Thursday, March 05, 2015
Should there be a presumptive incarceration "retirement age" to deal with the graying of prisons?
The question in the title of this post is my latest provocative (but very serious) thought about how to deal with the aging US prison population and the costs that incarcerating the elderly places on taxpayers. This thinking is prompted today by this new commentary from New York titled "Address the Graying of Prisons," which makes these points:
In New York, roughly 17 percent of the state's prison population is elderly. By 2030, the aging are expected to account for one third of the prison population. This large-scale incarceration of the elderly is enormously expensive. The United States spends over $16 billion annually on incarceration for individuals aged 50 and older — approximately double the cost of incarcerating a younger person.
But cost is not the only reason to address this crisis. Prisons were not designed to meet the basic needs of elderly individuals. Wheelchair inaccessibility and bunk beds make daily life difficult for people with mobility impairment; cognitive impairments and hearing loss exacerbate the challenges. When the health ward proves incapable of providing care, prisoners must be cared for at an outside hospital — with expensive around-the-clock guards.
Weigh this against the following fact: many "long-termers" are so old, sick, and frail that they pose virtually no safety risk to the public, with a national recidivism rate of only 4 percent for those over 65.
But, if we release more of the aging, as we should (of the 2,730 requests for compassionate release in New York between 1992-2002, only 381 were granted), we will need to address the dearth of community-based services to support them. The majority of those released after serving long sentences face fading social and family networks, a struggle to access health care and housing, and a lack of skills required to live independently. Nursing homes often won't take them, they are ineligible for Medicare while on parole, and many haven't paid enough into Social Security to receive benefits....
And the solution cannot be left only to those of us in criminal justice and corrections. We need the fields of gerontology, mental health treatment and senior services, working together to develop better solutions to the complex, multifaceted problems faced by aging formerly incarcerated individuals....
Here in New York, the Osborne Association will soon begin a pilot project to provide discharge planning and case management support for elders released to New York City. It is a start. But ultimately, any systemic and sustained change is contingent upon our collective willingness to deal with the looming crisis of a graying prison population in ways that reduce costs and improve lives while recognizing the inherent dignity of all people.
Given that the recidivism rate for those over 65 is so low (and I suspect especially lower for elderly prisoners without a long criminal record and not previously involved in serious sex or drug offenses), why not a national policy that any and all prisoners who have already served a certain number of years in prison and reach 65 ought to be presumptively considered for immediate parole? We could have data-driven risk-assessment instruments that help officials decide which older offenders are likely to pose no real safety risks at their old ages.
Among other benefits, a national "presumptive prison release at 65 scheme" could and would bring all jurisdictions in compliance with the Eighth Amendment rules set forth in Graham and Miller. In addition, both offenders and victims (and lawyers and judges) could/would all know that "life" sentences really mean serving for sure in prison until the offender is 65 at which point the offender would have a chance to seek release. And victims and others could plan and gear up to explain why they would oppose or support release at that date certain.
Especially in light of improving life expectancies, even for those imprisoned, I could image tweaking this proposal to set the presumptive prison retirement age at 70 or even 75. But, whatever the selected retirement age, I think our sentencing and prison systems might be improved by having some national presumptive norms about being "too old to jail." Indeed, just as many employers and employees believe it is not just or efficient to expect elderly individuals to work full-time until they drop dead, I suspect many prison officials and prisoners may believe it is not just or efficient to expect elderly individuals to remain imprisoned full-time until they drop dead.
March 5, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (16) | TrackBack
Wednesday, March 04, 2015
"Do the Koch Brothers Really Care About Criminal-Justice Reform?"
The title of this post is the headline of this notable new Atlantic piece by Molly Ball exploring what to make of the recent emphasis on criminal justice reform coming from politically-savvy billionaires. Here are excerpts:
Here is the thing the Koch brothers wish their critics understood: They just want to help people. "Everything we do is designed to help people improve their lives, whether you're talking about our business or our philanthropy," Mark Holden, the senior vice president and general counsel for Koch Industries, told me recently from his office in Wichita, where the multibillion-dollar international manufacturing conglomerate that Charles and David Koch inherited from their father is headquartered. "We think a free society, consistent with classical liberalism and individual liberties, is the key to success for everyone, and that's what drives a lot of our activities. And criminal-justice reform is good for all of us — the rich, the poor, and everyone else."
Though the Kochs are best known — and, to liberals, notorious — for the massive amounts of money they pour into politics, they have lately been calling attention to a less polarizing crusade: an attempt to address what they term "the overcriminalization of America." But not everyone is convinced that their efforts are quite so sincere.
Critics such as Robert Greenwald, director of the documentary Koch Brothers Exposed, suspect that the push to roll back the criminal code is really just the brothers' deregulatory agenda by another name. Indeed, Charles Koch, the company's chairman and CEO, has said he became interested in criminal-justice reform after a grand jury's 1995 indictment of a Koch refinery in Texas for 97 felony violations of environmental law. The company spent six years fighting the charges and eventually settled with the government for $10 million. Seen in this light, the criminal-justice pitch is just another attempt to manipulate the political process to advance the company's financial interests. That's the view of the liberal group American Bridge, which maintains the anti-Koch "Real Koch Facts" website. "Their own bottom line isn't just an important factor in their activity, it's the only thing," a spokesman for the group, Ben Ray, told me.
This is the question that has always swirled around the Kochs and their political efforts — the massive juggernaut of funding for conservative activism and candidates that critics dub the "Kochtopus": Are the brothers sincere ideologues dedicated to a libertarian vision for America? Or are they simply trying to tilt the political system to favor themselves and their companies?
Various tentacles of the Kochtopus have been involved in criminal-justice issues for about a decade; during that time, Charles Koch has quietly made contributions amounting to seven figures to the National Association of Criminal Defense Lawyers, money that has been used to provide lawyers for poor defendants. In 2011, the group honored Koch Industries with its annual Defender of Justice award. "They are in complete agreement with us on the fundamental policy — to make the Sixth Amendment a reality for every person in the country," said the association's executive director, Norman Reimer.
But the Kochs' advocacy has become more vocal in recent months, from public statements to new partnerships with such groups as Families Against Mandatory Minimums, the American Civil Liberties Union, and even the liberal Center for American Progress. The bid for more attention for the reform effort has received overwhelmingly positive attention, and coincides with a new PR push to show Koch Industries in a friendlier light, including a "We Are Koch" national television campaign that casts the company as heartland job creators — prompting the Kochs' critics to suspect a whitewash. After all, the investment in criminal-justice reform pales in comparison to the hundreds of millions the Kochs and their donor network have spent electing Republicans, many of whom don't share their views on civil liberties, Greenwald noted. "Certainly the scales tip against the impact of this, except from the press point of view," he said of the reform push.
And yet the Kochs have found many willing partners on the left for this effort, even among their erstwhile critics. In 2011, the civil-rights activist and former Obama administration adviser Van Jones cited the Kochs as emblematic of the "economic tyranny" plaguing America, declaring, "We will not live on a national plantation run by the Koch brothers." He appears in the Koch Brothers Exposed (tagline: "The 1% at its very worst"). But Jones has welcomed the Kochs' support for his new Cut50 project, which aims to halve the prison population over the next decade. At a recent panel discussion in Washington, he sat next to Holden and gave him a hug. Koch Industries has agreed to participate in an upcoming conference Jones is sponsoring on prison reform. When I asked Jones if it made him uncomfortable to team up with people he's previously depicted as villains, he responded, "When you've got more than 2 million people behind bars, I'll fight alongside anybody to change those numbers."...
To allies like Jones, it doesn't matter whether the Kochs are acting in good faith as long as their assistance stands to help the cause. In a neat illustration of the way this issue crosses partisan lines, the ACLU's campaign against mass incarceration is supported by both the Kochs and liberal financier George Soros's Open Society Foundation. Anthony Romero, the ACLU's executive director, acknowledged that some of the group's liberal members aren't thrilled about the Koch partnership: "There's always some unhappiness whenever you work with, quote-unquote, the enemy," he told me. But particularly with Republicans in control of Congress, he said, validation from the likes of the Kochs is the key to moving the issue forward. "Having the Koch brothers involved fundamentally changes the landscape. It gives legitimacy to this issue as a proper field of inquiry for Republican political leaders," he said.
The Kochs' activism fits within a broader trend on the right. Where once Republicans could reliably be stereotyped as tough-on-crime and Democrats as squishy bleeding hearts, recent years have seen many in the GOP question the old dogma of lock-'em-up, spurred by the party's increasingly libertarian bent and a desire to control spiraling prison costs. The 2012 Republican Party platform discarded its old plank endorsing the War on Drugs for one that emphasized prisoner reentry and rehabilitation; at the 2014 Conservative Political Action Conference, then-Texas Governor Rick Perry headlined a criminal justice panel at which he urged, "Shut prisons down. Save that money." As The Nation noted approvingly, Perry "has become one of the more aggressive prison reformers in the country," and he's been joined by Republican governors or former governors in Pennsylvania, Ohio, and New Jersey....
Holden, the Koch counsel, is a spike-haired Massachusetts native who once worked as a jail guard—seeing youths from his blue-collar neighborhood on the other side of the bars, he says, made a deep impression. He takes issue with the notion that the Kochs only want to pad their own pockets, pointing out that they take many positions "contrary to our short-term economic self-interest."
Some prior related posts on Koch family efforts in support of criminal justice reform:
- Koch Industries give "major grant" to NACDL to help with indigent defense
- Highlighting that George Soros and the Koch Brothers agree on the need for criminal justice reform
- Another sign of the modern sentencing times: notable sponsor for "How the Criminal Justice System Impacts Well-Being"
- ACLU to devote $50 million to political efforts to attack mass incarceration
- Big talk from Charles Koch about big (money) criminal justice reform efforts
- Imagining a SuperBowl party with the Koch brothers, Al Franken, Rob Portman, David Keene, Piper Kerman and Van Jones
- A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos
- "Inside The Koch Campaign To Reform Criminal Justice"
Tuesday, March 03, 2015
"Fishy SOX: Overcriminalization's New Harm Paradigm"
The title of this post is the title of this new paper by Todd Haugh available via SSRN. The piece argues that the recently decided Yates case is more consequential than the standard fish shory. Here is the abstract:
The harms of overcriminalization are usually thought of in a particular way—that the proliferation of criminal laws leads to increasing and inconsistent criminal enforcement and adjudication. For example, an offender commits an unethical or illegal act and, because of the overwhelming depth and breadth of the criminal law, becomes subject to too much prosecutorial discretion and faces disparate enforcement or punishment. But there is an additional, possibly more pernicious, harm of overcriminalization.
Drawing from the fields of criminology and behavioral ethics, this Article makes the case that overcriminalization actually increases the commission of criminal acts themselves, particularly by white collar offenders. This occurs because overcriminalization, by delegitimatizing the criminal law, fuels offender rationalizations. Rationalizations are part of the psychological process necessary for the commission of crime—they allow offenders to square their self-perception as “good people” with the illegal behavior they are contemplating, thereby allowing the behavior to go forward. Overcriminalization, then, is more than a post-act concern. It is inherently criminogenic because it facilitates some of the most prevalent and powerful rationalizations used by would-be offenders. Put simply, overcriminalization is fostering the very conduct it seeks to eliminate. This phenomenon is on display in the recently argued Supreme Court case Yates v. United States. Using Yates as a backdrop, this Article presents a new paradigm of overcriminalization and its harms.
Prez policing task force calls for a "National Crime and Justice Task Force"
As reported widely (see here and here), the task force appointed in December by President Obama to examine modern policing released a big report on Monday with lots of detailed reform recommendations. Everyone interested in policing issues should check out this lengthy (and reader-friendly) report, which is technically titled an "Interim Report of the President’s Task Force on 21st Century Policing."
Not surprisingly, there is not much discussion of sentencing and formal punishment issues in the report because such topics are mostly beyond the of a task force tasked with reviewing police practices. But, the introduction to the report highlighted the intersection of policing and other criminal justice issues, and includes these notable passages and recommendations:
Many excellent and specific suggestions emerged from these listening sessions on all facets of policing in the 21st century, but many questions arose as well. Paramount among them was how to bring unity of purpose and consensus on best practices to a nation with 18,000 separate law enforcement agencies and a strong history of a preference for local control of local issues. It became very clear that it is time for a comprehensive and multifaceted examination of all the interrelated parts of the criminal justice system and a focused investigation into how poverty, lack of education, mental health, and other social conditions cause or intersect with criminal behavior. We propose two overarching recommendations that will seek the answers to these questions.
0.1 OVERARCHING RECOMMENDATION: The President should support and provide funding for the creation of a National Crime and Justice Task Force to review and evaluate all components of the criminal justice system for the purpose of making recommendations to the country on comprehensive criminal justice reform....
0.2 OVERARCHING RECOMMENDATION: The President should promote programs that take a comprehensive and inclusive look at community based initiatives that address the core issues of poverty, education, health, and safety.
Friday, February 27, 2015
"A Second Chance: Education's Role in Reversing Mass Incarceration"
The title of this post is the headline of this notable new Atlantic commentary by Irwin Weathersby. Here is how it starts:
The American Journal of Men’s Health published a study this month titled "I Want a Second Chance" that explores the challenges faced by formerly incarcerated men as they seek to redeem themselves in the eyes of their children and society. The research questions of the study sought to illustrate the unique circumstances of African American men: "What are the daily experiences of reentry for African American men? What identities are African American men in reentry negotiating? What are the experiences of fatherhood for African American men in reentry? What are the experiences of their participation in a reentry program? The findings of the focus group featured in the study reveal a collective desire to provide for themselves and to be looked upon with dignity so that their lives can regain value. At the core of what they want most is simply to be regarded differently. As an educator who has worked closely with this population, I am convinced that their desires can be achieved through education: Formerly incarcerated men must learn to embrace methods of self-improvement, and Americans must learn to empathize and restore their citizenship.
Imagine the impact of this not-so-radical idea — if our American gaze of formerly incarcerated black men was altered — at a time when this country is fractured among race and class lines that are as bright and conspicuous as new scars. Just this month another politician has become embroiled in controversy after an off-color portrait of the president; another unarmed black man was killed at the hands of a police officer; another wrongfully convicted black man was awarded millions of dollars in retribution after his sentence was vacated; another black man’s family was awarded millions of dollars in a settlement for his wrongful death while incarcerated; another formerly incarcerated black man was likely denied a job due to the 50-percent decrease in callback rate for applicants with criminal records. Another day of Black History month has borne witness to our persistent troubles.
According to an article written by Amy L. Solomon and published by the National Institute of Justice, an estimated 13 million people in the U.S. are admitted to and released from local jails. And more than 700,000 people are admitted to and released from state and local prisons each year, with men accounting for more than three-fourths of those arrested. The numbers are even more staggering for African Americans, who comprise almost 40 percent of the entire prison population. But even more troubling is the fact that, on any given day, one in 15 black men are in prison. And among young African American men — those ages 20 through 34 — the ratio lowers further to one in nine. "In fact, young, male African American high-school dropouts have higher odds of being in jail than being employed," Solomon reports. These shameful statistics suggest that creating channels of reentry are imperative.
February 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (4) | TrackBack
Thursday, February 26, 2015
"Can life in prison be worse than death" ... for Dzhokhar Tsarnaev?
The question in the title of this post is drawn from the headline of this notable Washington Post article discussing the current (and likely future) prison realities for the Boston marathon bomber. Here are excerpts:
What’s worse – being sentenced to be executed or to spend the rest of one’s life in prison?
Dzhokhar Tsarnaev’s defense team includes two attorneys famous for ensuring that the former is replaced with the latter: Judy Clarke from San Diego, who has brokered many high-profile plea deals, and her frequent litigation partner David Bruck of Virginia. During the jury selection process, which is wrapping up in Boston this week, they have focused on drawing out jurors’ views on the death penalty, and with some regularity have elicited the response that life imprisonment is the harsher of the two options while the death penalty is “the easy way out.”
These potential jurors may have a point. Tsarnaev, 21, has been in solitary confinement for a year and a half. Like a handful of other inmates in the U.S., he has also been subjected to “special administrative measures,” or SAMs, while in pretrial detention; if he is sentenced to life imprisonment, SAMs will almost certainly remain in force....
According to a Human Rights Watch report, inmates under SAMs are usually fully isolated from other prisoners. Solitary confinement usually means spending 23 hours a day alone in a cell; SAMs often mean that this cell is in a special block from which the inmate can never see or hear other prisoners, even by knocking on a wall or peering through a window.
Under SAMs, Tsarnaev can make phone calls only when allowed to do so by the prison authority, and only to immediate family members – in his case, this would include his parents, living in Dagestan, and his two sisters, living in New Jersey. He has been calling his mother once a week.... All phone calls are monitored by an FBI agent...
The same rules apply to visits and correspondence: immediate family only. Tsarnaev’s sisters have visited him – his parents have not entered the United States since he was arrested, though one or both of them may travel here for the sentencing phase of the trial. A prison employee or FBI agent is always present during the visits, which include no physical contact – meaning they talk using telephone receivers, through glass.
Tsarnaev’s communication with his lawyers is also limited by the SAMs, but not nearly to the extent that his other communication is: His lawyers can visit without restriction, they can have physical contact with him, and their communication is privileged, which means that no one else is present. If Tsarnaev is convicted and sentenced to death, these visits will continue for the many years the appeals process is likely to last....
On Wednesday, as the court continued to interview potential jurors, the Boston Bar Association issued a statement calling on the Justice Department to take the death penalty off the table and arguing that a plea agreement in exchange for a life sentence would be in the interests of justice. If a plea agreement were to happen, Tsarnaev would stay alone in his cell, under SAMs: He could never have physical contact or a private conversation with anyone except a prison guard for the rest of his life.
Some prior related posts:
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- "Death penalty for Boston bomber a complicated question"
- Gearing up (finally) for start of capital trial of Boston Marathon bomber
Wednesday, February 25, 2015
SCOTUS in Yates rejects broad interpretation of federal criminal statute via fascinating 5-4 split (with Justice Alito as swing vote)!!
I often tell students that one of many reasons I find sentencing and related criminal justice issues so fascinating is because truly hard and interesting Supreme Court cases will rarely be resolved via the traditional (and traditionally boring) political splits among the Justices. This reality is dramatically and uniquely on display this morning thanks to a ruling for a federal criminal defendant today in Yates v. United States, No. 13-7451 (S. Ct. Feb. 25, 2015) (available here). Yates has produced this remarkable and unprecedented combination of opinions and votes:
GINSBURG, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and BREYER and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. KAGAN, J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined.
Here are some money quotes from the start of the plurality opinion authored by Justice Ginsburg:
John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea. For this offense, he was charged with, and convicted of, violating 18 U. S. C. §1519...
Yates does not contest his conviction for violating §2232(a), but he maintains that fish are not trapped within the term “tangible object,” as that term is used in §1519.
Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat. 745, legislation designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation. A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction. But it would cut §1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent. Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information.
And here are excerpts from the close of the dissenting opinion authored by Justice Kagan:
If none of the traditional tools of statutory interpretation can produce today’s result, then what accounts for it? The plurality offers a clue when it emphasizes the disproportionate penalties §1519 imposes if the law is read broadly. See ante, at 17–18. Section 1519, the plurality objects, would then “expose individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense.” Ante, at 18. That brings to the surface the real issue: overcriminalization and excessive punishment in the U. S. Code.
Now as to this statute, I think the plurality somewhat — though only somewhat — exaggerates the matter. The plurality omits from its description of §1519 the requirement that a person act “knowingly” and with “the intent to impede, obstruct, or influence” federal law enforcement. And in highlighting §1519’s maximum penalty, the plurality glosses over the absence of any prescribed minimum. (Let’s not forget that Yates’s sentence was not 20 years, but 30 days.) Congress presumably enacts laws with high maximums and no minimums when it thinks the prohibited conduct may run the gamut from major to minor.... Most district judges, as Congress knows, will recognize differences between such cases and prosecutions like this one, and will try to make the punishment fit the crime. Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law— too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.
But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so — in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.
Great stuff here (including a cite by Justice Kagan to the esteemed source pictured above). And surely not to be overlooked is the remarkable reality that Justice Alito, who has a history of almost always backing prosecutors in close cases, turned out in Yates to the be key vote (and author of the actual controlling opinion) for a federal criminal defendant.
Amazing stuff... and I hope some future law review article on Yates considers a title like "One Justice, Two Justice, Red Justice, Blue Justice: What Congress Should Learn from Dr. Seuss about Writing Statutes."
"Eighth Amendment Presumptions: A Constitutional Framework for Curbing Mass Incarceration"
The title of this post is the title of this notable new article by William Berry II now available via SSRN. Here is the abstract:
The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments. The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this article proposes a new approach to the application of the Eighth Amendment.
The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race. Instead of merely being a tool that merely removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state penal practices.
To that end, this Article argues for the development of a series of Eighth Amendment presumptions — guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation. Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by the legislatures. This Article’s approach would reverse that status quo, with the Court articulating general rules and the legislatures then developing (and justifying through careful study) the exceptions to the rules. Indeed, an examination of the Court’s Eighth Amendment cases suggests this “presumptive” sentiment is already implicit in much of the thinking of the Court.
Part I of the Article briefly explains the shortcomings of the current evolving standards of decency doctrine and its devastating consequences. Part II of the Article explores the concept of presumptions, exploring how presumptions operate and demonstrating their virtues. The Article then argues in Part III for the reimagining of the Eighth Amendment as an Amendment of constitutional presumptions combining elements from the Court’s past cases with the needs arising from three decades of neglecting the decisions of legislatures. Finally, Part IV demonstrates how this conceptual framework would work in practice.
February 25, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, February 24, 2015
"Can prisons predict which inmates will commit more crimes?"
The question in the title of this post is part of the headline of this new lengthy AP article, which follows with the headline "States trying secretive, psychological assessments." Here are excerpts from the piece:
States are trying to reduce prison populations with secretive, new psychological assessments to predict which inmates will commit future crimes and who might be safe to release, despite serious problems and high-profile failures, an Associated Press investigation found.
These programs are part of a national, data-driven movement to drive down prison populations, reduce recidivism and save billions. They include questionnaires often with more than 100 questions about an offender's education, family, income, job status, history of moving, parents' arrest history — or whether he or she has a phone. A score is affixed to each answer and the result helps shape how the offender will be supervised in the system — or released from custody.
Used for crimes ranging from petty thievery to serial murders, these questionnaires come with their own set of risks, according to the AP's examination. Many rely on criminals to tell the truth, and jurisdictions don't always check to make sure the answers are accurate. They are used inconsistently across the country, sometimes within the same jurisdiction. The same defendant might be scored differently in the same crime.
Supporters cite some research, such as a 1987 Rand Corp. study that said the surveys accurately can predict the likelihood of repeat offenses as much as 70 percent of the time if they are used correctly. But even the Rand study, one of the seminal pieces of research on the subject, was skeptical of the surveys' overall effectiveness. It's nearly impossible to measure the surveys' impact on recidivism because they are only part of broader efforts.
Some surveys have the potential to punish people for being poor or uneducated by attaching a lower risk to those who have steady work and high levels of education. The surveys are clouded in secrecy. Some states never release the evaluations, shielding government officials from being held accountable for decisions that affect public safety.
"It is a vast improvement over the decision-making process of 20, 30 years ago when parole boards and the courts didn't have any statistical information to base their decisions on," said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts, which is working with the Justice Department to shape reforms nationally....
The Justice Department's position on the surveys is inconsistent. On one hand, the department is helping bankroll this movement by providing millions of dollars to help states develop and roll out new policies. Yet it's also putting on the brakes and is reluctant to use them for the federal prison population.
"Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct," Attorney General Eric Holder told the National Association of Criminal Defense Lawyers in August. "They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."
Cost savings, however, make these tools appealing to states. North Carolina, for instance, could save $560 million by 2017, a Justice Department report concluded. Between 2011 and 2014, the North Carolina prison population decreased by more than 3,000 people, according to the state. These reforms, including the use of risk assessments, has saved the state nearly $84 million, and it plans to route $32 million of those savings for community treatment programs.
Monday, February 23, 2015
SCOTUS denies review for Eighth Amendment challenge to 15-year mandatory minimum sentence for possessing shotgun shells
I am quite bummed, and more than a bit grumpy, that the Supreme Court this morning denied certiorari review via this new order list of the case of Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer." I am bummed because, as detailed in this post, I helped file an amicus brief in support of Young's Eighth Amendment claim in the Sixth Circuit and also in support of his SCOTUS cert petition.
I am grumpy because the Supreme Court's willingness to deny review in this case, without even requiring the feds to file a brief in opposition and without any noted dissents, highlights yet again that modern Supreme Court Justices remain much more concerned with whether the worst-of-the-worst state murderers might feel some momentary pain while being executed than with whether Congress and federal prosecutors have gone to far in their application of extreme mandatory prison sentencing terms. In my amicus brief, I had these concluding sentiments about the Young case and its implications:
The essential facts of this case read like a fictional story about a totalitarian dystopian state imagined by the likes of Franz Kafka or George Orwell: after unintentionally coming into possession 18 of a handful of shotgun shells while helping his widowed neighbor — conduct which is not a crime in his home State or in the vast majority of States in our Union — Edward Young was prosecuted by federal officials using a federal law that mandated a sentencing judge to order Mr. Young to spend the next 15 years of his life locked in a cage. Disconcertingly, this nightmare tale of extreme punishment is not only true, but it has occurred in the United States of America — a country which was supposedly “conceived in liberty,” Abraham Lincoln, Gettysburg Address, and in which school children still recite their commitment to “liberty and justice for all.” Pledge of Allegiance (codified in Title 4 of the United States Code § 4)....
[I]f Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).
Edward Young can, and I hope will, continue to assail his prosecution and sentencing via a 2255 petition, but such actions are subject to all sorts of additional difficulties (including the absence of a right to counsel). Moreover, for me this case was not just about how Young's minor crime was treated by the feds, but whether federal judges believe that the Eighth Amendment provides any limit on the mandatory prison terms that could be imposed by federal authorities. I strongly believe the Framers thought they were doing something about extreme sentences like the one given to Edward Young when they enacted the Eighth Amendment, but it seems no modern federal judges agree with me on this front. Grrr.
Prior related posts:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
- Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
- Briefs seeking SCOTUS review of 15-year mandatory federal sentence for possessing shotgun shells
February 23, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack
Senators respond to NY Times criticisms of their sentencing work
I noted and commented here last week on this New York Times editorial about on-going debates over proposed federal sentencing reforms. Today, the New York Times reprints two letters from the Senators whose work was subject to the Times' criticisms under the headline "Sentencing Reform: 3 Senators Speak Out." Here are excerpts:
JOHN CORNYN & SHELDON WHITEHOUSE: “The Roadblock to Sentencing Reform” (editorial, Feb. 17) expressed concerns about our legislation to enable federal inmates to earn earlier release from prison if they complete programs proved to reduce the risk that they’ll commit future crimes.
You worry that our “risk assessment” tools could disproportionately help white prisoners over minorities. But states across the country have found that risk assessments typically lead to results that are fairer for all groups, including minorities. You yourself wrote last year that data-based risk-assessment tools have been used in “at least 15 states ...with good results” (editorial, Feb. 17, 2014). And our bill would emphasize “dynamic” risk factors — things prisoners can change — so that all inmates can lower their risk of recidivism....
We agree that we should reform other aspects of our criminal justice system. But no one should minimize the importance of ending the cycle of recidivism, reducing prison costs and helping inmates succeed upon release.
CHUCK GRASSLEY: I disagree with your editorial. The reality is that reductions in federal mandatory minimum sentences are misguided. These sentences are vital in obtaining the cooperation necessary to prosecute leaders in the drug trade. The so-called Smarter Sentencing Act, sponsored by Senators Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, would arbitrarily cut in half the mandatory minimum sentences for importing, manufacturing and distributing drugs like heroin, PCP, methamphetamine and cocaine. Enacting such a bill during a well-documented heroin epidemic would be irresponsible.
Both the Drug Enforcement Administration and the United States attorney in Manhattan have warned that terrorist organizations are using the drug trade to fund their operations. Under Supreme Court rulings, mandatory minimum sentences are the only tool available to Congress to ensure that judges impose adequate and more uniform sentences.
According to the United States Sentencing Commission, unlike in the states, virtually no citizen is in federal prison for drug possession. Because a “safety valve” eliminates mandatory minimums and lowers sentences for first-time offenders, most federal drug inmates are repeat offenders who did not respond to shorter sentences, and many have extensive criminal histories, including violence.
A few recent related posts on federal sentencing reform:
- NY Times editorial laments "The Roadblock to Sentencing Reform" ... while creating another
- Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?
- A positive perspective on possible prison reform emerging from Congress
- Is major federal sentencing reform possible now that Republicans have full control of Congress?
- Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform
February 23, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Sunday, February 22, 2015
Sentencing as racial education: federal judge schools killers when imposing punishment
A number of helpful readers have made sure I did not miss the remarkable story, highlighted in sources as diverse as NPR and The American Conservative, of the remarkable speech by U.S. District Judge Carlton Reeves read to three young white men before sentencing them earlier this month for killing a 48-year-old black man in a parking lot. The speech merits a read in full, and here are excerpts:
Mississippi has expressed its savagery in a number of ways throughout its history — slavery being the cruelest example, but a close second being Mississippi's infatuation with lynchings. Lynchings were prevalent, prominent and participatory. A lynching was a public ritual — even carnival-like — within many states in our great nation. While other states engaged in these atrocities, those in the Deep South took a leadership role, especially that scar on the map of America — those 82 counties between the Tennessee line and the Gulf of Mexico and bordered by Louisiana, Arkansas and Alabama.
Vivid accounts of brutal and terrifying lynchings in Mississippi are chronicled in various sources: Ralph Ginzburg's 100 Years of Lynching and Without Sanctuary: Lynching Photography in America, just to name two. But I note that today, the Equal Justice Initiative released Lynching in America: Confronting the Legacy of Racial Terror; apparently, it too is a must-read....
How could hate, fear or whatever it was transform genteel, God-fearing, God-loving Mississippians into mindless murderers and sadistic torturers? I ask that same question about the events which bring us together on this day. Those crimes of the past, as well as these, have so damaged the psyche and reputation of this great state.
Mississippi soil has been stained with the blood of folk whose names have become synonymous with the civil rights movement like Emmett Till, Willie McGee, James Cheney, Andrew Goodman, Michael Schwerner, Vernon Dahmer, George W. Lee, Medgar Evers and Mack Charles Parker. But the blood of the lesser-known people like Luther Holbert and his wife, Elmo Curl, Lloyd Clay, John Hartfield, Nelse Patton, Lamar Smith, Clinton Melton, Ben Chester White, Wharlest Jackson and countless others, saturates these 48,434 square miles of Mississippi soil. On June 26, 2011, four days short of his 49th birthday, the blood of James Anderson was added to Mississippi's soil.
The common denominator of the deaths of these individuals was not their race. It was not that they all were engaged in freedom fighting. It was not that they had been engaged in criminal activity, trumped up or otherwise. No, the common denominator was that the last thing that each of these individuals saw was the inhumanity of racism. The last thing that each felt was the audacity and agony of hate, senseless hate: crippling, maiming them and finally taking away their lives.
Mississippi has a tortured past, and it has struggled mightily to reinvent itself and become a New Mississippi. New generations have attempted to pull Mississippi from the abyss of moral depravity in which it once so proudly floundered in. Despite much progress and the efforts of the new generations, these three defendants are before me today: Deryl Paul Dedmon, Dylan Wade Butler and John Aaron Rice. They and their co-conspirators ripped off the scab of the healing scars of Mississippi ... causing her (our Mississippi) to bleed again.
Hate comes in all shapes, sizes, colors, and from this case, we know it comes in different sexes and ages. A toxic mix of alcohol, foolishness and unadulterated hatred caused these young people to resurrect the nightmarish specter of lynchings and lynch mobs from the Mississippi we long to forget. Like the marauders of ages past, these young folk conspired, planned, and coordinated a plan of attack on certain neighborhoods in the city of Jackson for the sole purpose of harassing, terrorizing, physically assaulting and causing bodily injury to black folk. They punched and kicked them about their bodies — their heads, their faces. They prowled. They came ready to hurt. They used dangerous weapons; they targeted the weak; they recruited and encouraged others to join in the coordinated chaos; and they boasted about their shameful activity. This was a 2011 version of the nigger hunts....
What is so disturbing ... so shocking ... so numbing ... is that these nigger hunts were perpetrated by our children ... students who live among us ... educated in our public schools ... in our private academies ... students who played football lined up on the same side of scrimmage line with black teammates ... average students and honor students. Kids who worked during school and in the summers; kids who now had full-time jobs and some of whom were even unemployed. Some were pursuing higher education and the Court believes they each had dreams to pursue. These children were from two-parent homes and some of whom were the children of divorced parents, and yes some even raised by a single parent. No doubt, they all had loving parents and loving families....
The simple fact is that what turned these children into criminal defendants was their joint decision to act on racial hatred. In the eyes of these defendants (and their co-conspirators) the victims were doomed at birth. ... Their genetic makeup made them targets....
Today, though, the criminal justice system (state and federal) has proceeded methodically, patiently and deliberately seeking justice. Today we learned the identities of the persons unknown ... they stand here publicly today. The sadness of this day also has an element of irony to it: Each defendant was escorted into court by agents of an African-American United States Marshal, having been prosecuted by a team of lawyers which includes an African-American AUSA from an office headed by an African-American U.S. attorney — all under the direction of an African-American attorney general, for sentencing before a judge who is African-American, whose final act will be to turn over the care and custody of these individuals to the BOP — an agency headed by an African-American.
Today we take another step away from Mississippi's tortured past ... we move farther away from the abyss. Indeed, Mississippi is a place and a state of mind. And those who think they know about her people and her past will also understand that her story has not been completely written. Mississippi has a present and a future. That present and future has promise. As demonstrated by the work of the officers within these state and federal agencies — black and white, male and female, in this Mississippi they work together to advance the rule of law. Having learned from Mississippi's inglorious past, these officials know that in advancing the rule of law, the criminal justice system must operate without regard to race, creed or color. This is the strongest way Mississippi can reject those notions — those ideas which brought us here today....
These sentences will not bring back James Craig Anderson nor will they restore the lives they enjoyed prior to 2011. The court knows that James Anderson's mother, who is now 89 years old, lived through the horrors of the Old Mississippi, and the court hopes that she and her family can find peace in knowing that with these sentences, in the New Mississippi, justice is truly blind. Justice, however, will not be complete unless these defendants use the remainder of their lives to learn from this experience and fully commit to making a positive difference in the New Mississippi. And, finally, the court wishes that the defendants also can find peace.
Saturday, February 21, 2015
New Oregon Gov pledges to continue curious capital moratorium created by her corrupt predecessor
As reported in this new Reuters piece, headlined "New Oregon Governor Kate Brown to extend death penalty moratorium," a change in leadership at the top of the executive branch in the Beaver State is apparently not going to bring any change to the state's current peculiar death penalty practices. Here are the details:
Oregon's new Democratic Governor Kate Brown said on Friday she planned to extend a moratorium on executions that her predecessor enacted in 2011, well before an influence-peddling scandal forced him from office earlier this week.
But like fellow Democrat John Kitzhaber, Brown stopped short of formally commuting death sentences for the 34 inmates currently awaiting execution in the state, which has executed only two people in the past half century, both in the 1990s. “There needs to be a broader discussion about fixing the system," Brown said in her first press briefing since she took Oregon's helm on Wednesday. "Until that discussion, I'm upholding the moratorium imposed by Kitzhaber.”
In a major salvo in the nation's long-running battle over capital punishment, Kitzhaber imposed a blanket reprieve on all Oregon death row inmates in 2011, saying he believed the death penalty was morally wrong. He had faced growing calls in the waning days of his administration to commute all Oregon death sentences to life in prison before leaving office following an ethics scandal over accusations his fiancée used her role in his office for personal gain.
But Kitzhaber, who has not been seen publicly since announcing his resignation last week, remained silent on that issue, although he did commute the prison sentence of a young man serving time for attempted murder in a non-capital case.
Brown, who had been Oregon's secretary of state before this week, said she met with Kitzhaber on Monday and he advised her of his legislative priorities and recommendations. In addition to her death penalty plans, Brown told reporters she supports raising the minimum wage, increasing transparency and improving access to public records.
Four years seems to me like plenty of time for the policy-makers and the public in Oregon to have a "broader discussion about fixing the system" used for administering the death penalty in the state. Notably, since Kitzhaber put the moratorium in place, I believe the Oregon legislature has enacted other forms of sentencing reform dealing with prison sentences as well as significant state health-care reforms. In addition, Oregon public policy groups placed on the ballot in both 2012 and 2014 significant legal reform intended to "fix" perceived problems with marijuana laws and policies in the state. If the last four years (and a number of election cycles) have not provided sufficient time for Oregonians to have a "broader discussion about fixing the system," I have a hard time imagining that the next few years are likely to engender such a discussion.
In the end, I seriously doubt that the new Oregon governor (or many others in the state) are really looking forward to having a "broader discussion about fixing the system" used for administering the death penalty in the state. Rather, I think this phrase was the one that the new gov thought would best allow her to duck a controversial, high-profile issue for the time being (and maybe even for the full duration of her term). For a handful of advocates, death penalty policy and practices in any state are very important, but for most citizens and voters the death penalty is a high-salience but low-significance concern. Keeping Kitzhaber's execution moratorium in place allows the new gov to focus on other issues without the distorting distractions that death penalty politics can often create.
Some recent related posts:
- Oregon Governor halts upcoming execution, declares moratorium, and pushes for state repeal
- Oregon murderer seeks to reject and escape Governor's execution reprieve
- Might some death penalty supporters be pleased Oregon's Governor blocked Gary Haugen's execution?
- Fascinating fight over death penalty realities and clemency rights gets to Oregon Supreme Court
- Oregon Supreme Court rejects effort by death row inmate to reject execution reprieve from Governor
- Would you urge out-going (and apparently corrupt) Oregon Gov Kitzhaber to commute all death sentences?
Thursday, February 19, 2015
Still more bipartisan talk (and even more bureaucracy) focused on criminal justice reform
This extended New York Times article, headlined "Unlikely Cause Unites the Left and the Right: Juctice Reform," spotlights that the Grey Lady never gets tired talking about lots of other people talking about the need for criminal justice reforms. Here is how the piece starts:
Usually bitter adversaries, Koch Industries and the Center for American Progress have found at least one thing they can agree on: The nation’s criminal justice system is broken.
Koch Industries, the conglomerate owned by the conservative Koch brothers, and the center, a Washington-based liberal issues group, are coming together to back a new organization called the Coalition for Public Safety. The coalition plans a multi-milliondollar campaign on behalf of emerging proposals to reduce prison populations, overhaul sentencing, reduce recidivism and take on similar initiatives. Other groups from both the left and right — the American Civil Liberties Union, Americans for Tax Reform, the Tea Party-oriented FreedomWorks — are also part of the coalition, reflecting its unusually bipartisan approach.
The coalition will have initial backing of more than $5 million, with groups also spending independently on their own criminal justice initiatives. Organizers of the advocacy campaign, which is to be announced on Thursday, consider it to be the largest national effort focused on the strained prison and justice system. They also view the coalition as a way to show lawmakers in gridlocked Washington that factions with widely divergent views can find ways to work together and arrive at consensus policy solutions. “We want to both do good policy work and try to improve the system, but also to send the message to politicians that we always ask you to work together, and we are going to lead the way,” said Denis Calabrese, the president of the Laura and John Arnold Foundation, who helped organize the coalition.
For groups traditionally considered opponents, working together has required something of a leap of faith. But they say that they see an opening and are giving the new coalition three years to demonstrate results.
Though I never want to criticize the folks interested in serious criminal justice reform and advocacy, I am not sure what is really need right now is yet another coalition or group advocating in general for reform. What is really needed is people working really hard in the trenches to move courts and legislators who are now standing in the way of significant reforms. I sincerely believe with a lot less money and in a lot less time, empowering and aiding the work of the best folks in the trenches could and should get some serious reforms achieved in a lot less than three years.
Wednesday, February 18, 2015
AP report details that, functionally, California kills many more sex offenders than murderers
Formally, California sends many more murderers to its death row than any other state and it has more condemned capital prisoners than two dozen other US death penalty states combined. But California has only managed to actually execute fourteen of those sentenced to die and nobody has been executed by the state in nearly a decade. Meanwhile, as this new AP report details, over the last eight years, while California has not moved forward with an execution of a single condemned murderer, a total of 78 sex offenders have been slaughtered inside California's prisons. Here are the basics:
California state prisoners are killed at a rate that is double the national average — and sex offenders ... account for a disproportionate number of victims, according to an Associated Press analysis of corrections records.
Male sex offenders made up about 15 percent of the prison population but accounted for nearly 30 percent of homicide victims, the AP found in cataloging all 78 killings that corrections officials reported since 2007, when they started releasing slain inmates' identities and crimes.
The deaths — 23 out of 78 — come despite the state's creation more than a decade ago of special housing units designed to protect the most vulnerable inmates, including sex offenders, often marked men behind bars because of the nature of their crimes.
In some cases, they have been killed among the general prison population and, in others, within the special units by violence-prone cellmates. Officials acknowledge that those units, which also house inmates trying to quit gangs, have spawned their own gangs.
Corrections officials blamed a rise in the prison homicide rate on an overhaul meant to reduce crowding. As part of the effort, the state in 2011 began keeping lower-level offenders in county lockups, leaving prisons with a higher percentage of sex offenders and violent gang members....
The problem is most acute with sex offenders. Last fall, the corrections department's inspector general reported that so many homicides occurred in the "increasingly violent" special housing units reserved for vulnerable inmates that the department could no longer assume that inmates there could peacefully co-exist. The report looked at 11 homicide cases that were closed in the first half of 2014 and found that 10 victims were sensitive-needs inmates. Using corrections records, the AP found that eight of them were sex offenders.
For a variety of reasons, most states have special facilities incorporated into their "death row," and condemned prisoners on death row are often eager to be well behaved in the hope of increasing their odds of getting out from under a death sentences eventually. Consequently, it can often be much safer for certain prisoners to be condemned and confined to death than to be in the general population. And this new AP report reinforces my sense that a serious California criminal likely would lead a more peaceful and safe life in prison if and when he murders and gets condemned to death than if he just commits a sex offense. (In addition to being a disturbing practical reality, these dynamics might perhaps prompt and incentivize a "rational rapist" in California to murder one or more his victims in order to ensure he can potentially avoid the dangers of the general prison population and live out his life peacefully pursuing appeal after appeal while safe and secure on death row.)
Tuesday, February 17, 2015
"How to Talk About Sentencing Policy — and Not Disparity"
The title of this post is the title of this terrific new piece by Nancy Gertner just published by the Loyola University Chicago Law Journal. I consider most everything Prof (and former Judge) Gertner writes about sentencing to be a must-read, and these passages from the start of the piece reinforce my sense that this new commentary is especially timely and important:
I want to talk about why I don’t want to discuss sentencing disparity, why this is an issue far, far less important than issues of sentencing fairness, of proportionality, of what works to address crime. Disparity-speak has sucked the air out of all interesting and meaningful discussion of criminal justice reform for the past several decades....
The mythology of rampant sentencing disparity without guidelines has driven American sentencing for decades. The problem is that you cannot build a rational sentencing regime if the only important question is this one: Am I doing the same thing in my courtroom that you are doing in yours, even if neither of us is imposing sentences that make sense, namely, that work to reduce crime? You cannot talk about disparity unless you understand the context—disparity in sentencing with respect to what? What purposes? What characteristics? Similarly situated with respect to what? The offense? The chances of deterrence? Amenability to treatment?...
To eliminate sentencing disparity, the United States Sentencing Commission and Congress chose to treat drug quantity the same across contexts, contexts that were very different. I want to talk about those contexts and the content of a just sentence. How do we deal with drug addiction? What is the punishment that makes sense? When is drug treatment appropriate in lieu of imprisonment? I want to talk about problem solving courts, reentry programs, and meaningful diversions. How can neuroscience help us craft treatment? What evidence based practices should we implement? What works?
And, above all, I want to talk about how to meaningfully undo the catastrophe of mass incarceration in this country, the catastrophe that we have created with our dual emphasis on eliminating disparity, and imprisonment as a cure all. It is a “one size fits all” approach, and that “size” has been ever more imprisonment. I want to talk about our uniformity-focused, criminal-record emphasis, incarceration-obsessed criminal justice policy.
February 17, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1) | TrackBack
AG Holder brags about achievements of DOJ's Smart on Crime initiative
The Department of Justice has just made available these two notable items:
I view both of these documents to be must-reads for any and all sentencing fans, and I will here highlight the data reported by AG Holder in his speech that strike me as most intriguing, as well as the AG's closing policy pitch:
In the year before our Smart on Crime charging policy took effect, roughly 64 percent of federally-charged drug trafficking offenses carried a mandatory minimum sentence. Last year, the new policy brought that number down to approximately 51 percent — a reduction of 20 percent relative to the prior year. Put another way, we have gone from seeking a mandatory minimum penalty in two out of every three drug trafficking cases, to doing so in one out of two. That’s a major reduction. In fact, it is historic. The Sentencing Commission confirms that these numbers show that federal prosecutors sought mandatory minimum penalties at a lower rate in 2014 than in any other year on record....
Even though mandatory minimums have been charged significantly less frequently under our new policies, the percentage of cases in which we receive substantial cooperation from defendants has remained exactly the same. This also holds true of the ability of our prosecutors to secure guilty pleas in these cases. In the year before Smart on Crime took effect, our prosecutors won guilty pleas in approximately 97 percent of drug trafficking cases. A year later, despite significant reductions in our uses of mandatory minimums, this percentage stands at 97.5. So the notion that the Smart on Crime initiative has somehow robbed us of an essential tool is contradicted not only by our history – but by clear and objective facts....
The work we have done is nothing short of groundbreaking. But this is no time to rest on our laurels. Significant challenges remain before us. And a great deal of work remains to be done.
Our prisons are still overcrowded. Across the country, far too many people remain trapped in cycles of poverty, criminality, and incarceration. Unwarranted disparities are far too common. Law enforcement is distrusted in far too many places and cops are not appreciated for the tough job they do so well. And if we hope to build on the record we’ve established so far — and to make the Smart on Crime initiative not only successful, but permanent — it will be incumbent upon all Americans — most especially our Congress — to work together to ensure that all of this is just the beginning. From critical improvements to the juvenile justice system, to a range of back-end criminal justice reforms, we must continue to advance promising, bipartisan legislation to make our communities safer, treat individuals more justly and allow more efficient use of law enforcement resources.
Our efforts over the last six years have laid a strong foundation for a new era of American justice. Congress can help us build on this foundation by passing important, bipartisan legislation like the Smarter Sentencing Act, which would give judges more discretion in determining sentences for people convicted of certain federal drug crimes. And going forward – with measures like this one, and with the tireless work of our United States Attorneys and their colleagues, the strong leadership of our outstanding new Attorney General and Deputy Attorney General, and the robust engagement of the American people – I believe there’s good reason for confidence in where this work will lead us.
February 17, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Would you urge out-going (and apparently corrupt) Oregon Gov Kitzhaber to commute all death sentences?
The question in the title of this post is prompted by this notable new commentary authored by Frank Thompson, a retired assistant director of institutions and superintendent of the Oregon State Penitentiary. Here are excerpts:
I know what it is like to execute someone. I am a retired prison superintendent who conducted the only two executions that have taken place in Oregon in the past 53 years.
The death penalty in Oregon comes at a high cost to our state in both human and fiscal resources. I call on Gov. Kitzhaber to convert 35 death sentences to life without the possibility of release before he leaves office at mid-morning on Wednesday.
Based on my experiences as a correctional professional, capital punishment is a failed public policy — especially in Oregon where we have funded a death penalty system for over 30 years, yet only put to death two inmates who volunteered themselves for execution by abandoning their appeals. No other corrections program exemplifies such a complete failure rate.
During my more than two decades of running correctional facilities, I saw the population of those who are capable of extreme violence up close. I have no doubts at all that these offenders did not think about the death penalty for one second before committing their violent acts. Instead, research has been shown that public safety is greatly improved when our limited tax dollars are redirected to law enforcement agencies to solve cases and prevent crimes.
I understand exactly what is being asked of public employees whose jobs include carrying out the lawful orders of the judiciary to end another person's life. The burden weighs especially heavily on my conscience because I know firsthand that the death penalty is not applied fairly or equally in Oregon. I have known hundreds of inmates who are guilty of similar crimes yet did not get the death penalty because they reached a plea bargain of life without parole simply because they had the means for professional legal assistance.
I also understand, from my experiences in corrections, the potential awful and lifelong repercussions that can come from participating in the execution of prisoners. Living with the nightmares is something that some of us experience. This is particularly the case with those of us who have had more hands-on experience with the flawed capital punishment process, and/or where an execution under our supervision did not go smoothly.
I am never troubled when people make a forceful argument that "capital punishment is a failed public policy." But I find it troubling that this argument is being made now to a disgraced (apparently corrupt) out-going governor rather than to the new incoming governor and other public-policy officials who are going to be staying in their jobs and would need to deal with the administrative and political implications and consequences of their actions.
Notably, it is not just Oregonians urging out-going Gov Kitzhaber to clear the state's death row. Professors Charles Ogletree and Rob Smith have this new Huffington Post commentary headlined "Gov. Kitzhaber: Your Job Is Not Yet Done." here is how it concludes:
Governor Kitzhaber declared a moratorium on the death penalty back in 2011. He labeled the State's practice of imposing death sentences "neither fair nor just" and concluded that a "compromised and inequitable" capital punishment system is not befitting of Oregon. Nothing has changed and nothing will: the death penalty in Oregon is too broken to fix.
In his resignation letter, Governor Kitzhaber told us that he was proud to not have presided over any executions. Yet, as Governor, he presided over a state that has sentenced people to death under the same unjust system that led him to impose the moratorium. The Governor has the power to leave the troubled history of this disreputable death penalty system in Oregon's rearview mirror; and doing so would enhance the integrity of the criminal justice system without compromising public safety.
Governor Kitzhaber: You lit the torch in 2011; and now, in these few remaining hours, please carry that torch across the finish line.
NY Times editorial laments "The Roadblock to Sentencing Reform" ... while creating another
This lengthy new New York Times editorial spotlights and laments that one powerful Senator now appears to be the main impediment to federal sentencing reform moving forward in Congress. Here are excerpts:
For more than a year, members of Congress have been doing a lot of talking about the need to broadly reform harsh federal sentencing laws, which are a central factor in the explosion of the federal prison population. It’s an overdue conversation, and one of the few in which Democrats and Republicans find some agreement — but, so far, they have nothing to show for it.
In the last session, senators introduced three bipartisan bills. Two proposed “front end” reforms, like reducing or eliminating ridiculously long mandatory minimum sentences for some drug crimes. The other focused on “back end” fixes, like increasing opportunities for good-time credit to allow certain prisoners early release.
None of the bills got anywhere, but it was encouraging to see all three reintroduced in the new Republican-led Senate. At least it was until they ran into a roadblock in the shape of Senator Charles Grassley, Republican of Iowa. Mr. Grassley, the chairman of the Judiciary Committee, wields great power over any sentencing legislation....
Mr. Grassley, for reasons that defy basic fairness and empirical data, has remained an opponent of almost any reduction of those sentences. In a speech from the Senate floor this month, he called the bills “lenient and, frankly, dangerous,” and he raised the specter of high-level drug traffickers spilling onto the streets.
Mr. Grassley is as mistaken as he is powerful. Mandatory minimums have, in fact, been used to punish many lower-level offenders who were not their intended targets. Meanwhile, the persistent fantasy that locking up more people leads to less crime continues to be debunked. States from California to New York to Texas have reduced prison populations and crime rates at the same time. A report released last week by the Brennan Center for Justice found that since 2000 putting more people behind bars has had essentially no effect on the national crime rate.
The bill that appears to have the best chance of passing anytime soon is known as the Corrections Act — that’s actually a sprawling acronym for Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System. Cosponsored by Senator John Cornyn, Republican of Texas, and Senator Sheldon Whitehouse, Democrat of Rhode Island, the bill’s name is more ambitious than its goals, which include giving a narrow group of inmates the chance to participate in educational and other programs in exchange for earlier release. (The bill authorizes no financing for these programs, relying instead on, among other things, the volunteer efforts of faith-based groups.)
Rehabilitation is a laudable aim, and it should be a part of any sentencing reform package. But the Cornyn-Whitehouse bill would exclude nearly half of all federal prisoners — in many cases without any evidence that they pose a greater risk to public safety.
The bill also relies on an inmate’s criminal history. This is a legitimate measure when it is used with the awareness that law enforcement disproportionately targets minorities. The danger is that white-collar prisoners, who are most often white, will receive the law’s benefits, while, say, drug offenders, who are disproportionately African-American, will be left out.
Finally, the bill pushes the use of data-based risk-assessment tools, which sound smart but again — because they rely on factors like a person’s employment history, neighborhood and education level — often have racially disproportionate effects....
Sentencing reform is a big and complicated issue, and may take some time to get right. It would be a mistake to pass an incomplete bill and pretend that the hard work of reform is done.
Though I obviously laud the New York Times editorial board for complaining about a "roadblock" to reform created by Senator Grassley, I am troubled that this editorial goes on to create some more hurdles of its own through its (somewhat chaotic) criticisms of the Corrections Act. Every possible sentencing reform bill is sure to be an "incomplete bill" from somebody's perspective, but that should never serve alone as a reason to stall any needed reforms. The Fair Sentencing Act passed in 2010 was incomplete for only partially reducing the crack/powder disparity and for failing to make its reforms retroactive. But that reform still achieved a lot even though it did not achieve enough. Same goes, in my opinion, for all the sentencing reform bills now making the rounds.
Moreover, as a matter of substance, this editorial hammers Senator Grassley for defiance of empirical data, but that assails the Corrections Act for incorporating "data-based risk-assessment tools" and criminal history in its structures for back-end reform. I fear the NYT editorial board wants policy-makers to be concerned only with the public safety data that it likes and to ignore the public-safety data that might undermine the Grey Lady's own mysterious sense of "fairness." In this way, this editorial provides still more support for roadblocks to reform because any and everyone concerned about any part of the reform bills are encouraged to let their vision of the best reforms serve as an enemy and hurdle for any and all good and needed reforms.
Monday, February 16, 2015
Notable new commentary on the notable work of the Colson Task Force
A helpful reader shared with me this notable commentary authored by Jim Liske, who is CEO of Prison Fellowship and is serving on the Charles Colson Federal Corrections Task Force. The FoxNews piece is headlined "Colson Task Force offers chance for Restorative Justice," and here are excerpts:
I am honored to serve on the new Charles Colson Task Force on Federal Corrections, which met for the first time in late January. Named for my organization’s founder, the Task Force is a bipartisan, nine-member panel chaired by J.C. Watts, that will address long-existing challenges in federal corrections and make data-driven recommendations to make the system more effective and just—for the sake of prisoners and our communities alike....
In the last several years, individual states have already begun to pursue prison reform that hold offenders accountable and yet give them hope for restoring their lives once they’ve served their time. Hawaii has seen success through its HOPE program, which guarantees “swift and sure sanctions” for those who violate the terms of their probation. This accountability-intensive approach, which affirms offenders’ potential by expecting them to do better, has been so effective, it’s being copied in courtrooms nationwide. Some states are increasing their use of earned-time credits, which allow people to earn the right to rejoin the community earlier by using their time productively, and still others are reducing sentences for non-violent offenses.
Reforms like these offer hope for evidence-based, cost-effective changes the Task Force will examine. But we can go a step farther. The time is right for prison reforms that aren’t just evidence-based, but values-based, reflecting our beliefs in the God-given dignity, value, and potential of every human being. Justice can be restorative when we make sure that the opportunity for both accountability and redemption are balanced at the core of our criminal justice system.
Why should justice be restorative? At its heart, crime isn’t about law-breaking; it’s about violating the peace and wholeness of the entire community. Public safety may require that we lock someone up, but that alone will not heal victims or the community or change the conditions that help breed crime. When the responsible party has the opportunity for redemption and restoration — by making amends to his victims, changing his thinking, and earning back the public’s trust by living a law-abiding, constructive life upon release—the community can find healing and move beyond the vicious cycle of crime and incarceration....
The Charles Colson Task Force is an important first step that honors the legacy of a visionary leader, but the challenges facing our criminal justice system cannot be solved by this group alone. It’s time for everyone with a stake in criminal justice and public safety—which is all of us—to call for reforms that elevate and prioritize victims’ voices, provide genuine opportunities for prisoners’ moral rehabilitation, and engage the entire community in breaking the cycle of crime.
We all need to speak up to create the kind of restorative society, based on the dignity and value of every life, that each of us wants to call home.
Prior related post: