particularly intrigued to hear a GOP Presidential candidate with a long history as a federal prosecutor (and whose campaign slogan is "telling it like it is") now calling our criminal justice system broken. Another long-time former federal prosecutor, Bill Otis, has frequently taken to Crime & Consequences to complain when former Attorney General Eric Holder said our current system is broken. And in a comment dialogue following his latest posting in this arena, Bill seemed to suggest that some establishment Republicans may only be pretending that they share such a view in order to get campaign dollars from the Koch brothers. But given Gov. Christie's personal background and campaign themes, I would be really surprised if he would now be saying the system is broken if he did not really believe it.

July 17, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Tuesday, July 14, 2015

In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform

Download (5)Most long-time federal sentencing reform advocates likely have long shared my concern that Wisconsin GOP Representative James Sensenbrenner was a significant impediment to achieving significant federal sentencing reform.  Indeed, as noted in this prior post, as recently as two years ago, Rep. Sensenbrenner was defending federal mandatory minimum statutes on very dubious grounds.  

But now that Rep Sensenbrenner has been working for a couple years on bipartian federal criminal justice reform, he is a co-sponsor of the important SAFE Act  (details here) and today delivered this potent testimony to the GOP-controlled House to support his call for significant sentencing reform.  Here is an excerpt from the testimonty I found especially notable and important (with my emphasis added):  

Over the past three decades, America’s federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today.  Prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable.

And yet, this increased spending has not yielded results.  More than 40 percent of released offenders return to prison within three years of release, and in some states, recidivism rates are closer to 60 percent. Several studies have found that, past a certain point, high incarceration rates are counterproductive and actually cause the crime rate to go up.

Especially among low risk offenders, long prison sentences increase the risk of recidivism because they sever the ties between the inmate and his family and community.  These are the ties we need to help reintegrate offenders as productive members of society.

These severed ties are also at the heart of the moral case for reform.  It’s not just the people in prison who are paying the punishment for their crimes.  Mass incarceration tears families apart and deprives children of their fathers and mothers.  It likely means a loss of job, possibly home, and any support he or she had within the community.

And that’s where we are with our sentencing policy — we’re spending more, getting less, and destroying communities in the process.  The system is broke, and it’s our job to fix it.

It is remarkable and a true sign of the modern sentencing times that this reform rhetoric, which sounds more like a passage from an opinion or article by Wisconsin District Judge Lynn Adelman, is coming from GOP Rep. Sensenbrenner. And the adjectives I have stressed in the quoted passage are, in my view, at the heart of the most compelling case for federal reforms and a broad response to modern mass incarceration: the current system is broken and counterproductive, irresponsible and unsustainable, but even beyond any data-driven, cost/benefit analysis, there is a powerful "moral case for reform" that resonates with the commitment to liberty, family, community and limited government that triggered the American Revolution.

Prior related post:

July 14, 2015 in Data on sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Friday, July 10, 2015

Publisher of The American Conservative explains "Why We Need Criminal-Justice Reform"

Download (14)Jon Basil Utley, who is the publisher of The American Conservative, has published in his magazine his own notable commentary headlined "Why We Need Criminal-Justice Reform: Our system incentivizes excessive prosecution and punishment — as I found out."  Here are excerpts:

Mass incarceration in America has lifted our prisoner count to 2.3 million, dwarfing that of all other nations; of federal prisoners, only 13 percent are serving time for violent crimes, while 72 percent are imprisoned for nonviolent offenses.  Altogether, Americans are held in thousands of prisons and jails.  Millions more are former prisoners or arrestees. Criminal-justice reform relates to much more than occasional killings by rogue policemen: the whole over-criminalization incentive structure driving long prison sentences and the re-sentencing of parolees in the judicial system needs publicizing and reform.  The multibillion-dollar cost of policing and jailing nonviolent offenders also takes money that our cities (or taxpayers) could well use for civilized betterment.

Our judicial system has some serious flaws, particularly its quest for guilty verdicts and incarceration.  I first learned about the drive for convictions through an experience with a former employee.  He was arrested for getting in a fight with a drunken resident in a business I once owned.  He had called the police himself after hitting the man with his nightstick during a fight.  (We knew the man was drunk from blood tests at the hospital where the man was treated and released the same night.)  The defense attorney, paid by the city, strongly urged my man to plead guilty, telling him that he would easily get off with probation and a few hours of community service.  My employee said that then he would then have a criminal record. But the attorney warned that if he went to court he risked spending years in jail. Later I learned that the attorney was paid little more to fight the charges than to have her client offer a plea bargain. I said to her that I would double whatever legal fees she earned from the court if she would defend him in pleading innocent. She agreed.

After three court dates, the other man never appeared, so my employee’s lawyer asked the prosecutor to drop the case, but the prosecutor refused.  I saw that the prosecutor wanted to collect convictions to help her own career.  Finally, after the other man missed yet another court appearance, the prosecutor agreed to drop the case.  That’s how I saw first-hand how the judicial system obtains so many guilty verdicts, which eventually result in so many imprisonments.  The system is called “meeting and pleading,” as described by former Baltimore police officer Michael Wood. And now, with computerized records, once a man has a conviction he won’t be hired by all sorts of businesses.  In fact, businesses risk being sued for “negligent hiring” if an employee turns out to be a former felon and commits another crime at work.

Reason has published about related problems with sex-offender registration.  Through plea bargaining, thousands of men are on sex-offender lists that don’t distinguish violence by strangers against minors from such “crimes” as urinating in public or exposure.  Reason notes that according to Human Rights Watch, some states’ sex-offender lists include teenagers who had consensual sex with other teens. In Pennsylvania, 14-year-olds were subject to lifetime listing as sex offenders.  The idea behind lifetime penalties for being a sex offender was the impression that most such acts were violently committed by strangers upon small children and that such offenders represented a continuing menace.  But in practice the punishment can mean a lifetime of stigma and economic ruin inflicted upon people who pose no such risk and have not committed any comparable act....

Reform is beginning, but it is very slow.  Both Republicans, who used to support mass incarceration, and Democrats, often beholden to police and prison-guard unions, have not been quick to respond.  Pat Nolan, formerly of Justice Fellowship, told me how the Obama Justice Department dawdled for years to put forward regulations to enforce the Prison Rape Elimination Act, passed in 2003, because of prison-guard union opposition.  Solitary confinement is another issue crying out for reform but also one that provides extra jobs for guards, as I was told by Jim Ridgeway, who runs SolitaryWatch.com.  A very important new group is Right on Crime, a conservative coalition supported by the Heritage Foundation, tax activist Grover Norquist, Pat Nolan, and politicians such as Newt Gingrich.  It’s now focusing on civil asset forfeiture, another egregious government abuse created in the name of fighting crime.

Slowly but certainly, Americans across the political spectrum are beginning to question and reform the criminal-justice system, even rethinking the panic-stricken measures of the past 30 years that led to so much imprisonment, so many ruined lives, and the runaway growth of police powers.

July 10, 2015 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Friday, June 26, 2015

Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders

SS-602x399As this report from The Hill details, a notable and significant group of Representatives are backing a notable and significant new federal criminal justice reform bill.  Here are the basics:

A bipartisan pair of lawmakers on Thursday unveiled a comprehensive criminal reform bill aimed at reducing the federal prison population.  The Safe, Accountable, Fair, and Effective (SAFE) Justice Act from Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) calls for new rehabilitation methods and sentencing reforms.  The bill is the result of the House Judiciary Committee's over-criminalization task force which examined ways to reform federal prisons....

Sensenbrenner said the bill was intended to reverse the staggering increase in the prison population, which has quadrupled in the last 30 years.  Despite increased incarceration and spending on prisons, recidivism still remains a problem, he also noted.  The bill applies mandatory minimums only to major crimes, and “expands recidivism reduction programming to incentivize and reward those who are working to make a change,” Sensenbrenner said....

Scott said the bill would encourage innovate approaches to criminal justice reform. “We were not interested in playing politics with crime policy,” said Scott.  He noted that 32 states had been able to reduce both crime and incarceration rates over the past five years. Calling those states "laboratories of democracy," he said the bill adopted many of those tested practices.

Scott lamented the high incarceration rate in the U.S. He said the bill aims to “direct non-violent low level, first time offenders from prison" and better acknowledge the conditions that lead to crime.  “If you address those underlying issues, you will have a better return rate than just from locking them up,” he said.

