Wednesday, October 18, 2017

"Prosecutors Are Banding Together to Prevent Criminal-Justice Reform"

The title of this post is the headline of this lengthy Nation article which carries this subheadline: "A new investigation shows that DA associations are thwarting changes to the death penalty, sentencing, and more."  My first reaction is being shocked, shocked that prosecutors oppose reductions in their power, but this story is still an interesting read.  Here is an excerpt:

District attorneys’ associations exist in most states.  They consist of dues-paying members—generally the lead prosecutors from every county or district in the state — and have bylaws, like most professional groups.  As professional organizations, they also have nonprofit status; their activities include public education and training as well as lobbying.

For the most part, these prosecutors’ associations adopt a “tough on crime” stance, advocating for legislation that would give them greater discretion to lock people up.  “They all too often act as a roadblock to significant reforms,” says Udi Ofer, director of the Campaign for Smart Justice at the American Civil Liberties Union.  “In state after state, we’ve seen DA associations hold back reforms that are supported by Democrats and Republicans alike.”

According to Fordham University law professor John Pfaff, prosecutors are the single most important factor in the increase of prison populations, because they tend to file charges even when the evidence suggests that someone should go free, and generally pursue the harshest sentence they can get.  District attorneys and county prosecutors can opt to drop charges — for example, by refusing to prosecute marijuana possession — or to favor pretrial intervention.  But Pfaff found that between 1994 and 2008, even as crime and arrest rates fell, the number of felony charges filed by prosecutors increased. From this data, he concluded that prosecutors were driving the phenomenon of mass incarceration through punitive charges and penalties.

Prosecutors have one big reason to protect harsh sentencing: Today, around 95 percent of federal and state criminal cases end in a plea bargain.  Such agreements, in which the defendant pleads guilty in exchange for a fixed sentence, avoid the time and expense of a jury trial, making it faster and cheaper for prosecutors to close cases.  And the more draconian the punishments that a prosecutor has at her disposal — high mandatory minimums, say, or the ability to charge a youthful offender as an adult — the more leverage she has to persuade someone to take a plea bargain instead of risking a trial.

In the last year or so, criminal-justice reform has topped the legislative agenda in several states, from conservative Florida and Louisiana to liberal California, and advocates for reform exist across the political spectrum, from the conservative Right on Crime, the Koch brothers, and former House speaker Newt Gingrich to the ACLU and Black Lives Matter.  In response, prosecutors’ associations have pushed legislators hard to reject such reforms.  And, in most cases, they have succeeded.

October 18, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

Thursday, October 12, 2017

"Can Republicans get sentencing reform past Trump and his base?"

The question in the title of this post is the headline of this new Salon article.  Here is how it gets started:

With the presidential election in the rearview mirror, a genuinely bipartisan group of senators, led by Republican Chuck Grassley of Iowa and Democrat Dick Durbin of Illinois, are hoping for real movement on the issue of criminal justice reform.  Last week, Grassley and Durbin introduced a new version of the Sentencing Reform and Corrections Act, a bill Senate Majority Leader Mitch McConnell killed off during the campaign season, seemingly for political reasons.

This coalition that supports reduced sentences for nonviolent offenses even has an audience in the White House: Donald Trump's daughter and son-in-law, Ivanka Trump and Jared Kushner, hosted a bipartisan dinner with prominent senators to discuss the issue.

But even though it's not an election year, there's real reason to believe that this move towards criminal justice reform is opening up fissures in the conservative coalition.  Bluntly put, the more racist forces in the party — the ones that got Trump nominated and elected in the first place — don't like the idea of criminal justice reform and aren't afraid to kick up an intra-party fights in order to maintain the staggeringly high imprisonment levels in the United States.

"Most of the mainstream Republican party, traditional Republican leaders like Chuck Grassley, are very invested in the criminal justice debate. They want to see it done," Ames Grawert, counsel for the Brennan Center’s Justice Program, explained to Salon.  "It’s this insurgency alt-right side, of which I think Jeff Sessions is one iteration, that is opposing sentencing reform to any extent."

The fight against mass incarceration has been largely associated with the left and the Democrats — Hillary Clinton's campaign platform promoted policies aimed at ending the era of mass incarceration, for example — but there's actually been a surprising amount of leadership from Republicans on this issue over the past few years.  Republican-controlled state governments such as those in Texas, Georgia and Kentucky have made real progress in trying to reduce their prison populations through surprisingly progressive reforms.  And most people familiar with the issue say that Republican senators like Grassley, Mike Lee of Utah and Tim Scott of South Carolina are really dedicated to reducing long prison sentences, especially for nonviolent, drug-related offenses.

The reasons for this shift are both moral and pragmatic. "When the fiscal crisis hit," said Inimai Chettiar, director of the Brennan Center's Justice Program said, conservatives "were much more focused on this fiscal angle," but added that a growing church-based effort to reach out to imprisoned populations has also led many Republicans to come to this "from a moral angle and a religious angle."

“When faced with the need to save costs, they couldn’t help but notice the burdens that departments of corrections were creating,” added Kara Gotsch, director of strategic initiatives for the Sentencing Project, in discussing why state-level Republicans have taken the lead on this issue.  Gotsch also feels that mass incarceration is such a widespread problem that it's "hard for anyone not to know someone who’s been touched by the criminal justice system."  This, she feels, is also provoking more compassion from some Republicans.

October 12, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Wednesday, September 27, 2017

Grover Norquist calls criminal justice reform one of the "conservative movement’s most important recent accomplishments"

Anti-tax icon Grover Norquist has this notable Wall Street Journal commentary under the headline "Conservatives for Criminal Justice Reform: You don’t hear about it much, but 31 mostly red states have reduced both crime and imprisonment." Here is how it starts:

Every so often I’m asked to list the conservative movement’s most important recent accomplishments.  One always ranks near the top: criminal justice reform.

With leadership from Republican governors and legislators and groups such as Right on Crime, conservatives have pushed to rein in runaway prison spending and adopt cost-conscious correctional policies that improve public safety.  Starting 10 years ago in Texas, more than half of all states have now shifted course, changing laws to ensure that violent offenders serve hard time while those who are not a danger are steered toward less expensive alternatives that can help alter the paths of their lives and make communities safer.

Taxpayers benefit.  In 2007 the Pew Charitable Trusts projected that state prisons would grow 14% over five years, costing states $27.5 billion more.  Instead, the reforms have bent the curve.  The state prison population is down 5%.  Between 2010 and 2015, 31 states reduced both crime and imprisonment, proving that fiscal discipline and safe streets can go hand in hand.

September 27, 2017 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Monday, July 31, 2017

"The Republican Party, Conservatives, and the Future of Capital Punishment"

The title of this post is the title of this new article authored by Ben Jones now available via SSRN. Here is the abstract:

The United States has experienced a significant decline in the death penalty during the first part of the 21st century, as death sentences, executions, public support, and states with capital punishment all have declined.  Many recent reforms banning or placing a moratorium on executions have occurred in blue states, in line with the notion that ending the death penalty is a progressive cause.  Challenging this narrative, however, is the emergence of Republican lawmakers as champions of death penalty repeal legislation in red states.  This Article puts these efforts by Republican lawmakers into historical context, and explains the conservative case against the death penalty: its incompatibility with limited government, fiscal responsibility, and promoting a culture of life.  Understanding Republican opposition to capital punishment takes on particular importance now following setbacks to efforts against the death penalty in the 2016 election.  In this environment, building support among Republicans and conservatives likely will prove critical for taking further steps toward limiting and eventually ending the death penalty in the U.S.

July 31, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (8)

Friday, June 23, 2017

"People keep voting in support of the death penalty. So how can we end it?"

The title of this post is the notable headline of this notable new commentary by noted death penalty abolitionist Austin Sarat.  The first sentence of the headline highlights an important political reality, and the commentary goes on to review recent political developments and to emphasize the political challenges that abolitionists face.  I recommend the commentary as a modern recap on the state of capital politics and as providing insights on how abolitionists can seek to develop a claim that capital abolition is not anti-democratic.  I found found this little piece of political history especially interesting:

Since the beginning of the 20th century, when states across the country first adopted ballot initiative and referenda processes, 14 of them have put the death penalty on the ballot, some more than once.  From 1912 to 1968, there were 11 such direct votes. Another 23 have occurred since 1968, during the height of America’s tough-on-crime, law-and-order era.

In a few of those elections, voters have been asked only to approve technical changes in their state’s death penalty law. In others, like last year in Oklahoma, they had to decide whether to change their state constitutions to protect or reinstate the death penalty.

Sometimes death penalty abolitionists have led the way in pushing for a referendum. More often, especially since 1968, voters have been asked to respond to a legislative, judicial or executive action which threatened to end, or ended, the death penalty. In those circumstances, the issue generally has been put on the ballot by pro-death penalty politicians.

Yet whatever the form of the question, or the reasons for putting the death penalty to a vote, abolitionists have consistently taken an electoral beating. They lost 31 of the 34 times when voters were offered the chance to express their views.

Let’s consider the three times opponents of capital punishment won. In Oregon, abolitionists prevailed in 1914. But, just six years later, another referendum brought the death penalty back — only to have it voted down again in 1964. Arizona voters rejected the death penalty in 1916, but brought it back in 1918.

Abolitionists have consistently lost in even supposedly progressive states like Massachusetts, which voted in favor of the death penalty in 1968 and 1982.

June 23, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Tuesday, May 23, 2017

"How Far Can Jeff Sessions Take His Crime War?"

The question in the title of this post is the headline of this astute New Republic piece by David Dagan that provides lots of useful context, old and new, for the work and rhetoric coming from AG Jeff Sessions and Prez Donald Trump.  Here are some extended excerpts (with emphasis in the original):

In fact, the last two years have seen worrying increases in the nation’s violent-crime rate, and some American cities have developed a full-blown homicide crisis.  That is a serious problem anybody who cares about criminal justice should be watching closely.  But it does not justify the Sessions-Trump imagery of marauding gangsters terrorizing an entire nation.  Overall, the United States today remains a much safer country than it was 30 years ago.

So the attorney general of 2017 faces a dramatically different climate than the unknown Alabama prosecutor of 1982. Even conservatives are now leading criminal-justice-reform efforts in several red states.  But reformers must keep their guard up.  Because for Sessions, crime is an inherently polarizing issue — and that’s the best news for Republicans who want to crack down.  “We should relish the fact that there will be opposition,” Sessions wrote back in 1982. “We want opposition because it defines who we are and who they are. The bigger the confrontation, the clearer the definition.”...

Sentences will get longer as a result of the May 10 charging memorandum.  But the order may have a greater effect that isn’t so obvious: It may result in not only longer sentences, but more cases being brought, period.  In the last five years of the Obama administration, the number of defendants charged in federal cases plummeted from about 103,000 to about 77,500, the lowest number since 1998.  A number of factors drove that decline, including a hiring freeze that reduced DOJ’s bandwidth.  But John Walsh, who served as U.S. Attorney for Colorado in the Obama administration, says Holder’s policy requiring prosecutors to justify the use of mandatory minimum sentences was also a contributing factor: The rule forced prosecutors to hone in on the worst offenders.  That is now history....

Fortunately, the federal government has limited influence over the calamity of mass incarceration.  The feds do operate the nation’s largest prison system, but that still accounts for only 10.5 percent of people incarcerated in the U.S.  Otherwise, it’s up to the states (with roughly 1.2 million prisoners) and counties (roughly 600,000 jail inmates.)

The only way that Sessions and Trump can really change a political culture that has moved away from the tough-on-crime consensus of the 1980s and 1990s is to lead a public law and order crusade.  The campaign started it, but there’s a long way to go — and a lot of fear-mongering to do — to shift the tide.  Democrats now largely condemn the prison policies they once went along with.  Republicans are more circumspect, but the conservative movement for prison reform has achieved impressive incarceration reductions in some bright-red states.

Despite fears that state and local politicians would be scared off by the tough talk coming out of Washington, the momentum for reform has continued through the beginning of the Trump presidency. “So far, we haven’t seen much of an impact at all,” said Adam Gelb, who runs a unit of the Pew Charitable Trusts that advises states on criminal-justice reform.  “States have built up a strong head of steam, with broad support across the political spectrum for policies that work better and cost less.”

The kinds of states you’d imagine getting behind Sessions’s new “law and order” campaign are actually among those getting behind progressive reforms.  Louisiana is on track to pass a plan that could cut its prison population 10 percent over a decade — probably not enough to shed its status as the nation’s leading per-capita jailer, but significant progress nonetheless.  Utah approved a big juvenile-justice reform in April.  The same month, North Dakota legislators voted to favor probation over prison for low-level felonies, among other changes.  Most surprising, Alabama is poised to restore voting rights for thousands of felons.

The America of 2017 is much less hospitable to a crime war than the America of 1982.  The fact that, despite recent increases, crime remains way down makes it harder to stir up panic than it was back in the 1980s and 1990s.  The rural dimension of the opioid epidemic has contributed to a new understanding of drugs as a problem of public health. Years of activism and aggressive reporting on the ravages of mass incarceration are also beginning to register in the public conscience, especially among millennials to whom the excesses of the past look simply bizarre....

But as Sessions realized years ago, the mix of race, drugs, and crime is a powerful force in American politics.  The fact that Sessions’s sentencing memo was met with deafening silence from Republican members of Congress suggests that spines on Capitol Hill remain as gelatinous on this issue as any other involving the administration.  The onus is not entirely on conservatives, though.  Liberals should do more than simply bat down Sessions’s inaccurate portrayal of the whole country as being in the grips of a violent-crime meltdown.  They should emphasize that the recent uptick in violence is worrying, that some American cities are indeed having a crisis-level problem — and that Sessions has absolutely no idea what to do about this.

We know much more than we used to about fighting crime.  Prisons surely play a role, but we’ve long ago reached the point of diminishing returns from warehousing people.  If Donald Trump cares about Chicago as much as he tweets about it, liberals should argue, then rather than blowing the city off, he would deploy federal money to support policing and violence-prevention programs that work, there and in other high-homicide towns.

If reformers play their cards right, Sessions may ultimately find that the crime war whose terms he understood so well as a young man has been redefined in ways he can no longer grasp.

May 23, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Wednesday, May 17, 2017

Progressive defense attorney wins key primary and now seems poised to become Philadelphia District Attorney

As reported in this local article, a notable and unlikely figure won a Democratic primary and seems poised now to become the most remarkable of modern big city prosecutors.  Here are the basics:

Larry Krasner was the unlikeliest of candidates for district attorney in Philadelphia. That turned out to be just the ticket for victory in the unlikeliest of Democratic primary elections Tuesday.

Progressive voters demanded reform for an office currently held by a man under federal indictment. And the local race was nationalized by a growing sense of resistance among many Democrats in the city to President Trump’s every move.

Krasner, 56, easily defeated six other contenders Tuesday, in a campaign that went from low-key to high-profile last month with a $1.45 million investment from billionaire George Soros in a pro-Krasner independent political action committee. With nearly 98 percent of the vote tallied Tuesday night, Krasner held nearly an 18-point lead on his closest Democratic rival. Krasner will face in the Nov. 7 general election Beth Grossman, the lone Republican in her party’s primary Tuesday.

Krasner, a defense attorney for three decades best known for taking on civil rights cases for Black Lives Matter and Occupy Philadelphia members, AIDS activists and protesters arrested at political conventions, has never served a day in his career as a prosecutor. That became his pitch -- that he was more likely to reform the District Attorney’s Office because he had no ties to the institution, unlike most of the other Democrats in the race.

That message appealed to several hundred people who filled the John C. Anderson Apartments community room and an outdoor courtyard in Center City on Tuesday night for Krasner’s victory party. It got a little rowdy as the results rolled in. Chants of "No good cops in a racist system" and against the Fraternal Order of Police were quickly shut down by Krasner campaign staffers.

Krasner, who lives in West Mount Airy, told the crowd they shared a vision of “a criminal justice system that makes things better, that is just, that is based on preventing crime and is based on building up society rather than tearing it apart." And he reached out to the office he hopes to lead. "To the good people of the District Attorney's Office, I want you to know, you could have made more doing something else, but you became district attorneys because you wanted justice,” he said. “You know what I want? I want what you want. I want justice."

Krasner had a remarkable impact on the primary, pulling the field to the left, leading that movement with a pledge to stop seeking death-penalty sentences if elected. He joked Tuesday night that his position on capital punishment had been described as “political suicide.” As he ended his speech, the crowd launched into a booming chant of "This is what democracy looks like."

Krasner’s primary victory is certain to set off rumblings of uncertainty in the District Attorney’s Office. He has described it as “a place with a mad zeal for the highest charge, for the highest level of conviction, a culture that can find no flaw in police misconduct, that is drunk on the death penalty.” Krasner has also sued law enforcement agencies or the government more than 75 times.

His rise prompted a group of two dozen former District Attorney’s Office employees to endorse former city and federal prosecutor Joe Khan on Friday. Khan finished second in the race, followed by former city Managing Director Rich Negrin, former First Assistant District Attorney Tariq El-Shabazz, former city and state prosecutor Michael Untermeyer, former assistant district attorney Jack O’Neill, and former Municipal Court Judge Teresa Carr Deni.

Krasner, the son of a crime-fiction author and an evangelical Christian minister, grew up in St. Louis and graduated from Stanford Law School, starting his career as a federal public defender before launching his own firm in 1993. He is married to Common Pleas Court Judge Lisa M. Rau.

Krasner’s victory was fueled by biographical television commercials paid for with Soros’ cash. That helped him far outpace Untermeyer, who invested $1.3 million of his own money in the race, and Khan, who outperformed all the other candidates in fund-raising from individual donors.

May 17, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Wednesday, May 10, 2017

Highlighting that conservative voters say they support criminal justice reform efforts

Vikrant Reddy authored this National Review commentary discussing the results of a recent interesting poll (which I highlighted here) under the headlined "The Conservative Base Wants Criminal-Justice Reform."  Here are excerpts:

Last week, the Charles Koch Institute (CKI) polled several hundred conservative voters to assess whether they recognize criminal justice as an important issue currently facing the nation. While specific reasons for their interest are debatable, 81 percent of Trump voters polled described the issue as either “very important” or “somewhat important” — a definite consensus.

