Monday, August 5, 2013

Two sharp crime and punishment commentaries from Andrew Cohen

Andrew Cohen always has sharp and important things to say on a variety of legal and criminal justice issues. But today he is in especially strong form in these two potent commentaries appearing today via The Atlantic:

Though I am not sure I agree with everything that appears in both of these columns, I am sure that I appreciate the passion and forcefulness with which Andrew Cohen is writing on topics that call for considerably more attention than they are given by most of the media punditry.

August 5, 2013 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack (0)

"Va. gun crime drops again as firearm sales soar"

The title of this post is the headline of this notable big article recently appearing in the Richmond Times-Dispatch.  Here are excerpts:

Gun-related violent crime continues to drop in Virginia as the sales of firearms continue to soar, a pattern that one local criminologist finds interesting “given the current rhetoric about strengthening gun laws.”

Major gun crime collectively dropped for a fourth consecutive year statewide, while firearms sales climbed to a new record in 2012 with 490,119 guns purchased in 444,844 transactions — a 16 percent rise over 2011, according to federally licensed gun dealer sales estimates obtained by the Richmond Times-Dispatch.

The proliferation of guns occurred as the total number of major reported crimes committed with all types of firearms in Virginia dropped 5 percent, from 4,618 offenses in 2011 to 4,378 last year, according to Virginia State Police data.  Looking back over seven years, total firearm sales in Virginia have risen a staggering 101 percent from 2006 to 2012, while gun-related crime has dropped 28 percent during that period.

“This appears to be additional evidence that more guns don’t necessarily lead to more crime,” said Thomas R. Baker, an assistant professor at Virginia Commonwealth University’s L. Douglas Wilder School of Government and Public Affairs who specializes in research methods and criminology theory.

“It’s a quite interesting trend given the current rhetoric about strengthening gun laws and the presumed effect it would have on violent crimes,” Baker added.  “While you can’t conclude from this that tougher laws wouldn’t reduce crime even more, it really makes you question if making it harder for law-abiding people to buy a gun would have any effect on crime.”

But Josh Horwitz, the leader of a national gun-control group, does not find the comparison of gun crime to legal gun sales particularly significant, and views any perceived correlation between the two sets of data as essentially meaningless.  “Guns sold incident to a background check are less likely to be involved in crimes than guns sold without a background check,” said Horwitz, executive director of the Coalition to Stop Gun Violence. “So the real question — which I don’t think we really know — is what’s the level of gun sales without a background check?

“In other words, if people who buy those guns and have a background check, and keep those guns and don’t sell them, then you would not expect that those guns would affect the crime rate,” Horwitz said. “The important analysis is not the total number of guns sold with a background check, but rather the number of guns sold without a background check.”...

Baker cautioned against drawing any conclusions that more guns in the hands of Virginians are causing a corresponding drop in gun crime, as some academics and gun-rights supporters have argued.  “To substantiate (that) argument, you would need to eliminate a number of other factors that could potentially explain away the relationship of more guns, less crime in Virginia,” Baker said. “Only if the relationship remained after controlling for additional factors could a researcher be more comfortable making the claim that more guns lead to less crime.  But what the data does show is that the ‘more guns, less crime argument’ is certainly possible.”...

Although overall gun-related crime dropped 5 percent last year, murders and non-negligent manslaughter deaths committed with firearms rose 6 percent from 190 in 2011 to 201 last year. But killings with handguns dropped 3 percent.  Killings involving firearms of unknown type increased 42 percent, from 62 in 2011 to 88 in 2012.

Robberies accounted for the largest drop in gun-related crime, falling 11 percent from 2,935 offenses in 2011 to 2,508 last year. Robberies involving handguns dropped 7 percent from year to year....

Although expansion of background checks is the main goal of the Coalition to Stop Gun Violence, Horwitz said his group supports the tighter controls on firearms that were enacted into law in Colorado and New York after the Sandy Hook Elementary School massacre in Connecticut that killed 26.

He acknowledged that those measures — aside from the background checks — will not affect the gun-related crime rate. “It won’t reduce crime,” Horwitz said. “The point is that it decreases the lethality of crime.” He was referring to so-called assault weapons and high-capacity magazines.

August 5, 2013 in Gun policy and sentencing, National and State Crime Data | Permalink | Comments (6) | TrackBack (0)

After Reuters report about secret DEA group, should every federal drug prisoner now file new Brady claims?

DEA slideThe question in the title of my post is my first reaction to this exclusive new Reuters report, which is headlined "Exclusive: U.S. directs agents to cover up program used to investigate Americans." Here are excerpts:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses.

"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers. "It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."

The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.

Today, much of the SOD's work is classified, and officials asked that its precise location in Virginia not be revealed. The documents reviewed by Reuters are marked "Law Enforcement Sensitive," a government categorization that is meant to keep them confidential.

"Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," a document presented to agents reads. The document specifically directs agents to omit the SOD's involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use "normal investigative techniques to recreate the information provided by SOD."

A spokesman with the Department of Justice, which oversees the DEA, declined to comment. But two senior DEA officials defended the program, and said trying to "recreate" an investigative trail is not only legal but a technique that is used almost daily.

A former federal agent in the northeastern United States who received such tips from SOD described the process. "You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said. After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction."

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. "Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept."

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned. "It's just like laundering money - you work it backwards to make it clean," said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.

Some defense lawyers and former prosecutors said that using "parallel construction" may be legal to establish probable cause for an arrest. But they said employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants. "That's outrageous," said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. "It strikes me as indefensible."

Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin "would not only be alarming but pretty blatantly unconstitutional." Lustberg and others said the government's use of the SOD program skirts established court procedures by which judges privately examine sensitive information, such as an informant's identity or classified evidence, to determine whether the information is relevant to the defense.

"You can't game the system," said former federal prosecutor Henry E. Hockeimer Jr. "You can't create this subterfuge. These are drug crimes, not national security cases. If you don't draw the line here, where do you draw it?"...

The SOD's role providing information to agents isn't itself a secret. It is briefly mentioned by the DEA in budget documents, albeit without any reference to how that information is used or represented when cases go to court. The DEA has long publicly touted the SOD's role in multi-jurisdictional and international investigations, connecting agents in separate cities who may be unwittingly investigating the same target and making sure undercover agents don't accidentally try to arrest each other....

Since its inception, the SOD's mandate has expanded to include narco-terrorism, organized crime and gangs. A DEA spokesman declined to comment on the unit's annual budget. A recent LinkedIn posting on the personal page of a senior SOD official estimated it to be $125 million.

Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE. The DICE database contains about 1 billion records, the senior DEA officials said. The majority of the records consist of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. Records are kept for about a year and then purged, the DEA officials said....

As a practical matter, law enforcement agents said they usually don't worry that SOD's involvement will be exposed in court. That's because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.

Current and former federal agents said SOD tips aren't always helpful - one estimated their accuracy at 60 percent. But current and former agents said tips have enabled them to catch drug smugglers who might have gotten away. "It was an amazing tool," said one recently retired federal agent. "Our big fear was that it wouldn't stay secret." DEA officials said that the SOD process has been reviewed internally. They declined to provide Reuters with a copy of their most recent review.

August 5, 2013 in Drug Offense Sentencing, Procedure and Proof at Sentencing | Permalink | Comments (25) | TrackBack (0)

Condemned Ohio inmate takes care of his own execution a few days early

It is likely unfair to criticize (or praise) Ohio corrections officials for the news reported in this local article, headlined "Inmate hangs self in his cell."  Still, as the report highlights, the timing of this notable prison suicide is conspicuous:

Why convicted Cleveland killer Billy Slagle hanged himself early yesterday isn't known, but he apparently knew he had little time to act. Slagle, 44, was found in his Death Row cell at the Chillicothe Correctional Institution about 5 a.m., only hours before he was scheduled to go on a round-the-clock watch before his scheduled execution on Wednesday.

He was pronounced dead about an hour after he was found. No other details were released by state prison officials. “We will be conducting a complete investigation,” said JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction.

Slagle was scheduled to die by lethal injection at 10 a.m. Wednesday in the Southern Ohio Correctional Facility near Lucasville for the 1987 murder of 40-year-old Mari Anne Pope. Slagle stabbed Pope, a neighbor, 17 times with scissors while she was baby-sitting two young children.

Under state prison protocol, inmates facing the death penalty are placed on around-the-clock watch 72 hours before their scheduled execution — 10 a.m. yesterday for Slagle. Before they are moved to Lucasville, Death Row inmates are required to be observed on regular rounds by corrections officers, with staggered visits not to exceed 30 minutes, Smith said....

Slagle’s defense team was shocked and had no clue he might commit suicide, said one of his attorneys, Vicki Werneke. “We were still litigating in court and had hoped that the execution would have been stopped. There was oral argument scheduled for Monday afternoon,” she told the Associated Press in an email.

Although Cuyahoga County Prosecutor Timothy McGinty sought clemency for Slagle — arguing that, under current law, he would have been given life without parole and not the death penalty — the courts, Ohio Parole Board and Gov. John Kasich disagreed.

Kasich declined clemency, which was Slagle’s best hope to avoid execution. McGinty and Slagle’s attorneys had cited his age — at 18, he was barely old enough for execution in Ohio — and his history of alcohol and drug addiction.

It was the first time a killer about to be executed had killed himself since Ohio resumed capital punishment in 1999. Another inmate, Lawrence Reynolds Jr., 43, of Akron, hoarded and took an overdose of anti-depressant pills that delayed his execution in 2010. He survived and was executed nine days later.

As a fan of personal liberty and autonomy, I tend to favor permitting those prisoners condemned to be executed or to die in prison the opportunity, if clearly competent, the means to commit suicide.  But I have no basis for concluding the prisoner here was making a truly informed and competent decision, nor do I fully understand how he had the ready means to hang himself just before going on a pre-execution suicide watch.  That all said, and to be especially crass and consequentialist, I suppose as an Ohio taxpayer I ought to a bit be grateful for all the tax-funded time and energy of state employees now saved by there no longer being a contested scheduled Ohio execution this week.

August 5, 2013 in Death Penalty Reforms, Prisons and prisoners | Permalink | Comments (12) | TrackBack (0)

Saturday, August 3, 2013

With seven executions scheduled, Texas running out of needed drugs

As this AP story reports, Texas is on the verge of having problems already facing other states with expired or expiring execution drugs.  Here are the details:

The nation's most active death penalty state is running out of its execution drug. The Texas Department of Criminal Justice said Thursday that its remaining supply of pentobarbital expires in September and that no alternatives have been found. It wasn't immediately clear whether two executions scheduled for next month would be delayed. The state has already executed 11 death-row inmates this year, and at least seven more have execution dates in coming months.

"We will be unable to use our current supply of pentobarbital after it expires," agency spokesman Jason Clark said. "We are exploring all options at this time."

Texas switched to the lethal, single-dose sedative last year after one of the drugs used in its three-drug execution process became difficult to obtain and the state's supply expired. Other death-penalty states have encountered similar problems after some drug suppliers barred the drugs' use for executions or have refused, under pressure from death-penalty opponents, to sell or manufacture drugs for use in executions....

"When Texas raises a flag that's it having a problem, obviously numerically it's significant around in the country because like they're doing half the executions in the country right now," Richard Dieter, executive director of the Washington-based Death Penalty Information Center, an anti-death penalty organization, said Thursday....

Some death penalty states, most recently Georgia, have announced they're turning to compounding pharmacies, which make customized drugs that are not scrutinized by the Federal Drug Administration, to obtain a lethal drug for execution use.

Missouri wants to use propofol, the anesthetic blamed for pop star Michael Jackson's 2009 death - even though the drug hasn't been used to execute prisoners in the U.S. Its potential for lethal injection is under scrutiny by the courts and its first use isn't likely anytime soon. The Missouri Supreme Court has declined to allow execution dates to be set in that state until the legal issues are resolved.

Missouri Attorney General Chris Koster recently suggested that if a suitable execution drug can't be found, the state should consider the gas chamber. State law still allows for execution by lethal gas, though Missouri no longer even has a gas chamber....

Texas has by far executed more inmates than any other state in the U.S. since the Supreme Court allowed executions to resume. Since 1982, six years after the high court's order, Texas has executed 503 inmates. Virginia is a distant second at 110.

August 3, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (13) | TrackBack (0)

"Violence will rise as climate changes, scientists predict"

The title of this post is the headline of this recent Los Angeles Times article, which suggests that environmentalists might try to pitch conservatives that limiting carbon emissions is key to ensuring public safety.  Here is how the piece starts:

Long before scientists began to study global warming, author Raymond Chandler described the violent effects of dry, "oven-hot" Santa Ana winds gusting through the city of Los Angeles. "Every booze party ends in a fight," he wrote in his 1938 story "Red Wind." "Meek little wives feel the edge of the carving knife and study their husband's necks. Anything can happen."

While social commentators have long suggested that extreme heat can unleash the beast in man, formal study of the so-called heat hypothesis — the theory that high temperatures fuel aggressive and violent behavior — is relatively new. Using examples as disparate as road rage, ancient wars and Major League Baseball, scientists have taken early steps to quantify the potential influence of climate warming on human conflict.

Now, three UC Berkeley researchers have pulled together data from these and other studies and concluded that the incidence of war and civil unrest may increase by as much as 56% between now and 2050, due to warmer temperature and extreme rainfall patterns predicted by climate change scientists.

Likewise, episodes of interpersonal violence — murder, assault, rape, domestic abuse — could increase by as much as 16%, they report in a study published Thursday by the journal Science. "We find strong causal evidence linking climatic events to human conflict … across all major regions of the world," the researchers concluded.

Related prior posts:

August 3, 2013 in Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack (0)

Federal jury rejects death penalty for murderous Somali pirates

As reported in this AP piece, a "jury recommended Friday that three Somali pirates be sentenced to life in prison in the slayings of four Americans aboard a yacht off the coast of Africa." Here is more on this notable sentencing decision:

Prosecutors had sought the death penalty, and 22 of the 26 crimes they were convicted of were death-eligible offenses. But a federal jury in Norfolk, Va., recommended the only other possible sentence for 20-year-old Ahmed Muse Salad, 25-year-old Abukar Osman Beyle and 29-year-old Shani Nurani Shiekh Abrar.

During the sentencing phase of the trial, defense attorneys attempted to raise doubts about the certainty of the crimes the jury had convicted them of. Salad attorney Claire Cardwell noted that nobody was able to definitively say which person shot which victim, and that much of the evidence presented relied on testimony of other convicted pirates. If the jury and the government wanted to dole out justice by taking an eye for an eye, "Which eye, for which eye?" she asked....

The three men were among 19 who boarded the Quest in February 2011 several hundred miles off the coast of Somalia in hopes of taking the Americans back to Somalia and ransoming them for millions of dollars. The plan fell apart when the U.S. Navy began shadowing the sailing vessel. The yacht's owners, Jean and Scott Adam of Marina del Rey, Calif., and their friends, Bob Riggle and Phyllis Macay of Seattle, were shot to death a few days after negotiations with the Navy broke down....

Prosecutors said the murders were planned, as evidenced by threats from the pirates to the Navy, but Cardwell said that made no sense for them to kill their hostages. By the time Navy SEALs scrambled aboard, all four Americans had been mortally wounded. Prosecutors said the Americans had been shot 41 times.

"Let's call it what it is. It was a massacre," Assistant U.S. Attorney Joseph DePadilla told jurors while arguing for the death penalty during closing arguments earlier this week. The victims were the first U.S. citizens killed in a wave of pirate attacks that have plagued the Gulf of Aden and Indian Ocean in recent years. In their justification for seeking the death penalty, prosecutors wrote that the men killed or attempted to kill more than one person during a single episode. They also said their actions endangered the U.S. military and that the Americans were killed "in an especially wanton and gratuitous manner."...

Defense attorneys for Salad had argued he should not be eligible for the death penalty because they claimed he is mentally handicapped. Defense documents say Salad has a low IQ, a poor memory and had difficulty functioning as a child in Somalia. Defense attorneys also noted in court filings that his co-defendants describe Salad as "slow" and inept at fishing....

Eleven other defendants who were aboard the Quest have already pleaded guilty to piracy and have been sentenced to life in prison. Four other suspected pirates were killed aboard the yacht. A fifth suspected pirate was released because he was a juvenile.

August 3, 2013 in Death Penalty Reforms, Offense Characteristics, Who Sentences? | Permalink | Comments (5) | TrackBack (0)

Friday, August 2, 2013

To some Justices' chagrin, SCOTUS refuses to delay latest California prison release order

As reported here by Lyle Denniston at SCOTUSblog, the "Supreme Court, over three Justices’ dissents, on Friday afternoon refused to delay a lower court order requiring California state prisons to release nearly 10,000 inmates by the end of this year, to relieve overcrowding." Here is more:

In an order containing no explanation, the Court majority denied state officials’ plea to keep the release order on hold until it could be challenged on appeal. The Supreme Court’s ruling did not even mention state officials’ plea to grant full-scale review of the order.

Justice Antonin Scalia, in a bitterly worded dissent joined by Justice Clarence Thomas, called the three-judge District Court’s release mandate a “terrible injunction” that will have the grave consequence of releasing many dangerous prisoners. Justice Samuel A. Alito, Jr., noted simply that he would grant a postponement.

The Scalia dissent condemned what he called “the Power of the Black Robe” in broadly expanding judicial power, and then hinting at limitations “that make it seem not so bad.” He was referring to the Court’s ruling in this same case, two years ago, suggesting that the state might seek and get some relief from an earlier release order. “Comes the moment of truth,” Scalia wrote, “the hinted-at limitation proves a sham.” The District Court judges, he suggested, have now called the Court’s earlier “bluff” and ordered further releases.

State officials, the dissenters argued, had come forward with evidence that they have “made meaningful progress” in relieving the serious overcrowding in the state’s 34 adult prisons, and thus it was unnecessary for additional releases to be made....

Before the latest release order, which is expected to require opening the prison gates to some 9,600 inmates, the state already had released about 37,000 inmates. Officials claimed, in their new challenge, that the only prisoners who could be released to comply to the new mandate are those convicted of very serious crimes.

The state’s challenge to the latest order was filed with Justice Anthony M. Kennedy, who handles emergency legal matters from the geographic area that includes California — the Ninth Circuit.  Kennedy referred it to the full Court, resulting in the denial issued Friday.

Although the voting of the Justices was not spelled out in the order, it appeared that it had been joined by Kennedy, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. 

The state’s challenge had been pending at the Court for more than three weeks; it was filed July 10. The delay in resolving it may have been due to the fact that members of the Court, now in their summer recess, have been traveling.

The brief order from the Court, along with Justice Scalia's three-page dissent, is available at this link.

August 2, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (58) | TrackBack (0)

Could prison perhaps be helping to cause serious recidivism in Delaware?

The question in the title of this post is the first reaction I had upon seeing this lengthy local story, headlined "Study: 8 in 10 released inmates return to Del. prisons." Here are the details:

Nearly eight in 10 Delaware inmates sentenced to more than a year in prison are arrested again for a serious offense within three years of their release, according to a first-of-its-kind state study.  The 27-page report, Recidivism in Delaware, also found that 71% of released prisoners are convicted of a serious crime within three years, and that 68% return to prison for at least one day....

Conducted by the Delaware Criminal Justice Council, the report was a necessary initial step to evaluating the effectiveness of the state's justice system, including the programs available to prisoners while behind bars or after being freed. "These are people who have been sentenced to a year or more in prison, the more serious offenders, and we expected them to be the highest recidivists," said Drewry N. Fennell, the criminal justice council's executive director.

"It really gives us a baseline against which to measure our successes in the future. And our failures. And to know whether we are spending our time and money well in ways that really do enhance communities that people are going back to, as well as enhancing the lives of people who have been incarcerated. We don't want to invest in things that don't do that."

Delaware Gov. Jack Markell said the information should be used to develop better strategies to prevent crime and reduce the number of criminals who re-offend. "Too many people released from our prisons go on to commit more crimes. We need to change that," he said in a statement.

Delaware officials haven't studied how effective the corrections system is in keeping offenders from returning to prison since 2000, and that study was limited to a one-time snapshot of prisoners returning after their release in the 1980s and early 1990s.

Delaware Public Defender Brendan O'Neill, whose taxpayer-funded agency represents about 85% of the state's defendants, said he was surprised the rates included in the new report are so high. "It raises more questions than it answers now," O'Neill said, while applauding officials for finally conducting the long-needed study....

Delaware Attorney General Beau Biden said in a written statement that the report "highlights an alarming rate of recidivism that needs to be addressed by the criminal justice system." Biden said its findings underscore problems his office has been trying to address, such as prison sentences that don't "adequately reflect the seriousness of the crime" or deter future crimes, and the failure of judges to order pre-sentence reports for most serious felony cases.

Delaware embarked on the study on the orders of the General Assembly, which passed a bill in 2012 that required an annual report from the Criminal Justice Council's Statistical Analysis Center. The law, part of the Justice Reinvestment Initiative that looks to spend corrections dollars more wisely, requires one-year, two-year and three-year rates of re-arrest, reconviction and recommitment of released offenders....

Researchers studied 1,167 prisoners released in 2008 and 1,091 freed in 2009. About 91% were men. Fifty-nine percent were black, and 41% white. Those released in 2008 had slightly higher rates of going back into the criminal justice system than those freed in 2009. Of the 2008 group, 56% got arrested for a "serious offense" within one year, compared to 53% in 2009. Fennell said serious crimes include all felonies and Class A and B misdemeanors. Class B misdemeanors include crimes such as marijuana possession, prostitution and criminal contempt....

Perry Phelps, head of the Bureau of Prisons, cautioned, however, that the deck is often stacked against former inmates because they have trouble getting public assistance, college financial aid or jobs. Lawmakers, educators and employers need to face that reality and remove some of the barriers for those who truly want to reform to help prevent them from returning to their criminal ways, he said.

"We tell people in this country we forgive and forget. You go to jail and do your time and you are set free. But that's not the reality of it," Phelps said. "Some people are ostracized as criminals for so long when they go back to society."

A press release concerning this recidivism report is available at this link, and the full report is available at this link. Among the notable findings from the detailed report is that property offenders serving significant prison terms the first time around still have the highest recidivism rate, which leads me to worry (as my post title suggests) that property offenders may be folks most likely to learn about new and improved ways to commit new offenses while inside prison.

August 2, 2013 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (7) | TrackBack (0)

"Sentencing Reform Starts to Pay Off"

The title of this post is the headline of this (too short) new New York Times editorial. Here is the text:

In 2010, Congress passed the Fair Sentencing Act, which reduced the vast disparity in the way the federal courts punish crack versus powder cocaine offenses. Instead of treating 100 grams of cocaine the same as 1 gram of crack for sentencing purposes, the law cut the ratio to 18 to 1. Initially, the law applied only to future offenders, but, a year later, the United States Sentencing Commission voted to apply it retroactively. Republicans raged, charging that crime would go up and that prisoners would overwhelm the courts with frivolous demands for sentence reductions. Senator Charles Grassley of Iowa said the commission was pursuing “a liberal agenda at all costs.”

This week, we began to learn that there are no costs, only benefits. According to a preliminary report released by the commission, more than 7,300 federal prisoners have had their sentences shortened under the law. The average reduction is 29 months, meaning that over all, offenders are serving roughly 16,000 years fewer than they otherwise would have. And since the federal government spends about $30,000 per year to house an inmate, this reduction alone is worth nearly half-a-billion dollars — big money for a Bureau of Prisons with a $7 billion budget. In addition, the commission found no significant difference in recidivism rates between those prisoners who were released early and those who served their full sentences.

Federal judges nationwide have long expressed vigorous disagreement with both the sentencing disparity and the mandatory minimum sentences they are forced to impose, both of which have been drivers of our bloated federal prison system. But two bipartisan bills in Congress now propose a cheaper and more humane approach. It would include reducing mandatory minimums, giving judges more flexibility to sentence below those minimums, and making more inmates eligible for reductions to their sentences under the new ratio.

But 18 to 1 is still out of whack. The ratio was always based on faulty science and misguided assumptions, and it still disproportionately punishes blacks, who make up more than 80 percent of those prosecuted for federal crack offenses. The commission and the Obama administration have called for a 1-to-1 ratio. The question is not whether we can afford to do it, but whether we can afford not to.

As my many blog posts highlight, there is a lot more which can and needs to be said concerning all the topics that this editorial touches upon. But I am very pleased to see that the Times is noticing the impact of recent federal sentencing reforms and call for more.

August 2, 2013 in New crack statute and the FSA's impact, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Thursday, August 1, 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 (0)

Domestic and international marijuana legalization making headlines

According to the news headlines, today appears to be yet another significant day for those eager to see movement toward the ending of national and international pot prohibition.  Here are the stories catching my eye:

August 1, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Sentencing around the world | Permalink | Comments (0) | TrackBack (0)

Seventh Circuit, spliting 5-4, refuses to reconsider guideline error remedy after Peugh

A helpful reader alerted me to this Seventh Circuit order denying rehearing in US v. Hawkins and this set of opinions from judges on the panel explaining how the Supreme Court's recent ruling in Peugh enters the analysis.  I fear that the legal issues being debated here are hard to unpack (though they are fascinating), and thus I will here just reprint the first paragraph from Judge Rovner's dissent from the denial of rehearing, which helps spotlight the issue being debated:

Since July 25, 2003, Bernard Hawkins has been sitting in a Federal Correctional Institution, where he is scheduled to remain for approximately twelve-and-ahalf years.  It is uncontroverted that the district court erred when it calculated his sentence using the career offender enhancement, and had the court not erred, his calculated sentencing range would have been approximately ten times less — somewhere in the range of 15-21 months. Yet despite the known and conceded error, we are told that for the sake of principles of finality, Hawkins must remain in prison for the entire 151-month sentence. My dissent to the panel opinion elucidated the reasons why I believe this was the wrong result. In the interim, the Supreme Court issued a decision in Peugh v. United States, 133 S.Ct. 2072 (2013), addressing the question of how appellate courts should view the effect of errors that sentencing courts make when they select the incorrect United States Sentencing Guideline as a starting point. In light of that decision, and for the reasons articulated in the dissent to the panel opinion, I believe it is our duty to reconsider Mr. Hawkins’ case and therefore I respectfully dissent from the denial of rehearing.

August 1, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack (0)

Cleveland kidnapper Castro gets LWOP sentence plus 1000 years as plea deal provided

I had the honor this morning of watching the first part of the state sentencing proceeding for Cleveland kidnapper Ariel Castro in a remote studio waiting to be a boxed pundit on CNN.  Consequestly, I will link here and quote below part of CNN's extensive coverage of the sentencing chapter of this high-profile case:

Kidnapping victim Michelle Knight told her captor, Ariel Castro, during his sentencing hearing, "You took 11 years of my life away. ... I spent 11 years in hell. Now, your hell is just beginning."

"I can forgive you, but I will never forget," she said in her statement to Castro, calling him a hypocrite. "Nobody should go through what I went through," she said tearfully. She called another victim, Gina DeJesus, her "teammate" saying the woman saved her when she was "dying from his abuse." Knight said she "will overcome what happened" but Castro "will face hell for eternity."

During Ariel Castro's sentencing hearing, prosecutor Anna Faraglia said that Castro "tormented (his victims) by allowing them to watch their vigils ... and even had the audacity to attend them."  She further said that Castro would talk to his victims' parents as if he were distraught by their disappearances when "they were right underneath his roof."

Tim McGinty, Cuyahoga County prosecutor, stressed there's no backing to the claim that Ariel Castro suffered from mental illness. "He is responsible," he said, likening him to murderers John Wayne Gacy and Ted Bundy. "He has no excuse."  When asked what Castro would do if he could go back and do things differently, the kidnapper responded that he'd do it all over again, McGinty said. "He doesn't believe he did anything wrong," McGinty said. "There is no remorse."

Defense attorney Craig Weintraub then told the judge that he felt some of the testimony presented was inappropriate because "these were really private matters," the sentence had been agreed upon prior to the hearing and Castro waived his right to challenge the facts of the case. Judge Michael Russo responded that he felt the testimony and evidence was necessary to help him guide his decision on whether to accept the sentence.

Cleveland kidnapper Ariel Castro, speaking at his sentencing hearing, said, "I'm not a violent person.  I simply kept them there so they couldn't leave."  He was referring to the three women he held captive for about a decade.   Castro said he knew what he did was wrong, but he argued that the "accusations that I would come home and beat them" are "totally wrong."

"I'm not a monster. I'm just sick. I have an addiction. Just like an alcoholic has an addiction."...

Describing himself as a "very emotional person," Ariel Castro said during his sentencing hearing that "these people are trying to paint me as a monster and I'm not a monster. I'm sick."

"I believe I am addicted to porn to the point that it makes me impulsive and I lost it," he said, adding he's "not trying to make excuses."

Ariel Castro took issue with the aggravated murder charge related to the allegation that his abuse terminated the pregnancy of one of his victims, saying there was no evidence the incident occurred. Judge Michael Russo reminded him that he pleaded guilty, and Castro said he did so only to save his victims further psychological trauma....

Judge Michael Russo has already sentenced kidnapper Ariel Castro to hundreds of years in prison, mostly in eight- to 10-year consecutive blocks.  Russo said Castro "will never be released from incarceration during the period of his remaining natural life for any reason."

"A person can only die in prison once," Judge Michael Russo told Ariel Castro Thursday in handing down a sentence of life in prison plus 1,000 years.  The judge called the sentence "commensurate with the harm you've done." Russo, noting that Castro treated his victims as "slaves," said consecutive sentences rendered in his case must be "imposed" to protect the public and "to punish you."...

"There is no place in this city, there is no place in this country, there is no place in this world for those who enslave others," Judge Michael Russo told kidnapper Ariel Castro. The court in Cuyahoga County is seizing the property of Ariel Castro and imposing a fine of $100,000 on him, in addition to his massive sentence.

Related prior posts:

August 1, 2013 in Offense Characteristics, State Sentencing Guidelines, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Wednesday, July 31, 2013

"Sentencing Bradley Manning: He could get 100 years, he could get none"

The title of this post is the headline of this notable new article in the Christian Science Monitor about a notable upcoming sentencing of a notable criminal offender.  Here are excerpts:

As the trial of Pfc. Bradley Manning begins its sentencing phase Wednesday, the prosecution will attempt to show that the documents he released gravely damaged national security.

At the same time, the defense will make the case that the perhaps the government was embarrassed by Private Manning’s disclosures, but they did not cause the catastrophic harm to national security that the Obama administration initially claimed....

“They are going to try to show that nothing he did ultimately harmed the country,” says Richard Rosen, former commandant of the US Army’s Judge Advocate General’s School and currently the director of the Center for Military Law and Policy at Texas Tech University School of Law in Lubbock. The bulk of this sort of evidence could not be introduced before the judge rendered its verdict, because it could be deemed prejudicial or irrelevant, but in the sentencing phase of the proceedings, “The rules of evidence are relaxed,” Mr. Rosen adds....

The key for Manning will be providing mitigating evidence – “factors that may sway the judge to grant him a lesser sentence,” Rosen says. “This may be family problems or that people persecuted him because of his sexual preferences.”

The sentencing phase will be extensive and may last for weeks. Although Manning was acquitted of “aiding the enemy,” which would have carried with it a life sentence without the possibility of parole, he has been found guilty of crimes that generally impose decade-long sentences each, which could quickly add up. “It’s going to accumulate quite a few years,” Rosen says. “We’re probably talking nearly 100 years – we’re talking a lot of years.”

“We’re not celebrating,” defense attorney David Coombs said. “Ultimately, his sentence is all that really matters.”

Once Col. Denise Lind, the presiding judge, renders her verdict, Manning’s case will automatically go to what is known as the “convening authority,” a general who, if he so desired, could overturn the verdict.

The powers of the convening authority have been called into question over recent months, when they have twice thrown out sexual assault convictions rendered by military juries. Though unlikely to happen, the general who is serving as the “convening authority” in the Manning trial – as with the sexual assault cases that caused so much controversy – could dismiss the conviction, known as “setting aside” the verdict.

What the general cannot do is provide a harsher sentence than Colonel Lind has already given to Manning. “He can give further clemency if he wants, he can lessen the sentence, or he can set aside the findings,” Rosen explains.

If the convening authority declines to change the sentence, Manning’s defense team can also seek clemency through the Court of Appeals for the Armed Forces. Beyond that, they could take the Manning case all the way to the US Supreme Court, likely by arguing that the US government violated Manning’s constitutional rights.

That will be a tough case to make. “I can’t think of a time when the Supreme Court has overruled a court of appeals for the Armed Forces,” Rosen says. “They don’t like to second-guess the judgments of the military courts.”

In the meantime, the defense will seek to ensure that Manning gets credit for the jail time he has already served – three years – and perhaps more by arguing that he was mistreated in pretrial confinement by being put in solitary confinement and being stripped naked.

For this, “He’ll try to seek additional credit – in other words, not a one-to-one reduction in jail time, but, say 10 to 1 – in other words, 10 days for every day he was mistreated,” Rosen says. “It’s going to be long and involved,” he adds. “It doesn’t end here.”

July 31, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Big taxpayer pricetag ($4 million) for just one notable casualty from federal drug war

Accurately calculating either the benefits or costs of the modern American war on drugs is all but impossible.  But it is hard not to notice and lament the discovery of one particularly costly incident for both a casualty of this war and federal taxpayers as is documented in this local article headlined "DEA settles left-in-cell case for $4M." Here are the details:

Daniel Chong, the self-confessed pot smoker who was caught up in a drug sweep last year and nearly died after federal agents inadvertently abandoned him in a holding cell for five days without food or water, is now a millionaire.

Attorney Eugene Iredale announced Tuesday he reached a $4.1 million settlement with the U.S. Department of Justice, without even filing a lawsuit.  “What happened to Daniel Chong should never happen to any human being on the face of the planet,” Iredale said....

In addition to the cash payment, the lawyer said federal officials agreed to adopt new detainee procedures designed to make sure no one is left unwittingly in a holding cell again.  Iredale said he also was told the temporary lockups inside the San Diego office have been equipped with cameras to allow agents to view what happens inside.

The U.S. Department of Justice, which paid the settlement and absorbed all other liability from the local police agencies assisting in the sweep, declined Tuesday to discuss the events or the multimillion-dollar payment.

The harrowing experience for Chong, 25, an engineering major at UC San Diego, began on a Friday night in 2012, when he admittedly went to some friends’ house in University City to celebrate April 20, a special date for marijuana users.  Chong didn’t know it at the time, but the home had been under surveillance by a federal narcotics task force.

Drug agents executed a search warrant early in the morning of April 21, Among other things, they found 18,000 ecstasy pills, marijuana and several weapons in the residence, according to court papers.  The agents also found Chong sleeping on a couch in the front room and transported him and six others to the San Diego field office of the U.S. Drug Enforcement Administration for follow-up interviews.

Chong said he answered all of the agents’ questions and they agreed to send him home without criminal charges.  But instead he was returned to a temporary holding cell, where he spent the next four days without food or water.  During the final two days of the ordeal, Chong was in complete darkness, he said.  He has said he became delirious, drank his own urine, ate the broken shards of his glasses and used the glass to cut the message “sorry mom” in his own forearm.

He said he kicked the door and screamed for help but agents never came to his assistance.  DEA agents admitted later they “accidentally” left Chong in the cell and took the unusual step of apologizing publicly to the UCSD student.   “When they finally opened the door, I was happy,” Chong said Tuesday. “I thought maybe they were going to take me to a mental ward. I was screaming.”

Chong spent five days at Sharp Memorial Hospital in Kearny Mesa before he was able to return home.  Although his lawyer said Chong still suffers from post-traumatic stress, Chong indicated he is doing better overall....

Findings of an investigation of the case by the Office of the Inspector General’s Office of the U.S. Department of Justice have not been released.  Iredale said federal investigators told him they do not plan to pursue criminal charges against any of the agents involved in the task force. Iredale singled out for the first time a San Diego Police Department officer who was the last person to see Chong before the cell was locked.

July 31, 2013 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (27) | TrackBack (0)

Tuesday, July 30, 2013

Intriguing AP review of the challenges of GPS tracking

GPSThe AP has this intriguing piece of new reporting on a (too?) popular modern form of technocorrections.  The piece is headlined "Some Ankle Bracelet Alarms Go Unchecked," and here are excerpts:

Three decades after they were introduced as a crime-fighting tool, electronic ankle bracelets used to track an offender's whereabouts have proliferated so much that officials are struggling to handle an avalanche of monitoring alerts that are often nothing more sinister than a dead battery, lost satellite contact or someone arriving home late from work.

Amid all that white noise, alarms are going unchecked, sometimes on defendants now accused of new crimes.  Some agencies don't have clear protocols on how to handle the multitude of alerts, or don't always follow them.  At times, officials took days to act, if they noticed at all, when criminals tampered with their bracelets or broke a curfew....

Twenty-one agencies that responded to the AP inquiry logged 256,408 alarms for 26,343 offenders in the month of April alone.  It adds up for those doing the monitoring.  The 230 parole officers with the Texas Department of Criminal Justice handled 944 alerts per day in April.  The Delaware Department of Correction, which has 31 field officers, handled 514 alarms per day....

Sorting through alerts, and deciding which are serious enough to merit a rapid response, can be fraught with peril....

Supporters of electronic monitoring say [violent crimes by monitored offenders who set off alarms and other] tragedies are the exception and that the devices are a valuable tool for authorities who previously relied only on shoe leather and the telephone to keep tabs on released prisoners. In many cases involving violence by people on trackers, the accused likely would have been free on bail or parole even if electronic monitoring didn't exist, and would have been far harder to monitor.

"No one should think this is going to be 100 percent effective," said George Runner, a former California legislator who wrote that state's voter-approved law requiring bracelets for all paroled sex offenders. "It's just a tool. When used, and used effectively, it can be not only helpful in modifying behavior, but we've heard stories about it actually preventing crimes."

Once used to track straying cows, electronic monitoring of criminals debuted in 1983, when a New Mexico judge inspired by a Spider-Man comic book allowed a man who violated probation to wear an ankle bracelet rather than go to jail.  Use took off in the last decade, as technology improved and lawmakers became enamored of trackers as a cost-effective alternative to incarceration and a way of monitoring sex offenders for life.

Today, 39 states require monitoring of sex offenders.  The biggest user of ankle bracelets is the federal government, which tracks people on pretrial release and probation, as well as thousands of immigrants fighting deportation....

"It's virtually impossible to sit there and track a person all day," said Kelly Barnett, a union official who represents probation officers doing GPS tracking in Michigan.  Barnett said that while officers see value in the monitoring, such programs also give "a false sense of security to the community."

Studies have found mixed results on the devices' value as a crime deterrent.  Bill Bales, a criminology professor at Florida State University, said he believes they are beneficial. Offenders wearing them tend to stay home more with their families.  "They're glad to be in the free world, albeit tethered, rather than in prison," Bales said.

The key to making the devices work, he and other experts said, is to figure out how best to process the immense amounts of information they generate.

July 30, 2013 in Criminal Sentences Alternatives, Technocorrections | Permalink | Comments (7) | TrackBack (0)

New USSC data on implimentation and impact of retroactive crack guidelines after FSA

I just noticed on the US Sentencing Commission's website this new data report carrying the title "Preliminary Crack Retroactivity Data Report; Fair Sentencing Act."  This report, dated July 2013, appears to be the latest accounting of who has (and has not) received the benefit of retroactive application of the 2011 amendments to the federal sentencing guidelines for crack offenses which implemented the new 18-1 crack/powder ratio that Congress created via the Fair Sentencing Act of 2010.

Based on the information reflected in Tables 1 amd 8 of this data report, it appears that just over 7300 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA-inspired crack guidelines being made retroactive.  Significantly, this average reduction merely lowered the average crack sentence from roughly 12.5 years to just over 10 years for the group receiving sentence reductions; this means that even the new-average-lowered sentence for crack offenses were still significantly higher that the average sentences imposed for any other federal drug crimes.

For those eager to gauge the potential economic impact of FSA retroactivity, it appears that the retroactive guidelines as implemented has now saved almost 16,000 cumulative years of federal imprisonment, with a consequent savings to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration).  And for those concerned about racial sentencing dynamics, Table 5 of this data reports that more than 85% of those benefiting from reduced crack sentences have been black prisoners, demonstrating once again the historically racialized reality of federal crack prosecutions.

As I have said in prior posts, if those defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs. And it those defendants do not learn the error of their law-breaking ways, I both expect and hope they will really get the sentencing book thrown at them if ever up for sentencing again.

July 30, 2013 in Data on sentencing, Detailed sentencing data, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack (0)

"Prisons are shrinking. That won’t necessarily last."

The title of this post is the headline of this recent notable essay by Mike Konczal posted on-line via the Washington Post. Here is how it starts:

The Bureau of Justice Statistics on Thursday released its count of the number of prisoners in the country. There are 1,571,013 individuals under the jurisdiction of state and federal correctional authorities. However, that number represents a decline, having fallen 1.7 percent since last year — the third consecutive annual drop and the largest of the three. This multi-year falling trend is also true if you consider everyone in the correctional system, or the nearly 7 million people you get when you include local jails, probation and parole. This is after decades of rapidly expanding prisoner populations in the United States.

Meanwhile, the Corrections Corporation of America (CCA), the nation’s leading provider of private, for-profit prisons, had a happy announcement in a recent PowerPoint presentation: State budgets will soon be no longer in crisis. One must imagine that CCA shareholders who are U.S. residents were excited that school budgets would no longer be slashed, public services more broadly would no longer be cut, and the dangerous state-level austerity holding back the economy would no longer be an issue. But the real excitement was over the idea that states could finally start arresting people again, thus filling the depleted ranks of the incarcerated.

Liberals debate the longer-term consequences of the past five years all the time. Is the financial sector well-regulated again? Did we roll back the expansive executive authority of the War on Terror, or solidify it? Did we invest enough in infrastructure when interest rates were at all-time lows? But a major question is still open for debate: Did collapse of state budgets during the Great Recession put us on a permanent path to rolling back the United States’ high levels of incarceration?

July 30, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

Monday, July 29, 2013

New Slate pitch for Prez to use clemency powers to address crack sentencing disparities

Thanks to the suggestions, and insights and energy of Harlan Protass, a criminal-defense lawyer in New York and an adjunct professor at the Cardozo School of Law, some ideas expressed in this recent post concerning the President Obama's words and (lack of) actions now find expression in this new Slate commentary.  Here is how the piece, co-written by me and Harlan, starts and finishes:

President Barack Obama, commenting last week on George Zimmerman’s acquittal in Trayvon Martin’s death, remarked on “a history of racial disparities in the application of our criminal laws — everything from the death penalty to enforcement of our drug laws.”  A few months earlier, Attorney General Eric Holder similarly lamented new government data suggesting that even today “black male offenders” are sentenced to federal prison terms “nearly 20 percent longer than those imposed on white males convicted of similar crimes.”  These statements reveal that our nation’s first African-American president and first African-American attorney general are aware of serious racial discrimination in the administration of our nation’s criminal laws.  The question is what they plan to do about it?

Neither the president, nor his attorney general, has followed-up or suggested a fix for the problem.  Yet with one signature, Obama could make a remarkable difference: He could use his constitutional powers to commute the sentences of thousands of disproportionately black inmates serving excessive prison terms for crack cocaine offenses.  Put bluntly, rather than dropping occasional comments about high-profile criminal-justice incidents with racial overtones, both the president and the attorney general should make a focused and sustained effort to redress longstanding criminal justice disparities....

Back in 2009, Holder famously described us as a “nation of cowards” in dealing with race issues.  And while both Holder and the president seem to have the courage to speak about high-profile cases, they have yet to show the fortitude and focus needed to turn high-profile controversies into constructive opportunities.  If President Obama is genuinely committed to addressing racial disparities in the enforcement of our criminal laws, he can grant clemency today, and then make a sustained commitment to addressing these issues throughout his second term.  If he fails to do so, he can, justifiably, be called our nation’s “Coward-in-Chief” where race is concerned.

July 29, 2013 in Clemency and Pardons, New crack statute and the FSA's impact, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (33) | TrackBack (0)