Tuesday, May 14, 2013
Gov Brown bringing California prison fight back to SCOTUSAs reported in this local article, headlined "Gov. Jerry Brown on Monday followed through with his vow to turn to the U.S. Supreme Court in a bid to end years of judicial control over California's overcrowded prison system." Here is more about the latest legal development in a seemingly never-ending California corrections saga:
In a three-page filing, the governor and his top prison officials notified a three-judge panel the state is appealing an April order requiring California to shed at least 10,000 more inmates by the end of December. The attorney general's office now has 60 days to file its full legal arguments with the Supreme Court....
In the recent order, the federal judges found that California prisons remain over capacity, and that the state has various ways to improve medical care and release inmates without jeopardizing public safety.
The governor responded to that order with a plan that would remove about 7,000 inmates by the end of this year, still thousands short of the judges' demands. But state officials do not want to take those measures, arguing a reduction of more than 25,000 inmates over the past few years has solved the overcrowding issue.
Lawyers for the inmates contend the state must do more to end the legal battle. The Supreme Court, in a 5-4 ruling, upheld the 2009 orders to reduce prison overcrowding. The justices would likely decide next fall whether to review the issue again.
Monday, May 13, 2013
Noting some new GOP sentencing reform voices inside the BeltwayThis notable new article, amusingly headlined "An End to the Jailhouse Blues?", authored by By John Gramlich and appearing in CQ Weekly discusses what I am inclined to call the "new right on criminal justice reform" on the Hill. Here are excerpts:
Congressional Democrats have argued for years that too many low-level drug offenders are locked away in federal prisons and that mandatory-sentencing laws disproportionately harm minorities and tie judges’ hands. Lately, they have been joined in those criticisms by Sen. Rand Paul, a tea-party-backed Republican with White House aspirations. “I think the Republican Party could grow more if we had a little bit more of a compassionate outlook,” the Kentuckian says.
Paul is emblematic of a quiet but unmistakable shift among conservatives in Congress when it comes to criminal justice. Not only are Republicans engaging in a serious debate about relaxing federal criminal penalties — an idea that was once anathema to lawmakers who worried that their next campaign opponent would label them “soft on crime” — they are leading the discussion.
The House Judiciary Committee, which has poured cold water on Democratic priorities since Republicans regained control of the chamber in 2010, last week created a bipartisan, 10-member task force that will conduct a six-month analysis of the estimated 4,500 crimes on the federal books.
The task force will examine “overcriminalization” in the federal justice system and evaluate what Judiciary Chairman Robert W. Goodlatte calls an “ever-increasing labyrinth” of criminal penalties, some of them for relatively minor crimes in which perpetrators may not have realized they were breaking the law. The Virginia Republican cited the example of an 11-year-old girl who “saved a baby woodpecker from the family cat” but received a $535 fine because of a federal law banning the possession of a migratory bird.
The panel will be led by law-and-order Wisconsin Republican Jim Sensenbrenner and Virginia Democrat Robert C. Scott, an outspoken critic of more-contentious criminal policies such as mandatory minimum sentencing, which the task force will also evaluate. A diverse range of groups endorses the effort, including the American Civil Liberties Union, the Heritage Foundation and the U.S. Chamber of Commerce.
At the same time, the Republican chairman of the House Appropriations subcommittee that oversees federal prison spending, Frank R. Wolf of Virginia, plans to work with his Democratic ranking member, Chaka Fattah of Pennsylvania, to create a separate task force to review all aspects of the rapidly growing federal correctional system. Wolf is outraged that federal prisoners are not provided more opportunities to gain work experience and believes the Bureau of Prisons is holding too many people, including ill older inmates who no longer pose a threat to society. A report by the Justice Department’s inspector general recently came to the same conclusion.
“If you’re 68 years old and you’re dying of cancer and your life expectancy is seven months, why do we want to keep you in prison?” Wolf says.
Then there is Paul, who perhaps more than any other Senate Republican aligns with Democrats on sentencing issues. Paul is co-sponsoring a bill with Democratic Judiciary Chairman Patrick J. Leahy of Vermont that would allow federal judges to depart from mandatory minimum sentences under certain conditions — a so-called “safety valve” that effectively would do away with congressionally mandated punishments in many cases. Similar House legislation is co-sponsored by Scott and another Kentucky Republican, Thomas Massie. “Some of the sentencing has been disproportionately unfair to African-Americans, and so I am for getting rid of the mandatory minimums or letting judges override them,” Paul says.
He argues that young drug offenders, in particular, are vulnerable to overly harsh punishments and points out that each of the past three presidents — Barack Obama, George W. Bush and Bill Clinton — was “accused of doing drugs as a kid.... Had they been caught, none of them would have ever been president,” he says. “Just by luck of not being caught, they did fine. But a lot of kids don’t.”...
If Republicans sound kinder and gentler on criminal justice today than they did two decades ago, their perspective has been guided by cold, hard numbers.
Goodlatte last week cited statistics showing that Congress has added an average of 500 new crimes to the law books in each of the past three decades. Those federal crimes overlap with scores of existing penalties for the same crimes enacted by the states, which handle the vast majority of the nation’s criminal trials.
The creation of hundreds of new federal crimes, combined with mandatory minimum sentencing laws and the 1984 elimination of parole for federal offenders, has resulted in a steady and costly uptick in the federal prison population. The federal corrections system is now the largest in the country, much larger than state systems in Texas and California.
In fiscal 2006, the Bureau of Prisons had 192,584 inmates. Five years later, the number had grown 14 percent to 218,936, according to a November report by the Justice Department inspector general.
Massie, formerly the top elected official in Lewis County, Ky., says his perspective has been shaped by his experience managing a local budget, where he says his “biggest line item” was incarceration. The first-term lawmaker backs a bipartisan corrections overhaul that Kentucky enacted in 2011 and said Republicans on the federal level should embrace similar changes because mass incarceration runs counter to established GOP principles on government spending. “I call it socialism with constrained mobility,” Massie says. “You’re paying for all their medical costs. You’re paying for all their food, all their housing. You’ve got to have air conditioning. Jails are not cheap.”
While the dialogue may be changing, passing legislation, as always, is another story. Even the idea of studying the criminal justice system proved too controversial in the Senate in 2011, when a national commission proposed by former Democratic Sen. Jim Webb of Virginia fell to partisan fighting.
The House task force might agree to weed out relatively minor crimes such as possession of a migratory bird — the kind of regulations Republicans tend to view as government overreach — but it may be less inclined to rethink the mandatory minimum sentences that many Democrats abhor....
While the challenges are clear, those who support the GOP-led discussion surrounding criminal justice say it is encouraging that the debate is happening at all. It’s a significant step forward that a bipartisan group of legislators is really for the first time looking in a very serious way at ways to try to get their arms around this behemoth,” says John G. Malcolm, a senior legal fellow at the Heritage Foundation.
Some recent and older related posts:
- Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
- "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
- Justice Safety Valve Act gets bipartisan introduction in House of Representatives
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"
- Could Romney appeal to independents and minorities with bold crime and punishment vision?
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
May 13, 2013 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack
Sunday, May 12, 2013
Ohio prosecutor upset public unwilling to pay higher taxes to make his job easierThe title of this post is my proposed alternative headline for this local article discussing recent sentencing law reforms in Ohio (made by a Republican legislature and signed in law by GOP Governor John Kasich). The actual headline from the local paper is "Prosecutor: Sentencing changes damaging judicial system," and here are excerpts (with the prosecutor's telling comments highlighted by me):
In light of a recent trial in which a Springfield man was convicted in Athens County Common Pleas Court of three counts of trafficking in cocaine, Prosecutor Keller Blackburn discussed how the man will face a lesser sentence thanks to House Bill 86 and said the legislation changes in sentencing is hurting the state’s judicial system.
Michael Turner, 29, sat through a four-day trial before a jury found him guilty of two third-degree felony counts of trafficking in cocaine and one second-degree count of trafficking in cocaine. When he was indicted in August of 2011, the charges he faced carried a maximum prison sentence of 18 years with at least eight years being mandatory. However, after House Bill 86 passed through legislation, the maximum he can now be sentenced is only nine years. A sentencing date has yet to be set.
Blackburn explained that House Bill 86 not only made a distinction between cocaine and crack cocaine and the weights of the drugs, but it also significantly changed the prison sentences associated with lower level felony crimes. Prior to the changes, fifth-degree and fourth-degree felonies carried the real possibility of prison time. Now, probation or jail time is more likely for first-time offenders. Third-degree felony crimes carried a maximum of five years in prison but now only three can be ordered....
“It’s balancing the budget on the backs of local taxpayers on felony cases,” he added. “There’s a reason things are felonies and others are misdemeanors. Local communities are supposed to pay for misdemeanors and the state is supposed to pay for felonies. Now felony fives, fours and some threes are paid for by the counties.”
While Blackburn does not believe the sentencing changes affects the criminal mind much, he does point out the differences it makes after the fact. “When you change the numbers, then negotiations get more difficult. If someone is only risking six additional months by not taking a deal, they’ll go to trial. It harms negotiations and pass costs to local communities,” Blackburn said.
According to Blackburn, there are around 600 cases that come across his desk in a year. He said it’s not possible for the prosecution and defense to try that many cases, nor is it possible for the courts to handle such a load and taxpayers cannot afford that many cases. He said there is also additional stress placed on the probation department.
“The principles and purposes of sentencing used to be to punish the offender and protect the public. It’s now to punish the offender and protect the public in the most economical manner. That’s not what’s supposed to be happening but that’s what legislation has decided,” Blackburn said....
“You start taking tools out of the toolbox. Maybe the person with 24 balloons of heroin does need an intensive treatment program but maybe we know they just sold twice and we just missed them,” the prosecutor said. “Maybe they are one of the major spokes in the wheel and all I can do is put them on probation when the probation department is underfunded.”
“The problem is money and they don’t want to put any more money into prisons so they’re not willing to make many changes,” said Blackburn.
Based on the prosecutor's comments here, it does not seem at all accurate to say, as does this article's headline, that a new sentencing law is "damaging [Ohio's] judicial system" in any way. Rather, by enabling more defendants to go to trial and by making sure communities cover certain costs, it would appear the new sentencing law may actually be strengthening the judicial system in the Buckeye State.
Rather, what really seems to be bothering Prosecutor Keller Blackburn is that Ohio's new sentencing laws make plea negotiations "more difficult" and may lead to more defendants exercising their constitutional right to a jury trial. Pulling back the curtain as to what prosecutors really care about, Backburn laments that he is losing one of the tools he wants in his toolbox so he can determine the fate of a defendant's future without the complications or challenges of proving to a jury or judge why this fate is appropriate or cost effective. And dang those voters and legislators, concludes Blackburn, they are unwilling to put more of their hard-earned money into making his job as a prosecutor easier.
Thursday, May 09, 2013
"Looking Past the Hype: 10 Questions Everyone Should Ask About California's Prison Realignment"The title of this post is the title of this new paper on SSRN by Joan Petersilia and Jessica Snyder. Here is the abstract:
California’s Criminal Justice Realignment Act passed in 2011 shifted vast discretion for managing lower-level offenders from the state to the county, allocated over $2 billion in the first 2 years for local programs, and altered sentences for more than 100,000 offenders. Despite the fact that it is the biggest penal experiment in modern history, the state provided no funding to evaluate its overall effect on crime, incarceration, justice agencies, or recidivism.
We provide a framework for a comprehensive evaluation by raising 10 essential questions: (1) Have prison populations been reduced and care sufficiently improved to bring prison medical care up to a Constitutional standard? (2) What is the impact on victim rights and safety? (3) Will more offenders participate in treatment programs, and will recidivism be reduced? (4) Will there be equitable sentencing and treatment across counties? (5) What is the impact on jail crowding, conditions, and litigation? (6) What is the impact on police, prosecution, defense, and judges? (7) What is the impact on probation and parole? (8) What is the impact on crime rates and community life? (9) How much will realignment cost? Who pays? (10) Have we increased the number of people under criminal justice supervision?
Wednesday, May 08, 2013
"The Exchange of Inmate Organs for Liberty: Diminishing the 'Yuck Factor' in the Bioethics Repugnance Debate"The title of this post is the title of this notable new paper by Jamila Jefferson-Jones now available via SSRN. Here is the abstract (which prompts for me a reaction of "cool" rather than "yuck"):
Mississippi Governor Haley Barbour granted clemency to Jamie and Gladys Scott on December 29, 2010. This decision indefinitely suspended their double life sentences and freed them after 16 years in prison for armed robbery. The price of their liberty: Gladys’ kidney.
The story of the Scott Sisters’ release and the condition imposed upon Gladys Scott reflexively elicits an intense negative response on the part of the listener who likely is focusing on the “yuck factor” — a strong sentiment that what they just heard is unfair, unseemly, or just plain wrong.
What happens, then if the Scott Sisters’ story is replicated — if it is multiplied across prison populations? Were programs put into place that allowed prison inmates to trade their kidneys (or portions of their lungs, livers or pancreases) for liberty, it follows that the “yuck factor” would be multiplied exponentially. However, it must be noted that in confecting his peculiar clemency condition, Governor Barbour chose a course of action that was, ironically, unobjectionable to the civil rights community (including the state’s Black activist community) that was clamoring for the release of the Scott Sisters. If one were to cast the civil rights community as guardians of (or at least stakeholders regarding) the interests of poor and minority communities, the Scott Sister’s clemency case is particularly intriguing in that they cheered, rather than crying, “Yuck!” and objecting to the terms of release imposed by the Governor. The outcry from some bioethicists notwithstanding, this scenario begs the question of why we should not allow other prisoners — those to whom serendipity has not provided an ailing sister — to do the same and whether it is in fact possible to do so while avoiding, or at least mitigating repugnance.
This article contemplates whether the National Organ Transplant Act’s (“NOTA”) prohibition against the trading of organs for “valuable consideration” should include an exception that would allow state and federal prison inmates to donate organs in exchange for release or credit toward release. Such a stance surely raises questions regarding whether the state would be coercing the forfeiture of body parts as punishment or in exchange for freedom. Moreover, critics may question the potential effects on the criminal justice system of allowing those facing incarceration to bargain their bodies, and conceivably, their long-term health, in exchange for reduced prison terms. Therefore, such an inmate organ donation program is only feasible if a system is confected to remove the “yuck factor” ostensibly by removing coercion from the equation and by addressing the other concerns that mirror those addressed in the living donor sales debate. Such a program would need to reframe the legal context in which the Scott Sisters’ clemency condition was crafted into one in which a great measure of power and choice resides instead in the hands of the inmate participants.
May 8, 2013 in Clemency and Pardons, Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack
Monday, May 06, 2013
New bipartisan House Judiciary Committee task force to examine overcriminalizationAs reported in this Wall Street Journal article, Congress is creating a new federal criminal justice task force to address the problem of Congress creating too much federal criminal justice. The article is headlined "Task Force Aims to Lighten Criminal Code: Bipartisan Congressional Initiative Targets Bloated Federal Provisions Cited by Critics for Driving Up Incarceration Rates," and here are excerpts:
Congress plans this week to create a new, bipartisan task force to pare the federal criminal code, a body of law under attack from both parties recently for its bloat.
The panel, which will be known as the House Committee on the Judiciary Over-Criminalization Task Force of 2013, will comprise five Republicans and five Democrats. It marks the most expansive re-examination of federal law since the early 1980s, when the Justice Department attempted to count the offenses in the criminal code as part of an overhaul effort by Congress.
Rep. Bobby Scott (D., Va.) said he expected the committee to work through consensus. "We've been warned it's going to be a working task force and it means we'll have to essentially go through the entire code," he said.
Rep. F. James Sensenbrenner (R., Wis.) a longtime champion of overhauling the code, will lead the task force. He is expected to reintroduce a bill he has tried to get through several congresses that would cut the size of the criminal code by a third. "Overcriminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of problems," he said.
In a city with deep political divisions, the expansion of federal criminal law has created a coalition of allies from opposite sides of the aisle, including the conservative Heritage Foundation, the libertarian Cato Institute, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and the American Bar Association. Legal experts estimate there are 4,500 criminal statutes and tens of thousands of regulations that carry criminal penalties, including prison.
The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year. In recent years, states have reversed years of steady increases by reducing their prison populations while the number of people held at the federal level has continued to climb. Federal lawmakers and legal experts attribute part of the continuing increase to the rise in criminal offenses and regulations that carry prison time and the creation of laws that don't require knowledge of wrongdoing.
Democrats have long opposed the growth of parts of the system, blaming mandatory minimums for the increase in the federal prison population, especially the rise in African-American inmates. For Republicans, the encroachment of federal law into areas that could be handled by the states is a top concern....
Other committee members include Rep. Raul Labrador (R., Idaho) and Rep. Karen Bass (D., Calif.). Recommendations made by the task force will be taken up by the House Judiciary Committee, Chairman Robert Goodlatte (R., Va.) said in an interview.
As the first sentence of this post suggests, I am not especially optimistic about the prospects for a new federal criminal justice entity doing a robust job of curtailing the size and scope of the federal criminal justice system. Nevertheless, simply the creation of this new task force, as well as its composition and commitment to work via consensus, suggests that at least a few persons inside the Beltway have come to realize there can and should be bipartisan efforts to shrink the considerable costs of the massive modern federal criminal justice system.
Saturday, May 04, 2013
"Guantanamo camp burns through $900,000 a year per inmate"The title of this post is the headline of this new Reuters article, which gets started this way:
It's been dubbed the most expensive prison on Earth and President Barack Obama cited the cost this week as one of many reasons to shut down the detention center at Guantanamo Bay, which burns through some $900,000 per prisoner annually.
The Pentagon estimates it spends about $150 million each year to operate the prison and military court system at the U.S. Naval Base in Cuba, which was set up 11 years ago to house foreign terrorism suspects. With 166 inmates currently in custody, that amounts to an annual cost of $903,614 per prisoner.
By comparison, super-maximum security prisons in the United States spend about $60,000 to $70,000 at most to house their inmates, analysts say. And the average cost across all federal prisons is about $30,000, they say.
The high cost was just one reason Obama cited when he returned this week to an unfulfilled promise to close the prison and said he would try again. Obama also said that the prison, set up under his Republican predecessor George W. Bush and long the target of criticism by rights groups and foreign governments, is a stain on the reputation of the United States....
The cost argument could be a potent weapon at a time of running budget battles between Obama and the Republican-controlled House of Representatives, and of across-the-board federal spending cuts that kicked in in March. The "sequestration" as it is known, is due to cut some $109 billion in spending up to the end of September and has cut government services small and large.
Just one inmate from Guantanamo, for example, is equivalent to the cost of 12 weeks of White House tours for the public - a treasured tradition that the Secret Service says costs $74,000 a week and that has been axed under sequestration.
A single inmate is also the equivalent of keeping open the control tower at the Northwest Arkansas Regional Airport for 45 months. That control tower, another victim of cuts, costs $20,000 per month to run.
The $900,000 also matches the funding for nearly seven states to help serve home delivered meals to the elderly. Sequestration has cost Meals on Wheels a median shortfall of $129,497 per state, the organization says.
I do not blog much about GTMO because the inmates held there have not be duly convicted and sentenced. That said, I think it is notable just how high the price tag seems to be on keeping that facility in operation.
Friday, May 03, 2013
"What I Saw at San Quentin"The title of this post is the title of this interesting new post at Crime & Consequences by Michael Rushford, President of Criminal Justice Legal Foundation. The post describes at great length a recent tour of what was California's first prison. Here are excerpts from the start and end of a fascinating read:
While I have been through some other state prisons, San Quentin was different. It was opened in 1852 as the state's first prison. It was located on a 432 acre point facing the San Francisco Bay because, at the time, the city was overrun with crime. Although it's obvious that the prison has been expanded over the years, walking through the main gate into the actual prison compound is like stepping back in time. The gate itself is original and large enough to accommodate a stagecoach. Inside the compound is a grassy quad flanked by the gate wall, a cell block, a hospital and a building housing several small churches. In addition to death row, which is isolated from the rest of the prison, roughly 4,500 inmates are housed inside the main prison.
The cell block we saw was identical to those portrayed in the movies: long rows of 5 x 9 foot cells, each with sliding bar doors, a metal toilet, sink, and two bunks, stacked five stories high. Inmates who are able to get along with their colleagues share cells in the largest cell block. There is a fairly large building called the adjustment center for inmates, including about 200 condemned murderers who are either too violent or too vulnerable to mix with other inmates. Richard Allan Davis, for example, lives in the adjustment center because the other inmates hate child killers....
Anyone who believes that murderers in California are living comfortably on death row should take this tour. It is a miserable existence. I now understand why we receive letters from death row inmates asking for our help in expediting their executions. Legislators, bleeding hearts and judges who think that they are helping these murderers by preventing executions are hopelessly naive. Those who think we should improve their living conditions are missing a critical point: these murderers have been sentenced to death for murdering innocent people. Keeping them alive any longer than necessary to confirm their guilt is an injustice.
Finally, San Quentin is a very old, dilapidated facility sitting on 442 acres of the most valuable real estate in California. It should be torn down and the property sold off. Some fraction of the profit should be used to built a modern prison in a less expensive part of California.
Thursday, May 02, 2013
Alabama mass shooter wants (but cannot get) a death sentence rather than LWOPA helpful readers sent me this fascinating article from Alabama, which is headlined "Man charged in Copper Top shooting writes in letter to judge that he is sorry and had asked for death penalty." Here are the fascinating details:
Nathan Wilkins, the man charged with injuring 18 people in a July 2012 shooting at The Copper Top bar in downtown Tuscaloosa, told a judge in a letter that he is sorry and that he has asked for a death sentence.
In the letter dated April 22 sent to Tuscaloosa County Circuit Judge Brad Almond and filed Tuesday morning, Wilkins wrote that he has issues with his court-appointed attorney. "I know I can't get a fair trial in Tuscaloosa," the letter states. "It is obvious by your actions so far in making me keep the same lawyer that you appointed. I have written you telling you the problems with him but instead of taking care of it you chose to ignore it. Why would I want a lawyer representing me who has me already convicted and sentenced me to life in his mind."
In a letter sent to the judge in December, Wilkins asked for a new attorney and told the judge that he had no memory of the night. He also wrote that he had been prescribed medication that made him suicidal.
Wilkins, 45, was indicted in August on 68 counts in connection with a July rampage that included a late July 16 shooting in the Indian Lake subdivision in Northport and an early July 17 shooting at the Copper Top in downtown Tuscaloosa's Temerson Square. He is accused of using an assault-style rifle in the shootings and of setting fire to his former employer's property in Brookwood and in Northport.
Wilkins turned himself in on July 17 at a FedEx store in Jasper. He remains in the Tuscaloosa County Jail on $2 million bond. A trial has been scheduled to begin Monday.
"I had asked Ted Sexton and my lawyer to give me the death penalty but instead they want to put me in prison for life because it wasn't bad enough because no one died," the letter states. "Why send me to prison for life and support me with taxpayer money. That used to make me so mad when I wasn't in jail and paying taxes and had to support people like that. You can ask anyone who knows me that this is what I believe. So I am taking this out of your hands and sentencing myself to death."
Attempted murder is not included with capital offenses under Alabama law. "I cannot bear to be away from my family especially my grandkids for life," the letter states. "I would like to tell all involved I am sorry. I wish this incident would bring attention to prescription sleeping pills, especially Ambien, before it ruins someone elses (sic) life! I want to say I'm sorry to everyone involved. Thank you for giving me no other choice."
This story raises so many interesting and challenging issues, I am not sure where to start. Just discussion purposes, let me ask three different questions of three different groups of potential readers:
1. For strong death penalty opponents: "Do you think this defendant, who seems all but certain to get an LWOP sentence for his many crimes, should be allowed/enabled to commit suicide if and when he gets an LWOP sentence?"
2. For strong death penalty proponents: "Doesn't this case demonstrate that there are some defendants who truly view an LWOP sentence to be worse than death?"
3. For everyone else interested in a constitutional debate: "Do you think that, because (a) death has been deemed by the US Supreme Court to be a "cruel and unusual" punishment for Nathan Wilkins's crimes and (b) he really seems to view LWOP a punishment worse than death, is there at least a reasonable basis for his lawyers to claim that LWOP for Nathan Wilkins should also be considered "cruel and unusual" because their client (genuinely?) views such a punishment to be crueler than death?"
Wednesday, May 01, 2013
DOJ review confirms government waste and mismanagement of BOP's handling of compassionate releasePublic policy groups have long criticized the many terrible ways in with the federal Bureau of Prisons (BOP) administered the authority Congress provided it for the early release of prisoners in dire condition. Most notably, late last year, as discussed here, Human Rights Watch and Families Against Mandatory Minimums today released a major report criticizing the poor administration of the federal compassionate release program. Today, this big new report from the Justice Department's Office of Inspector General confirmed what critics have long said. Here are key excerpts from the final portion of the report:
We concluded that an effectively managed compassionate release program would result in cost savings for the BOP, as well as assist the BOP in managing its continually growing inmate population and the resulting capacity challenges it is facing. We further found that such a program would likely have a relatively low rate of recidivism. However, we found that the existing BOP compassionate release program is poorly managed and that its inconsistent and ad hoc implementation has likely resulted in potentially eligible inmates not being considered for release. It has also likely resulted in terminally ill inmates dying before their requests for compassionate release were decided. Problems with the program’s management are concentrated in four areas.
First, the BOP’s regulations and Program Statement do not establish appropriate medical and non-medical criteria for compassionate release consideration and do not adequately define “extraordinary and compelling” circumstances that might warrant release....
Second, the BOP has failed to put in place timeliness standards at each step of the review process....
Third, the BOP does not have procedures to inform inmates about the compassionate release program....
Fourth, the BOP does not have a system to track all compassionate release requests, the timeliness of the review process, or whether decisions made by institution and regional office staff are consistent with each other or with BOP policy....
The BOP also does not track the time it takes to process requests and has no formal or standard means of determining the date the review process begins. Consequently, the BOP cannot monitor its process effectively. This is especially problematic for inmates with terminal medical conditions, and we found that 13 percent of inmates whose requests had been approved for compassionate release by a Warden and Regional Director died before a decision was made by the BOP Director....
Further, the BOP does not maintain cost data associated with the custody and treatment of inmates who may be eligible for compassionate release. Despite this lack of data, the BOP reported to Congress that it could save $3.2 million by expanding the compassionate release program....
Finally, we found the rate of recidivism for inmates approved and released through the existing compassionate release program to be low compared with the overall rate for federal inmates released into the community.
Some recent related posts:
- New report assails (lack of) compassionate release in federal system
- NY Times editorial laments lack of compassionate release
Sunday, April 28, 2013
Lawyers and prisoners using Yelp to review lock-upsAs reported in this new Washington Post piece, headlined "With few other outlets, inmates review prisons on Yelp," one can find more than restaurant reviews on-line these days. Here are excerpts from this article:
Lawyer Robert Miller has visited five prisons and 17 jails in his lifetime, but he has reviewed only three of them on Yelp. One he found “average,” with inexperienced and power-hungry officers. Another he faulted for its “kind of very firmly rude staff.” His most recent review, a January critique of Theo Lacy jail in Orange County, Calif., lauds the cleanliness, urban setting and “very nice” deputies. Miller gave it five out of five stars.
“I started reviewing because I needed something to kill time while I waited to see clients,” said Miller, who has worked as a private defense lawyer in Southern California for 18 years. “But I think the reviews are actually helpful for bail bondsmen, attorneys, family members — a lot of people, actually.”...
Because Yelp does not break out statistics by business type, it’s difficult to tell how many jails and prisons have been reviewed in the 19 countries covered by the site. (Yelp declined to comment for this article, aside from noting that users may review any business with a physical address, as long as the review follows site guidelines.) In the Washington region, six incarceration facilities have earned reviews, including two in 2013....
Accuracy is, of course, a major concern with Yelp reviews of any type, and an especially big one when reviewers make serious complaints. In June 2012, a reviewer alleged that five guards at the Men’s Central Jail in Los Angeles beat him for no reason and laughed about it afterward. Other reviews of the jail mention rat infestations, violence and racial tensions.
“Every allegation we get, we investigate,” said Stephen Whitmore, spokesman for Los Angeles County Sheriff Lee Baca. He notes that the jail has also its share of four- and five-star reviews. “But this Yelp phenomenon I find curious,” Whitmore said. “Jail isn’t a restaurant. It isn’t seeing a movie. You’re doing time for committing a crime.”
Bad reviews aren’t unique to Los Angeles. In New York, one user wrote that officers pressure inmates going through drug withdrawal to lie about their symptoms, presumably so the jail doesn’t have to provide treatment....
Although some look upon the reviews as weird novelties — “like Lonely Planet for career criminals,” one Buzzfeed post put it — they could reflect serious flaws in the U.S. prison system. Because of a 1996 law called the Prison Litigation Reform Act, inmates cannot sue over prison conditions until they have “exhausted” administrative procedures, and they can ask for only limited changes to prison policy. Just a few states, such as Texas and New York, have outside inspectors who watch for abuse within the system....
David Fathi, director of the National Prison Project of the American Civil Liberties Union ... said his group receives 300 to 400 written complaints each month about prison conditions. That number does not include the phone calls and e-mails the project receives or the complaints addressed to the ACLU’s state branches. Almost none of those grievances make it to court. So Yelp reviews, Fathi said, could prove to be pretty powerful. “Prisons and jails are closed institutions, and the lack of outside scrutiny and oversight sometimes facilitates mistreatment and abuse,” Fathi said. “So anything that increases public awareness of prison conditions is a positive thing.”
Not all of those reviews are accurate, of course, and many may come from pranksters who don’t care about the travails of prison life. The reviews also won’t necessarily prompt systemic change — it’s not like a detention center relies on good Yelp reviews for business the way some restaurants and small businesses do.
But Miller, the California lawyer, said the reviews can help educate professionals who work with the prison system and inform the public about the conditions inmates face. “It helps elevate consciousness of the problems and brings transparency and oversight to a system that isn’t used to being transparent,” Miller said. “That’s a very valuable tool.”
Friday, April 26, 2013
A data-based exploration of prison growth and the drug war
I am very pleased to see that John Pfaff is guest-blogging over at PrawfsBlawg about the modern growth in US prison populations and the role that the drug war may or may not have played in this story. Here are his first three posts in a series that is a must-read for a number of reasons:
- Hunting Zombies: The War on Drugs and Prison Growth
- Setting the Stage: The Explosion in Prison Populations
- Some More Evidence Against the War on Drugs Hypothesis
Wednesday, April 24, 2013
"Four female prison guards impregnated by same inmate"The headline of this post is arguably the most sensational facet of a huge federal corruption prosecution this week emerging from the jail system in Baltimore, Maryland. The basics are reported in this story:
Four female prison guards in Baltimore fell pregnant to the same inmate, according to authorities who have busted a major smuggling gang inside the jail system. Two of the women tattooed the inmate's name on their bodies and he showered three of
The four women are among 25 people who face federal charges, including 13 female prison guards, CBS Baltimore reports. The scheme involved smuggling drugs and cell phones into Baltimore City Detention Center.
U.S. Attorney Rod Rosenstein said the 25 defendants participated in running the activities of the Black Guerilla Family - a prison and street gang - from behind bars in Baltimore City. Thirteen female corrections officers, seven inmates and five alleged co-conspirators are charged with racketeering, money laundering and possession with the intent to distribute....
The affidavit says the corrections officers helped members of the notorious Black Guerilla Family gang smuggle cell phones, marijuana, prescription pills and cigarettes into the jail to sell to other inmates and make thousands of dollars. "This situation enabled BGF members to continue to run their criminal enterprise within the jail and the streets of Baltimore," said Steve Vogt, FBI....
The indictment says the ringleader, inmate Tavon White, reportedly made $16,000 in one month from the smuggled contraband.
Four corrections officers-Jennifer Owens, Katera Stevenson, Chania Brooks and Tiffany Linder, who are also facing charges -- allegedly fell pregnant to White while he was behind bars. Charging documents reveal Owens had "Tavon" tattooed on her neck and Stevenson had "Tavon" tattooed on her wrist....
Secretary of Public Safety & Correctional Services Gary Maynard said he was taking full responsibility. "It becomes embarrassing for me when we expose ourselves and we participate in an investigation that's going to show what's going on in our jails that I am not proud of," he said.
This press release from the Maryland U.S. Attorney's office concerning the indictments has a little extra fun with the most prurient aspects of this sordid story in its heading: "Correctional Officers Smuggled in Cell Phones and Drugs and Were 'in Bed' with BGF Inmates." And though this story is hardly a laughing matter, I hope readers will forgive me after a few weeks of very serious news if I encourage commentors to perhaps add some additional levity by suggesting alternative headlines for this notable new federal corruption case.
"You Can't Get There from Here: Elderly Prisoners, Prison Downsizing, and the Insufficiency of Cost Cutting Advocacy"
The title of this post is the title of this notable new piece by Elizabeth Rapaport now available via SSRN. Here is the abstract:
The prison population in the United States has peaked and begun to recede, reversing more than 30 years of growth. Mass incarceration is yielding to the imperative to reduce state budgets in recessionary times. As states turn away from the extravagant use of prison for nonviolent offenders, the percentage of the prison population serving long and life sentences for violent felonies will increase. By 2009 one in eleven prisoners were lifers. These are the prisoners growing old and dying in prison.
High cost elderly prisoners who have aged out of crime should be good candidates for cost saving measures such as compassionate release, parole, and release through community corrections programs. This impression does not withstand scrutiny. Two thirds of elderly prisoners have been convicted of violent crimes; one quarter has been convicted of sexual offenses. Programs to reduce prison costs have indeed gained ground but they are designed for a very different population. The offender who is well positioned to avoid or leave prison as a result of cost savings policies is a young nonviolent offender; The majority of states have succeeded in reducing prison admissions by diverting nonviolent offenders to drug and other treatment programs and reducing prison terms for low level offenders. A threshold condition for diversion or release is low risk of violent offending. Implicitly these low risk nonviolent offenders are also promoted as criminals who can rehabilitate and reintegrate into the community. The majority of compassionate release programs either exclude prisoners who were convicted of violent crimes or require that the prisoner be incapacitated to the extent that he or she poses no threat to public safety. Yet even prisoners who meet these standards are rarely released.
Arguing for cost cutting release of the fast growing legion of elderly prisoners is much less easily buttressed with soothing claims about the happy coincidence of lower costs and public safety. Even if, and it is big if, exaggerated fear of further predations were successfully addressed, the advocate of cost cutting reform cannot answer demands for retribution without venturing beyond the discourse of the “tough on crime” era. For thirty years the political class has shunned the previously commonly invoked criminal justice values of second chances -- the redemptive values of rehabilitation, reintegration, and mercy. The sickest and oldest prisoners are largely beyond second chances for productive citizenship. Whether released or incarcerated their care will be borne by the public purse. Elder care is not free.
This Article focuses on the subclass of old prisoners who are beyond any prospect for productive citizenship because of age and ill health and are in need of elder care. The argument of this Article is that in order to capture the savings that release (and efficient carceral care) of elderly prisoners would bring, politicians and policy advocates will have to relearn to speak the language of humane criminal justice values, prominently mercy.
April 24, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, April 21, 2013
Do recent California prison reforms demonstrate Plata ruling was a success or a failure?There was lots of debate, both within the Justices' opinions and in the outside punditry, about whether and why the Supreme Court was wise or foolish to uphold in its 2011 Plata ruling a federal judicial panel's "prisoner release order" based on California's dismal record in running its overcrowded prisons. Now, nearly two years later, this article from today's New York Times prompts the question in the title of this post. The article is headlined "California Tries to Regain Fuller Control of Prisons," and here are excerpts:
On the sprawling grounds of the state prison, built here in 1955, a new three-story, $24 million treatment center for mentally ill inmates stands out because of its freshly painted walls and rooftop solar panels. Inside, on a recent morning, psychologists and social workers were leading group therapy sessions for inmates in large, brightly lighted rooms while individual meetings were being held in smaller offices.
By all accounts, the opening of the new wing in January, as well as that of a crisis center and a housing unit for more troubled inmates in recent years, has improved the quality of mental health care in this prison, known formally as the California Medical Facility. In the past, the group sessions were held in a housing unit’s common room and left those not participating locked in their cells, unable to socialize or watch television....
California is arguing that the building here, just west of Sacramento, part of the $1.2 billion spent on improving mental health care in the last three years, is an example of why the state should be allowed to regain fuller control over its prisons, the nation’s largest correctional system. But federal judges recently issued stinging criticisms of the state, denying its bid for greater authority in two related cases and affirming the continuing need for federal overseers to achieve a level of care required by the United States Constitution.
Gov. Jerry Brown, who has been pressing strongly for the end of federal oversight since the beginning of the year, has said that the state will appeal the two decisions. Meanwhile, Mr. Brown and other state officials have been given until early May to submit a plan to further reduce overcrowding in the state prisons or be held in contempt of court....
The judges and lawyers representing inmates said that the improvements had been made only because of federal oversight. “We know they’ve needed treatment space for 20 years,” Michael Bien, a lawyer who has long represented inmates, said of the new building here. “It’s just an example of yes, they did it — great. They did it only under compulsion of the law. It wasn’t voluntary.”
Mr. Bien was involved in a class-action lawsuit regarding mental health care filed by inmates against the state more than two decades ago. In 1995, a federal court appointed a special master to carry out reforms in mental health care, which it found inadequate at the time and in violation of the Constitution. The court ruled this month that the federal overseer was necessary to remedy continuing constitutional violations behind problems like the high suicide rate.
The state is arguing that mental health care meets or exceeds constitutional standards. It is spending $400 million a year on mental health care in its prisons, and a dozen new facilities valued at a total of $1.2 billion have been built in the past three years or are under construction....
A special three-judge federal court also denied the state’s motion to overturn an order to reduce prison overcrowding from its current level of 150 percent of capacity to 137.5 percent by the end of this year.
In 2009, the court found that adequate mental and medical health care could not be delivered because of overcrowding — which reached more than 200 percent in 2006 — and ordered the state to reduce the prison population gradually. The Supreme Court upheld the order in 2011 after the state appealed.
California has already cut its prison population by 25,000 inmates to about 120,000 by sending low-level offenders to county jails in a policy known as realignment. Mr. Beard said that sending 10,000 more inmates to county jails — the number required to reach the court-mandated goal of 137.5 percent of capacity — would overwhelm the counties. Some county officials, forced to release inmates early from increasingly packed jails, have blamed realignment for a rise in break-ins and auto thefts.
Barry Krisberg, a law professor at the University of California, Berkeley, and an expert on California’s prisons who testified in the 2011 Supreme Court case, said it was unlikely the state would succeed in its appeals because of that 2011 ruling. “He can’t win these cases,” Mr. Krisberg said, referring to the governor. “In my view, it’s nearly impossible to go to the same Supreme Court and within a year ask them the same question.”
Instead of looking only to realignment, Mr. Krisberg said, the state must consider the politically difficult option of shortening sentences for good behavior, a policy that previous governors have carried out without an increase in crime. “If they were to restore good-time credits for the people who are doing everything we’re asking of them in prison, they could get these numbers,” he said, referring to the 137.5 percent goal.
Thursday, April 18, 2013
"What if NY invested more in dairy farms and less in prisons?"The question in the title of this post is the headline on this story from a public radio station in upstate New York, which is part of "a series on current issues and the future of dairy in the North Country." (In addition to liking the milky pictures that go with this story, I like having new proof that even the price of ice cream and cow-tipping have a link to sentencing law and policy.) Here is how the text with the piece starts:
There are more than a dozen state and Federal prisons in the [North Country] region, along with eleven county jails. That makes corrections work one of our top employers.
One activist group based in Brooklyn thinks these two issues -- prison jobs and the dairy industry -- should be linked in people's minds, as we think about ways to grow the rural economy. That group's called "Milk Not Jails."...This whole project, Milk Not Jails, is the brainchild of Lauren Melodia, who lives in Brooklyn and has spent the better part of a decade trying to connect upstate and downstate communities around the question of how their economies interact. She says she was working in an urban neighborhood trying to raise awareness about food issues, and prisons just kept coming up.
"The community that I was trying to bring fresh food into had very little access to fresh produce," Melodia says. "And oftentimes we would take bus trips up to the farm where we received our produce from. And a lot of the people on the bus would say that they'd never been upstate except to visit someone in prison."
Melodia also spent a year in Ogdensburg and Canton, trying to make connections in the North Country that would begin to open a new conversation about how prisons shape lives. "I was in Ogdensburg at the same time that Governor David Paterson was considering closing Ogdensburg Correctional Facility. And people refer to the Ogdensburg and Riverview correctional facilities as the last factories in town. That's absolutely real for people."
Lauren Melodia ... thinks New York state should invest more money in dairy farms and agriculture -- and less money locking up prison inmates, especially low-level and non-violent offenders. "There's all this spin-off economic activity that goes hand-in-hand with agriculture. You have processing, you have distribution, you have tourism. We can't say the same thing for prisons. They don't have that kind of economic growth opportunity."...
"The guards' union and the politicans who represent them oppose major reforms that could make the system work better and prevent people from going to prison in the first place. Why? They're worried that it could create job loss in their community." That message is a tough sell in communities, like Ogendsburg, that rely on corrections jobs.
Melodia says Milk Not Jails met yesterday in Albany with the staff of North Country Senator Patty Ritchie. Melodia says lawmakers are open to the discussion of boosting dairy and agriculture. But talk of closing more prisons? That doesn't go over so well.
"I understand that the crisis at this point is that these are the last factories in town and we can't get rid of them," she says. "What we're trying to do is build some kind of long-term planning in the communities where these prisons are housed so there's not that dependency."
"Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"The title if this post is the title of this paper by Patrice Fulcher recently posted on SSRN. Here is the abstract:
The Prison Industrial Complex (“PIC”) is a profiteering system fueled by the economic interests of private corporations, federal and state correctional institutions, and politicians. The PIC grew from ground fertilized by an increase in the U.S. prison population united with an economically depressed market, stretched budgets, and the ineffective allocation of government resources. The role of the federal, state, and local governments in the PIC has been to allocate resources. This is the first of a series of articles exploring issues surrounding the PIC, including (1) prison privatization, (2) outsourcing the labor of prisoners for profit, and (3) constitutional misinterpretations.
The U.S. prison population increased in the 1980s, in part, because of harsh drug and sentencing laws and the racial profiling of Blacks. When faced with the problem of managing additional inmates, U.S. correctional institutions looked to the promise of private prison companies to house and control inmates at reduced costs. The result was the privatization of prisons, private companies handling the management of federal and state inmates.
This Article addresses how the privatization of prisons helped to grow the PIC and the two ways in which governments’ expenditure of funds to private prison companies amount to an inefficient allocation of resources: (1) it creates an incentive to increase the prison population, which led to a monopoly and manipulation of the market by Correction Corporation of America (“CCA”) and The GEO Group, Inc. (“GEO”), the top two private prison companies, and (2) it supports the use of Blacks as property, which in turn prevents Blacks from participating in future economic activities because they are labeled as felons.
This Article first discusses how the increased prison population led to the allocation of government resources to prison privatization. Second, it establishes how funding private prison companies helped to develop the PIC into an economic, for-profit “hustle” for the involved partners and stakeholders, herein after referred to as players. Third, it makes it easy to see the “flow” of inequities stemming from the “hustle” and how they are the result of inefficient allocation of government resources. Finally, in order to stop the “hustle” and change the “flow” of inequities, this Article calls for a moratorium on the privatization of U.S. prisons, the end of private prison companies, and a change in drug sentencing laws in order to reduce the prison population.
Some related posts about private prisons:
- "Billions Behind Bars: Inside America's Prison Industry"
- ACLU of Ohio releases new report assailing Governor's plan to sell state prisons
- Might private prisons actually cost taxpayers more than public prisons?
- "Who Benefits When A Private Prison Comes To Town?"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
- Private prison fares poorly in audit by Ohio officials
Wednesday, April 17, 2013
"Ending Mass Incarceration: Charting a New Justice Reinvestment"The title of this post is the title of a notable new "paper co-authored by a group of researchers, analysts, and advocates dedicated to ending mass incarceration in the U.S." The full 36-page report is available at this link, and this webpage provides an overview of the contents. Here are some of the basics:
Justice Strategies Director, Judith Greene, has co-authored Ending Mass Incarceration: Charting A New Justice Reinvestment, with Vanita Gupta and Kara Dansky of the American Civil Liberties Union, Malcolm Young of Northwestern University Law School's Bluhm Legal Clinic, James Austin of the JFA Institute, Eric Cadora of the Justice Mapping Center, Todd Clear of Rutgers University, Marc Mauer and Nicole Porter of The Sentencing Project, and Susan Tucker, the former Director of The After Prison Initiative at the Open Society Foundations.
The paper traces the history and examines the impact of Justice Reinvestment (JR) since its inception a decade ago to its current incarnation as a national initiative.
The primary conclusion is that while JR has served to soften the ground for criminal justice reform, it has not achieved significant reductions in the correctional populations or costs in most of the states in which it has been conducted. This is in contrast to its original intent: to reduce corrections populations and budgets and reinvest in high incarceration communities to make them safer, stronger, and more equitable.
As originally conceived, Justice Reinvestment called for the reduction of corrections populations and budgets to generate savings that would be reinvested in high incarceration communities to improve public safety, and reverse the destructive effects of mass incarceration and harsh punishment visited disproportionately upon individuals and communities of color.
As implemented through legislation in 18 states, the Justice Reinvestment Initiative has helped stabilize corrections populations and budgets, educate state legislators and public officials about the expense of correctional system, and persuade them to undertake reforms, but it runs the risk of institutionalizing mass incarceration at current levels.
April 17, 2013 in Pot Prohibition Issues, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack
Monday, April 15, 2013
Second Circuit finds Cameron Douglas's above-guideline sentence substantively reasonable
The latest (and perhaps final) significant chapter in the federal sentencing saga concerning Cameron Douglas was finished this morning when a Second Circuit panel rejected his claim that his second federal sentence was substantively unreasonableness in US v. Douglas, No. 11-5384 (2d Cir. April 15, 2013) (available here). In addition to thinking the Second Circuit panel came to the right basic outcome here, I am especially pleased that both the majority opinion and the concurrence in Douglas provide an extended discussion of sentencing practice and policy as part of the continuation of a (still nascent, but-not-yet-dormant) post-Booker common law of reasonableness review.
As I have explained in a number of prior posts (which are liked below), I have found the Cameron Douglas story of crime and punishment consistently worthy of attention — in part because the involvement of celebrities at his federal sentencings and in part because of the many legal and social issues raised by the seemingly lenient sentence Michael Douglas's drug-addicted son was given at his first sentencing and the seemingly harsh sentence he got the second time around (some backstory here). The Second Circuit's Douglas opinion tells this story effectively (though leaving out the celebrity part), and then provide a lot of analytical meat for any and all federal sentencing fans to chew on. I highly recommend reading the Douglas opinions in full, though I will here spotlight two notable passages from the opinions concerning the relationship between addiction and drug sentencing.
At the very end of the majority opinion (per Judge Gerard Lynch), we get these notable comments from the Second Circuit panel:
Finally, we take note of the argument, made by Douglas and supported by amici, that punitive sanctions are a less appropriate response to criminal acts by persons suffering from addiction than drug treatment. It may well be that the nation would be better served by a medical approach to treating and preventing addiction than by a criminal-justice-based “war on drugs.” See, e.g., Heather Schoenfeld, The War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. Gender Race & Just. 315 (2012); Juan R. Torruella, Déjà Vu: A Federal Judge Revisits the War on Drugs, or Life in a Balloon, 20 B.U. Pub. Int. L.J. 167 (2011). But Congress has made a different choice, and this case is not a vehicle for deciding questions of comprehensive drug policy. For so long as the sale and possession of narcotics remain crimes, courts must struggle with the difficult task of sentencing those who commit such crimes.
We do not hold that district courts may not approach cases of addicted defendants who seek treatment and show promise of changing their lives with compassion and with due consideration of the relative costs and effectiveness of treatment versus long prison sentences. Indeed, that is precisely how the district court approached Douglas’s original sentence in this case. Sentencing courts are not required, however, to turn a blind eye to behavior that can reasonably be understood as demonstrating that a particular defendant has shown himself to be a poor candidate for treatment or for leniency. District courts are in the best position to decide whether the defendant before the court is likely to respond to drug treatment or has spurned chances at rehabilitation and persisted in a life of “reckless, criminal, dangerous, destructive, [and] deceitful conduct.” We therefore cannot say that the district court’s assessment of the sentence appropriate for Douglas was unreasonable.
And, at the very start of the concurring opinion by (my former boss) Judge Guido Calabresi, we get these notable comments:
I join the majority opinion in full because I agree that it is not substantively unreasonable for a district judge, after having given a defendant a number of breaks and second chances, to impose a sentence like this one. I write separately to emphasize my view that a term of imprisonment of between 5 and 10 years ought not to be seen merely as a punishment. It also must represent an expression of some faith that the convict might be rehabilitated within that time. Prisons should have a duty, therefore, not just to keep the convict locked away, but to enhance his ability to become a responsible citizen. When the convict’s crime involves drug addiction, a necessary part of this rehabilitation is enforced, medically monitored withdrawal. Congress has passed a law criminalizing possession of drugs by an inmate in federal prison, and there is no question that Douglas broke that law and manifested, as the majority opinion shows, a high level of culpability. There is also no question in my mind, however, that the incidence of this crime also demonstrates a significant level of culpability on the part of the jailing institution. When a prison cannot protect an addicted inmate from the capacity to relapse, it has failed to perform an essential obligation – an obligation that it owes both to the inmate and to the society that the inmate will someday rejoin.
Prior posts concerning Cameron Douglas's federal sentencings:
- Does having celebrity "a-listers" ask for leniency help a defendant's cause at sentencing?
- Cameron Douglas sentenced to five years for federal drug offense
- "Did Michael Douglas' Son Get Celeb Treatment With Reduced Sentence?"
- Should we care that Cameron Douglas, though sentenced to 5 years in prison, will likely be out in 2012?
- Stiff sentence given to Cameron Douglas for drug possession while in prison
- Celebrity federal drug sentencing appeal prompts doctors' brief urging treatment over punishment
- Celebrity witness for high-profile (and interesting) federal sentencing appeal
April 15, 2013 in Booker in the Circuits, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Interesting coverage of media coverage of crime and prison punishments
Thanks to this post at How Appealing, I discovered that the the March / April 2013 issue of Columbia Journalism Review has a set of articles concerning the ways in which the media covers (and has trouble covering) some modern crime and punishment stories. I am very pleased to see the Columbia Journalism Review provide this significant coverage of aspects and limits of modern media coverage, not only because I sorta/kinda play the role of a new media journalist on-line through this blog, but also because these articles are part of a broader issue devoted to the modern media's less-than-inspiring "coverage of race, class, and social mobility."
As regular readers will not be surprised to hear from me, I think issues of crime and punishment are among the most central and least examined aspects of our enduring struggles with the array of dynamic issues relating to race, class, and social mobility in the United States. Thus, I am not only generally happy to see coverage of media coverage of crime and prison punishments, but I am particularly pleased that this issue of the Columbia Journalism Review links its article to the broader concerns of "coverage of race, class, and social mobility."
With that wordy preview, here are links to the set of pieces appearing in the the March / April 2013 issue of Columbia Journalism Review that all look like must-reads:
"Dark shadows: In Washington, murder turns out to be color-coded" by Clay Shirky