Ordinarily, polls that confirm the status quo are not interesting.  This poll, however, caught the attention of those who have been asking whether conservative attitudes towards criminal-justice policy may have changed since the November 2016 election.  It’s a fair question.

The new presidential administration has given mixed messages, sometimes using strong rhetoric about increasing criminal penalties, but other times speaking with thoughtfulness about expanding treatment for opioid addiction.  Some prominent administration figures, such as Vice President Mike Pence, have a history as reformers.  Others, such as Attorney General Jeff Sessions, have a history as skeptics.  The views of the president himself are unpredictable.

Furthermore, when asked if judges should have more freedom to assign punishments other than prison (such as civil or community service), 63 percent of Trump voters “strongly agreed” or “agreed.”  When asked about the practice of civil asset forfeiture, which allows law-enforcement agencies to seize an individual’s property without requiring that the individual be charged or convicted of a crime, 59 percent of Trump voters found common ground with their liberal counterparts, responding that that they “strongly disagreed” or “disagreed” with such policing practices....

People surprised by the results of the poll ought to focus on one important figure: Fifty-four percent of Trump voters said they knew someone who is or has been incarcerated. That may surprise progressives who accuse conservatives of being out of touch and aloof from criminal-justice realities, but it shouldn’t surprise anybody who works in the criminal-justice arena and regularly talks to conservatives about their views....

Increasingly, then, the Americans who experience criminal justice as a personal issue are rural conservatives. Consider the example of Oklahoma.  On the night that Trump won the presidency, voters also approved changes to the state criminal code that reclassified certain drug felonies as misdemeanors, effectively expressing the view that too many drug offenses in Oklahoma were being treated with needlessly long bouts of incarceration. Oklahomans appear to prefer better probation and parole that monitors drug offenders and provides them with treatment.  This referendum vote took place in a state in which every single county voted for Trump.  A higher percentage of people (65.3 percent) voted for Trump in Oklahoma, than in any state, except Wyoming and West Virginia. It’s hard to be “Trumpier” than Oklahoma.

Leadership matters in public policy, and for that reason, it would be good to see clear support for criminal-justice reform from the White House.  Conservative legislators and governors, however, do not need to wait for cues from the administration.  The conservative base is already providing them. They have wanted criminal justice reform for a decade, and their minds did not change because of one election.

Recent prior related post:

May 10, 2017 in Campaign 2016 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, April 26, 2017

ACLU announces "new multi-year initiative to overhaul the power wielded by prosecutors"

Logo-revision2_0Via email I learned of this notable new ACLU press release describing a notable new ACLU initiative.  Here are the details from the release:

As part of its effort to achieve a 50 percent reduction in the U.S. jail and prison population, the ACLU Campaign for Smart Justice today announced a new multi-year initiative to overhaul the power wielded by prosecutors.  District attorneys are major drivers of mass incarceration, lacking accountability and transparency, and posing obstacles to criminal justice reform. The ACLU's initiative includes a series of high-impact, locally driven prosecutorial reform campaigns in a number of states across the country, beginning in Philadelphia where #VoteSmartJustice is underway to educate voters about the district attorney race in the May 16 primary. #VoteSmartJustice is working closely with the ACLU state affiliate and on-the-ground advocates to pursue litigation, legislative advocacy, and nonpartisan voter education — a model that other prosecutorial reform campaigns will follow.

“We will never truly transform our nation’s criminal justice system and end our addiction to mass incarceration until we hold prosecutors accountable,” said Udi Ofer, director of the ACLU’s Campaign for Smart Justice.  “Prosecutors are the most powerful, unaccountable, and least transparent actors in the criminal justice system.  This new effort seeks to not only rid our justice system of bad actors who exploit and abuse unchecked powers, but also to elevate and empower a new generation of prosecutors committed to reducing incarceration.  Particularly during the era of President Trump and Attorney General Sessions, the nation needs local prosecutors who will stand up to unjust federal initiatives and build a smarter and fairer criminal justice system.”

Approximately 3,000 prosecutors throughout the country are responsible for making decisions that affect the lives of millions of people.  The public knows too little about prosecutors and their impact on communities.

Although the mandate of prosecutors is to advance justice, many district attorneys have focused on punishment at any cost.  This approach has increased the jail and prison population; led to sentences that are too severe for the offenses; produced more wrongful convictions and more death sentences; and sent people with addictions, disabilities, and mental health conditions into jails and prisons who should receive treatment or other social services instead. These consequences of unchecked prosecutorial power burden people of color and the poor disproportionately.

To redirect prosecutors’ focus towards reducing mass incarceration, the Campaign for Smart Justice will use its prosecutorial reform initiative to pursue a series of high-impact, locally driven efforts. Together with the ACLU’s state affiliates and on-the-ground advocates, the initiative will follow a three-prong strategy:

Litigation: The initiative is hiring new litigators to file ten lawsuits aimed at holding prosecutors accountable and changing their policies and practices.

Legislative advocacy: The initiative will serve as a clearinghouse for prosecutor reform legislation, actively supporting the passage of key reform measures in ten states.

Voter education: The initiative will engage in nonpartisan efforts in ten prosecutorial elections, conducting voter education about the role that local prosecutors play in fueling mass incarceration.

The first of the initiative’s efforts is underway in Philadelphia, where the Campaign for Smart Justice is working closely with the ACLU of Pennsylvania to conduct an aggressive voter education effort before the May 16 primary.  Dubbed #VoteSmartJustice, this effort has trained dozens of canvassers, most of whom are formerly incarcerated individuals advocating for criminal justice reform, to blanket neighborhoods throughout the city to inform voters about the election and underscore the importance of holding prosecutor candidates accountable for their records.  Among the people to be targeted are the 11,000 ACLU members who are registered to vote in Philadelphia.

“Pennsylvania has the highest rate of incarceration in the Northeast, costing taxpayers $2.5 billion on prisons in 2015 alone,” said Reggie Shuford, of the ACLU of Pennsylvania.  “The impact of that staggering high incarceration rate is felt the hardest here in Philadelphia, and prosecutors have been a major driver of that reality.  This campaign will ensure voters are equipped with information about where the candidates stand on critical issues, and encourage them to demand that, in exchange for their support at the ballot box, candidates must commit to using their power responsibly, fairly, and justly.”

For more information about #VoteSmartJustice: https://votesmartjustice.org/home

April 26, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Saturday, April 01, 2017

"Conservatives Are Leading the Way as States Enact Criminal Justice Reform"

The title of this post is the headline of this extended Slate commentary (which is not an April Fool's Day joke). The piece is authored by LawProf Brandon Garrett, and it carries this subheadline: "Can their enthusiasm stop Donald Trump from pushing his backward 'tough on crime' agenda?". Here are excerpts:

The United States incarcerates its citizens at a higher rate than any other country in the world, but over the past few years, there’s finally been some progress. Rates of incarceration have finally begun to decline, mostly due to sweeping changes made in progressive states like California, New Jersey, and New York. According to Pew Charitable Trusts, adult incarceration has declined 13 percent since its peak in 2007, from 1 in 100 to 1 in 115.  Of course, this progress is threatened by Donald Trump and his administration: The president has not only promised to reinstate a long-outdated approach to criminal justice, he’s also made Jeff Sessions, who holds similarly antiquated views, his attorney general.  The two of them are preparing a task force to study violent crime — despite the fact that it’s already at historic lows — and are aiming to focus resources on drug cartels and drug use. They seem determined to return the federal government to the tough-on-crime era of the 1980s and 1990s, the height of the war on drugs.

But criminal justice reform is still marching forward—and the momentum is largely coming from conservatives, working in their state governments.  The conservative case for reform is obvious: Spending billions of dollars on prison expansion and lengthy sentences is outdated and ineffective. And the state level is where reform will be the most effective — the majority of people are incarcerated in state systems. Reducing that number helps states balance their budgets, said Lenore Anderson, president of Alliance for Safety and Justice, a criminal justice reform organization that centers on crime victims. “Continued budget problems mean that regardless of who’s in the White House, [criminal justice] is going to continue to be a ripe issue for reform.”...

Texas is one of several red states, along with Georgia, Kentucky, Mississippi, Oklahoma, and South Carolina, that has adopted a range of progressive initiatives in the past decade. Texas’ reputation as a gung-ho death penalty state may make its reform efforts a surprise, but in the past decade, fiscal conservatives joined forces with civil libertarians and reduced the state’s incarceration rate by 14 percent.  Part of that was thanks to forensic science and eyewitness identifications reforms that ended up putting fewer people behind bars. And rather than spend a half-billion dollars on building three new prisons, Texas instead invested in rehabilitation and re-entry, which has allowed it to close three prisons and saved billions. Crime has fallen to the lowest levels seen in Texas since 1968.

More than 30 other states have passed justice reinvestment legislation similar to Texas’. These laws divert low-level offenders from prison, use evidence-based risk methods to determine who really needs to be behind bars, reduce penalties for crimes, and aim to make it easier to get work after leaving prison. The cost savings from these reforms is then invested in rehabilitation and mental health and drug treatment, reducing crime even further....

But even with all this progress, a 10 percent to 20 percent drop in people going in won’t change the fact that our prisons are still vastly overstuffed — incarceration has risen 500 percent since the 1970s. Currently, more than half of the state prisoners in the country are serving time for violent crimes. Reducing prison populations to a manageable size must also include a closer look at how we legally define, prosecute, and punish violent crimes....

With Trump in charge, it’s possible that [some] will feel more empowered to push back against the progress that was starting to seem inevitable. The states that go back to this approach will likely see higher incarceration rates, and the costs — both human and fiscal — will fall on the public. But most lawmakers (not to mention the public) seem to have learned that these “tough” approaches failed in every way. We wasted billions to become the world’s leading incarceration nation. Such policies are simply an expensive and self-defeating type of posturing by politicians who value their own self-image over the well-being of the constituents. We already know what type of leader Trump is — let’s hope the state resistance is enough to fight him.

Though I support the sentiments of much of this commentary, I am disappointed that it fails to directly confront the tangible increase in violent crime over the last few years and the various ways in which this increase provides critical fodder for those eager to resist a move away from past "tough and tougher" approaches to crime and punishment. I surmise that AG Sessions and many of those around him sincerely believe crime remains low today only because of the laws, policies and practices of the "tough-on-crime era of the 1980s and 1990s," and these folks can and do now readily suggest that recent reforms to these laws, policies and practices may account in large part for recent crime increases. Past crime declines and now recent crime increases will likely lead these folks to persistently resist even the suggestion that a commitment to tough-and-tougher approaches is "self-defeating" in any way. In turn, they will contend that academics and other reformers are far too eager to put the interests of criminals ahead of victims.

April 1, 2017 in Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

Friday, March 31, 2017

Perspectives on some changing prosecutorial perspectives

This New York Times article, headlined "Lock ’Em Up? Prosecutors Who Say ‘Not So Fast’ Face a Backlash," discusses the debate over a new local Florida prosecutor's announcement that she will not pursue capital cases together with the broader dynamic that more local prosecutors are running and winning on a criminal justice reform platform. (The companion piece briefly profiles "5 Prosecutors With a Fresh Approach.") Here are excerpts:

In Tampa, the top prosecutor says too many children are charged as adults. In Houston, the district attorney will no longer press charges in low-level marijuana cases. And in Chicago, prosecutors will no longer oppose the release of many nonviolent offenders who cannot afford to post bond. Two more newly elected prosecutors, in Denver and Orlando, have vowed not to seek the death penalty, even for the most egregious killers.

They are part of a new vanguard that has jettisoned the traditional lock-’em-up approach, instead winning over voters by embracing alternatives to harsh punishment. But in their eagerness to enact changes, some are facing a backlash from law enforcement groups and more conservative politicians.

In Texas, Lt. Gov. Dan Patrick, a Republican, warned that failing to punish drug crimes would make Houston akin to a “sanctuary city” for illegal enterprise. In Chicago, a suburban police chief warned that a move to classify more shoplifting cases as misdemeanors was “a slippery slope.”

But nowhere has there been more vitriol than in Florida, where a battle over the death penalty shows just how volatile an issue capital punishment remains, especially when the death of a police officer is involved....

The new breed of prosecutors was helped into office by voters skeptical of wrongful convictions, mass incarceration and evidence of racial bias in law enforcement. As candidates, many received help from the liberal billionaire George Soros, who spent millions on campaigns in states including Arizona, Mississippi and Missouri. Of the 15 candidates supported by his political action committees (including one for sheriff), 12 were victors.

But some change-minded prosecutors won without Soros money, showing that attitudes across the country are changing regardless of outsize political contributions, said David A. Sklansky, a professor at Stanford Law School who closely follows the issue. “It’s now possible in at least some places for district attorneys to campaign successfully and win office on a platform that’s not just harsher, harsher, more, more punishment,” he said. “That was unheard-of 10 years ago.”

Bob Ferguson, the attorney general of Washington State, said, “I think our public’s view of our criminal justice system has evolved.” Speaking out against the death penalty, he added, “is not the third rail people think it is.”

March 31, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, February 25, 2017

"Conservative Criminal Justice Advocates Try To Change The System — Even In The Trump Era"

The title of this post is the title of this new BuzzFeed News piece which follows up with this subheadline: "Conservative groups pushing for changes to the criminal justice system flooded this year’s conservative confab known as CPAC hoping to convince more people on the right to embrace their cause." Here are excerpts:

Groups, like the American Conservative Union Foundation, an arm of the ACU, which hosts CPAC, hope to convince more people on the political right to embrace the cause as a conservative one by leveraging their recent successes at the state level and reminding lawmakers that it’s an issue with support from multiple conservative groups.

“I do feel that letting politicians know that we are large in numbers and we do support this, and we are present at all of these events, we’re not going to go away; it’s something that’s important and it’s […] a part of the conservative movement,” says Christina Delgado, a spokesperson for the conservative group FreedomWorks....

But some, especially members of the Republican conference in Congress, have expressed concerns over whether reforms — which aim to reduce mass incarceration, rising prison costs, and recidivism rates — represent a soft-on-crime approach to the criminal justice system that could jeopardize public safety. “You do have people that have a bit more of a reactionary tough-on-crime approach that have come up to the booth and talked to us about it,” says Derek Cohen, deputy director of Texas-based Right on Crime, which is also attending CPAC. “But once you start talking to them about, you know, the practicalities of running a criminal justice system, they actually get it very quickly.”...

Delgado says the issue came up in questions during a Thursday event hosted by FreedomWorks that featured Kentucky Gov. Matt Bevin, a Republican who recently signed an order to try to help ex-offenders land jobs after their sentence is up.  Delgado says Bevin noted “it’s not about going softer on crime, it’s about just making sure that we’re addressing the more important aspects of crime, and that is the actual danger, the actual criminals, the actual problem.”

Cohen says different types of conservatives — social, fiscal, libertarian — “all have their own reasons for actually being interested in the reform campaign.”  For many libertarians, it’s issues such as civil asset forfeiture that make the case for criminal justice reform.  For fiscal conservatives, it’s about cutting rising corrections costs.”...

But even with progress happening in Republican-leaning states, it remains to be seen where exactly the new Trump administration will fall on specific federal criminal justice issues. Trump said he wanted to “bring back law and order” during the election campaign, but has not detailed what that will mean.

Though not all are convinced Trump will be swayed by the arguments for criminal justice reform — his attorney general, Jeff Sessions, was a vocal opponent during his time in the Senate — pro-reform groups are hoping state successes appeal to Trump.  “As President Trump considers how best to reduce crime and restore public safety, we hope that he can learn from reform champions in states like Oklahoma, Louisiana and Kentucky to chart a new path for America,” Steve Hawkins, president of the Coalition for Public Safety — another CPAC attendee — said in a statement to BuzzFeed News.

Cohen says Right on Crime, which has attended the last five CPACs, has met with members of Congress recently, and that “there seems to be renewed energy” in passing reform legislation.  Judiciary Committee members Sens. Dick Durbin and Chuck Grassley have said they plan on re-introducing the bill in the current sessions of Congress.  “Now, what shape that reform’s going to be in, I think is a bit premature to say,” Cohen said, “but there definitely is the same appetite if not a greater one.”

Recent prior related post:

February 25, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, February 21, 2017

A few notable criminal justice panels at CPAC

It is around that time of year for the annual Conservative Political Action Conference (CPAC), and the misbehavior of one conservative is generating all the pre-CPAC buzz. But, as has been the story for the last few years, sentencing fans should be intrigued by some of the criminal justice reform programming appearing on the CPAC 2017 agenda. Specifically, I found notable these two panels scheduled for Friday this week:

Prosecutors Gone Wild

Moderator: Pat Nolan, ACU Foundation Center for Criminal Justice Reform

David A. Keene, The Washington Times

Sidney Powell, Former U.S. Attorney

Kevin Ring, Families Against Mandatory Minimums

 

Conservatives Leading the Way on Criminal Justice Reform in State Capitals

Moderator: David Safavian, ACU Foundation Center for Criminal Justice Reform

State Rep. Julie Emerson (LA-39)

Marc Levin, Right on Crime, Texas Public Policy Foundation

Pat Nolan, ACU Foundation Center for Criminal Justice Reform

February 21, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Tuesday, February 14, 2017

Noting central place of Texas in (incomplete) consensus disfavoring increased use of incarceration

Today's New York Times has this extended commentary about incarceration authored by Tina Rosenberg running under the headline "Even in Texas, Mass Imprisonment Is Going Out of Style."  Here are excerpts:

It promises to be a bleak four years for liberals, who will spend it trying — and, most likely, failing — to defend health care, women’s rights, climate change action and other good things.  But on one serious problem, continued progress is not only possible, it’s probable. That is reducing incarceration.  In an era of what seems like unprecedented polarization and rancor, this idea has bipartisan support. The Koch brothers and Black Lives Matter agree.  The American Civil Liberties Union and the American Conservative Union Foundation agree.  Bernie Sanders and Newt Gingrich agree.

Here’s what they agree on:

• The United States went overboard on mass incarceration in the 1980s and 1990s.

• This has ruined a lot of lives — of those incarcerated, yes, but also others among their families and communities.

• The evidence says that harsher sentences don’t prevent crime and may even lead to more crime.

• Jailing people is really, really expensive.

• Prison brings no help and much harm to the 80 percent of prisoners who are addicted to drugs or mentally ill.

• There are alternatives to imprisonment that keep Americans safe.

(There are also crime and justice issues that these liberals and conservatives do not agree on, such as the death penalty, the merits of private prisons and, of course, guns.)

Even all this agreement is no guarantee of progress in Washington.  President Trump’s policies on crime are whatever slogans get the crowd roaring. Attorney General Jeff Sessions has a D-plus record on this issue as a senator.  He supported reducing the disparity in sentencing for cocaine and crack possession. He did vote for the Prison Rape Elimination Act — kudos for that, I suppose.  But last year, Mr. Sessions, along with a few other Republican senators, blocked the major bill on this issue, the Sentencing Reform and Corrections Act, from coming to a vote.  So the administration can be expected to be unhelpful, with Congress a question mark.

While Washington’s actions are important, however, federal prisons hold only one in eight imprisoned Americans.  So mass incarceration is really a state issue. And in the states, momentum is heartening. After quintupling between 1974 and 2007, the imprisonment rate is now dropping in a majority of states.  Overall, it fell by 8.4 percent from 2010 to 2015, while crime dropped by 14.6 percent, according to research by the Pew Charitable Trusts.

California slashed its incarceration rate by 27 percent between 2006 and 2014 after a court order. New York cut its rate by 18 percent, largely because of reform of the Rockefeller drug laws that mandated long sentences for possession. New Jersey’s rate dropped by 24 percent.

More remarkable — and probably more persuasive to other states and to Congress now — is the shift in red states, where incarceration rates have been the highest. In the last decade, they have dropped substantially in South Carolina, Mississippi, Georgia and, notably, in lock-’em-up Texas....

The cost of prisons was a huge issue.  In 2007, the Texas Legislative Budget Board projected that the state would need more than 17,000 new prison beds over five years, a building project that would cost $530 million, never mind the operating costs. That pushed the ultraconservative House speaker, Tom Craddick, to a breaking point. Jerry Madden, the Republican chairman of the House Corrections Committee, said in an interview that Craddick took him aside. “Don’t build new prisons,” Craddick told him. “They cost too much.”

Madden was an engineer and took that approach, asking: What is proven to work to keep people out of prison? How much of that do we need to buy in order to not build more of them? For ideas, he and his staff talked to research and advocacy groups, including the liberal coalition and the conservative Texas Public Policy Foundation, which gave birth to and houses Right on Crime.

That there was a conservative research group to consult was in itself remarkable. “No one in conservative think tanks worked on criminal justice, other than to advocate for more prisons and more incarceration,” said the foundation’s director, Brooke Rollins, who had been Gov. Rick Perry’s policy director. But in 2004, Rollins got a call from Tim Dunn, an oilman who helps fund the foundation and serves on its board. Dunn has put millions of his own money into pushing the Texas legislature further to the right. Texas Monthly called him “probably the most influential person many Texans have never heard of.”

“Conservatives are wrong on crime,” he told a startled Rollins. “Scripture would not call us to build prisons and forget people.” Dunn believes that crime victims want restitution and repentance, while the prison system merely incapacitates. On his personal website, he wrote that “nonviolent crimes should be recompensed in a way that gets people back into the work force and adding to communities as quickly as possible,” and that Texas should “focus on restoring victims and communities damaged by crime.”

At Dunn’s urging, Rollins hired Levin part time to work on a conservative approach to criminal justice reform. “We found the conservative and liberal think tanks agreed on 70, 80 percent of the stuff,” said Madden.  And it’s those areas of agreement that were put in the bill. The reforms passed nearly unanimously — and although Perry had previously vetoed narrower reforms, this time he signed them. (He now endorses the Right on Crime agenda.)  Reforms continue today: 16 bills passed in the last legislative session, including one allowing people to erase their criminal records in some circumstances....

The state now has drug courts, veterans’ courts and mental health courts. “They are there to provide help, but at the same time, structure,” said Madden, who is retired from the legislature.  “You have a problem and we’re going to help you with your problem.”  Many inmates were in prison for technical violations of their probation or parole. Now those violations often bring rapid sanctions and supervision instead of a return to prison.

The rate of incarceration in Texas state prisons fell by 17 percent from 2007 to 2015, according to the coalition, and the juvenile incarceration rate fell by nearly three-quarters. Recidivism is dropping steadily. At the same time, the crime rate has dropped by 27 percent.

Texas still has much to do. It ranks sixth or seventh in the nation in imprisonment rates. Some 8,900 people are in the state jail system for crimes that are neither violent nor sexual. Many are there for drug charges, but they often can’t get treatment in jail.  Thousands of people are sent back to prison each year for technical revocation of parole or probation.  As for juveniles, 22,000 are in the adult system, where they are at high risk of sexual assault and suicide....

The fall in crime rates — itself a reason incarceration has dropped — has made reform politically possible. Conservative leadership in states like Texas gives everybody cover. And Americans support criminal justice reform by large majorities.  One telling example: in his re-election campaign in 2014, Gov. Nathan Deal of Georgia, a Republican, highlighted his reforms that lowered the rate of incarceration among African-Americans by 20 percent.  Twenty years ago, a Republican in Georgia would have boasted about the opposite.

If crime rates begin rising again, could hard-line thinking once more prevail? Yañez-Correa doesn’t think so. “Many legislators want to work on these issues jointly because other issues are so polarized,” she said. “People on both sides are genuinely interested and devoted.”

This story is important and encouraging, but it fails I think it connect fully with the import and impact of Prez Trump campaigning on a "law and order" platform and his eagerness to make much of the uptick in murder and other violent crimes in some big cities in recent years.  The folks over at Crime & Consequences and many others are quick and keen to link any and every increase in crime to recent decreased use of incarceration, and that perspective is certainly some element of how Prez Trump and AG Sessions think about crime and punishment issues.

I remain hopeful that, especially at the state level, there is continued interest in, and bipartisan support for, an array of "smart on crime" alternatives to incarceration for a range of less serious and less dangerous offenders.  But I do not think that Prez Trump and AG Sessions, arguably the two most important criminal justice policy-makers for the next few years, subscribe to all or even most of what is listed above in the commentary as points of agreement.  And that is a very big deal that must always be front and center as one considers the future of criminal justice reform at both the federal and state level.

February 14, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Monday, January 30, 2017

Is VP Pence going to be a key player for possible federal sentencing reform?

The question in the title of this post is prompted by this interesting new Daily Caller article headlined "Want Drug-Sentencing Reform? Look To Mike Pence, Congressman Says. Here are the details:

Criminal-sentencing reform proponents in Congress are “hopeful” that Vice President Mike Pence will be an ally, helping them to work with the new law-and-order administration to pass legislation to cut mandatory minimum sentencing for drug-law offenders. “I’ve got reason to be hopeful,” House Oversight Committee Chairman Jason Chaffetz told reporters at a morning session of the Seminar Network, a large group of wealthy libertarian and conservative donors gathered in Palm Springs by Charles and David Koch....

Speaking to reporters alongside Sen. Mike Lee, also of Utah, Chaffetz said, “Gov. Pence, having been a governor, he understands this. In the end, he’s done some wise things. And I also think you will see concerted support from conservative governors who will buoy up any support in the White House.”

“If you’re going to be tough on crime, you better be smart about it.  And there are hardened criminals who do need to spend the rest of their lives in prison.” But, he added, we need to fix the problem of repeat offenders spending years in prison for drug crimes.

Doug Deason, a Seminar Network donor with an interest in sentencing reform, highlighted the White House’s new legislative director, Marc Short, as another reason to be hopeful. Before joining the administration, Short was a longtime adviser to Pence and a lead deputy in the libertarian Koch network. “He cares passionately about criminal justice reform,” Deason said.  Deason, a Texas businessman who is president of Deason Capital Services, was less enthusiastic about Sessions, telling reporters, “I’m glad they got him out of the Senate, they got him out of the way!”

Chaffetz defended Sessions, however, pointing to the Fairness in Sentencing Act the Alabama senator shepherded through in 2010, reducing the difference between sentences for crack cocaine and powder cocaine. “I think last year we were caught up in presidential politics… and I think he’s in a different position now,” Chaffetz said....

“We were so close last time,” Lee, a member of the Senate Committee on the Judiciary, lamented to reporters at the seminar.

January 30, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Thursday, January 19, 2017

"Dear President Trump: Here’s How to get Right on Crime, Part 2"

As noted in this prior post, the Marshall Project this week has a timely three-part series in which leading conservatives working on and advocating for criminal justice reform are setting out the conservative case for reforms. The first commentary was authored by Pat Nolan and carried the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration."

The second in the series here is authored by Vikrant Reddy and carries the subheadline "End overcriminalization, reward success, pay attention to the heroin crisis." Here are excerpts:

Criminal justice reform advocates are pessimistic about the prospects for federal sentencing reform under the new presidential administration. Federal sentencing, however, is only one component of America’s vast criminal justice system. There are several other areas where the administration and reformers could find common cause.  Here are just three reforms widely supported by advocates which are also consistent with a “Trumpian” worldview.  They should be at the forefront of a serious federal reform agenda over the next four years.

Scaling Back Overcriminalization

There are now over 5,000 obscure federal crimes, such as shipping lobster in plastic rather than cardboard boxes, that are more appropriately treated as administrative or regulatory matters. Furthermore, the mens rea or “state of mind” portions of many criminal statutes (which specify whether the conduct must be purposeful, knowing, reckless, or negligent) are frequently left out when laws are drafted. Reversing this “overcriminalization” has long been a priority for conservatives. Yet it has also been a priority for prominent progressive voices, such as the National Association of Criminal Defense Lawyers and U.S. Representatives John Conyers and Bobby Scott....

Performance-Incentive Funding

One of the most widely-admired strategies for improving criminal justice outcomes is performance-incentive funding (PIF). The idea is simple: Governments should fund prisons (and community corrections programs, for that matter) based on outcomes achieved, not merely on the number of people incarcerated. A government that contracts for lower recidivism rates and increased restitution payments to victims is more likely to find that its prisons are encouraging education and job training behind bars. People from the business world who are more concerned with results than with ideologies — such as Donald Trump — are likely to understand this truth intuitively: You get what you pay for....

Combating Heroin Addiction

On Election Day, Trump performed unusually well in communities ravaged by heroin abuse. He seemed to understand that he owes it to these voters — his base — to take the issue seriously. His administration will likely pursue a law enforcement solution that attacks the “supply side” of the heroin problem, as Trump frequently promised on the campaign trail. There is also a “demand side” to the problem, however, and Trump must treat this side of the problem with equal urgency.  This means redirecting scarce resources from incarceration to less costly and more effective diversion programs that treat addiction.

Prior related post:

January 19, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Wednesday, January 18, 2017

"Dear President Trump: Here’s How to get Right on Crime, Part 1"

The title of this post is the headline of this notable new Marshall Project piece that is the start of a timely three-part series.  Here is how the Marshall Project editors set up the series:

The election of Donald Trump, who ran a swaggering tough-on-crime campaign, disheartened many advocates of bipartisan criminal justice reform.  The Marshall Project invited conservatives active in that cause to make a case to the president-elect — a conservative case — for ways to make the system more fair, humane and effective.  This is the first of three commentaries.

The commentary to kick this off comes from Pat Nolan and carries the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration."  Here is how it gets started:

Conservatives believe that the core function of government is keeping the public safe from harm within the constraints of individual liberty and limited government. We know it is the nature of bureaucracy that government agencies grow in size and inefficiency. The justice system must be held accountable for wise use of tax dollars just as it holds offenders accountable for their actions.

Crime is more than lawbreaking — it is victim harming. Victims should be involved at all stages of the justice process, and the system should aim to repair the harm caused by the crime whenever possible. Offenders should be held accountable to make restitution to their victims.

Evil intent (mens rea) has long been an essential element of all crimes. In recent years, however, the mens rea requirement has been dropped in favor of finding criminality even if there is no intent to break the law. Thus, an act committed in good faith can become the basis for a criminal conviction and a prison sentence. This is wrong, and mens rea must be restored as a key element of every crime.

The greatest power we cede to government is the ability to put someone in prison. While prisons are necessary to isolate offenders who threaten the safety of the community, there is a growing tendency to overuse prisons even when the public is not endangered. There are proven ways to hold non-dangerous offenders accountable without sending them to prison. We should use costly prison beds for the truly dangerous. Prisons are for people we are afraid of, but too often they are used for people we are merely mad at.

Cases should be decided individually, not as an assembly line of one-size-fits-all sentences. The harm done by a sentence should never be greater than the harm caused by the crime.

Crime that crosses state lines and national borders is the proper purview of federal laws. Other than those limited situations, crime is an inherently local problem and should be governed by local and state laws. However, in recent years Congress has federalized many crimes such as carjacking which have no national scope merely to strike a politically popular pose.  Only those crimes that have a national reach should be federalized. Other crimes should be left to local law enforcement that is more responsive to their residents.

We recommend greater use of problem-solving courts, such as drug courts, veterans’ courts and mental health courts tailored to the special problems faced by these populations.

Prisons should do more than warehouse inmates. They should prepare offenders for their return to society by providing educational programs such as GED classes, drug treatment, anger management, and job skills. The cost of these programs is far exceeded by the savings from the resulting drop in crime rates.

January 18, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, January 11, 2017

Great political and practical "state of reform" reviews via Jacobin

ImagesThe magazine Jacobin has recently run two effective pieces by two effective writers about the politics and practicalities of modern sentencing reform efforts. Here are links to the lengthy pieces, both of which I recommend in full, with their introductions:

"Conservatives Against Incarceration?: Fiscal conservatives were never going to bring down the carceral state. A broader fight against social inequality is needed." by Marie Gottschalk

Many are mourning the death of comprehensive criminal justice reform at the federal level in the wake of the election of Donald Trump, who unabashedly campaigned as the law-and-order candidate. They fear we may be at the beginning of the end of the “smart-on-crime” era, in which historic adversaries across the political spectrum joined forces to reverse the punitive policies and politics that have turned the United States into the world’s leading warden.

Some have sought solace in the belief that Trump’s victory will have a limited impact because most people are apprehended, tried, and sentenced subject to state and local statutes and authorities, not federal ones, and that 90 percent of the more than 2 million people incarcerated today in the United States are serving their time in state prisons and county jails, not federal penitentiaries. They view Trump as a political meteorite that may have blown up the elite bipartisan reform coalition in Washington as it blazed through an uncharted political universe but left promising reform coalitions at the state and local levels largely intact.

This conventional postmortem paradoxically overestimates Trump’s responsibility for imperiling criminal justice reform at the national level while underestimating his likely impact on state and local reform efforts.

Trump’s outsized personality and spectacular victory obscure the reality that the smart-on-crime approach had severe limitations and weaknesses that have been hiding in plain sight for years. The politics that gave birth to this strange bedfellows coalition engineered by Right on Crime — a group of brand-name conservatives and libertarians that included Newt Gingrich, Grover Norquist, and Charles and David Koch — helps explain both its limited accomplishments and the triumph of Trumpism.

"America’s Durable Monstrosity: New figures show that the US prison population has dropped. But mass incarceration remains firmly intact." by Daniel Denvir

A ray of sunshine recently poked through the otherwise gloomy holiday headlines: “US prison population falling as crime rates stay low.”  The prison population has indeed fallen, and crime rates are still down.  But while the crime that politicians exploited to create mass incarceration has plummeted, the number of prisoners locked up in the name of public safety has only budged.

Mass incarceration, in short, remains a durable monstrosity.

As of 2015, an estimated 2,173,800 Americans were behind bars — 1,526,800 in prison and 728,200 in jails — according to recently released data from the Bureau of Justice Statistics.  That’s 16,400 fewer people in jail and 35,500 fewer prisoners than in 2014 — a 2.3 percent decline and, for prisoners, the largest single-year drop since 1978. The 2015 figure also marks the lowest overall prison population since 2005. Crime rates have plunged, falling “to levels not seen since the late 1960s.”

But even as the US becomes a much safer country, it still incarcerates its citizens at much higher rates than most any other on earth.  To put things in perspective, our prison archipelago today confines a population similar in size to the city of Houston or the borough of Queens.

At the dawn of mass incarceration in 1980, the US’s already-quite-large prison population was estimated at 329,821. To return to that number, the governments would have to replicate the recent 35,500-prisoner reduction for roughly thirty-four years in a row.  That’s a very long time to wait for the poor communities — particularly but not exclusively brown and black ones — that mass incarceration devastates.

The criminal justice reform movement has stopped losing. But it hasn’t really started to win.

January 11, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, December 21, 2016

Detailing how global financier George Soros has been funding efforts to take out local prosecutors

161215_soros-map_v1I often think about the slogan "Think globally, act locally," and that phrase jumped to mind when I saw this fascinating Daily Signal article headlined "The ‘Staggering’ Campaign of Liberal Billionaire George Soros to Swing Local Prosecutor Elections." Soros is a "global player" in many respects, and yet this lengthy article highlights his latest local efforts. Here are excerpts:

Soros, 86, an American hedge fund manager and philanthropist, is No. 22 on the Forbes list of the world’s billionaires, with a net worth estimated at $20 billion. He finances a variety of liberal political causes, including ones related to education, immigration, climate change, and the environment. Soros’ philanthropic network, the Open Society Foundations, has spent more than $13 billion over the past three decades on initiatives to defend human rights abroad and shape the democratic process in Eastern Europe.

Soros gave an unprecedented $27 million to various 527 groups trying to defeat President George W. Bush in his 2004 re-election campaign, describing the effort as a “matter of life and death.” Soros also helped launch the Democracy Alliance, a group of major liberal donors seeking to advance progressive policymaking by investing in organizations such as Center for American Progress, Media Matters for America, and Organizing for Action, which was set up to advance the agenda of President Barack Obama.

Soros has not personally spoken with or met any of the candidates he supported in district attorney races this year and last, his advisers say. In most of the dozen prosecutor races he helped finance, Soros did not coordinate at all with the candidate he supported, they said. Instead, he operated independently by giving money to various state-level political action committees (PACs) and a national “527” unlimited-money group, each identified by a variation on “Safety and Justice.”

The form of his contributions depended on local and state campaign finance laws, Soros’ advisers say, and in some cases, as in Harris County, the collaboration was more direct.

Soros’ efforts are part of a new, broader push by progressives to locate, prepare, and fund challengers to unseat incumbent prosecutors. Such upsets are notoriously difficult to achieve in local district attorney races, where name recognition and outside interest are usually low and voters give deference to the candidate with a record. “Criminal justice reform efforts must take many forms,” Whitney Tymas, an adviser on Soros’ project challenging sitting prosecutors, said in a statement to The Daily Signal. Tymas added:

Changing laws and redirecting funding streams is critical. Because of the enormous discretion vested in those who enforce the laws, including prosecutors, it is also important to elect officials who are committed to public safety and equal justice. These officials are a key leverage point in a complicated system.

David Alan Sklansky, a Stanford University professor and former federal prosecutor, told The Daily Signal that only a “handful” of races for the 2,500 district attorneys’ offices nationwide included candidates with “reform-oriented” agendas, and of those that did, most did not involve contributions from Soros. “In a number of high-visibility district attorney races around the country, incumbents this year were unseated by challengers who promised a more moderate approach to criminal justice, backing away from a simple ‘tough on crime’ agenda and paying more attention to fairness, proportionality, and equity,” Sklansky said. “Many of these successful candidates also pledged to improve the investigation of police shootings, to rein in prosecutorial misconduct, and to be more vigilant in avoiding and correcting wrongful convictions.”

Still, Soros’ role in local prosecutor races is significant. It touches counties big and small, urban and rural; northern, southern, western, eastern, and midwestern. In total, Soros spent nearly $11 million on 12 district attorney races this election cycle, campaign filings show. A Democrat candidate supported by Soros ultimately won in 10 of the 12 races.

The trend of outside funding worries opponents of Soros’ tactics, including veteran district attorneys who say the outsize contributions threaten prosecutorial independence, which is especially important in a role as powerful and all-encompassing as theirs. “The amount of money we are talking about is staggering,” said Joshua Marquis, the district attorney of Clatsop County, Oregon, since 1994 and a board member of the National District Attorneys Association. “And it’s amplified because it’s extremely difficult to raise money as a prosecutor,” Marquis told The Daily Signal...

Soros so far has backed only Democrats in district attorney races, but his advisers insist his support for candidates isn’t based on political party and say Soros would consider making a large contribution to a “reform-minded” Republican prosecutor....

Prosecutors drive critical decisions in the criminal justice system, choosing when, whether, and against whom to bring criminal charges, as well as making recommendations for sentencing and setting the terms of plea negotiations. These decisions are receiving more scrutiny at a time where there is a growing bipartisan consensus around the need to reduce incarceration, provide more alternative punishments, and expand rehabilitation opportunities for low-level drug offenders.

As part of this effort, Soros, along with progressive groups advocating racial justice and gender equality, is trying to elect more minority prosecutors in response to what he sees as an insufficient response by incumbent district attorneys to the fatal shootings of black men by police officers. Several candidates who Soros backed are members of minority groups.

The Reflective Democracy Campaign, an arm of the progressive Women Donors Network, found in a 2015 study that 95 percent of elected local prosecutors were white. “Of course, what was happening with Black Lives Matter and police shootings was a huge wake-up call [for progressives, who began] realizing how much power these offices have and the need for us to be focused on getting great people elected,” Andrea Dew Steele, president of Emerge America, a candidate-training organization for Democratic women, said in an interview with The Daily Signal. “District attorney races have historically just been completely ignored, like most down-ballot races, in the progressive and Democratic community,” Steele said. “I am just thrilled to see that if you give a little bit of love to these races, a small investment yields a huge outcome.”

In Chicago’s Cook County, Soros funded one of several groups that helped Kim Foxx, who is black, defeat the incumbent state’s attorney, Anita Alvarez, in the Democratic primary. Foxx then easily beat her Republican general election opponent. Alvarez drew widespread criticism for her handling of the 2014 fatal police shooting of Laquan McDonald, a black 17-year-old. She took 13 months before charging the Chicago police officer who shot and killed McDonald, a delay that sparked protests.

“Soros’ funding was a big factor in my loss, obviously,” Alvarez, the first female and first Hispanic candidate to be elected as Cook County’s top prosecutor, said in an interview with The Daily Signal. “Some people want to say I lost my election simply because of the McDonald video, but I felt this movement prior to my charging that officer. When you have these outside influences, it’s scary because they don’t know the climate—that Chicago has a serious violent crime problem, a serious gun problem.”...

Soros and allied progressive groups say they will continue grooming and supporting prosecutor candidates who share their goals. Steele, of Emerge America, says she already is looking ahead to the 2018 elections, with plans to recruit and train at least 25 Democratic women to run in district attorney races.

Women, she says, are uniquely sensitive to the consequences of incarceration and, as prosecutors, are likely to use their powers more carefully. “I am hopeful that Emerge will have women running for district attorney in 2018 and make it onto Soros’ radar screen,” Steele said. “The George Soroses of the world can’t get the outcomes they desire unless you have great candidates. So what we are doing is a critical piece.”

She does not apologize for the aggressive outreach, arguing that because a state’s top prosecutors are elected, the process to become one is inherently political. “All of these races are political,” Steele said

Marquis, of the National District Attorneys Association, says he doesn’t doubt the sincerity of Soros and of progressive groups. He emphasizes that many members of the association, which represents state-level district attorneys across the U.S., support reform. Indeed, the National District Attorneys Association made headlines earlier this year when it endorsed compromise legislation in Congress meant to reduce mandatory minimum sentences for low-level drug offenders in the federal prison system.

Yet Marquis said he worries that despite these efforts, some incumbent members of the association could lose their jobs to better-funded challengers. “This is the source of great conversation among district attorneys,” Marquis said. “A lot of us are sitting around saying, ‘What if it’s me next? What if I am targeted?’”

December 21, 2016 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Tuesday, December 20, 2016

"Free the Vote: Unlocking Democracy in the Cells and on the Streets"

The title of this post is the title of this new short publication from the NAACP Legal Defense and Educational Fund, Inc. (LDF) and The Sentencing Project.  This webpage review the publication's contents and mission:

The NAACP Legal Defense and Educational Fund, Inc. (LDF) and The Sentencing Project have issued Free the Vote: Unlocking Democracy in the Cells and on the Streets, reporting on the racially discriminatory and ever-growing problem of felony disenfranchisement. The denial or abridgement of the right to vote for 6.1 million people with felony criminal convictions is a stain on our democracy.

The millions of Americans who are currently prevented from voting due to felony convictions are more than twice the difference of the popular vote in the contentious 2016 presidential election. Particularly striking is that one in 13 Black Americans of voting age is disenfranchised because of a felony conviction—a rate four times greater than non-Black Americans.

The issue is compounded by the fact that often, for redistricting purposes, incarcerated people are counted as residents of largely white rural areas where prisons are predominately located (i.e., prison-based gerrymandering). Thus, Black urban communities, from which the incarcerated population disproportionately comes, lose the critical voices of persons with felony convictions, who not only are denied a fundamental stake in the democratic process, but also who could provide insight into issues of criminal justice reform, employment, and educational opportunities.

“Felony disenfranchisement laws are shamefully nothing new,” said Leah Aden, Senior Counsel at LDF. “In the era following slavery disenfranchisement laws were tailored to limit the political power of newly-freed Black people. These racially discriminatory laws gained steam in recent decades as the failed ‘war on drugs’ and “tough on crime” policies incarcerated millions of Black and Latino Americans, continuing to weaken the voting power of communities of color.”

“Disenfranchisement policies are fundamentally at odds both with democracy and with the need to support individuals in their reentry from prison,” says Marc Mauer, Executive Director of The Sentencing Project. “By extending the right to vote to people in prison and with criminal records, we can both build a more inclusive democracy and make our communities safer.”

Among its findings, Free the Vote highlights:

◾ The impact of felony disenfranchisement laws on Black voting strength at the state level. In Florida, for example, more people with felony convictions are disenfranchised than in any other state, with Black disenfranchisement rates exceeding a fifth (21%) of the adult Black voting age population. Similar data comes out of other states such as Kentucky, Tennessee, and Virginia.

◾ Prison-based gerrymandering exacerbates the negative effects of felony disenfranchisement. In the city of Anamosa, Iowa, a councilman from a prison community was elected to office from a ward which, per the Census, had almost 1,400 residents—about the same as the other three wards in town. But 1,300 of these “residents” were prisoners in the Anamosa State Penitentiary. Once those prisoners were subtracted, the ward had fewer than 60 actual residents.

◾ Only Maine and Vermont do not restrict voting based on a felony conviction. Both states allow individuals to vote from prison via absentee ballot. Recently, there have been successful efforts to reform felony disenfranchisement policies in Maryland, Virginia, and California.

◾ Following the historic and substantial participation of people of color in the 2008 and 2012 elections, felony disenfranchisement laws that curb voting power remain a barrier to expanding America’s voting population. These laws discourage future generations from exercising the learned behavior of voting and receiving the benefits of having their voices reflected in the political process.

LDF and The Sentencing Project aim to not only ameliorate felony disfranchisement laws, but also to eradicate them. Together, we can free the vote for people who have been made vulnerable by harmful and discriminatory laws and in turn, strengthen our collective democracy.

December 20, 2016 in Collateral consequences, Elections and sentencing issues in political debates, Prisons and prisoners, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Friday, December 16, 2016

"Why Congress May Bring Criminal Justice Reform Back to Life"

The title of this post is the headline of this effective new Marshall Project analysis by Bill Keller, which carries the subheadline " Four reasons a bipartisan bill has a better chance than you think." Here are excerpts:

It’s no wonder criminal-justice reformers woke up from Election Day 2016 with a sense of existential gloom. Given candidate Donald J. Trump’s law-and-order bluster, his dystopian portrayal of rising crime and an ostensible war on the police, and a posse of advisers who think the main problem with incarceration is that we don’t do enough of it, the idea that justice reformers have anything to look forward to is at best counterintuitive.

It is reasonable to expect that President Trump and his choice for attorney general, Jeff Sessions, will dismantle at least some of what their predecessors leave behind. Based on what they have said, the Trump-Sessions Justice Department may well roll back federal oversight of troubled police forces, escalate the war on drugs, enlarge the share of the corrections business that goes to private companies, accelerate deportations of undocumented immigrants and use the threat of financial sanctions to challenge so-called sanctuary cities....

But those inclined to look for silver linings may find one on Capitol Hill.... I can think of four reasons the prospects of federal reform are actually better in 2017.

First, it is not an election year. Nothing makes members of Congress squirm like the specter of attack ads portraying them as coddlers of criminals. There is reason to think those Willie Horton-style gotchas have lost some of their potency, but the prospect tends to make members of Congress more risk-averse in even-numbered years. And the lobbying alliance in favor of reform has grown and diversified and offers supportive candidates some political cover. It now includes significant numbers of police executives and prosecutors, who say our tendency to over-criminalize and over-punish wastes money and human potential without making us safer.

Second, President Obama will be gone. Some of the resistance to this year’s sentencing bill was a reluctance to give the president a parting victory. His heartfelt embrace of criminal-justice reform in the final years of his presidency was — through no fault of his own — the kiss of death in a hostile Congress.

Third, at least one of the hard-core Senate opponents of sentencing reform will no longer be there. That would be Jeff Sessions, the Republican senator from Alabama. True, as attorney general he will be in a position to encourage a presidential veto. But he will not be joining the obstructionists who this year never let a bill come to a vote at all. The chairman of the Senate Judiciary Committee, Charles Grassley, said in October that if his party leadership had brought the bill to the floor, it would have garnered 65 to 70 votes — enough to override a veto.

And fourth, the Republican leadership will be looking very hard for bipartisan successes to demonstrate that Washington is no longer in a state of ideological paralysis. On the short list of things Congress could do to reassure voters that government is back in business, criminal justice ranks near the top. The subject attracts libertarians who have come to see the machinery of criminal justice as another example of overbearing government, conservative Christians who see the criminal justice morass as dehumanizing, fiscal conservatives who have noticed that incarceration is expensive, and policy wonks who see a “corrections” system that largely fails to correct.

December 16, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Thursday, December 01, 2016

NC Republican Senator reiterates his commitment to federal statutory sentencing reform

This notable new local story from North Carolina, headlined "Tillis says he may not return if bills like sentencing changes aren’t passed," provides further reinforcement for my generally positive perspective on the prospects for federal statutory sentencing reform in 2017. Here are excerpts:

Sen. Thom Tillis said Wednesday that he may not seek re-election in 2020 unless a sweeping overhaul of the nation’s prison sentencing system is passed. Tillis, R-N.C., has sought to make revamping the nation’s criminal justice system one of his signature issues since arriving in Washington in 2015, leaning on his experience in pushing through North Carolina’s Justice Reinvestment Act when he was state House speaker in 2011.

Tillis said North Carolina showed that such measures could get done, even over doubts that anything less than a tough-on-crime stance would be politically damaging. He told a forum on juvenile justice in Washington that “I don’t run again until 2020, and if we’re not able to get things like this done, I don’t have any intention of coming back.”...

He expressed frustration that the Senate hasn’t been able to move the Sentencing Reform and Corrections Act of 2015, a bipartisan measure that would reduce prison sentences for some nonviolent drug offenses, give judges more discretion with lower-level drug crimes and provide inmates early release opportunities by participating in rehabilitation programs....

Republicans and conservatives – from Sen. John Cornyn, R-Texas, to Sen. Rand Paul, R-Ky., to the Koch brothers – found themselves largely in agreement with Obama, the NAACP and the American Civil Liberties Union on the need for sweeping changes to reduce prison sentences.

But the Senate bill has been in legislative limbo. Some conservative lawmakers, such as Sens. Tom Cotton, R-Ark., and Ted Cruz, R-Texas, suggested that reducing sentences would lead to dangerous criminals being released. Even a much-heralded compromise in April to ease critics’ concerns failed to get the bill to the Senate floor.

Tillis, who appeared at Wednesday’s forum hosted by The Washington Post with Sen. Chris Coons, D-Del., said he had a solution for breaking the deadlock. “We need to tell the far-right and the far-left to go away and have people in the center solve the problem,” Tillis told the audience. “It is time to tell the far-left and the far-right to get productive or get out of the way because we need to solve this problem.”

December 1, 2016 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Wednesday, November 09, 2016

"Why Donald Trump’s election won’t doom the criminal justice reform movement"

The title of this post is the headline of this lengthy new Fusion commentary authored by Casey Tolan. The piece covers a lot of ground effectively in the wake of yesterday's election results and I recommend the piece in full.  Here are some extended excerpts:

In many ways, Donald Trump as president is a nightmare for criminal justice reformers. He has declared himself “the law and order” candidate and falsely painted American cities as hellholes with skyrocketing crime rates. Hillary Clinton, on the other hand, had pledged to “reform our criminal justice system from end-to-end.”

But Trump’s stunning victory — while scary for many other reasons — isn’t a death blow to the reform movement. While Trump can undo changes President Obama made and prevent serious criminal justice reforms at the federal level for the next four years, the policies that are arguably more important to fighting mass incarceration are happening at the state and local levels.

Overall, it was a mixed-bag election night for criminal justice.  Even while Trump clinched the White House, reformers won important victories in state and local races that could lead to real declines in incarceration. And yet: the death penalty won in all three states where it was on the ballot.

The tension between Trump’s law and order rhetoric and the reform victories down the ballot points to a sometimes overlooked truth: The president does not actually have that much power over the policies that lead to mass incarceration. Only about 12% of prisoners in America are in federal prisons run by the executive branch, while the vast majority are in local jails and state prisons. In many ways, local district attorneys have a bigger impact on criminal justice and incarceration in their districts than the president does.

And reformers had a very good night in DA races. Challengers pledging reform defeated tough-on-crime prosecutors in Houston, Tampa, and Birmingham, and won an open district attorney election in Denver. This is especially good news for Houston, whose incumbent DA Devon Anderson has increased arrests for low-level drug possession, defended seriously flawed death sentences, and once jailed a rape victim during the trial of her rapist. Those results continued a trend from earlier this year of more reform-minded local prosecutor candidates prevailing in primaries.

The president does not actually have that much power over the policies that lead to mass incarceration. Elsewhere on the ballot were other bright spots. In California, voters passed a measure that would make nonviolent offenders eligible for parole and lead to fewer juveniles being tried in adult courts. In Oklahoma, they approved an item reclassifying drug possession and small property crimes from felonies to misdemeanors, and earmarked cost savings from those changes for mental health and rehabilitation programs. Both measures are expected to lead to substantial reductions in incarceration in their states. New Mexico approved a constitutional amendment that prohibits defendants from being jailed just because they can’t pay bail....

Of course, Trump will probably have a drastic effect on prospects for federal criminal justice reform. Last year, bipartisan senators introduced to great fanfare a bill that would reshape federal sentencing laws and let nonviolent inmates get out of prison sooner. Even with the wholehearted support of President Obama and substantial compromises that watered down the bill, efforts to pass the measure have failed thanks to a group of conservative senators like Alabama’s Jeff Sessions, Trump’s chief ally in the body. While Trump doesn’t seem to have directly addressed the bill, his past statements don’t make him seem amenable to the idea.

Moreover, Trump could easily undo many of the smaller-scale reforms put into place by the Obama administration. On day one, Attorney General Rudy Giuliani — or whoever Trump picks — could rip up the Obama directive telling federal prosecutors to focus on the most serious drug cases and ask for less mandatory minimum sentences. He could end Obama’s policy to “ban the box” in federal government hiring, which helps formerly incarcerated people get jobs by not making them check a box saying they have a criminal record at the first stage of applications. He could reverse the Justice Department’s plan to phase out federal private prisons (a prospect that has sent private prison company stocks soaring the morning after the election). And most importantly, Trump will almost surely be able to appoint a conservative Supreme Court justice, who could help pivot criminal justice law away from defendants’ rights for a generation.

Trump’s election is a shock for justice reform groups working at the federal level, some of which had already started preparing white papers on reducing mass incarceration for the Clinton administration. Nkechi Taifa, an activist at the Open Society Foundations who helped fight for drug policy reforms, told me she couldn’t believe what had happened. “We’ve always had an uphill battle on criminal justice,” Taifa said. “I just think we need to redouble our efforts. I don’t think we should retreat.”

With 71 days still in office, Obama could lock in some reforms with a broader use of his clemency power. He has already set records by commuting the sentences of more than 900 inmates serving time for drug crimes. But Taifa said he should go further, reducing the sentences of as many inmates as possible before Trump takes the keys to the White House. Clemencies cannot be undone by future presidents. “I’m saying to Obama, ‘What have you got to lose?'” Taifa said. “If he’s going to drop the mic, drop it that way.”

For families waiting to hear back about clemency decisions, Trump’s win was a sucker-punch. Obama “is my only hope,” Miquelle West, whose mother has applied for clemency from Obama, told me in a text message this morning. West said she doubted that her mother, who is serving a life sentence, would have a chance to be released after inauguration day. “I don’t see Trump being compassionate,” she said.

November 9, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates | Permalink | Comments (4)

"Prison stocks are flying on Trump victory"

The title of this post is the headline of this notable new CNBC article, which includes these excerpts:

Private prison stocks soared Wednesday after Republicans won control of Congress and the White House.

Corrections Corporations of America and GEO Group had suffered some of their biggest declines over the last several months. But on Wednesday, both stocks recouped some of those losses.  Corrections Corporation gained 43 percent, while GEO climbed more than 21 percent.

In August, the Department of Justice instructed its Bureau of Prisons to begin phasing out the use of private contractors for federal corrections facilities.  Both stocks tanked on the news, but analysts called the market reaction overblown, and questioned how feasible it would actually be for the federal government to build new housing for displaced prisoners....

The stocks fell particularly far after presidential candidate Hillary Clinton expressed her support for the moves and her intention to build on them. "I'm glad that we're ending private prisons in the federal system," Clinton had said in her first presidential debate with Donald Trump. "I want to see them ended in the state system. You shouldn't have a profit motivation to fill prison cells with young Americans."

Days after Clinton made her remarks, both stocks posted their worst quarters in more than 15 years. Now that Clinton has lost, and Democrats failed to gain control of Congress, it appears investors are more sanguine about the future of the businesses.

November 9, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Effective Marshall Project takes on Election 2016 and criminal justice now and in the future ... UPDATE: and another set of views via Crime & Consequences

The folks at The Marshall Project have four new articles that review and assess what this Election cycle says and suggests about the state and fate of criminal justice issues throughout the United States.  Here are links to these pieces:

UPDATE: For another informed and diverse perspective on criminal justice reform stories, I always check daily Crime & Consequences in addition to The Marshall Project.  Here are some of the early Election 2016 reaction posts from various folks at C&C: 

November 9, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election

In my effort to make sense of the various Election 2016 realities, these early stories and data points caught my attention:

1. Popular vote realities in 2012 and 2016

Popular vote totals in 2012: Obama 65,915,795; Romeny 60,933,504; Johnson + Green 1,745,579  (total vote = 128.6 million)

Popular vote in 2016 (as of now): Trump 59,007,205; Clinton 59,132,664; Johnson + Green 5,195,998 (total vote = 123.3 million)

In other words, as of this writing, there were roughly 5 million fewer voters total in 2016 compared to 2012 and also roughly 3.5 million more of those who did vote in 2016 voted for one of the third party candidates.  

2.  Younger voters in 2016

As Nate Silver flagged here: "While the third-party vote wasn’t all that high tonight overall, an exception came among younger voters. According to the national exit poll, 9 percent of voters ages 18 to 29 went for third parties, as did 8 percent of voters ages 30 to 44." And until I see data to the contrary, I would guess that younger voters (especially younger minority voters) comprise a large portion of the roughly 5 million "missing" voters in 2016.

As the title of this post is meant to reveal, I already have my own (self-serving?) theories for why so many fewer folks showed up to vote in 2016 and for why so many younger progressive voters were much more eager to vote for third-party candidates.  Put simply, the tendency this cycle for Democrats (a) to nominate cautious insiders — like HRC for Prez and Ted Strickland for Senate in Ohio — and (b) to make cautious insider moves on a number of major high-salience law and policy issues — like Prez Obama nominating Merrick Garland for SCOTUS and HRC not taking up the populist cause of marijuana reform — led to a whole lot of folks not being excited enough to show up to vote and led to a whole lot of those folks showing up not being excited enough by Democrats to vote for their candidates.

In some prior posts in this space, I have highlighted some reasons why I considered the Merrick Garland nomination to be a big political mistake for Democrats:

And over at my Marijuana Law, Policy and Reform, here were my posts from last night detailing the remarkably large number of folks in a large number of states who rejected suggestions by all sorts of cautious insiders (of both parties) to slow down the rapidly-moving marijuana reform movement:

November 9, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Tuesday, November 08, 2016

"How Do You Vote in Prison and Jail? For the most part, you don’t."

The title of this post is the headline of this new Slate article which serves as a fitting final Election Day post before I gear up to post about Election Day results.  Here are excerpts:

People who are incarcerated find creative ways to do things the rest of us don’t have to think much about.... But how do they vote in elections?

Well, they mostly don’t. In almost every state, the law states that incarcerated people are not allowed to cast ballots. In fact, most states even impose voting restrictions on former prisoners who are out on parole, and a few states — Kentucky, Florida, Iowa, and Virginia — have lifetime disenfranchisement laws for anyone who has ever been to prison. These laws combine to prohibit an estimated 6.1 million Americans from voting, per one October 2016 estimation.  There is a movement among criminal justice advocates to restore voting rights for felons, but the politics of reform on this issue are notoriously complicated and again, vary state by state.

There are two states that currently afford prison inmates the right to vote while in confinement: Maine and Vermont.  Inmates in both states vote through absentee ballots rather than on-site polling places. Utah, New Hampshire, and Massachusetts also used to allow prisoners to vote, but they don’t anymore. In Massachusetts the change came after a group of inmates tried to form a political action committee in 1997 pressing for better health care and less expensive phone calls, leading then-Gov. Paul Cellucci to propose a constitutional amendment to prohibit inmate voting that passed in 2000.

So that’s prisons.  Local jails are a different story, because most of the people confined in them on any given day are in pretrial detention — meaning they haven’t yet been convicted of whatever crime they’ve been arrested for — or they’ve been convicted of misdemeanors. While there are a handful of states that ban people serving time for misdemeanors from voting, it’s fair to say that most jail inmates and detainees — roughly 750,000 Americans at any given time — are legally allowed to cast ballots as long as they are otherwise eligible. (They will also most likely do so via absentee ballots, though it’s technically possible for jails to have polling places on-site.)

That doesn’t mean a lot of them end up actually doing it, though there are jails around the country that make a special effort to encourage inmates to exercise their right. In the Cook County facility in Chicago, the largest jail in America, a voter drive effort organized this year by lawyer Michelle Mbekeani-Wiley has resulted in about 1,000 new registered voters and 1,600 absentee ballots cast....

Other jails that are known for helping inmates exercise their right to vote include those in Washington, D.C., Philadelphia, and San Francisco. In Suffolk County, Massachusetts, volunteers from the League of Women Voters this year helped register about 300 inmates (out of a total jail population of about 1,600); in New York, jail officials distributed voter registration forms and informational fliers in the facilities’ public areas, including law libraries and barber shops. Such efforts are outliers, however, and typically depend on the initiative of outside advocacy groups.

November 8, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Some Election Day headlines for sentencing fans ... (to read while waiting in line to vote?)

18702169.548e53c77fc3cI am about to head out to vote, and I have the great fortune (and white privilege?) of a local polling place where there is almost never a line to impede or slow down my voting efforts.  (And this year I have the extra excitement of getting to see one of my teenagers serving as a poll worker.  I am so very proud of her willingness to go through the local training and get up at 5am this morning in order to help everyone have an easy and smooth experience exercising the franchise.)

I am certain that starting this evening I will be blogging about results of key elections for those interested in sentencing reform (as partially previewed here), though I fear it will not be until Wednesday until we know about all the big initiative votes in California because polls there do not close until 11pm EST.  Before that time, though, I am hopeful we might have a sense of the outcomes of the big marijuana reform votes on the East Coast (especially in Florida, Maine and Massachusetts) and also of the death penalty votes in the Heartland (Oklahoma and Nebraska).

In the meantime, I have collected here some headlines and links to stories that provide a kind of Election Day starter.  Though I sincerely hope readers do not experience long lines or waits to vote, perhaps these stories can help some pass the time:

November 8, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Monday, November 07, 2016

What are the elections that followers of sentencing reform are (or should be) watching especially closely?

On this Election Day eve, I am debating whether I should be putting together some kind of "Sentencing Reformers' 2016 Election Guide."  There are some obvious elections that everyone will obviously be watching which obviously will impact the fate of major sentencing reform efforts.  Who becomes Prez elect and which party controls the US Senate will, of course, be a focal point for all Election Night coverage, and these representative democracy outcomes will directly influence the direction and shape of future federal statutory sentencing reform developments.

In addition, those who care a lot about the state and fate of capital punishment will be following closely the big repeal/retain votes in California and Nebraska (and perhaps a lower-consequence vote in Oklahoma).  And those who care a lot about about the state and fate of marijuana reform will be following closely the big full legalization votes in five states (Arizona, California, Maine, Massachusetts, Nevada) and the medical marijuana votes in four other states (Arkansas, Florida, Montana, North Dakota).

Not to be overlooked among the higher-profile ballot initiatives are (arguably more consequential) state sentencing reform initiatives in California (Prop 57) and Oklahoma (State Questions 780 and 781).  And, as detailed via this Governing round-up, there are various other "criminal justice" ballot initiatives in various states dealing with victim rights and gun control and a few other issues that surely can echo through sentencing systems.

In addition to all this action, I suspect there may some (lower-profile?) "sleeper" federal, state or local races in which candidates or issues could have a pretty big impact on sentencing reform.  I would be grateful to hear from readers in the comments about any particular races/issues they are following particularly closely with an eye on current and future sentencing realities.  

Are there any of the elections mentioned above that readers think are especially important for sentencing reform?  

Are there elections I have not flagged that ought to be on the radar screens of sentencing reformers?

UPDATE: Via Twitter, I was alerted to this new article from The Nation which spotlights local Arizona DA up for re-election whose race might be of interest to readers of this blog.  The full headline of the article provides a taste of its contents: "This Arizona Prosecutor Is Waging a Strange War on Weed — and That’s Just the Beginning: Bill Montgomery is up for election tomorrow."

November 7, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

Sunday, November 06, 2016

Do we need to worry seriously about voter confusion in the states in which the future of the death penalty is on ballot?

The question in the title of this post is prompted by this recent article from Governing headlined "As Voters Decide Death Penalty's Fate, Ballots Confuse Some: This year's proposals aren't as simple as marking whether you're for or against capital punishment."  Here are excerpts:

The death penalty is legal in 30 states, but a growing number have repealed it in the last decade.  Depending on the election, California and Nebraska could be next.  While voters in those two states decide whether to do away with capital punishment, voters in Oklahoma — where botched executions have led to a temporary moratorium — could strengthen their state's ability to carry it out....

[But] like the issue of capital punishment, this year's ballot measures on the topic are complicated.

In Nebraska, the state legislature overrode their governor to repeal the death penalty in 2015, but the law never went into effect because opponents gathered enough signatures to put a referendum on the ballot.  If voters ultimately uphold the law, it would be the first state under GOP control to ban capital punishment since 1973.

But first, voters will have to figure out which side they stand on — something that could be difficult for many.  The ballot measure gives voters two options: "repeal" or "retain." People who choose "repeal," as confusing as it may be, won't be voting to repeal the death penalty — they'll be voting to repeal the legislature's repeal of the death penalty and thus keep the option of executions available.

Nebraska GOP Gov. Pete Ricketts is campaigning in favor of capital punishment and has contributed about $400,000 to the effort.  In his veto letter to state lawmakers last year, he said their vote on a death penalty ban “tests the true meaning of representative government.”  Though a bipartisan majority of legislators overrode his veto, Ricketts may be correct that the public is with him: An August poll found that about 58 percent of likely voters in Nebraska are in favor of the death penalty.

In California, the ballot features two conflicting propositions — one that would repeal the death penalty and another that would keep it.  If both measures earn a majority of votes, whichever gets more will go into effect.  Most polls suggest the pro-death penalty measure will pass.

And in Oklahoma, the legality of capital punishment isn't up for a vote. Instead, voters will decide whether to add a section to the constitution that affirms the state’s authority to carry out executions, regardless of which method is used.  After several botched executions, the state halted any future ones until further notice. Oklahoma's ballot measure would also exempt the death penalty — but not specific methods of execution — from being invalidated by courts as cruel and unusual punishment.  "It takes away the debate on whether or not we should have capital punishment," said state Rep. John Paul Jordan in an interview with The Oklahoman.  "It allows us to direct our attention as a Legislature towards how we implement it and how we do it in the most humane way possible.”

Critics of the Oklahoma ballot question say the constitutional amendment is unnecessary, undermines the authority of the courts and could invite expensive lawsuits.  Several civil rights experts have raised concerns that the measure would strip citizens of their constitutional protections against cruel and unusual punishment.  Nevertheless, a July poll found that more than 70 percent of likely voters supported the constitutional amendment.

Although polling in all three states suggest that a majority of voters support the death penalty, there's evidence that the framing of the question makes a major difference in how people respond. I n Oklahoma, when likely voters were asked if they supported the death penalty, three-quarters said yes.  But when given the option of eliminating the death penalty and replacing it with a life sentence without parole, along with other financial penalties, a slight majority favored a ban on the death penalty.

November 6, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, November 05, 2016

"Disenfranchisement and Over-Incarceration"

The title of this post is the title of this new short article authored by Murat Mungan and now available via SSRN. Here is the abstract:

Disenfranchisement laws in many states prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group. In particular, disenfranchisement laws may cause the political process to push the sentences for criminal offenses upwards.

In this article, I construct a simple model with elected law enforcers who propose sentences to maximize their likelihood of election. I show, with the help of the median voter theorem, that even without disenfranchisement, elections typically generate over-incarceration, i.e. longer than optimal sentences.

Disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people's criminal tendencies, i.e. when criminals vote less frequently than non-criminals.

November 5, 2016 in Collateral consequences, Elections and sentencing issues in political debates | Permalink | Comments (1)

Wednesday, November 02, 2016

Election 2016: astute views "this Year’s Soft-on-Crime Attack Ads"

Maurice Chammah has this effective new article at The Marshall Project taking a look at "Campaign ads in the age of criminal justice reform." Here are excerpts from how it starts and ends:

It’s campaign season, which means the long shadow of Willie Horton is with us yet again. George H.W. Bush’s 1988 attack ad, which blamed his Democratic opponent Michael Dukakis for releasing a man who went on to commit more violent crimes, has become shorthand for a style of political advertising that continues to reappear every cycle. This year is no different.

But there are a few new approaches to these ads that may reflect larger trends in the politics of criminal justice....

“Most of these spots flinch when it comes to going for a pure fear appeal, à la Willie Horton,” says Robert Mann, a journalism professor at Louisiana State University who wrote a book on the 1964 “Daisy” ad. Mann noted that an attack ad about Democratic Connecticut state Sen. Mae Flexer — which criticizes her vote to repeal the state’s death penalty and support an early release program — “was careful to show several non-minority faces.” The attack on Kaine also features primarily white criminals.

This year, many ads in the Horton tradition focus on the subject of rape, perhaps in an attempt to appeal to women voters. In Houston, Texas, an ad accuses the incumbent district attorney, Republican Devon Anderson, of jailing a rape victim to ensure she would testify. Republican ads against North Carolina gubernatorial candidate Roy Cooper and Catherine Cortez Masto, who is running for a Senate seat from Nevada, accuse each of them of putting a low priority on testing rape kits and solving rape crimes in general.

Ads in North Carolina are targeting Deborah Ross, the Democratic challenger to Sen. Richard Burr, for her efforts on behalf of a 13-year-old named Andre Green, who was charged with sexually assaulting his 23-year-old neighbor while the victim’s toddler was in the room. In 1994, as an ACLU lobbyist, Ross advocated against placing Green in an adult court. “If Deborah Ross had her way, Green would be on our streets,” the ad says. In response, Ross released her own ad attacking Burr for being soft on sex criminals. The ad points out that Burr voted against the Violence Against Women Act, which includes funding for rape crisis centers, and voted against funding the federal sex offender registry (in truth, his vote was against a much broader budget bill).

Jonathan Davis, a partner at Northside Research + Consulting, an opposition research firm in New York, sees the trend as a tactical appeal to women in an election where their votes are not as predictable. Hillary Clinton “is poised to win a historic percentage of Republican women,” he says. “There is a large block of female voters in key states who know they're backing Clinton for president, but are still open to persuasion in down-ballot races.”

Some of those down-ballot candidates, including district attorney hopefuls in Florida and Colorado, are also trying different strategies with their advertising: they are using the language of criminal justice reform, calling for rehabilitation rather than prison for minor crimes. Colorado Democrat Beth McCann is running an ad featuring Francisco Gallardo, a former gang-member who now works with at-risk youth. In the ad, Gallardo says, "We need something that's more comprehensive, that's not just about building jails, but promoting the front end, building more empathy, more education, more opportunities...the reason Beth [McCann] can make those hard choices is she’s connected in the community."

But at the end of the day, despite these newer trends, the soft-on-crime attack endures. The best proof of its power is that even critics of mass incarceration are willing to use it. The most surprising Horton-esque attack this season comes from the suburbs of Denver, where a radio ad is targeting incumbent district attorney Peter Weir. The ad accuses Weir, a Republican, of signing off on a plea deal granting probation for Michael David Miller, a rapist with numerous alleged victims. (Weir told The Marshall Project that Miller’s crime would have been difficult to prove before a jury, and his office pursued Miller more aggressively than other jurisdictions where accusations were made.)

The ads were paid for by a political action committee linked to billionaire George Soros, who is actually trying to bolster the campaigns of reformers (Soros, through a spokesman, declined to comment). Soros’s chosen candidate, Jake Lilly, is running his own, separate ads promoting reform; he calls for treatment for people with addiction and mental health issues. Weir, the incumbent being attacked, is broadly in agreement; he has promoted the use of specialty courts to divert drug offenders from jail time. Lilly spoke out against the Soros-funded ads that were designed to help him. “I don’t approve of the tone,” he told a local reporter. “I don’t approve of the negativity.”

November 2, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Tuesday, November 01, 2016

A timely (and heartwarming?) story of felon enfranshisement

Particularly during an election season that seems almost intentionally designed to make everyone too depressed to want to vote, this local story from Tennessee is about as close to a "feel-good" election season sentencing story as we are likely to find.  The story is headlined "Facing felony, he asked to vote first," and here are the highlights:

A young man went to federal court last week to plead guilty to a felony. He knew he was facing up to 20 years in prison.  He knew he was about to lose his freedom.  He didn't realize he was about to lose his right to vote.  "I've been wanting to vote all my life," said Reginald Albright, who turned 20 this year.

When he was a kid, Albright would go with his grandfather to a polling place and wait in the car. "You're too young to vote now," his grandfather would tell him. That only made Albright more eager to vote.

Four years ago, he wished he could have gone with his mother to Mt. Zion Baptist Church to vote for President Barack Obama.  He was 16, still too young to vote. His mother, Gloria Hill, was an election poll worker for the 2012 presidential election....  Albright said he has always felt an obligation to vote. "I know my history," he said. He knows his Mississippi ancestors were spat on, slapped, threatened or worse for merely trying to register to vote.

He knows they faced laws designed to inhibit or prevent them from voting -- taxes they couldn't possibly pay, tests they couldn't possibly pass, whites-only primaries.  He knows how hard and long they struggled to gain the right to vote, and how long and hard they struggled to be allowed the privilege of voting. "My family takes voting seriously and so do I," he said.  Albright could have voted in last year's city elections, but he wanted to cast his first vote for president. So he waited.

Meanwhile, he was trying to figure out how he could afford to go back to school.  Albright graduated from Carver High School in 2014. His mother still has his football and weightlifting trophies on top of the TV. "He's never given me any trouble," she said. "In fact, he wanted to become a police officer." Albright started taking classes at Southwest Tennessee Community College, then dropped out when his money ran out. When he turned 18, he lost his share of his disabled mother's Social Security benefits.

Albright admits that he conspired with two others to rob a CVS drugstore in Memphis last December. The attempted robbery was botched, but one of the other robbers had a gun.  Albright was just sitting outside in a car when it all happened, but he knows he has no one to blame but himself.  "I made a stupid decision and hurt a lot of people who care about me," said Albright, who had no previous criminal record. "I learned a lot of lessons."

Before he went into the courtroom to face the judge last week, Albright sat down with his attorney. By pleading guilty, the attorney explained, Albright would be rendered infamous. That meant he would be deprived of some of his rights as a citizen – his rights to have a gun, to sit on a jury, to hold public office.

"What about my right to vote?" Albright asked.

"You'd lose that, too," attorney Alex Wharton replied.

"Can I vote before I plead guilty?" Albright asked.

Wharton, son of former Mayor A C Wharton, couldn't believe what he was hearing. "People will spend $20 to go to a movie, but they won't take 20 minutes to go vote," Wharton said. "And the cost has already been paid . People fought and shed blood and died for the simple right and privilege just to cast a vote."

Wharton decided to ask the judge for a brief continuance so Albright could go vote. The U.S. attorney did not object. “The government had no objection in this case to the court allowing the defendant the opportunity to exercise his constitutional right to vote before pleading guilty," said U.S. Attorney Edward Stanton III.

U.S. District Judge John T. Fowlkes Jr. said yes. "I've been in criminal law in some form or fashion as a lawyer or judge for 30 years, and I've never heard anyone ask that," Fowlkes said afterward. "It's an important right and I was glad to give that young man a chance to exercise it."

Albright left the courtroom with his mother. He pushed her wheelchair out of the federal building half a block up Front Street, then two blocks down Poplar to the Shelby County Election Commission.  They waited in line about half an hour. She pushed him to vote first. "I knew he'd been waiting a long time," she said.

After they both voted, Albright pushed his mother's wheelchair back to the federal building and into the courtroom.

"Did you vote?" the judge asked.

"Yes, sir," Albright said, pointing to his Tennessee-shaped "I Voted" sticker.

He thanked the judge for allowing him to vote for the first time in his life.  Then he pleaded guilty to a Class C felony and forfeited his right to vote.

He is scheduled to be sentenced in January. He faces up to 20 years in prison, but probation is an option. "It made me feel good to vote, to do this one time before it was taken away from me," he said. "Maybe I'll get another chance."

November 1, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing | Permalink | Comments (4)

Two new Washington Post commentaries making federal sentencin reform sound (way too) easy

The "In Theory" section of the Washington Post now has posted two notable new commentaries about prison reform.  Here are the authors, full titles and links:

Here is how the second of these two commentaries gets started:

When our next president enters the Oval Office, she or he will be faced with two questions: First, how to make a mark as president ? Second, how to break through gridlock in Congress?

Prioritizing reducing our prison population is one way to achieve both goals. Most Republicans and Democrats agree: Mass incarceration devastates communities of color and wastes money.  Even Hillary Clinton and Paul Ryan see eye-to-eye. Committing to such reform in the first 100 days would make a lasting and imperative change.

Regular readers will not be surprised to know I support the spirit and much of the substance of these two commentaries.  But the "can-do" talk and the direct or indirect suggestion that this kind of reform should be "easy for the next president" really seem to me to miss the mark.  After all, Prez Obama and House Speaker Paul Ryan and current Senate Judiciary Chair Chuck Grassley all right now largely "see eye-to-eye" on the importance of "reducing our prison population."  And yet, despite diligent work by lots and lots of folks on the federal reform front for more than two years now, Congress has so far been unable to get any kind of significant criminal justice reform bill to the desk of Prez Obama. 

Though I know the 2016 election is certain to disrupt the existing political status quo, I do not know if anything that happens at the voting booth next week can make it that much easier for the folks inside the Beltway to find their way to turn all sorts of talk into actual statutory reforms.  I sure hope advocates like those who authored these commentaries keep talking up the importance of making criminal justice reform a priority in 2017.  But, as I have been saying for too many years already, I am not counting any federal sentencing reform chickens until they are fully hatched.

November 1, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Is California's parole reform initiative, Prop 57, among the most important and consequential sentencing ballot issues?

The question in the title of this post is prompted in large part by this recent Los Angeles Times article headlined "Why Gov. Jerry Brown is staking so much on overhauling prison parole." Here are excerpts (with my emphasis added for later commentary):

Few California voters likely know much, if anything, about the state Board of Parole Hearings — from the qualifications of the 12 commissioners to their success in opening the prison gates for only those who can safely return to the streets.  And yet Gov. Jerry Brown’s sweeping overhaul of prison parole, Proposition 57, is squarely a question of whether those parole officials should be given additional latitude to offer early release to potentially thousands of prisoners over the next few years. “I feel very strongly that this is the correct move,” Brown told The Times in a recent interview. “I’m just saying, let’s have a rational process.”

Prosecutors, though, contend the governor’s proposal goes too far after several years of trimming down California’s prison population to only the most hardened criminals. They believe the parole board, whose members are gubernatorial appointees, already is swinging too far away from being tough on crime. “They are recommending release of people we never would have expected would have occurred so soon,” said Los Angeles County Dist. Atty. Jackie Lacey. “I’m concerned about people who really haven’t served a significant amount of time.”

In some ways, Proposition 57 is a proxy for a larger battle over prison sentences.  There are sharp disagreements between Brown and many district attorneys over the legacy of California’s decades-long push for new and longer mandatory sentences, a system in which flexibility is often limited to which crimes a prosecutor seeks to pursue in court.  The warring sides have painted the Nov. 8 ballot measure in the starkest of terms, a choice for voters between redemption and real danger.  “We’re dealing with deep belief systems,” Brown said.

Proposition 57 would make three significant changes to the state’s criminal justice framework. It would require a judge’s approval before most juvenile defendants could be tried in an adult court — reversing a law approved by California voters in 2000.  Critics believe prosecutors have wrongly moved too many juveniles into the adult legal system, missing chances for rehabilitation.

What’s most in dispute are two other Proposition 57 provisions, either of which could result in adult prisoners serving less time than their maximum sentences. Brown tacked those two provisions onto the juvenile justice measure in January.  One would allow an expansion of good-behavior credits awarded by prison officials; the other gives new power to the state parole board to allow early release of prisoners whose primary sentences were not for “violent” crimes.

In an interview last week, the governor argued that his ballot measure would add a dose of deliberative thought to a process too often driven by elected district attorneys playing to the white-hot politics of sensational crimes. “Do you want the hurly burly of candidates, running for office, being the decision makers in the face of horrible headlines?” Brown asked. “Or would you rather have a quiet parole board, not now but 10 years later, deciding what's right?”

The governor’s plan, which amends the state constitution, would only allow parole after a prisoner’s primary sentence had been served — applying only to the months or years tacked on for additional crimes or enhancements.  And like the current system, a governor could override any parole board decision to release a prisoner.

Critics, though, think the parole board is already too eager to approve releases. Greg Totten, district attorney of Ventura County, said he believes parole board members are judged by how many prisoners they release.  “We don't have confidence that the parole board will consider our concerns about public safety or the crime victims' concerns,” Totten said.  “Those hearings have become much more adversarial than they originally were.”  Totten and other prosecutors warn that an influx of new requests for early release would overload parole board commissioners and send too many cases to their deputy commissioners, state civil servants whose decisions are made outside of public hearings.

Prosecutors and Brown have sparred mightily over the assertion that Proposition 57 would only expand parole opportunities for “nonviolent” felons, a term used prominently in the ballot measure’s official title and summary. In truth, the description only means that new parole opportunities wouldn’t apply to prisoners sentenced for one of 23 defined violent crimes in California’s penal code. That list includes crimes most voters would expect to see there, such as murder, sexual abuse of a child and kidnapping.  But in many ways, the list is porous.  Not all rape crimes, for example, are designated as “violent.” Prosecutors insist prisoners serving time for as many as 125 serious and dangerous crimes would be eligible for parole under Brown’s ballot measure.  Not surprisingly, the campaign opposing Proposition 57 is replete with images of felons who prosecutors allege could be released if the measure becomes law....

Brown, whose effort is supported by probation officers and leads in most every recent statewide public poll, suggests two overarching motivations. One is the specter of potential federal court-ordered prison releases, less likely now that massive prison overcrowding has abated after efforts to reduce penalties for less serious crimes and divert low-level offenders to county jails.  Still, the governor insists that Proposition 57 is a more thoughtful way to reduce the prison population than what could some day be chosen by federal judges.

The other, to hear him tell it, is an effort to undo some of what he did in the 1970s in pushing California toward more fixed, inflexible sentences for a variety of crimes. Brown said he now believes that many convicted felons are best judged not at the time of sentencing, but once they have had a chance to change their lives. “It allows flexibility,” the governor said. “I think this case is irrefutable to anyone with an open mind.”

The sentences I have highlighted above provide some account for why I think the Prop 57 vote is potentially so important, and not just in California. If California voters strongly support this parole reform initiative (and do so, perhaps, will also supporting the preservation of the death penalty in the state), elected official in California and perhaps other states may start to feel ever more comfortable that significant non-capital sentencing reforms have significant public support even during a period in which a number of prominent folks are talking a lot about an uptick in crime.  It also strikes me as quite significant that Gov Brown is still talking about the impact of the Supreme Court's Plata ruling about California prison overcrowding and justifying his reform efforts on these terms.

I have previously highlighted in this post why I think an Oklahoma ballot initiative on sentencing reform is similarly worth watching very closely. (That post from September was titled "Why Oklahoma is having arguably the most important vote in Campaign 2016 for those concerned about criminal justice reforms.") I expect that next week's post-election coverage of criminal justice issues will focus particularly on the results of big death penalty and marijuana reform votes. But I believe folks distinctly concerned about modern mass incarceration should be sure to examine and reflect upon the outcomes of these two non-capital, non-marijuana reform ballot initiatives in California and Oklahoma.

November 1, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Wednesday, October 26, 2016

Famous "war on drugs" voice now voicing support for marijuana reform: any questions?

This new MarketWatch article, headlined "War on drugs spokesman now supports marijuana legalization," gives me an excuse to flag an iconic 1980s public service announcement while reporting on its new symbolic significance:

The voice behind one of the war on drugs’ most iconic ads has cast a vote to legalize marijuana. During the height of the ’80s war on drugs that gave rise to the “Just Say No” campaign, actor John Roselius stared in an antidrug TV ad for the Partnership for a Drug-Free America. The ad featured Roselius frying an egg in a skillet to portray what happens to the brain while using drugs.

Roselius, who is now 72, recently told Colorado-based Rooster Magazine he voted “yes” on California’s Adult Use of Marijuana Act, or Prop 64, which would legalize and regulate the use and sale of the plant to adults. “I’m 100% behind legalizing it, are you kidding? It’s healthier than alcohol,” Roselius told the publication.

And he’s not alone. Just ahead of the Nov. 8 election — in which five states will vote on legalizing the recreational use of marijuana and four will vote on legalizing medical marijuana—a Gallup poll shows that 60% of Americans support legal marijuana use. That’s the highest percentage of support recorded in the 47-year trend, with support rising among all age groups in the past decade.

That follows a separate poll by Pew Research earlier in the month which found 57% of Americans support legalization. “The topline number obviously bodes well for the marijuana measures on state ballots next month,” said Tom Angell of Marijuana Majority, an organization tasked with educating people and fighting for marijuana legalization. “More politicians — presidential candidates included — would do themselves a big favor to take note of the clear trend and then vocally support legislation catering to the growing majority of Americans who support modernizing failed marijuana policies.”

Roselius told Rooster Magazine he’d smoked marijuana in the ’60s, and that when he made the ad, he knew it didn’t fry the brain like an egg.

The war on drugs has been one of the most scrutinized and debated policies to come out of the Reagan era. Drug dealers were cast as violent villains and were blamed for devastating some of America’s cities. Incarceration rates shot higher and disproportionately affected men of color.

The cannabis industry has since fought back against that portrayal, calling for an end to arrests for nonviolent marijuana-related offenses. Roselius’ vote to legalize marijuana in California could help push one of the most important states in the movement to the forefront.

Of course, if you do have question about these matter, my blog Marijuana Law, Policy and Reform has a lot more coverage.  And, with that intro and a good excuse now, here is a review of some recent posts there (many of which are the fine work of my relatively new co-blogger):

October 26, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Tuesday, October 25, 2016

"Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases"

The title of this post is the title of this notable report authored by Joanna Shepherd and Michael S. Kang which I learned about via an email from The American Constitution Society for Law and Policy. Here is the text of that email, which provides a summary of the report's contents:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. That’s according to independent research sponsored by the American Constitution Society for Law and Policy (ACS).  State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

The report, Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases, is a compilation of data from over 3,000 criminal appeals decided in state supreme courts in 32 states from 2008 to 2013.  Researchers found that the more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to rule in favor of criminal defendants; and justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the Citizens United decision.

“The amount of money spent in state judicial elections has skyrocketed and the results of that spending are clear.  The flood of interest group money set free by Citizens United are endangering what should be impartial judicial decision-making and putting the fundamental constitutional rights of every American at risk,” said ACS President Caroline Fredrickson. “The data show that the television campaign ads this money buys put a thumb on the scale in criminal cases, and undermine the promise of equal justice that is a cornerstone of our democracy.”

Skewed Justice, by Dr. Joanna Shepherd and Dr. Michael S. Kang, both law professors at Emory University, follows the report Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions, published by ACS in 2013.  That report, authored by Professor Shepherd, revealed the growing influence of contributions on state supreme court judges. While the majority of media attention is focused on the United States Supreme Court, elected judges at the state level handle more than 90 percent of the United States’ judicial business.  This gives money and advertising huge influence in American democracy.  Beginning in the 1990s, and accelerating in almost every election cycle since, judicial elections have become more competitive and contentious, and campaign spending on these elections has skyrocketed, the research finds. Incumbent judges almost never lost their reelection bids during the 1980s, but by 2000 their loss rates had risen higher than those of congressional and state legislative incumbents. 

UPDATE: A helpful reader realized that this ACS-sponsored study is actually not so new, as it was first released a couple tears ago. I now assume ACS was promoting it anew (and led me to think it was new) because the report is extra-timely during a big elections season.

October 25, 2016 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, October 19, 2016

Terrific Marshall Project review of notable (but lower-profile) criminal justice initiatives going to voters in various states

18702169.548e53c77fc3cThe always great work done by the folks at The Marshall Project continues be especially helpful for election-season coverage through its "Crime On The Ballot" series which keeps tabs on the "ballot measures and races — beyond Washington — that could shape criminal justice."   And this week brought this new piece on state ballot initiatives headlined "It’s Not Just Pot and the Death Penalty: Four important ballot measures you probably haven’t heard of."  I recommend the extended piece in full, and here are excerpts:

High-profile state ballot measures on contentious issues like the death penalty, guns and pot are closely watched as indicators of the national mood.  But this election season also brings less-noticed proposals that may have more far-reaching effects.  Here are four ballot measures in six states that could serve as laboratories for other states.

Shortening Time Served for Nonviolent Felonies: California

California has a long history of putting criminal justice policy on the ballot: the state’s infamous “Three Strikes” law was strengthened by a ballot initiative in 1994; then, with voters’ appetite for mass incarceration on the wane, the law was partially repealed by another initiative in 2012.  In 2014, voters downgraded several major felonies to misdemeanors — most notably, possession of heroin and other illegal drugs. Now, with the state under a federal mandate to reduce its prison population, Californians will consider a constitutional amendment to make certain prisoners eligible for earlier release.

Under the current law, sentences for many felonies can be “enhanced” with additional prison time if the person committing the crime is classified as a gang member, for example, or has other felony convictions on his record. Under the state’s “determinate sentencing” provision, prisoners must serve their entire term, enhancements and all. Proposition 57 would undo that requirement for those whose crimes are classified as “nonviolent,” making prisoners eligible for parole after they’ve served the full term for their primary crime.  The proposition also creates a system of early-release credits that inmates can earn by participating in education and rehabilitation programs....

Bail Reform: New Mexico

When someone is accused of a crime in New Mexico, the law requires he or she be sent home under “the least restrictive conditions necessary to reasonably assure both the defendant’s appearance in court and the safety of the community.”  In other words, jail should be a last resort, reserved for the most dangerous defendants or those most likely to flee.  But that’s rarely what happens, says Charles Daniels, Chief Justice of the state’s Supreme Court. “Everybody has just grown so used to this notion that if you are accused of a crime, you have to pay somebody some money to get out of jail.  Our judges have just gotten so used to putting a price tag on your presumption of innocence,” he says.

Research from around the country shows that tens of thousands of people are routinely held in jail for low-level offenses because they don’t have small sums of money to make bail.  Daniels has spearheaded an effort to overhaul the state’s bail system; a ballot measure this November would amend the state constitution to include a rule that no one should be held in jail solely because they can’t afford bail — and would make it harder for defendants to get out if they are dangerous.  In almost every state, people accused of crimes have a “right to bail”: Regardless of how dangerous the defendant, or how serious a flight risk, a judge can’t hold anyone outright.  Instead, judges who want a defendant held set a too-high bail amount that they hope the defendant can’t afford. “It’s a shell game,” says Daniels.  The ballot measure would remove “right to bail”, and the constitution would be amended to say judges can deny bail if, after a hearing, they feel someone is too dangerous to be released....

Writing Victims' Rights Into the Constitution: North Dakota, South Dakota, and Montana

Three states this November will vote on an almost identical ballot measure that would create sweeping new protections for crime victims.  Called “Marsy’s Law,” “this is an equal rights campaign to strengthen victims’ rights so they’re equal to rights that criminal offenders have,” according to Jason Glodt, a former prosecutor managing the campaign in South Dakota.  Marsy’s Law is named for Marsalee Nicholas, who was killed by her boyfriend in 1983.  A week after her murder, her mother “walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer.  She had no idea that he had been released on bail,” according to the Marsy’s Law website.

The amendments would require that victims be notified at every major step of the criminal justice process, one of more than a dozen new rights, including the right to withhold records, the right to refuse to be deposed or interviewed, and the right to speak at hearings.  The amendments would also broaden the definition of “victim”; in some states, like North Dakota, current victim protection laws are only triggered in the case of a serious crime like assault or murder.  Under Marsy’s Law, “victim” would include those who had their purses snatched — and their “spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship."...

De-Felonizing Drug Possession: Oklahoma

By its own count, Oklahoma has the second-highest incarceration rate in the country (after Louisiana), and the highest rate of incarcerated women.  Seventy-five percent of those behind bars are there for nonviolent offenses — most commonly, drug offenses.  Two ballot measures poised to pass this November aim to change that.  The first, SQ 780, would downgrade simple drug possession from a felony to a misdemeanor, and raise the “felony theft threshold” —the dollar value of a stolen item that triggers felony rather than misdemeanor charges — from $500 to $1000.  A corresponding measure, SQ 781, directs cost savings generated by SQ 780 into a special fund that would pay for mental health and substance abuse services.  The measures are backed by a coalition of both right- and left-leaning organizations, including the ACLU and the Family Policy Institute of Oklahoma.Local sheriffs and prosecutors warn that without the threat of felony charges, prosecutors lose the leverage they need to compel people to participate in drug court, accept plea deals, or to testify in other cases.  Sheriffs fear that all these new misdemeanor arrests will simply shift overcrowding in prisons to the jails.

The measures come at a time when Oklahoma has been contemplating criminal justice reform (spurred, in part, by a budget crunch caused by falling oil prices). In April, Gov. Mary Fallin signed a package of bills aimed at shrinking the prison population, including one that reduces mandatory minimums for drug possession and one that broadens the use of drug courts and community sentencing.  The state is also undergoing a Justice Reinvestment process; a task force researching the drivers of the state’s incarceration rate will submit an additional series of recommended bills next year.  The success of those bills is staked, to a certain extent, on these ballot initiatives.

October 19, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Tuesday, October 11, 2016

"Could Atticus Finch get elected?"

ToKillMockngbrd_150PyxurzThe question in the title of this post is the headline of this notable new commentary authored by Kevin Burke, who is a state trial judge in Minnesota and past president of the American Judges Association. Here are excerpts:

Atticus Finch, the fictional lawyer in “To Kill a Mockingbird,” passionately believed in justice. He didn't like criminal law, yet he accepted the appointment to represent Tom Robinson, an African-American man charged with raping a young white girl. The story, set in Maycomb County, Alabama, in the early 1930s, portrays a lawyer who felt that the justice system should be colorblind. Had Atticus Finch run for office after the trial, could he have been elected?

A web video from the Republican National Committee darkly portrays Democratic vice presidential nominee Sen. Tim Kaine as having “protected the worst kinds of people” on death row as a defense attorney.  The video features Lem Tuggle, whom Kaine defended on rape and murder charges. Tuggle was eventually executed. The video also focuses on Richard Lee Whitley, who was executed despite what the Richmond Times-Dispatch described as “about 1,000 hours of largely free legal work” on Kaine's part.  We admire Atticus Finch, so why is it that Kaine’s defense of death penalty defendants is treated differently?

Representing unpopular clients has a long tradition in the American legal system.  John Adams represented British soldiers accused of murder in the 1770 Boston Massacre. Before agreeing to represent the British soldiers (who were that era’s terrorists), Adams worried about his reputation.  Yet, he said of his experience, “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.”  John Adams was elected president of the United States.  In an age of 24-hour cable, Willie Horton ads, and internet-driven misinformation, could Adams be elected president today?

Paul Clement was a superstar appellate lawyer in the Bush administration.  After resigning as solicitor general of the United States, he joined King & Spalding as a partner. Clement agreed to represent the Republican majority in the U.S. House of Representatives to defend the Defense of Marriage Act, the law that federally defined marriage as between one man and one woman.  Shortly thereafter, King & Spalding withdrew from the case, and Clement promptly resigned from the firm to continue his representation. He said, "Representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters." Clement’s decision to leave his firm had a notable defender: Attorney General Eric Holder.  Holder said, “In ... representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best ... [the] criticism, I think, was very misplaced.”

“Mr. Clement’s statement misses the point entirely,” Richard Socarides, president of Equality Matters, wrote in The New York Times. “While it is sometimes appropriate for lawyers to represent unpopular clients when an important principle is at issue, here the only principle he wishes to defend is discrimination and second-class citizenship for gay Americans.”

Paul Clement will likely never run for public office, but there are those who speculate Clement may someday be nominated for the U.S. Supreme Court.  The confirmation process has become quite partisan.  Would it be fair to deny him confirmation because of his representation of a client and defense of a ban on gay marriage?

In 2014, the Senate rejected the nomination of Debo Adegbile to be chief of the Civil Rights Division of the Justice Department. Adegbile's nomination was rejected because as an executive of the NAACP Legal Defense Fund, he worked on a series of briefs made on behalf of Mumia Abu-Jamal, who was convicted of killing a Philadelphia police officer in 1991. Every Republican senator voted against Adegbile and several Democrats joined them.  “I made a conscientious decision [to vote against Adegbile] after talking to the wife of the victim,” Democratic Sen. Joe Manchin told reporters.  After talking with gay victims of discrimination would it be appropriate for a senator to vote against Paul Clement?...

Edward Bennett Williams was among the greatest trial lawyers of the last century. He represented a slew of unpopular clients, including Jimmy Hoffa, organized crime figures Sam Giancana and Frank Costello, as well as Sen. Joe McCarthy. In a speech given to the New York State Bar Association, Williams argued there was an epidemic of “guilt by client,” and warned of the “insidious identification” that would scare off lawyers from standing by the unpopular and degraded. Williams said, “When a doctor takes out Earl Browden's appendix, nobody suggests that the doctor is a Communist [Browden was the head of the American Communist Party]. When a lawyer represents Browden, everybody decides that lawyer must be a Communist, too.”...

Not every lawyer has the skill to represent a person facing the death penalty, nor the skill to argue before the Supreme Court. The video suggests you should not vote for Kaine because he had that skill, but should we embrace the demagoguery of the video used against him? This is not an issue about lawyers’ ethics; it is about what each of us wants from the American system of justice.

John Ferguson was executed after he tricked his way into a woman’s home and bound, blindfolded, and then shot eight people. Six of them died. While under indictment for those crimes, Ferguson murdered two teenagers on their way to church. What kind of lawyer would defend John Ferguson? The lawyer was Chief Justice John Roberts.

October 11, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (7)

Monday, October 10, 2016

Is supposedly "tough-on-crime" GOP Senator (and former federal prosecutor) Jeff Sessions actually not-so-tough on sexual assault?

The provocative question in the title of this post is my reaction to seeing these two new (right-leaning-source) stories about comments made last night by Alabama GOP Senator (and former US Attorney) Jeff Sessions:

From RedState here, "Senator Jeff Sessions Unsure Whether Grabbing Women by Their Genitals is Sexual Assault"

From the Weekly Standard here, "Jeff Sessions: Behavior Described by Trump in 'Grab Them by the P---y' Tape Isn't Sexual Assault"

One of many notable aspects of GOP Prez candidate Donald Trump's campaign has been the fact that his three most-prominent political surrogates are all former US Attorneys: Chris Christie was US Attorney for New Jersey from 2002 to 2008, Rudy Giuliani was US Attorney for the Southern District of New York from 1983 to 1989, and Jeff Sessions was US Attorney for the Southern District of Alabama from 1981 to 1993.  I have long assumed that this notable troika of US Attorneys advising Trump has played a significant role in Trump's effort to brand himself as the "law-and-order" candidate.

As regular readers surely know, I often have a number of different perspectives on a number of crime and punishment issues than do many current and former US Attorneys.  As I also hope readers also realize, I always have had a significant amount of respect for the professional honesty and personal integrity of current and former US Attorneys.  But Senator Sessions' statements reported above (as well as some other actions by Chris Christie and Rudy Giuliani in recent weeks and months) has really dealt a significant blow to my continued ability to have continued respect for the professional honesty and personal integrity of at least some former US Attorneys.

UPDATE: This local article reports on Senator Sessions' effort to clarify his remarks under the headline, "Sen. Jeff Sessions denies dismissing Trump's lewd video comments: 'Crystal clear' sexual assault unacceptable."

October 10, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (94)

Thursday, October 06, 2016

"6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016"

E6092bbb47a17ed3d778bf40f917-convicted-felons-votingThe title of this post is the title of this timely new study on felony disenfranchisement released today by The Sentencing Project and authored by researchers Christopher Uggen, Ryan Larson, and Sarah Shannon. Here is the start of the report's "Overview" section:  

The United States remains one of the world’s strictest nations when it comes to denying the right to vote to citizens convicted of crimes. An estimated 6.1 million Americans are forbidden to vote because of “felony disenfranchisement,” or laws restricting voting rights for those convicted of felony-level crimes.

In this election year, the question of voting restrictions is once again receiving great public attention.  This report is intended to update and expand our previous work on the scope and distribution of felony disenfranchisement in the United States (see Uggen, Shannon, and Manza 2012; Uggen and Manza 2002; Manza and Uggen 2006). The numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2016 election.

Our key findings include the following:

• As of 2016, an estimated 6.1 million people are disenfranchised due to a felony conviction, a figure that has escalated dramatically in recent decades as the population under criminal justice supervision has increased.  There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, and 5.85 million in 2010.

• Approximately 2.5 percent of the total U.S. voting age population — 1 of every 40 adults — is disenfranchised due to a current or previous felony conviction.

• Individuals who have completed their sentences in the twelve states that disenfranchise people post-sentence make up over 50 percent of the entire disenfranchised population, totaling almost 3.1 million people.

• Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions. In six states — Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia — more than 7 percent of the adult population is disenfranchised.

• The state of Florida alone accounts for more than a quarter (27 percent) of the disenfranchised population nationally, and its nearly 1.5 million individuals disenfranchised post-sentence account for nearly half (48 percent) of the national total.

• One in 13 African Americans of voting age is disenfranchised, a rate more than four times greater than that of non-African Americans.  Over 7.4 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population.

• African American disenfranchisement rates also vary significantly by state. In four states — Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) — more than one in five African Americans is disenfranchised.

This report reinforces my view that Prez candidate Donald Trump is right about one thing: our election system is "rigged." But when he makes that claim, I am pretty sure he is not complaining about the facts detailed in this study documenting why and where about "2.5 percent of the total U.S. voting age population — 1 of every 40 adults — is disenfranchised."

October 6, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3)

Wednesday, October 05, 2016

Leading VP candidates talk a bit (encouragingly?) about criminal justice reform their only debate

There was a little discussion of policing, sentencing and criminal justice reform at last night's vice presidential debate, and I found most notable the fact that the GOP's VP candidate Mike Pence at one point said plainly and without reservation "We need criminal justice reform."  (The Democrats' GOP VP candidate Tim Kaine also talked, somewhat unsurprisingly, about the death penalty when asked how his personal faith created challenges for him in make political decisions.)  Perhaps even more important than the Gov Pence's simple statement that we "need" criminal justice reform was this further explanation of what he meant in this Q&A with the debate moderator (with my emphasis added):

QUIJANO: Your fellow Republican, Governor Pence, Senator Tim Scott, who is African-American, recently spoke on the Senate floor. He said he was stopped seven times by law enforcement in one year.... He said, "I have felt the anger, the frustration, the sadness, and the humiliation that comes with feeling like you're being targeted for nothing more than being just yourself." What would you say to Senator Scott about his experiences?

PENCE: Well, I have the deepest respect for Senator Scott, and he's a close friend. And what I would say is that we -- we need to adopt criminal justice reform nationally. I -- I signed criminal justice reform in the state of Indiana, Senator, and we're very proud of it.

I worked when I was Congress on a second chance act. We have got to do a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice.

These statements reinforces my belief that, once we get fully through this election cycle, there is a really good chance that the still-growing bipartisan consensus supporting some form of federal statutory sentencing reform will finally be able to get some form of some bill through both houses of Congress and to the desk of the new President.  Of course, who wins seats in Congress and who is the new Prez and VP will certainly significantly impact what ends up in a federal statutory sentencing reform bill that gets to the desk of the new Prez.  But now hearing GOP's VP candidate Pence talking up the "need" to adopt criminal justice reform "nationally" has me now distinctly (and foolishly?) optimistic that some kind of statutory reforms will be signed into law sometime during the next Congress.

For more background on what both leading VP candidates have said and done on the criminal justice reform front, I recommend this new Huffington Post article headlined "Here’s How Tim Kaine And Mike Pence Measure Up On Criminal Justice: The two vice presidential candidates have pushed for similar criminal justice policies at times." 

October 5, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Monday, August 22, 2016

"Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair"

The title of this post is the headline of this recent Medium commentary authored by Akiva Freidlin and Emi Young.  Here are excerpts:

As recent graduates of Stanford Law School who work on behalf of low-income people affected by our criminal justice system, we have been closely attuned to the Brock Turner sexual assault case. We recognize the urgency of feminist-led reforms to rape law, and of efforts to address and prevent sexual violence, but the misguided campaign to recall Judge Aaron Persky advances neither goal. Instead, the recall proponents have used misleading arguments to inflame the perception that Judge Persky imposes unfair sentences depending on a defendant’s race and class. These distortions misdirect long-overdue public outrage over the state of America’s criminal justice system to support Persky’s recall, while threatening to make the system less fair for indigent defendants and people of color.... In July, the recall campaign began drawing misleading comparisons between Turner and a Latino man named Raul Ramirez, whose case was overseen by Judge Persky. The campaign claims that Ramirez, a low-income person of color, received a three-year sentence for “very similar crimes,” proving that Judge Persky has “shown bias.”  But there are two crucial legal differences between the cases, which render the comparison meaningless....

Ramirez received a three-year sentence as part of a negotiated plea deal between his attorney and the prosecutor, so Judge Persky had no discretion to give him a lesser sentence.... [And] Ramirez and Turner were charged with crimes that are treated differently under the law. Ramirez received a prison sentence because the District Attorney charged him under a statute that absolutely requires it.... These realities explain the differences between Brock Turner’s sentence of probation and Raul Ramirez’s three-year prison term  —  not the recall campaign’s unsupported claims of judicial bias....

Now the campaign has begun to publicize a misleading barrage of claims about another plea bargain, using rhetoric that undermines hard-won reforms to immigration policy. In this case, a defendant named Ming Hsuan Chiang pleaded guilty to a domestic violence charge in exchange for a sentence that critics deride as being too lenient.  The facts in this case, and the injuries to the victim, are upsetting  —  but once again, as in the Ramirez case, Judge Persky approved a sentence recommended by the District Attorney’s office, in fulfillment of the prosecution’s agreement with Chiang’s attorney.  Nevertheless, the campaign claims that the sentence somehow provides evidence that Persky has “shown bias.” 

One of the recall campaign’s main proponents  —  Professor Michelle Dauber, who teaches at our law school   — has also pointed to the plea bargain’s consideration of Chiang’s immigration status as a sign that Judge Persky is somehow unacceptable as a judge....  This insinuation turns law and policy on its head.  For non-citizens, being convicted of even a relatively minor crime may trigger federal immigration penalties such as mandatory detention, deportation, and permanent separation from close family . Addressing harmful and unjust “crimmigration” penalties has been a top priority of immigrants rights advocates, especially here in California, where one out of four residents is foreign-born....

Our criminal system is deeply unjust, but attributing these problems to Judge Persky is a mistake — and the effort to recall him only harms less privileged defendants.  The false personal accusations against Judge Persky distract from real understanding of structural inequalities.  In Brock Turner’s case, the probation department’s recommendation against prison weighed specific legal factors that, while putatively neutral, often correspond to race and class.  For instance, consideration of a defendant’s past criminal record tends to benefit middle-class whites like Turner, who have never been subjected to the dragnet policing and “assembly-line justice” that leave young men of color with sentence-aggravating prior convictions.  Similarly, for Turner, the loss of valuable educational opportunities was seen as mitigating the need for greater punishment, whereas for less privileged defendants, institutional barriers  —  like disciplinary policies that have created a “school-to-prison pipeline”  —  impede access to those opportunities in the first place. The time and money being spent to remove Persky from the bench will not address these dynamics or help untangle the web of policies that perpetuate inequality along racial and class lines.

Here in California, voters have finally begun to remedy the unintended and disparate effects of the 1993 “Three Strikes” ballot initiative and other mandatory sentencing laws, by permitting the discretionary re-sentencing of people convicted under these schemes.  By sending the message that unpopular but lawful decisions may lead to a recall, the campaign threatens the sole mechanism for individualized consideration of mitigating circumstances.

This will only make it harder for low-income defendants and those who advocate for them.... Those effects are not merely speculative.  As shown in ten empirical studies analyzed by the Brennan Center for Justice, judges impose harsher sentences when pressured by elections, and some studies find that these effects are concentrated on defendants of color.  Holding a recall election out of frustration with Turner’s lawful sentence will only exacerbate these problems.  As a prominent Santa Clara County judge has explained, a recall will “have trial judges looking over their shoulders, testing the winds before rendering their decisions.”...

Even in anger, the public must take a hard look at the rationale and likely effect of recalling Judge Persky.  By stoking public anger with misleading claims, the recall campaign encourages a short-sighted response without accounting for the actual sources of structural injustice, or the consequences to those already burdened by inequality.

Some prior related posts:

August 22, 2016 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Saturday, August 20, 2016

Is "tough-on-crime" talk really now a losing political strategy?

The question in the title of this post is prompted by this new Hill commentary authored by Holly Harris and Andrew Howard. Here are excerpts:

House Speaker Paul Ryan’s primary opponent, Paul Nehlen, frequently attacked Ryan’s support for criminal justice reform. Nehlen accused Ryan of pushing Obama’s agenda on jailbreak criminal justice reform policies.  Not only was Nehlen’s narrative wrong, his political calculus was flawed.  Ryan clobbered him on Election Day, winning the primary with more than 80 percent of the vote.

This isn’t the first time justice reform opponents, clinging to the old school thought that “tough on crime” rhetoric still sells with voters, have attempted to use their opposition to these reforms for political benefit.  What they got was the opposite, and here’s why.

First and foremost, it is conservatives in big red states like Texas, Georgia, and South Carolina who have led the way on justice reform issues for a decade.  These efforts yielded great success in safely reducing the prison population, saving significant taxpayer resources, and most importantly lowering crime and recidivism rates.

Texas Governor Rick Perry, Georgia Governor Nathan Deal, Oklahoma Governor Mary Fallin, and Kentucky Governor Matt Bevin are just a few of the conservative leaders who are the most ardent champions of, and effective spokespersons for, criminal justice reform.  Given all the state successes, President Obama’s support is actually a bit late to the party.

Republican U.S. Senator David Vitter, vying for conservative Louisiana gubernatorial seat, learned the hard way that attempting to tie his opponent to Obama’s criminal justice reforms was unproductive.  With support from law enforcement, John Bel Edwards doubled down on his push for “bipartisan” criminal justice reforms.  Edwards is now the Governor of Louisiana.

Additionally, polling data from dozens of states across the country shows overwhelming support across the political and ideological spectrum for criminal justice reform.  Replacing one-size-fits-all mandatory minimum sentences with penalties that reflect individual cases polls out the roof in battleground states like Michigan (91%) and Ohio (87%).

Surveys in states that will have hotly-contested Senate races such as Florida, Illinois, North Carolina, Nevada, and Speaker Ryan’s home state of Wisconsin show support for reform issues ranging from the 60s to high 80s. The smart political play is to embrace these reforms.

Doing otherwise could backfire. Just ask Alaska’s then-incumbent Senator Mark Begich.  In the state’s 2014 U.S. Senate race, Begich attacked his Republican opponent, Dan Sullivan, alleging he was soft on crime.  Sullivan emerged victorious over Begich and is currently serving as the junior senator from Alaska.

In a time when one in three American adults has a criminal record and every single American family is impacted by our broken justice system, supporting reform not only makes for sound policy but also smart politics.  Which is why this irrational fear of supporting federal legislation similar to the aforementioned state reforms is all the more baffling....

Paul Ryan’s trouncing of his ill-advised primary opponent could be a game changer.  After all, in the new era of smart on crime policy, reform opponents are 0-3.

August 20, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Wednesday, August 03, 2016

"It's Silicon Valley vs. law enforcement on California death penalty"

The title of this post is the title of this local press report on the alignment of various participants in the debate over the future of the death penalty in California, where voters will be considering reform initiatives this fall.  Here are the details:

Two competing November ballot measures that aim to abolish or expedite California’s long-dormant death penalty each raised more than $3 million through the first half of the year, according to state campaign finance records, and largely drew their funding from a narrow group of major donors: Silicon Valley executives and law enforcement unions.

Proposition 62, which would replace capital punishment with life imprisonment without the possibility of parole, led its rival campaign with nearly $4.1 million raised through June 30, filings show. Proponents argue that executions are costly, inhumane and bound to kill wrongly convicted people.

The dozen top contributors, each of whom gave at least $50,000, are nearly all affiliated with the technology industry in the Bay Area. They include Salesforce CEO Marc Benioff, venture capitalist John O’Farrell, and data management company Integrated Archive Systems, which was founded by major Democratic donor Amy Rao. Netflix CEO Reed Hastings and Nicholas McKeown, a professor of electrical engineering and computer science at Stanford University who has started several technology companies, have each given $1 million to the effort so far. Laurene Powell Jobs, widow of Apple co-founder Steve Jobs, and Y Combinator CEO Paul Graham both put in $500,000.

Supporters of Proposition 66, an initiative to speed up the death penalty by putting the California Supreme Court in charge of a revised appeals process with strict time limits, raised almost $3.5 million through June 30, according to financial records. It currently can take decades for a death row inmate to exhaust their appeals, though California has not executed anyone since 2006 because of legal challenges to its lethal drug cocktail.

Nearly 80 law enforcement groups have given to the campaign, led by the California Correctional Peace Officers Association with $325,000, the Peace Officers Research Association of California with $305,000, the California Association of Highway Patrolmen with $250,000 and the Los Angeles Police Protective League with $225,000. Among the largest contributors, twenty of whom have donated more than $50,000 to the campaign, are a handful of individuals, including former Los Angeles Mayor Richard J. Riordan, Orange County businessman Henry T. Nicholas III, and A. Jerrold Perenchio, the former CEO of Univision....

California voters last weighed in on capital punishment in 2012, when another initiative to repeal the death penalty narrowly failed. A January Field Poll showed an even split, with 48 percent of respondents supporting speeding up the process and 47 percent favoring abolishing it. If both Proposition 62 and Proposition 66 pass in November, whichever has a higher number of votes will become law.

Prior related posts:

August 3, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, July 26, 2016

Does Hillary Clinton really have a "bold vision" for criminal justice reform, as claimed by former AG Holder?

I predicted in this prior post that we all would likely hear at least a bit more about criminal justice reform at the DNC this week than we heard at the RNC last week.  Perhaps unsurprisingly, former AG Eric Holder devoted his DNC speech to asserting Prez candidate Hillary Clinton would be committed to criminal justice reform, and these passages addressed some sentencing/prison issue (with my emphasis added):

At a time when our justice system is out of balance, when one in three black men will be incarcerated in their lifetimes, and when black defendants in the federal system receive sentences 20 percent longer than their white peers, we need a president who will end this policy of over-incarceration.  As Attorney General, I launched sweeping reforms of our federal criminal justice system and reduced its reliance on draconian mandatory minimum sentences. As a result, we cut the federal prison population and the crime rate — together — for the first time in more than 40 years.

That's right: despite the fiction and fearmongering you've heard from the other party's nominee, violent crime has gone down since President Obama took office.

As President, Hillary will go even further.  She fought, as a Senator, against sentencing disparities and racial profiling. She used her first major speech, as a candidate, to lay out a bold vision for criminal justice reform. As a presidential candidate she has talked about systemic racism in a way that no one else has. And she will help our nation summon the courage to confront racial injustice — and face down the legacies of our darkest past.

I recall blogging about Clinton's big criminal justice speech back in April 2015, and I do not remember that it included any dramatic statements about criminal justice reform, let alone a "bold vision." Then again, I suppose it is in some sense "bold" for a Clinton to talk about criminal justice reform at all, so maybe I am being too tough on Holder for his account of what Clinton has said about reform.

Prior related posts:

July 26, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates | Permalink | Comments (4)

Monday, July 25, 2016

How much (and what kind of) criminal justice reform talk can we expect to hear at the DNC?

I am going to be off-line much of today, and thus I am genuinely interested in having folks spend the day discussion what I see as the most interesting criminal justice reform question for this work-week.  I was not too surprised that we heard relatively little criminal justice reform discussion at the RNC last week, although arguably the emphasis by GOP Prez nominee Donald Trump on being the "law and order" candidate was an indication that the new GOP leader is inclined to get Republicans back to "tough-and-tougher" rhetoric and realities.

Meanwhile, Democratic Prez nominee Hillary Clinton seems likely to be eager to reach out (and motivate) voters interesting in significant sentencing (and police and marijuana) reforms, and these topics even were addressed this past weekend when she officially announced her VP pick Tim Kaine.  Consequently, I am expecting to hear a lot more express and significant reform talk at the DNC than at the RNC.  But how much, and what will be the main focus and more-frequent "talking points"?

In addition to hoping many folks will respond to this post with predictions about what we will hear at the DNC, I would also love to see folks explain just what they are hoping to hear.  So if you could, for example, script two of three sentences that would be in the speech to be given by Clinton or Kaine or others, what would they be?

A few recent related posts:

July 25, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (11)

Sunday, July 24, 2016

Covering VP candidate Tim Kaine's history on crime and punishment issues (especially the death penalty)

Kaine_official_high_res_photoThe folks at FAMM now have this very helpful and timely webpage reviewing some recent and prior statements by Tim Kaine, the former Viginia Gov and current US Senator whom Hillary Clinton has now picked as her running mate.  That page also provides this interesting accounting of "Kaine’s record on criminal justice issues"

In addition, a number of mainstream and new media sources have now run a number of articles about Kaine's criminal justice history (most of which, notably, are focused on the death penalty). Here are headlines and links:

July 24, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (16)

Wednesday, July 20, 2016

Why Donald Trump's "law and order" vision and voice is so important to advocates of sentencing reform (and marijuana reform)

Two new commentaries about current politics together help explain why I continue to view GOP Prez candidate Donald Trump as the most important (and also most opaque) national figure with respect to the future direction of a lot of on-going criminal justice reform movements.  The full headlines of the commentaries provides a window into my thinking:

Here are a few passages from these pieces, respectively:

From Jeet Heer:  "With the Republican National Convention in Cleveland, Trump’s approach to politics has become squarely mainstream in his party.  The Trumpification of the GOP is not likely to go away soon.  It’s rooted in some fundamental demographic facts that the party has been struggling with for decades: that it’s increasingly a party of old white people in a nation that is becoming more diverse.  Even if Trump loses by a blowout in November, the party is likely to become even more Trumpified because the #NeverTrump people will have left the party — or at least become inactive — while the politicians and activists who are most responsive to his message will have stayed on.  That’s how Barry Goldwater conservatism continued to be a force after his epic defeat of 1964, and it’s likely to replicate itself with Trumpism.  Like it or not, the GOP will be the Party of Trump for many years to come."

From Steve Teles:  Trump [i]s like a throwback to New York in the 1980s.... The Right on Crime movement depends upon, in some important ways, the transformation of the Republican Party into a more consistently anti-statist party in the wake of the Tea Party, combined with the role that evangelical leaders have played in encouraging an emphasis on second chances and forgiveness.  Neither of those changes in conservatism is characteristic of the conservatism of Trump.  I could imagine him going all-in on a back-to-the-80s, Charles Bronson-ish approach to crime, and if he’s able to rebrand the Republican Party in that way, that would be very troublesome [for those supportive of criminal-justice reform].

July 20, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Tuesday, July 19, 2016

"Two Parties, Two Platforms on Criminal Justice: The Republicans nod to reforms, then take a sharp right turn."

The title of this post is the title of this timely new piece by Maurice Chammah, which includes a blow-by-blow accounting of how the party platforms have changed on criminal justice issues since 2012. Here is how the piece sets up the comparative look at how time changes platforms:

The 2016 Republican and Democratic party platforms — the GOP’s approved Monday night, the Democrats’ still in draft form — swing hard to the right and left, with Republicans amplifying their traditional positions against gay marriage, abortion, transgender rights, and immigration, and Democrats calling for expanded public healthcare and higher education, and a $15 minimum wage.  Platforms are not binding on candidates, but they distill a consensus of the forces within the party at this point in history.  That’s particularly clear this year on the subjects of crime and punishment.

In the new Democratic party platform, the fingerprints of the Black Lives Matter movement and Bernie Sanders are apparent, in calls for independent investigations of police-involved shootings, more body cameras, and training in de-escalation.  There is a declaration that “states that want to decriminalize marijuana should be able to do so.”  There is also a call for the end of the death penalty, something President Obama and Hillary Clinton have not endorsed.  Parts of the Democratic draft platform clearly repudiate the tough language their party embraced a generation ago, when their current candidate’s husband was president. The mother of Sandra Bland, who died at a Texas jail last year and became a symbol of the Black Lives Matter movement, is scheduled to speak at their convention next week in Philadelphia.

The Republican document reflects recent tensions in conservative circles.  It includes the language of conservatives who call for reducing incarceration — influential Republican patrons like the Koch brothers, politicians like Rick Perry, Rand Paul and Newt Gingrich — but it also includes plenty of traditional invocations of law and order.  An ambitious bipartisan sentencing reform effort in Congress, which Sen. Ted Cruz supported and then abandoned, has been whittled down and allowed to languish.  And it was opponents of that bill including Senator Tom Cotton of Arkansas and Milwaukee Sheriff David Clarke (who regularly attacks the "myths" of justice reform) who were in the lineup Monday night in Cleveland, where the evening’s theme was “Make America Safe Again.”  It was those figures who dominated the party’s televised presentation.

To feel the tension, consider the 2016 passage on mandatory minimum sentences, which says such sentences served a good purpose and should only be rolled back sparingly: "In the past, judicial discretion about sentences led to serious mistakes concerning dangerous criminals.  Mandatory minimum sentencing became an important tool for keeping them off the streets.  Modifications to it should be targeted toward particular categories, especially nonviolent offenders and persons with drug, alcohol, or mental health issues, and should require disclosure by the courts of any judicial departure from the State’s sentencing requirements."

Conservative criminal justice reformers, who have gathered under the banner of “Right on Crime,” had gotten brief nods to rehabilitation and non-prison sentences for drug crimes into their 2008 and 2012 platforms.  An April 2016 resolution they promoted, which was adopted by the Republican National Committee, points out that despite a massive growth in incarceration, many who are released from prison commit new crimes, meaning prisons might not be the best investment in public safety.  They added language acknowledging the success of conservative lawmakers in traditionally red states to reduce incarceration and save money. “90% of the prisoners in this country are not federal,” says Ken Cuccinelli, the former attorney general of Virginia, “so it’s meaningful to talk about the experimentation and successes in the states.”

The rift in conservative circles was apparent when the 112 members of the full platform committee edited the document last week in Cleveland.  At one point, April Newland, a delegate from the Virgin Islands, proposed adding a line supporting a national registry of child murderers, which had been in the 2012 platform. She described how her brother’s three and five year-old children were murdered by a man who went on to be released from prison, moved near a school, and molested more victims. Other delegates pushed back.  “A federal mandate doesn’t work,” Maryland delegate JoeyLynn Hough said.  “So, I’m sorry about your family, but I don’t think this is the answer.”

The committee also added support for “mens rea” reform, an effort to force prosecutors to prove a defendant intended to commit a crime, as well as strong language supporting drug treatment programs, particularly for first-time offenders.  In other areas, the new platform’s language took a different tack, condemning the Supreme Court for limiting use of the death penalty, and Attorney General Loretta Lynch for her “present campaign of harassment against police forces around the country.”

At one of the hearings, delegate Giovanni Cicione, an attorney from Rhode Island, proposed language encouraging lawmakers to “fairly assess the social and economic costs of the failure of drug prohibition, and recognize that our states are sending a clear signal that a new approach is long overdue.”

“We have created with drug prohibition a multi-billion dollar underground economy, and a generation of Al Capones,” Cicione told the other delegates.  “And if you want to respond to the Black Lives Matter protesters, if you want to respond to the families of those police officers who died in Dallas, if you want to respond to the families of Alton Sterling and Philando Castile... we can’t answer these questions without explaining how we demean and weaken law enforcement by forcing them to enforce unworkable laws.”

He admits he may have gone overboard in bringing up Black Lives Matter, and his suggestion failed. North Carolina delegate Ron Rabin worried his state “could be regionally surrounded by states where the use of drugs is legal and they come into our state to harass.” Cicione didn’t expect to win, but he did notice that the the average ages of the yes and no votes were “separated by 40 years,” which to him signalled that reformers will eventually get their way. “Those of us who grew up in a more tolerant environment about drugs are less afraid of them,” he said.

July 19, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)