Saturday, June 25, 2016

Will party platforms include commitment to reduce mass incarceration (and does it really matter)?

The question in the title of this post is prompted by this new Politico article , headlined "Civil rights groups push Dems, GOP to include sentencing reform in their platforms."  Here are excerpts:

An influential coalition of civil rights groups pushing for criminal justice reform is pressuring both the Republican National Committee and Democratic National Committee to include the issue in their respective party platforms this summer.

In a new letter, the organizations — including the American Civil Liberties Union, the NAACP, the Urban League and the Brennan Center for Justice — argue that after decades of pushing tougher crime laws, both Democrats and the GOP need a “bold break” toward policies aiming at easing incarceration rates.

“As you convene to set your respective policy agenda, we urge you to include reducing mass incarceration, while increasing public safety, as part of your party platforms,” the groups wrote in the letter, addressed to the respective party chairs and platform committee leaders and provided to POLITICO in advance of its release.

Among the policies called for by the pro-criminal justice reform groups: Revising sentencing laws so the “punishment is proportional to the crime and no longer than necessary to achieve rehabilitation and deterrence,” helping to reduce recidivism rates by promoting job training and educational programs for former inmates, and using federal funds to reward states for policies that reduce both the prison population and crime rates.  “While more is needed to fully achieve reform, including these measures in the platforms will signal a significant shift in national policy,” the organizations wrote.

Criminal justice reform has been a lingering issue in Washington, with both President Barack Obama and key Republican leaders in Congress saying they want to pass legislation overhauling sentencing laws and other prison reforms this year.  But the issue has also been a divisive one, particularly within the Senate Republican Conference, and its prospects are growing dimmer -- particularly in a contentious election year.

June 25, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Wednesday, June 22, 2016

Making the case for enfranchisement to create a "prison constituency"

Corey Brettschneider has this lengthy new commentary at Politico with this lengthy full headline: "Why Prisoners Deserve the Right to Vote: Giving inmates the vote isn’t just constitutionally the right thing to do, it could also help the country solve one of its most intractable problems." I recommend the full piece, and here are excerpts from its closing sentiments:

Perhaps the most important reason to allow prisoner voting is that prisons, not just prisoners, would benefit. Prisoners need the vote to serve as the “natural defenders” of their own interests. But in defending their own interests, prisoners could substantially improve the prison system itself.

We can start with the issue of prisoner abuse. We already know that prisoners are subject to abusive and inhumane conditions. In a 2011 ruling that held overcrowded California prisons in violation of the Eighth Amendment, Justice Anthony Kennedy wrote that in California alone, an inmate “needlessly dies every six or seven days.” Plenty of other prison practices, such as solitary confinement, are just now receiving public scrutiny, and there are likely more troubling conditions we don’t know about. Under the current system, ending abusive practices requires years of expensive litigation as prisoners sue over maltreatment and prisons adjust to the rulings. We could improve prisons much more quickly and cheaply by creating a political constituency of prison voters.

How would that work? Obama’s historical 2015 visit to a federal prison was noteworthy because politicians rarely listen to those incarcerated. A prison and jail constituency, numbering roughly 2 million across 50 states, would make it routine for politicians to hold town halls and seek ways to improve prison and jail conditions from those who are subjected to them. This is not coddling prisoners. More and more politicians are looking to reform our criminal justice system, and this would be a common sense way to help them identify needed changes.

Of course, granting the right to vote is not enough to create a robust prison constituency. Prisoners will also need to be granted the right to speak freely and receive information, both of which are rights that are often limited for prisoners currently. Superstar litigator and former Solicitor General Paul Clement has already filed a lawsuit defending the right of prisoners to gain access to news about public life. Indeed, government can be held accountable only when citizens have information about the actions of their representatives.

Many will resist the idea of a prison constituency. The point of prisons, they say, is to inflict punishment, not to allow organizing. But this is shortsighted. Prison is itself already severe punishment. The deprivation of liberty and the loss of control over everyday interaction, including the ability to see one’s loved ones on a daily basis, are all severe constraints imposed by incarceration. One can be punished without being subjected to civic exile.

Some will argue that it is enough to allow prisoners to regain their right to vote after release. But we cannot expect prisoners to be deprived of all rights and then emerge from prison ready to use them well. The new consensus around post-release enfranchisement demands a smarter way to think about prisoners’ political rights behind bars. A prison constituency with rights to vote and related rights of free speech can engage in civic activism that will continue after release. Although voters in Massachusetts saw prisoner political participation as a kind of insurrection, it is nothing like the violent insurrections that marked prisons of the 1970s. As Joe Labriola, chairman of a Massachusetts civic prison organization called the Norfolk Lifers Group, put it, “In the ’70s, we thought we could make change with violence. Our whole point now is to make prisoners understand that we can make changes by using the vote. We have the ability to move prisons in a new direction.”

Research by Avidit Acharya, Matthew Blackwell and Maya Sen suggests another reason to care about voting in prison: They show that even temporary gaps in voting will have a long-term impact on participation. If we really care about felons’ post-release political participation, it is important that they be able to participate while they are in prison....

The creation of a prison constituency is not yet on the national agenda. But the increasing end to post-felony disenfranchisement makes this a good time to think about deeper changes to the way we treat the incarcerated. In the meantime, alternative measures could move things in the right direction: We should affirm nationally and, if need be, litigate for the right of prisoners to form PACs on the model of the Massachusetts group. Although legitimate concerns exist about the impact of PAC money on politics, these committees do provide a way to further a group’s policy interests. We can no longer grant that right to non-incarcerated citizens as a matter of free speech and deny it to prisoners, who are, according to the Supreme Court, citizens no less. The backlash from Massachusetts’ citizens was from an era in which mass incarceration was lauded and prison organizing was anathema in national politics. But today, citizens from both political parties are mobilizing against the harsh prison policies of the 1990s. Giving prisoners the right to free political speech is a sensible corrective to our misguided practice of mass incarceration.

In the end, restoring these basic rights is not only the right thing to do constitutionally; it could also present positive solutions to a major national political problem. The prison system would be more effective if it were accountable to its constituents. Prisoners have often committed heinous crimes. But they remain a part of our democratic polity, and we can learn from what they have to say.

June 22, 2016 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, June 13, 2016

Notable new commentary at The Federalist talks through conservative support and opposition to federl statutory sentencing reform

Rachel Lu, a senior contributor at The Federalist, has this interesting new commentary under this lengthy headline: "We Need Sentencing Reform And This Bill Is A Good Start: The past two decades have seen ramped-up sentences for drug criminals, which have cost us billions in taxpayer money, while yielding few benefits. Let’s take this opportunity to do better." The piece usefully goes beyond the usual superficial advocacy for federal sentencing reform and digs into the debate within conservative circles about whether to support or oppose the SRCA. I recommend the piece in full, and here excerpts (with links from the original):

What’s really going on with the federal Sentencing Reform and Corrections Act? This bipartisan legislation has been in the news lately, prompting a strange and confusing exchange between conservatives who support justice reform (notably Vikrant Reddy and myself) and critics of the movement (Sean Kennedy and Jeffrey Anderson)....

Donald Trump has been comparatively quiet thus far on the crime issue. That may reflect the fact that some of his likely vice presidential candidates (most notably Newt Gingrich and Nathan Deal) have already established themselves in the pro-reform camp. Nevertheless, this initiative could still fall prey to the dreary realities of partisan base-beating. That would be sad to see, especially since justice reform is almost the only bipartisan issue we’ve got left in these bitter times.

Of course, for some that is itself a strong motive to kill the bill. They hardly even pretend to know or care about the content of the legislation itself.  Consider Jeffrey H. Anderson’s “What, are we the sort of people who work with Democrats?” rebuttal to my last essay for an example of this thinking....

[P]risons are beneficial primarily insofar as they keep dangerous people off the streets. That’s a huge benefit with respect to murderous psychopaths. Yet if we’re talking about minor, subsidiary figures in the drug trade, we should recognize they are easily replaced. Hitting small-time distributors or smugglers with decades-long sentences will not solve our drug problem.

Even recognizing those principles, it’s always best to be cautious about public safety. The Sentencing and Corrections Act is cautious. We certainly won’t be seeing the immediate release of thousands of drug criminals. Rather, the bill takes modest steps to soften some of the more drastic measures in federal drug laws.  Sean Kennedy’s recent missive cautioned against “rushing” conservative justice reform, but looking at the bill currently in front of us, I’m truly at a loss to imagine what might satisfy him if this does not....

If you’re unsure whom to trust in the justice-reform debate, consider this. Reform-minded conservatives have ideas, an agenda, and recent legislative accomplishments to their names. They’ve been elbow-deep in the relevant policy issues for many years now. By contrast, their critics can’t even seem to agree on the most fundamental point: is over-incarceration is actually a problem in America?

In many ways it’s unsurprising that this would be a fuzzy point for critics. Mass incarceration was the rock against which tough-on-crime finally foundered. For decades, conservatives called for tough, consistent sanctions as a response to rising crime and disorder. This approach did yield some benefits: crime fell through the ’80s and ’90s.

As prison populations exploded, however, the price tag likewise grew steeper, and the social effects of imprisoning about 1 percent of our population became ever harder to ignore. Crowded prisons are bad for any number of reasons. They’re miserable and unsafe (for guards as well as inmates), and they do a poor job of rehabilitating offenders.

Eventually, it became clear to policy-savvy conservatives that they needed a more multifaceted approach to crime control. Red states have been leading the way for years now in using data-driven methods to reduce incarceration without sacrificing public safety. Many of the same people and organizations have helped to craft and promote federal sentencing reform, eventually giving rise to the Sentencing Reform and Corrections Act.

As policy, it’s been an impressive effort. Politically, it requires a paradigm shift that some haven’t yet made. As the data pile up indicating that prudent reform is possible, William Otis has gone on defending large-scale incarceration, regularly repeating his maxim that a nation is judged not by its incarceration rate, but by its crime rate. That no-limit position is too drastic for most, so we see figures like Kennedy and Anderson taking softer but more confusing stances, vacillating between tough-on-crime rhetoric and vague complaints that the legislation in front of us is too quick, too drastic or too bipartisan.

Kennedy warns us, in the spirit of Otis’ critique, that the real problem with our society is the number of criminals, not the number of inmates. Then he goes on to imply that state-level justice reform has been healthy but that the federal bill somehow goes too far. (How? Why? What provisions would he change?)

Anderson implies that federal sentencing reform represents an irresponsible lapse of conservative principles, but then later concedes that some reform may be good, on the condition that we scrap the present bill and replace it with exclusively Republican-authored legislation. (Why would we do that when reform-interested conservatives have been involved in writing and promoting this bill?)

It’s hard to have a serious debate when critics are bringing so little to the table.  Through promoting successful state-level reforms, conservative justice reformers have demonstrated that they are prudent, cautious, and highly attentive to data.  Unless critics can offer something more substantive than dated political platitudes, we should trust that this statute is moving us a step in the right direction.

June 13, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

Friday, June 03, 2016

"Conservatives should celebrate Obama’s commutations"

Institute_for_Policy_Innovation_1313374The title of this post is the headline of this new Dallas Morning News commatary.  The piece is authored by Tom Giovanetti, president of the Institute for Policy Innovation, a group that explains its focus to be "on approaches to governing that harness the strengths of individual liberty, limited government, and free markets." Here are excerpts:

The White House recently announced that 58 federal inmates, mostly non-violent drug offenders, would have their sentences shortened through commutation.  This brings the total number of commutations during the Barack Obama years to 306, more than any recent administration.  And word out of the White House is that there will be more to come during President Obama’s final months in office.

Many conservatives will be initially inclined to see Obama’s commutations as the act of a liberal who is soft on crime.  But conservatives should celebrate President Obama’s commutations. In fact, as people who prize liberty and individual rights, and who are skeptical about government power, conservatives need to do a rethink on criminal justice.

It’s becoming clear that something has gone very wrong with the justice system in the United States.  Today, the U.S. has the highest incarceration rate in the world.  Too many crimes have been federalized, as opposed to being handled more locally by state and local courts.  Excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements.  And it’s dawning on people that the justice system is plagued by the same careerism and corruption that characterize other branches of government....

Taking reasonable discretion away from judges was a mistake, and it caused a shift in power from judges to prosecutors, who can select and “stack” charges involving mandatory minimums.  While judges are appointed or elected to consider both sides of a case, prosecutors are hired to convict.  It should trouble conservatives that the government side of the equation has been awarded such disproportionate power, which has clearly led to abuses.

Consider the case of Weldon Angelos, who at age 24 was arrested in Utah for selling marijuana and possessing a firearm.  Because of stacked charges with mandatory minimums, Federal Judge Paul Cassell had no choice but to sentence him to 55 years in prison.  Judge Cassell has ever since been pleading for a commutation to Angelos’ sentence, pointing out that far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences.  But the judge, who clerked for Antonin Scalia, was appointed by President George W. Bush, and who favors the death penalty, was powerless in the face of a prosecutor armed with federal mandatory minimum sentences.

Yes, our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption.  Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.”

Social conservatives should understand the need for criminal justice reform, since we believe that every human life has inherent dignity and value, and we believe in the possibility of redemption.  Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive.  Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities.  And libertarians — well, libertarians already get it.

There are many pieces to the justice reform movement, including giving judges more sentencing leeway, eliminating civil asset forfeiture, and prioritizing drug treatment and in-home monitoring of incarceration.  But commuting sentences for non-violent offenders that are far in excess of the crime is a great place to start.

June 3, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Former House Speaker (and future Trump running-mate?) Newt Gingrich helps make the case for "raising the age" for adult prosecutions

Regular readers know that Newt Gingrich has become a notable and frequent "right on crime" commentator calling for all sorts of criminal justice reforms in all sorts of settings.  And here we have another example:  this new commentary authored by Gingrich and Pat Nolan, headlined "Don’t train kids to be felons in adult jails," makes the case for limiting the prosecution of teenagers as adults in Louisiana.  Here are excerpts: 

The noted “tough on crime” criminologist John Dilulio once commented that “jailing youth with adult felons under Spartan conditions will merely produce more street gladiators.” Louisiana should heed Dilulio’s caution against locking up young petty criminals alongside violent adult criminals. The Bayou State is one of only nine states that prosecutes 17-year-olds as adults, often for the most minor of crimes (stealing a bag of potato chips, for instance).

We all can agree that breaking the law is wrong and that these teens deserve to face consequences for their actions. But tossing them into adult jails with hardened criminals just makes those bad situations worse. The research and data are clear: Adult jails are no place for teenagers, who with the help and guidance of parents are likely able to turn their lives around.

Placing youngsters in adult jails makes them more likely to be victims of rape and assault, and more likely to commit suicide. They also are likely to learn a lot more about leading a life of crime from the hardened criminals. There is a lot of truth in the notion that jails and prisons are graduate schools of crime.

In addition, the damage of this policy continues long after they are released. By treating teens differently from the majority of the country, Louisiana makes it harder for them to grow into successful adults....

Fortunately, the Legislature is working on a bill to “Raise the Age” of juvenile jurisdiction. It would assign most 17-year-olds who commit offenses to the juvenile justice system, where they would be held accountable, continue their schooling, learn critical skills and be prepared to live productive and healthy lives as law-abiding members of society. Prosecutors still would be free to choose to prosecute youth accused of more serious offenses as adults....

Raising the age would make society safer and stronger by doing away with the destructive “one-size-fits-all punishment” system we have now. Adult jails and prisons can turn teens into career criminals, and taxpayers are stuck with the bill. By raising the age of how we punish and reform young people who make minor mistakes, Louisiana will help these kids turn their lives around, will make neighborhoods safer and in the process will save taxpayers money. This is being smart on crime.

As the headline of this post highlights, I think Gingrich's continued advocacy for all sort of criminal justice reform is especially notable and important in light of the fact that he name is being brought up repeatedly as a possible running mate for GOP Prez nominee Donald Trump.  As detailed in a number of posts linked below, Gingrich has had his name on many commentaries in the last few years vocally supporting a wide array of modern state and federal sentencing reform efforts.  If Trump were in fact to select Gingrich as his running mate, I would have to rethink my belief (and fear) that the Trump campaign will be actively opposing most criminal justice reform efforts.

Prior related posts about Gingrich's criminal justice reform advocacy:

June 3, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, June 02, 2016

FreedomWorks explains why GOP opposition to federal sentencing reform is "unreasonable"

Writing at FreedomWorks, Jason Pye has this lengthy posting headlined "The Unreasonable Opposition to Justice Reform in the Senate," which gets started this way (with links in the original):

Recently, Sen. Tom Cotton (R-Ark.) gave a speech at the Hudson Institute in Washington, in which he offered his case against the justice reform effort in Congress led by conservatives like Sen. Mike Lee (R-Utah), Sen. Tim Scott (R-S.C.), and Rep. Raul Labrador (R-Idaho).  Apparently unaware of the efforts of more than 30 states, including several traditionally Republican states, Cotton ridiculously labeled the federal push as "criminal leniency."

FreedomWorks has already responded to some of Cotton's hyperbolic statements on justice reform. Unfortunately, even after proposed legislation was improved to address the concerns of a handful of senators, Cotton doubled down on his opposition in his speech. Some of the more egregious comments from his speech are in italics below, immediately followed by a response to set the record straight.

"These policies are not merely wrong. They are dangerous. They threaten a return to the worst days of the 1990s, when law-abiding citizens lived in fear of their lives. Indeed, we may be living through the leading edge of a new crime wave. Over the last two years, murders across 56 of our largest cities are up 17 percent. The numbers are even more shocking in some cities. In Chicago, murders jumped 70 percent in the first quarter of this year alone. In Las Vegas, 81 percent. In Long Beach, 125 percent."

These are deceptive words, to say the least. As Cotton mentioned, crime rates have declined significantly since the early 1990s. Pew Research found that gun-related homicides, including suicides, declined by 31 percent between 1993 and 2014. Excluding suicides, the figure is closer to 49 percent. Over the same period, the nonfatal firearm crime victimization rate declined by nearly 75 percent. A separate report released in 2013 noted that the public was largely unaware that violent crime was on the decline.

There has been much made of a "new crime wave," but it is difficult for anyone to make such a statement based on a short-term look at the data. The Federal Bureau of Investigation (FBI) publishes annual reports on crime data that offers more context and insight, rather than anecdote. Even in the midst of the decline in crime rates, the United States experienced two consecutive years in which homicide rates increased, 2005 and 2006. In 2007, the homicide rate began to decline again.

According to the last two full-year reports, crime continued to decline, almost across the board. In 2013, crime, including homicides and other violent crime, was down. The downward trend continued in 2014. The FBI hasn't released data for all of 2015; the report is not due for a few more months. The Brennan Center released a preliminary analysis of crime rates in 2015 and found that the "new crime wave," as Cotton puts it, does not exist. But even if the overall crime rate increased, it does not mean that there is some new crime wave. Again, 2005 and 2006 proved to be outliers, and 2015, if the crime rate does rise, may be just that.

June 2, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (6)

Wednesday, June 01, 2016

Are there really now lots more conservatives in lots of states "starting to question the cost and legality of capital punishment"?

The question in the title of this post is prompted by this new short Governing article with this full headline: "The Death Penalty’s New Skeptics: In states across the country, conservatives are starting to question the cost and legality of capital punishment."  Here are excerpts from the article:

It’s a government program that is prone to error, marred by long delays and far more expensive than alternative policies.  So it may be little wonder that the death penalty keeps attracting new opposition. But it’s surprising where some of that opposition is coming from. 

Over the past decade, the death penalty has been abolished in seven states. Most of those are dominated by Democrats. But the most recent is deeply conservative Nebraska, where lawmakers overrode Gov. Pete Ricketts’ veto of an abolition bill last year.  Other red states are revisiting the issue as well.   A bill to abolish the death penalty fell short by a single vote in a Kentucky House committee this year, while similar legislation actually passed the Utah Senate before failing in the House.  Last year, the Montana House killed an abolition bill on a tie vote.  A few months later, a judge there imposed a moratorium on executions, citing the difficulty of obtaining appropriate drugs for lethal injection -- an issue that has put capital punishment on hold in several states.  Litigation over delayed or botched executions compounds problems with meting out the penalty.  “Our death penalty is a joke,” Republican state Rep. Clayton Fiscus said during the debate.

The average death row inmate can cost tens of thousands of dollars a year more to house than run-of-the-mill criminals.  Prisoners who are executed can cost upward of $1 million more than those sentenced to life without possibility of parole.  “This is a program that’s so bad, the left and right can actually agree on it,” says Marc Hyden, a former field representative with the National Rifle Association who now works for an advocacy group called Conservatives Concerned About the Death Penalty....

[I]t’s indisputable that the growing corps of death penalty skeptics now includes many conservatives.  There are enough Republican legislators in Washington state ready to join with Democrats that a repeal measure there could pass, if a key committee chair would allow it to come to a vote.  “Many of us conservatives don’t trust government to launch a health-care program or fill potholes, let alone carry out life and death,” Hyden says.  “It’s the quintessential broken big-government program.”

I would not dispute that a few prominent GOP elected officials in a few states that have never had a long history of active and effective use of the death penalty may ultimately conclude (as did some in the Nebraska legislature) that it makes more sense to end rather than try to mend a rarely-applied punishment. But I do not believe any of the 17 persons who sought the GOP nomination for Prez this year had ever expressed any reservation about the death penalty either in theory or in practice.

June 1, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Tuesday, May 31, 2016

Highlighting just some of the ways that "Democratic Leadership Is Missing In Action on Mass Incarceration"

Election_donkey3The quoted portion of this post's title comes from this new commentary at The Nation authored by Inimai Chettiar and Ames Grawert. The piece carries the subheading "Sentencing reform will be a compromise between moderate and conservative Republicans, unless Democrats finally come to the table," and here are extended excerpts:

Even though it now looks like Americans will be deprived the drama of a contested Republican convention, the gathering in Cleveland could hold at least one surprise.  The Republicans are set to vote on an RNC resolution to reduce mass incarceration.  The measure asks for “reforms for nonviolent offenders at the state and federal level” and urges “state legislators and Congress to…provide substance abuse treatment to addicts, emphasize work and education, and implement policies that cut costs while obtaining better outcomes.”

Finally, Democrats may say, Republicans have woken up to mass incarceration as a 21st-century civil-rights struggle, joining what has for years been a progressive fight.  Not so fast. If the Republican Party makes criminal justice reform a priority, they’ll be the first major party to do so, ever.  Democrats need to catch up. Adding ending mass incarceration to their own platform would mark a significant step, boldly breaking with their past politics.

So what have the Democrats said about criminal justice?  Recent Democratic platforms haven’t merely been silent; they have actually called for policies creating more imprisonment, and then applauded the result.  Mentions of progressive alternatives are hard to find.

In 1992, Democrats supported alternatives to incarceration, such as “community service and boot camps for first-time offenders.” But four years later the platform went in the opposite direction. It praised mandatory “three-strikes-you’re-out” laws, truth-in-sentencing provisions that limited earned early release, and “$8 billion in new funding to help states build new prison cells.”  At the turn of the century, the party still championed “tougher punishments” as a way to fix “an overburdened justice system that lets thugs off easy,” and applauded federal funding for “new prison cells” as a major success story (a clear nod to the 1994 Crime Bill, which paid states to increase imprisonment).

More recently, in 2008 and 2012, the DNC approved language supporting “local prison-to-work programs” aimed at “making citizens safer and saving the taxpayers money,” and noting the importance of “fight[ing] inequalities in our criminal justice system.” But neither platform made any mention of sentencing reform, or reducing the number of criminal laws, even as the US incarceration rate topped the world and some states reversed course on their “tough-on-crime” policies.

This year’s Democratic presidential candidates have broken with this legacy. Both Hillary Clinton and Bernie Sanders have prominently featured prison reform in their campaigns and vocally noted that the 1994 Crime Bill, which they both supported, went too far.

Yet Democrats still lag behind. Today’s movement to end mass incarceration has largely been led by Republicans. If the federal Sentencing Reform and Corrections Act passes Congress, advocates will have Republican Senators Mike Lee (Utah) and John Cornyn (Texas) to thank for courting support for the bill and hammering out compromises with the party’s most conservative members. At the state level, Republican Governors Rick Perry in Texas and Nathan Deal in Georgia fought for and signed laws that led to sharp reductions in the prison population. In Ohio, Governor John Kasich championed and signed legislation in 2011 to expand the use of treatment in lieu of prison.

In announcing the Republican National Committee resolution to end mass incarceration, RNC member Tom Mechler claimed that “Republicans are the ones that have taken the lead on this.” That’s no idle boast — he’s right. So where are the Democrats?

A few Democrats have stepped up to champion the cause, such as Senators Dick Durbin, Corey Booker, and Patrick Leahy. But the senior party leadership — Senator Harry Reid, Representative Nancy Pelosi, and DNC chair Debbie Wasserman Shultz — have largely been mum. Other influential party voices, including Elizabeth Warren and Chuck Schumer, have done the same. To be sure, Democrats may still be haunted by the ghost of Willie Horton and the fear of being branded as “soft on crime.” And some may believe that stoutly maintaining a belief in “law and order” will secure votes.

But times have changed. Now Democrats can point to Republicans such as Lee, Cornyn, Perry, and Kasich. Even law enforcement supports reform. These conservative voices now give Democrats cover to come out strongly on the issue. And, in the wake of a national protests to reform policing, Clinton and Sanders have energized parts of Democratic electorate — African-American communities and white liberals alike — on the issue. The consensus to reduce unnecessary imprisonment has arrived. But we will never see true reform until Democrats provide a solid left flank, so that compromise lands at the center, instead of to the right.....

Criminal justice reform should be a simple step for a party that believes in progress, equality, and inclusion. It was the Democrats who fought for civil rights in the last century. If the Democrats do not raise their voice, history will record that it was the Republicans who led the civil-rights struggle in this one.

Though I am pleased to see this piece calling out failings of Democratic Party leaders like Senator Harry Reid, Representative Nancy Pelosi, and DNC chair Debbie Wasserman Shultz, this commentary still strikes me as many days too late and many dollars short. First and foremost, where is the needed criticisms of the Clintons and the Obamas, who are and seem likely to remain for some time the four most important Democratic leaders? Regular readers know I lay particular blame on the Clintons not only for consistently moving to the right on criminal justice issues for crass (and racialized) political benefits in the 1990s, but particularly for not being involved in helping to swinging the pendulum back when mass incarceration became an obvious problem in the following decade and Justice Reinvestment movements could have used an extra boost from the mainstream left. But I also blame the Obamas: the Prez (and lawyer and constitutiuonal scholar) certaintly could have and should have invested more time, energy and political capital on an array of "low-hanging" federal sentencing reform opportunities during his first Term; the First Lady (also a lawyer) perhaps could have and should have incorporated discussion of criminal justice reform into her advocacy for healthy families, service members and their families and higher education.

Second, as especially critical right now, this piece (and many others) ought to be aggressively attacking Prez Obama and other Democrats for being resistent to the federal mens rea reform that Republicans want to see included in sentencing reform efforts. I continue to be both annoyed and deeply disappointed that an issue like mens rea reform, which should be a cause championed by true liberals, has become a critical impediment to getting a sound and needed federal sentencing reform bill through Congress. I have long suspected and feared that sentencing reform would not get done this year absent Prez Obama and other Democrats being willing to work toward sound and needed mens rea reform, and yet it does not appear any real efforts are being made by anyone on the D side of the aisle.

And do not get me started on the failure of federal Democratic Leadership to see the extraordinary opportunities that state-level marijuana reforms has created in recent years for remaking the modern federal war-on-drugs narrative.  As long time readers may know, I consider effective federal and state marijuana reforms to be a critically important front in the battle against mass incarceration, and one that should have even more long-term potential and impact than modest federal sentencing reforms discussed in Congress.  But, short-sighted and fixed in their own dated views of political realities, establishment Democrats have now an impressively long record of mistakes and missed opportunities in this arena.  Sigh.

May 31, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (8)

Saturday, May 21, 2016

Despite a quarter-century being "tough," Hillary Clinton still attacked by Donald Trump as soft-on-violent-crime

As regular readers surely know, the "Clinton record" on crime and punishment issues has many elements and nuances.  See, e.g., this post from last month titled "The many challenges of a fully nuanced understanding of the Clintons, crime, punishment and the 1994 Crime Bill."  That said, one can still generally summarize the Clintons in general, and Hillary Clinton in particular, as having been significantly "tougher" than nearly all other Democrats and even tougher than a great many GOP elected officials over the last quarter century on a long list of sentencing issues ranging from the death penalty to mass incarceration to juvenile punishments to federal crack sentencing.

But Donald Trump has used the 2016 election season to demostrate time and time again that a lengthy past record can matter a heck of a lot less than a catchphrase and fiery rhetoric, and thus I was not surprised to see this New York Times headline emerge after Trump's speech yesterday to the NRA: "Donald Trump Tells N.R.A. Hillary Clinton Wants to Let Violent Criminals Go Free." Here is the context and basis for this headline:

“Crooked Hillary Clinton is the most anti-gun, anti-Second Amendment candidate ever to run for office,” he said. Mrs. Clinton has called for tightened restrictions on guns, but not for abolishing the right to own them.

Mr. Trump, whose record of sexist remarks, among other things, has left him at a potentially crippling disadvantage among female voters, polls show, appealed directly to women in his speech, imbuing his defense of gun rights with an undercurrent of fear.

“In trying to overturn the Second Amendment, Hillary Clinton is telling everyone — and every woman living in a dangerous community — that she doesn’t have the right to defend herself,” Mr. Trump said. “So you have a woman living in a community, a rough community, a bad community — sorry, you can’t defend yourself.”

If Mr. Trump’s comments seemed reminiscent of an era when crime rates were far higher — the Willie Horton ads attacking Michael S. Dukakis, the Democratic nominee, in the 1988 presidential race came to mind — they also appeared somewhat at odds with the broad bipartisan consensus on the need to reduce incarceration rates and prison populations: Mr. Trump sought to frighten voters about the idea of criminals being released from prison.

He said Mrs. Clinton’s agenda was “to release the violent criminals from jail,” freeing them to roam the streets and put “innocent Americans at risk.” He even tried out a new epithet for Mrs. Clinton: “heartless Hillary.”

I consider to be Donald Trump to be an especially shrewd political figure because he seems to have stronger instincts than a number of other GOP figures as to how best to refine the rhetorical packaging of social issues in ways that can energize the GOP base without unduly locking himself into positions from which he can effectively pivot when seeking to appeal to more moderate and independent voters. Talking about women needing the Second Amendment as a means to have access to guns for self-defense in urban areas shows off his political deftness, as does his eagerness to assert (without any firm basis) that Hillary Clinton wants to release "violent criminals."  By including the term "violent" here, Trump will still be able to eventually express support for some "non-violent" sentencing reforms.

(For the record, I expect that in an effort to make nice with various members of the GOP estabishment in Congress, Trump will at some point in the next few months express some support for some modest federal drug sentencing, civil forfeiture, and mens rea reforms.  In the wake of this NRA speech, I would expect Trump, aided by crime-and-punishment-focused folks on his team like Senator Jeff Session and Chris Christie, to eventually say the federal government can and should follow the lead of reform-oriented southern states like Texas and Georgia, but do so only after we take steps to address illegal immigration and eliminate federal gun restrictions (and perhaps ramp up the federal death penalty).  In this context, I find notable this recent Washington Examiner commentary authored by Grover Norquist and Adam Brandon which carries the headline "Congress' new bills show how conservatives are still tough on crime."  This headline suggests that conservatives are coming to see that they can and likely need to preserve their "tough-on-crime" brand as part of efforts to promote sentencing reforms.)

A few prior related posts:

May 21, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Sunday, May 15, 2016

Making the case that "criminal justice reform is a conservative effort" and a "moral imperative"

The debate over modern criminal justice reform efforts creates an interesting divide among folks on the right: some like Bill Otis make the claim that the push for reform is an "ominous ... part of our country's recent pattern of decline and retreat," while others involved with the Right on Crime movement assert conservatives should be leading the charge for robust criminal justice reform.  Regular readers will not be surprised to hear I tend to be moved more by the Right on Crime voices, and the RoC website recently highlighted this notable column at Ricochet by Nathanael Ferguson making the claim that criminal justice reform is a conservative cause.  Here is how this piece starts and ends (with links in the original):

My friend Sean Kennedy asserts in a column at Real Clear Policy that the “Bipartisan Push for Criminal Justice Reform Is Misguided.” I respectfully disagree. On the contrary, criminal justice reform is a conservative effort that is necessary to restrain government that has grown too large, powerful, and costly.

Criminal justice reform, or CJR for short, is a broad-based movement made up of numerous policy reforms taking place mostly at the state level. Texas has pioneered many of the reforms and has inspired a growing number of states to follow suit which has led to, among other beneficial results, reduced recidivism rates and lower prison costs.

CJR is a policy response to the problem of overcriminalization which can be defined as the criminalization of routine behavior that has no business being criminalized and the overly burdensome punishments that are handed down for minor infractions. Or to put it another way, we have too many statutory and administrative laws that are too vague and carry overly disproportionate penalties in contravention to the old saying that “the punishment must fit the crime.”...

Conservatives are generally suspicious of government that is too big, too costly, and too powerful.  That is, until it comes to the justice system where we seem to think it’s okay for the government to be big and powerful and spend our tax dollars like a drunken sailor.  But why should we view the justice system any differently than the rest of the government? Why should we not demand transparency and accountability?  Why should we not demand that crime and punishment be proportional?  Why should we not demand that justice-related spending be efficient and cost-effective?

The answer is that we should demand these things.  And to a growing extent we are, which is why it is mostly conservative states with Republican governors leading the way on criminal justice reform and in so doing making the system more just and less costly to taxpayers.  To be sure, some liberal lawmakers who support the movement may tend to overreach and make the leap from being right on crime to being soft on crime.  But that’s no reason to condemn the entire movement.

Criminal justice reform is not some misguided liberal effort to open the prison doors and set free everyone convicted of drug-related crimes as some opponents charge; rather it is a moral imperative for a society that values limited government, individual liberty, personal responsibility, and a justice system that is fair to victims, violators, and the taxpayers who fund it.

May 15, 2016 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, May 13, 2016

"Was 1960'S Liberalism the Cause of Today's Overincarceration Crisis?"

9780674737235The title of this post is the headline of this notable book review by Lauren-Brooke Eisen of the Brennan Center for Justice of this notable new book by Elizabeth Hinton "From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America." Here is how the review starts and concludes:

The statistics are stunning.  This very second, more than 2.2 million people sit behind bars in America.  To put this into perspective, the United States is home to the largest prison system on the planet. But corrections today encompasses more than just metal bars.  An estimated 6,851,000 people are under some sort of correctional supervision, such as probation or electronic monitoring. If you do the math, it’s about one in 36 adults.  The racial disparities are striking: according to the Sentencing Project, one in every 10 African-American men in his thirties is in prison or jail on any given day.

Elizabeth Hinton, professor of history and African American studies at Harvard University, examines how mass incarceration happened in America in her new book, appropriately titled From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America. Hinton’s approach is novel.  Most criminal justice experts cite President Ronald Reagan’s War on Crime as the driver for today’s current levels of incarceration.  Hinton argues that President Lyndon Johnson’s Great Society policies — which aimed at improving conditions for the most impoverished Americans — laid the foundation for mass incarceration and its attendant racial injustices. Reagan’s policies, she says, were merely “the fulfillment of federal crime control priorities that stemmed initially from one of the most idealistic enterprises in American history during the era of civil rights.”

This may be a surprising claim, but it is not a unique one: there are a growing number of academics today who are blaming liberals for creating mass incarceration and for the sizable racial disparities that exist in the justice system. Naomi Murakawa, political scientist and associate professor of African American studies at Princeton, made this argument in her recent book The First Civil Right: How Liberals Built Prison America.  Murakawa points to federal legislation written by liberals to reduce discretion in sentencing and parole.  The liberals’ goal was to avoid racially disparate punishment — judges, they argued, generally used their discretion in ways that hurt racial minorities.  Time has shown, however, that reducing judicial discretion only resulted in more racial disparities, as African-Americans ended up spending more time in prison as a result.

University of Pennsylvania professor of political science Marie Gottschalk, made a similar case in her 2015 book Caught: The Prison State and the Lockdown of American Politics.  Gottshalk contends that African-American advocacy groups have not always led the way in criminal justice reform and have in fact, at various points in history, supported measures that created more punitive criminal justice policies that have harmed African-Americans.  She notes that the majority of the Congressional Black Caucus supported the Anti-Drug Abuse Act of 1986, a law that notoriously, and controversially, punished crack cocaine use (a crime African-Americans are more likely to be convicted of) 100 times more harshly than powder cocaine use (which skews more white).

Building on this theme, Hinton’s well-researched book is filled with historical anecdotes painting a colorful picture of the nation’s persistent struggle with crime since President Johnson coined the phrase “War on Crime” more than fifty years ago.  A year before President Johnson declared this war, Congress passed his Economic Opportunity Act of 1964, which Hinton calls “the most ambitious social welfare program in the history of the United States."  The Economic Opportunity Act, which invested almost $1 billion in fighting poverty, would prove to be one of the most important parts of President Johnson’s War on Poverty, and his larger Great Society initiative, in which billions of dollars were spent on dozens of antipoverty programs. Hinton, however, criticizes President Johnson for not spending more money on job creation measures and revamping public schools in poor, urban areas.  What came next, in her opinion, set the stage for decades of punitive measures that ultimately resulted in today’s phenomenon of mass incarceration....

From the War on Poverty to the War on Crime is smart, engaging, and well-argued.  Its one flaw, however, is that it does not adequately recognize that many of the policies it criticizes, with 50 years of hindsight, were well-intentioned at the time – and, their implications for criminal justice aside, did a great deal of good.  It is not until the very end of the book — pages 335 and 340 to be exact — that Hinton throws some morsels of recognition their way, conceding that these policies may have been “a product of their time” and that there are “questions of intent”.  But the concession is a grudging one — Hinton writes that these questions of intent “are only relevant to a certain extent” as the real issue is to “uncover the series of decisions that made contemporary mass incarceration possible.”

The last 50 years have brought valuable research about crime, evidence-based programs, and how to improve the lives many Americans through education, community support, and mental health and drug treatment services.  To give short shrift to the well-meaning efforts of so many of the nation’s academics, researchers, and policymakers is an unfortunate blind spot in an otherwise well-researched and provocative analysis of the causes of our mass incarceration crisis.

May 13, 2016 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Friday, May 06, 2016

"Gutting Habeas Corpus: The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain"

The title of this post is the headline of this notable new Intercept piece, which gets started this way:

On the eve of the New York state primary last month, as Hillary Clinton came closer to the Democratic nomination, Vice President Joe Biden went on TV and defended her husband’s 1994 crime bill.  Asked in an interview if he felt shame for his role passing a law that has been the subject of so much recent criticism, Biden answered, “Not at all,” and boasted of its successes — among them putting “100,000 cops on the street.”  His remarks sparked a new round of debate over the legacy of the crime bill, which has haunted Clinton ever since she hit the campaign trail with a vow to “end the era of mass incarceration.”

A few days later, on April 24, a lesser-known crime law quietly turned 20. The Antiterrorism and Effective Death Penalty Act of 1996 — or AEDPA — was signed by Bill Clinton in the wake of the Oklahoma City bombing.  While it has been mostly absent from the recent debates over the crime policies of the ’90s, its impact has been no less profound, particularly when it comes to a bedrock constitutional principle: habeas corpus, or the right of people in prison to challenge their detention.  For 20 years, AEDPA has shut the courthouse door on prisoners trying to prove they were wrongfully convicted.  Americans are mostly unaware of this legacy, even as we know more than ever about wrongful convictions.  Barry Scheck, co-founder and head of the Innocence Project, calls AEDPA “a disaster” and “a major roadblock since its passage.”  Many would like to see it repealed.

If the Clintons have not been forced to defend AEDPA, it’s partly because neither the law nor its shared history with the crime bill is well understood.  AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism.  But the law was also the product of an administration that long before the Oklahoma attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as political weapon.  After the Republicans seized control of Congress in the historic 1994 midterm elections, the Clinton White House sought to double down on its law-and-order image in advance of the 1996 presidential race. In the short term, it was a winning political strategy for Clinton.  In the long term, it would help pave the way to one of the worst laws of his presidency.

May 6, 2016 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, May 05, 2016

Lots of new and notable recent state marijuana reform developments

Regular readers know they should be regularly checking out my (not-so) regular postings at my other active blog Marijuana Law, Policy and Reform for updates on marijuana reform stories.  This week there have been particularly notable reform developments in notable states from coast to coast that I thought merited highlighting here: 

Even for those folks only interested in marijuana reform as a small piece of broader criminal justice reform policies and politics, I think developments in big state California and swing state Ohio are especially important to watch.  In particular, if there were to be big marijuana reform wins at the ballot in November (e.g., if voters were to approve reforms by 60% or more) in both states --- and also, say, in at least one other big swing state like Arizona or Florida ---  I think it would thereafter prove close to impossible for the next President not to make some kind of federal marijuana reform a priority in 2017.

May 5, 2016 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Thursday, April 28, 2016

Candidate Clinton promises to "institute gender-responsive policies in the federal prison system and encourage states to do the same"

Ap_clinton_lb_151013_12x5_1600Yesterday in this post I sought readers' perspectives on whether Hillary Clinton or Donald Trump would likely end up being a "better" sentencing President. Perhaps realizing I am not the only wondering on this front, today CNN published this notable new commentary authored by Hillary Clinton under the headline "Women and prison -- the cost in money and lives." Here are some extended excerpts (with one sentence emphasized):

Mass incarceration has torn families apart, impoverished communities, and kept too many Americans from living up to their God-given potential.  But mass incarceration's impact on women and their families has been particularly acute — and it doesn't get the attention it deserves....

The United States' prison and jail population includes 215,000 women — nearly one-third of all female prisoners worldwide, and 800% more women than were in prison four decades ago.  African-American women are more than twice as likely to be in prison than white women.

But women aren't the only ones affected when they are sent to prison.  The high number of women in prison — and the long lengths of their sentences — destabilizes families and communities, especially their children.  Since 1991, the number of children with a mother in prison has more than doubled. Mothers in prison are five times more likely than fathers in prison to have to put their children in foster care while they serve their sentences.

We can't go on like this. It is time we reform our broken criminal justice system.  First, we need to reform policing practices, end racial profiling, and eradicate racial disparities in sentencing.  Second, we need to promote alternatives to incarceration, particularly for nonviolent and first-time offenders, so families aren't broken up.  We need to improve access to high-quality treatment for substance abuse, inside and outside the prison system, because drug and alcohol addiction is a disease, not a crime — and we need to treat it as such.

And third, we need to be deliberate about understanding the different paths that can land women in prison, be more attentive to women's unique needs while they are incarcerated, and do more to support women and their families once they are released.  I will institute gender-responsive policies in the federal prison system and encourage states to do the same — because women follow different paths to crime than men, and face different risks and challenges both inside and outside the prison walls, and every part of the justice system, from sentencing to the conditions of confinement to re-entry services, should reflect women's unique needs. 

Research shows that women's relationships ... are often a significant risk factor for becoming involved with the justice system. Most women in prison are there because of nonviolent drug or property crimes.  Over 60% of them report drug dependence or abuse in the year before they went to prison. Many of them grew up in abusive households ... and they are more likely than men in prison to have experienced sexual abuse or trauma in their life before prison.

And too often, a woman and her children continue to live with the consequences even after she has served her time and paid her debt to society.  Because formerly incarcerated people face limited job opportunities, an entire family is effectively punished by a woman's time in prison.  "Banning the box" — preventing an employer from asking about criminal history at the initial application stage, so that individuals have a chance to compete for jobs on a fair basis — is a necessary and important step, but it isn't enough.  In addition to job training and interview coaching, women returning to their communities after years behind bars need safe housing for themselves and their children, continuity of health care, and above all a supportive community....

Women and the families they support are being crushed by a criminal justice system that costs far too much — in state and federal budgets, and in lives derailed and economic opportunity lost — without making us safer.  Too often, people are prejudiced against the formerly incarcerated — in employment, in housing, in everyday interactions.  We say we are a nation of second chances — and it's time that we act like it.

I am, generally speaking, quite supportive of "gender-responsive policies" in our criminal justice systems, particularly because there are lots of evidence-based reasons for viewing (and sentencing) most female offenders as much lesser threats to public safety than most male offenders.  That said, I am not entirely sure what specific sentencing laws and prison policies need to be changed dramatically in federal and state systems in order to make them more "gender-responsive."  Should (and legally could) a Prez Clinton institute an executive order providing that federal resources earmarked for prison treatment and post-prison reentry programs must be used first for all female federal offenders before any male offenders have access to these programs?

April 28, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Wednesday, April 27, 2016

Seeking serious, sober, sophisticated substantive analysis: would Clinton or Trump be a "better" sentencing President?

After last night's primary results, I have resolved myself to the less-than-thrilling prospect of being presented in November with a Prez voting choice between Hillary R. Clinton and Donald J. Trump.  On some issues unrelated to criminal justice systems, it likely will be easy to figure out which candidate is more likely to pursue (and achieve) policy developments that are more to my liking as a (moderate?) libertarian.  But, as the question in the title of this post is meant to suggest, I am genuinely unsure whether Clinton or Trump would end up being a "better" sentencing President.  (I have put the term "better" in quotes here because I fully recognize that lots of different people have lots of different views about what makes for a good President on sentencing issues; I hope thoughtful folks with lots of different prespectives will chime in.)

Back in 2008, I believed that then-candidate Barack Obama would prove to be a "better" sentencing President than Hillary Clinton or John McCain.  (A big factor in this judgment was not just the Clintons' criminal justice track record, but especially Hillary's worrisome opposition to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.)  In April 2012, based in part on the fact that Prez Obama did not live up to my hopes during his first term, I wrote this Daily Beast commentary making the point that "given policy and practical developments of recent years, there’s a good argument to be made that a President Romney could prove to be more likely to make real and long-term reforms to American criminal justice."  In that commentary, I urged then-candidate Romney to "embrace what Right On Crime calls the 'conservative case' for criminal-justice reform, and in doing so appeal to groups of independent and minority voters (especially young ones) while demonstrating a true commitment to some core conservative values about the evils of big government."

Of course, Romney did not take my advice (and lost), and Prez Obama has proven much more committed to working on sentencing issues during the second half of his second term.  Still, perhaps ironically, I think a Prez Romney would have ended up supporting AND getting enacted the kinds of federal statutory sentencing reforms that have been bogged down in Congress in recent years.  I say this based in part on legislative reforms in the states, including my own Ohio: states led by GOP govs have generally been more inclined to enact significant legislative sentencing reforms.

I set this all out because I genuinely think, no matter what your vision of "better" sentencing, it is now time to start some serious, sober and sophisticated substantive assessments what kind of sentencing President Hillary Clinton or Donald Trump might prove to be.  In many ways, both seem to me to be comparable (and annoying) enigmas on sentencing law and policy: in the past, both have generally said only whatever seemed politically useful at the time of their statements; in the future, both are sure to face challenges getting Congress to enact whatever criminal justice reform agendas they might want to pursue.  So, I hope anyone who care a lot about these issues will help me try to start a robust, rigorous conversation on this front.  

(For the record, I expect that, after nominations and party platforms become official this summer, I will do a series of Clinton vs. Trump posts on specific sentencing issues like the death penalty, clemency, and drug/white-collar sentencing.)

April 27, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Monday, April 25, 2016

Republican National Committee adopts resolution urging criminal justice reform in Congress

Rnc-logoThis Daily Signal article, headlined "Republican Leaders Throw Weight Behind Prison Reform," reports on a notable development during the RNC's Spring Meeting in Florida last week.  Here are the details:

The Republican National Committee [on Friday] adopted a resolution in support of reforming the nation’s criminal justice laws, in a significant sign of bipartisan consensus to undo mass incarceration in America. In the one-page resolution, obtained by The Daily Signal, the RNC commends conservative-led states that have adopted policies to reduce their prison populations — such as Texas, Alabama, and Georgia — and urged Congress to act as well.

“This is the Republican Party coming together and saying criminal justice reform is an issue that needs to be addressed, and I think it’s sending a message that the RNC wants to make certain Congress has this as one of its top priorities,” said Telly Lovelace, the Republican National Committee’s director for urban media.

Lovelace added: "It’s the first time the RNC has taken a significant step like this on criminal justice reform, as the issue is sweeping the country, with conservative states leading the way in adopting policies to deal with it. Criminal justice reform is an issue that impacts all Americans, no matter which part of the country they live in."

The RNC’s official position supporting prison reform was one of 10 resolutions announced to committee members today during the national GOP organization’s spring meeting in Hollywood, Fla.... Each resolution is voted on by nine committee members, including RNC Chairman Reince Priebus.

Criminal justice reform is thought to be one of the few areas where Congress and President Barack Obama can work together to enact a substantive law during a contentious election year. Both the Republican-led House and Senate judiciary committees have advanced legislation that would shorten prison sentences for low-level nonviolent drug offenders and allow well-behaved inmates to earn time off their prison terms.

But on the Senate side, some conservatives have argued that the Judiciary Committee’s proposal would allow violent felons the chance to be released from prison early. The bill’s authors, including Judiciary Chairman Chuck Grassley, R-Iowa, Majority Whip John Cornyn, R-Texas, and Mike Lee, R-Utah, have fought that characterization. They recently made revisions to the legislation to satisfy critics.

Mark Holden, a top lawyer at Koch Industries, one of the biggest proponents of criminal justice reform on the conservative side, says he hopes the Republican National Committee’s resolution pushes skeptical conservatives in Congress to support the effort. “The RNC position makes it clear that Republicans can and should continue to lead on this critically important issue as they have for the past several years,” Holden told The Daily Signal in an emailed statement...

In its resolution, the RNC notes that the federal prison population, over which Congress has jurisdiction, increased 734 percent from 1980 to 2015, while taxpayer dollar spending on the prison system spiked 595 percent in that same period. The resolution states that taxpayers “are not receiving the public safety return they deserve because lengthy prison terms increase recidivism rates for low-level offenders.”

In addition to supporting treatment options for drug addicts, and other policies to reduce the number of re-offenders, the RNC calls for “mens rea” reform. That would require prosecutors to prove that certain criminal suspects knowingly intended to break the law.

The text of this resolution does not yet appear to be posted on the RNC's website, but I will post it once it becomes available.

April 25, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Saturday, April 23, 2016

"The Prison Reformer Who Champions Ted Cruz"

The title of this post is the headline of this notable new Ozy article about a notable supporter of Senator Ted Cruz, who also has played a bit role in sentencing reform in Maryland.  Here is how it starts:

Michael Hough’s statehouse digs are filled with awards — from the American Conservative Union here, the Leadership Institute there.  You can’t miss the gold-framed Declaration of Independence, the old George W. Bush campaign sign or the NRA logo carpet outside the state senator’s office.  The photo of him and Ted Cruz glad-handing isn’t shocking, either, since Hough’s leading the presidential candidate’s primary efforts here in Maryland.  What’s more surprising: the picture next to it — of Hough and his wife, posing with another White House hopeful.  “My wife likes Donald,” the father of three says, painfully.

What’s a state campaign chairman to do?  Hough’s received high praise as “a respected conservative leader” from Cruz himself, though the 36-year-old lawmaker faces not just a divided home, but a divided state — one that could go the way of his wife if polls hold true during Maryland’s primary on Tuesday. It’s just one of many apparent contradictions. Bespectacled with a slick, Cruz-ian comb-over, Hough today looks nothing like the long-haired rock star of his garage-band days. He’s an Air Force vet who never served outside Wyoming.  And while he plays the part of a bona fide guns-and-faith conservative well, Hough’s most significant work is in … compassionate prison reform?

The Justice Reinvestment Act — which eases sentencing laws for nonviolent drug offenders and pushes offenders to treatment rather than prison — passed into law this month, in no small part thanks to Hough, who led the Republican efforts to craft it.  He’s also helped push through bills limiting civil asset forfeiture (“You had the ACLU and the prosecutors support it, which never happens,” he brags) and reforming police conduct and accountability — without being “antipolice,” Hough claims.  Popping open a Diet Coke, at just past 8 a.m., Hough calls the justice act the largest reform “in a generation” — and some experts agree it’s a doozy.

Yet, not everyone’s happy: “The Senate amended the life out of it,” the Maryland Alliance for Justice Reform’s Pat Schenck tells OZY.  It’s something to build off of and “a once-in-a-lifetime bill,” says Keith Wallington of the Justice Policy Institute, if only because “Maryland has (historically) set the bar pretty low for justice reform.” And while an early proposal included a reduction in prisons and budget savings nearing $250 million over 10 years, the Senate version went down to “a paltry” $34 million, Wallington says. “That’s a little overblown,” Hough counters, though he agrees the budget savings in the final bill will be less than originally projected.

At first blush, this stalwart Republican seems like an unlikely advocate for addicts and rampant recidivists.  But while GOPers such as Richard Nixon and Ronald Reagan birthed and expanded the war on drugs decades ago, red state leaders from Texas to Utah and Georgia have recently championed justice reform due to both compassionate conservatism and a response to “draconian laws” that proved costly yet rarely improved public safety, says Lauren Krisai with the Reason Foundation, a libertarian think tank.  As a teen growing up with an alcoholic father, Hough knew the tug and pull of crime and addiction — the Nirvana fan got through those years fixing cars, dying his hair blond and red, and ignoring school to the tune of a 2.0 GPA — but as an adult he became an expert in addressing those problems.  “We over-criminalize everything,” says Hough, whose non-legislature job is as a senior policy adviser on criminal justice for the Faith & Freedom Coalition.  “This is where my Christianity and libertarianism come together.”

April 23, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, March 07, 2016

Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?

The question in the title of this post is my first reaction to this commentary piece authored by Inimai Chettiar from the Brennan Center for Justice which carries the headline "Don't Lock Up Prison Reform: Congress' fight over the Supreme Court shouldn't doom desperately needed sentencing reform." Here are excerpts (which includes something of a status report from Congress):

With a heated partisan battle over the future of the Supreme Court entering a stalemate, and some Democrats threatening to shut down the Senate, many are starting to expect nothing will get done in Congress this year.  But it doesn't have to be that way.  There is one topic on which lawmakers can act, even in this bitter climate.  The same Senate Judiciary Committee members sparring over the Supreme Court nomination process will soon announce a long-awaited compromise on a bill to help reduce America's prison population.

Can our nation's leaders put aside their differences to help resolve one of the largest crises facing our country?  We certainly hope so.  The bill would be the largest congressional action on criminal justice reform in a generation, and a rare attempt at cooperation across party lines.  Lawmakers should not allow partisan bickering over the next Supreme Court justice to destroy a chance to fix a system we all agree is not working.  Congress must act fast, in this rare area of bipartisan accord, to pass sentencing reform....

Much has been learned in the last 25 years about who should be locked up and for how long.  The Sentencing Reform and Corrections Act recalibrates sentencing laws to implement these lessons....

Last month, Sens. Tom Cotton and Jeff Sessions raised concerns the legislation would jeopardize public safety.  In response, a group of nationally prominent police chiefs and prosecutors — the men and women who protect our safety every day — explained how the bill would actually help reduce crime.

Now, co-sponsors Sens. John Cornyn, Chuck Grassley and Mike Lee are revising the bill to address these anxieties.  At least two major changes are expected.  One would remove a provision from the bill that would have reduced mandatory minimums for repeat felons caught with a firearm.  Another would limit current prisoners' ability to seek reduced sentences under the new law if they committed certain serious crimes.  To many progressive advocates, these changes significantly reduce the breadth of the bill.

But even if there's a compromise bill, the next step is getting it to the floor for a vote.  Last week, Grassley met with President Barack Obama to tell him the Judiciary Committee will not hold a hearing or vote if he puts forth a Supreme Court nominee. It's rumored that some Democrats would allow the sentencing bill to falter if Republicans try to block a nominee.

But it is a false choice to pit sentencing reform against a Supreme Court battle.  Accord on one shouldn't be overridden by combat on the other....  Congress has passed legislation during other confirmation clashes.  While Justice Elena Kagan's nomination was pending in 2010, Congress passed a series of significant bills including sanctions against Iran, the Dodd-Frank Act, and another criminal justice law called the Fair Sentencing Act.  In 2005, a year that saw the confirmation of two new Supreme Court justices (Roberts and Alito), Congress passed a free trade act.

Both parties have a decision to make. Senate Majority Leader Mitch McConnell must decide whether to bring the measure to the Senate floor.  His Democratic counterparts Harry Reid and Nancy Pelosi must choose whether to bridge the divide, even if temporarily.  We will soon see how much the parties really care about getting government to work — and how much their cares about over-incarceration are more than just words.

Our politicians will not be able to sell the notion that the people's business should come to a complete halt for the sake of election-year posturing.  The time has finally come for criminal justice reform.  With Congress at a flashpoint over the Supreme Court, bipartisan cooperation to act matters now more than ever.

March 7, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (10)

Friday, February 12, 2016

At debate, Bernie Sanders promises that "at the end of my first term as president we will not have more people in jail than any other country"

The-possibles-bernie-sanderv02I have lost interest not only in blogging before for every Presidential debate, but also in watching most of them.  But, perhaps not surprisingingly as the Prez campaign marches forward to more diverse states than Iowa and New Hampshire, last night's Democratic debate saw Hillary Clinton and Bernie Sanders talking about modern policing, racial disparities in our criminal justice system and mass incarceration.  Of particular note was Sanders making the promise highlighted in the title of this post.  Here is a little bit more of what Senator Sanders had to say on these fronts:

This mandatory sentencing, a very bad idea. It takes away discretion from judges.  We have got to demilitarize local police departments so they do not look like occupying armies.  We have got to make sure that local police departments look like the communities they serve in their diversity.

And, where we are failing abysmally is in the very high rate of recidivism we see. People are being released from jail without the education, without the job training, without the resources that they need to get their lives together, then they end up -- we're shocked that they end up back in jail again.  So, we have a lot of work to do.

But, here is a pledge I've made throughout this campaign, and it's really not a very radical pledge.  When we have more people in jail, disproportionately African American and Latino, than China does, a communist authoritarian society four times our size.  Here's my promise, at the end of my first term as president we will not have more people in jail than any other country. We will invest in education, and jobs for our kids, not incarceration and more jails.

Helpfully, Leon Neyfakh not only noticed this significant promise, but also quickly authored this Slate commentary about it. The headline of the post provides a flavor of its themes: "Sanders Is Delusional if He Thinks He Can Keep His Promise on Mass Incarceration."  Here is the heart of is effective commentary:

What Sanders means by this is that under just four years of his magical leadership, the U.S. will bring down its jail and prison population by about 600,000 people.  Where does that figure come from?  Consider that the No. 2 spot on the list of countries with the most prisoners in the world right now is China, and it has about 1.66 million people behind bars.  The U.S., by comparison, has about 2.3 million.

Sanders did not mention during his remarks how he plans to make the leap from 2.3 million to fewer than 1.66 million. But regardless of what he has in mind, it’s pure fantasy for several reasons. Chief among them is that the president of the United States has no direct control over most of the nation’s correctional facilities.  This is because jails, which currently hold fewer than 745,000 people, are under local control, and state prisons, which hold about 1.35 million, are under state control. That leaves the federal prison system — the only one that the federal government is actually in charge of — with 210,000 people, or about 10 percent of the pie.

It’s true that the president has a “bully pulpit” from which he can say inspiring things that set the tone for officials working at all levels of government.  It’s also true that in theory, the federal government could try to bribe state governments to rely less on incarceration.  But the bottom line is that the feds can only set policy for their own prison system and that means there’s a very low ceiling on the amount of progress that a president, no matter how ambitious he or she is, can do to reduce the prison population....

This would be a good time to remember, also, that Congress’ current efforts to bring down the prison population by enacting very modest sentencing reforms appear to be falling apart in slow motion because there are enough lawmakers in Washington who think it’s too dangerous to set anyone free, ever.  And this is at a time when there’s supposed to be a historic bipartisan consensus over the need for reform.

If Sanders wants to release more than 500,000 people by 2020, he’s going to have to break them out personally.  If he has a more efficient approach in mind, he needs to share it before he makes this ridiculous promise again.

February 12, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Wednesday, February 10, 2016

Senator Tom Cotton forcefully (and somewhat thoughtfully) makes his case against the current version of SRCA 2015

23992166449_9ff10a5a94As reported previously in this post and now again via this new piece from The Hill, a number of Senators are in the midst of a robust conversation about the merits of and concerns about the Sentencing Reform and Corrections Act (which I have called SRCA 2015 since its introduction last fall).  Of particular note and importance (and as noted in this prior post), Arkansas Senator Tom Cotton seems to be taking a leading role raising concerns about the current version of the SRCA, and I am now pleased and impressed that Senator Cotton has provide a thorough articulation of his concerns through this new Medium commentary titled "The Current Sentencing Reform and Corrections Act is Dangerous for America," and also through this extended speech delivered yesterday on the Senate Floor.

The Medium commentary, which is relatively short, does not do much more than emphasizethe anti-federal-sentencing-reform points already forcefully and repeatedly expressed by the National Association of Assistant U.S. Attorneys and Bill Otis and others who have been consistent opponents of any changes to the current federal sentencing status quo.  But the Senate floor speech is much, much longer and, in my view, in spots much, much more thoughtful in discussing the SRCA and his own perspectives about federal sentencing reform.  I highly recommend all persons following federal sentencing reform to read Senator Cotton's lengthy floor speech in full, and here are some of the (many) passages that has led me to describe it as forceful (and somewhat thoughtful):

Today, I want to discuss the Sentencing Reform & Corrections Act that has been voted out of the Judiciary Committee. There is much debate about the wisdom of this bill.  That is, like most bills we discuss in this chamber, a judgment call. But there cannot be debate over the facts of this bill. We have to be very clear on what this bill, by its own text, is designed to do....

By its text, the bill will not just apply to so-called "non-violent offenders," but to thousands of violent felons and armed career criminals who have used firearms in the course of their drug felonies or crimes of violence.

By its text, the bill will reduce sentences not for those convicted of simple possession, but for major drug traffickers, ones who deal in hundreds of thousands of dollars' worth of heroin or thousands of pounds of marijuana.  And let's be clear: drug trafficking is not "non-violent," as the bill's proponents often claim.  It's an industry that's built on an entire edifice of violence, stretching from the narcoterrorists of South America to the drug-deal enforcers on our city streets. If you think dealing drugs on a street corner while armed with a gun is a "non-violent" offense, you probably live in a rich suburb or a gated community....

It's been reported that the bill's sponsors are preparing to release a revised bill, one that would address some of these many shortcomings.  Regarding this news, I first want to thank the sponsors for acknowledging that the bill as passed by committee does in fact apply to serious drug traffickers and other violent felons.  I look forward to evaluating the new legislative text, and I hope it addresses these problems....

The [US Sentencing] Commission first reduced sentencing guidelines in 2007.  It did so again in 2010. And again in 2014. That is three major systemic sentencing reductions in the span of seven years. The result?  46,000 federal convicts will walk from jail early.  Wendell Callahan was one among that 46,000.  There will be many more like him. And while we pray — against all odds — that none of them go on to commit a triple-murder like Wendell Callahan did, or any other heinous crime, I'm afraid our prayers will go unanswered, at least in part.

The Sentencing Commission is an independent judicial agency that provides uniform sentencing guidance to judges. Congress didn't have a hand in those sentencing reductions.  But with the Sentencing Reform & Corrections Act, the Senate would impose a fourth major sentencing reduction within eight years — one that is deeper and broader than the reductions imposed by the Sentencing Commission.

This is badly misguided.  The Senate would be launching a massive social experiment in criminal leniency without knowing the full consequences of the first three reductions imposed by the Sentencing Commissions.  This experiment threatens to undo the historic drops in crime we have seen over the past 25 years....

The Senate, and the American people, need to consider any change to our sentencing laws with full information.  We need to know if this sentencing-leniency bill will return us closer to the days of the `70s and `80s when our cities were besieged by the drug trade, and whole communities were being rotted out as a result.  We need to debate sentencing changes with all the data available to us.  We need to do this with eyes wide open.

That is why today — together with Senators Hatch, Sessions, and Perdue — I am introducing the Criminal Consequences of Early Release Act.  This is a simple, but very needed bill.  It will require the federal government to report on the recidivism rates of the 46,000 federal inmates to be released early under the Sentencing Commission's reductions.  And it will require the same reporting for any prisoners released early under any future reductions passed by Congress.

The report required by this bill will make clear how many crimes are being committed by released felons.  It will make clear what types of crimes — from drug trafficking to assault to robbery to murder — are being committed by these felons. And it will make clear in which states these crimes are occurring.

Currently, this type of data is extremely hard to compile.  It is not reported by the Bureau of Justice Statistics, and any information we do have comes through anecdotes and sporadic media reports.  Full information on the criminal consequences of early release must be published in detail.  Before voting on any bill to reduce sentences, the members of this chamber need to understand fully the criminal consequences of prior sentence reductions....

I want to be clear.  To those who support the Sentencing Reform & Corrections Act, we are not in full disagreement. Like you, I oppose jail for first-time drug users with no prior record.  It's vanishingly rare for such offenders to be prosecuted and jailed in the federal system.  But it remains true that the better option for them — particularly if they are addicts — would be drug treatment.  Like you, I believe that our prisons should not be an anarchic jungle that is a danger to both prisoners and corrections officers.  Like you, I believe that those prisoners who will someday complete their sentences and re-enter society should be given the chance to rehabilitate and redeem themselves while in prison so that they do not recommit crimes once they are released.  Like you, I do believe that there exists the possibility of an unjust sentence, one that is so out of proportion that it shocks the conscience.

So I suggest, let's work on that bill.  Let's work on a bill that identifies and addresses all first-time drug possession inmates in the federal system, but keeps drug traffickers and other violent offenders in prison to finish their sentences.  Let's improve prison conditions and give prisoners a shot at redemption and a better life.  And, if you wish, let's work on a bill to speed the consideration of commutation applications.

If we want to undo unjust sentences, we can help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences.  But what we should not do is use the blunt instrument of releasing thousands of violent felons and major drug traffickers.  The president has the constitutional power to remedy unjust sentences.  But you know what power he doesn't have?  The power to bring back to life the victims murdered by prisoners who are released early or sentenced inadequately.

There are a number of statements in the parts of this speech quoted above with which I could take serious issue. In particular, Congress always has authority to block any and every formal decision by the US Sentencing Commission, and the crack-guideline reductions of 2010 were essentially mandated by Congress in the Fair Sentencing Act of 2010. Consequenlty, it is not accurate for Senator Cotton to assert that "Congress didn't have a hand in those sentencing reductions" to drug sentences promulgated by the USSC in recent years. More generally, to assert in blanket terms that "drug trafficking is not 'non-violent'," is no better than asserting in blanket terms that "drug trafficking is non-violent." Some federal drug-traffickers in some settings are extremely violent in doing business. But I have not heard of much violence taking place in all the stores now selling a whole lot of marijuana in Colorado and other states, and I surmise that the ability to purchase this drug in a safe environment is one reason marijuana sales seem to keep going up and up in a number of states.

But, critically, even though Senator Cotton sometimes favors rhetoric over reality in this speech, the basic themes and many particulars he stresses are an important and valuable contribution to the broader debate over federal sentencing reforms. In particular, Senator Cotton is 100% right that our national data on the recidivism rates and realities of federal offenders — not only with respect to those who get sentence reductions, but also for the entire released offender population — leave a lot to be desired and raise more questions than answers. (Indeed, as some readers likely know well, the very term "recidivism" is subject to various definitions in various settings.) I could not agree more with Senator Cotton's statement that the "Senate, and the American people, need to consider any change to our sentencing laws with full information." Indeed, I have long thought that many of our worst federal sentencing laws enacted in prior decades — e.g., the 100-1 crack/powder disparity, some of our most severe gun possession mandatory minimums — were passed largely based on misinformation about their reach and likely impact.

In addition, I think Senator Cotton merits praise for urging his colleagues to "improve prison conditions and give prisoners a shot at redemption and a better life," and especially for suggesting "work on a bill to speed the consideration of commutation applications" in order to "help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences." As long-time readers know, many sentencing reform advocates (myself included) have been advocating for Presidents of both parties to make much broader and more constitent use of the "constitutional power of pardon and commutation." I think it is both quite heartening and significant that now the Senate's most vocal opponent of proposed sentencing reforms is sincerely calling for President Obama (and future presidents) to use the clemency power to remedy any and all federal sentences that appear to the President to be "manifestly unjust."

February 10, 2016 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Wednesday, February 03, 2016

Return of GOP jedis trying to keep sentencing reform efforts going in Congress

Last week via this post titled "GOP empire striking back against federal sentencing reform efforts in Congress," I noted this Politico article highlighting that a "cadre of conservative Republicans" were starting to line up against congressional statutory sentencing reform efforts.  The title of this post continues the galactic metaphor as a way to view these notable new press accounts of significant GOP voices trying to keep federal sentencing reform efforts moving forward:

From the New York Times here, "Senator John Cornyn Aims to Sway Fellow Republicans on Criminal Justice"

From Politico here, "Republicans press for criminal justice overhaul"

From BuzzFeed News here, "Koch Continues To Push Criminal Justice Bill As Momentum Fades On Hill"

Because lots of folks on both the left and right sometimes seem to think that the Koch brothers can use their massive wealth to "buy" legal reform, I will here highlight the first part of the BuzzFeed piece:

The momentum for criminal justice legislation is slowing down on Capitol Hill, but hundreds of miles away, Charles Koch — one of its biggest supporters — continued to aggressively make the case for it to pass this year, even as the billionaire becomes the face of one of the sticking points.  “The issue we’ve been working hard on is criminal justice reform, so if somebody makes one mistake, non-violent, it starts with this question: Do you have right to run your own life as long as you don’t violate the rights of others and you’re not bothering anybody?”  Koch said to donors on Sunday at the winter meeting of the political network affiliated with the industrialist brothers, which drew about 500 attendees.

Koch’s comments on the issue were part of an hour-long presentation on what he calls “Framework for Free Society,” which the billionaire believes will put the country back on the right track.  He views changes to the criminal justice system as a crucial component of the framework.  “You smoke a joint or violate some regulation … get arrested, put in prison and then come out, can’t get a job, so this destroys opportunities and makes the community less safe because you go in — and weren’t really criminals — and you are trying to get a job, so you steal if you can’t,” he said.

In addition to Koch himself advocating for looser sentencing laws, attendees also received a closed-door briefing on the issue Sunday morning, according to a schedule provided to donors.  BuzzFeed News was one of six news organizations to accept an invitation to cover parts of the network’s meeting after agreeing to certain ground rules. The largest-ever gathering of the Koch brothers’ political network this past weekend came as the path forward for criminal justice legislation — a high priority for the network’s donors — becomes increasingly uncertain in a presidential election year.

February 3, 2016 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Monday, January 25, 2016

GOP empire striking back against federal sentencing reform efforts in Congress

TomCottonThis new Politico article, headlined "Cotton leads effort to sink sentencing overhaul: A cadre of conservative Republicans is lining up against the bipartisan measure, imperiling its future," reinforces my long-standing concern that the prospects of significant statutory sentencing reform emerging from Congress gets dimmer every week that passes without movement forward on the bills that have made it through the judiciary committees.  Here is the first part of the article:

Sen. Tom Cotton, the hawkish upstart who's already made waves railing against the Iran nuclear deal and government surveillance programs, is now leading a new rebellion against a bipartisan effort to overhaul the criminal justice system — hoping to torpedo one of the only pieces of major legislation that could pass in President Barack Obama’s final year.

GOP tensions over a bill that would effectively loosen some mandatory minimum sentences spilled over during a party lunch last week, when Cotton (R-Ark.), the outspoken Senate freshman, lobbied his colleagues heavily against the legislation, according to people familiar with the closed-door conversation. The measure passed the Senate Judiciary Committee last fall with bipartisan support.

“It would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons,” Cotton said later in an interview with POLITICO. “I think it’s no surprise that Republicans are divided on this question … [but] I don’t think any Republicans want legislation that is going to let out violent felons, which this bill would do.”

Cotton isn’t alone. Other Senate Republicans, including Sens. Jim Risch of Idaho and David Perdue of Georgia, also registered their strong opposition during the lunch, even as Sen. Mike Lee (R-Utah) vigorously defended the bill, which he helped negotiate. Risch stressed this message, according to one Republican source: Shouldn’t the GOP be a party of law and order?

Risch declined to elaborate on his concerns over the bill, saying he was displeased that his private remarks made during a party lunch were made public. But the deepening Republican split over reforming key elements of the criminal justice system — an effort years in the making that has been powered by an influential right-left coalition — may imperil whether Senate Majority Leader Mitch McConnell ultimately will take up the measure later in this election year.

Conservatives opposing the legislation are coalescing around Cotton’s view — despite strong pushback from bill supporters — that the measure could lead to the early release of people convicted and imprisoned for violent crimes. Sen. Ted Cruz (R-Texas), once a supporter of easing mandatory minimums for nonviolent drug offenders, has also made this argument. And there’s stiff resistance in pockets of the Republican Party to do anything that may erode its tough-on-crime reputation.

Backers of the bill say their changes to sentencing laws merely allow qualifying inmates to have their cases revisited by the same judge and prosecutor who landed them in prison. The judge would then have the discretion to hand down a reduced sentence. “It’s not true,” said Senate Majority Whip John Cornyn (R-Texas) of opponents’ insistence that violent criminals could be freed under the sentencing reforms. “I’d say, please read the bill and listen to people like [former Attorney General] Michael Mukasey who makes the point, which is a critical point, that there’s no get-out-of-jail-free card.”

But that perception, hardening among conservatives, is a serious obstacle for supporters of the bill like Cornyn, who as the Senate’s second-ranking Republican is the most influential GOP backer of the criminal-justice measure. And last week, McConnell — who is often hesitant to press ahead on issues that divide his 54-member conference — indicated a breather of sorts on the bill, saying GOP senators would take some time to get educated on the measure.

Those comments discouraged some supporters, since any major pause could spell doom for the bill this year. In a couple of months, the GOP-led Congress will turn its attention to its top legislative priority — budget and appropriations bills — while individual lawmakers shift into full campaign mode. “Members of the Judiciary Committee have been deeply involved on that issue, the rest of us have not,” McConnell told reporters of criminal justice reform. “So we’re going to be working through the process of bringing everybody in the Republican Conference up to speed on this very important issue, and we’re going to do that before any decision is made about floor time.”

The criminal justice overhaul isn’t limited to sentencing reforms. The measure also includes reforms to the prison system championed by Cornyn and Sen. Sheldon Whitehouse (D-R.I.) — changes that Cotton said he supports. And overhaul efforts also are complicated by the issue of so-called mens rea reform, with House Republicans and some GOP senators — including Orrin Hatch of Utah, the most senior Senate Republican — demanding changes to rules governing criminal intent.

But the sentencing changes are triggering the biggest — and most vivid — rift among Republicans. Cotton and other Republicans pointed to a triple murder earlier this month in Columbus, Ohio, where a man is accused of killing an ex-girlfriend and two of her children. The suspect, Wendell Callahan, had his prison sentence on drug charges reduced twice for a total of more than four years, according to The Columbus Dispatch.

January 25, 2016 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Saturday, December 26, 2015

Hoping Californians get crisp "mend it or end it" capital initiative votes in 2016

This local article, headlined "Death penalty supporters seek to speed up executions," reports on efforts in California to give voters a chance to mend the state's broken capital punishment system by initiative.  Here are the basics:

Death penalty supporters got the state’s go-ahead Thursday to collect signatures for a November 2016 ballot measure aimed at speeding up executions, raising the prospect that voters will be asked to choose between toughening California’s death penalty law and repealing it.

The new initiative would require the state Supreme Court to rule on capital cases within five years. It would also limit death penalty appeals, set strict deadlines for filing appeals and seek to expand the pool of death penalty lawyers. Any attorney who now accepts court appointments to represent impoverished defendants in criminal cases would also have to take on capital cases, regardless of experience.

Another provision would eliminate the currently required public comment period before the state can approve a new single-drug execution method, which officials have proposed to replace the current three-drug executions.  Supporters of the measure say it would reduce by at least half the period, typically 25 years or more, needed to resolve death penalty appeals in California.  Opponents disagree, noting that the initiative would not add funding for death penalty lawyers or court staff.

A rival initiative to repeal the death penalty and replace it with life imprisonment without parole was cleared for circulation last month. A similar repeal measure was defeated by four percentage points in November 2012.  Both initiatives need 365,880 signatures of registered voters in 180 days to qualify for the ballot.  Sponsors of the new initiative have raised more than $1 million so far and expect to collect the needed signatures, said Charles Bell, a lawyer for the campaign.

This article also notes that California has not carried out an execution in a decade thanks to lethal injection litigation, while still having the nation's largest death row with nearly 750 condemned murderers waiting to receive their jury-imposed death sentence. As readers may recall, the remarkable size and delay that has come to define California's dysfunctional capital system itself led to a (temporary) ruling of unconstitutionality in federal courts in recent years.

As the title of this post highlights, I am hopeful that both proposals to deal with California's capital system come before voters in 2016. If both do, voters will likely have a crisp "mend it or end it" set of policy choices, and there will also likely be considerable funding (both local and national) devoted to informing voters about what votes on these proposals would mean in an election year likely to be marked by high turnout. Through such a process, we should get some really good insights concerning what voters in a huge (left-leaning) state really want to do about the death penalty circa 2016.

Prior related post:

December 26, 2015 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Sunday, December 06, 2015

Can and will Prez Obama effectively help get a federal sentencing reform bill to his desk?

Justice-refThe question in the title of this post is prompted by this recent Washington Post report, headlined "Obama convenes meeting on criminal justice reform to buoy bipartisanship," discussing a meeting Prez Obama convened with congressional leaders to talk about how to turn reform bills into new sentencing laws. Here the details:

President Obama convened a meeting of more than a dozen congressional Republicans and Democrats Thursday, in an effort to bolster a fragile bipartisan coalition working to reform the criminal justice system.

The House and Senate have been working to craft legislation to reduce mandatory minimum sentences for drug offenders, as well as to revamp aspects of federal incarceration. The Senate Judiciary Committee passed a comprehensive bill on a bipartisan 15-5 vote in October; the House Judiciary Committee has passed five separate measures by voice vote in recent weeks.

But there are a few major differences between the two chambers’ approaches. Most significantly, one of the House bills — the Criminal Code Improvement Act — would require prosecutors in cases as wide-ranging as food tainting and corporate pollution to prove that defendants “knew, or had reason to believe, the conduct was unlawful,” otherwise known as “mens rea.”

That measure has angered many Democrats, who argue that it could block criminal prosecution of some corporate entities — including those owned by Koch Industries, which has helped mobilize conservative support for the overall reform effort. Obama specifically asked lawmakers to remove the provision, according to individuals familiar with the meeting, though House Republicans argued that it was a critical component for conservatives.

“We believe that invites a lot of controversy and delay into our agreement, and the House feels just the opposite,” said Senate Minority Whip Richard J. Durbin (D-Ill.), who attended the White House meeting and co-authored the Senate criminal justice bill.

Sen. John Cornyn (R-Tex.), another co-author of the bill, said that while “nothing was decided” in the more than hour-and-a-half session, he was “very optimistic” after participating in it. “I think it was all a very positive, bipartisan, bicameral, executive, legislative meeting,” Cornyn said, adding that although “there was not consensus” on that issue, there might be a way to work it out in a conference between the two chambers. “But I think part of the message was, ‘Let’s take the things where there is consensus, get that done.’ ”

A spokeswoman for House Judiciary Committee Chairman Bob Goodlatte (R-Va.) declined to comment on the meeting. She noted that the House panel has passed bills on issues including modifying sentencing guidelines and eliminating statutes in the U.S. Code that subject violators to criminal penalties for trivial conduct. The committee will take up measures on prisons, civil asset forfeiture, and criminal procedures and policing in the coming weeks, she added.

Durbin said “we have a good chance” of passing legislation in early 2016, so lawmakers can work out their differences “and send it to the president before midpoint of next year.”

Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), who helped craft the Senate bill and also met with the president, said the meeting was less about “the path forward” than how to get the two competing proposals brought up for floor votes in the House and Senate.

Obama also pressed for specific numbers on how many individuals would benefit overall from the two proposals, people familiar with the meeting said, because the proposals introduce new sentences even as they reduce some mandatory minimums.

Senator Durbin's comments reinforce my understand that there is a good chance that the full House and Senate will likely vote in January or February on the various reform bills that have already passed the Judiciary Committees. Such votes would pave the way for harmonizing efforts on the bills and perhaps enactment sometime in Spring 2016. I think the commnts coming after this meanign from not only Senator Durbin but also Senator Cronyn lead me to have continued (tempered) optimism that this will get done in some form before Prez Obama leaves the Oval Office.

That all said, the dispute over menas rea reform could throw a wrench into this process, as could various other political developments. Especially if the legislative process drags into the summer, I think whomever emerges as a GOP leader through the primary season could end up having an impact on the sentencing reform debate. In addition, as both the title and contents of this post suggests, Prez Obama also is a critical and complicated figure in all this. Cajoling Congress effectively could help keep the legislative process, but too much advocacy or criticism on sentencing issues coming from the White House could upset an already delicate political balance in this arena.

December 6, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, December 03, 2015

Federal statutory sentencing reform not going to happen until 2016 ... if at all

This TPM DC report, headlined "Criminal Justice Reform Is Quickly Running Out Of Time," provides a Capitol Hill update that confirms what I had heard from another source: the full Congress is unlikely this year to get to the criminal justice reform bills that have made it through the House and Senate Judiciary committees. And, as the TPC article goes on to explain, the enduring GOP uncertainty on this front combine with a Prez campaign to perhaps diminish the prospects that any reform gets done anytime soon:

It was supposed to be the rare bipartisan bright spot in the Senate, but a crowded legislative calendar and the looming election year are endangering the last best hope for criminal justice reform while President Obama is still in office. With roughly three weeks left until the holidays, the Senate is prioritizing passing a tax extenders bill, a reconciliation package to defund Obamacare and Planned Parenthood, a transportation bill, and legislation to fund the government. That means time has run out for criminal justice reform in this calendar year.

"No chance it can be done between now and Christmas," Judiciary Chairman Chuck Grassley (R-IA) said Monday evening as he darted off the Senate floor clutching his list of the Republican senators he still intended to convince to sign onto his bill, his handwritten notes scrawled underneath each of their names.

Advocates and outside observers have long anticipated that the best chance for passage of criminal justice reform would be before the practical realities of electoral politics intruded in 2016. With the remainder of the year taken up by other matters, reformers will have to wait until the Senate gavels back in in the new year, in the midst of presidential primary season.

The prospects of pushing forward with the Senate bill just as the Republican presidential primary in particular is in full swing -- with the expected tough-on-crime appeals to the conservative base -- is daunting. Primary season is hardly the time for the Republicans back in Washington to be giving up on the well-honed GOP attack lines on crime and pushing forward a progressive new position on incarceration....

Grassley and supporters are now running short on time to get their bill on the floor especially if Republican frontrunner Donald Trump stays on top. Trump's attempts to tie illegal immigration and criminality have prompted fellow Republican presidential candidates to follow suite. In a race to out-flank one another, the GOP contenders have backed away from the new wave of conservative thinking on criminal justice reform and reverted to echoing the talking points that were cornerstones of the party in the 1980s and 1990s. Sen. Ted Cruz (R-TX) voted against the criminal justice reform bill in committee in October even as he once billed himself as a pro-reform Republican....

While momentum had been building for the Senate's criminal justice reform bill, there are still deep divisions in the Republican Party to contend with. The tug of war is between traditional tough-on-crime Republicans who believe reductions in sentences would lead to a spike in crime and a new generation of conservatives who see an economic argument for reducing mandatory minimums and slashing the costs associated with incarceration.

Grassley and other sponsors like Sen. Mike Lee (R-UT) are working to convince senators like Cory Gardner (R-CO), Shelley Moore-Capito (R-WV) and Steve Daines (R-MT) to sign on, but there are some outspoken opponents who may prove to be immovable. “I think the bill needs more work. I think it needs to be connected with the reality of criminal justice and crime in America," said Jeff Sessions (R-AL) "I would not favor bringing it up and just zipping it through. A number of members in our conference, I think share those concerns.” Freshman Sen. Tom Cotton (R-AR) replied "no comment" when TPM asked him about his position. Former Judiciary Committee Chairman Orrin Hatch (R-UT) said he was concerned the bill would "let out a lot of people who don’t deserve to be let out [of prison.]"

While Democratic sponsors of the bill are publicly optimistic that the legislation can get a vote on the floor even in an election year, Sen. Sheldon Whitehouse (D-RI) admits the lack of GOP unity does put the legislation in some jeopardy. Republican leadership will want to ensure they have buy in from most of their conference if they are going to risk bringing the bill up in an election year and giving President Barack Obama a domestic legislative victory. “I think this is an issue that needs to be wrangled out on the Republican side so the Republicans on the bill need their own leadership to get it some votes," Whitehouse says. "It's not unanimous so the Jeff Sessions and people like that would be out of the floor pushing back the same way they did on the committee."

Sen. Thom Tillis (R-NC) says he's familiar with the process of selling criminal justice reform to a skeptical audience. Tillis was speaker of the North Carolina House when the legislature passed the Justice Reinvestment Act, which made back-end reforms to reduce recidivism. "I know that a lot of people get concerned with it," Tillis said. “It’s not really a soft on crime bill. It is the typical arguments that get used for these sorts of things, but I think the more that we educate people, the broader base of support we will get for it."

Tillis recognizes, however, that the problem is that on the campaign trail, candidates don't have time to explain complicated or new policy proposals. “If candidates on either side of the aisle exploits it for what it is not, yeah it could slow things down," Tillis said." You only get to operate in 15 and 30 second soundbites, and you cannot explain the merits of this bill in that time frame so yeah going on into the early primaries, it could be difficult and they have to stake themselves out.”

I am not yet giving up all hope that Prez Obama could get to sign a federal sentencing reform bill before he leaves office. But, as I have long been saying, an array of political, policy and practical challenges lead me always to be mostly pessimistic about the prospects of significant congressional action on this front.

December 3, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

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 (1)

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 (24)

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)