Tuesday, March 18, 2014

As a matter of law, policy and practice, what should be the "offense" a sentencer considers?

The question in the title of this post is arguably the most fundamental and important question (and one which is conceptually and practically quite difficult) for any and all sentencing systems.  And yet, this question seems rarely examined or even discussed except when there is controversy over issues like the use of acquitted or uncharged conduct in a guideline sentencing system.  Because I will be exploring this question with my sentencing students in coming classes, I am quite eager to have readers of this blog share their perspectives.

Some important consensus realities help explain why the question is conceptually and practically quite difficult: (1) nearly all sentencing systems and observers agree that the offense(s) of conviction must be a necessary and critical part of the "offense" to be considered at sentencing, but (2) nearly all sentencing systems and observers agree that at least some non-conviction, offense-related factors (such as motive and leadership role) should also be considered sentencing.  In other words, there is a consensus view that the "offense(s) of conviction" are a central but non-exclusive part of what I would call the "offense for sentencing."  That consensus, in turn, presents critical follow-up questions concerning just how a sentencing system (A) can/should define and process the "offense(s) of conviction" and (B) can/should allow, structure and/or require of any variety of non-conviction, offense-related factors.  Some of the most challenging and controversial issues of modern sentencing can often hinge on matters related to these follow-up questions/categories A and B.  

For example, under category A, a sentencing system must consider cases in which a defendant is convicted of multiple offenses and decide if a sentencer must or should group multiple convictions for sentencing consideration or should instead consider each offense distinctly and then combine in some way the sentence determined separately for each offense.  Also under category A are hard questions about offenses that have as a fundamental element the requirement of a serious prior conviction — like failure to register as a sex offender or felon in possession of a firearm.   A sentencing system has to consider if a sentencer must or should view the nature and circumstances of the predicate prior offense as important in consider the new offense of conviction.

Hard issues raised under category B are even more common and often much more controversial.  For example, if/when a defendant has been charged but not convicted of offense-related conduct either because of a jury acquittal or a plea deal, can/should/must a sentencer consider (or be barred from considering) facts and factors related to charged but unconvicted conduct?  In addition, just how much weight can/should/must a sentencer give to offense-related factors that are rarely part of a formal conviction (factors like motive and leadership role and victim impact), but that are often thought central to understanding how truly serious any specific offense really is. 

March 18, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

"The Criminal Court Audience in a Post-Trial World"

The title of this post is the title of this interesting new article by Jocelyn Simonson available via SSRN. Here is the abstract:

Legal scholars today criticize the lack of public participation in the criminal justice system as a barrier to democratic accountability, legitimacy, and fairness.  When searching for solutions, these critiques bypass consideration of the audience members who attend criminal court each day — people who fill courtrooms to watch the cases in which their friends, family, and community members have been either victimized or accused of a crime.  This is a mistake, for the constitutional function of the audience is one uniquely suited to help restore public participation and accountability in a world without juries.

The Constitution protects the democratic function of the local audience through both the Sixth Amendment right to a public trial and the First Amendment right of the public to attend criminal court.  This Article argues that these rights apply with full force in the routine criminal courtroom, in which arraignments, pleas, and sentencings, rather than trials, are taking place. Recognizing and enforcing the constitutional protection of the audience will require local criminal courts to grapple with widespread issues of public exclusion from the courtroom.  Doing so has the potential to play a part in reinvigorating the lost connection of the public to the realities of routine criminal justice, linking a generally disempowered population to mechanisms of government accountability and social change.

March 18, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, March 17, 2014

You be the federal sentencing judge: months, years or decades in prison for notable Medicaid fraudsters?

White-collar crimes, especially when there are few if any individual victims, oft raise especially tough and dynamic issues concerning how to weigh and balance offense- and offender-related sentencing consideration. These realities seem especially true in an interesting federal health care fraud case from South Carolina described in this local article. The piece is headlined "As Medicaid fraud sentencing nears, SC youth agency founder seeks leniency so he can be positive role model for his children," and here are excerpts:

The founder of the Helping Hands Youth and Family Services agency, guilty of bilking the federal Medicaid program for millions of dollars, has asked a federal judge for leniency when he is sentenced Wednesday for six felony charges related to health care fraud.

Truman Lewis — who founded the for-profit youth mentoring agency that had offices in Conway, Georgetown, Columbia and Rock Hill — said in court documents that he still maintains his innocence and deserves no more than a six-month prison sentence.

Lewis and his brother, Norman Lewis, were found guilty in an August jury trial of conspiracy to commit health care fraud, conspiracy to commit money laundering and four counts of wire fraud.  They each face up to 10 years in prison for committing health care fraud and up to 20 years in prison for the money laundering and wire fraud charges. Both men will be sentenced Wednesday in Charleston by Judge Richard Gergel.

The jury found that the Lewises billed Medicaid for $8.9 million — much of it fraudulent  — over a nearly two-year period starting in 2009, and then used the money to buy luxury cars, a beachfront condominium and homes.  At the time of their indictment in June 2012, the Lewises had $1 million in certificates of deposit and bank accounts.  The jury determined that all of those assets can be seized to help pay back the money taken through fraudulent billings.

Helping Hands — which was supposed to provide mentoring services to low-income children with family or behavioral problems — had hundreds of youth clients in Horry and Georgetown counties.  Those clients were referred to the agency by the state’s Department of Social Services and area school officials, even though the agency’s counselors were not licensed.

Truman Lewis, in a court document filed on Friday, said he “may have made mistakes along the way but does not believe he did so with a malevolent intent and is wanting to work his way out of this position he finds himself in.”

At age 35, Truman Lewis is the oldest of 14 siblings who were “sometimes forced to live on food stamps,” the court document states, adding that the youth mentoring agency he founded allowed him “to pave the way for his siblings in school and work to show them there was a way out of poverty.”  Truman Lewis said he never should have faced criminal charges because his agency had entered into a repayment plan with state officials who oversee the Medicaid program before any charges were filed.  He said a long prison sentence would be detrimental to the government because he would not be able to work and pay restitution.

If the court allows Truman Lewis “to serve a sentence below the guidelines range, he may be able to seek employment to help work on restitution to the government,” the court document states.  Truman Lewis said he also wants a minimum prison sentence so he and his wife can continue to be positive influences on their four children.  “The entire family is extremely religious and attend church regularly, sometimes four to five times weekly as a family,” the court document states, adding that Truman Lewis and his wife “have a deep abiding belief in their religious convictions and are trying to pass their beliefs on to the children.”

David McCann, a court-appointed lawyer representing Norman Lewis, filed a document Monday asking for leniency for his client, but the filing does not recommend a specific prison sentence.  A lengthy sentence for the 32-year-old Norman Lewis “interrupts his young family and presents the unnecessary cost to taxpayers for confinement and treatment, if available,” McCann said in the court filing.

Norman Lewis’ previous court appearances have been marred by outbursts and repeated requests to represent himself at trial.  Norman Lewis initially told Gergel he wanted to be represented by God and Jesus rather than a court-appointed defender.  He also spoke during an arraignment hearing about more than 100 songs and poems he has written about his work with Helping Hands, “doing so in a manner that left the court concerned with the defendant’s mental capacity.”

A psychiatric exam in December 2012 showed Norman Lewis was competent to stand trial, prompting Gergel to approve his request to represent himself. Gergel rescinded that request in February 2013 after Norman Lewis repeatedly refused to accept boxes of discovery documents needed for trial preparation.  Norman Lewis’ refusal to meet with a probation officer led to his incarceration three months later and he was charged with contempt of court in July for speaking to potential jurors.

Norman Lewis’ wife, Melanie Lewis, pleaded guilty last year to one conspiracy charge in a plea agreement to avoid a trial.  That charge carries a maximum five-year prison sentence. Melanie Lewis will be sentenced on Thursday in Charleston.

Testimony during the August trial showed Helping Hands officials — most of them Lewis family members — falsified records and submitted bills for ineligible or non-existent clients in order to boost Medicaid payments.  Lewis family members then transferred that money to personal bank accounts and purchased items such as 10 automobiles, including an $89,000 Bentley and a $55,900 Mercedes....

Bank records included in court documents show Helping Hands billed Medicaid a steadily increasing amount starting in January 2009, when the agency received $13,500 from the federal health program.  By April 2010, Helping Hands was billing Medicaid for $1 million per month.  The agency closed for good in 2011.

Based on the amount of money apparently involved in this federal fraud (as well as enhancements for leadership role and other aggravating guideline factors), I would guess that the guidelines recommend a sentence of a decade or more for Truman and Norman Lewis. But would it be more effective and efficient for them to get a shorter prison sentence coupled with a rigorous set of restitution obligations to help ensure federal taxpayers are made whole?

You be the judge (and, ideally, propose in the comments a sentence that makes a clever pun about Helping Hands).

March 17, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, March 16, 2014

NY Times sees "A Rare Opportunity on Criminal Justice"

The title of this post is drawn from the headline of this new New York Times editorial about federal sentencing reform.  Here are excerpts:

The current Congress is the place where virtually all legislation, however urgent or reasonable, goes to die.  Yet out of this stew of partisan mistrust and dysfunction there may come one promising and unexpected achievement: the first major reforms to America’s broken criminal justice system in a generation.

Two bipartisan bills now under consideration aim to unwind our decades-long mass incarceration binge and to keep it from happening again. This fact is remarkable not only because of Congress’s stubborn standstill, but because crime and punishment has long been one of the most combustible issues in American politics....

The Smarter Sentencing Act — introduced in the Senate last year by Richard Durbin, the Illinois Democrat, and Mike Lee, the Utah Republican — would halve mandatory minimum sentences for certain nonviolent drug crimes, which currently stand at five, 10 and 20 years. It would also give judges more discretion to sentence below the mandatory minimum in some cases, and it would provide a chance at early release for thousands of inmates sentenced under an older law that disproportionately punished crack cocaine offenders.

The Recidivism Reduction and Public Safety Act, introduced by Sheldon Whitehouse, Democrat of Rhode Island, and John Cornyn, the Texas Republican, would allow low-risk prisoners to earn credit for early release by participating in education, job training and drug treatment programs.

Reforms like these were unthinkable even a few years ago, when the Republicans’ longtime tough-on-crime dogma — echoed by Democrats who fearfully fell into line — drove irrational sentencing laws. Why have things changed so quickly? In a word, money — or the lack of it. The bloated Bureau of Prisons eats up nearly $7 billion a year, a quarter of the Justice Department’s entire budget. Politicians like Senator Rand Paul, Republican of Kentucky, and Mr. Lee have become the public face of the conservative turnabout, and they deserve credit for their efforts, but it’s important to remember that almost none of this would be happening without the need to save money.

In fact, many of the reforms now under consideration at the federal level began in reliably conservative states, where budget crises long ago demanded sweeping and lasting change. In Texas, which incarcerates more people than any other state, lawmakers have adopted alternatives to prison, such as drug courts and improved community supervision programs, that help keep people from reoffending. The result has been a steady decline in the prison population and the closing of three state prisons, even as crime rates go down. As Mr. Cornyn told The Times, “From Texas’s perspective, the evidence is in.”

Since 2000, 29 states have moved to cut back on mandatory sentences, particularly for low-level and nonviolent drug offenders, according to a new report by the Vera Institute of Justice.

Some prosecutors and politicians warn that all this reform comes at a serious risk to public safety, but the experience of multiple states shows otherwise.  Reserving prison for the most violent offenders saves money, and antirecidivism programs targeted at low-risk inmates protect public safety.

Whether the concern is too much government, too little money, or the inherent unfairness of locking people up for years for no good reason, the energy from both the right and the left is converging, and the moment for meaningful reform has arrived.

Though I share the general perspective that there is a “fierce urgency of now" for federal sentencing reforms, I disagree that money explains these recent developments at the federal level.  States, especially red states, have been at the forefront of modern sentencing reforms because of the need to balance budgets without raising taxes, but the feds have long shown a willingness to borrow money for any and all federal priorities. Rather, I think there is a new generation of politicians and voters who no longer view crime as much more salient concern than just and effective punishment.

Younger and more diverse politicians and voters appreciate that too much government and punishment can be as worrisome as a bit more crime, and that is what I think we are now finally getting a much more balanced federal political discourse about these issues than we did a generation ago. (Notably, the Baby Boomers were the first major generation who did not directly experience/witness the harms/problems of Prohobition and totalitarian regimes, so it makes some sense that generation would embrace a big criminal justice system eschewed by their parents and their children.)

March 16, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

Tuesday, March 11, 2014

"The Regulation of Sentencing Decisions: Why Information Disclosure Is Not Sufficient, and What To Do About It"

The title of this post is the title of this notable new paper by W.C. Bunting now available via SSRN. Here is the abstract:

This Article identifies a number of problems, both in practice and in theory, in what is denoted here as the “information disclosure model of sentencing regulation.”  While the disclosure model places a lack of information at the heart of the problem of inefficient sentencing policy, the present article explains how the problem is better understood, not as informational, but incentives-based.

A statutory appropriation requirement is described that seeks to correct an explained incentive to engage in myopic legislative decision-making; specifically, a one-year appropriation is required from a general budget fund into a statutorily-created special reserve fund for any proposed change in sentencing policy projected to increase the correctional population.  A survey of existing statutory appropriation requirements is provided and certain best practices are identified; in addition, a novel statutory provision is proposed: monies should be appropriated from the special reserve fund to the general fund if a bill is projected to decrease the correctional population.  Such withdrawals from the special reserve fund made in the current fiscal period serve as concrete, immediate evidence of the fiscal benefits of less punitive criminal sentences, where such benefits are often realized only in the long-run, and supply a novel incentive for legislators to engage in forward-looking, fiscally-responsible sentencing policy.

The present article further contends that proposed changes in sentencing policy should not be subjected to cost-benefit analysis (as opposed to fiscal impact analysis as required under the statutory appropriation requirement), because the retributive value of a criminal sentence is extremely difficult to measure given the current state of estimation technology.

March 11, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, March 10, 2014

"Little-Known Health Act Fact: Prison Inmates Are Signing Up"

The title of this post is the headline of this front-page New York Times article.  Here is how it gets started and additional excerpts:

In a little-noticed outcome of President Obama’s Affordable Care Act, jails and prisons around the country are beginning to sign up inmates for health insurance under the law, taking advantage of the expansion of Medicaid that allows states to extend coverage to single and childless adults — a major part of the prison population.

State and counties are enrolling inmates for two main reasons. Although Medicaid does not cover standard health care for inmates, it can pay for their hospital stays beyond 24 hours — meaning states can transfer millions of dollars of obligations to the federal government.

But the most important benefit of the program, corrections officials say, is that inmates who are enrolled in Medicaid while in jail or prison can have coverage after they get out. People coming out of jail or prison have disproportionately high rates of chronic diseases, especially mental illness and addictive disorders. Few, however, have insurance, and many would qualify for Medicaid under the income test for the program — 138 percent of the poverty line — in the 25 states that have elected to expand their programs....

Opponents of the Affordable Care Act say that expanding Medicaid has further burdened an already overburdened program, and that allowing enrollment of inmates only worsens the problem. They also contend that while shifting inmate health care costs to the federal government may help states’ budgets, it will deepen the federal deficit. And they assert that allowing newly released inmates to receive could present new public relations problems for the Affordable Care Act. “There can be little doubt that it would be controversial if it was widely understood that a substantial proportion of the Medicaid expansion that taxpayers are funding would be directed toward convicted criminals,” said Avik Roy, a senior fellow at the Manhattan Institute, a conservative policy group....

In the past, states and counties have paid for almost all the health care services provided to jail and prison inmates, who are guaranteed such care under the Eighth Amendment. According to a report by the Pew Charitable Trusts, 44 states spent $6.5 billion on prison health care in 2008.

 In Ohio, health care for prisoners cost $225 million in 2010 and accounted for 20 percent of the state’s corrections budget. Extended hospital stays — treatment for cancer or heart attacks or lengthy psychiatric hospitalizations, for example — are particularly expensive Stuart Hudson, managing director of health care for Ohio’s Department of Rehabilitation and Correction, said his department, which plans to start enrolling inmates in Medicaid when they have been in the hospital for 24 hours, expects to save $18 million a year through the practice, “although it’s hard to know for sure, because there’s other eligibility factors we have to keep in mind.”

Nancy Griffith, Multnomah County’s director of corrections health, said the county expected to save an estimated $1 million annually in hospital expenses by enrolling eligible inmates and passing the costs to the federal government. More money could be saved over the long term, she added, if connecting newly released inmates to services helps to keep them out of jail and reduces visits to emergency rooms, the most expensive form of care. “The ability for us to be able to call up a treatment provider and say, ‘We have this person we want to refer to you and guess what, you can actually get payment now,’ changes the lives of these people,” Ms. Griffith said.

Rick Raemisch, executive director of Colorado’s Department of Corrections, said that billing Medicaid for hospital care would save “several million dollars” each year.  But as important, he said, was the chance to coordinate care for prisoners after their release. About 70 percent of prison inmates in the state have problems with addiction, he said, and 34 percent suffer from mental illness.

Recent related posts:

March 10, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, March 05, 2014

Kentucky GOP representative sets out "conservative arguments in favor of repeal" of the death penalty

I just cam across this recent op-ed by David Floyd, a Republican member of Kentucky's General Assembly, explaining why he has introduced a bill to repeal his state's death penalty.  Here are some excerpts from the op-ed:

My initial opposition formed through a spiritual lens, so in 2007 I joined others in cosponsoring legislation to repeal the death penalty.  But I was the only conservative legislator in a group of liberals.  Over these last few years, “liberal” and spiritual arguments have failed to persuade other legislators to take up these bills.

How, then, might we bring other conservatives with us, and at last vote to abolish our death penalty?  This can be done by exploring together conservative arguments in favor of repeal.

• Conservatives value innocent life and should not support a state government program that can kill innocent people....

• Conservatives are mindful of the potential to abuse power that has been granted by the people, and should not trust the government with the power to execute a person who is safely behind bars....

• Conservatives are the first to call out government programs that fail to meet intended goals and cost exorbitant amounts of money....

• Conservatives want a government that will balance budgets, cut waste and eliminate programs that do not make fiscal sense.

Kentucky’s death penalty is a program that costs a lot while accomplishing little. We’ve spent well more than $100 million on the death penalty since 1976 — and executed three people.  Having a death penalty is clearly wasting taxpayer dollars, while a penalty of life without the possibility of parole makes much better economic sense....

Capital punishment in Kentucky is a broken government program that risks killing the wrongly convicted, risks abuse of power, wastes resources, is arbitrary and unjust. We’ve tried to make the death penalty work, but we have been unable to fix its many problems and reconcile it with our conservative principles. We should repeal the death penalty and replace it with life without parole.  It’s the only way to ensure that no innocent people are killed by the Commonwealth of Kentucky, and that those impacted by the process get finality much sooner.

March 5, 2014 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing | Permalink | Comments (16) | TrackBack

Just what is Ohio doing so right with respect to reentry and recidivism? Can it be replicated nationwide?

The question in the title of this post is my reaction to this wonderful new AP news from my own state, which carries the headline "State reports record-low Ohio prisoner return rate."  Here are the details:

Fewer Ohio prisoners than ever are going back to prison after they’ve been released, the state announced Wednesday, attributing the drop to community programs that work with newly released prisoners, and new prison units that prepare people for life outside bars.  The Department of Rehabilitation and Correction says the current inmate return rate of 27.1 percent, down from 28.7 percent a year ago, is far below the national rate of 40 to 44 percent.

The rate affects not just the prison system’s bottom line but the bigger goal of reducing crime in Ohio, prisons director Gary Mohr said.  “If our people being released from prison are committing less offenses, then we have less crime victims,” Mohr told The Associated Press. “I think that’s the most important piece.”  Saving money on prison operations also means more state dollars can be spent earlier in people’s lives on things like education, he added.

Going forward, the expansion of Medicaid is expected to help connect incarcerated people to needed resources as they come home.  The state projects that roughly 366,000 residents will be newly eligible for coverage by the end of June 2015 by increasing the state-federal health care program for poor children and families.  Mohr says a lower return rate will also help the state reduce its prisoner population, currently about 50,500.

A 2011 sentencing law meant to lower the number hasn’t had the desired impact, leading to fears that the state may need to spend millions to build a new prison after 2017, while pushing judges to rethink sentences and placing a greater emphasis on rehabilitation.  The current prison population hasn’t changed much since 2011, despite projections that it would drop to 47,000 by 2015 and continue to decline.... Ohio’s prisoner population could grow to 52,000 in two years and top 53,000 in six years, Mohr warned last year....

It’s not that the 2011 law is failing.  Challenges, including a recent increase in violent crime and an uptick in cases filed by prosecutors, are holding back promises that the law would lower the prisoner population.  Ohio Supreme Court Chief Justice Maureen O’Connor has said the courts are also part of the problem and called on judges to be more diligent about reducing the number of offenders behind bars.

The rate announced Wednesday is based on a three-year study of inmates released in 2010.

The report/study on which this article is based is available at this link under the simple title "DRC Recidivism Rates."  I would be grateful for any and all help figuring out if there are other big important conclusions or lessons (good or bad) to be drawn from this report beyond the one discussed above.

March 5, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, March 04, 2014

Might Obamacare end up reducing prison populations "more than any reform in a generation"?

The question in the title of this post is drawn from the headline of this new Newsweek article that purports to explain "How Obamacare May Lower the Prison Population More Than Any Reform in a Generation." Here are a few highlights:

[The] the Patient Protection and Affordable Care Act (ACA) ... may be the biggest piece of prison reform the U.S. will see in this generation.

On the face of it, there’s no direct connection between the ACA and what experts refer to as the “justice-involved population.”  There’s no mention of prisons or jails or even crime in the language of the law.  However, in what proponents of the act are considering a happy public policy accident, the ACA may inadvertently change the makeup of the U.S. prison population by getting early help to those with mental health and drug abuse issues, ultimately reducing recidivism rates and saving states millions, if not billions, of dollars annually....

The last major study on mental health in prisons, conducted by the Bureau of Justice Statistics, found that 64 percent of inmates in state and federal prisons met the criteria for mental illness at the time of their booking or during the twelve months leading up to their arrest.  For comparison, the rate of mental disorders among U.S. citizens stands at around 25 percent, according to the NIH.  Sixty-nine percent of the country’s prison population was addicted to drugs or alcohol prior to incarceration....

Health and crime have become inextricable in the U.S. Health issues such as drug addiction and severe mental health disorders directly lead to illegal activities and eventual imprisonment.  A high percentage of those incarcerated are guilty of crimes directly related to medical issues, such as illegal drug use or theft to support an addiction.

This population — the poor, homeless, addicted, and mentally ill — has never had any health safety net.  With no jobs or income, they are highly unlikely to have private insurance, and Medicaid — the federally-funded health coverage option meant to protect the poorest Americans — is actually only available to a select group of individuals. Though it varies state by state, eligibility is always categorical, which means besides having a low income, Medicaid is only available to five types of people: pregnant women, children below a certain age, parents of Medicaid-eligible children, the disabled, and seniors.

Essentially, Medicaid left out poor, single, male adults without dependant children – the same demographic most likely to end up arrested and incarcerated.  Starting in January 2014, however, the categories have been eliminated (at least in the states that have chosen to take the medicaid expansion — it is an optional aspect of the ACA).  “That means that a lot of people who are going to jail for mental illness or substance abuse related crimes could potentially avoid jail,” says Marsha Regenstein, a professor of health policy at George Washington University.

Of course, these people are hard to reach, and eligibility doesn’t ensure coverage or healthier behavior.  That’s why the bigger opportunity, according to many health and justice policy experts, is to reach and help this population at the points where they do become involved with the justice system....

[T]he right to health care only applies to the length of a person’s sentence.... [A] 2013 report in California, for example, found that 90 percent of prisoners had no health care upon release. Once released, prisoners are likely to discontinue their meds, delay seeing primary care doctors (out of concern for costs), and, as a result, end up in emergency rooms — where high treatment costs are passed on to everyone else via insurance premiums.

This is not just a public health issue; it’s a public safety concern. Lack of care for chronic conditions creates additional long-term problems, like being physically or mentally unfit for employment. In conjunction with a lack of appropriate care for their drug problems and an inability to effectively medicate their mental health disorders, the formerly incarcerated are likely to return to a life of crime.

Many hope and believe that change is on its way. The Justice Department estimates suggest that with the expansion of Medicaid, 5.4 million ex-offenders currently on parole or probation could get the health care they need.  (It’s important to note that 25 states plus Washington, D.C. have implemented the Medicaid expansion as of 2014. However, many policy experts expect the remaining states to fall in line, citing the historical example of how CHIP was initially rejected by many states when it rolled out in 1997, but is now utilized in every state in the country.)

Even with coverage, those ex-offenders will still need to actually utilize those health, and the key will be making the connection at the time of release. The biggest challenge will be getting state justice systems and health systems — not exactly happy bedfellows in past years — to work together to create coordinated discharge planning between jails and community healthcare....

The cost savings associated with keeping former prisoners out of the ER and out of prisons will likely lead leadership at the highest levels — state governors, for example — to push for the types of collaboration that will keep ex-offenders healthy and out of trouble....

Ultimately, because there is no precise directive in the ACA, the choice on how to handle these issues will be made independently in every state, and in every county. In some cases, reform will be swift; in others, life may go on as though Obamacare never happened.

March 4, 2014 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (28) | TrackBack

"15 Years In Environment Of Constant Fear Somehow Fails To Rehabilitate Prisoner"

OnionThe title of this post is the headline of this amusing new item in The Onion sent my way by one of my terrific students.  Here are highlights from this all-too-biting satire:

Reportedly left dumbfounded by the news that recent parolee Terry Raney had been reincarcerated on charges of assault and battery, officials at Woodbourne Correctional Facility struggled Tuesday to make sense of how the prisoner had not been rehabilitated by 15 years of constant threats, physical abuse, and periodic isolation.

“It just doesn’t seem possible that an inmate could live for a decade and a half in a completely dehumanizing environment in which violent felons were constantly on the verge of attacking or even killing him and not emerge an emotionally stable, productive member of society,” said chief warden Albert Gunderson, who noted that, as hard as it was to believe, Raney’s recidivism proved that his criminal impulses had not in fact been corrected by the sense of grave distrust he felt toward every other person in the facility, including both fellow inmates and prison authorities, every day since 1999....

Gunderson [also] noted his additional confusion at how the man’s criminal record and the social stigma of his prison sentence had somehow failed to land him a steady job immediately upon his release.

March 4, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (7) | TrackBack

Monday, March 03, 2014

"Holder and Republicans Unite to Soften Sentencing Laws"

The title of this post is the headline of this notable new New York Times article, which includes these excerpts:

Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.

Mr. Paul, a Kentucky Republican, is one of the Obama administration’s most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory-minimum prison sentences for nonviolent drug offenders.

The Democratic attorney general and the possible Republican presidential candidate are unlikely allies. But their partnership is crucial to an alliance between the nation’s first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress’s most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.

Together, they could help bring about the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs. In 2010, Congress unanimously voted to abolish the 100-to-1 disparity between sentences for crack cocaine offenses and those for powdered cocaine, a vestige of the crack epidemic. Now, the Obama administration and its allies in Congress are pushing to go even further. Mr. Holder wants to make prisoners eligible for early release if they were sentenced under the now-abolished crack guidelines. And he wants judges to have more discretion when it comes to sentencing nonviolent drug offenders....

Libertarian-minded Republicans see long prison sentences as an ineffective and expensive way to address crime. “This is the definition of how you get bipartisan agreement,” Mr. Paul said in an interview. “It’s not splitting the difference. It’s finding areas of common interest.”

Mr. Paul is backing a sentencing overhaul bill, also supported by Mr. Holder and the Obama administration, that he predicts will pass the Senate with support from up to half of its Republicans. The bill’s sponsors include Democratic stalwarts such as Senator Richard J. Durbin of Illinois and Senator Patrick J. Leahy of Vermont, the Judiciary Committee chairman, as well as Republicans with strong Tea Party credentials like Senator Mike Lee of Utah and Senator Ted Cruz of Texas

Similar legislation is pending in the House, where libertarians and Tea Party conservatives will be crucial to determining its fate if it comes up for a vote. That is the same group that bucked the Obama administration and nearly succeeded in passing legislation prohibiting the National Security Agency from seizing the phone records of millions of Americans.

Some Republicans say that they are the ones being consistent on matters of protecting liberties, and that Mr. Holder’s push for changes to the sentencing laws is a step in their direction, not the other way around. “I would say Eric Holder supports me and my civil liberties bill,” said one of the House bill’s sponsors, Representative Raúl R. Labrador, an Idaho Republican who once demanded Mr. Holder’s resignation over the botched gun-trafficking case called Operation Fast and Furious....

Mr. Holder noted that a third of the Justice Department’s budget is spent running prisons. That resonates with fiscal conservatives like Representative Jason Chaffetz, Republican of Utah. Mr. Chaffetz once suggested that Republicans might have Mr. Holder arrested for contempt. But Mr. Holder recently had him for breakfast at the Justice Department....

Mr. Chaffetz said his conversations with Mr. Holder represented “one of the few instances I can point to where we’re starting to make some kid steps forward” toward bipartisan collaboration.... “I think there’s a realization that we’re not actually solving the problem with some of these drug crimes,” Mr. Chaffetz added. “But on the other side of the coin, there’s no trust with the Obama administration. None.”...

Representative Trey Gowdy, a South Carolina Republican and a former federal prosecutor, joined Mr. Chaffetz for breakfast at the Justice Department and described Mr. Holder as a gracious host. “The fact that he’s taking the time to talk to two backbenchers, he certainly didn’t have to do that,” Mr. Gowdy said.

Mr. Gowdy said he was convinced that mandatory sentences made little sense for minor offenses. But he doubts that a sentencing bill can pass the House, in part because voters in Republican districts oppose so many of the Obama administration’s policies. Mr. Holder’s push for same-sex marriage does not make it easier, he said.

Mr. Paul was more optimistic. He said conservatives and liberals would join in support of changing sentencing laws, just as they have joined in opposition of the N.S.A.'s domestic surveillance programs.... As the meeting concluded, they agreed to work together and said their goodbyes. Then Mr. Paul wryly added, “I’ll see you in court.”

Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:

March 3, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack

Wednesday, February 26, 2014

"The Supreme Court and the Rehabilitative Ideal"

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

Graham v. Florida was a watershed decision, not least because of the centrality of the so-called “rehabilitative ideal” to its holding that life in prison for juveniles convicted of nonhomicide crimes was cruel and unusual.  The Court’s emphasis on rehabilitation was surprising both in terms of the Court’s previous decisions on punishment, in which rehabilitation was barely included as a “purpose of punishment,” but also in terms of the history of academic and legislative skepticism if not hostility toward the idea of rehabilitation (which includes two recently decided sentencing cases, Tapia and Pepper). Courts and commentators have struggled to make sense of both the meaning and the scope of Graham’s rehabilitative holding.  Their struggle is one about defining how (and whether) rehabilitation should play any substantial role in sentencing.

My essay places Graham in the context of the recent history of rehabilitation, and views its attempt to “rehabilitate” rehabilitation in light of that history.  The rehabilitative ideal encompasses not just one model, but three: the mostly discredited model of rehabilitation as treatment, a more modest model of rehabilitation as training, and an older model of rehabilitation as reform.  Both the language and the result of Graham show it to be squarely in the tradition of the third model, where rehabilitation is not something the state provides, but something the offender is supposed to undergo, through a process of reflection, remorse, and atonement.  Rehabilitation as reform is notable because it is compatible with a suspicion that prison in general is a bad place for rehabilitation and that it is unlikely that the state can do anything to positively aid the offender in reforming.  At best, the state must get out of the way.  Whether we want to extend Graham or reject it depends on whether we find its ideal of rehabilitation as reform appealing.

February 26, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, February 24, 2014

You be the federal sentencing judge: "tough call" in sentencing former police chief

The title of this post is drawn from the headline of this notable local story about tomorrow's scheduled federal sentencing for Pittsburgh's former police chief. The piece is headlined "Former Pittsburgh police chief's sentencing a tough call for judge Ex-chief Nate Harper's sentencing 'difficult'."  Because I am never quite sure whether I think a law-enforcement background justifies a harsher or lighter sentence, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this former cop. Here are some of the details the federal judge must consider in this case:

When former New York City police commissioner Bernard Kerik -- who once ran the Big Apple lockup Rikers Island -- walked into a federal penitentiary as a prisoner in 2010, it was, he said, like "dying with your eyes open."...

At the Federal Correctional Institution Cumberland, in Maryland, where he served his sentence, he lived among the kinds of people he spent his life locking up. That's what former Pittsburgh police chief Nate Harper could face following his sentencing, set for Tuesday.

Mr. Harper's fate is in the hands of U.S. District Judge Cathy Bissoon, who rose to that post in late 2011 after three years as a magistrate judge. She faces a decision in which she must weigh Mr. Harper's history, his precise role in the conspiracy to commit theft and the importance of deterring others from similar dips into the public cookie jar.

Though federal guidelines suggest a sentence of 1.5 to two years, she can go as low as probation or as high as five years. "It comes down to a very difficult call for a judge," said Bruce Antkowiak, a former federal prosecutor and now a law professor at Saint Vincent College in Latrobe. "The strongest cards [Mr. Harper's attorneys] have to play are his history with the department, the decades of work he has put in, the numbers of other people from law enforcement who evidently respect him."

Those same factors, though, could count against him. "Either you think this is a fundamentally decent guy who did something wrong, or you think this is a public official who should be held to another standard," said Wesley Oliver, the Criminal Justice Program director at the Duquesne University School of Law.

Mr. Harper could argue that his lawman background puts him at risk in prison. The U.S. Supreme Court found in the case of police sergeant Stacey Koon, sentenced to prison in the beating of Los Angeles motorist Rodney King, that judges can give lighter sentences to defendants who are "unusually susceptible to prison abuse."

In the recent case of former corrections officer Arii Metz, though, prosecutors countered that argument by showing that the federal prisons already house many former police in relative security. As of last month, there were 1,269 former law enforcement officials in federal custody, according to the Bureau of Prisons. "There are guys who are going to hate him because he was a cop," Mr. Kerik said. "There are going to be guys who are going to respect him because he was a cop."

Mr. Harper pleaded guilty in October, confirming that he failed to file tax returns for four years and diverted $70,629 in public funds into an unauthorized credit union account and spending $31,987 on himself. The prosecution has maintained that Mr. Harper told two civilian subordinates to open and handle the account, making him a supervisor in the conspiracy, and subject to a harsher sentence.

The defense has countered that Mr. Harper had no co-conspirators, but also that the unauthorized account wasn't his idea. They haven't yet named the alleged mastermind. "The government's response is going to be: Who cares?" Mr. Antkowiak said. "When you admit that you told two city employees to open these accounts and draw the Visa cards on them, you're a supervisor" of the crime....

Two defendants -- both of whom were given credit for cooperation -- publicly blamed Mr. Harper for a separate bid-rigging scheme in hearings before Judge Bissoon. The former chief has never been charged in relation to the incident, a contract won by Alpha Outfitters -- a company controlled by the chief's long-time friend -- to install and maintain computers and radios in police cars.

The judge shouldn't give much weight to their accusations, Mr. Oliver said, though he noted that the charge "tends to tear down the narrative that the defendant is trying to tell" about a good man with a bad debit card.

With the eyes of the public, and especially of law enforcement, on the case, the judge may carefully weigh the deterrent effect of the sentence. "Look, one of the things a judge always considers is what kind of message [she's] sending with this sentence," said John Burkoff, a law professor at the University of Pittsburgh. " 'What's the message I'll be sending to police officers who may be tempted to do something bad if I'm lenient?' "

Mr. Kerik, now an advocate for sentencing reform, suggested that the message has already been sent. It could be amplified, he said, if the judge gives Mr. Harper probation but orders him to speak to police recruit classes about his crime and punishment. "They're going to take his pension," Mr. Kerik said. "You've taken his reputation. He's now a convicted felon. He's going to have legal fees he'll have to pay for. That guy has been destroyed."

UPDATE: This local report details the sentencing outcome in its headline: "Former Pittsburgh chief Harper gets 18-month prison sentence."

February 24, 2014 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Sunday, February 23, 2014

"Shadow Sentencing: The Imposition of Supervised Release"

The title of this post is the headline of this notable new paper by Christine S. Scott-Hayward concerning a too-rarely examined component of the federal criminal justice system. Now available via SSRN, here is the abstract:

More than 95 percent of people sentenced to a term of imprisonment in the federal system are also sentenced to a term of supervised release.  Since it was first established in the late 1980s, nearly one million people have been sentenced to federal supervised release. The human and fiscal costs of this widespread imposition are significant.  Supervised release substantially restricts an individual’s liberty and people on supervised release receive diminished legal and constitutional protections.  The fiscal costs of supervised release are also high, particularly when almost one third of people on supervised release will have their supervision revoked and will return to prison.

Despite the importance of supervised release, little is known about how and why sentencing judges impose supervised release and what purpose it is supposed to serve in the federal criminal justice system.  In most cases, supervised release is not mandatory and yet judges consistently fail to exercise their discretion in this area and impose supervised release in virtually all cases.

Based on an empirical study of sentencing decisions in the Eastern District of New York, this article uncovers previously unidentified features of supervised release.  It finds that judges widely impose supervised release without any apparent consideration of the purpose served by the sentence.  This article argues that supervised release is over-used and proposes a new framework for its imposition to ensure that courts only impose supervised release on people who need it.

February 23, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, February 21, 2014

How might opponents of marijuana reform want Colorado to spend its $100 million in new annual tax revenue?

The question in the title of this post is prompted by the notable tax revenue news emerging from Colorado as reported in this New York Times piece headlined "Colorado Expects to Reap Tax Bonanza From Legal Marijuana Sales." Here are the basics (with some of the existing state spending plans highlighted):

For Colorado’s new flock of recreational marijuana growers and sellers, Thursday was Tax Day — their first deadline to hand over the taxes they had collected during their inaugural month of sales. And as store owners stuffed cash into lockboxes and made the nervous trek to government offices, new budget numbers predicted that those marijuana taxes could add more than $100 million a year to state coffers, far more than earlier estimates.

The figures offered one of the first glimpses into how the bustling market for recreational marijuana was beginning to reshape government bottom lines — an important question as marijuana advocates push to expand legalization beyond Colorado and Washington State into states including Arizona, Alaska and Oregon.

In Colorado, where recreational sales began on Jan. 1 with hourlong waits, a budget proposal from Gov. John W. Hickenlooper estimated that the state’s marijuana industry could reach $1 billion in sales in the next fiscal year, with recreational sales making up about $610 million of that business. “It’s well on its way to being a billion-dollar industry,” said Michael Elliott, executive director of the Marijuana Industry Group, a Colorado trade association. “We went from 110,000 medical marijuana patients to four billion people in the world who are 21 and up.”

In the budget proposal that Mr. Hickenlooper released Wednesday, his office said the state could collect about $134 million in taxes from recreational and medical marijuana for the fiscal year beginning in July. He proposed to spend $99 million on programs including substance-abuse treatment, preventing marijuana use by children and teenagers, public health and law enforcement.  “This package represents a strong yet cautious first step toward ensuring a safe and responsible regulatory environment,” Mr. Hickenlooper wrote in the proposal.

In Washington, where retail sales of marijuana are expected to begin in June, budget forecasters estimated Wednesday that marijuana could bring the state nearly $190 million in taxes for the four years beginning in the middle of 2015. That money would go to a variety of health and substance-abuse programs, and the state’s general fund. “Every governor and legislator in the country will be like, ‘Hey, check out these numbers,’ ” said Reuven Carlyle, a Democratic state lawmaker from Seattle who is chairman of the House Finance Committee.

For marijuana advocates, taxes were one of the major selling points of legalization. They have said that expanding the market for the federally prohibited plant could give states money for school construction, health care, substance-abuse programs and public health. Colorado’s legalization measure said $40 million in tax revenue would go toward school construction, and in November, voters across this otherwise tax-averse state overwhelmingly approved 25 percent taxes on recreational marijuana.

But opponents, and some skeptical economists, say the dreams of a windfall are far too optimistic. They worry that the higher costs of enforcement and regulation could outweigh any tax revenue from marijuana sales.

Officials in Colorado and Washington warned that the marijuana revenue numbers were only their best guesses for the moment and could shift, depending on marijuana prices, demand, the number of cities that prohibit marijuana retailers and other factors. In Washington, where retail sales have not begun, Mr. Carlyle said it was far too early to say how marijuana might affect the state’s pocketbook.

As this article suggests, it is likely far too early to assume that Colorado can expect to reap $100 million in extra tax revenues every year in the future. But it is now plainly not too early to start a robust discussion — in which I want marijuana reform opponents to play a leading role — about the best ways for the new state tax revenue from marijuana legalization to be used.

Given the limited evidence of success for youth drug education programs like DARE, I am not sure it is wise to invest too much of the new state money on programming to prevent marijuana use by children and teenagers. But I do think spending more money on law enforcement and public health and substance-abuse programs is a great idea, and I would expect that some very significant public safety (and other) benefits ought to be achievable with $100 million in extra tax revenues to spend on such programming.

I suspect fierce opponents of marijuana reform have a much different perspective than I have about the needs of a state like Colorado and its local communities as it move forward with its experiments in ending pot prohibition. Ergo, I am genuinely hopeful that readers deeply concerned with what is unfolding in Colorado and Washington and other states will express their views on how communities ought to be using its new tax revenues.

February 21, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, February 19, 2014

NY Times debates "Sentencing and the 'Affluenza' Factor"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing the import and impact on sentencing of an offender's background.  Here is the section's set up:

This month a judge in Texas ordered a 16-year-old boy who killed four people in a drunken-driving crash to enter rehabilitation as part of 10 years of probation she imposed without a jail sentence.  A defense psychologist had said the teenager suffered from ”affluenza,” his judgement stunted by his pampered, privileged upbringing.

The case has angered many who have said that a poor person would have been imprisoned, without the same considerations.  To what extent should life circumstances affect sentencing?

Here are the contributions, with links via the commentary titles:

February 19, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Tuesday, February 18, 2014

Could marijuana reforms end up making our roadways much safer?

The question in the title of this post might be a bit of foolish wishful thinking on my part, but these passages from this notable new New York Times article provides the foundation for my (undue?) optimism:

[S]cience’s answers to crucial questions about driving while stoned — how dangerous it is, how to test for impairment, and how the risks compare to driving drunk — have been slow to reach the general public.  “Our goal is to put out the science and have it used for evidence-based drug policy,” said Marilyn A. Huestis, a senior investigator at the National Institute on Drug Abuse.  “But I think it’s a mishmash.”

A 2007 study found that 12 percent of the drivers randomly stopped on American highways on Friday and Saturday nights had been drinking.  (In return for taking part in the study, intoxicated drivers were told they would not be arrested, just taken home.)  Six percent of the drivers tested positive for marijuana — a number that is likely to go up with increased availability.  Some experts and officials are concerned that the campaign against drunken driving has not gotten through to marijuana smokers.

“We’ve done phone surveys, and we’re hearing that a lot of people think D.U.I. laws don’t apply to marijuana,” said Glenn Davis, highway safety manager at the Department of Transportation in Colorado, where recreational marijuana use became legal on Jan. 1. “And there’s always somebody who says, ‘I drive better while high.’ ”

Evidence suggests that is not the case. But it also suggests that we may not have as much to fear from stoned driving as from drunken driving.  Some researchers say that limited resources are better applied to continuing to reduce drunken driving.  Stoned driving, they say, is simply less dangerous.

Still, it is clear that marijuana use causes deficits that affect driving ability, Dr. Huestis said.  She noted that several researchers, working independently of one another, have come up with the same estimate: a twofold increase in the risk of an accident if there is any measurable amount of THC in the bloodstream....

The estimate is low, however, compared with the dangers of drunken driving. A recent study of federal crash data found that 20-year-old drivers with a blood-alcohol content of 0.08 percent — the legal limit for driving — had an almost 20-fold increase in the risk of a fatal accident compared with sober drivers. For older adults, up to age 34, the increase was ninefold.

The study’s lead author, Eduardo Romano, a senior research scientist at the Pacific Institute for Research and Evaluation, said that once he adjusted for demographics and the presence of alcohol, marijuana did not statistically increase the risk of a crash. “Despite our results, I still think that marijuana contributes to crash risk,” he said, “only that its contribution is not as important as it was expected.”

The difference in risk between marijuana and alcohol can probably be explained by two things, Dr. Huestis and Dr. Romano both say. First, stoned drivers drive differently from drunken ones, and they have different deficits. Drunken drivers tend to drive faster than normal and to overestimate their skills, studies have shown; the opposite is true for stoned drivers. “The joke with that is Cheech and Chong being arrested for doing 20 on the freeway,” said Mark A. R. Kleiman, a professor of public policy at the U.C.L.A. School of Public Affairs....

Another factor is location. A lot of drinking is done in bars and clubs, away from home, with patrons driving to get there and then leaving by car. By contrast, marijuana smokers tend to get high at home....

All of these facts lead experts like Dr. Romano and Dr. Kleiman to believe that public resources are better spent combating drunken driving. Stoned driving, they say, is best dealt with by discouraging people from mixing marijuana and alcohol — a combination that is even riskier than alcohol alone — and by policies that minimize marijuana’s risk on the road.

For instance, states that legalize recreational marijuana, Dr. Kleiman said, should ban establishments like pot bars that encourage people to smoke away from home. And Dr. Romano said that lowering the legal blood-alcohol concentration, or B.A.C., to 0.05 or even 0.02 percent would reduce risk far more effectively than any effort to curb stoned driving. “I’m not saying marijuana is safe,” he said. “But to me it’s clear that lowering the B.A.C. should be our top priority. That policy would save more lives.”

My supposition based on this article that marijuana reforms could end up making our roadways much safer is a result of two potential impacts of ending pot prohibition: (1) if marijuana reform leads a number of people who would generally go get drunk at a bar to instead now just get stoned at home, the net effect will be safer roads, and (2) if enduring concerns about the impact of marijuana reform leads more policy-makers to focus on highway harms, we might see a greater effort to get much tougher on the enduring public safety disaster that is drinking and driving.

I am not expecting that we will get strong evidence that marijuana reforms end up making our roadways much safer anytime soon, but I am hopeful that researchers like Dr. Romano and Dr. Kleiman continue to stress that our modern alcohol policies and practices now impact highway safety much more than any marijuana reforms are likely to do. And, as these related recent articles also highlight, the media so far is doing a pretty good job defusing the risk of misguided reefer madness when it comes to driving under the influence:

Cross-posted at Marijuana Law, Policy and Reform

February 18, 2014 in Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

Monday, February 17, 2014

Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility

Sister Megan RiceThis new report from The Guardian, headlined "84-year-old nun who broke into Tennessee weapons plant awaits fate," spotlights a high-profile federal sentencing case (previously discussed in this post) that is scheduled for final sentencing tomorrow morning.  Here are excerpts:

An 84-year-old nun who broke into a Tennessee weapons plant and daubed it with biblical references, will learn on Tuesday whether she will spend what could be the rest of her life in prison.

Two weeks ago, at a sentencing hearing, a judge ordered Sister Megan Rice and her co-defendants, two other Catholic anti-nuclear activists, Greg Boertje-Obed, 58, and Michael Walli, 64, to pay $53,000 for what the government estimated was damage done to the plant by their actions.

All three defendants were convicted of sabotage after the break-in at the Y-12 nuclear weapons plant at Oak Ridge, Tennessee, on 28 July 2012. The charge, under a statute of the US criminal code used against international and domestic terrorism, carries a maximum sentence of up to 30 years. The government have asked for the trio to be given prison sentences of between five and nine years. They would have learned their fate in the January hearing, but it was cut short due to bad weather and rescheduled for Tuesday.

In an interview with the Guardian from Knox county jail as she awaited her fate, Rice said she hoped US district judge Amul Thapar would seize the opportunity to “take his place in history” and sentence them in a way that would reflect their symbolic, non-violent actions – actions she said that were intended to highlight the US stockpile of nuclear weapons they believe is immoral and illegal.

“I hope he will answer his conscience,” said Rice, in an interview 24 hours before the last sentencing hearing. “He knows what to do.” She and her co-defendants have been in prison, mostly in Ocilla, Georgia, for eight months, a period of time her lawyers say is sufficient punishment for the break-in.

Thapar has received hundreds of letters and a 14,000 signature petition pleading for leniency in this case, including from Rice’s religious order, the Society for the Holy Jesus, which asked for a reduced or suspended sentence given “her age, her health and her ministry”. Lawyers for Rice, Boertje-Obed, a Vietnam veteran from Washington DC and Walli, a painter from Duluth, Minnesota, have asked for leniency and say the trio admitted have what they did.

The US government contends that none of the defendants arguments merit leniency. At the hearing on 28 January, it said they did not accept they had committed crimes, took no responsibility for them, showed no contrition and, then, during the trial, proceeded to argue against the laws they had broken. It has described the three, who have previous convictions related to their protest activities, as “recidivists and habitual offenders”.

Jeffery Theodore, assistant US attorney general for the eastern district of Tennessee, told the court that the three “pretty much celebrated their acts”.  At the January hearing, he described their argument that they were trying to uphold international law as “specious and disingenuous” and said there had been no single case where international law has been seen as justification for breaking US laws.  The judge agreed with Theodore that the defendants were not remorseful and that they didn’t accept any responsibilities for their crimes, and said they would not be given downward departures for admitting responsibility.

At the January hearing, four character witnesses for the defendants gave powerful testimony about their strong Christian and pacifist principles, their commitment to helping others and their dedication to their cause. They, and the scores of supporters crowded into the courtroom, also provided an insight into the close-knit nature of the anti-nuclear faith community.

Regular readers are surely not surprised to hear that I find this federal sentencing case very interesting for a number of reasons.  But they may be surprised to learn that US District Judge Amul Thapar used the sentencing break/delay as an opportunity to request that I submit a "friend-of-the-court brief" to assist the Court as it tackled some challenging issues concerning the departure requests made by one of the defendants. I was honored and grateful to be able to provide such assistance directly to the court, and below I have uploaded Judge Thapar's order (which requests my submission at the end) and my submission in response:

Recent related post:

February 17, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, February 15, 2014

"Healthcare Not Handcuffs": Will ACA help end the drug war?

JUS13-Web-HCNHC-Header-REL2The title and question of this post is my take on this notable recent report from the ACLU and the Drug Policy Alliance titled "Healthcare Not Handcuffs: Putting the Affordable Care Act to Work for Criminal Justice and Drug Policy Reform." Here is an excerpt from the report's introduction:

The Affordable Care Act (ACA) is the most significant expansion of healthcare coverage in generations, and there is almost no area of the U.S. healthcare system that is not impacted by the reform in some way.  Even as debate about the ACA continues, it is now the law of the land, and implementation is fully under way.  For criminal justice reform and drug policy reform advocates, the ACA represents a remarkable opportunity to advance efforts to end both mass incarceration and the criminalization-based approach to drug policy often known as the War on Drugs.

Under the ACA, tens of millions of people in the United States will gain healthcare coverage for a broad array of health services and conditions, including, for the first time, substance use and mental health disorders.  Of course, there are also problems with the ACA and its implementation, not the least of which is that millions of people will remain uninsured even after the law is fully operational.  Yet even with these challenges, the ACA sets the stage for a new health-oriented policy framework to address substance use and mental health disorders -- health problems that have been largely relegated to the criminal justice system for more than 40 years.

This is an enormous paradigm shift that has yet to fully register with criminal justice and drug policy reform advocates, let alone with health policy advocates and the general public. The financial benefits of providing substance use disorder treatment instead of incarceration are well established. But by fully incorporating substance use and mental health disorders into healthcare -- by truly treating them as health issues and requiring public and private insurance plans to cover their treatment -- the ACA creates an opening and financial incentives to shift drug policy into a public health framework, undermining the rationale for a criminal justice approach....

The passage and implementation of the ACA coincides with the growing momentum across the political spectrum to end the War on Drugs, reverse the incarceration boom, and abandon criminal justice policies that have resulted in the criminalization of whole communities.  But the paradigmatic shift from criminalization to health will not occur unless criminal justice and drug policy reform advocates seize the moment and leverage the ACA to realize its full transformative potential.

To assist advocates in navigating this new terrain, this paper outlines some of the major provisions of the ACA immediately relevant to criminal justice and drug policy reform (Part One), and then explores specific applications of those provisions, including program and policy examples and suggested action steps (Part Two)....

This is a unique, perhaps even once-in-a-lifetime scenario for criminal justice and drug policy reform advocates: with the ACA, we can start to build true alternatives to the criminal justice response to substance use, the enforcement of which has fundamentally undermined community health and safety.  Addressing substance use as a health condition has the potential to lower health costs, dramatically reduce the number of people involved in the criminal justice system, and improve health outcomes and overall wellbeing for millions of people.

February 15, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

Wednesday, February 12, 2014

Drug sentencing reform talk already impacting federal sentences in Tennessee (and elsewhere?)

Two recent local sentencing stories from Tennessee reporting on two different federal judges imposing reduced sentences in drug cases suggest that all the on-going talk about significant drug sentencing reform coming from the US Sentencing Commission and the US Senate is already impacting the work of federal judges.  Here are the headlines, links and basics:

Federal Judge Varies Downward On Drug Sentence; Says "War On Drugs" A "Dismal Failure"

Federal Judge Sandy Mattice, calling the "War on Drugs" a "dismal failure," on Monday morning varied downward on a sentence for a drug "smurf."

Larry Gertsman had been facing a minimum 121 months in federal prison for his role in obtaining pseudoephedrine pills for a meth cook and for the fact a gun was found at the trailer where the meth was being cooked.

Judge Mattice noted the 121 months was one month more time than he gave to the meth cook, George Alder Jr. He sentenced Gertsman to 90 months in prison.

Judge Mattice said, "When a conspiracy is charged like this, addicts are being prosecuted the same way as the manufacturer." He said some of the sentencing schemes have "outrageous results." He added, "These cases seem increasingly arbitrary."

Judge, Noting That Federal Drug Sentences Are Likely To Be Cut, Gives 3 Whitwell Defendants A Break

Federal Judge Curtis Collier, saying that he expects Congress to lower sentences for drug defendants, on Thursday gave reduced time to three Whitwell residents involved in a major marijuana operation.

Judge Collier, focusing on "sentencing disparity," said Congress seems headed for passage of the Smarter Sentencing Act. He said it has the endorsement of the Department of Justice and support from senators from different political backgrounds. He also said the federal Sentencing Commission has issued guidelines for reduced drug sentences. The act would shift the focus to putting away hardcore and violent defendants in federal prisons.

Judge Collier said sponsors of the bill say that under current sentencing all of the Department of Justice budget is going to be eaten up by the cost to operate federal prisons. The act would basically cut drug sentences in half and also increase the use of the "safety valve" to cut time on mandatory sentences. There was also discussion at the sentencing for Jackie Morrison, Sammy Nance and Ollie Frizzell about some states, including Colorado, legalizing marijuana.

The sentencing range for the ringleader, Morrison, was 121-151 months. He got 72 months. Nance faced 37-46 months and was given 24 months. Ms. Frizzell had a sentencing range of 27-33 months and got 30 months. However, she had already gotten a break for cooperating with the government.

In addition to wondering if there is some special reason that these two notable stories emerge from two different Tennessee federal courts over the last few days, I am especially curious to know if similar trends may be emerging in other federal district courts around the nation.

I have previously noted that early statistics from the US Sentencing Commission suggested that the number of judge-sponsored below-guideline sentences may be increasing ever since AG Eric Holder gave his big ABA speech last August about excessive use of incarceration for low-level offenders.  And now that the USSC has called for an across-the-board reduction of all the drug guidelines and the Senate Judiciary Committee has moved the Smarter Sentencing Act, I could readily imagine that what these two Tennessee federal judges have done is more the norm than the exception in the thousands of low-level drug cases being prosecuted now in federal courts.

February 12, 2014 in Booker in district courts, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (17) | TrackBack