Tuesday, May 12, 2015

“Callous and Cruel: Use of Force against Inmates with Mental Disabilities in US Jails and Prisons”

The title of this post is the title of this big new Human Rights Watch Report which documents worrisome use of force against prisoners with mental health problems in the United States.  Here is an excerpt from the report's introduction:

Across the United States, staff working in jails and prisons have used unnecessary, excessive, and even malicious force on prisoners with mental disabilities such as schizophrenia and bipolar disorder.

Corrections officials at times needlessly and punitively deluge them with chemical sprays; shock them with electric stun devices; strap them to chairs and beds for days on end; break their jaws, noses, ribs; or leave them with lacerations, second degree burns, deep bruises, and damaged internal organs.  The violence can traumatize already vulnerable men and women, aggravating their symptoms and making future mental health treatment more difficult.  In some cases, including several documented in this report, the use of force has caused or contributed to prisoners’ deaths.

Prisons can be dangerous places, and staff are authorized to use force to protect safety and security. But under the US constitution and international human rights law, force against any prisoner (with mental disabilities or not) may be used only when — and to the extent — necessary as a last resort, and never as punishment.

As detailed in this report, staff at times have responded with violence when prisoners engage in behavior that is symptomatic of their mental health problems, even if it is minor and non-threatening misconduct such as urinating on the floor, using profane language, or banging on a cell door.  They have used such force in the absence of any emergency, and without first making serious attempts to secure the inmate’s compliance through other means.  Force is also used when there is an immediate security need to control the inmate, but the amount of force used is excessive to the need, or continues after the inmate has been brought under control.  When used in these ways, force constitutes abuse that cannot be squared with the fundamental human rights prohibition against torture or other cruel, inhuman, or degrading treatment or punishment.  Unwarranted force also reflects the failure of correctional authorities to accommodate the needs of persons with mental disabilities.

There is no national data on the prevalence of staff use of force in the more than 5,000 jails and prisons in the United States.  Experts consulted for this report say that the misuse of force against prisoners with mental health problems is widespread and may be increasing.  Among the reasons they cite are deficient mental health treatment in corrections facilities, inadequate policies to protect prisoners from unnecessary force, insufficient staff training and supervision, a lack of accountability for the misuse of force, and poor leadership.

It is well known that US prisons and jails have taken on the role of mental health facilities. This new role for them reflects, to a great extent, the limited availability of community-based outpatient and residential mental health programs and resources, and the lack of alternatives to incarceration for men and women with mental disabilities who have engaged in minor offenses.

According to one recent estimate, correctional facilities confine at least 360,000 men and women with serious conditions such as schizophrenia, bipolar disorder, and major depression.  In a federal survey, 15 percent of state prisoners and 24 percent of jail inmates acknowledged symptoms of psychosis such as hallucinations or delusions.

What is less well known is that persons with mental disabilities who are behind bars are at heightened risk of physical mistreatment by staff.  This report is the first examination of the use of force against inmates with mental disabilities in jails and prisons across the United States.  It identifies policies and practices that lead to unwarranted force and includes recommendations for changes to end it.

May 12, 2015 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (2) | TrackBack (0)

Monday, May 11, 2015

Notable Ohio county prosecutor calls pot prohibition a "disastrous waste of public funds"

Images (9)As reported in this Cincinnati Enquirer article, headlined "Prosecutor Deters OK with legalizing pot," a high-profile prosecutor in Ohio is now publicly getting involved with efforts to reform the state's marijuana laws. Here are the details:

The campaign to legalize marijuana in Ohio found an unlikely friend Monday in Hamilton County Prosecutor Joe Deters.

Deters, a life-long Republican and law-and-order prosecutor, said he agreed to lead a task force on the potential impact of legalization in part because he's been unhappy for years with the state's marijuana laws. He said they waste taxpayer dollars and target people who typically are not much of a threat to society.

"I think they're outdated and ludicrous," Deters said of marijuana laws. "I don't use marijuana, but I know people who do use marijuana, and I'd rather deal with someone who smoked a joint than someone who drank a bottle of vodka any day of the week."

When asked if he favors legalization, Deters told The Enquirer: "I don't have any problem with it at all."

ResponsibleOhio, the group of wealthy investors campaigning for legalization, asked Deters to lead the task force. Deters said he's not being paid for his work on the task force and agreed to do it because he's interested in the issue and the potential impact on law enforcement.

He said finding an affordable and efficient way to test drivers who are suspected of being impaired by marijuana use is one of his concerns. "There is a public safety element to this," Deters said. His goal is to produce a report on the impact of legalization within a few months....

Deters said he doesn't buy the argument that prisons are filled with low-level drug offenders, but he does think the time and money devoted to marijuana enforcement could be better spent elsewhere. "It's been a disastrous waste of public funds," Deters said....

Deters said he's not taking a position on ResponsibleOhio's proposed business model, but he said it makes sense for the state to regulate and tax marijuana. "You can walk outside your building and buy marijuana in 10 minutes," Deters said. "The question is, do we want schools and local governments getting the money or the bad guys?"

He said it's also wise for the state to prepare for legalization, whether or not ResponsibleOhio succeeds, because voters seem more willing to support it and other states are adopting similar measures. "The days of 'reefer madness' are gone, because that's not the reality," Deters said, referring to the 1950s-era movies that vilified marijuana and those who used it.

He said he's reaching out now to academics, elected officials and law enforcement to participate in the task force.

I have long known and respected the work of Joe Deters, even though we have sometimes disagreed on various professional matters through our work on the Ohio Death Penalty Task Force and in other settings.  I had heard from various folks involved with the ResponsibleOhio campaign that they were seeking to have a prominent, knowledgeable person running a task force to examine these important marijuana reform topics, and I am especially pleased to see that Joe Deters is now officially and publicly at the helm.

Cross-posted at Marijuana Law, Policy and Reform

May 11, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

"Brain Science and the Theory of Juvenile Mens Rea"

The title of this post is the title of this notable new paper by Jenny Carroll now available via SSRN. Here is the abstract:

The law has long recognized the distinction between adults and children.  A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders.  In the cases of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court's jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents' cognitive abilities and thought processes differ from their adult counterparts.  Children are different than adults.

In these rulings, the Court recognized that brain development affects the legal construct of culpability and so should affect punishment.  The Court reasoned that without mature thought processes and cognitive abilities, adolescents as a class fail to achieve the requisite level of culpability demonstrated in adult offenders.  As such, juveniles were categorically spared the death penalty and, in some instances, a sentence of life in prison without the possibility of parole.  To date, the Court has limited the application of this principle to punishment. The logic of the Court's decisions, however, applies just as strongly to the application of substantive criminal law.  Just as modern neuroscience counsels against the imposition of certain penalties on juvenile offenders, so it counsels toward a reconsideration of culpability as applied to juvenile offenders through the element of mens rea.  In this paper I argue that the failure to extend this jurisprudence of youth to the mental element undermines the very role of mens rea as a mechanism to determine guilt.

May 11, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack (0)

Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?

Images (4)The question in the title of this post is the interesting legal question to be resolved this week in federal court in Boston as the defense team finalizes its mitigation case on behalf of Boston Bomber Dzhokhar Tsarnaev.  This Boston Globe piece, headlined "Will judge allow nun to testify for Tsarnaev defense?," provides some context:  

While everybody in and around Boston is celebrating Mother’s Day and spring sunshine, George O’Toole has something weighing on him. O’Toole is a judge and has presided over the trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev with his typical geniality. But even genial judges have to make tough decisions.

The trial, which began with jury selection in the first week of January, and testimony in the first week of March, is winding down. If all goes to plan, and it seldom does in trials, the jury could be sent away by the end of this week, ready to contemplate sentencing Tsarnaev to death or life in prison without the possibility of parole.

But before any of that happens, George O’Toole has to decide whether a 76-year-old Roman Catholic nun can testify as part of the effort to save a 21-year-old Islamic extremist from death. The nun in question is Helen Prejean, a Sister of St. Joseph, and if you ask what that means, you never had nuns.

Sister Helen Prejean is an icon of the antideath penalty movement, something of a celebrity. “Everybody knows Sister Helen,” said David Hoose, a Northampton defense attorney who has worked on death penalty cases. And it’s true, a lot of Americans do know her, at least vicariously. They know her as Susan Sarandon, the actress who won an Oscar for her portrayal of Sister Helen in the 1995 film “Dead Man Walking.”

Twenty years after Sister Helen became the face of the antideath penalty movement in America, she is here in Boston, poised, if O’Toole allows it, to be the last witness for the defense in the trial of Dzhokhar Tsarnaev.

No one saw this coming. As prominent as the New Orleans-based Sister Helen is in the antideath penalty movement, she is not known for testifying in death penalty cases. But she wanted to get involved in this case, somehow. Inevitably, she found herself in the defense camp....

[A]s someone who has counseled death row inmates, Sister Helen can impart [the] message ... that a death sentence hardly guarantees death.

Since 1988, when the federal government got back in the business of executing people, the government has sought the death penalty in nearly 500 cases. In 232 of those cases, there was a guilty verdict where jurors had to decide between life and death, and in 79 cases they chose death. Of those 79, only three have been executed. It’s possible that Dzhokhar Tsarnaev would be No. 4 if the jury sentences him to death, but the odds are against it.

In the meantime, Judge O’Toole has to decide on the government’s motion to exclude Sister Helen’s testimony. In death penalty cases, the defense is given a wide berth in calling witnesses as they present mitigating evidence.  Even if O’Toole is on the fence about the relevance of Sister Helen’s testimony, and is inclined to tightly limit the scope of what she can speak to, he might not want to risk a reversal of the whole trial over one final witness.

The defense may only want Sister Helen to repeat one of her stock lines: “People are more than the worst thing they have ever done in their lives.” That has been the underlying message of the defense all along. That Dzhokhar Tsarnaev, as a human being, is more than the unspeakable, unforgivable things he did one week in April 2013.

In this post at Crime & Consequences, Kent Scheidegger reasonably asks "What does Helen Prejean know that is relevant to the Tsarnaev case?".  I think Kent (and others in the comments) make sound points that could provide a legal justification for the district judge here precluding Prejean from being able to testify at the sentencing hearing on behalf of the Boston bomber.  But I also think, as the article above hints, judges are generally disinclined to preclude completely any offered defense testimony at the sentencing-phase of a capital trial.  I thus predict that the district judge here will allow Prejean to testify in some limited way if the defense presses aggressively for her to be a witness.

A few prior related posts:

UPDATE: Apparently Prejean started to testify not long after I wrote this post. This new USA Today article, headlined "Sister Helen Prejean: Tsarnaev 'genuinely sorry for what he did'," starts with this account of what transpired:

Sister Helen Prejean, the Catholic nun and anti-death penalty activist whose story came to fame with the 1995 film Dead Man Walking, took the stand on Monday in the penalty phase of convicted Boston Marathon bomber Dzhokhar Tsarnaev's trial. She said he is "genuinely sorry for what he did," and told her how he felt about the suffering he caused to the bombing's victims.

"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did." She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."

Prejean said she had met with Tsarnaev five times since early March and that he "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.

Prejean said she talked with Tsarnaev about both their faiths: his Islam and her Catholicism. "I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said, quickly drawing an objection from the prosecution.

Defense attorney Miriam Conrad, questioning Prejean, interjected, "Stop you right there." Conrad asked Prejean what she heard in Tsarnaev's voice she he spoke about the victims' suffering. "It had pain in it," she said.

May 11, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

You be the judge: what federal sentence for latest CIA media leaker?

As explained via this Washington Post article, headlined "Judge faces choices in sentencing CIA leaker," a federal judge in Washington DC has a tough sentencing call to make this afternoon:

The way prosecutors see it, ex-CIA officer Jeffrey Sterling is a devious malcontent who spread classified half-truths to a New York Times reporter, seriously harming national security.  By defense attorneys’ telling, Sterling is a compassionate, hardworking man whose misdeeds have been greatly exaggerated.

Which account U.S. District Judge Leonie M. Brinkema believes will ultimately shape the sentence she imposes Monday on the 47-year-old Missouri man, who was convicted in January of giving away sensitive information about an operation to thwart Iran’s nuclear ambitions.  The range of options she has to consider is broad.

Defense attorneys are arguing for a sentence in line with other convicted leakers — including former CIA director and retired general David Petraeus, who was sentenced last month to two years of probation and a $100,000 fine for leaking classified information to his mistress and biographer.  Prosecutors are advocating a “severe” penalty, and they have noted that federal sentencing guidelines call for 19 years and seven months at the low end and 24 years and five months at the high end.

Neither side has offered a specific recommendation on prison time.  Experts say a sentence approaching two decades is unlikely: The sentencing guidelines, they say, seem to be intended for spies nefariously helping foreign governments — a characterization that does not fit Sterling’s case.

Prosecutors have argued such spies are charged under a different statute, and they have noted the U.S. Sentencing Commission “has not seen fit to carve out any exception or departure for disclosing national defense information to the media or the public.”

But experts say Brinkema is likely to impose a penalty well below what the sentencing guidelines call for. “Frankly, I can’t imagine her not departing downward here,” said Dan Schwager, a former federal prosecutor now in private practice at Martin & Gitner.

But Sterling, experts say, should probably expect a tougher sentence than Petraeus, even though his defense attorneys assert that the two men are not all that different.  “It’s hard to put something like that completely out of your mind. It’s hanging out there,” former federal prosecutor Randall Eliason, who teaches law at George Washington University Law School, said of Petraeus’s recent sentence.  “At the same time, at the risk of sounding cliche, every case is different, and there are some significant differences — at least to me — between the cases.”

Sterling was convicted of nine criminal counts for providing New York Times reporter James Risen with classified information about the CIA operation, which involved giving faulty nuclear blueprints to Iran. Prosecutors argued Sterling was a disgruntled employee with a vendetta against the CIA because of employment grievances, and he fed Risen a misleading story with some accurate, classified details to paint the agency as inept. As as result, prosecutors argued, the United States was forced to abandon one of its few mechanisms to keep Iran’s nuclear ambitions in check.

Experts say Brinkema is likely to weigh two key factors as she assesses prosecutors’ request for a harsh sentence: Sterling’s motive, and the harm his illegal disclosures caused. Eliason said those factors might separate Sterling from Petraeus, who did not seem to have any malevolence and whose leaks never wound up in any published material. “There’s kind of this spectrum of possible conduct, and I think someone like Sterling falls somewhere in the middle,” Eliason said.

Prosecutors themselves asserted in a recent filing that Sterling’s case stood apart from other recently convicted leakers, including Petraeus; former CIA officer John Kiriakou, who revealed the name of a covert officer and was sentenced to 30 months in prison; and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter and was sentenced to 13 months in prison....

Brinkema, though, might disagree with the government’s assessments, experts said. Schwager said that, not unlike other recent leak cases, “ego” seemed to play a key role in motivating Sterling. And the damage Sterling’s disclosures caused, Schwager said, was hard to point to explicitly — a fact that would not be lost on the judge. “She knows the difference between specific harm and speculative harm,” Schwager said.

Prior related posts:

May 11, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Sunday, May 10, 2015

"Too Many People in Jail? Abolish Bail"

The title of this post is the headline of this notable New York Times op-ed authored by Maya Schenwar. Here are excerpts:

How can we reduce the enormous populations of our country’s local jails?

Last month, Mayor Bill de Blasio of New York unveiled a plan to decrease the population of the Rikers Island jail complex by reducing the backlog of cases in state courts.  About 85 percent of those at Rikers haven’t been convicted of any offense; they’re just awaiting trial, sometimes for as long as hundreds of days.

Mayor de Blasio’s plan is a positive step.  Yet it ignores a deeper question: Why are so many people — particularly poor people of color — in jail awaiting trial in the first place? Usually, it is because they cannot afford bail....

This is a national problem.  Across the United States, most of the people incarcerated in local jails have not been convicted of a crime but are awaiting trial.  And most of those are waiting in jail not because of any specific risk they have been deemed to pose, but because they can’t pay their bail.

In other words, we are locking people up for being poor.  This is unjust.  We should abolish monetary bail outright.

Some will argue that bail is necessary to prevent flight before trial, but there is no good basis for that assumption.  For one thing, people considered to pose an unacceptable risk of flight (or violence) are not granted bail in the first place.  (Though the procedures for determining who poses a risk themselves ought to be viewed with skepticism, especially since conceptions of risk are often shaped, tacitly or otherwise, by racist assumptions.)

There is also evidence that bail is not necessary to ensure that people show up for trial.  In Washington, D.C., a city that makes virtually no use of monetary bail, the vast majority of arrestees who are released pretrial do return to court, and rates of additional crime before trial are low.

In addition to being unjust and unnecessary, pretrial incarceration can have harmful consequences.  Not only do those who are in jail before trial suffer the trauma of confinement, but in comparison with their bailed-­out counterparts, they are also more likely to be convicted at trial.  As documented in a 2010 Human Rights Watch report, the legal system is substantially tougher to navigate from behind bars.  People in jail face more pressure to accept plea bargains — often, ones that aren’t to their advantage — than do those confronting their charges from home.

Those who spend even a few days in jail can lose their jobs or housing during that time. Single parents can lose custody of their children.  By exacerbating the effects of poverty, and by placing people in often traumatizing circumstances, pretrial incarceration may actually lead to more crime.

Bail also raises issues of racial injustice.  A number of studies have shown that black defendants are assigned higher bail amounts than their white counterparts.  This discrepancy is compounded by the fact that black people disproportionately live in poverty and thus unduly face challenges in paying bail.

May 10, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack (0)

Florida prosecutor says he will not seek 15-year prison terms for sex-on-beach convictions

Images (2)As noted in this recent post, "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," at least one member of an indecent couple in Florida seemed to be facing an indecent prison sentence for some shoreline dirty dancing. But this local article, headlined "State attorney won't seek 15-year prison sentences for Bradenton Beach sex-on-the-beach couple," now suggests that prosecutors are going to be seeking a much less extreme sanction for these miscreants. Here are the latest details:

State Attorney Ed Brodsky said Thursday he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach.

Brodsky, elected state attorney for the 12th Judicial District, said his office never intended to seek the maximum 15-year sentence against Jose Caballero, 40, or Elissa Alvarez, 20, for having sex on Cortez Beach in July.

The couple was found guilty Monday on charges of lewd and lascivious exhibition after a video played in court showed Alvarez moving on Caballero in a sexual manner. Witnesses testified a 3-year-old girl had seen the couple.

The charge carries a maximum sentence of 15 years in prison, and requires both to register as sex offenders. "It was never our intention to seek 15 years for either of them," Brodsky said. "That's not a reasonable sentence."

Defense attorney Ronald Kurpiers said because Caballero served a previous prison sentence for cocaine trafficking within the past three years and the prosecution had filed prison release reoffender paperwork, Caballero would be sentenced to the maximum sentence of 15 years under Florida's prisoner release reoffender law.

Kurpiers said if Brodsky was saying they weren't seeking 15 years, it meant they had withdrawn the PRR. "I've never experienced that before in all my years in law," Kurpiers said. "I'm honestly emotional about it. That was a huge hurdle."

Brodsky said he wasn't willing to discuss what kind of sentences they will seek and a sentencing hearing hasn't been scheduled. Kurpiers said the judge would now have some discretion instead of an automatic sentence for Caballero. Kurpiers said he would try to have the sentence lowered. "I need to get out my knee pads so I can get down and beg," Kurpiers said.

Brodsky refuted the claim he would be seeking the maximum punishment after Families Against Mandatory Minimums, a Washington, D.C.-based interest group that fights mandatory minimum prison sentences, said they called his office Thursday to urge prosecutors not seek 15 years in prison for Caballero.

"As outrageous as Mr. Caballero's behavior was, it would be even more outrageous for the state to make him spend 15 years in prison," said Julie Stewart, president and founder of the organization, in a release. "As a parent, I would not want my children to see people having sex on a public beach in the middle of the day. But as a taxpayer, I would be even more offended to waste hundreds of thousands of dollars to punish Mr. Caballero's irresponsible behavior."...

A campaign was also launched Thursday on Causes.com titled: "Free couple facing 15 years in prison for sex on the beach." Led by Vitor Ribeiro, whose Facebook account lists Portugal as home, the campaign received more than 500 signatures by early Thursday evening. "Having sex on the beach is not a crime worthy of such a barbaric sentence," reads the campaign's subtitle.

Stewart said the state plea offer to Caballero for two and a half years in prison prior to the trial was evidence it didn't believe he deserved 15 years for the crime. Brodsky confirmed they had made the plea offer, and Caballero chose to reject it to go to trial. Kurpiers said he "strongly recommended" his clients take the plea deal, but ultimately it was their choice to refuse....

Alvarez and Caballero are in the Manatee County jail awaiting sentencing.

Beyond its prurient elements, this case provides a notable case-study in the import and impact of mandatory minimum sentencing schemes and the sentencing power mandatory minimums necessarily place in the hands of prosecutors.

For starters, I doubt the defense attorney would have "strongly recommended" that one defendant accept a 2.5-year prison sentence for merely having sex on the beach absent the threat of a 15-year mandatory prison term if the defendant exercised his right to go to trial.  How could and would a defense attorney reasonably tell a client that a long prison term is a reasonable offer for this behavior and giving up all rights to challenge the state's case absent the threat of a much more extreme mandatory prison term if convicted after a trial?

Next, as I understand Florida law in this setting, the only reason now that defendant Caballero will not get 15 years in state prison is because the prosecutor now has decided to, in essence, nullify the Florida "prison release reoffender" (PRR) law by taking back the paperwork needed to invoke its mandatory sentencing consequences.  Absent the media scrutiny that this case has come to generate, would the prosecutor likely have been so quick to say he never sought an extreme 15-year PRR sentence for Caballero?.

Critically, if the prosecutor never thought this was a proper PRR case, why did the prosecutor initially file the PRR paperwork in the first instance against Caballero?   Is there likely any reason other than to to try to force a plea deal through the threat of an extreme mandatory prison sentence — a threat which would essentially require the defense attorney to "strongly recommended" that defendant Caballero accept the 2.5-year prison sentence offered by the prosecutor?

Finally, only when the defendants exercised their right to trial — and thereafter likely only because this case started to garner attention — do we now here the prosecutor say on the record that a 15-year term was never sought and would not be reasonable.  In other words,  only once the media saw the prosecutor with his hand in the extreme mandatory-sentencing cookie jar did he pull his hand out and say he never really wanted that 15-year prison term for Caballero.

It is reassuring to see that media attention can and will sometimes prompt a prosecutor in an individual case to exercise his power and discretion to take an extreme mandatory sentence of the table after a trial conviction.  But these problems only arise because of the existence of extreme and broad mandatory minimums, and that is why I generally believe such laws make for bad public policy because I think our sentencing system should incorporate true checks-and-balances rather than be functionally controlled  by executive branch fiat.

Prior related post:

May 10, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack (0)

Saturday, May 9, 2015

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

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

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

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

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

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

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

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

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

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

Some recent related posts:

May 9, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Friday, May 8, 2015

"We clearly need criminal-justice reform" says GOP Prez candidate Carly Fiorina

This Des Moines Register article (and video) details some notable new comments on criminal justice reform and drug policy from a notable new GOP Prez candidate.  Here are excerpts: 

The nation should stop overreacting to illegal drug use and stop doling out jail sentences that are way too long, Republican presidential candidate Carly Fiorina said in Iowa on Thursday.

"We know that we don't spend enough money on the treatment of drug use," said Fiorina, former chief executive of Hewlett-Packard. "When you criminalize drug abuse, you're actually not treating it. We had a daughter who died of addictions, so this lands very close to home for me." Fiorina's daughter Lori, a drug and alcohol addict, died in 2009.

The "three strikes and you're out" law doesn't work well, and all the drug laws affect African-Americans more than others, Fiorina told The Des Moines Register's editorial board during an hourlong meeting.

"I don't think that overreacting to illegal drug use is the answer," said Fiorina, who officially entered the 2016 race on Monday and is the only woman in the GOP field. She has never held elected office, but ran unsuccessfully for U.S. senator in California.

Asked whether she favors decriminalizing marijuana, Fiorina answered: "No, I do not think we should legalize marijuana."...

Asked whether, as president, she'd direct the U.S. attorney general to enforce federal drug laws in states such as Colorado, Alaska, Washington and Oregon, Fiorina said she wouldn't. "I believe in states' rights," she said. "They're within their rights to legalize marijuana, and they're conducting an experiment I hope the rest of the nation is looking closely at."

May 8, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

"Have Texans lost their taste for capital punishment?"

The question in the title of this post is the first line in this Dallas Morning News commentary by Steve Blow headlined "Even in tough-on-crime Texas, death penalty convictions decline." Here are excerpts from the start of the piece:

I was struck by recent news accounts of a local murder trial. I remembered the crime well. Jacob Galen Everett, 22, was convicted of entering a Red Wing shoe store in Arlington, directing clerk Randy Pacheco to the back room and shooting him once between the eyes. Robbery was the motive, and the evidence showed that Everett got away with $200.

A few years ago, that would have been a certain death penalty case -- a cold-blooded murder committed in the course of a robbery. Instead, prosecutors sought life without parole and jurors went along.

I’m sure Texas still prides itself as a law-and-order state, but our hang-’em-high reputation may be in jeopardy. “There is no doubt about it. We’re seeing a reduction in the use of the death penalty in Texas,” said Kathryn Kase, executive director of Texas Defender Service. That’s a nonprofit that assists in death penalty defenses and advocates for fair trial policies. “We have a reduction in death penalty cases going to trial, and we have a reduction in death verdicts,” she said.

In 1999, Texas courts sent 39 people to death row. Last year, it was 11. And so far this year, none. “Here it is May, and we have had only two death penalty cases in Texas,” Kase said. “And in both, the jury chose life without parole instead. That strikes me as really significant.”

A decline is also evident in the number of executions being carried out. Yes, Texas still led the nation in executions last year, but it was with an asterisk. For the first time in decades, Texas shared that distinction. We tied with Missouri. Both states executed 10 people. Florida was close behind with eight.

And those numbers reflected a downward trend in executions -- both in Texas and the other 31 states with the death penalty. Executions in Texas peaked at 40 in the year 2000.

May 8, 2015 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Alabama rolls to join tide of red states enacting significant prison and sentencing reform

Images (1)As reported in this local article, the "Alabama Legislature Thursday gave final approval to a sweeping prison reform bill aimed at addressing the state's prison overcrowding crisis." Here are the basic details and the back-story:

The bill passed the House on a 100 to 5 vote Thursday evening.  The Senate, which approved the bill in March, concurred in the changes just a few minutes later on a 27 to 0 vote.  The legislation now goes to Gov. Robert Bentley, who said in a statement Thursday evening he planned to sign the bill, pending a legal review.

Bentley said in a statement the passage of the bill signaled "a historic day for Alabama as we take a significant step forward to address reform of Alabama's criminal justice system."...

Sen. Cam Ward, R-Alabaster, said Thursday evening the passage of the bill was a first step, not a final solution to the crisis. "No one should think we pass this bill tonight and prisons are solved, because they're not," Ward said.

Prison overcrowding, an issue in Alabama for decades, stood at 186 percent in January, and the crisis has contributed to mounting violence in the state's correctional facilities. The U.S. Department of Justice is investigating the Julia Tutwiler Prison for Women over accounts of sexual violence and harassment.  Six inmates have been killed at the St. Clair Correctional Facility since 2011, and allegations of physical or sexual violence have been leveled at three other prisons, including Elmore County Correctional Facility.

The reform bill aims to address the prison overcrowding crisis with new investments in parole, probation and supervision; the creation of a Class D felony for relatively minor crimes; limits on prison time and mandatory supervision for those convicted of Class C felonies, and changes to punishments for technical violations of parole.  The changes are expected to cost between $23 and $26 million a year, roughly 6.5 percent of the Department of Corrections' current $394.1 million allocation from the General Fund.

On its own, the bill will not resolve the crisis.  However, with additional building funded under a separate piece of legislation, capacity could fall to 138 percent over the next five years, with the overall population falling by about 4,500 inmates.  "That would be the largest reduction of any state in the country to this date," Ward said.

Ward said that may prevent the system from falling into federal receivership, which could lead to significant increases in prison spending; mass release of prisoners, or both. The bill before the House, Ward said, was a targeted way to address the population.  "No one's being released early," he said. "That's what we're trying to avoid, a bunch of violent offenders being released early."

The bill reflects recommendations made by the Council of State Governments and approved by the Alabama Prison Reform Task Force, which Ward chairs.  House Judiciary Committee chairman Mike Jones, R-Andalusia, said at the start of the House debate that the bill was not a matter of ideology.  "This is not about being Democrats, this is not about being Republicans, this is about being responsible for a problem our state faces," he said....

Some members of the Alabama Prison Reform Task Force had pushed for a more sweeping bill that would have made many of the provisions retroactive.  However, Ward and other sponsors of the legislation said the coalition behind the reforms was not likely to have gone that far.

The passage of the legislation received praise from both sides of the ideological divide. Susan Watson, the executive director of ACLU Alabama, applauded the passage of the bill in a statement Thursday evening.  "The passage of this legislation shows that Alabama acknowledges there is a serious over-incarceration problem in our prisons and that it is dedicated to fixing it," the statement said.

Katherine Robinson, vice president of the Alabama Policy Institute, called the move a "significant step" toward addressing the problem.  "This collaborative effort has provided the necessary catalyst of meaningful reform to Alabama's prison system," Robinson said in a statement.

House Speaker Mike Hubbard, R-Auburn, said the accusations at Tutwiler, St. Clair and other facilities served as a "wake-up call" to legislators who may have otherwise been reluctant to address a politically difficult issue.  "Clearly the best course of action for us as a state was to take control of this and fix it ourselves," he said.  "I'm proud of the fact we have taken a leadership role.  It was clear we were running out of time."

May 8, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Senator Grassley's home-state paper tells him to stop blocking federal sentencing reforms

This new editorial from the Des Moines Register, headlined "Grassley should not block sentencing reforms," highlights that some notable folks are frustrated by Senator Charles Grassley's apparent unwillingness to move forward significantly with federal sentencing reforms proposed by his colleagues. Here are excerpts:

Amid hysteria over growing use of illegal drugs 30 years ago, Congress passed tough new criminal laws carrying long mandatory prison sentences. Regardless of whether mandatory sentences had any effect on drug abuse, they have contributed to a 500 percent increase in the federal prison population and a 600 percent increase in federal prison spending.

Besides filling prisons and imprisoning a generation of largely minority males from inner cities, these one-size-fits-all sentences tie the hands of judges who should tailor penalties to the unique circumstances of individual defendants.  And this obsession with criminalizing drug use has diverted resources that instead should be used to help people overcome their addictions.

Something extraordinary has happened recently, however: A consensus has emerged that this nation has put far too many people behind bars, and in the process it has created an unemployable underclass with criminal records.  That consensus includes a remarkable cross-section of politicians from both ends of the political spectrum, along with religious leaders, corporate executives and opinion leaders.

While there is growing bipartisan support in Congress for changing the mandatory-minimum sentencing law, one potential stumbling block remains stubbornly in place: U.S. Sen. Charles Grassley, who as chairman of the Senate Judiciary Committee is in a position to allow federal sentencing reforms to move forward.

Grassley’s rhetoric has not encouraged optimism.  He was dismissive and defensive when a “Smarter Sentencing Act” was introduced in March with the support of senators ranging from Republicans Ted Cruz of Texas and Rand Paul of Kentucky to Democrats Dick Durban of Illinois and Patrick Leahy of Vermont.  He referred to supporters of the sentencing reform bill in a floor speech as the “leniency industrial complex.”

Although he recently seemed to soften his tone, saying he is “ready to address some of these issues,” Grassley has ruled out any across-the-board cut in mandatory minimum sentences.  Three Iowa bishops in a guest opinion published by the Register May 1 called on him to support sentencing reform, but he promptly responded with an opinion piece that amounted to a full-throated defense of mandatory minimum sentences.

The argument in favor of mandatory sentences is that the prospect of spending decades in prison gives prosecutors leverage to get lower-tiered dealers to produce evidence against “drug kingpins.”  But this gives prosecutors enormous power to force defendants to plead guilty, and with no prior involvement of a judge in open court.

Despite the assertion that mandatory sentences are aimed at putting away drug lords, “offenders most often subject to mandatory minimum penalties at the time of sentencing were street-level dealers — many levels down from kingpins and organizers,” according to research by the U.S. Sentencing Commission....

This nation’s war on drugs focused on criminal punishment instead of treatment has been a complete failure.  At long last there is growing support for changing that.  Iowa’s senior senator should not stand in the way.

Some recent related posts:

May 8, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Thursday, May 7, 2015

"Mass Incarceration: The Silence of the Judges"

The title of this post is the headline of this lengthy piece authored by Judge Jed Rakoff appearing in The New York Review of Books.  Here is how it starts and ends:

For too long, too many judges have been too quiet about an evil of which we are a part: the mass incarceration of people in the United States today.  It is time that more of us spoke out. 

The basic facts are not in dispute.  More than 2.2 million people are currently incarcerated in US jails and prisons, a 500 percent increase over the past forty years.  Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population.  The per capita incarceration rate in the US is about one and a half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada.  Another 4.75 million Americans are subject to the state supervision imposed by probation or parole.

Most of the increase in imprisonment has been for nonviolent offenses, such as drug possession.  And even though crime rates in the United States have declined consistently for twenty-four years, the number of incarcerated persons has continued to rise over most of that period, both because more people are being sent to prison for offenses that once were punished with other measures and because the sentences are longer.  For example, even though the number of violent crimes has steadily decreased over the past two decades, the number of prisoners serving life sentences has steadily increased, so that one in nine persons in prison is now serving a life sentence.

And whom are we locking up? Mostly young men of color.  Over 840,000, or nearly 40 percent, of the 2.2 million US prisoners are African-American males.  Put another way, about one in nine African-American males between the ages of twenty and thirty-four is now in prison, and if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes.  Approximately 440,000, or 20 percent, of the 2.2 million US prisoners are Hispanic males....

In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality.  More haltingly, we have also made some progress in our treatment of the poor and disadvantaged.  But the big, glaring exception to both these improvements is how we treat those guilty of crimes.  Basically, we treat them like dirt.  And while this treatment is mandated by the legislature, it is we judges who mete it out.  Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?

May 7, 2015 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack (0)

Delaware Gov pledges to sign death penalty repeal legislation

As reported via this local article, Delaware "Gov. Jack Markell broke his silence on the effort to repeal Delaware's death penalty, telling the News Journal that he believes capital punishment is an 'instrument of imperfect justice'." Here is more:

"It doesn't make us safer," Markell said. "Should the repeal bill come to my desk, I would sign it." Markell's comments come just days before a House committee takes up the legislation which repeals the state's death penalty, except for those 15 inmates already on death row.

This is the first time Markell has publicly spoken on the matter. Markell said he's taken his time to formulate his position on the matter, saying that recent exonerations nationally and revelations of flawed testimony in certain cases have helped shape his view. "This is not an easy issue. My thinking has changed and I just wanted to give it very careful consideration," he said.

In April, the legislation passed the Senate in April 11-9 and now heads to the House Judiciary Committee. The legislation was not passed out of the same House committee last General Assembly. Police groups strongly oppose repeal and are expected to step up opposition in the House.

Markell said he respects all viewpoints on the matter, saying that at one point while serving on the state's Board of Pardons, he supported four of the five death penalty cases that came before him. "I know this is a really difficult issue for members of the General Assembly," he said. "I hope that after considering the arguments as I have, they will reach the same conclusion that I have."

May 7, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

"Unequal Justice: Mobilizing the Private Bar to Fight Mass Incarceration"

The title of this post is the title of this intriguing new report recently published by the Lawyers’ Committee for Civil Rights Under Law.  This new Crime Report piece, headlined "Acknowledging Bias in the Criminal Justice System," provides a helpful summary of the report's key themes:

Mass incarceration reform efforts rarely formally address racial disparities within the criminal justice system, according to a new report from the Lawyers’ Committee for Civil Rights Under Law, an advocacy group.  The report outlines systematic racial disparities in the criminal justice system and proposes strategies to address them.  It was created as a result of a series of “listening sessions” on race and imprisonment.

The sessions included dozens of practitioners, experts, academics, national law firm representatives, and formerly incarcerated individuals, who gathered “to discuss the state of mass incarceration, reform efforts, and the role of national law firms in this movement.”  The discussions near unanimous agreement that there is bias against black and Hispanic defendants in the criminal justice system.

“However, this fact is often absent in public discourse and almost never formally addressed in reform efforts.  This is particularly troubling since racial disparities in incarceration are often the result of implicit racial bias and structural or institutionalized racial discrimination, deep-rooted species of dysfunction which can only begin to be addressed by the acknowledgement and recognition that it exists,” the report’s authors wrote.

The report also noted that there is a “huge gap” in the legal effort to change mass incarceration. “Simply put, very few organizations in the nation have the resources, expertise, and will to fight mass incarceration in the courts,” the authors wrote.

May 7, 2015 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Electrifying Tennessee fight over electric chair as back up execution method

BuzzFeed has this interesting new article about an interesting legal fight unfolding in Tennessee.  This extensive headline provides the basics: "Tennessee Officials Fight Inmates’ Attempt To Challenge Electric Chair Plans: The electric chair is Tennessee’s plan B if the state can’t get ahold of lethal drugs. The inmates argue it’s unconstitutional, but the state argues that they can’t challenge it yet."  Here are some details from the start of the article:

Can death-row inmates challenge the constitutionality of electrocution?  The Tennessee Supreme Court will soon decide.  

Death penalty states once phased out the electric chair in favor of drugs — for humane reasons.  Now that drugs have become hard to obtain, states like Tennessee have turned to older execution methods like the chair as a backup.

On Wednesday, the state court will weigh whether death-row inmates can challenge the method’s constitutionality.  Thirty-four inmates allege electrocution is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — that the electric chair disfigures the body and is an affront to evolving standards of decency.

But Tennessee has pushed to have the lawsuit dismissed, arguing that the inmates can’t challenge the method because none of them are actually scheduled to face electrocution.

Tennessee’s preferred method is lethal injection, using pentobarbital made from a secret compounding pharmacy.  Lawmakers passed a law last year that makes electrocution the contingency plan if either drug makers or the courts make lethal injection impossible.

“The[y] are asking the court in this case to… consider hypothetical situations involving uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all,” Attorney General Herbert Slatery’s office wrote.

May 7, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

Inspector General report highlights problems posed by aging federal prison population

As reported in this USA Today piece, headlined "Feds struggle to manage growing number of elderly inmates," a new report highlights an "old problem" in federal prisons.  Here are the basics:

Aging inmates remain the fastest-growing segment of the federal prison population and authorities are struggling to manage their increasing medical care and assistance with daily living, an internal Justice Department's review found. Between 2009 and 2013, the number of inmates 50 and older grew by 25% to 30,962, while the portion of younger prisoners declined by 1%, the Justice Department's inspector general reported.

The review is part of a continuing series of examinations of the federal government's costly prison system. And while the federal Bureau of Prisons last year relaxed its policy on the release of elderly or medically compromised inmates who are 65 and older, the review found that only two inmates without medical conditions had been freed during the first year of the revised policy (August 2013 to September 2014) aimed at trimming an overall prison population of more than 200,000.

In a written response, the Justice Department said that 18 prisoners had been freed under the new compassionate release policy from August 2013 to the present. "The department is committed to continued implementation of its compassionate release program ... and it will carefully consider the inspector general's recommendation to further expand the program,'' the Justice statement read.

Largely due to increasing health care needs, the average annual cost to house older inmates (defined as 50 and over) is $24,538 or 8% more than younger prisoners. "BOP institutions do not have appropriate staffing levels to address the needs of aging inmates, and they provide limited training for this purpose,'' the inspector general's report concluded, adding that the prison facilities are "inadequate'' for those inmates with compromised mobility or other physical limitations.

The full 70+ page report, titled "The Impact of an Aging Inmate Population on the Federal Bureau of Prisons," is available at this link.

May 7, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 6, 2015

Boston bombing defense team turns to brain science in making mitigation case

As reported in this new Boston Globe piece, headlined "Brain expert testifies for Tsarnaev defense in penalty phase," jurors tasked with deciding what punishment to impose on the Boston Marathon bomber got a lesson in brain science during today's trial activities. Here are the details:

The part of the brain that matures the latest is the part that controls impulses and imagines consequences of actions in the future, a brain development expert testified Wednesday at the death penalty trial of Boston Marathon bomber Dzhokhar Tsarnaev.

Dr. Jay Giedd, a professor at the University of California San Diego and a child psychiatrist, was called as a witness by the defense, which is seeking to stave off a death sentence for Tsarnaev, who was 19 at the time of the bombing. Giedd’s testimony came on the sixth day of the defense case in the penalty phase of Tsarnaev’s trial in US District Court in Boston. The defense is seeking a sentence of life without parole....

Giedd’s testimony appeared to be intended to suggest that Tsarnaev was not fully responsible for what he did because of his youth. In teenagers, Giedd said, impulse control is “still under construction.”

“Teens are more likely to choose smaller, sooner rewards” and are “less worried for long-term consequences,” he said. He said people’s brains tend to become adults in the second decade of their lives. But he said, “There are so many exceptions to the rule.”

He also emphasized the role of environment in a child’s brain development. Parents, he said, are “always on, teaching our children about dealing with emotion. ... Our brains learn by example.”

Under cross-examination by Assistant US Attorney Nadine Pellegrini, Giedd also testified that it was crucial to look at a person’s behavior to determine how mature they are. “The behavior itself is ... key,” he said.

He acknowledged that people even younger than Tsarnaev was could have the brain maturity to recognize the consequences of their actions. “Age might just be a number when we’re talking about the level of maturity of an individual?” Pellegrini said. Giedd agreed.

May 6, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Now what for Frank Freshwaters, captured 56 years after walking away from Ohio honor camp in 1959?

This lengthy Washington Post article provide these amazing details of the real-life (and ready-for-TV) tale of a recently-captured fugitive who was been on the lam since the Eisenhower administration:

For a week, U.S. marshals staked out the trailer park at the swampy edge of the world. They watched as an old man with a white ponytail, glasses and beard slowly shuffled around his Melbourne, Fla., mobile home. The name on the mailbox said William Harold Cox, but the marshals knew better. After seven days of surveillance, they confronted Cox with a mug shot of a much younger man, dated Feb. 26, 1959.

“He said he hadn’t seen that guy in a long time,” said Maj. Tod Goodyear of the Brevard County Sheriff’s Office, which assisted in the stakeout. “Then he admitted it and basically said, ‘You got me.'”

As the marshals suspected, the old man was actually Frank Freshwaters, a felon on the lam for 56 years. His arrest on Monday brings to an end a half-century saga that reads like a Hollywood script, complete with a deadly crime, dramatic prison escape and a cunning trap to catch a wanted fugitive. The tale even includes a tie-in to the movie it already resembles: “The Shawshank Redemption.”

Freshwaters’s story is one of spurned second chances. Back in the summer of 1957, he was a 20-year-old kid with a full head of dark hair and a lead foot. One night in July, he was speeding through Ohio when he hit and killed a pedestrian. Freshwaters was sentenced to up to 20 years in prison only to have the sentence suspended, according to the Associated Press.

But Freshwaters squandered his good fortune. He violated probation by climbing back into the driver’s seat and was locked up in February 1959 in the Ohio State Reformatory. It would prove to be a fitting setting for Freshwaters. After its closing in 1990, the reformatory would be used as a set for “The Shawshank Redemption,” a 1994 movie about a wrongfully convicted man who escapes from prison.

Freshwaters never escaped from the reformatory, however. Instead, he secured a transfer to a nearby “honor camp,” according to the AP. It was from there that Freshwaters disappeared on Sept. 30, 1959.

The 22-year-old didn’t disappear without a trace, however. In 1975, he was arrested in Charleston, W.Va., after allegedly threatening his ex-wife. He was found hiding under a sink in his house, the AP reported. At the time, investigators said Freshwaters had fled to Florida and obtained identification and a Social Security number under the alias William Harold Cox. Then he moved to West Virginia, where he drove a mobile library for the state government and worked as a trucker.

But Freshwaters caught a second break. The governor of West Virginia refused to extradite him to Ohio. Freshwaters was freed from jail and disappeared once again.

It now appears as if he made his way down to Florida, where he continued to live under his alias, even receiving Social Security checks. Back in Ohio, meanwhile, his file gathered dust until earlier this year, when a deputy marshal reopened the 56-year-old case....

Authorities took the senior citizen into custody. During a court appearance on Tuesday, a wheelchair-bound Freshwaters waived extradition, freeing the way for him to return to Ohio and finish the up-to-18 years remaining on his manslaughter sentence. Barring another escape, he could be as old as 97 upon his release.

As far as second lives go, Freshwaters’s Florida hideout was no beachfront home in Zihuatanejo, Mexico, the location where the wrongfully convicted character Andy Dufresne settles down after escaping from Shawshank. But it was far better than an Ohio prison.

The kind reader who sent me the link to this account of the Freshwaters' story added this query: "So is it really worth it for the the state of Ohio to incarcerate an ill 79 year old rehabilitated felon for the rest of his life?"  

May 6, 2015 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (7) | TrackBack (0)

How many federal prison years are being served by defendants who (plausibly?) claimed compliance with state medical marijuana regimes?

The question in the title of this post is prompted by this new article from Michigan headlined "West Michigan man sent to prison for purported medical marijuana grow operation."  Here are the basics of this story with some follow-up data/questions:

One of the two leaders of a medical marijuana grow operation has been sentenced to 14 years in federal prison.  Phillip Joseph Walsh, 54, was sentenced Monday by U.S. District Judge Paul Maloney in Kalamazoo.  Betty Jenkins, described as his "life partner" in court records, will be sentenced June 29.

The Kent County residents were convicted at trial of running a marijuana grow operation that prosecutors say brought in $1.3 million.  The two, along with eight others, including a doctor who authorized patients for use of medical marijuana, were arrested last year for growing marijuana in multiple places in West Michigan.

The government contended that much of the marijuana grown was sold outside of Michigan. Jenkins was considered the leader of the organization.  The defendants argued they acted within the guidelines of Michigan's medical marijuana law but were not allowed to use the law as a defense to the federal charges.

Kent County Area Narcotics Team and U.S. Drug Enforcement Administration used multiple search warrants to raid numerous properties, including apartment buildings in Gaines Township. Police seized 467 marijuana plants and 18 pounds of processed marijuana.

Defense attorney Joshua Covert said his client, a father of four daughters, was "very nervous" after reviewing advisory sentencing guidelines that called for 151 to 188 months in prison.  He said that Walsh has been a good, caring father and a hard worker and has led a productive life.  "Mr. Walsh and his life partner, Ms. Jenkins, lived a comfortable but certainly not lavish or extravagant life that was financed by rental income from property Ms. Jenkins obtained through her divorce," the attorney wrote in a sentencing memorandum.

"The endeavor of manufacturing marijuana was not particularly successful for Mr. Walsh from a financial standpoint because it proved to be difficult and expensive to manufacture marijuana," he wrote....  He said his client "is not seeking sympathy or pity" but asked for leniency "given the relaxed attitude toward marijuana nationwide and specifically Michigan in regards to marijuana."

Assistant U.S. Attorney Mark Courtade said Walsh and Jenkins began manufacturing marijuana on Forest Hill Avenue SE in 2010.  Walsh hired a man to help with the grow operation before both were convicted for their roles.  The other man quit, "but Walsh and Jenkins carried on, unfazed," Courtade said.

"Defendant Walsh developed the 'marketing scheme' that ensnared many of the codefendants in this case," the prosecutor wrote....  He said that Walsh tried to insulate himself by staying he was only "'building grow rooms' ... his real motivation was far more nefarious."

He said Walsh grew marijuana for profit, with some sold in Ohio, some in Rhode Island. Courtade also said that Walsh could not document wages he earned — he reported remodeling and roofing homes — but he managed to hired his own attorneys, pay for a co-defendant's expert witnesses and build numerous manufacturing operations. He recommended a sentence within guidelines.

This story of a lengthy federal prison sentence for major marijuana dealing in a medical marijuana state itself highlights the challenges of coming up with a satisfactory answer to the question in the title of this post.  The defendants here were apparently quick to claim that they were acting in accord with Michigan state medical marijuana laws, but the facts reported suggest little basis for this defense claim of state-law compliance.

That said, I know there are at least a handful (and perhaps more than a handful) of the roughly 5000 federal prosecutions for marijuana trafficking sentenced in federal courts each year involving defendants who truly have a plausible claim to being in compliance with state medical marijuana laws.  A low "guestimate" that an average of 10 federal marijuana defendants in each of the last 10 years have been been sentenced to an average of 10 years in federal prison for medical marijuana activities would, in turn, suggest that 1000 years in federal prison are being served by defendants who plausibly claimed compliance with state medical marijuana regimes.  

That is a lot of federal prison time (which would be costing federal taxpayers roughly $30 million because each prison year costs roughly $30,000).  And I have an inkling the number could be higher.

May 6, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack (0)