Wednesday, November 06, 2013

Election outcomes in Nov 2013 keep up marijuana reform momentum

Though it would be unwise jump to too many conclusions based on off-year election results, these headlines reporting on results concerning various marijuana initiative in various jurisdictions suggest a continuing affinity for responsible reform and sensible regulation of maijuana laws, policies and practices:

Practically speaking, the Colorado vote is probably the most important and consequential, as it ensures a significant tax revenue stream now flowing from marijuana legalization in the Mile High state.  But politically speaking, the voting outcomes in Maine and Michigan, though most symbolic, could still prove important if (and when?) more politicians on both side of the aisle in the northeast and upper midwest see that there could be political upsides in 2014 and beyond from supporting responsible reform and sensible regulation of maijuana laws, policies and practices.

Cross-posted at Marijuana Law, Policy and Reform.

November 6, 2013 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, October 28, 2013

"Criminals and Campaign Cash: The Impact of Judicial Campaign Spending on Criminal Defendants"

CampaignCriminalCash-covThe title of this post is the title of this notable new report released today by the Center for American Progress. At this link, one can find a summary of the report's highlights, from which I have drawn this excerpt:

As state supreme court campaigns become more expensive and more partisan, the fear of being portrayed as “soft on crime” is leading courts to rule more often for prosecutors and against criminal defendants.

That is the disturbing finding of this Center for American Progress study, which explores the impact on the criminal justice system of the explosion in judicial campaign cash and the growing use of political attack ads in state supreme court elections, which have increased pressure on elected judges to appear “tough on crime.” In carrying out this study, CAP collected data on supreme courts that, between 2000 and 2007, saw their first election in which the candidates and independent spenders spent more than $3 million. This includes high courts in Illinois, Mississippi, Washington, Georgia, Wisconsin, Nevada, and West Virginia. For each of these courts, CAP examined 4,684 rulings in criminal cases for a time period starting five years before a given state’s first $3 million high court election and ending five years after that election.

The findings reveal a clear trend: As campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants....

These results suggest that, just as judges are more likely to rule against criminal defendants as elections approach, state supreme courts are more likely to rule for the state as the amount of money in high court elections increases.

These findings have important implications for the debates over reforming our criminal justice system.  In the past 50 years, the U.S. government has cracked down on drug crimes and provided financial incentives for states to do the same. The so-called War on Drugs has resulted in over-incarceration and the growth of private prisons, which has given certain companies a financial incentive in maintaining this status quo. But as the financial cost of the nation’s drug war has become clear, Americans are debating whether our punitive approach is working.  The federal government is scaling back the use of harsh mandatory minimums, and some states, including Georgia, are experimenting with alternative sentencing.  If reformers want to stop over-incarceration and ensure that criminal defendants are treated fairly, they must also speak out about the politicization of judicial elections and the tarring of judges as being soft on crime in attack ads, a practice that compels courts to rule for the state and against defendants.

The enormous sums of money spent in recent judicial elections have fueled an increase in attack ads targeting judges.  State supreme court candidates raised more than $200 million between 2000 and 2009 — two and a half times more than in the 1990s.   A record $28 million was spent on television ads in 2012 high court elections, with half of this money coming in the form of independent spending, according to Justice at Stake and the Brennan Center for Justice.   These independent spenders are more likely than the candidates’ campaigns to run attack ads.

Most of these attack ads allege that a certain judge is soft on crime, telling voters that he or she ruled in favor of a violent criminal without any context or discussion of the legal issue at stake. A single ruling in a case, replete with gruesome facts, can provide fodder for an attack ad. A 2012 candidate for the Ohio Supreme Court, for example, was attacked by the state Republican Party, which alleged in an ad that the judge — Democrat Bill O’Neill — had “expressed sympathy for rapists” in one of his opinions. During the 2004 West Virginia Supreme Court election, a group funded by coal mogul Don Blankenship warned that an incumbent justice “voted to release” a “child rapist” and then “agreed to let this convicted child rapist work as a janitor in a West Virginia school.” Another campaign ad, this one in the 2012 Louisiana Supreme Court race, claimed that one of the candidates had “suspended the sentence of a cocaine dealer, of a man who killed a state trooper, two more drug dealers, and over half the sentence of a child rapist.”

These attack ads distort rulings in criminal cases to play on voters’ fears, and they create political pressure on judges to rule in favor of the state. Moreover, judicial candidates themselves are running ads that proclaim their tough-on-crime approach, even though judicial ethics rules prohibit candidates from expressing a bias for or against certain litigants, including criminal defendants.... [T]his report briefly outlines how media images shape attitudes on crime and describes how these attack ads became more prevalent. The report then looks at the special interests bankrolling these ads and profiles four of the states studied — Illinois, Mississippi, Washington, and Georgia — and the experiences of each high court with attack ads and their fallout.

October 28, 2013 in Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, October 26, 2013

Terrific (though incomplete) analysis of the state and future of modern pot politics

Rs and potThis very interesting new piece in The New Republic authored by Nate Cohn and headlined "Marijuana is America's Next Political Wedge Issue: Pot politics, in 2016 and beyond," sets forth what strikes me as an astute (but incomplete) political analysis of modern marijuana reform realities circa fall 2013.   Here are excerpts:

We’ve reached the point where there should be no surprise if a major national politician embraces marijuana legalization. Without any large-scale campaign on its behalf, surveys show that approximately half of Americans now support marijuana legalization, including 58 percent in a recent, but potentially outlying, Gallup poll. Regardless of the exact support today, marijuana is all but assured to emerge as an issue in national elections — it's only a question of how and when.

So far, neither party wants to touch the issue. The Democratic governors of Washington and Colorado didn’t even support initiatives to legalize the possession, distribution, and consumption of marijuana, even though the initiatives ultimately prevailed by clear margins. It took the administration ten months to announce — in the middle of the Syria debate — that the Department of Justice wouldn’t pursue legal action against Washington and Colorado. And on the other hand, Republicans weren't exactly screaming about hippies and gateway drugs, either.

Despite their apparent reservation to engage the issue, it’s hard to imagine Democrats staying on the sidelines for too many more election cycles. The party’s base is already on board, with polls showing a clear majority of self-described Democrats in support....

To date, Democrats haven’t had many incentives to take a risk on the issue. Democrats are already winning the winnable culture war skirmishes, at least from a national electoral perspective, and they have a winning demographic hand. And let’s get perspective: Marijuana legalization may be increasingly popular, but it’s not clearly an electoral bonanza. Support for legalization isn’t very far above 50 percent, if it is in fact, and there are potential downsides. National surveys show that a third of Democrats still oppose marijuana legalization. Seniors, who turnout in high numbers in off year elections, are also opposed. Altogether, it’s very conceivable that there are more votes to be lost than won by supporting marijuana. After all, marijuana legalization underperformed President Obama in Washington State.

Even so, Democratic voters will eventually prevail over cautious politicians, most likely through the primary process. Any liberal rival to Hillary Clinton in 2016 will have every incentive to support marijuana legalization. Whether Clinton will follow suit is harder to say, given that frontrunners (and Clintons) are generally pretty cautious. It’s probably more likely that Clinton would endorse steps toward liberalization, like weaker criminal penalties and support for the legalization experiments in Washington and Colorado.

Republicans, meanwhile, are less likely to support legalization or liberalization. To be sure, some Republicans will. They can take a states’ rights position and the party has a growing libertarian bent, perhaps best exemplified by Rand Paul’s willingness to support more liberal marijuana laws. Republicans also have electoral incentives to lead on issues where they can earn a few votes among millennials, who pose a serious threat to the continued viability of the national Republican coalition. If the Republicans can't adjust their existing positions to compensate for demographic and generational change, which (for now) it appears they cannot, then perhaps taking a stance on a new issue, like marijuana, is the best they can do.

Of course, the problem is that a majority of Republicans are opposed to legalization. Two thirds of Republicans voted against legalization in Colorado and Washington, where one might expect Republicans be somewhat more amenable than the nation as a whole. It probably doesn’t help that marijuana is closely aligned with the liberal counterculture. It's also possible that many pro-legalization conservatives don't identify as Republicans at all, but instead might be independents....

With Republicans likely to remain opposed, marijuana could emerge as a big cultural issue in the 2016 election. In particular, Clinton would be well-positioned to deploy the issue. Her strength among older voters and women mitigates the risk that she would lose very much support, while legalization could help Clinton with the young, independent, and male voters who could clinch her primary or general election victory.

But realistically, Clinton or another Democrat won't campaign on marijuana legalization. For one, it’s most likely that the Democratic nominee will support incremental measures....

It’s easier to imagine marijuana playing a role in the 2016 primaries. Many candidates will have incentives to use the issue, whether it’s a cultural conservative using marijuana to hurt Rand Paul among evangelicals in Iowa, or a liberal trying to stoke a progressive revolt against Clinton’s candidacy. And once one party begins to debate the issue, the other will almost certainly be confronted by the same question. Marijuana won’t be decisive in a primary, but 2016’s primary battles will shape the two party’s initial positions on the issue.

Yet marijuana’s big moment will probably come later, perhaps in 2024. Legalization might eventually be popular enough for Democrats to use the issue in general elections, first at the state level and then nationally. As with gay marriage, the GOP’s obvious but difficult solution is to take their own creed on states’ rights seriously, and devolve the issue — and the politics — to the states. Compared to gay marriage, which strikes at the heart of the evangelical wing of the party, it should be easier for the Republicans to make an adjustment on marijuana. But if they cannot, the GOP will again find itself on the losing side of the culture wars.

I see lots and lots of merit to this analysis, and I find especially intriguing the cogent observation that a older female politician like Hillary Clinton might be especially well positioned to experiences far more political benefits than costs from pro-marijuana reform positions. (Indeed, I have been thinking for some time that the marijuana reform movement needs a prominent female (and motherly) face and voice comparable to Pauline Sabin, the first woman to sit on the Republican National Committee, who was a vocal advocate from repealing alcohol prohibition 80 years ago.)

But I think this commentary may be missing one key reality that I am certain will impact dramatically the politics of pot over the next few election cycles: the reality and perceptions of what ends up happening, good or bad, in Colorado and Washington as recreational pot goes mainstream in these two distinct states.  If legalization is seen as a huge success inside and outside these states over the next 12 months, especially in swing-state Colorado, we should expect marijuana reform supporters to see positive political possibilities as early as 2014 and I suspect it will become especially difficult for either party to be vocal opponents of marijuana liberalization and legalization realities.  But if things go poorly in these states, the modern reform politics neccesarily will take on a much different character. 

Labaoratories of democracy, here we come: buckle up politicians, we are likely in for a bumpy and unpredictable politicial ride.

October 26, 2013 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, October 23, 2013

Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?

O-PAUL-BOOKER-facebookThe silly title of this post is my first reaction to seeing this new report in the Wall Street Journal about the plans and priorities of US Senator-elect from New Jersey Cory Booker.  The piece is headlined "On Booker's To-Do List: Revamp Drug Laws; New Jersey's Senator-Elect Face Challenges Once He Takes Office," and here are the excerpts that caught my special attention:

Senator-elect Cory Booker sees revamping drug policies as one of the principal issues he can champion once he takes office in Washington, D.C., and he believes he can draw bipartisan support on the issue—even among those who supported his Republican challenger in the special-election race.

Mr. Booker said he has had initial conversations with Senate Majority Leader Harry Reid about his opinions on the issue—such as eliminating mandatory minimum-sentencing laws for nonviolent offenders and reducing incarceration rates as a way to help save tax dollars.

In the special-election race that wrapped up last week, Mr. Booker campaigned on working across the aisle despite the bitter partisan divide in Washington. Drug policy could be one area where he finds some success, according to those who work in the field. He singled out Sen. Rand Paul of Kentucky, a libertarian, as someone who sees eye-to-eye with him on the issue.

"I want to work with him," said Mr. Booker, about Mr. Paul, during an interview Tuesday at his campaign office in the city he led as mayor for seven years. "I take everybody in the Senate as sincere people who want to make a difference."

Mr. Paul — a tea-party leader seen as a possible 2016 Republican presidential contender — endorsed Mr. Booker's challenger, Steve Lonegan, in the Oct. 16 Senate election. But a spokeswoman for Mr. Paul on Tuesday welcomed Mr. Booker's gesture.

"Senator Paul would be pleased to work with any member who believes that mandatory minimum sentencing is unnecessary," the spokeswoman said. "He looks forward to Senator Booker's assistance on this important issue."

I am very pleased to see Booker talking up federal sentencing reform as he heads inside the Beltway, and I am especially excited to see him calling for a partnership with Senator Rand. Indeed, if the two of them truly seek to make sentencing reform a priority in the weeks and months ahead, the momentum toward reform may really become unstoppable.

And, of course, the notable irony of another person with the surname Booker shaking up federal sentencing perhaps mertis some special attention by clever wanna-be-headline-writing commentators.

Some recent and older related posts:

October 23, 2013 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, October 17, 2013

Is it too early want the new Senator from NJ to get going on sentencing reform?

Though Senator-Elect Cory Booker has not yet been sworn in, I am already eager to see if, when and how he might start trying to deliver on his campaign call for federal criminal justice reform. Linked via this page from his website, Senator-Elect Booker has championed an array of reform ideas in this white-paper titled "Reforming America's Criminal Justice System: Refocusing on Delivering Results, Aligning with Our Values, and Reducing the Burden on Taxpayers." Here is just a snippet of some of the sentencing-related reforms he is calling for in that document:

Increase federal funding for proven, evidence-based programs like drug and community courts, that divert low-level drug offenders from prison....

Facilitate a structured, national conversation about the decriminalization of marijuana...

Eliminate mandatory minimum sentences for low-level drug offenses...

Eliminate the disparity between crack cocaine and powder cocaine....

This all sounds good to me, Senator-Elect Booker. Feel free to let me know how I can help.

October 17, 2013 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, October 16, 2013

"Three myths about conservatives and criminal justice" ... which are really stories about (slowly) changing modern realities

The title of this post is drawn from the headline of this recent FoxNews opinion piece by Vikrant Reddy, a senior policy adviser for Right On Crime. Here are excerpts, after which I explain my addition to the headline:

Over the summer, Americans were embroiled in fierce debates about NSA surveillance, Syria, and — of course — ObamaCare.  Attorney General Eric Holder’s August 12th address on criminal justice reform, however, hardly made a blip on the national radar.

Observers who were surprised by this fundamentally misunderstand conservative views on criminal justice. Indeed, Holder himself quite possibly misunderstands conservative views on the subject. Three bits of conventional wisdom on this topic are completely wrong.

1. The conservative position on criminal justice is simply “lock ‘em up and throw away the key.”

Prominent conservatives like Jeb Bush, Newt Gingrich, and Ed Meese are committed to reducing the incarceration of many nonviolent offenders while also enhancing public safety through effective community corrections and law enforcement.  After Holder’s August policy address, Grover Norquist and Richard Viguerie essentially asked, “What took you so long?”

Increasingly, conservatives argue that prisons are necessary to incapacitate violent and career criminals but sometimes grow excessively large and costly like other government programs.... Conservatives appreciate the role that prison expansion has played in reducing crime, but they also recognize that incarceration has diminishing returns....

Citing recidivism rates of around 66% in some states, Newt Gingrich and Mark Earley observed: “If two-thirds of public school students dropped out, or two-thirds of all bridges built collapsed within three years, would citizens tolerate it?”

2. “Red states” are resistant to criminal justice reform.

In just the last three years, conservative legislatures and governors in Pennsylvania, South Carolina, and South Dakota enacted major reforms to avert future prison growth that redirect some nonviolent offenders to drug courts, electronic monitoring, and strong probation with swift and certain sanctions to promote compliance.

In 2012 and 2013, Georgia’s conservative legislature and Republican governor, Nathan Deal, passed perhaps the nation’s most sweeping adult and juvenile correctional reform bills. In 2011, an important prison reform bill was signed by John Kasich, the Republican governor of Ohio.

Texas, in particular, is a national reform model. A 2007 legislative estimate projected that over 17,000 new prison beds, at a cost of $2 billion, would be needed in Texas by 2012. State legislators instead expanded community-based options like probation, accountability courts, and proven treatment programs—for a fraction of the cost of prison expansion....

3. Conservative prison reforms are just a response to deficits and will be reversed once budgets are flush again.

Prison reform makes fiscal sense, especially in the wake of a recession that severely tightened state budgets, but this is not the only motivation behind conservative reform efforts. Texas, for example, began its reforms when it enjoyed a budget surplus.

Conservatives are principally concerned with public safety.  Troubling recidivism statistics suggest that some low-level, nonviolent offenders who are incarcerated actually emerge from prison more dangerous than when they entered.  Conservatives want to ensure that non-violent offenders amenable to rehabilitation can resume their lives as law-abiding citizens, productive employees, and responsible parents.

They are particularly concerned about the effect of sentencing policies on families, the bedrock institution of society. Overwhelming social science evidence — and common sense — indicates that children of incarcerated parents are more likely to perform poorly in school, engage in juvenile crime, and be incarcerated themselves.

Addressing this problem means using prison less for some nonviolent offenders and using community supervision more — but tough supervision that requires offenders to provide restitution to their victims, get drug treatment, keep stable jobs, and support their families.

I very much like this op-ed, but it strikes me as neither accurate nor fair to call the quoted claims "myths" as much as prior realities that are slowly changing.  Indeed, the main reason so many "red states" have been leading some of the modern reform movement lately is because of the extreme and dire budget consequences now evidence in the wake of prior "lock 'em up and throw away the key" laws and practices long embraced by conservatives in these red states.

Perhaps the clearest proof that conservatives have been (and still tend to be) fans of the lock'em up approach to criminal justice comes from the latest statistics on state-by-state incarceration rates. This DOJ Bureau of Justice Statistics press release about the latest official data on incarceration rates highlights the following telling data:

In 2012, states with the highest imprisonment rates included Louisiana (893 per 100,000 state residents), Mississippi (717 per 100,000 state residents), Alabama (650 per 100,000 state residents), Oklahoma (648 per 100,000 state residents), and Texas (601 p er 100,000 state residents).  Maine had the lowest imprisonment rate among states (145 per 100,000 state residents), followed by Minnesota (184 per 100,000 state residents), and Rhode Island (190 per 100,000 state residents).

Though there are lots of factors other than politics and policies that impact crime and incarceration realities in various states, these data demonstrate it is hardly mythical to believe that conservate policy-makers and opinion leaders have historically (and still today) favor lock'em up approaches to criminal justice.

Some recent and older related posts:

October 16, 2013 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, September 25, 2013

Does Senator Ted Cruz agree with GOP Senators Mike Lee and Rand Paul about the need for federal sentencing reform?

Senator Ted Cruz is the man of the political moment, in part because, as of this writing as reported here, he is now in his 20th hour of "speaking on the Senate floor without so much as a bathroom break to interrupt his symbolic demonstration against Obamacare." And while his high-profile efforts in opposition to recent federal health care reforms has helped make him the darling of political right, the question in the title of this post concerns whether Senator Cruz on federal criminal justices issue shares the reform-oriented views of other two others Senators who have been favorites of the tea-party wing of the GOP, namely Mike Lee and Rand Paul.

As regular readers know, Senator Lee is a co-sponsor of S. 1410, the Smarter Sentencing Act, and Senator Paul is the co-sponsor of S. 619, the Justice Safety Valve Act. Though these bills differ in various respects, both would bring big significant changes to the operation of the federal sentencing system. And both are indisputably getting huge political boosts (and clearing space for lots of other federal sentencing reform discussions and developments) because Senator Lee and especially Senator Paul has become active proponents for federal criminal justice reforms.

I have an inkling that, despite Senator Cruz's disaffinity for the GOP establishment in other respects, he is generally more inclined to favor the GOP establishment perspective (generally favoring big federal government and executive power) on criminal justice issues than the tea party perspective now well represented by Senators Lee and Paul.   And yet, Senator Cruz's home state of Texas has actually been a leader in recent years on state-level "smart on crime" reforms, and I suspect while serving as State Solicitor in Texas he saw some of the benefits of developing cost-effective, criminal punishment alternatives to imprisonment.  Indeed, I would expect that Senator Cruz's Texas experiences and his broader political philosophy should lead him to favoring placing more limits on the reach and power of the federal criminal justice system in order to enable states to develop more innovative, nimble and cost-effective local approaches to combatting crimes and imposing punishment while maximizing liberty and commitments to core constitutional values.

Though a member of the US Senate Committee on the Judiciary, I cannot find on Senator Cruz's official website any detailed discussion of federal criminal justice issues.  I want to believe that Senator Ted Cruz agrees with Senators Mike Lee and Rand Paul about the need for federal sentencing reform, and that he might even at some point dedicate his resources and rhetoric toward supporting criminal justice reform efforts being sponsored by his tea-party-oriented GOP colleagues.  But perhaps others who know Senator Cruz's record or rhetoric better than I do might have a more informed understanding of just where he now stands on these (somewhat) distinct issues of federal government growth and power.

Some recent and older related posts:

September 25, 2013 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, September 16, 2013

Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform

I-love-randMy (unhealthy? appropriate?) bromance with U.S. Senator Rand Paul has reached a whole new level based on this notable new article from Kentucky.  The piece is headlined "Sen. Rand Paul calls for restoring felons' voting, gun rights," and here are excerpts:

U.S. Sen. Rand Paul told a largely black audience Monday in Louisville that he will push to restore the voting and gun-ownership rights of felons who have completed their sentences — and he will urge state Senate Republicans to follow his lead. Currently in Kentucky, felons must petition the governor to get their voting rights restored.

“I am in favor of letting people get their rights back, the right to vote ... Second Amendment rights, all your rights to come back,” he said. “I know of one man who 30-some-odd years ago had pot plants in his closet in college, got a felony conviction in college, still can’t vote, and it’s plagued him his whole life trying to get work.”

The Republican’s comments came at the Plymouth Community Renewal Center in western Louisville as he spoke with community leaders about issues that affect African Americans. Additionally, as he has done in the past, he called for doing away with mandatory minimum sentences in the federal criminal justice system, saying they are often too harsh.

The Rev. Patrick Delahanty, the executive director of the Catholic Conference of Kentucky and who was not at the meeting, applauded Paul’s stance on restoring voting rights in a later interview. He said Paul’s comments could help advance the issue during the next session of the General Assembly....

Paul said during the meeting in western Louisville that he believes felons should have their rights restored automatically — either immediately after completing their sentences or at some specified point after the sentences are served. He said he plans to talk to leaders in the Kentucky Senate about their opposition and would be willing to travel to Frankfort to testify in favor of legislation to restore voting rights....

The League of Women Voters found in a 2006 study that nearly one in four African Americans is banned from the polls because of a felony conviction, compared with 1 in 17 Kentuckians overall.

Paul, who has said he is considering running for president in 2016, has been meeting with African-American groups in an effort to bridge the gap between blacks and the Republican Party. Paul also met this year with students at the historically black Howard University in Washington, D.C., and then later with students at historically black Simmons College in Louisville.

During an hourlong discussion Monday, Paul listened as black leaders talked about issues that hinder African Americans’ ability to get a leg up and fully participate in the community. Much of their concern centered around helping black men who committed crimes but have turned their lives around.

This AP article about Senator Paul's comments today also contributes to my man-love for this GOP leader:

U.S. Sen. Rand Paul drew a favorable response Monday in a mostly black Louisville neighborhood as the tea party favorite promoted the ideas of giving judges more sentencing flexibility, restoring voting rights for felons and offering tax breaks to lure businesses into struggling communities....

Paul spoke with a group of ministers and community activists during a meeting that lasted more than an hour. The senator told the group at the Plymouth Community Renewal Center that the "War on Drugs" unfairly targeted blacks. "We went crazy on the 'War on Drugs,'" the libertarian-leaning senator said. "Drugs aren't good. We should have some laws. ... We have to figure out how to go forward, so changing those laws is important."

Paul criticized federal mandatory minimum penalties that he said have clogged prisons with non-violent drug offenders. Blacks make up a disproportionately high number of those inmates, he said. "We have people in jail for life for non-violent drug crimes," he said. "I think this is a crime, in and of itself."

The first-term senator is a leading sponsor behind legislation that would give federal judges greater flexibility in sentencing. The measure is scheduled to be reviewed at a Senate Judiciary Committee hearing later this week.

"Mandatory minimums have trapped a lot of people, made them felons, made it hard for them to get jobs, for non-violent crimes," Paul said. "I would just as soon take some of these non-violent crimes and make them misdemeanors so you don't get in that trap."

Paul said he's also considering legislation that would restore voting rights for non-violent felons of federal crimes. The bill is still in draft form, he said, but the restoration of rights would apply to non-violent offenders who haven't committed other crimes for perhaps five years.

Paul said such a bill would especially be aimed at people who committed drug offenses as young adults — which he referred to as a "youthful mistake." Such offenders pay for those indiscretions for decades to come, he said. "I think the biggest problem right now with voting rights is ... not being allowed to vote because the law says you can never vote," he said.

Some recent and older related posts:

September 16, 2013 in Collateral consequences, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Second Amendment issues, Who Sentences? | Permalink | Comments (16) | TrackBack

Wednesday, September 11, 2013

Could GOP Senator John Cornyn be the next big advocate for reducing federal prison terms?

The question in the title of this post is prompted by this very interesting new piece by Greg Sargent via the Washington Post under the headline "Where are Republicans on sentencing reform?." Here are excerpts:

When Eric Holder announced recently that he is pursuing an ambitious package of sentencing reforms, including proposals to reduce “mandatory minimum” sentences, there was a widespread sense it could attract broad bipartisan support. The thinking was that agreement cuts across party lines that our decades-long experiment in mass incarceration has been a huge policy failure.

Now Dem Congressional aides are asking: Will leading Republicans step forward and support reform?...

I can report a new development on this front. I’m told GOP Senator John Cornyn is working on a separate but related package of prison-reform legislation that could help bring more attention to the overall debate.  According to his office, Cornyn is developing proposals designed to reduce recidivism rates and time served in prison. The ideas are not sentencing reform and would not reduce the sentences themselves — as would Holder’s proposals — but instead would give prisoners ways to reduce already-doled-out sentences.

The policies, which are modeled on similar reforms in Texas, would allow certain types of non-violent prisoners to do various programs — such as recidivism reduction programming, work programs, or other productive activities.  Prisoners at low risk of recidivism could trade in the time they do in such programs to convert their remaining time in prison into time in halfway houses or home confinement.

While these ideas don’t attack the problem in precisely the same way the ideas pushed by Holder and Dems do, there is overlap. As Cornyn’s office notes, their goal would be to reduce the amount of time people spend in prison, reduce recidivisim, and reduce costs. Cornyn’s office says he will try to round up Republican and Democratic support for them and possibly introduce them this fall.  If that happens, it could help ignite a conversation on the broader set of issues here....

But we have yet to hear from leading Republicans whose support would be required to push this debate forward, such as Senators Orrin Hatch and Jeff Sessions, both of whom are on the Judiciary Committee and (to my knowledge) have not seriously weighed in on Holder’s push.  The question is whether establishment Republicans are going to have a real voice on this issue this fall.  Let’s hope so.

I am pretty sure there are more than a few folks within the Justice Department who have advocated (both formally and behind the scenes) for expanding "good time" credits and creating "earned time" credits in order to make it much easier for nonviolent federal prisoners "to reduce already-doled-out sentences."  Consequently, it is not so much the specifics of Senator Cornyn's working plan that are such a big deal, but rather that someone without a obvious Tea Party history is working on a federal prison reduction plan at all.  Kudos to Senator Cornyn, and I hope joins the ever-growing chorus of GOP voices calling for federal criminal justice reforms.

Some old and newer related posts about AG Holder's speech and the "new politics" of sentencing reform:

September 11, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, August 26, 2013

Could "momentum for sentencing reform [now] be unstoppable" in the federal system?

The question in the title of this post is prompted by a comment in the final paragraph of this lengthy new piece by Juan Williams appearing in The Hill. The piece is headlined "Amid gridlock, a surprising accord on drug-law sentencing," and here are excerpts (including the final paragraph):

Reporters missed a story earlier this month when Attorney General Eric Holder announced new guidelines for his federal prosecutors in handling non-violent drug crimes.   Holder said President Obama plans to “reach out to members of Congress from both parties” to begin work on legislation to revise federal mandatory sentencing rules for people convicted of non-violent drug crimes....

In this era of deep political paralysis on Capitol Hill it should have been headline news that legislation revising sentencing guidelines for drug convicts is miraculously bringing together conservatives and liberals, even Tea Party conservatives and Obama....

Conservatives, including Republicans such as Texas Gov. Rick Perry, who regularly use tough rhetoric about punishing criminals, have already signed on to the essence of what Holder and Obama want to see in congressional legislation.  Even hardline conservative lobbying groups seem to be on board: “It’s a step in the right direction, though about five years too late,” said Grover Norquist, president of Americans for Tax Reform, in an interview with Time magazine.

My Fox News colleague, former Arkansas Gov. Mike Huckabee, a strong conservative Republican, proclaimed on Twitter: “Finally found something I can agree with Eric Holder on — sentencing too many people to prison for non-violent drug crimes.”

The goal is to reduce the nation’s record prison population, now 40 percent over capacity. Conservatives as well as the president and attorney general are amazingly close to agreeing on the need to permanently revise thinking born during the crack epidemic of the 1980s that still has federal prosecutors asking for heavy mandatory sentences in 60 percent of cases involving any kind of illegal drugs....

Durbin and Lee, Democrat and Republican, have introduced a bill — “The Smarter Sentencing Act” — to revise the fixed sentencing guidelines for non-violent drug offenders.  Leahy and Paul, another pairing across political lines, have introduced a similar bill — the “Justice Safety Valve Act of 2013” — which gives judges more discretion to break away from the current mandatory sentencing guidelines.  This bill has already won bipartisan House endorsements.

After Holder’s speech, Paul seemed to indicate the administration is following his conservative, libertarian lead in wrapping its arms around the idea of reducing prison sentences and cutting the cost that comes with housing so many prisoners.  “I am encouraged that the president and the attorney general agree with me that mandatory minimum sentences for non-violent offenders promote injustice and do not serve public safety,” Paul said.

In fact, Paul’s home state, Kentucky, as well as other GOP strongholds, including Arkansas and Texas, have already put in place programs to explore the impact of lesser drug sentences.  In Kentucky, as Holder told the ABA, the prison population is being reduced by an estimated 3,000 inmates over the next decade, which will net savings of $400 million. Texas, Holder said, has reduced its prison population by 5,000 in the last year with new approaches to drug treatment and parole. Arkansas cut 1400 prisoners with a similar plan. “Clearly these strategies work,” Holder said.  “They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’  And it is past time for others to take notice.”

Jennifer Palmieri, the White House communications director, confirmed to me Holder’s announcement that the president’s fall agenda will include meeting “with folks in Congress who are pursuing legislation as well as governors and mayors who have done innovative work on this issue.”

The president’s personal attention to the issue could spark some conservative opposition because of their personal antipathy to him.  But with existing support for the idea among Republicans on the Hill and in statehouses nationwide there is also a chance that a White House push on sentencing reform will raise public awareness, generate public support and gain the votes in Congress needed to enact potentially historic changes to 1980s sentencing laws that came out of the “War on Drugs.”

With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency — a bipartisan success in passing new laws to reduce the nation’s prison population.

Gosh knows I sure hope there might now be unstoppable momentum to get the Smarter Sentencing Act and/or the Justice Safety Valve Act passed in the next few months.  Indeed, right after AG Holder's big speech (which did, I think, make a few headlines), I advocated in this op-ed for the Los Angeles Times that AG Holder and his boss do everything possible ASAP to turn this reform talk and momentum into legal changes.  But the history of advocacy for federal crack sentencing reform, as well as the aftermath of the FSA, always bring me back to the real-world reality that big talk about sentencing reform is always a lot easier and a lot more common than big action.

Some old and newer related posts about AG Holder's speech and the "new politics" of sentencing reform:

August 26, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, August 19, 2013

Notable inside-the-Beltway discussion of modern sentencing politics

The Washington Post has this notable new piece with lots of notable quotes and notes about the modern politics of sentencing reform.  The piece is headlined "Cuccinelli says sentencing policy should be judged, in part, on cost," but it covers both federal and state sentencing politics.  Here is how the article starts:

Five days after he announced his candidacy for governor of Virginia, Republican Ken Cuccinelli II showed a side of himself seemingly at odds with his reputation as a tough law-and-order conservative.

The Virginia attorney general stood proudly at a news conference in late 2011 announcing the exoneration of a Richmond man who had spent 27 years in prison after being falsely convicted of rape. Cuccinelli had personally championed the man’s innocence, a sign of the broad evolution in Cuccinelli’s views on crime and punishment that would also lead him to argue that a frugal government should be more discerning about whom it puts behind bars.

“There is an expectation that the generic Republican position is tough on crime,” Cuccinelli said in an interview Thursday. “But even that has budget limits, particularly on the prison side."

Two decades after Republican George Allen charged into the Virginia governorship by vowing to eliminate parole for violent offenders, a rhetorical shift among the state’s leading conservatives reflects changing attitudes toward criminal justice nationwide.

U.S. Attorney General Eric H. Holder Jr. underscored the new dynamic last week when he announced reforms aimed at reducing sentences for some low-level offenders and slowing massive growth in the nation’s prison population. Republicans, who have targeted Holder on other issues, were generally supportive. The attorney general urged passage of legislation that has been introduced in Congress with bipartisan support that would give ­judges more discretion in applying stiff sentences to some drug crimes.

One person who discussed the plans with Holder said that the Obama administration felt like the political terrain was safe to make those kinds of policy ­changes because of the “conservative cover." The person spoke on the condition of anonymity because the discussion was private.

Amid fiscal problems caused in part by massive prison populations and research showing that mass incarceration causes social harm, some leading conservatives have been pushing for reforms.

A generation ago, Republicans savaged Democrats as soft on crime, until former President Bill Clinton and others joined the GOP in a crackdown that continued even as the nation’s violent crime rate plummeted to historic lows. “This is a fundamental shift in how we see criminal justice," said David A. Harris, a University of Pittsburgh professor who studies crime and police. “There is a growing awareness of the fiscal and social costs of our great experiment in mass incarceration, and the balance has shifted from trying to look unrelentingly tough to asking what works best."

In a 1994 Gallup poll, 52 percent of Americans called crime the nation’s most pressing problem. Last month, that number was 2 percent. Other surveys show that fewer Americans support mandatory prison terms for offenders than in the mid-1990s, and fewer believe courts are too lenient with criminals.

August 19, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, August 12, 2013

More reporting on (and now seeking reactions to) AG Holder's big sentencing speech

I am about to head off-line for the next few hours, and the conspiracy theorist in me lead me to think that DOJ has been reading my e-mail and that AG Eric Holder specifically decided to give his big sentencing speech to the ABA exactly when he knew I would be unable to blog about it.  Man, those socialist-fascists running this administration sure our sneaky! 

Jokes aside, today's Holder speech is clearly a big deal for a bunch of reasons, and I am pleased to see that the New York Times already has up this new lengthy story based on its text, now running under the headline "Justice Dept. Seeks to Curtail Stiff Drug Sentences." Here are some more details:

Attorney General Eric H. Holder Jr., in a speech at the American Bar Association’s annual meeting in San Francisco on Monday, is expected to announce the new policy as one of several steps intended to curb soaring taxpayer spending on prisons and help correct what he regards as unfairness in the justice system, according to his prepared remarks.

Saying that “too many Americans go to too many prisons for far too long and for no good law enforcement reason,” Mr. Holder is planning to justify his policy push in both moral and economic terms.

“Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable,” Mr. Holder’s speech says. “It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.”

Mr. Holder will also introduce a related set of Justice Department policies that would leave more crimes to state courts to handle, increase the use of drug-treatment programs as alternatives to incarceration, and expand a program of “compassionate release” for “elderly inmates who did not commit violent crimes and have served significant portions of their sentences.”

The policy changes appear to be part of Mr. Holder’s effort, before he eventually steps down, to bolster his image and legacy. Turmoil over the Congressional investigation into the botched Operation Fast and Furious gun trafficking case ensnared him in the Obama administration’s first term, and more recently, controversy has flared over the department’s aggressive tactics in leak investigations....

Mr. Holder’s speech on Monday deplores the moral impact of the United States’ high incarceration rate: although it has only 5 percent of the world’s population, it has 25 percent of its prisoners, he notes. But he also attempts to pre-empt political controversy by painting his effort as following the lead of prison reform efforts in primarily conservative-led Southern states.

Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.

For example, in the case of a defendant accused of conspiring to sell five kilograms of cocaine — an amount that would set off a 10-year mandatory minimum sentence — the prosecutor would write that “the defendant conspired to distribute cocaine” without saying how much. The quantity would still factor in when prosecutors and judges consult sentencing guidelines, but depending on the circumstances, the result could be a sentence of less than the 10 years called for by the mandatory minimum law, the official said.

It is not clear whether current cases that have not yet been adjudicated would be recharged because of the new policy....

“While the federal prison system has continued to slowly expand, significant state-level reductions have led to three consecutive years of decline in America’s overall prison population — including, in 2012, the largest drop ever experienced in a single year,” Mr. Holder’s speech says. “Clearly, these strategies can work. They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’ And it’s past time for others to take notice.”...

Mr. Holder’s speech marches through a litany of statistics about incarceration in the United States. The American population has grown by about a third since 1980, he said, but its prison rate has increased nearly 800 percent. At the federal level, more than 219,000 inmates are currently behind bars — nearly half for drug-related crimes — and the prisons are operating at nearly 40 percent above their official capacity.

 

Of course, the devil (and the real impact of all this) will be in the details. When I have the opportunity later tonight, I will be sure to post a link to the full copy of the Holder speech, and I also will try to get posted a copy of this important new policy memorandum being sent to all United States attorney offices on Monday. (I am hopeful that DOJ will post both item on this official web page shortly, as there seems to be a lot of justified media interest in these topics, and not just among sentencing addled blogges.)

As I have already said to a few reporters, what may prove most important for the impact of what Holder does may be how other important persons inside and outside the Beltway react to this speech and its various policy elements. Will members of Congress, for example, publically praise Holder for what he says and will they say additional legislation is needed (or no longer needed) in response? Will federal judges make sure to allow defense attorneys to "enforce" this new policy in some way? Will the US Sentencing Commission alter is planned priorities for the coming year for guideline reforms based on both the themes and specifics in the Holder speech?

Exciting times! (Perhaps too exciting, and perhaps it is a good thing I will be off line until late tonight!)

Some recent and older related posts about AG Holder's speech the new federal politics of sentencing:

August 12, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, August 07, 2013

"With Holder In The Lead, Sentencing Reform Gains Momentum"

The title of this post is the headline of this notable new NPR piece, which includes lots of notable quotes from Attorney General Eric Holder.  Here are excerpts:

Sit down with the attorney general to ask him about his priorities, , and he'll talk about voting rights and national security. But if you listen a bit longer, Eric Holder gets to this: "I think there are too many people in jail for too long and for not necessarily good reasons."

This is the nation's top law enforcement officer calling for a sea change in the criminal justice system. And he's not alone. Over the past few weeks, lawmakers have introduced bipartisan measures that would give judges more power to shorten prison sentences for nonviolent criminals and even get rid of some mandatory minimum terms altogether.

"The war on drugs is now 30, 40 years old," Holder said. "There have been a lot of unintended consequences. There's been a decimation of certain communities, in particular communities of color."

That's one reason why the Justice Department's had a group of lawyers working behind the scenes for months on proposals the attorney general could present as early as next week in a speech to the American Bar Association in San Francisco.

Some of the items are changes Holder can make on his own, such as directing U.S. attorneys not to prosecute certain kinds of low-level drug crimes or spending money to send more defendants into treatment instead of prison. Almost half of the 219,000 people currently in federal prison are serving time on drug charges.

"Well we can certainly change our enforcement priorities, and so we have some control in that way," Holder said. "How we deploy our agents, what we tell our prosecutors to charge, but I think this would be best done if the executive branch and the legislative branch work together to look at this whole issue and come up with changes that are acceptable to both."

Late last week, two senators — Illinois Democrat Dick Durbin and Utah Republican Mike Lee — moved in that direction. Their bill, called the Smarter Sentencing Act of 2013, would give judges more discretion to sentence nonviolent criminals below the so-called mandatory minimums. It would also lower mandatory minimums for several drug crimes to lower costs and cut down on crowding in a prison system that's estimated to be operating at 40 percent over capacity.

The chairman of the Senate Judiciary Committee, Vermont Democrat Patrick Leahy, says he'll hold a hearing on mandatory minimums next month. "They all sound like a great stop-crime idea when they were passed," Leahy said on the C-SPAN Newsmakers program Sunday. "Most of them sound better on paper than in practice."

His partner in that effort is Republican Rand Paul, a Tea Party favorite from Kentucky. They've introduced their own legislation, the Justice Safety Valve Act of 2013, to give judges more power to impose lower sentences — and not just in drug crimes. "Doing away with mandatory minimums, giving more discretion to judges, that shouldn't be Republican or Democrat," Leahy added. "It just makes good sense."

The idea has already taken off in nearly two dozen states including Arkansas, Kentucky and Texas, where it won support from prominent conservatives including Grover Norquist, part of a coalition known as Right on Crime. "It's easier to say, 'Let's spend a few dollars a day managing you at your home where you can spend time with your family, where you can work, instead of hundreds of dollars a day, keeping you in a cell,'" Norquist said in a video on the group's web site.

And the Justice Department explicitly pointed to state reform efforts in a letter to the U.S. Sentencing Commission in July. The old system, wrote official Jonathan Wroblewski, is being replaced with the idea that budgets are "finite," prison is a power that should be "exercised sparingly and only as necessary" and that "reducing reoffending and promoting effective reentry are core goals."

August 7, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack

Tuesday, August 06, 2013

Conservative group ALEC joins the growing calls for sentencing refom

As reported in this Daily Caller piece, headlined "Conservative group advocates sentencing reform,"a notable new public policy group has joined the chorus of right-leaning advocates for significant sentencing reforms. Here are the basics:

A major conservative policy organization has endorsed criminal justice reform, lending further bipartisan support to a bill in Congress that would lessen mandatory minimum sentencing for nonviolent offenses.

The American Legislative Exchange Council, a free-market advocacy group that works with legislators and businesses to craft model legislation, gave its approval to the Justice Safety Valve Act on Monday.

The bill would allow judges to depart from imposing mandatory minimum sentences on nonviolent criminals when they believe different sentences are appropriate. Such a policy would save money by ensuring that only truly dangerous criminals spend decades in prison on the taxpayer’s dime, wrote Cara Sullivan, a legislative analyst at ALEC.

“This helps ensure lengthy sentences and prison spaces are reserved for dangerous offenders, allowing states to focus their scarce public safety resources on offenders that are a real threat to the community,” she wrote in an email to The Daily Caller News Foundation. “This approach, as opposed to simply throwing more dollars at corrections, reduces prison overcrowding while still holding offenders accountable.”

Many of the people sentenced under mandatory minimums were convicted of selling drugs, and committed no violence. Some were found guilty of breaking federal marijuana laws, even though they resided in states where growing and selling marijuana are legal under state laws.

While many conservative lawmakers once held to a “tough on crime” approach to criminal sentencing, the inefficiency and financial waste of imposing harsh sentences on low-level drug offenders has pushed libertarian-leaning elements of the GOP to embrace the Justice Safety Valve Act.  Conservatives are also concerned that federal laws interfering with judges’ abilities to set appropriate sentences — and states’ rights — are just another example of overreach on the part of the Obama administration....

Families Against Mandatory Minimums, a criminal justice advocacy group, praised ALEC’s decision to add its voice to the call for sentencing reform. “There is nothing conservative about inefficient, one-size-fits-all sentencing laws that cost billions in tax dollars and offer no public safety benefit in return,” wrote Greg Newburn, Florida project director for FAMM, in an email to TheDC News Foundation. “ALEC’s adoption of a model safety valve reflects the growing consensus among conservative lawmakers that mandatory minimums are ripe for reform.”

Wow.  It would now seem that  it may only be Bill Otis (and, I fear, still some members of the Obama Administration) who resistant to serious efforts to reform federal sentencing statutes.

Some recent and older related posts about the new federal politics of sentencing:

August 6, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Thursday, August 01, 2013

Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"

Lee official_photoAs reported via this press release from the offices of Senator Dick Durbin, another notable pair of Senators from the two parties have put aside other differences to come together to support and promote federal sentencing reform.  (Since the press release comes from Senator Durbin's office, I have Senator Lee's picture posted.)   Here are the basics:

With federal prison populations skyrocketing and nearly half of the nation’s federal inmates serving sentences for drug offenses, Assistant Majority Leader Dick Durbin (D-IL), Senator Mike Lee (R-UT) have introduced the Smarter Sentencing Act, to modernize our drug sentencing polices by giving federal judges more discretion in sentencing those convicted of non-violent offenses. Making these incremental and targeted changes could save taxpayers billions in the first years of enactment.

“Mandatory minimum sentences for non-violent drug offenses have played a huge role in the explosion of the U.S. prison population,” Durbin said. “Once seen as a strong deterrent, these mandatory sentences have too often been unfair, fiscally irresponsible and a threat to public safety. Given tight budgets and overcrowded prison cells, judges should be given the authority to conduct an individualized review in sentencing certain drug offenders and not be bound to outdated laws that have proven not to work and cost taxpayers billions.”

“Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said. “By targeting particularly egregious mandatory minimums and returning discretion to federal judges in an incremental manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing polices.”

The United States has seen a 500 percent increase in the number of inmates in federal custody over the last 30 years, in large part due to the increasing number and length of certain federal mandatory sentences. Mandatory sentences, particularly drug sentences, can force a judge to impose a one-size-fits-all sentence without taking into account the details of an individual case. Many of these sentences have disproportionately affected minority populations and helped foster deep distrust of the criminal justice system.

This large increase in prison populations has also put a strain on our prison infrastructure and federal budgets. The Bureau of Prisons is nearly 40 percent over capacity and this severe overcrowding puts inmates and guards at risk. There is more than 50 percent overcrowding at high-security facilities. This focus on incarceration is also diverting increasingly limited funds from law enforcement and crime prevention to housing inmates. It currently costs nearly $30,000 to house just one federal inmate for a year. There are currently more than 219,000 inmates in federal custody, nearly half of them serving sentences for drug offenses.

The bipartisan Durbin-Lee-Leahy bill is an incremental approach that does not abolish any mandatory sentences. Rather, it takes a studied and modest step in modernizing drug sentencing policy by:

• Modestly expanding the existing federal “safety valve”....

• Promoting sentencing consistent with the bipartisan Fair Sentencing Act: The bipartisan Fair Sentencing Act of 2010 – which was authored by Senator Durbin and unanimously passed the Senate before it was signed into law – reduced a decades-long sentencing disparity between crack and powder cocaine offenses. Unfortunately, because of the timing of their sentences, some individuals are still serving far-too-lengthy sentences that Congress has already determined are unjust and racially disparate. The Smarter Sentencing Act allows certain inmates sentenced under the pre-Fair Sentencing Act sentencing regime to petition for sentence reductions consistent with the Fair Sentencing Act and current law....

• Increasing individualized review for certain drug sentences: The Smarter Sentencing Act lowers certain drug mandatory minimums, allowing judges to determine, based on individual circumstances, when the harshest penalties should apply. The Act does not repeal any mandatory minimum sentences and does not lower the maximum sentences for these offenses....

The bipartisan Smarter Sentencing Act is supported by faith leaders from the National Association of Evangelicals to the United Methodist Church. It is supported by groups and individuals including Heritage Action, Justice Fellowship of Prison Fellowship Ministries, the ACLU, Grover Norquist, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, the NAACP, the Sentencing Project, Open Society Policy Center, the American Bar Association, NAACP Legal Defense and Educational Fund, the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, the Constitution Project, Drug Policy Alliance, Brennan Center for Justice, and Lawyers’ Committee for Civil Rights Under Law.

I am going to need to see the text of this new bipartisan Smarter Sentencing Act before opining about whether it is a terrific reform proposal or just a very good one. But, even without seeing the specifics, I can note and praise the willingness and ability for these Senators, who likely do not agree on too many issues, coming together to give effect to their shared view that the federal sentencing system need to be made smarter.

Some recent and older related posts about the new federal politics of sentencing:

August 1, 2013 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Tuesday, July 16, 2013

Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?

The question in the title of this post was my first thought after seeing this post by Nate Silver at his 538 blog headlined "Senate Control in 2014 Increasingly Looks Like a Tossup." I am not counting any Senate chickens at least until this time next summer, but I also do not think it is crazy for folks who favor significant federal sentencing reforms to actually believe such reforms might actually become more politically viable if the Senate were to change political hands while Barack Obama is still the President.

A lot would depend, of course, on the circumstances and results of the 2014 election cycle and especially on who would play leadership roles in a GOP-led Senate. But if, for example, Senator Rand Paul and other libertarian-leaning Senator were to become chairs of key Senate Judiciary subcommittees, I think the odds of significant federal criminal justice reforms getting through Congress might actually go up.

I fear that some commentors will ask what I am smoking when raising this notion, and I do fear that this post may be just some serious wishful thinking on my part. But, hey, if folks are going to start predicting election outcomes for 2014, why not have some fun speculating on what those outcomes could mean for sentencing law and policy?

Some recent and older related posts:

July 16, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, July 06, 2013

"Crime makes halting comeback as a political issue"

The title of this post is the headline of this notable new AP article.   Here are excerpts:

The ad seems like an artifact from an earlier political era — a grainy mug shot of a convicted murderer, flashing police lights, a recording of a panicked 911 call and then a question about Colorado's Democratic governor, up for re-election next year: "How can we protect our families when Gov. Hickenlooper allows a cold-blooded killer to escape justice?"

The online spot from the Colorado Republican Party appeared only hours after Gov. John Hickenlooper in May indefinitely suspended the death sentence of Nathan Dunlap, who killed four people in 1993 and was scheduled to be executed in August. The governor cited problems with the concept and application of the death penalty.

Eclipsed by economic issues and other social concerns, crime is slowly re-emerging as a campaign issue. From the 1960s to the early 1990s, Republicans hammered Democrats on crime for focusing too much on rehabilitation and not enough on punishment and imprisonment. That changed as crime rates plunged in the 1990s and Arkansas Gov. Bill Clinton inoculated Democrats by being an avid death penalty supporter, interrupting his 1992 presidential campaign to preside over an execution.

Now increasing numbers of states are turning away from mandatory prison sentences and embracing rehabilitation programs to thin out inmate populations and save taxpayer money. The shift has been particularly pronounced in conservative, Republican-dominated states like Georgia, Texas and South Carolina.

That growing consensus is facing its first test in two political bellwether states where demographics have pushed Republicans into a political corner. In Colorado, Republican Rep. Mike Coffman held his seat last year partly by attacking his challenger for failing to support a proposed state law to take DNA samples from people arrested on suspicion of committing felonies, and the GOP is hoping crime issues will help them unseat Hickenlooper and win back control of the state legislature in 2014. They have attacked Democrats for rejecting legislation to impose mandatory sentences of 25 years to life on sex offenders and for passing a law limiting prosecutors' ability to charge juveniles as adults. GOP leaders are trying to persuade the district attorney whose office prosecuted Dunlap to run for governor.

Republicans say they have no shortage of issues to run on in Colorado. But one, they say, stands out for its potency. "Crime, justice, law and order, public safety resonate in a more personal way than a chart and graph of GDP growth," said Ryan Call, chairman of the Colorado Republican Party.

In California, which has conducted the most ambitious criminal justice overhaul in the nation, Republicans are targeting Gov. Jerry Brown and legislative Democrats over the state's policy that sends lower-level offenders to local jails rather than state prisons. The law went into full effect in late 2011, but already there have been several highly publicized cases of convicts released from prison committing crimes like rape and murder. The most prominent Republican to emerge as a possible challenger to Brown, former Lt. Gov. Abel Maldonado, in May launched a ballot campaign to reverse the prison overhaul.

Frank Zimring, a University of California-Berkeley law professor who has written widely on crime and politics, noted that crime rates appear to have leveled out after a two-decade decline. He called the recent GOP efforts "the test run as to whether there could be a resurgence in hard-right, punitive" crime politics. In California, the Republican Party has no statewide office-holders and less than one-third of the seats in the state legislature. In those circumstances, Zimring said, "you consult your greatest hits playbook from previous eras."

It's unclear if those attacks will resonate in an era that still features historically low crime rates and one in which voters have shown a willingness to reconsider tough crime laws. In California, for example, a ballot measure to roll back part of the state's controversial 1994 three-strikes law — it requires 25 years to life in prison for people convicted of a third felony — passed with 70 percent support in November.

"There certainly are signs that politicians are trying to use it as a wedge issue," said Marc Levin of Right on Crime, a Texas-based group that pushes flexible sentences and rehabilitation programs from a conservative perspective. "But I'm struggling to see a legislator who got voted out of office in the last several years for supporting criminal justice reform."...

"It used to be 'how do we demonstrate that we're tough on crime?'" said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts. "Now it's 'how do we get taxpayers better returns on their criminal justice dollars?'"

July 6, 2013 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, June 28, 2013

Effective discussion of "Responsible Prison Reform" at National Affairs

Eli Lehrer has this lengthy new piece in the latest issue of National Affairs, which is headlined "Responsible Prison Reform." As these excerpts from the start, middle and end of the lengthy essay suggest, the piece merits reading in full:

The evidence shows that this mass incarceration has performed more or less as advertised. By any measure, nearly every neighborhood, city, and state in the United States has become safer over the past two decades.  Crime rates in many categories are at less than half of their all-time highs.  But the costs of incarceration — both financial and societal — are also becoming increasingly clear.  The policies that were appropriate for a nation that had one of the highest crime rates among developed Western countries are not necessarily appropriate for a nation that now has one of the lowest.

Just as conservatives once led the way toward the tougher sentencing rules and other policies that increased imprisonment rates, they should lead the way in sensibly shrinking the prison population.  Reform of America's correctional system does not require abandoning a single conservative principle or returning to disproven and, frankly, disastrous policies that blamed society as a whole for crime and resulted in too few people held accountable for their misdeeds.  In fact, somewhat paradoxically, an increased emphasis on individual responsibility — which earlier prompted the move toward mass incarceration — also holds promise for a new conservative agenda for prison reform. Combined with a renewed emphasis on effective punishment, increased attention to circumstances within jailhouse walls, and a different social attitude toward ex-offenders, these sound, time-tested principles can shape the new vision for prison reform that America urgently needs....

Effective though mass incarceration is, however, the strategy is not without its costs. These costs can be measured in fiscal terms, in the failure of imprisonment to prevent certain repeat behavior, in the impact of incarceration on certain communities, and in the tension between high incarceration rates and democratic values.

The financial costs of large-scale incarceration are immense.  Housing an inmate for a year costs anywhere from $10,000 for a low-security inmate in a state where corrections officers are paid modestly to more than $100,000 for maximum-security inmates in states with high prison-guard salaries.  Nationwide, the Bureau of Justice Statistics estimated total spending on prisons and jails in 2010 to be nearly $50 billion, or nearly $500 a year for every American household.

But these costs represent only the tip of the iceberg.  Removing 2 million people from the labor force causes dislocations of all sorts.  People in prison and jail have a difficult time maintaining personal relationships.  This contributes to large numbers of children growing up in single-parent homes, or without any parents at all — which, in turn, correlates strongly with more of those children turning to crime.

The policy of large-scale incarceration has also failed to demonstrate lasting success in the area of rehabilitation.  Although recidivism has declined slightly in recent years, thanks in part to new re-entry programs, most studies show that about 40% of people who are released from prison will be re-arrested within three years.  Despite concerted efforts and millions of dollars in public spending, recidivism rates barely declined during the 2000s. Since vastly more people are serving time behind bars, this pattern of high recidivism suggests that prisons are fostering even more criminality....

Without casting aside the ethos of individual responsibility that has led to so many Americans being locked up — and without undertaking a wholesale revision of the nation's laws — the United States can and should reduce its prison population and make conditions more humane for those who serve time behind bars.  Such reforms, implemented wisely and cautiously, can mitigate the tremendous negative consequences of the explosion in the number of Americans in prison.  The United States can remain safe and, simultaneously, undo much of the social damage that results from large-scale incarceration.

Some recent and older related posts:

June 28, 2013 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, June 21, 2013

"As Prisons Squeeze Budgets, GOP Rethinks Crime Focus"

New approachThe title of this post is the headline of this lengthy new Wall Street Journal article appearing on the paper's front page.  Here are excerpts (with two lines emphasized for subsequent commentary):

Weeks after his election as Georgia governor in 2010, Nathan Deal was pulled aside by a conservative state lawmaker with urgent business to discuss.  Rep. Jay Neal, a small-town pastor, said he had the seeds of a plan to cut Georgia's swelling prison population, which was costing taxpayers over $1 billion a year. The governor-elect didn't let Mr. Neal get far.

Georgia Gov. Nathan Deal has led the drive to reduce prison populations in his state. "The minute I mentioned what I wanted to do, he jumped in with what he wanted to do," Mr. Neal recalled. "And it turns out we were talking about the same thing."

That pairing of a pastor with a former prosecutor, both Republicans, helped pave the way for dramatic revamping of Georgia's criminal code.  New rules enacted over the past two legislative sessions are steering nonviolent offenders away from prison, emphasizing rehabilitation over jail time, and lessening the penalties for many drug and property crimes.

Georgia is the latest example of a Republican-led state drive to replace tough-on-crime dictums of the 1990s with a more forgiving and nuanced set of laws. Leading the charge in states such as Texas, Ohio, Kentucky, South Carolina and South Dakota are GOP lawmakers — and in most cases Republican governors — who once favored stiff prison terms aimed at driving down crime.

Motivations for the push are many.  Budget pressures and burgeoning prison costs have spurred new thinking.  Some advocates point to data showing that harsh prison sentences often engender more crime.  Among the key backers are conservative Christians talking of redemption and libertarians who have come to see the prison system as the embodiment of a heavy-handed state.  And crime rates are falling nationally, a trend that has continued in most of the states putting fewer people in jail.

The movement also dovetails with the quest of some Republicans to soften the party's edges and to plunge into new policy areas that affect the poor and the disadvantaged. The initiatives have drawn praise from groups that aren't often allied with the GOP, including the National Association for the Advancement of Colored People and the American Civil Liberties Union.  The result is some unlikely bedfellows, with the conservative American Legislative Exchange Council working alongside the ACLU.

"Criminal justice is the area where conservative thinking has most changed with the times," said Eli Lehrer, a former GOP Senate staffer and conservative activist in Washington, who has written extensively on the push for new sentencing rules.  He describes the push as "the most important social reform effort on the right since the rise of the pro-life movement in the 1970s."

Just over half of the states have embarked on criminal-justice overhauls of varying scope over the past five years, with 19 of those efforts led by Republican governors or GOP legislatures and nine by Democratic governors or legislatures.  Some of the most aggressive moves have come in states, many in the South, with incarceration rates well above the national average....

The downturn has been particularly welcome in states that had projected a continued surge in prison numbers.  Ohio, which was bracing for an inmate population of over 57,000 by the end of the decade, has seen its number fall by nearly 1% a year since 2009.

Changes to sentencing laws haven't sailed everywhere.  In Indiana, an aggressive push in 2011 by then Republican Gov. Mitch Daniels got watered down — and eventually abandoned — after it ran into opposition from prosecutors. GOP Gov. Rick Scott in Florida cited public safety last year when he vetoed a bill to cut the sentences for nonviolent drug offenders.

The conservative quest to rethink criminal sentencing and rewrite state penal codes got its start in Texas, when GOP lawmakers in 2007 balked at the need to build three new prisons to house an anticipated 17,000 more prisoners by 2012. They decided instead to revamp the state's probation system and boost funding for addiction treatment and rehabilitation by $241 million.

The state prison population has declined by nearly 6,000 inmates since 2008 after decades of rapid growth and during a time when the state's own population has continued to swell. In 2011, Texas shut a prison for the first time in state history.

Behind the Texas efforts stood a conservative local think tank, the Texas Public Policy Foundation, and one of its top donors, a wealthy oil man from Odessa named Tim Dunn. Mr. Dunn paid to establish a center within the foundation in 2005 to focus on overhauling the state's criminal code. An evangelical Christian with a strong libertarian bent, Mr. Dunn said he watched for years as Texas' crime rate continued to climb even while its prison population swelled. "I had come to see our justice system as imperial, as intent on maintaining the authority of the king. It was no longer communal or restorative," he said.

Under the directorship of Texas lawyer Marc Levin, the policy foundation became the hub of a national movement as requests for legislative help poured in from other states. The center adopted a formal platform in early 2010 and took its campaign national under the name Right on Crime.  It soon had the backing of a long list of conservative supporters, among them former Florida Gov. Jeb Bush, former Reagan Attorney General Ed Meese, former drug czar Bob Bennett and David Keene, until recently president of the National Rifle Association.

The group and its Republican followers are sensitive to charges that they are going soft on crime, "that we want to hug a thug," as Mr. Dunn puts it.  But they insist they are moving to correct a system that tilted too far toward punishment, without any gauge for success or failure. State prison populations swelled 700% between 1970 and 2009, from 174,000 inmates to 1.4 million.

Legislatures across the country have rewritten their criminal-justice codes. A few Democratic governors have jumped in, including Arkansas's Mike Beebe and Hawaii's Neil Ambercrombie. New York and Connecticut made changes even before Texas did.  But "on balance, it has been conservatives who have been out front," said Adam Gelb, who directs a national criminal-justice initiative at the Pew Charitable Trusts, which has worked on initiatives across the country.

In many states, former law-and-order prosecutors and judges have led the effort. In others, pastors-turned-lawmakers have jumped in. Many describe eureka moments that altered their views....

For Ohio Republican state Sen. Bill Seitz, a turning point came in the late 2000s, when he watched the voters in his county, which includes Cincinnati, twice vote down levies to build a new jail. "It became all the clearer to me how we pass tough sentencing laws with a blind eye to the fiscal impacts," he said.

In Georgia, Gov. Deal and Rep. Neal arrived at their partnership via similar and very personal paths . Mr. Deal says his evolution came about largely on the streets of his hometown of Gainesville, an hour's drive north of Atlanta.  For nearly a decade, his son Jason has presided over a drug court designed to rehabilitate addicts charged with felonies and to keep them out of prison.  The future governor often went to graduation ceremonies where recovering addicts would tell their stories. "They all have their own stories, but a common thread runs through all of them," Gov. Deal said. "They had lied. They had stolen. They had alienated their spouses, their parents, their siblings. But they were given a second chance, and they had been rehabilitated."...

Supporters of the changes in Georgia and other states note that elected officials such as Gov. Deal have done little to publicize their efforts, much less campaign on them.  Ben Jealous, president of the NAACP, sees that as a missed opportunity. "This is an area where Republicans can really connect with black voters," he said.

Gov. Deal acknowledges there are risks in championing prison changes. "You always worry about being accused of being soft on crime," he said.  But through a spokesman he said he now "very much wants to be seen as the face of prison reform in this state."

I concur with the sentiment emphasized above that the prison/sentencing reform movements on the right are a very important and consequential social issue shift for the GOP, and one that could have a profound long-term impact on the fate and fortunes of both political parties in the decades to come.  However, as suggested by the second highlighted point, unless and until GOP politicians believe they can secure votes and not just save money and lives through reform, this reform movement will not likely become as transformative as it might otherwise could be.

Some recent and older related posts:

June 21, 2013 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (23) | TrackBack

Monday, June 10, 2013

"A Conservative Case for Prison Reform"

The title of this post is the title of this op-ed appearing in today's New York Times and authored by Richard Viguerie, the chairman of ConservativeHQ.com. Here are excerpts:

Conservatives should recognize that the entire criminal justice system is another government spending program fraught with the issues that plague all government programs.  Criminal justice should be subject to the same level of skepticism and scrutiny that we apply to any other government program.

But it’s not just the excessive and unwise spending that offends conservative values. Prisons, for example, are harmful to prisoners and their families. Reform is therefore also an issue of compassion. The current system often turns out prisoners who are more harmful to society than when they went in, so prison and re-entry reform are issues of public safety as well.

These three principles — public safety, compassion and controlled government spending — lie at the core of conservative philosophy.  Politically speaking, conservatives will have more credibility than liberals in addressing prison reform.

The United States now has 5 percent of the world’s population, yet 25 percent of its prisoners.  Nearly one in every 33 American adults is in some form of correctional control. When Ronald Reagan was president, the total correctional control rate — everyone in prison or jail or on probation or parole — was less than half that: 1 in every 77 adults.

The prison system now costs states more than $50 billion a year, up from about $9 billion in 1985.  It’s the second-fastest growing area of state budgets, trailing only Medicaid. Conservatives should be leading the way by asking tough questions about the expansion in prison spending over the past three decades....

Too many offenders leave prisons unprepared to re-enter society. They don’t get and keep jobs. The solution lies not only inside prisons but also with more effective community supervision systems using new technologies, drug tests and counseling programs.  We should also require ex-convicts to either hold a job or perform community service.  This approach works to turn offenders from tax burdens into taxpayers who can pay restitution to their victims and are capable of contributing child support....

Right on Crime exemplifies the big-picture conservative approach to this issue.  It focuses on community-based programs rather than excessive mandatory minimum sentencing policies and prison expansion.  Using free-market and Christian principles, conservatives have an opportunity to put their beliefs into practice as an alternative to government-knows-best programs that are failing prisoners and the society into which they are released....

By confronting this issue head on, conservatives are showing that our principles lead to practical solutions that make government less costly and more effective. We need to do more of that.  Conservatives can show the way by impressing on more of our allies and political leaders that criminal justice reform is part of a conservative agenda.

Some recent and older related posts:

June 10, 2013 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack