Thursday, August 02, 2012

Audit spotlights clear costs and uncertain benefits of educating Utah inmates

I would never urge anyone to seek a prison stay just to get the benefits of free room, board and medical care all provided at taxpayer expense.  Still, this local story discussing an audit of the monies spent on inmate education in Utah provides a stark reminder that one way to get access to significant taxpayer-funded government benefits is to be incarcerated.  The story is headlined "Educating Utah inmates costs more than other adults, with payoff uncertain," and here is how it starts:

Providing inmates with educational services is viewed as one way to keep them from returning to prison, but a newly released audit says the Utah State Office of Education is spending more money per student providing academic services to inmates than it does on traditional adult education clients and has little data to show how academic achievement boosts job prospects or reduces recidivism.

The audit also found some inmates take hundreds of hours of classes with little to show for it, while others continue in educational programs even after earning a diploma or certificate — resources auditors said could be used to help other inmates or funneled into other programs.

In one program, an inmate student achieved only one level gain after more than 1,000 "contact" hours. Another inmate student who received a diploma, notching a high GPA, had more than 3,000 contact hours but still tested at a first grade level in math, which allowed the inmate to continue receiving educational services.

Better monitoring is needed, an auditor told the Legislative Audit Subcommittee on Wednesday. "We question the value of a diploma awarded with a high GPA when the student continues to function at such low levels," auditors said in the report. "Programs should not be designed to take longer, simply because an inmate has more time available. Not only is there a disparity of contact hours between jail, prison, and traditional adult education, but some inmate programs have what appears to be an excessive number of contact hours."

Lawmakers asked auditors to look at the effectiveness and efficiency of high school education programs — adult high school education, adult basic education and English language classes — offered at Utah’s jails and prisons. They also asked the Utah Department of Corrections to prepare a report on the impact of education programs on recidivism, a study that is still in process.

Last year, 21 local school districts, under direction of the Utah State Office of Education, provided educational services to some 5,268 inmates at 23 jails and both state prison locations. The amount spent on the programs in 2011: $5.4 million, money that came primarily from the USOE’s adult education budget and the Utah Department of Corrections’ education fund.

August 2, 2012 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Wednesday, August 01, 2012

Commentary links drug war realities to latest DOJ letter to US Sentencing Commission

Phillip Smith writing at Drug War Chronicle has this notable new commentary reacting t0 the Justice Department's recent letter to the US Sentencing Commission (discussed here).  The commentary is headlined "DOJ to Sentencing Commission: Fewer Prisoners, Please," and here are excerpts:

In a congressionally mandated annual report to the US Sentencing Commission on the operation of federal sentencing guidelines, the US Department of Justice (DOJ) said continuing increases in the federal prison populations and spending are "unsustainable" and called on the commission to work with other stakeholders to reduce federal corrections costs.  But the report failed to address the single largest factor driving the growth in the federal prison population: the huge increase in the number of federal prisoners doing time for drug offenses.

According to data compiled by Drug War Facts and based on Bureau of Justice Statistics reports, in 1980, there were some 19,000 federal prisoners, with some 4,500 having a drug offense as their most serious offense.  By 2010, the number of federal prisoners had increased tenfold to more than 190,000, and a whopping 97,000 were doing time for drug offenses, also a tenfold increase.  The percentage of drug offenders increased during that period from roughly 25% of all federal prisoners in 1980 to 51.7% in 2010....

With budgets flat, criminal justice spending has to get more bang for the buck, the DOJ letter said. "We must ensure that our federal sentencing and corrections system is strong but smart; credible, productive and just; and budgetarily sound," the letter said.  "But maximizing public safety can be achieved without maximizing prison spending.  The federal prison population — and prison expenditures — have been increasing for years. In this period of austerity, these increases are incompatible with a balanced crime policy and are unsustainable....

It is clear what is driving the growth in the federal prison population and the federal corrections budget: drug war prisoners.  While the Obama administration DOJ is to be credited with taking some steps that move in the direction of reducing the number of prisoners and the corrections budget, such as supporting the partial reform of the crack/powder cocaine sentencing disparity, its failure to directly address the consequences of policies of mass imprisonment of drug offenders means that it is missing the elephant in the room.

While spotlighting a critical reality about the real budget/prison costs of the federal drug war in light of lean budget times, this commentary relies on some old data.  According to the BOP weekly population report (available here), there are now 218,186 federal prisoners, which likely means there are surely now many more than 100,000 defendants doing federal time (and getting food, housing and medical care at federal taxpayer expense) for drug offenses.

August 1, 2012 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, July 31, 2012

Chief Justice Roberts says DNA collection from arrestees will soon get SCOTUS review (and perhaps approval)

101020113910_dna-apAs reported in this New York Times article, Chief Justice John Roberts yesterday officially granted a stay of a Maryland decision blocking state officials from collecting DNA samples from people charged with certain felonies. The short opinion explaining the ruling by Chief Justice Roberts includes these notable passages:

Maryland’s DNA Collection Act, Md. Pub. Saf. Code Ann. §2–501 et seq. (Lexis 2011), authorizes law enforcement officials to collect DNA samples from individuals charged with but not yet convicted of certain crimes, mainly violent crimes and first-degree burglary.  In 2009, police arrested Alonzo Jay King, Jr., for first-degree assault.  When personnel at the booking facility collected his DNA, they found it matched DNA evidence from a rape committed in 2003. Relying on the match, the State charged and successfully convicted King of, among other things, first-degree rape.  A divided Maryland Court of Appeals overturned King’s conviction, holding the collection of his DNA violated the Fourth Amendment because his expectation of privacy outweighed the State’s interests.  425 Md. 550, 42 A.3d 549 (2012).  Maryland now applies for a stay of that judgment pending this Court’s disposition of its petition for a writ of certiorari....

Maryland’s decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland’s DNA Collection Act....

The split implicates an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government.... Indeed, the decision below has direct effects beyond Maryland: Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other States and the Federal Government.  These factors make it reasonably probable that the Court will grant certiorari to resolve the split on the question presented.  In addition, given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.

And, in somewhat related news, Ted Gest in this post at The Crime Report provides a notable report on another official's views on DNA collection practices, which gets started this way:

New Mexico Gov. Susana Martinez, who served as a prosecutor for 25 years, gave a spirited pitch to criminal justice officials from around the U.S. yesterday to push for collecting DNA samples from everyone arrested for a felony.

New Mexico has been a leader in state passage of "Katie's Laws," named for Katie Sepich, who was murdered in New Mexico in 2003. Sepich's assailant, Gabriel Avila, was charged with the crime three years later --- although he had been arrested in the meantime for other offenses, and a Sepich DNA sample was available.

Martinez, who prosecuted the case, said he could have been charged with the crime much sooner had the law been in effect. She spoke to the National Criminal Justice Association's annual national forum, which is being held near Albuquerque, N.M.

New Mexico passed a law in 2006 requiring those arrested for violent felonies to yield DNA samples. The law was expanded last year to collect samples from all accused felons.

July 31, 2012 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Monday, July 30, 2012

Ralph Nader urges Obama and Romney to discuss "the prison-industrial complex"

I have a wide array of mixed feelings about Ralph Nader as a politician and policy advocate, but I have no reservations endorsing his advocacy for more political discourse about mass incarceration and the drug war.  This Nader advocacy appears in this lengthy new opinion piece headlined "Obama/Romney: Start debating the prison-industrial complex."  Here are excerpts:

Ever visit a major prison?  The vast majority of Americans have not, despite our country having by far a higher incarceration rate per capita than China or Iran.  Out of sight is out of mind.

Imagine the benefits of the average taxpayer touring a prison. The lucrative prison-industrial complex would definitely not like public exposure of their daily operations. Prison CEOs have no problem with a full house of non-violent inmates caught with possession of some street drugs (not alcohol or tobacco)....

Indeed, for the giant Corrections Corporation of America (CCA), times are booming. CCA builds their prisons or buys or leases public prisons from financially strapped governments. Barron’s financial weekly can always be expected to give us the Wall Street perspective. In a recent article titled “Ready to Bust Out,” writer Jonathan R. Laing is bullish on CCA stock....

Mr. Laing writes that CCA has cost advantages over the public-prison sector, paying lower non-union wages and using more automated technology.  Besides, the company is a tough bargainer when it buys or operates public prisons.  One CCA condition is that the facility must have 1,000 beds, can’t be more than 25 years old, and get this, “the contract must guarantee a 90 percent occupancy rate.”  A guarantee backed by taxpayers no less, unless, that is, the clause works to put more prisoners in jail for longer sentences.

The Barron’s article adds that CCA is counting on “the old standby of recidivism to keep prison head counts growing, filling its empty beds.” To the impoverished rural communities where these prisons are located, it’s about needed jobs....

The same perverse incentives apply to the self-defeating trillion-dollar war on drugs (see http://www.drugpolicy.org/).  History has demonstrated that driving addictions into illegal undergrounds creates vicious underworld crimes.  In Mexico, the so-called drug cartel is getting close to destroying local governments in many regions.  In the U.S., half a million people are behind bars for nonviolent drug offenses, the vast majority arrested for mere possession, not production or sale. That is nearly one in four of all prisoners. There are twenty million marijuana arrests every year in the U.S.!

Drug addictions are treated as crimes instead of as health problems, which we do with tobacco and alcohol addictions.  Gross racial disparities persists, starting with black teenagers having to go to jail for a drug offense six times more often than a comparable white youth, both with prior clean records (http://www.nyclu.org/content/commission-must-reform-inhumane-drug-laws)....

Right/Left convergence is emerging.  Last April, for instance, David Keene, former Chair of the American Conservative Union and Grover Norquist, president of Americans for Tax Reform, joined with the NAACP and other liberals to highlight escalating levels of prison spending and its impact on our nation’s children and poorly performing schools. Connecticut spends $40,000 a year to imprison a juvenile offender compared to less than $12,000 a year to educate a young person.

Other similar convergences over hugely disparate sentencing as with crack and cocaine are forming, making both economic and humane arguments. More young black men are locked up than are in college, according to the Justice Roundtable.

Still, there hasn’t been enough reform pressure even to pass outgoing U.S. Senator Jim Webb’s legislation simply to create a National Criminal Justice Commission Act. This legislation is now stuck in Senatorial limbo.  Start up the prison tours.  Have some led by articulate, former convicts who are pushing to reform our cruel, costly and ineffective prison system.  It is so easy to do much better, if we want to.

July 30, 2012 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, July 26, 2012

Every Greek prisoner now has to get out of the fancy new pool

As reported in this AP article, "Greece’s largest maximum security prison won’t get to keep its waterfall-adorned, barbecue-equipped pool." Here is why:

The Justice Ministry on Tuesday ordered the destruction of a 7.4-meter (24-foot) long pool in the yard of Korydallos prison’s psychiatric wing, saying the structure was built without permission and did not comply with health and safety standards.

The pool’s existence at the jail near Athens was reported by a newspaper Sunday. The ministry said the structure, reportedly built last year, includes a small rock waterfall and a poolside barbecue installation.

Greece’s Prison Officers Association said the pool was built using money the group raised and was restricted to staff and inmates at the psychiatric wing. Korydallos houses some 2,300 inmates, with about 300 receiving some form of psychiatric care.  The association expressed disappointment over the order to destroy the pool, which it called part of an attempt "to change things for the better — viewing inmates at those facilities as human beings and not numbers."

Overcrowding at Greek prisons has worsened since the start of the country’s major financial crisis in late 2009, according to the Justice Ministry and the prison officers association, due to a spike in violent crime and prosecutions for tax-related offenses.

In addition to finding this story comparatively intriguing and also amusing, I think it is notable that the Greek equivalent of our prison guards' union expressed disappointment over the destruction of this fancy prison facility.

July 26, 2012 in Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, July 23, 2012

Notable crime and sentencing reform talk in latest speech from AAG Lanny Breuer

A few helpful readers made sure I did not miss this prepared speech delivered today by US Asistant Attorney General Lanny Breuer Speaks to the National District Attorneys Association Summer Conference. Here are just some of the scrime-and-punishment highlights from a speech that should be read in full.:

This morning, I submitted, along with a colleague, the Criminal Division’s annual report to the U.S. Sentencing Commission.   In that report, we argue that recent reductions in public safety spending mean that the remarkable public safety achievements of the last 20 years are threatened unless reforms are instituted to make our public safety expenditures smarter and more productive. In short, we are at a crossroads....

According to data from the Bureau of Justice Statistics, state and local criminal justice spending rose from approximately $32.6 billion in 1982 to $186.2 billion in 2006. Federal criminal justice spending increased even more dramatically, from approximately $4.2 billion in 1982 to $41 billion in 2006.

The net result of these reforms and investments has been a steep decline in violent crime across the country -- essentially the opposite of what occurred in the 1960s, ’70s, and ’80s.  According to the Bureau of Justice Statistics, approximately 10 million Americans were victims of violent crime in 1991, whereas less than half that many -- approximately 3.8 million -- were victims of violent crime in 2010....  The steep decline in violent crime over the past 20 years is a law enforcement success story worth dwelling on and worth celebrating.

The fiscal climate of the past several years, however, has led to significant cuts in state and local government spending, including on criminal justice initiatives.  At the Justice Department, our budget has remained essentially flat.... At the same time that federal criminal justice spending has stayed roughly flat, the number of federal prisoners has increased, and our prison and detention spending has increased along with it. This has resulted in prison and detention spending crowding out other criminal justice investments, including aid to state and local law enforcement and spending on prevention and intervention programs....

Our collective challenge, in my view, is to figure out how to control prison spending without compromising public safety, so that we can afford to fund other measures that are proven to lower crime rates, including prevention and intervention programs, and initiatives designed to assist prisoners reentering society with finding employment after they get out.  Indeed, I believe that our ability to increase the productivity of public safety spending of all kinds will largely determine whether we build on the reductions in crime that we’ve experienced since the early 1990s, or whether we see setbacks.

<P>There are no easy answers. Particularly in a time of declining public safety budgets, striking the right balance between prison and detention spending and other criminal justice spending requires thoughtful solutions.

The Justice Department recently put forward two legislative proposals that aim to maximize public safety while also controlling prison costs.

The first of these, the Federal Prisoner Recidivism Reduction Programming Enhancement Act, would allow prisoners who successfully participate in programs that have been demonstrated to reduce recidivism to earn an incentive of up to 60 days per year of credit toward completion of their sentence....

In addition, we have put forward the Federal Prisoner Good Conduct Time Act, which would increase the amount of time a federal prison inmate could earn off his or her sentence, for good behavior, by approximately seven days per year -- from roughly 47 days to 54 days....

These are just two proposals. But, as we told the Sentencing Commission this morning, federal sentencing policy should be reviewed systematically and on a crime-by-crime basis through the lens of public safety productivity.  Looked at through such a lens, it is clear that there are many areas of sentencing policy that can and should be improved.

July 23, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Federal prisoner claims need for medical care prompted escape

As reported in this AP article, a federal "inmate with Mafia ties is asking a judge to have a heart, claiming his own ticker is in such bad shape, he just had to escape from federal custody to seek help."  Here is more:

Derek A. Capozzi, convicted in a gangster-related killing in Massachusetts, said he kicked out the back of a U.S. Marshals transport van in April 2010 because he can't get the medical care he needs while behind bars.

Prosecutors said when he was on the lam for several days, he didn't seek any treatment. And when he was captured in a Dairy Queen parking lot in central Kentucky, marshals said, he had a different excuse for escape: "I'm pulling 53 years."

Capozzi is to appear before U.S. District Judge Joseph M. Hood on Monday in Lexington on a federal escape charge.  Capozzi is in prison for his role in the 1996 killing and dismemberment of 19-year-old Aislin Silva.  She was ordered killed by the leader of the Mafia-affiliated gang that Capozzi belonged to, so she wouldn't be able to cooperate with federal investigators, prosecutors said.

Capozzi claimed in court documents that several doctors have determined he needs to have his heart repaired after he was stabbed in the chest in 2008 while in a federal prison in California. "In the time leading up to his escape and subsequent to his apprehension, (Capozzi) experienced irregular heartbeats and restrictions of breath," his attorney, Steven Milner, wrote in court documents. Capozzi contends he has repeatedly been assured his heart problem will be addressed, but each time he is transferred to another state before anything is done.

The judge has not been persuaded by Capozzi's medical pleas, ruling the inmate may not argue that he tried to escape to seek medical attention....  Motions filed Friday indicate Capozzi intends to plead guilty but reserve the right to appeal the judge's rejection of his medical necessity defense.

Assistant U.S. Attorney Patrick Malloy has said Capozzi didn't seek medical help after his escape. "He hid out in a dentist's office," Malloy wrote in court documents.

July 23, 2012 in Offense Characteristics, Prisons and prisoners | Permalink | Comments (21) | TrackBack

Thursday, July 19, 2012

New Sentencing Project report highlights for-profit detention in the federal system

The Sentencing Project has just published this new report, titled "Dollars and Detainees: The Growth of For-Profit Detention." Here is how the report is previewed in an e-mail I received about it:

The report details how harsher immigration enforcement and legislation led to a 59 percent increase in the number of detainees being held by the federal government between 2002 and 2011. It specifically examines how Immigration and Customs Enforcement (ICE) and the U.S. Marshals Service (USMS) have increasingly relied on private companies to detain these individuals, as well as the complex network of facilities that house federal detainees, and the failings of private detention. Among the report's major findings:

  • Between 2002 and 2011 the number of privately held ICE detainees increased by 208 percent, while the number of USMS detainees held in private facilities grew by 355 percent.
  • In 2011, 45 percent of ICE detainees and 30 percent of USMS detainees were held by private companies.
  • Federal detainees are held in a complex network of facilities in which information on where individuals are being held, and by whom is often unavailable or incomplete.
  • The private detention industry is dominated by the same companies that are regularly criticized for their management of private prisons.
  • Concerns raised in the context of private prisons, including unsatisfactory levels of service, negative political and policy implications, and questionable economic effects, apply equally to private detention.

The full report, Dollars and Detainees: The Growth of For-Profit Detention, includes a list of the privately-operated facilities actively employed by ICE and USMS, as well as detailed graphs and data on the growth of private detention, and the lobbying activities of Corrections Corporation of America.

July 19, 2012 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Sunday, July 15, 2012

Record(?)-long sentence of 1,256 years(!) imposed on Colorado bank robber

As reported in this local article, headlined "Convicted bank robber gets 1,256 years in prison," a repeat offender in Colorado state court was given a sentence longer than any sentence I can ever recall.  Here are the details:

After serving part of a six-year sentence for a 2003 bank robbery, parolee Daryl Lamont Keener went right back to his old tricks, authorities say, joining an accomplice in eight more bank heists in Colorado Springs.  It’s unlikely there will be a repeat performance.

Keener, 31, was sentenced Friday to 1,256 years in prison -- a result of Colorado’s stiff sentencing for repeat criminals and one of the most severe penalties in El Paso County’s recent history.   “It’s shocking,” said Shimon Kohn, a defense attorney unaffiliated with the case.  “I’ve been practicing criminal law in this jurisdiction since 2000, and I’ve never heard of these kinds of numbers, ever.”...

Police described Keener as a “career criminal” in announcing his March 2011 arrest, and detailed terrifying scenes in which Keener and a second man took turns storming into banks and ordering people onto the floor at gunpoint.  The men were arrested after detectives linked them to a getaway car captured on tape by a surveillance camera as it fled a March 3, 2011....

Among Keener’s charges related to the spree were multiple counts alleging he is a “habitual offender” – a sentence enhancer with the potential to quadruple penalties. Under Colorado’s sentencing laws, the multiplier would apply to each named victim in every bank robbed by Keener.  Getting to a total in excess of 1,200 years, however, required Judge Prince to exercise his discretion to stack those sentences rather than rolling all eight robberies together for a single triple-digit sentence.

Unless Colorado has some automatic mechanism for reducing time served, as of this writing Daryl Lamont Keener's proejected release date is now the year 3286!  Or, to put a sentence of this number of years into a slightly different perspective, such a long sentence would be concluding now if an offender had gotten sentenced to this extreme term in the year 756.

July 15, 2012 in Offense Characteristics, Prisons and prisoners | Permalink | Comments (10) | TrackBack

Wednesday, July 11, 2012

Fascinating video documenting challenges of securing compassionate release for dying federal prisoner

Federal public defender Steve Sady has an extraordinary record of litigating effectively (if not always successfully) a number of lower-profile, but highly-important, federal sentencing issues related to how the Bureau of Prisons runs federal prisons and applies various federal statutes.  And now, thanks to this post at the Ninth Circuit Blog, I see that Steve Sady has created an extraordinary video which documents his work on the issue of compassionate release on behalf of one terminally ill federal prisoner.  The blog post is titled "Second Look Resentencing: The Human Costs Of The BOP’s Restrictive Implementation Of Compassionate Release," and here is the introduction to the video which I have embedded below:

Phillip Smith contacted our office because, even though he had been diagnosed with a terminal illness, the Bureau of Prisons refused to allow his sentencing judge to decide whether to grant a motion to reduce his sentence and let him die at home.  After about two weeks of litigation, the BOP agreed to file the motion, which the judge immediately signed.  After release, Phillip sat down with us to describe his experience with a system that failed to even alert his judge to his terminal illness until he had almost no time left. The video with Phillip's story in his own words is available here.  Phillip died a week after the interview.

Legal arguments are one thing; the practical and human costs are another. Phillip hoped that by putting a human face on the problem, things would change for the hundreds of prisoners whose sentencing judges never even know of the extraordinary and compelling circumstances that warrant a second look resentencing.

July 11, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, July 10, 2012

Distinct headlines with distinct stories on modern intersections between Bible and jail

BH03The picture reprinted here is an overhead view of the historic Eastern State Penitentiary, and here below are a few passages from a lengthy discussion of the famed prison's early history:

Eastern State Penitentiary broke sharply with the prisons of its day, abandoning corporal punishment and ill treatment. This massive new structure, opened in 1829, became one of the most expensive American buildings of its day and soon the most famous prison in the world.  The Penitentiary would not simply punish, but move the criminal toward spiritual reflection and change....

Eastern's seven earliest cellblocks may represent the first modern building in the United States.  The concept plan, by the British-born architect John Haviland, reveals the purity of the vision.  Seven cellblocks radiate from a central surveillance rotunda.  Haviland’s ambitious mechanical innovations placed each prisoner in his or her own private cell, centrally heated, with running water, a flush toilet, and a skylight.  Adjacent to the cell was a private outdoor exercise yard contained by a ten-foot wall.  This was in an age when the White House, with its new occupant Andrew Jackson, had no running water and was heated with coal-burning stoves.

In the vaulted, skylit cell, the prisoner had only the light from heaven, the word of God (the Bible) and honest work (shoemaking, weaving, and the like) to lead to penitence.  In striking contrast to the Gothic exterior, Haviland used the grand architectural vocabulary of churches on the interior.  He employed 30-foot, barrel vaulted hallways, tall arched windows, and skylights throughout.  He wrote of the Penitentiary as a forced monastery, a machine for reform.

The historic and intricate links between incarceration, religious commitments and the Bible are on my mind today because of these two very different recent stories reporting on two very different modern intersections of Bible study and imprisonment:

July 10, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, July 05, 2012

NY Times editorial on Miller puts Gideon cart before the Teague horse

I continue to be intrigued that so many commentators seem so quick to assume that all the juvenile murderers sentenced to mandatory LWOP long ago will be sure to get resentenced as a result of the Supreme Court's Miller ruling.  A high-profile example of commentary that appears to make this (harmful?) assumption comes from this New York Times editorial, which is headlined "A Moral Right to Counsel."   Here is the editorial in full, with commentary to follow:

About 2,000 juvenile offenders serving life sentences without parole can now seek new sentencing hearings to challenge their punishment.  The Supreme Court ruled last week that it is unconstitutional to impose such a sentence on a juvenile convicted of murder without an individualized finding that considers the defendant’s characteristics and the details of the crime.

But without capable lawyers to handle the hearings, the court’s humane ruling is unlikely to matter for those serving a mandatory life sentence received as a juvenile.

The constitutional right to counsel in criminal trials does not apply to these sentencing reviews because the offenders have already been convicted.  But they can’t initiate a review if they cannot afford a lawyer.  That’s why the federal government and the 28 states affected need to provide them with lawyers as a moral right.

And not just any lawyer.  The court said juveniles have a less developed sense of responsibility and should not necessarily get the same punishment as adults.  The hearings will require lawyers with training in psychology and human development to argue convincingly that an offender’s record supports reducing a life sentence — including what Justice Elena Kagan, in her majority opinion, called a juvenile offender’s “immaturity, recklessness, and impetuosity” at the time of the crime.

In addition, states must provide funds for expert witnesses to help the lawyers do their job, as is now required in the sentencing phase of death penalty cases, where mitigating factors are weighed.

Almost one-quarter of those serving mandatory life sentences have been in prison for 21 years or longer.  For them, Justice Kagan said, a state must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

In many cases, the offender’s young age and a history of being abused, for example, were so striking that judges said during sentencing that they were imposing mandatory life without parole because they had no choice.  States should ensure that these offenders receive new hearings and the assistance of effective counsel.

There are so many assertions in this editorial that are flat-out wrong or deeply misguided, I am not sure where to start.  To begin, as my post headline and introduction highlights, this editorial seems to assume that all long-ago sentenced juve murderers will get the benefit of the new procedural rule of Miller.  But, as I stressed in my very first Miller aftermath post here, states can (and will?) argue that Miller is inapplicable to final juve LWOP sentences imposed long ago because it is a new rule of criminal procedure that should not apply retroactively under Teague.

This editorial also seems misguided when it asserts that the Sixth Amendment right to counsel "does not apply to these sentencing reviews because the offenders have already been convicted."  It is true that there is no constitutional right to counsel for a habeas petition, but if/when a defendant were to secure a true, full trial court "resentencing" after Miller through a successful habeas petition, the Sixth Amendment right to counsel arguably would apply just as it does at an initial sentencing.  (Indigent federal defendants often get their sentences reversed on direct appeal in the federal system and I have never seen a claim that they lack a right to counsel at a true, full trial court "resentencing".)

This editorial also seems misguided when it asserts that mandatory LWOP sentenced defendants "can’t initiate a review if they cannot afford a lawyer."  These defendant surely can (and should) initiate a habeas petition pro se; a lawyer is not absolutely necessary here (or ever) to bring a habeas petition.  Though it is surely true that a high-quality lawyer will likely be better able to develop a stronger habeas claim (and make stronger points at any full resentencing), it is certainly not true that review cannot be initiated without a lawyer.

This editorial also seems misguided when it suggests that the mandatory LWOP sentenced defendants who have already "been in prison 21 years" or longer now must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."  In fact, even if these long-serving LWOPers get the benefit of Miller's new rule, they still can be constitutionally resentenced to LWOP and thus can still be sentenced to die in prison as long as that decision is made individually by a judge or jury bases on the specific case facts.

Last but certainly not least, this editorial also seems misguided when it suggests governments have a "moral" obligation to providing enough funding so that these juve murderers now get the best lawyers to help them argue for a second bite at the sentencing apple.  I think it would be very appropriate and valuable if the NY Times had asserted that all the highly (over?)paid corporate lawyers in NYC have a moral obligation to provide pro bono assistance to the roughly 2000 juvenile defendants who might be able to benefit from Miller.  (I suspect there are well over 2000 lawyers in NYC alone making a seven-figure salary, so a real pro-bono commitment for major law firms should mean every one of the juve defendants potential impacted by Miller could have a million-dollar lawyer.)

But with states now strapped to find taxpayer resources to help hungry kids and sick old people and so many other innocent persons struggling in this down economy, I find disconcerting the notion that there is moral obligation on states to take money away from other urgent priorities in order to (excessively) fund lawyers to help get these juve murderers another bite at the sentencing apple.  (Of course, I would be happy to bill in full for all my lawyering time to help out these defendants if and when any state steps up to the plate with a big pile of funding for lawyers as the New York Times says they should.)

July 5, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack

Monday, July 02, 2012

Widows and orphans win over prisons in Illinois budget

A great example of how prison spending can become a low priority once its opportunity costs become clear in a tight budget comes today from this state budget story out of Illinois, headlined "Illinois governor signs budget, vetoes prison funds." Here are the basics:

llinois Governor Pat Quinn said on Saturday he signed a $33.7 billion budget for fiscal 2013 after vetoing spending for prisons that he plans to close.   Quinn said public pensions, which lawmakers have so far failed to reform, will eat up $5.2 billion of the fiscal 2013 budget, compared to $1.8 billion in fiscal 2008....

The Democratic governor said he also planned to work with lawmakers later this year to reallocate the vetoed prison funding to the Department of Children and Family Services, which lawmakers cut by $50 million.  He said he was choosing vulnerable children over "outdated, half-full facilities."

Quinn said the new spending plan, which aims to save $82 million through the closure and consolidation of 57 state facilities, makes progress on fixing Illinois' ailing finances by cutting spending, paying bills and reforming Medicaid, the state and federally funded healthcare program for the poor.

I am not sure if anyone has ever tracked whether pension and health care expenditures reduce crime, but I am sure that wise investments in children (through education and other services for at-risk youths) can have a significant long-term public safety benefit.  Thus, IF Illinois ends up spending the prison monies saved on effective programming for kids, Gov Quinn has made a "smart on crime" budget call here.  (I have placed the if in the prior sentence in all caps, of course, because this is always a big if.)

July 2, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack

Wednesday, June 27, 2012

Questioning forceful (but suspect) claims by the varied Miller dissents: the Thomas/originalism methods

As previously explained here, in a series of posts I am trying to explain briefly what I see as a suspect judgment or assertion or conclusion at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basic questions here and here and here).  In the first post here, I questioned number-crunching in the Roberts/textualism dissent.  In this second post now, I question claims about LWOP as a method of punishment in what I am calling the Thomas/originalism dissent.

Justice Thomas' Miller dissent, which was joined only by Justice Scalia, rests on an originalism claim in this sentence:  "As I have previously explained, 'the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment — specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted.'  Graham (dissenting opinion)[FN 2]." The associated footnote 2 then says (cites omitted): "Neither the Court nor petitioners argue that petitioners’ sentences would have been among the modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.  Nor could they. Petitioners were 14 years old at the time they committed their crimes.  When the Bill of Rights was ratified, 14-year-oldswere subject to trial and punishment as adult offenders.  Further, mandatory death sentences were common at that time.  It is therefore implausible that a 14-year-old’s mandatory prison sentence — of any length, with or without parole — would have been viewed as cruel and unusual."

Though I am not deeply versed in Eighth Amendment originalism, I do know some reasonably contest that the Eighth Amendment was only "originally understood as prohibiting torturous methods of punishment."  But even if one fully accepts Justice Thomas' claim that the Eighth Amendment is only to be viewed as a restriction on punishment methods, I do not find it "implausible" to contend that those who enacted the Eighth Amendment in the late 18th century (and/or those who enacted the Fourteenth Amendment in the mid 19th Century) would view an LWOP prison term as "akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted."

A critical assumption built into the (suspect) logic of Justice Thomas' reasoning in footnote 2 is that, because the death penalty was not considered a cruel and unusual method of punishment for teens at the time the Bill of Rights was adopted, surely then must the seemingly lesser punishment method of prison not have been considered cruel and unusual.  But the Eighth Amendment surely was never meant or understood to support the claim that because death is a constitutional method of punishment everything short of death and/or leading up to death is also constitutional.  Many infamous forms of torture punishments around during the colonial period (such as thumbscrews, ducking stools, and the rack) were often not expected or intended to cause death, and yet all seem to agree that these methods of punishment would violated the Eighth Amendment even from an originalist perspective.  In addition, originalists seem also to agree that severe physical punishments designed to cause a painful "lingering death" in the process of completing an execution (such as the breaking wheel or drawing and quartering) were modes of punishment being barred by the Eighth Amendment's prohibition on cruel and unusual punishments.

Of course, being locked in a prison cage is surely not as physically painful a method as thumbscrews or the rack, especially over a short period of time.  But prison as the deprivation of liberty over time is surely a distinct method of punishment, and an LWOP prison term lasting many decades is surely much more physically and mentally taxing than, say, being subjected for a few days to thumbscrews or waterboarding.  (Indeed, I would wager many relatively young offender serving an LWOP would agree to enduring thumbscrews or waterboarding for a few days in order to get a real chance for an early release.)  In other words, though a day in prison is surely a less torturous method of punishment than a day on the rack, I am not sure that necessarily means that an LWOP prison term lasting many decades is a less torturous method of punishment than a day on the rack.

Moreover, bringing back in the Framers' mindset, in this context I often think of Patrick Henry's famed quote of "Give me liberty or give me death" and President Lincoln's famed description of America as a nation "conceived in liberty."  Against that backdrop, I think one might fairly conclude that many Framers would have viewed a LWOP prison term's permanent deprivation of human liberty to be a method of punishment (much?) worse than death.  Indeed, what truly makes an LWOP sentence so severe and extreme is that it is arguably just a form of "lingering death" because deprivation of any chance at parole ensures that an offender will forever linger in prison (sometimes with only slightly more liberty than someone left on a rack if always kept in solitary confinement) until he eventually dies.  (The fact that prison was concevied and designed to be soley a method of rehabilitative punishment around the time of enactment of the 14th Amendment add to my view that an LWOP prison term might very well have been viewed as both cruel and unusual to many Americans throughout much of American history.)

My point here is decidedly not that I think an originalist approach to the Eighth Amendment is ideal or provides a clear jurisprudence concerning when an LWOP sentence might and might not be constitutionally permissible.  Rather, as in all my posts in this series on the Miller dissents, I just want to flag the reality that the originalist claim that only some methods of punishment are unconstitutional does not necessarily and obviously, as Justice Thomas seeks to suggest, produce the conclusion that the LWOP sentences at issue in Miller were constitutional.  Indeed, because liberty-deprivation through confinement in prisons (and especially the LWOP sentence) are really a very modern mode/technology of punishment wholly unknown to the Framers, I think trying to figure out what the Framers would have thought about LWOP prison terms is a bit like trying to figure out what the Framers would have thought about the internet: one's personal views about the new technology will necessarily color one's judgment as to what the Framers' would have thought.

Related post in this series:

June 27, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack

Lots of new interesting and diverse prison headlines and stories

A quick Google news search on the term prison has brought up this morning a whole host of notable stories. In no special order, here are some of the headlines and links to stories that caught my eye:

June 27, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Friday, June 22, 2012

Jerry Sandusky found guilty on 45 counts

and now seems all but certain to get a functional life sentence. My understanding is that he faces a 60-year minimum prison term based on certain counts of conviction, and he was taken immediately into custody following the reading of the verdict.

UPDATE: This AP article, headlined "What's next for Jerry Sandusky after the trial?," provides a road map concerning the legal process still to come. Here are how the piece begins:

The jury took less than two days to find Jerry Sandusky guilty of 45 of 48 counts of child sexual abuse, but the judge will need substantially more time to decide his punishment.

Judge John Cleland ordered a pre-sentencing report, which will take anywhere from one to two months to complete. During that time, Sandusky will be examined by the state Sexual Offenders Assessment Board to decide if he should be treated as a sexually violent predator, and prosecutors could ask the judge for a hearing.

The judge determines whether someone is a sexually violent predator — it carries stiffer reporting and treatment requirements once someone is out of prison — and can use information from the board's investigation in a sentencing decision.

If he's sentenced to state prison — which appears to be certain in this case — then Sandusky will be transferred to Camp Hill, in south-central Pennsylvania, which has 3,000 to 4,000 inmates, about 1,000 of whom are held temporarily for classification.

June 22, 2012 in Celebrity sentencings, Offense Characteristics, Prisons and prisoners, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (39) | TrackBack

Wednesday, June 20, 2012

"Can America Reduce its Prison Population?"

The title of this post is the headline of this effective new piece by Ted Gest at The Crime Report, which is itself a report on an effective new speech by Joan Petersilia.  Here are highlights:

The current trend of prison downsizing in the United States may not succeed unless experts can advise policy makers promptly about which non-prison programs for convicts change offender behavior, says criminologist Joan Petersilia of Stanford Law School.

In a keynote address to the National Institute of Justice's annual conference Tuesday in Arlington VA, Petersilia warned that it is not inevitable that the current movement among states to reduce prison populations and close penal institutions will continue. "We have been here before," Petersilia said.

She recalled that many states adopted intensive probation supervision in the 1980s and 1990s as an alternative to prison, but research results on its effectiveness were disappointing. "We've got to stop overselling community corrections -- and under-delivering," Petersilia said.

She worries that, as in previous decades, prison population totals will moderate or recede in the short run in large part as a way to save government money -- but when the economy improves, political leaders will start filling prisons again when they have no proof that non-prison programs worked.

The test case for prison reform is Petersilia's home state of California, where the evolving prisoner "realignment" plan is the "biggest criminal justice experiment ever conducted in America," Petersilia says.

Even many Californians are not aware that in the last 18 months, the state's prison population has dropped from 172,000 to 135,000, and the number of parolees has plummeted even more sharply, from 132,000 to 60,000.

While this sounds promising to corrections reformers, Petersilia says it is happening so fast that officials and offenders alike are just beginning to understand the impact.  Many former inmates complain that they have been taken off the parole rolls so quickly that they are losing government benefits that are reserved for parolees.  Some are being asked to get back on parole as a result, she says.

In addition, many prosecutors and law enforcement officials oppose aspects of realignment, contending that it will lead to rising crime rates.  One big problem is that government agencies are not pouring sufficient funding into ex-inmate rehabilitation.

Petersilia's Stanford Criminal Justice Center, which is receiving a federal grant to evaluate the California prisoner realignment program of Gov. Jerry Brown, is building a database of how the state's 58 counties are spending the $2 billion they are getting from the state to perform corrections-sytem functions that the state formerly did.  So far, only 10 percent of that money is going to treatment programs, with the bulk going to sheriff's office, local jails, probations staff, and court services.  That bodes ill for keeping ex-inmates from returning to crime, Petersilia says....

Petersilia believes that the public will back expenditures of public funds on projects that truly help former prisoners get their lives back together.  She has some hope for "social impact bonds," also known as "pay for success," which are contracts with government agencies in which entrepreneurs invest in projects that produce improved social outcomes and save public money.  Initial interest in the concept has been seen in the juvenile justice area, Petersilia says.

If these and other non-prison alternatives can't be proved to work, she said, the "incredibly huge" constituencies for the status quo, including labor unions for prison employees and rural communities that depend on income from prisons, will prevail.

June 20, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, June 19, 2012

Lots of notable (and overdue) questioning of extreme solitary confinement

I am intrigued and pleased to see more attention now finally being given to the severe depravation and related horrors of extreme isolation in prisons.  Two big new developments here are:

Here are highlights of both developments via the NYT report:

The hearing, held before the Subcommittee on the Constitution, Civil Rights and Human Rights, represents the first time lawmakers on Capitol Hill have taken up the issue of solitary confinement, a form of imprisonment that many human rights advocates believe violates the Eighth Amendment’s prohibition of “cruel and unusual punishment” and that has drawn increasing scrutiny in recent months in the United States and internationally.

The practice, which is widespread in American prisons, has also been the target of a growing number of lawsuits, including a class-action suit filed on Monday on behalf of mentally ill inmates held in solitary at ADX, the federal super-maximum-security prison in Florence, Colo. Last month, civil rights lawyers representing prisoners held for more than 10 years in isolation at Pelican Bay State Prison in California filed suit in federal court, arguing that solitary confinement is unconstitutional.

Senator Richard J. Durbin of Illinois, the assistant majority leader, began the hearing — which he said had the support of both Democratic and Republican committee members — by noting that more prisoners are held in isolation in the United States than in any other democracy and that about half of all prison suicides occur among inmates in solitary confinement.

“We can have a just society, and we can be humane in the process,” Mr. Durbin said. “We can punish wrongdoers, and they should be punished under our system of justice, but we don’t have to cross that line.” He said he was working on legislation to encourage changes in the way solitary confinement is used.

With more than 250 people packed into two rooms, the hearing was “one of the best attended of the year,” Mr. Durbin said, an indication “of the fact that the time is due for us to have this conversation about where we’re going.” Over the course of two hours, the senators heard testimony about the effects of solitary confinement and the steps taken in Mississippi and several other states to reduce the number of prisoners kept in isolation.

But the hearing also included a testy exchange between Mr. Durbin and Charles E. Samuels Jr., director of the Federal Bureau of Prisons, who defended the use of solitary confinement for inmates who pose a threat to the safety of staff members or other inmates.

“Do you believe you could live in a box like that 23 hours a day, a person who goes in normal, and it wouldn’t have any negative impact on you?” Mr. Durbin asked, pointing to a life-size replica of a solitary confinement cell that had been set up in the hearing room.

“Our objective is always to have the individual to freely be in the general population,” Mr. Samuels responded.

“I’m trying to zero in on a specific question,” Mr. Durbin said, adding, “Do you believe, based on your life experience in this business, that that is going to have a negative impact on an individual?”

“I would say I don’t believe it is the preferred option,” Mr. Samuels conceded, “and that there would be some concerns with prolonged confinement.”

Some recent and older related posts:

June 19, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, June 17, 2012

"As Escapees Stream Out, a Penal Business Thrives"

The title of this post is the headline of this notable front-page New York Times article, which is the first of a three-part series of articles concerning New Jersey’s system of large halfway houses.  Here is how the very-lengthy first piece gets started:

After serving more than a year behind bars in New Jersey for assaulting a former girlfriend, David Goodell was transferred in 2010 to a sprawling halfway house in Newark. One night, Mr. Goodell escaped, but no one in authority paid much notice.  He headed straight for the suburbs, for another young woman who had spurned him, and he killed her, the police said.

The state sent Rafael Miranda, incarcerated on drug and weapons charges, to a similar halfway house, and he also escaped.  He was finally arrested in 2010 after four months at large, when, prosecutors said, he shot a man dead on a Newark sidewalk — just three miles from his halfway house.

Valeria Parziale had 15 aliases and a history of drugs and burglary.  Nine days after she slipped out of a halfway house in Trenton in 2009, Ms. Parziale, using a folding knife, nearly severed a man’s ear in a liquor store.  She was arrested and charged with assault but not escape.  Prosecutors say they had no idea she was a fugitive.

After decades of tough criminal justice policies, states have been grappling with crowded prisons that are straining budgets.  In response to those pressures, New Jersey has become a leader in a national movement to save money by diverting inmates to a new kind of privately run halfway house.

At the heart of the system is a company with deep connections to politicians of both parties, most notably Gov. Chris Christie.  Many of these halfway houses are as big as prisons, with several hundred beds, and bear little resemblance to the neighborhood halfway houses of the past, where small groups of low-level offenders were sent to straighten up.

New Jersey officials have called these large facilities an innovative example of privatization and have promoted the approach all the way to the Obama White House.  Yet with little oversight, the state’s halfway houses have mutated into a shadow corrections network, where drugs, gang activity and violence, including sexual assaults, often go unchecked, according to a 10-month investigation by The New York Times.

Perhaps the most unsettling sign of the chaos within is inmates’ ease in getting out.  Since 2005, roughly 5,100 inmates have escaped from the state’s privately run halfway houses, including at least 1,300 in the 29 months since Governor Christie took office, according to an analysis by The Times.  Some inmates left through the back, side or emergency doors of halfway houses, or through smoking areas, state records show.  Others placed dummies in their beds as decoys, or fled while being returned to prison for violating halfway houses’ rules.  Many had permission to go on work-release programs but then did not return.

While these halfway houses often resemble traditional correctional institutions, they have much less security.  There are no correction officers, and workers are not allowed to restrain inmates who try to leave or to locate those who do not come back from work release, the most common form of escape.  The halfway houses’ only recourse is to alert the authorities. And so the inmates flee in a steady stream: 46 last September, 39 in October, 40 in November, 38 in December, state records show.

“The system is a mess,” said Thaddeus B. Caldwell, who spent four years tracking down halfway house escapees in New Jersey as a senior corrections investigator.  “No matter how many escaped, no matter how many were caught, no matter how many committed heinous acts while they were on the run, they still kept releasing more guys into the halfway houses, and it kept happening over and over again.”  By contrast, the state’s prisons had three escapes in 2010 and none in the first nine months of 2011, the last period for which the state gave figures.

UPDATE:  The second piece in this series is headlined "At a Halfway House, Bedlam Reigns," and is now available at this link.

June 17, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (16) | TrackBack

Thursday, June 14, 2012

"Scores in N.C. are legally 'innocent,' yet still imprisoned" due to federal gun laws

Med-topperThe folks at USA Today have this fascinating and fantastic front-page feature story concerning the many persons currently serving federal prison time for gun possession crimes that are no longer crimes in the wake of an important recent Fourth Circuit ruling.  The headline of this post is drawn from the headline of the USA Today piece, which is today's must-read and includes these excerpts:

A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.  Many of them don't even know they're innocent.

The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun.  The problem is that none of them had criminal records serious enough to make them felons under federal law.

Still, the Justice Department has not attempted to identify the men, has made no effort to notify them, and, in a few cases in which the men have come forward on their own, has argued in court that they should not be released.

Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime.  And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.

"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."

These cases are largely unknown outside the courthouses here, but they have raised difficult questions about what, if anything, the government owes to innocent people locked in prisons.   "It's been tough," said Ripley Rand, the U.S. attorney in Greensboro, N.C. "We've spent a lot of time talking about issues of fundamental fairness, and what is justice."

It's also unusual.  Wrongful conviction cases are seldom open-and-shut — usually they depend on DNA or other new evidence that undermines the government's case, but does not always prove someone is innocent.  Yet in the North Carolina gun cases, it turns out, there simply were no federal crimes.

Using state and federal court records, USA TODAY identified 23 other men who had been sent to federal prison for having a firearm despite criminal records too minor to make that a federal crime.  Nine of them remain in prison, serving sentences of up to 10 years; others are still serving federal probation.  The newspaper's review was limited to only a small fraction of cases from one of the three federal court districts in North Carolina.

Federal public defenders have so far identified at least 39 others in additional court districts, and are certain to find more. And prosecutors have already agreed to drop dozens of cases in which prisoners' convictions were not yet final.

Some of the prisoners USA TODAY contacted — and their lawyers — were stunned to find out that they were imprisoned for something that turned out not to be a federal crime. And their lawyers said they were troubled by the idea that innocence alone might not get them out. "If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't," said Debra Graves, an assistant federal public defender in Raleigh. "I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."...

Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.

To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.

Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.

For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.

Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.

The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.

No one yet knows precisely how many people were incorrectly convicted for having a gun, but the number could be significant. Rand, the U.S. attorney in Greensboro, estimated that more than a third of the gun cases his office prosecuted might be in question, either because the defendants didn't commit a federal crime at all by possessing a gun or because their sentences were calculated incorrectly.  "We're going to be addressing this for a while," he said.

The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.

But the next question has proved far harder to answer: What should the government do with the prisoners whose legal cases were already over?

Whether [these legally innocent defendants] can go home depends on federal laws that put strict limits on when and how people who have already been convicted of a crime can come back to court to plead their innocence.

Those laws let prisoners challenge their convictions if they uncover new evidence, or if the U.S. Supreme Court limits the sweep of a criminal law.  But none of the exceptions is a clear fit, meaning that, innocent or not, they may not be able to get into court at all. Federal courts have so far split on whether they can even hear the prisoners' cases.

Habeas corpus — the main legal tool for challenging unlawful detention — is currently ill-suited to such cases, said Nancy King, a Vanderbilt Law School professor who has studied the issue.  Habeas mainly safeguards people's constitutional right to a fair process, she said, and the problem is that "saying, 'I'm innocent' isn't, on its face, that type of constitutional claim." Still, she said, "innocent people should be able to get out of prison."

Prosecutors don't disagree, though most said they are not convinced the law allows it. Rand, the U.S. attorney in Greensboro, said he is "not aware of any procedural mechanism by which they can be afforded relief," though he said lawyers in his office "have not been pounding on the table" to keep the men in jail.

"No one wants anyone to spend time in jail who should not be there," said Thomas Walker, the U.S. attorney in Raleigh.  That's why he said prosecutors were quick to dismiss charges that were pending when the 4th Circuit ruled.  But cases in which convictions are already final "are in a totally different posture and require us to follow the existing statutory habeas law," he said.

But there's also an even more basic question: How would the prisoners even know?... [C]ourts have asked public defenders to seek them out. Those lawyers said the Justice Department should do more to help, because it has better information and more resources, an assertion prosecutors dispute.

"We're doing it with our hands tied," said Eric Placke, a federal public defender in Greensboro.  "I appreciate the compelling considerations they have to deal with.  But I do think in cases of actual innocence that it would be nice, to say the least, if they would be a little more proactive."  Placke and other public defenders said the reviews have been difficult because they often have limited access to records from the men's prior convictions, which has left them to hunt through files in courthouses across the state.

This story is sad, telling and remarkable for so many reasons, and it also seems to present a situation in which I might argue that some kind of habeas relief (or even federal clemency) is constitutionally required under the Fifth and/or Eighth Amendment. 

As a matter of substantive due process and/or cruel and unusual punishment, I do not think the federal government should be constitutionally permitted to keep someone imprisoned for an act that all now seem to agree was not a federal crime.  Though the statutory habeas rules might preclude relief, I think the continuing constitutional violation of on-going imprisonment of an innocent person demands some kind of immediate remedy.  Clemency is often mentioned by the Supreme Court and commentators as the fail-safe in these kinds of cases, and I hope that this important USA Today piece will at the very least make the folks in the executive branch take this constitutional problem even more seriously.

June 14, 2012 in Clemency and Pardons, Gun policy and sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (52) | TrackBack