The bill also garnered support from major groups across the political spectrum. Leaders and representatives from Koch Industries, the ACLU, the NAACP, the Washington D.C. Police Foundation, Families Against Mandatory Minimums, and the Center for Criminal Justice Reform at the American Conservative Union have expressed support for the bill.

The bill is co-sponsored by Reps. Doug Collins (R-Ga.), Elijah Cummings (D-Md.), Raul Labrador (R-Idaho), Judy Chu (D-Calif.), Mia Love (R-Utah), and Scott Rigell (R-Va). “Too many of our children have gotten caught into a cycle that they can not get out of,” said Love, explaining the bill's appeal.

Rep. Rigell touted the broad coalition backing the bill, which includes Koch Industries, owned-by the Koch Brothers, who are major conservative donors. “If you think of those as two gate posts, “ he said, noting Koch Industries and the ACLU, “that’s an awfully wide gate.”

I am struggling to find on-line the full text of this important new federal sentencing reform proposal, but this summary from FAMM leads me to believe that this new SAFE Justice Act may go significantly farther (and be more politically viable) that the Smarter Sentencing Act and the Justice Safety Valve Act proposals that failed to move forward in the last Congress.  Indeed, these passages from this new Vox article, which provides the most detailed media account of the SAFE Justice bill's specifics, is prompting me to think all would-be federal reformers — including Prez Obama and his Justice Department, and especially Senators Cruz and Paul and other reform-minded GOP Prez candidates — should think seriously about giving up on the SSA and other reform bills now in the Senate in order to put all their advocacy efforts behind getting SAFE Justice passed through the House ASAP:

While Senate efforts at criminal justice reform have exposed a generational split in the Republican Party, in which young reformers like Senators Mike Lee and Rand Paul face off against old-school, tough-on-crime conservatives like Senators Chuck Grassley and Jeff Sessions, the House's bill was written by one of those old-school Republicans — Rep. James Sensenbrenner of Wisconsin — as well as Rep. Bobby Scott (D-VA).

Sensenbrenner and Scott think of the Safe Justice Act as a federal version of the criminal justice reform bills that have been taken up in state after state over the past several years, many of them under the mottos of "justice reinvestment" and "smart on crime." In their minds, they're building on what's worked in the states and are in line with reformers' emphasis on "data-driven" and "evidence-based" criminal justice policymaking.

The Safe Justice Act is a collection of dozens of different reforms. Most of them aren't terribly big on their own, but many of them overlap. That makes it really hard to estimate exactly how much the federal prison population would shrink if the bill became law. But its effect would be bigger than anything that's been introduced in Congress so far.

Many of the reforms would cut sentences for drug crimes — which reflects a growing consensus that nonviolent drug offenses aren't as bad as violent crimes. Drug prisoners are about half of all federal prisoners (unlike in states, where violent crime is the biggest cause of incarceration). That means that many of the Safe Justice Act's biggest reforms would target the largest slice of the federal population....

Most changes to prison sentences in Congress have focused on cutting mandatory minimum sentences, which force judges to sentence people to five, 10, or 20 years for certain drug crimes. But across-the-board cuts to mandatory minimums have been met with serious resistance from old-school Republicans, including Senate Judiciary Chair Chuck Grassley (R-IA). The House's solution, via the Safe Justice Act, isn't to reduce the mandatory minimums themselves — but to narrow the range of people who they apply to. Instead of someone who's convicted of trafficking a certain amount of cocaine being automatically sentenced to 10 years, for example, he'd only trigger the 10-year minimum if he were also a leader or organizer of an organization of five or more people. And even then, the bill says that judges can override the mandatory minimum if the defendant doesn't have much of a criminal history, or has a serious drug problem.

The bill would also make it possible for more people to be sentenced to probation instead of getting sent to prison. It would allow drug offenders to get probation if they'd been convicted of low-level drug crimes before. It would encourage judges to give probation to first-time low-level offenders. And it would encourage districts to start up drug courts and other "problem-solving courts"; some states have found these are better ways to treat some addicts than prison is....

Current prisoners whose sentences would have been affected by the bill's front-end reforms could apply to get their sentences reduced that way. But the Safe Justice Act would also give them another way to reduce their sentences: by getting time off for rehabilitation. Under the bill, every federal prisoner would get an individual case plan, based on what particular prison education, work, substance abuse, or other programs are the best fit for his needs. For every month a prisoner follows the case plan, he'd get 10 days off his prison sentence — meaning a prisoner with a perfect behavior record could get his sentence reduced by a third. (Prisoners serving time for homicide, terrorism, or sex crimes aren't eligible for time off, but that's a very small slice of the federal prison population.) The logic is that prisoners who want to rehabilitate themselves, and whose good behavior shows they're succeeding, shouldn't be forced to spend extra time in prison just for prison's sake.

The bill goes even further when it comes to probation — which affects many more people than prison. For every month of perfect behavior on probation, the offender would get 30 days off the end of his sentence — essentially cutting the probation term in half. If the offender violated probation, on the other hand, there would be a set of gradually escalating punishments, instead of an automatic ticket back to prison....

In the year 2015, it is extremely hard to get any sort of bill through Congress. And Sensenbrenner, Scott, and their fellow reformers have a narrow window before the presidential campaign saps Congress of any will to act it has left. So the barriers are pretty high. But this isn't, in itself, supposed to be a polarizing bill. The presence of Sensenbrenner and other old-school Republicans reflects that. And this is something that both houses of Congress have been debating for some time.

If House leadership decides to snatch up the Safe Justice Act and bring it to the floor quickly, it might give the Senate enough time to act. Maybe they'll be interested in the provisions that would make it a little harder for the federal government to treat regulatory violations as crimes; that's a pet cause of conservatives, even those who aren't otherwise committed to reforming criminal justice.

Still, House leadership might not be interested. But this is the broadest bill that's been introduced during the current wave of criminal justice reform, and it's a marker of just how much consensus there is among reformers in both parties when it comes to reducing federal incarceration.

June 26, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 24, 2015

"I know there needs to be [sentencing] reform,” Sen. Chuck Grassley says. “We need this.”

Secondary_150623_chuck_grassley_gty_1160The title of this post is the (slightly modified) subheadline of this lengthy new Politico report, headlined "Riots spur Senate look at sentencing reform." Here are excerpts:

After the Baltimore and Ferguson riots ignited nationwide discussions of race and criminal justice, a bipartisan group of top Senators is making headway on a sentencing reform compromise to release well-behaved prisoners early and reduce some mandatory-minimums.

But the fledgling proposal — yet to be committed to paper — faces potential resistance from the wings of both parties: Liberals and libertarians who want it to go further, and tough-on-crime conservatives who fear that it lets convicts off the hook.

The group, led by Senate Judiciary Chairman Chuck Grassley (R-Iowa), is writing legislation to allow convicts with low risks of recidivism to earn time off their sentences. They’re also contemplating reductions to some nonviolent drug-related mandatory minimums — and maybe even increasing others on white-collar crime in the name of sentencing equality. Talks are ongoing.

The path forward is uncertain, however. Grassley must thread the needle between his colleagues like Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) — who say the war on drugs is dead and want to ditch mandatory minimums completely — and lawmakers like Sens. Marco Rubio (R-Fla.) and Jeff Sessions (R-Ala.), who are leery of ditching all such sentencing requirements and still back a tough-on-crime mindset that dominated the GOP in the 1980s and 1990s. It also marks a transition for Grassley, who’s never been a big advocate for reducing mandatory minimums and has been labelled an arch-nemesis of criminal justice reform by newspapers back home in Iowa.

“I have different views than Paul and those guys,” Grassley said in a short interview. “They’d make you believe [people are incarcerated] for smoking one pot or one ‘roach’ … But they’re not; they’re in for a lifetime of violent crime.” “But I know there needs to be reform,” he quickly added. “We need this.”

It’s a political gamble. On the one hand, the group risks being accused of writing a watered-down overhaul; on the other, lawmakers don’t want to be accused of letting convicts off too easily. Striking a balance between those two positions has been difficult in the past — and one of the reasons such legislation hasn’t been enacted in previous congresses.

“You’ve got to be very careful,” said Sessions, a former U.S. Attorney for the Southern District of Alabama who’s already skeptical of the burgeoning deal. He launched into a lecture: “Historic criminal justice reform in the early 1980s has led to this dramatic drop in the crime rate. I mean, the murder rate is less than half of what it was — and so [mandatory minimums were] a fundamental component… I don’t want us to go further than we should in reducing sentences.”

The new compromise package comes amidst heightened inter-racial tensions following the deaths of unarmed black men at the hands of police officers. And when a young white man murdered nine black churchgoers in Charleston, S.C., because of their skin color, the nation was again plunged into discussions of race relations. “My hope is that in light of what happened in South Carolina, we think beyond the symbolism of the [confederate] flag, to changes that really show we’re committed to fairness when it comes to racial equality,” said Democratic Minority Whip Dick Durbin (D-Ill.), who is part of the compromise group.

For supporters of sentencing reform, reform is needed in the name of equality. Many mandatory minimums disproportionately affect African Americans because they are used for sentencing drug-related crimes that plague predominately lower-income, urban populations. “We’re housing too many of our citizens who are committing nonviolent crimes,” said civil rights activist Rep. John Lewis (D-Ga.). “So many people, especially, low-income people who can’t hire lawyers — and it’s not fair.”...

Over the past few years, reform negotiations have been dominated by people like Paul and more libertarian-type Republicans, as well as Democrats such as Leahy. The pair have teamed up on legislation that effectively eliminates mandatory minimums by allowing judges to override them. But the idea of eliminating mandatory minimum makes people like Grassley and his co-Republican negotiator, Sen. John Cornyn, nervous.

“Having been a judge for 13 years and attorney general, my observation is we have to be careful,” Cornyn said during a Tuesday interview in his Senate office. “Even though people may be well intentioned, there could be very negative consequences.”

The package marries provisions of two bills that passed the Judiciary panel last Congress. The first, sponsored by Cornyn and Sen. Sheldon Whitehouse (D-R.I.), another member of the group, focuses on the back end of sentencing reform by letting inmates out early and giving them tools to assimilate back to normal life. The program would only be offered for prisoners considered to have a low risk of re-offending and who do not have prior convictions. Those who have committed more serious crimes such as rape, murder or terrorism wouldn’t be eligible.

“The people coming out of prison are better prepared to re-enter society and be productive as opposed to regressing back into their life of crime,” under the program, said Cornyn, who notes that states have found positive results by implementing these sorts of programs. In Texas, Cornyn’s home state, such reductions have allowed them to close three prisons, he says. The deal would also take a page out of a bipartisan bill called “Smarter Sentencing” that would reduce mandatory minimums for drug crimes.

The compromise would leave intact mandatory minimums on violent offences as well as convictions that involve the use of firearms (an important exception for Cornyn), importing heroin and cocaine (a requirement of Grassley’s), gang involvement and terrorism, among others. “It’s narrow category of drug sentencing… but it would have a dramatic impact on the population in our federal prisons,” Durbin said.

Critics like Leahy, however, are bound to have reservations because the bill likely won’t go far enough. “Passage of mandatory minimum sentencing laws has not made us safer, but it has driven our federal prison population to historic highs — a nearly 800 percent increase in 30 years,” the former Judiciary chairman said in late April, speaking to The Constitution Project. “I oppose all mandatory minimums.”

Leahy, one of the Democrats’ lead voices on this issue, also isn’t a fan of the Cornyn bill — ultimately abstaining from voting on the measure last year because he believes it will just exacerbate racial disparity with its “high risk,” “low” designations. Paul’s office would not weigh in on the package that’s still in the works.

Other lawmakers are taking the opposite tack. When asked about such a package, Sessions on Monday ranted about “safer streets … where children can be raised,” and likened the debate to a “pendulum that tends to swing.” Rubio has also written op-eds expressing reservations about getting rid of certain minimum sentence requirements. And Grassley, whose committee staff is taking the lead on the matter, is sympathetic to those worries. In fact, it’s ironic that Grassley — who was not invited to the White House when Obama hosted Republicans to discuss this issue — is taking the lead on the compromise. Back home, the Des Moines Register called him a “stumbling block remains stubbornly in place.”

But Grassley says he’s always favored reducing some minimum sentences. He also wants to increase others, however — placing him at odds with some Democrats he’s currently negotiating with. He’d like to increase mandatory minimums on white color crimes like fraud, he says.

While they applauded the idea of allowing prisoners to earn more time off their sentences, several Congressional Black Caucus members engaged in the criminal justice reform talks threw cold water on that particular pitch. “That’s not the way to do it,” said Rep. Hank Johnson (D-Ga.). “I would oppose that for the same reason I’m opposed to mandatory minimums on other crimes: They take discretion away from the judge and put too much discretion in the hands of the prosecution.” Rep. Keith Ellison (D-Minn.) said the idea would “clearly” addresses the question of equal treatment for black and white offenders, but he has “an objection to mandatory minimums beyond the equity question.”...

Other pieces of the package still up in the air include provisions limiting asset seizures, or funding police body cameras — but Grassley worries bringing those into the negotiations at this point may hinder talks.

Cornyn suggested the group would be open to changes in committee and on the floor — so long as they don’t take the bill too far off course from the direction it’s headed, he added. And despite potential pitfalls to come, Whitehouse seemed confident they could deliver: “There’s a sweet spot for people who support reconsideration of mandatory minimums… there is a sweet spot in the middle.”

June 24, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Wednesday, June 17, 2015

As Gov Jindal talks up sentencing reform and medical marijuana in Iowa, should we wonder what "The Donald" has to say on these issues?

The question in the title of this post captures some notable news from the GOP campaign trail this week.  The seemingly more serious news is discussed in this NOLA.com article, headlined "Bobby Jindal talks medical marijuana, sentencing reform with The Des Moines Register."  Here are the details from that report:

Gov. Bobby Jindal doubled down on his commitment to sign two pieces of state legislation related to marijuana during a video interview with The Des Moines Register. "We are going to sign both bills. They've made it through the process. They are going to make to my desk in the next few days," Jindal told The Des Moines Register....

Jindal backs legislation to establish a framework for access to medical marijuana in Louisiana. Technically, medical marijuana has been legal in the state for years, but there's never been rules written to regulate growing, prescribing or dispensing it. The new law, should Jindal sign it, would set up those regulations. "Look, if it is truly tightly controlled and supervised by the physicians, I'm ok with that," Jindal said.

The governor also said he would approve a bill that reduces maximum sentences allowed for many types of marijuana offenders. As governor, Jindal said he has increased penalties for people who violent offenders -- sex crime perpetrators and others -- but is in favor of reducing penalties for people who commit nonviolent crimes. "At the federal level, I think there is a bipartisan effort to look at sentencing reform. I think that makes sense," Jindal said.

But, perhaps unsurprisingly, a decision by a high-profile individuals to throw his hat in the GOP presidential ring has garnered the most media attention this week. And this ABC News report highlights some reasons why Donald Trump's views on sentencing and marijuana reform may really be consequential in the coming months:

[T]here’s a slice of voters, not insignificant in the Republican primary race, who despise Washington and politicians more broadly. Every candidate likes to try to channel that, but none bring the bluster that Trump does.... Trump is a sideshow, but one whose act will spill on to the main stage, particularly if he earns a debate invitation or three....

From Facebook: “In the 24 hour period between 12:01 a.m. ET June 16 and 12:01 a.m. ET June 17, 3.4 million people on Facebook in the U.S. generated 6.4 million interactions (likes, posts, comments, shares) related to Donald Trump and his announcement. Note: over the last 90 days, conversation about The Donald has been generated by an average of about 39,000 unique people per day.”

June 17, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Tuesday, June 09, 2015

Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dsyfunctional death penalty

This local article, headlined "House panel voices disapproval of Wolf's death penalty stance," reports that some Pennsylania legislators are finally motivated to do something about the state's dysfunctional capital punishment system. Unfortunately, they only seem motivated so far to make an inconsequential political statement rather than actual try to fix the state's broken system. Here are the basics:

The House Judiciary Committee overwhelmingly approved a resolution that is intended to send a message to Gov. Tom Wolf that it strongly disapproves of the reprieves he has granted that delayed the execution of two convicted murderers. The resolution, approved by a bi-partisan 19-8 vote on Monday, now goes to the full House for consideration, which could occur as soon as Wednesday.

Wolf in February signed an executive order imposing a moratorium on carrying out the death penalty until he has had time to study a Senate-commissioned Pennsylvania Task Force and Advisory Committee on Capital Punishment and its recommendations are satisfactorily addressed. That study is due out later this year.

The executive order so far has resulted in reprieves being granted to Terrence Williams, who was convicted of two murders as a teen-ager in 1984, and Hubert Michael, who was convicted of killing 16-year-old Trista Eng in 1993. Both death row inmates have exhausted their appeals.

The resolution, if approved by the House, would do nothing to change those reprieves, but rather states that the House believes those actions by Wolf are unconstitutional.

"This is about whether or not the laws of Pennsylvania will be carried out. The governor has said he wants to study capital punishment. It does not give him the right to ignore existing laws," said Rep. Mike Vereb, R-Montgomery, a death penalty proponent who sponsored the resolution. Following the House Judiciary Committee's approval of a resolution condemning Gov. Tom Wolf's temporary moratorium on executions, Vereb explains he and the governor are of different minds on the subject of the death penalty. Vereb said justice delayed is justice denied to victims....

Rep. Brandon Neuman, D-Washington, ... said Vereb's concerns would be more appropriately expressed in an amicus brief to the pending lawsuit filed by Philadelphia District Attorney Seth Williams that is before the state Supreme Court over this issue. "This is a matter that I believe needs to be handled and is being handled in the judiciary branch," Neuman said....

Committee Chairman Ron Marsico, R-Lower Paxton Twp., read a letter from Eng's family sent to the governor last week. In it, the family of the York County murder victim stated, "You stand in the way of thousands of victims who seek justice." Marsico added, "We owe it to the victims to pass this resolution."

I generally agree with the basic sentiment that justice delayed is justice denied, but that very sentiment makes me wish that the Pennsylvania legislature would do more to addresss death penalty administration than just pass resolutions. As noted here, even before Gov Wolf's moratorium, the Keystone State had not carried out an execution in more than 15 years and "according to Bureau of Justice Statistics, Pennsylvania is less likely to execute a death row inmate than any other state that has carried out any executions."

In light of this ugly legal history, nearly all of which pre-dates Gov Wolf's election, I think the Pennslyvania House owes a lot more to victims than just passing a seemingly inconsequential resolution. Any and all serious proponents of the death penalty in the Pennsylvania legislature should feel duty-bound to conduct the hard work involved in fixing and making operational a broken capital system. But, because politic rhetoric so often matters more than policy fixes, I fear justice delayed and justice denied will remain the Keystone capital characteristic.

June 9, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Tuesday, June 02, 2015

Might Charles Koch put big money behind big reform of federal clemency process?

Post - March 2013 (5)The question in the title of this post is prompted by this notable new USA Today article headlined "Koch urges Obama administration to speed up clemency program." Here are excerpts:

Billionaire industrialist Charles Koch and top officials in his company are calling for the Obama administration to release from prison the thousands of non-violent offenders who qualify for clemency under a Justice Department initiative.  The push to shorten long federal sentences, mostly for drug offenses, has had a sluggish start since it was announced in April 2014. President Obama has commuted the sentences of only a few dozen inmates since the program took effect.

"I'm not faulting the administration," Mark Holden, Koch Industries' senior vice president and general counsel told USA TODAY on Monday. But, he said, "people got their hopes up. Why isn't it going any faster?"

Koch Industries officials did not offer a specific policy changes but hope their statement of unequivocal support for the clemency initiative will focus attention on the program. "When Charles says something … it helps to highlight the issue and bring other like-minded people to the table," Holden said.

Charles Koch, whose multibillion-dollar industrial conglomerate is one of the nation's largest private companies, has an outsize influence in Republican politics. His expansive network plans to spend about $900 million ahead of 2016 elections — about $300 million of which will be spent on electoral politics, he said. Koch also recently told USA TODAY that he might financially support up to five Republican presidential contenders in next year's primary: Wisconsin Gov. Scott Walker, former Florida governor Jeb Bush and Sens. Ted Cruz of Texas, Rand Paul of Kentucky and Marco Rubio of Florida.

"We're going to be supportive of those candidates who are supportive of the issues that are important to us," Holden said Monday, when asked what role the clemency issue might play in the 2016 race. Criminal-justice reform, he said, is a key part of Koch's "freedom framework." Holden noted that Paul and Cruz have pushed for changes to the system. Both have signed on to a Senate bill that would cut mandatory minimum sentences for drug offenses....

Lawyers involved in the clemency initiative say the process has been slowed, in part, because the eligibility standards may be too tough for the inmates to meet. The main targets of the program are drug offenders who were sentenced under a strict crack-cocaine law that was eased by Congress in 2010. To be eligible, inmates must be non-violent offenders who already have served 10 years and would have received shorter prison terms had they been sentenced under today's laws. They also must have a record of good conduct in prison and no significant criminal history....

More than 30,000 federal inmates applied for representation through the Clemency Project 2014, a consortium of legal organizations, including the American Bar Association and The National Association of Criminal Defense Lawyers, that are helping eligible inmates seek commutations.

Justice Department officials did not immediately respond to a request for comment Monday but have said they are likely to recommend more commutations to the White House. The administration also has requested a 66% budget increase for the Justice Department's Office of Pardon Attorney, which reviews the clemency requests.

Holden and Koch Industries spokeswoman Melissa Cohlmia said company officials decided to publicly support the clemency initiative and call for the faster release of inmates after receiving requests both from organizations and individual inmates, seeking Koch support for clemency applications. In a statement, Holden said Koch and the company back both the program and the Obama administration's eligibility criteria. He said the company also would like to see Congress revise more laws to cut prison time for inmates who would have received shorter terms had they been sentenced today.

"Until there is a change in that legal process, we believe that everyone who meets the common-sense criteria set by the Department of Justice should be granted clemency," Holden said in the statement. "We do not believe that keeping these individuals in prison under these circumstances is just nor does it enhance public safety."

I am always pleased to see prominent folks like the Koch brothers, and others who talk prominently about the importance and virtues of freedom, bringing their message to the criminal justice arena and pushing for reforms. I am especially pleased to see Koch Industries prominently "throwing its weight around" in support of more federal clemency grants ASAP. That all said, though, I would really like to see the Koch brothers start prominently throwing some money around to engineer systemic changes to clemency procedures and politics.

Together, the Koch brothers are estimated to be worth $80 billion; a high-profile investment of just, say, .01% of these riches spent on creating and staffing what I might call a "Supernova Federal Clemency Institute" could and would go a long way to transforming the modern clemency conversation.  I am branding this suggested clemency effort on the kind of stellar explosion that briefly outshines an entire galaxy, radiating as much energy as possible before burning out: a "Supernova Federal Clemency Institute," especially if funded by just .01% of the Koch fortune ($8 million), would explode on the clemency scene and could burn very bright for the final 18 months of the Obama presidency.

With $8 million in resources (and perhaps more coming from others committed to personal freedom in the United States), the "Supernova Federal Clemency Institute" could hire and effectively compensate a staff of lawyers, researchers and advocates who surely could produce, perhaps in a matter of weeks, a robust list of meritorious federal clemency candidates.  This imagined "Supernova Federal Clemency Institute" also could work on rentry project for those granted clemency, could produce reports on best-practices in the states, and could make recommendations to the President and to Congress about how best to ensure federal and state clemency procedures are enduringly committed to helping "secure the blessings of liberty to ourselves and our posterity."  

June 2, 2015 in Clemency and Pardons, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Monday, June 01, 2015

"The GOP should turn its attention to prosecutorial misconduct"

The title of this post is the subheadine of this notable new National Review commentary authored by Kevin Williamson.  The provocative main headline for the piece is "When District Attorneys Attack," and here are excerpts:

Prosecutorial misconduct is a plague upon these United States, from the vodka-pickled Democratic political jihadists in Austin to California, where judges complain of an “epidemic” of prosecutorial misconduct abetted by Democratic attorney general Kamala Harris, who is seeking to replace retiring Barbara Boxer in the Senate.

The Democrats have long been acculturated to the climate of corruption that attends government agencies that are largely free of ordinary accountability, where a carefully cultivated lack of transparency shields operatives from scrutiny and normal oversight. Republicans can rouse themselves to action, if only barely, when this involves the federal Internal Revenue Service or Environmental Protection Agency.  But deference to police agencies and prosecutors is so habitual among the members of the law-and-order party that they instinctively look for excuses when presented with obvious examples of police misconduct, and twiddle their thumbs in the 99 percent of cases of prosecutorial misconduct that do not involve a Republican elected official.

But only the Republican party has the credibility and the political capital to take on the difficult and sure-to-be-thankless task of reining in rogue police agencies and abusive prosecutors — and they may as well take a look at our scandalous prisons while they are at it.  Some Republican leaders, notably Texas’s former governor Rick Perry, have been active and energetic partisans of reform, largely under the banner of the excellent Right on Crime campaign.  But this is not really a job for presidents or even governors: This is a job for mayors, city councilmen, district attorneys, sheriffs, and police chiefs.

June 1, 2015 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, May 29, 2015

Highlighting that GOP candidates are so far way ahead of candidate Hillary Clinton on mandatory minimum reforms

Jacob Sullum has this new Reason posting which highlight that, so far, two high-profile Republican candidate for President have had more interesting and important things to say about mandatory minimum reform than the presumptive Democratic nominee.  The piece is headlined "Paul and Cruz Are Running to Clinton's Left on Sentencing Reform: The presumptive Democratic nominee wants to do something about mandatory minimums but won't say what." Here are excerpts:

In its story on the repeal of Nebraska's death penalty,The New York Times notes that "liberals and conservatives have been finding common ground on a range of criminal justice issues in Washington and around the country." One example it cites: "On the presidential trail, Hillary Rodham Clinton and Senators Ted Cruz and Rand Paul have all called for easing mandatory minimum sentences." That is literally true, but the implied equivalence is misleading, since the two Republicans are advocating specific reforms, while Clinton has not ventured beyond vague generalities...

Although Clinton refers to "measures," she cites just one: the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, which she cosponsored six months after it was introduced. That bill, which would have eliminated the sentencing disparity between crack cocaine and cocaine powder, did not go anywhere. Three years later, Congress almost unanimously approved a law that reduced crack penalties, although they are still more severe than the penalties for powder. If you combine Clinton's talk about reform with her end note referring to the 2007 bill, you might surmise that she thinks the smoked and snorted forms of cocaine should be treated the same. But as far as I know she has not said that explicitly or endorsed any other specific change in sentencing.

By contrast, Paul on Cruz are both on record as supporting substantial sentencing reforms, including, in Paul's case, effectively abolishing mandatory minimums. "I am here to ask that we begin today the end of mandatory minimum sentencing," Paul said at a Senate Judiciary Committee hearing in 2013.  On Bill Maher's HBO show last fall, Paul declared, "I want to end the war on drugs because it's wrong for everybody, but particularly because poor people are caught up in this, and their lives are ruined by it."  I have never heard Clinton take a position halfway as bold as those, and I doubt I ever will.

It is pretty striking when self-identified conservatives seeking the Republican presidential nomination are more credible on criminal justice reform than the presumptive Democratic nominee.  Paul in particular is not only bolder than Clinton on this issue, which is traditionally identified with left-leaning Democrats, but more passionate as well. 

May 29, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Wednesday, May 27, 2015

Senator Paul talking about crime and punishment in Chicago

As reported in this Chicago Tribune article, headlined "Rand Paul in Chicago: Crime 'not a racial thing, it is a spiritual problem'," the most interesting man in sentencing politics had lots of interesting things to say about crime and sentencing in the Windy City today. Here are some details:

U.S. Sen. Rand Paul brought his presidential campaign to Chicago on Wednesday, appealing to African-Americans on the South Side, entrepreneurs downtown and Republicans in the suburbs. On a stage set up on a blacktop parking lot in front of an American flag mural at 66th Street and South Martin Luther King Drive, Paul continued a unique approach for GOP White House contenders — making an appeal to African-Americans who tend to favor Democrats....

"There is crime going on all across America. It is not a racial thing, it is a spiritual problem," Paul said. "I think government can play a role in public safety, but I don't think government can mend a broken spirit. Government can't provide you salvation, government can't save you. … Ultimately, salvation is something you accept yourselves."

A white, libertarian Republican senator from Kentucky urging African-American voters in an impoverished, heavily Democratic neighborhood on the South Side to look within themselves to "find your inner grace" isn't a typical scene in a GOP presidential bid. Paul, though, isn't running a conventional campaign. His stop in Chicago came a day after the release of his book "Taking a Stand," in which he makes the case for a new, more inclusive Republican Party, proclaiming the "Republican brand sucks."

On Wednesday, Paul sought to bring that theme to the stump. He advocated for reclassifying nonviolent felonies to misdemeanors as part of his call to end "mass incarceration" in America.

"We've got to rethink the war on drugs. We've got to find a better way," Paul said. "We've got to treat drugs as a health problem, not an incarceration problem."

Paul also called for providing "second chances" for felons to vote and seek jobs. And he pitched a tax-cutting program for businesses in low-income areas. "If you want more jobs in your communities, if you want more businesses in your communities, we can't keep doing the same thing," Paul said. "For years, we've had this war on poverty and all we have is more poverty."

May 27, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, May 09, 2015

"Pressure builds on GOP for police, criminal justice reforms"

The title of this post is the title of this recent lengthy Politico article.  Much of the article discusses debate over possible federal involvement in state and local policing reforms.  But, as these passages highlight, federal criminal justice reform is part of the current mix in congressional reform discussions:

Pressure is mounting on Republican congressional leaders to take up criminal justice and police reform legislation — and the calls are increasingly coming from within the GOP.

Republican leaders haven’t yet decided how to proceed on an issue conservatives typically have not treated as a priority. But with outrage over police killings of African-Americans dominating the news, an increasing number of rank-and-file GOP lawmakers say doing nothing is no longer an option. 

Sheriff-turned-Rep. Dave Reichert (R-Wash.) wants Speaker John Boehner (R-Ohio) to set up a new select committee on the issue. Sen. Tim Scott, a black South Carolina senator, is pushing for more body cameras. And Senate Majority Whip John Cornyn (R-Texas) is eyeing a commission to study problem areas in criminal justice....

“We are doing a great disservice to ourselves and to everyone else so clearly frustrated by the status quo if we isolate Baltimore or Ferguson as just individual instances of civic unrest … if we don’t step back and see how they fit into the broader issue of our entire criminal justice system,” Cornyn said on the Senate floor Wednesday.

The Senate’s No. 2 Republican was advocating for a criminal justice overhaul. In addition to the bill to start a national commission, he’s sponsoring bipartisan legislation to allow well-behaved prisoners to earn time off their sentences.

It’s a different take on another proposal floated by President Barack Obama and Republicans alike: reducing mandatory minimum sentences on nonviolent drug related crimes, which are cited as one of the major reasons many black men from urban settings end up behind bars.

Leadership is listening but has not committed to a course of action. Boehner on TV last week, for example, retorted, “Why not?” when asked if the federal government should “chip in” for body cameras. Leaders in both chambers are waiting to see what their top law enforcement legislators say first. Both Judiciary Committees are already discussing what needs to be done and are scheduling hearings for the next few weeks....

For now, most of the work will focus on committees like Grassley’s, which seem to be sticking to areas with more consensus, like mandatory minimums and body cameras. During a recent speech, Grassley also floated a pitch to require states to give those charged with a misdemeanor counsel in court, and to reform a nationwide database that allows potential employers to find out if applicants were ever arrested — and use it against them even if they were released without charges.

Some recent related posts:

May 9, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, May 06, 2015

"On Criminal Justice Reform, Ted Cruz Is Smarter Than Hillary Clinton"

The title of this post is the effective title of this piece by Jacob Sullum appearing last week at Reason that captures my reaction to two of the notable essays in this fascinating Brennan Center publication titled "Solutions: American Leaders Speak Out on Criminal Justice."  Here are excerpts from Sullum piece explaining why criminal justice reforms might reasonably be more excited by the prospect of a Prez Cruz rather than another Prez Clinton:

The Brennan Center [book] ... features worthy and substantive contributions from, among others, Sens. Rand Paul (R-Ky.), Cory Booker (D-N.J.), and Ted Cruz (R-Texas), not to mention nonpoliticians such as UCLA criminologist Mark Kleiman and Marc Levin, founder of Right on Crime.  Even New Jersey Gov. Chris Christie, who is not exactly thoughtful on the subject of, say, marijuana legalization, has some interesting things to say about bail reform.  And then there are former President Bill Clinton, Vice President Joe Biden, Wisconsin Gov. Scott Walker, Sen. Marco Rubio (R-Fla.), and former Secretary of State Hillary Clinton, who either support policies that contribute to overincarceration and excessive punishment, fail to acknowledge their past support for such policies, or have nothing specific to say about how to correct those policies....

Hillary Clinton ... notes that as a senator she supported shorter crack sentences (as did almost every member of Congress by the time a bill was enacted in 2010).  But unlike Paul, Booker, and Cruz, who describe actual pieces of legislation they have either introduced or cosponsored, Clinton is decidedly vague about what reforms should come next.

Clinton wants us to know "it is possible to reduce crime without relying on unnecessary force or excessive incarceration," which may sound wise but is actually a tautology. Instead of unnecessary force or excessive incarceration, she suggests, "we can invest in what works," such as "putting more officers on the streets."  Clinton, her husband, and Joe Biden all seem to agree that you can never have too many cops.  She also mentions "tough but fair reforms of probation and drug diversion programs," along with more money for "specialized drug courts and juvenile programs."  That's about as specific as she gets.

Clinton fills out the essay with platitudes and self-aggrandizing references to Robert Kennedy and "my friend" Nelson Mandela.  She also name-checks "Dr. King."  Possibly all three of these men have something to do with criminal justice reform, but if so Clinton never bothers to elucidate the connections.  It is sad that the Democratic Party's presumptive presidential nominee would offer such a shallow discussion of a subject on which Democrats are supposed to be more enlightened than Republicans. By contrast, three less prominent Democrats — Booker, former Maryland Gov. Martin O'Malley, and former Virginia senator Jim Webb — contributed essays that are actually worth reading.

Clinton's essay is especially embarrassing compared to Ted Cruz's.  Although Cruz is not as passionate, active, or ambitious on criminal justice reform as Rand Paul is, his essay includes succinct and informed discussions of the bloated federal criminal code, the leverage that mandatory minimums give prosecutors, and the virtual disappearance of trial by jury in criminal cases, along with specific reforms to address these problems.  Democrats who think Hillary Clinton is savvier or smarter than Cruz may reconsider after reading these essays side by side.

Recent related posts:

May 6, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 28, 2015

Highlighting GOP leaders' notable new essays on criminal justice reform

As reported in this prior post, the Brennan Center for Justice today released this fascinating new publication titled "Solutions: American Leaders Speak Out on Criminal Justice" composed of essays by over twenty high-profile politicians and policy-advocates.  I find especially interesting and important the essays authored by GOP leaders because many members of the Republican Party have, generally speaking, until recently been less likely to vocally advocate for nationwide criminal justice reforms.  For that reason, I thought it worthwhile here to provide links just to those Solutions article authored by seven GOP leaders (going in alphabetical order):

April 28, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, April 22, 2015

Is there a "growing movement against death penalty – on the right"?

The question in the title of this post is prompted by this notable new press article with this full headline: "Nebraska highlights growing movement against death penalty – on the right: Seventeen Republican lawmakers seek abolition of capital punishment in the state as Christians, conservatives and libertarians band together for change." Here are excerpts:

A growing coalition of Christian, fiscally conservative and libertarian lawmakers are pushing to repeal the death penalty in some of America’s reddest states. And after years of working against state-sponsored executions, historically a Democratic platform, some conservatives say they believe the efforts are gaining traction.

The push for reform was on full display last week in Nebraska, as 17 Republican lawmakers in the one-house legislature advocated for passage of abolition bill LB268. “I know many of you, when you went door to door, you said to the constituent you talked to: ‘You send me to Lincoln, [Nebraska,] and when I get down there I’m going to find government programs that don’t work, and I’m going to get rid of them,’” Senator Colby Coash told fellow lawmakers. “And that’s exactly what LB268 does … We can get justice without this method.”

The bill passed its first hurdle with a 30 to 12 vote in favor of repeal, potentially enough to override Republican governor Pete Ricketts’ veto threat. Two more successful votes are needed to send the bill to the governor’s desk, and there is strong opposition, including filibuster threats, to overcome. Still, conservative advocates said they believe it is one of the most promising developments in decades.

“We’re probably in the best position we’ve been in since the bill passed in 1979,” said Stacy Anderson, the conservative executive director of Nebraskans for Alternatives to the Death Penalty, about the last time the state’s legislature passed an abolition bill. “From the conservative standpoint, the death penalty fails on all of our core values.”...

Republicans are still the most likely group to support capital punishment, with 77% in support of the death penalty. Still, conservative activists point to the 10% decrease in Republican support over 20 years, growing support for life without parole as an alternative to the death penalty, and the issue’s low priority ranking among voters.

The most widely cited reasons for opposing the death penalty seem in line with some of the most fervent strains of American Republicanism: fiscal conservatism, pro-life principles and small government ideals. And with increasing scrutiny on states that continue to execute prisoners despite a shortage of lethal injection drugs, the issue appears poised to continue to attract attention.

“It’s a government program that risks innocent life, costs more than the alternative, and is certainly not about limited government,” said Marc Hyden, an outreach specialist with Conservatives Concerned About the Death Penalty. “When I’m first speaking, I think conservatives give me kind of a weird look,” said Hyden. “But about halfway through the presentation, it starts clicking with them – that this is a program that just doesn’t mesh with conservative ideals.”

The campaign has seen growing interest in red states such as Georgia, Kentucky, Kansas and Tennessee, both Hyden and abolitionists said.

In Montana, a fiercely conservative state, a death penalty abolition bill made it out of the House judiciary committee for the first time perhaps ever, according to death penalty abolition advocates there. “I was shocked,” Moore told the Missoulian. “I didn’t expect it to come out of committee.” At the time that the bill passed to the floor, a stunned Moore described it as having “a tiger by the tail”. The abolition bill failed in a vote on the house floor, but many see its progress out of the judiciary committee as nothing short of stunning. “We were very excited,” said Jennifer Kirby about the bill’s progress. “It’s about time.”

April 22, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, April 08, 2015

Notable new attacks on Senator Rand Paul from (conservative?) folks at Crime & Consequences

I often view the "who, when and how" of criticisms of political figures to be a more telling indication of the importance of a politician than the substance of the criticism.  Given that perspective, and the fact that the bloggers at Crime & Consequences are among the most influential and effective advocates of "tough-on-crime" ideas and rhetoric, I find quite notable that two different C&C bloggers yesterday posted quickly these three critiques of GOP Senator Rand Paul and his efforts to become the 2016 Republican nominee for President:

The first C&C post linked above asserts that Senator Paul's criminal-justice-reform commitment "sets him apart from most Republican voters," and the last post linked above asserts that Senator Paul's statement in his Prez candidacy launch speech (basics here) reflects a stunning measure of "ignorance and stupidity."  Wowsa.

I suspect most of the C&C bloggers typically cast votes in GOP primaries, and I am now pretty confident that Senator Paul should not be counting on them for support.

Prior related posts:

April 8, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, March 04, 2015

"Do the Koch Brothers Really Care About Criminal-Justice Reform?"

The title of this post is the headline of this notable new Atlantic piece by Molly Ball exploring what to make of the recent emphasis on criminal justice reform coming from politically-savvy billionaires.  Here are excerpts:

Here is the thing the Koch brothers wish their critics understood: They just want to help people. "Everything we do is designed to help people improve their lives, whether you're talking about our business or our philanthropy," Mark Holden, the senior vice president and general counsel for Koch Industries, told me recently from his office in Wichita, where the multibillion-dollar international manufacturing conglomerate that Charles and David Koch inherited from their father is headquartered.  "We think a free society, consistent with classical liberalism and individual liberties, is the key to success for everyone, and that's what drives a lot of our activities. And criminal-justice reform is good for all of us — the rich, the poor, and everyone else."

Though the Kochs are best known — and, to liberals, notorious — for the massive amounts of money they pour into politics, they have lately been calling attention to a less polarizing crusade: an attempt to address what they term "the overcriminalization of America." But not everyone is convinced that their efforts are quite so sincere.

Critics such as Robert Greenwald, director of the documentary Koch Brothers Exposed, suspect that the push to roll back the criminal code is really just the brothers' deregulatory agenda by another name.  Indeed, Charles Koch, the company's chairman and CEO, has said he became interested in criminal-justice reform after a grand jury's 1995 indictment of a Koch refinery in Texas for 97 felony violations of environmental law.  The company spent six years fighting the charges and eventually settled with the government for $10 million. Seen in this light, the criminal-justice pitch is just another attempt to manipulate the political process to advance the company's financial interests.  That's the view of the liberal group American Bridge, which maintains the anti-Koch "Real Koch Facts" website. "Their own bottom line isn't just an important factor in their activity, it's the only thing," a spokesman for the group, Ben Ray, told me.

This is the question that has always swirled around the Kochs and their political efforts — the massive juggernaut of funding for conservative activism and candidates that critics dub the "Kochtopus": Are the brothers sincere ideologues dedicated to a libertarian vision for America? Or are they simply trying to tilt the political system to favor themselves and their companies?

Various tentacles of the Kochtopus have been involved in criminal-justice issues for about a decade; during that time, Charles Koch has quietly made contributions amounting to seven figures to the National Association of Criminal Defense Lawyers, money that has been used to provide lawyers for poor defendants. In 2011, the group honored Koch Industries with its annual Defender of Justice award. "They are in complete agreement with us on the fundamental policy — to make the Sixth Amendment a reality for every person in the country," said the association's executive director, Norman Reimer.

But the Kochs' advocacy has become more vocal in recent months, from public statements to new partnerships with such groups as Families Against Mandatory Minimums, the American Civil Liberties Union, and even the liberal Center for American Progress. The bid for more attention for the reform effort has received overwhelmingly positive attention, and coincides with a new PR push to show Koch Industries in a friendlier light, including a "We Are Koch" national television campaign that casts the company as heartland job creators — prompting the Kochs' critics to suspect a whitewash.  After all, the investment in criminal-justice reform pales in comparison to the hundreds of millions the Kochs and their donor network have spent electing Republicans, many of whom don't share their views on civil liberties, Greenwald noted.  "Certainly the scales tip against the impact of this, except from the press point of view," he said of the reform push.

And yet the Kochs have found many willing partners on the left for this effort, even among their erstwhile critics.  In 2011, the civil-rights activist and former Obama administration adviser Van Jones cited the Kochs as emblematic of the "economic tyranny" plaguing America, declaring, "We will not live on a national plantation run by the Koch brothers." He appears in the Koch Brothers Exposed (tagline: "The 1% at its very worst").  But Jones has welcomed the Kochs' support for his new Cut50 project, which aims to halve the prison population over the next decade. At a recent panel discussion in Washington, he sat next to Holden and gave him a hug. Koch Industries has agreed to participate in an upcoming conference Jones is sponsoring on prison reform.  When I asked Jones if it made him uncomfortable to team up with people he's previously depicted as villains, he responded, "When you've got more than 2 million people behind bars, I'll fight alongside anybody to change those numbers."...

To allies like Jones, it doesn't matter whether the Kochs are acting in good faith as long as their assistance stands to help the cause.  In a neat illustration of the way this issue crosses partisan lines, the ACLU's campaign against mass incarceration is supported by both the Kochs and liberal financier George Soros's Open Society Foundation.  Anthony Romero, the ACLU's executive director, acknowledged that some of the group's liberal members aren't thrilled about the Koch partnership: "There's always some unhappiness whenever you work with, quote-unquote, the enemy," he told me.  But particularly with Republicans in control of Congress, he said, validation from the likes of the Kochs is the key to moving the issue forward.  "Having the Koch brothers involved fundamentally changes the landscape. It gives legitimacy to this issue as a proper field of inquiry for Republican political leaders," he said.

The Kochs' activism fits within a broader trend on the right. Where once Republicans could reliably be stereotyped as tough-on-crime and Democrats as squishy bleeding hearts, recent years have seen many in the GOP question the old dogma of lock-'em-up, spurred by the party's increasingly libertarian bent and a desire to control spiraling prison costs. The 2012 Republican Party platform discarded its old plank endorsing the War on Drugs for one that emphasized prisoner reentry and rehabilitation; at the 2014 Conservative Political Action Conference, then-Texas Governor Rick Perry headlined a criminal justice panel at which he urged, "Shut prisons down. Save that money." As The Nation noted approvingly, Perry "has become one of the more aggressive prison reformers in the country," and he's been joined by Republican governors or former governors in Pennsylvania, Ohio, and New Jersey....

Holden, the Koch counsel, is a spike-haired Massachusetts native who once worked as a jail guard—seeing youths from his blue-collar neighborhood on the other side of the bars, he says, made a deep impression. He takes issue with the notion that the Kochs only want to pad their own pockets, pointing out that they take many positions "contrary to our short-term economic self-interest."

Some prior related posts on Koch family efforts in support of criminal justice reform:

March 4, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, February 24, 2015

Two notable and timely new reform reports from The Sentencing Project

Via an e-mail from The Sentencing Project (reprinted in part below), I received this summary (with links) to two notable new reports from the group:

[Here are] two new reports from The Sentencing Project documenting changes in criminal justice policy in 2014 and successful advocacy campaign strategies in conservative state environments. The reforms highlighted in these reports represent approaches that lawmakers and advocates can consider to address sentencing policy and collateral consequences at the state level.

The State of Sentencing 2014 highlights policy changes in 30 states and the District of Columbia in both the adult and juvenile justice systems, including:

  • Scaling back sentences for low-level drug offenses

  • Reducing barriers to reentry, including employment restrictions and bans on public assistance

  • Eliminating juvenile life without parole

State Criminal Justice Advocacy in a Conservative Environment documents successful advocacy strategies employed in campaigns in Indiana, Missouri, and Texas. In these states, advocates achieved the following reforms:

  • Reduced enhanced penalties in drug-free zones in Indiana by shrinking the limit of zones from 1,000 feet to 500 feet, and eliminating all zones except those around schools and parks
  • Modified Missouri’s federal lifetime ban on food stamp benefits for persons with felony drug convictions
  • Closed two Texas prison facilities: the Dawson State Jail and the Mineral Wells Pre-Parole Transfer Facility

February 24, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, February 20, 2015

Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?

Long-time readers and most federal sentencing policy gurus know about the long-time discussion of the Smarter Sentencing Act.  The SSA seemingly had lots of bi-partisan support when got through the Senate Judiciary Committee in the last Congress, but the drug warriors helped ensure it did not get any further.

Now we have a new Congress with new leadership in the Senate and, as reported here, a new introduction of a new version of the SSA, the Smarter Sentencing Act of 2015.  In part because new Senate Judiciary Chair Charles Grassley has been a vocal opponent of any significant statutory drug sentencing reform, I am not especially optimistic that the new SSA has a much better chance of passage than the old SSA.  But, as the question in the title of this post highlights, the new SSA appears to have an especially prominent new advocate, as demonstrated by this press release from the office of Senator Ted Cruz tited "Sen. Cruz: Smarter Sentencing Act Is Common Sense." Here is an excerpt from Senator Cruz's remarks last week during the introduction of the new SSA:

The issue that brings us together today is fairness. What brings us together is justice. What brings us together is common sense. This is as diverse and bipartisan array of members of Congress as you will see on any topic and yet we are all unified in saying commonsense reforms need to be enacted to our criminal justice system. Right now today far too many young men, in particular African American young men, find their lives drawn in with the criminal justice system, find themselves subject to sentences of many decades for relatively minor non-violent drug infractions. We’ve seen the impact of these kind of reforms in the states, the states are laboratories of democracy. My home state of Texas implemented similar reforms and from 2005 the state of Texas has seen a 22 percent decrease in crime and a 12 percent decrease in expenditures on criminal justice....

All of us agree, if you have violent criminals, if you have criminals who are using guns, who are using violence, who are dealing drugs to children, the criminal justice system should come down on them like a ton of bricks. But at the same time we need to recognize that young people make mistakes, and we should not live in a world of Le Miserables, where a young man finds his entire future taken away by excessive mandatory minimums.

There surely are issues about which Senator Cruz and I might not always agree (even though were educated around the same time at the same two higher-education institutions). But I completely agree with his view that the Smarter Sentencing Act is a common sense reform seeking to address the real problem that "today far too many young men, in particular African American young men, find their lives drawn in with the criminal justice system [and] find themselves subject to sentences of many decades for relatively minor non-violent drug infractions."

Notably, Senator Cruz in the past has not let GOP establishment figures stop him from being an aggressive and persistent voice for legal reforms he considers important. I am hopeful that Senator Cruz will fight the good fight on the SSA and other sentencing reform measures so as not to let old establishment folks like Senator Grassley keep the SSA and other proposals from coming up for a vote in the Senate.

A few recent and older posts on the "conservative politics" of federal sentencing reform:

February 20, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, February 19, 2015

Still more bipartisan talk (and even more bureaucracy) focused on criminal justice reform

This extended New York Times article, headlined "Unlikely Cause Unites the Left and the Right: Juctice Reform," spotlights that the Grey Lady never gets tired talking about lots of other people talking about the need for criminal justice reforms.  Here is how the piece starts:

Usually bitter adversaries, Koch Industries and the Center for American Progress have found at least one thing they can agree on: The nation’s criminal justice system is broken.

Koch Industries, the conglomerate owned by the conservative Koch brothers, and the center, a Washington-­based liberal issues group, are coming together to back a new organization called the Coalition for Public Safety.  The coalition plans a multi-million­dollar campaign on behalf of emerging proposals to reduce prison populations, overhaul sentencing, reduce recidivism and take on similar initiatives. Other groups from both the left and right — the American Civil Liberties Union, Americans for Tax Reform, the Tea Party-­oriented FreedomWorks — are also part of the coalition, reflecting its unusually bipartisan approach.

The coalition will have initial backing of more than $5 million, with groups also spending independently on their own criminal justice initiatives.  Organizers of the advocacy campaign, which is to be announced on Thursday, consider it to be the largest national effort focused on the strained prison and justice system.  They also view the coalition as a way to show lawmakers in gridlocked Washington that factions with widely divergent views can find ways to work together and arrive at consensus policy solutions.  “We want to both do good policy work and try to improve the system, but also to send the message to politicians that we always ask you to work together, and we are going to lead the way,” said Denis Calabrese, the president of the Laura and John Arnold Foundation, who helped organize the coalition.

For groups traditionally considered opponents, working together has required something of a leap of faith. But they say that they see an opening and are giving the new coalition three years to demonstrate results.

Though I never want to criticize the folks interested in serious criminal justice reform and advocacy, I am not sure what is really need right now is yet another coalition or group advocating in general for reform. What is really needed is people working really hard in the trenches to move courts and legislators who are now standing in the way of significant reforms. I sincerely believe with a lot less money and in a lot less time, empowering and aiding the work of the best folks in the trenches could and should get some serious reforms achieved in a lot less than three years.

February 19, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, February 12, 2015

Cato director explains why "2015 Can be the Year of Criminal Justice Reform"

The quoted portion of the title of this post is the title of this extended commentary by Tim Lynch, who directs the Cato Institute’s Project on Criminal Justice. Here are excerpts from the start and end of the piece along with its major headings: 

Criminal justice reform appears to be one of the hot topics this year. Unlike most other policy areas, where President Obama and Republicans remain at loggerheads, criminal justice reform holds much greater promise since both political parties seem to agree that there are festering problems that need to be addressed.

Let’s explore some of the most pressing topics.

Militarized policing....

Marijuana legalization....

Sentencing reform....

Civil asset forfeiture....

Indigent defense reform....

The political climate for criminal justice reform is superb. Present low crime rates provide space for policymakers who are inclined to address this compelling need. If there is no movement on reform now, we will all look back on 2015 as a lost opportunity.

February 12, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates | Permalink | Comments (2) | TrackBack

Monday, February 09, 2015

"Inside The Koch Campaign To Reform Criminal Justice"

The title of this post is the headline of this new Huffington Post piece that reviews a modern sentencing-reform story that is surely becoming familiar to regular readers of this blog.  Here are highlights from the piece which seem to add a few new elements: 

Koch Industries, Inc., the corporation led by conservative billionaires Charles and David Koch, is holding discussions with a coalition of strange bedfellows to tackle criminal justice reform.

In conversations with people like Sen. Cory Booker (D-N.J.) and organizations like the ACLU, the Koch brothers are homing in on reducing overcriminalization and mass incarceration, as well as reforming practices like civil forfeiture.  Progressives, rather than giving the Kochs the stink eye, are welcoming their efforts.

Koch Industries general counsel and senior vice president Mark Holden told The Huffington Post that he met with Booker and his staff a few weeks ago.  The New Jersey Democrat and Sen. Rand Paul (R-Ky.) are co-sponsoring the REDEEM Act, legislation that would give states incentives to increase the age of criminal responsibility to 18, among other reforms.

"We must reform our criminal justice system. It is an urgency more and more recognized by people across the political spectrum," Booker told HuffPost in an email.  "To make change in Congress and beyond I will work with just about anyone who shares my passion for this mission -- that includes Republican members of Congress and other leaders I've begun to work with like Newt Gingrich, Grover Norquist and Charles Koch's team."...

The Kochs have outlined five pillars for reform: The right not to be prosecuted for accidentally breaking the law; fair treatment under the law; competent and fair representation; mandatory minimum reforms; and restoration of rights.

When Koch Industries leaders talk about criminal justice, they at times sound like bleeding-heart progressives.  Holden, for example, called civil forfeiture practices, where police seize assets from someone accused of a crime, "a huge, grave injustice." He also praised Attorney General Eric Holder for taking a stand against the practice, and worried about the longterm consequences of the U.S. prison system.  "[S]omeone makes a mistake sometimes and it falls on the rest of their life, because they can't get a job, they can't vote, can't get a loan, that type of thing,” he said....

[O]organizations that work on criminal justice reform say they believe the Kochs' efforts are sincere and not monetary. "I think there are some people that worry perhaps the Kochs might be prioritizing things like environmental crime, or crimes more likely to impact white people with means," said Alison Holcomb, the national director of the ACLU’s Campaign to End Mass Incarceration. "My experience so far has been that they are genuinely interested in the issues across the board."

Some prior related posts on Koch family efforts in support of criminal justice reform:

February 9, 2015 in Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 04, 2015

A positive perspective on possible prison reform emerging from Congress

This lengthy new article in The National Journal provides an interesting and informative look at the politics and people at the center of federal sentencing and prison reform discussions. The piece's headlined highlights its themes: "This Is How Justice Reform Can Actually Happen This Year: Chuck Grassley's power will change the dynamics of sentencing reform. But there's still a bipartisan way forward in the Senate." The full piece is a must-read for anyone closely following congressional reform realities, and here is how the article starts:

The rise of Sen. Chuck Grassley to the head of the Judiciary Committee has made a lot criminal-justice reform advocates nervous.

Four months ago, before Republicans took back the Senate, it appeared that reducing mandatory minimums had overcome crucial hurdles.  The Smarter Sentencing Act, which would reduce mandatory minimums for some drug offenders, passed out of committee in January 2014 and attracted a roster of high-profile backers, from former GOP vice presidential nominee Paul Ryan to progressive leader Elizabeth Warren of Massachusetts. Potential 2016 presidential candidates such as Sens. Rand Paul and Ted Cruz had decried mandatory minimums.  Even President Obama and the Koch brothers, who have spent millions against him, agreed the sentencing requirements had to be reduced.

But, like many conservatives who came to power in an era when Republicans branded themselves as the "tough on crime" party, Grassley has made it clear that he sees the steady reduction in violent crime in the United States over the last 30 years as a direct reflection of more-effective policing strategies.  And he believes that mandatory minimum laws that ensure criminals stay locked up have been key to that progress.

Grassley's posture toward mandatory minimums has given some advocates pause. "I do think we can work with him," Sen. Jeff Flake, R-Ariz., a member of the Judiciary Committee, said of Grassley.  "He knows some changes need to be made, but it does influence how far you can go if the chairman stands opposed."

In a Democratic-controlled Congress, many saw a clear path for reducing mandatory minimums.  A handful of vocal GOP supporters have continued to say justice reform should remain a key priority in the new Senate.  But with Grassley in charge, the path forward for criminal-justice reform will likely look very different.

And we may get our first true glimpse of it next week — when GOP Sen. John Cornyn of Texas introduces a rare bill that could actually get through Congress and be signed by the president.  That legislation would be similar to what was known as the Recidivism Reduction and Public Safety Act in the 113th Congress.  That bill was also bipartisan but far less contentious than the Smarter Sentencing Act among the Republican rank-and-file. Even Grassley voted it out of committee last year, where it passed 15 to 2.  Many of the same members are still sitting on the committee with a few GOP additions, including Thom Tillis of North Carolina and David Perdue of Georgia.

The bill next week will focus on transitioning prisoners back into the community after they have served their time. It requires that each inmate undergo a risk assessment to evaluate his or her propensity for recidivism.  Then it allows those deemed medium- and low-risk to earn credits for participating in programs such as job training or substance abuse counseling.  Certain well-behaved and low-risk offenders could then use those credits to serve out the final days of their sentences under some kind of community supervision.

Grassley's office insists that it is early, and no decisions have been made on what bills will make it through the committee.  There is an attorney general to confirm and more on the committee's docket that comes before discussions about far-reaching justice reform.  But, shuffling down the hallways of the Dirksen Senate Office Building in January, Grassley rattled off his top three goals for the committee. "Juvenile-justice reform, patent trolling, and ... prison reform," he said.  "There are some things where there is a pretty good shot of getting some bipartisan agreement."  And, if the Senate GOP's No. 2 introduces the bill, it will make it harder for Grassley to ignore.

February 4, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack