Sunday, March 29, 2015
Local Tennessee prosecutors pushed for female sterilization in plea discussions
A helpful reader alerted me to this stunning AP article about a stunning aspect of what some local prosecutors sometimes incorporated into plea discussion with female defendants in Tennessee. The piece is headlined "Attorneys: Sterilizations were part of plea deal talks," and here are some of the details:
Nashville prosecutors have made sterilization of women part of plea negotiations at least four times in the past five years, and the district attorney has banned his staff from using the invasive surgery as a bargaining chip after the latest case.
In the most recent case, first reported by The Tennessean, a woman with a 20-year history of mental illness had been charged with neglect after her 5-day-old baby mysteriously died. Her defense attorney says the prosecutor assigned to the case wouldn't go forward with a plea deal to keep the woman out of prison unless she had the surgery.
Defense attorneys say there have been at least three similar cases in the past five years, suggesting the practice may not be as rare as people think and may happen more often outside the public view and without the blessing of a court .
Sterilization coerced by the legal system evokes a dark time in America, when minorities, the poor and those deemed mentally unfit or "deficient" were forced to undergo medical procedures that prevented them from having children.
"The history of sterilization in this country is that it is applied to the most despised people — criminals and the people we're most afraid of, the mentally ill — and the one thing that that these two groups usually share is that they are the most poor. That is what we've done in the past, and that's a good reason not to do it now," said Paul Lombardo, a law professor and historian who teaches at Georgia State University.
Davidson County District Attorney Glenn Funk agrees. A former defense attorney who took over the office in September, he recently ordered lawyers in his office not to seek sterilization by defendants. He said he hadn't heard of it happening before but didn't ask. Funk said people could be ordered to stay away from children, and the state wouldn't have to resort to such invasive measures. "The bottom line is the government can't be ordering a forced sterilization," Funk said.
However, such deals do happen.
In West Virginia, a 21-year-old unmarried mother of three agreed to have her tubes tied in 2009 as part of her probation after she pleaded guilty to possession with intent to distribute marijuana. And last year, a Virginia man who fathered children with several women agreed to undergo a vasectomy in exchange for less prison time in a child endangerment case.
Forced sterilization came up in a different way in California last year, when Gov. Jerry Brown signed a bill that banned state prisons from forcing female inmates to be sterilized. The law was pushed through after the Center for Investigative Reporting found that nearly 150 female prisoners had been sterilized between 2006 and 2010. An audit found that the state failed to make sure the inmate's consent was lawfully obtained in every case ....
The assistant district attorney who worked the [most recent] case, Brian Holmgren, is a child prosecutor who speaks around the country, was once a senior attorney with the National Center for Prosecution of Child Abuse and serves on the international advisory board of the National Center for Shaken Baby Syndrome. He has been both praised and fiercely criticized for his aggressive courtroom tactics on behalf of children.... Holmgren did not respond to several messages seeking comment.
Nashville defense attorney Carrie Searcy said Holmgren asked that two of her clients who gave birth to children who tested positive for drugs undergo sterilization. Neither did, Searcy said, because both women had already undergone the procedure.
Assistant public defender Joan Lawson, who also supervises other attorneys, said she also had been involved in cases in which a prosecutor had put sterilization on the table. Lawson said it was typically not an explicit demand, was not an everyday occurrence and was made off the record. Lawson said she refused the idea and resolved her cases without sterilization. "It's always been more of 'If your client is willing to do this, then I might be inclined to talk about probation,'" Lawson said.
Saturday, March 28, 2015
Should states try harder to condemn and execute women to overcome death penalty's sexism?
The question in the title of this post is prompted by this notable new commentary about the Jodi Arias case headlined "Why the death penalty in America is sexist." Here are excerpts:
It took only one juror to spare Jodi Arias the death penalty for the brutal murder of her ex-boyfriend Travis Alexander in 2008. Considering the United States has executed only 13 women in the last 40 years, a death sentence would have been highly unusual.
Women committed less than 10% of all murders in America between 2000 and 2010, a Wall Street Journal analysis of crime data found. Women defendants, however, only make up 2% of death row, according to a recent report by the NAACP.
Even fewer women actually get executed, Death Penalty Information Center executive director Richard Dieter told Business Insider. "There's just less enforcement of the death penalty at almost every stage for females," he said.
Two major factors contribute to the low number of women who get capital punishment: the nature of the crime and how juries view women in general. The death penalty is often used for killers who also commit other felonies like robbery or rape, law professor Victor Streib has previously told the LA Times. Many of the murders women commit, on the other hand, involve people they're related to.
While women commit about 10% of murders, they were responsible for 35% of murders of intimate partners between 1980 and 2008. Most juries consider these crimes of passion arising from disputes — one-time offenses, Dieter said. Because of the high rate of domestic violence against women, though, juries don't give men the same benefit of the doubt.
On the other hand, most states consider killing a child an aggravating factor, or a reason for prosecutors to seek the death penalty. Hiring someone to do the work could also land a woman on death row. "If a woman hires someone, there's a coldness, a calculation. It's different than something that arises out of an argument," Dieter said. Teresa Lewis, for example, plotted to kill her husband and stepson for the insurance money. "Instead of pulling a trigger on a gun, she pulled a couple of young men in to pull the trigger for her," prosecutor David Grimes told a judge at the time, The Washington Post reported. She was the first woman Virginia sentenced to die in more than 100 years.
But the second factor — the jury's perception of the "fragile" female psyche — can overpower aggravating factors. "It's just easier to convince a jury that women suffer emotional distress or other emotional problems more than men," Streib told the LA Times....
"These 12 people [the jury] are asked to see if this person has any redeeming qualities. And they often see their own mother or wife or grandmother, not someone who will continue to be a threat to society," Dieter said. "Jurors just see women differently than men."
Of course, most women aren't going to argue for gender parity in the death penalty, Dahlia Lithwick has written in Slate. Only 59% of women favor the death penalty compared to 67% of men, according to a 2013 Gallup poll. "For equality's sake, you think that women would want the death penalty pursued more often," Dieter said. "But of course, they don't."
Thursday, March 26, 2015
Highlights from AG Holder remarks at Bipartisan Summit on Criminal Justice Reform
Thanks largely to the GOP Senators in charge of Senate procedure, we still do not yet know whether Loretta Lynch will be confirmed as the next Attorney General and thus we still have Eric Holder serving in this important role a full six months after he announced his resignation. Today, in that role, AG Holder gave this address to the "Bipartisan Summit on Criminal Justice Reform." Here are excerpts:
[T]his country faces serious challenges—an excessive prison population that is draining our resources and devastating our communities; systemic institutional biases that disproportionately affect people of color; and an overreliance on incarceration at the expense of alternatives proven to prevent recidivism and strengthen our society. These are momentous and complex issues calling for urgent and concrete solutions and it is abundantly clear that we cannot allow the status quo to persist.
But it is equally evident that we have an unprecedented opportunity – even at this time of deep division and stubborn gridlock – to bring about a fundamental shift in our criminal justice system, and to act together to drive historic change. That opportunity is presented not only by the wide range of distinguished individuals who have come to this conference to speak out against injustice and speak up for progress, but also by the rare consensus emerging across the country. Recently, we have seen conservative stakeholders like Koch Industries and Americans for Tax Reform join with progressive voices like the Center for American Progress to form a new coalition dedicated to this cause....
In the last year, federal prosecutors 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, representing the lowest rate ever recorded by the U.S. Sentencing Commission. Last year we also saw the first overall reduction in the federal prison population in 32 years. Most impressive of all, we achieved this drop in incarceration while also cutting the overall crime rate, marking the first simultaneous national reduction in both crime and incarceration rates in more than four decades.
Of course, we also recognize that challenges to re-entry, and the likelihood of recidivism, can be exacerbated by an array of collateral consequences that make it more difficult for formerly incarcerated individuals to get a job, to further their education, to find housing and to participate fully in this country’s democratic institutions. For example, across this country today, an estimated 5.8 million Americans – more than the individual populations of 31 U.S. states – are prohibited from voting because of current or previous felony convictions. Nearly 150 years after Reconstruction, when felony disenfranchisement laws were first widely implemented throughout the South to intentionally reduce the electoral strength of former slaves, 40 percent of these individuals are African-American – meaning that nearly one in 13 African-American adults is currently ineligible to cast a ballot. In three states – Florida, Kentucky and Virginia – that ratio is one in five.
These statistics describe a nation at odds with the promise of its founding, and in tension with its most vital ideals. They demand that we examine our institutions and reorient our practices to create the more perfect Union that our earliest citizens imagined and the more just society that all Americans deserve....
In 2011, while only 30 percent of Americans were black or Hispanic, the U.S. prison population was 60 percent black and Hispanic, a disparity that is simply too stark. But justice reinvestment policies can help. The Council of State Governments Justice Center recently examined data from three states – Georgia, Connecticut, and North Carolina – that have employed a Justice Reinvestment approach. And I am pleased to announce that today our Bureau of Justice Assistance is releasing a report showing that these common-sense reforms produced a marked reduction in incarceration rates – particularly among men and women of color.
In Georgia, since sweeping criminal justice reforms were enacted three years ago, prison admissions have fallen by 8 percent and admissions among African Americans have fallen by 11 percent. In Connecticut, the total number of people in state prisons has declined by 17 percent since 2008, while the number of incarcerated African Americans and Hispanics has dropped by 21 percent and 23 percent, respectively. In North Carolina, expanded access to substance abuse treatment and new supervision practices, among other crucial reforms, have led to a 21 percent drop in total prison admissions between 2011 and 2014, while African-American and Hispanic admissions dropped by 26 percent and 37 percent, respectively. And in each of these cases, policies that reduced racial disparities had no adverse effect on public safety. In fact, all three states experienced a reduction in their overall crime rates....
We must reject the notion that old practices are unchangeable, that the policies that have governed our institutions for decades cannot be altered and that the way things have always been done is the way they must always be done. When the entire U.S. population has increased by a third since 1980, but the federal prison population has grown by almost 800 percent, it is time – long past time – to look critically at the way we employ incarceration. When the United States is home to just five percent of the world’s population but incarcerates almost a quarter of its prisoners, it is time – long past time – to reexamine our approach to criminal justice. And when estimates show that a staggering 1 in 28 American children has a parent behind bars and that the ratio for African-American children is 1 in 9, it is time – long past time – to take decisive action in order to end a vicious cycle of poverty, criminality and incarceration that traps too many individuals, degrades too many families and devastates too many communities.
That means more state legislatures must end felon disenfranchisement – and so many other barriers to reentry – for individuals who have served their sentences and rejoined their communities, and invest in alternatives to incarceration like drug courts – something I’d like to see in the next five years in every federal district in America. It means Congress must act to restrict and refine those crimes to which mandatory minimums apply and extend the Fair Sentencing Act so that no one is serving a sentence based on a disparity in punishment between crack cocaine and powder cocaine offenses that Congress, the President and the Attorney General have all declared unjust. And it means gatherings like this one must continue to bring together leaders and advocates, academics and public servants, from all backgrounds and circumstances, to renew our commitment to this vital cause.
New report documents huge drop in Colorado marijuana arrests since legalization
While the impact, both good or bad, of marijuana law reform is now widely discussed and debated, there is still relatively little hard reliable data about the public health and economic consequences of these reforms. But this new report from the Drug Policy Alliance, headlined "Marijuana Arrests in Colorado After the Passage of Amendment 64," highlights that legalization in one state has had a profound impact on arrest data. This DPA press release provides an overview and summary of the report, and here are excerpts:
The report compiles and analyzes data from the county judicial districts, as well as various law enforcement agencies via the National Incident Based Reporting System (NIBRS). The report’s key findings include:
- Since 2010, marijuana possession charges are down by more than 90%, marijuana cultivation charges are down by 96%, and marijuana distribution charges are down by 99%.
- The number of marijuana possession charges in Colorado courts has decreased by more than 25,000 since 2010 – from 30,428 in 2010 to just 1,922 in 2014.
- According to raw data from the NIBRS, drug-related incidents are down 23% since 2010, based on a 53% drop in marijuana-related incidents....
- Marijuana distribution charges for young men of color did not increase, to the relief of racial justice advocates wary of a ‘net-widening’ effect following legalization. The black rate for distribution incidents dropped from 87 per 100,000 in 2012 to 25 per 100,000 in 2014.
- Racial disparities for still-illegal and mostly petty charges persist for black people when compared to white people, primarily due to the specific increase of charges for public use combined with the disproportionate rates of police contact in communities of color. The marijuana arrest rate for black people in 2014 was 2.4 times higher than the arrest rates for white people, just as it was in 2010.
- The report also reveals a decline in synthetic marijuana arrests, presumably because people are less likely to use synthetic marijuana when marijuana itself is no longer criminalized.
“It’s heartening to see that tens of thousands of otherwise law-abiding Coloradans have been spared the travesty of getting handcuffed or being charged for small amounts of marijuana,” said Art Way, Colorado State Director for the Drug Policy Alliance. “By focusing on public health rather than criminalization, Colorado is better positioned to address the potential harms of marijuana use, while diminishing many of the worst aspects of the war on drugs.”
“The overall decrease in arrests, charges and cases is enormously beneficial to communities of color who bore the brunt of marijuana prohibition prior to the passage of Amendment 64,” said Rosemary Harris Lytle, Regional Chair of the NAACP. “However, we are concerned with the rise in disparity for the charge of public consumption and challenge law enforcement to ensure this reality is not discriminatory in any manner.”
“What is often overlooked concerning marijuana legalization is that it is first and foremost a criminal justice reform,” said Denise Maes, Public Policy Director for the ACLU of Colorado. “This report reminds us of how law enforcement and our judiciary are now able to better allocate time and energy for more pressing concerns.”
Some prior related posts:
- "The Injustice of Marijuana Arrests"
- New report details arrests and NYC police time spent on low-level marijuana offenses
- "Marijuana Possession Arrests Exceed Violent Crime Arrests"
- Would legalizing marijuana be a huge step toward a less racialized criminal justice system?
- "The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially Biased Arrests" (huge ALCU report on racial disparities in marijuana arrests)
March 26, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Sunday, March 15, 2015
Senator Paul continues to emphasize criminal justice reform with minority audience
This new New York Times article, headlined "Rand Paul Focuses on Criminal Justice in Talk to Black Students," details the continued efforts by one prominent Senator to preach the need for criminal justice reform to groups historically distrustful of messages delivered by the GOP. Here are the details:
Senator Rand Paul laid out his vision on Friday for a legal system that makes it easier for people with criminal records to get jobs and to vote, telling students at a historically black college here that he believes there are still “two Americas” as the Rev. Dr. Martin Luther King Jr. said almost a half century ago.
Mindful of his audience and, no doubt, his appearance two years ago at Howard University when the mostly black audience was often skeptical of what he had to say, Mr. Paul, a Republican and a likely candidate for president, chose his words more carefully this time during his visit to Bowie State University....
Mr. Paul tried to avoid appearing presumptuous and at one point corrected himself when answering a question about the progress that black Americans have made. “I think sometimes we think we haven’t gone very far when I think we’ve come a long way,” he said, pausing to tweak his wording. “And I say ‘we’ collectively; obviously it’s not me.”...
There were a few awkward moments at the Howard event, like when he told the students that people had told him he was “either brave or crazy” to be there.
But on Friday he kept his remarks focused on correcting inequities in the criminal justice system and expanding economic opportunity. He repeatedly condemned the harsh drug sentencing laws that put so many minority defendants behind bars. “If you smoked some pot or grew some marijuana plants in college, you ought to get a chance,” he said.
Mr. Paul also made a case for expunging criminal records of people who have been convicted of nonviolent felonies so they can find employment more easily, a stance that puts him at odds with many in his party. “As Republicans we’re big on saying, ‘Well, we don’t want people permanently on welfare; we want them to transition from welfare to a job,’” he said. “People say, ‘Well, how am I supposed to get a job? I was a convicted felon.’”...
Mr. Paul, of Kentucky, has made an effort to reach out to AfricanAmerican constituencies in the past few years, drawing crowds that have traditionally voted for Democratic candidates but are curious about his libertarian brand of conservatism. He spoke at the Urban League’s summer conference in Cincinnati last summer and visited Ferguson, Mo., when protests broke out after a police officer shot an unarmed black man. He has also met with black pastors in Southern cities like Memphis and Louisville, Ky.
Some recent and older related posts:
- Senator Rand Paul links Ferguson tragedy to harms of the modern drug war
- Others starting to appreciate "Rand Paul, Criminal Justice Hero"
- "4 Reasons Conservatives Are Embracing Prison Reform"
- Senators Paul and Booker celebrate Festivus with sentencing and drug war reform tweeting
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
Sunday, March 08, 2015
Stirring (sentencing) civil rights sentiments in Selma speech
The events in Selma, Alabama a half century ago has led to a modern weekend of discussion and reflection on the achievements and work still to be done in the never-ending struggle for civil rights for all. President Obama, whom even his toughest critics will admit can give a good speech, spoke to these matters in a speech at an historic location in Selma. The full text of the speech is worth a read, and these sentiments from the text of President Obama's remarks which have obvious sentencing significance:
This is work for all Americans, and not just some. Not just whites. Not just blacks. If we want to honor the courage of those who marched that day, then all of us are called to possess their moral imagination. All of us will need to feel, as they did, the fierce urgency of now. All of us need to recognize, as they did, that change depends on our actions, our attitudes, the things we teach our children. And if we make such effort, no matter how hard it may seem, laws can be passed, and consciences can be stirred, and consensus can be built.
With such effort, we can make sure our criminal justice system serves all and not just some. Together, we can raise the level of mutual trust that policing is built on — the idea that police officers are members of the communities they risk their lives to protect, and citizens in Ferguson and New York and Cleveland just want the same thing young people here marched for — the protection of the law. Together, we can address unfair sentencing, and overcrowded prisons, and the stunted circumstances that rob too many boys of the chance to become men, and rob the nation of too many men who could be good dads, and workers, and neighbors.
- Should criminal justice reform be the new civil rights movement?
- Reflecting on race and criminal justice realities to honor MLK's legacy
- NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
- Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition
- Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?
- MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition
Thursday, March 05, 2015
Despite spending many millions, Arizona prosecutors again fail to convince a sentencing jury to send Jodi Arias to death row
I have been interested in the Jodi Arias case from Arizona since she was found guilty of murder two years ago, not principally because of all the media attention her case generated, but because of the extraordinary efforts Arizona prosecutors were prepared to make AT TAXPAYER EXPENSE to try to get Arias on to the state's death row. Last year in this post, I guessed that Arizona prosecutors were spending more than $5,000,000 in taxpayer funds in their effort to have Jodi Arias sent and kept on death row rather than in another part of Arizona's prison system.
As this new AP report from Arizona highlights, all those taxpayer costs created by the prosecutors in this one state capital case have now officially achieved nothing:
Convicted murderer Jodi Arias was spared the death penalty Thursday after jurors deadlocked on whether she should be executed or sent to prison for life for killing her lover in 2008.
It marked the second time a jury was unable to reach a decision on her punishment — a disappointment for prosecutors who argued for the death penalty during a nearly seven-year legal battle. It means the judge will sentence Arias on April 13 to either life in prison or a life term with the possibility of release after 25 years.
Family members of victim Travis Alexander wept when the judge announced that jurors couldn't reach a decision after deliberating for about 26 hours over five days. The family sobbed as they left the courtroom, with one covering her eyes as she walked out. Arias' mother, Sandra, received a hug from a friend moments after the verdict was read....
Arias' 2013 trial became a sensation with its tawdry revelations about her relationship with Alexander and that she shot him in the head and slit his throat so deeply that he was nearly decapitated. It was broadcast live and TV audiences heard how Arias had stabbed and slashed Alexander nearly 30 times then left his body in his shower at his suburban Phoenix home, where friends found him about five days later.
The jury convicted her of first-degree murder but deadlocked on punishment, prompting the sentencing retrial that began in October. Prosecutors say they don't regret trying again to send Arias to death row. Maricopa County Attorney Bill Montgomery, who decided to seek the death penalty a second time, told reporters that "regret is a place in the past I can't afford to live in."
Arias initially courted the spotlight after her arrest, granting interviews to "48 Hours" and "Inside Edition." She testified for 18 days at her first trial, describing her abusive childhood, cheating boyfriends, relationship with Alexander and her contention that he was physically abusive. She did more media interviews after the jury convicted her of murder.
Spectators lined up in the middle of the night to get a coveted seat in the courtroom for the first trial. However, attention was dampened during the penalty retrial after the judge ruled cameras could record the proceedings but nothing could be broadcast until after the verdict.
The proceedings revealed few new details about the crime and dragged on months longer than expected amid a series of expert witnesses and a surprising late October decision by Judge Sherry Stephens to remove reporters and spectators from the courtroom so Arias could testify in private. A higher court halted the testimony on its second day after complaints from news organizations. At the end of the retrial, Arias passed up a chance to address the jury. She said she wanted to make such comments but refused to do so unless the courtroom was cleared. She cited potential personal safety threats in declining to speak in the open courtroom.
I am not at all surprised to hear the Arizona prosecutors now "say they don't regret trying again to send Arias to death row." After all, these prosecutors got the opportunity to work for two more years on a high-profile and exciting case and they likely will not suffer any professional consequences for wasting an extraordinary amount of taxpayer resources now twice failing to convince a jury that Jodi Arias ought to die for her crimes.
Especially because, as I said before in prior posts, it was extremely unlikely Arias would ever be executed even if she had been sentenced to death, this case is now for me exhibit #1 in the extraordinary misallocation of resources that the death penalty can often engender because prosecutors generally get all the political benefits and suffer none of the true economic costs of capital punishment systems. The folks who should really regret how this case has been handed are crime victims and others in need of social services and programming in Arizona. As I noted in a prior post, the Arizona Crime Victims Programs — which is under the authority of the Arizona Criminal Justice Commission and "provides support to all agencies that assist and compensate the victims of crime" — has an annual budget of around $5,000,000. I feel pretty confident a lot more good throughout Arizona could have been done if state tax resources were allocated to doubling the funds for crime victim programming rather than enabling prosecutors to keep seeking a death verdict for Jodi Arias (which itself was never likely to get carried out).
Some prior posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
- Jodi Arias now pleading for a life sentence before sentencing jury
- Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death
- Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
- Arizona poised to take second (costly) run at death sentence for Jodi Arias
- Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias
March 5, 2015 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack
Monday, March 02, 2015
"A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges"
The provocative title of this post is the provocative title of this new article authored by US District Judge Mark Bennett now available via SSRN. Here is the abstract:
A federal district court judge who has sentenced more than 4000 defendants reflects on federal sentencing and its role in mass incarceration. The focus of the article is on federal sentencing in crack cocaine cases and policy disagreements with the United States Sentencing Guidelines (Guidelines) in drug trafficking cases. The article explores the U.S. Supreme Court cases in Kimbrough v. United States, United States v. Spears, and Pepper v. United States, the only U.S. Supreme Court cases that address sentencing judges’ policy disagreements with the guidelines. Ironically, or perhaps serendipitously, the author was the sentencing judge in both Spears and Pepper, where he was reversed a whopping 5 times by the U.S. Court of Appeals for the Eighth Circuit (twice by an en banc court) before both defendants’ sentencing positions were vindicated by the U.S. Supreme Court.
The article takes exception to two Third Circuit judges who have argued in law review articles that federal sentencing judges should be concerned about "legislative backlash" if they sentence outside the now advisory guidelines. In the arc of the history of federal sentencing and its impact on mass incarceration, we are perched at a cresting point where the gravity of reason and our Nation’s experience with mass incarceration hopefully will pull towards greater justice in sentencing.
Georgia scheduled to execute only female murderer on its death row
As reported in this AP piece, headlined "After weather delay, Georgia ready to perform rare execution of a woman," the Peach State appears poised this evening to end the life of a bad apple notable for her gender. Here are the details:
After getting a temporary reprieve when her execution was postponed because of winter weather conditions forecast to hit the state, the only woman on Georgia's death row is again set for execution Monday. Kelly Renee Gissendaner, 46, was scheduled to be executed Wednesday at the state prison in Jackson, but the Department of Corrections postponed it to Monday at 7 p.m., citing the weather and associated scheduling issues.
Gissendaner was convicted of murder in the February 1997 stabbing death of her husband, Douglas Gissendaner. Prosecutors said she plotted his death with her boyfriend, Gregory Owen.... Kelly Gissendaner repeatedly pushed Owen in late 1996 to kill her husband rather than just divorcing him as Owen suggested, prosecutors said. Acting on Kelly Gissendaner's instructions, Owen ambushed Douglas Gissendaner at the Gissendaners' home, forced him to drive to a remote area and stabbed him multiple times, prosecutors said
Owen pleaded guilty and received a life prison sentence with eligibility for parole after 25 years. He testified at Gissendaner's trial, and a jury convicted her and sentenced her to death in 1998.
The State Board of Pardons and Paroles, the only entity in Georgia authorized to commute a death sentence, on Wednesday denied Gissendaner clemency. A federal judge in Atlanta rejected a request to halt her execution, and her lawyers have appealed that decision to the 11th U.S. Circuit Court of Appeals.
If Gissendaner's execution happens, she will be the first woman executed in Georgia in 70 years. Lena Baker, a black maid, was executed in 1945 after being convicted in a one-day trial for killing her white employer. Georgia officials issued her a pardon in 2005 after six decades of lobbying and arguments by her family that she likely killed the man because he was holding her against her will. Baker was the only woman to die in the state's electric chair. P>Execution of female inmates is rare with only 15 women put to death nationwide since the Supreme Court in 1976 allowed the death penalty to resume. During that same time, about 1,400 men have been executed, according to the Death Penalty Information Center.
Prosecutors offered Gissendaner the same plea deal that was offered to Owen, but she turned it down. Post-conviction testimony from her trial lawyer, Edwin Wilson, gives some insight into why, Gissendaner's lawyers argued in a clemency petition. They quote Wilson as saying he didn't think a jury would sentence Gissendaner to death. "I guess I thought this because she was a woman and because she did not actually kill Doug," Wilson is quoted as saying, adding that he should have urged her to take the plea.
Victor Streib, a retired Ohio Northern University law professor and an expert on the death penalty for women, said it's clear that women are condemned to die far less frequently than men, but that there are so few cases that it's tough to draw any general conclusions. "Statistically, yes, if you've got two cases and everything about them is exactly the same and one case is a woman and the other case is a man, the man is more likely to be sentenced to death," Streib said, but added that he wouldn't count on that as a legal strategy.
One reason women aren't sentenced to death as often is that they don't commit as many murders and when they do they generally aren't the "worst of the worst" murders that lead to the death penalty, Streib said. Juries may also be more likely to believe a woman was emotionally distressed or not in her right mind at the time of a killing, which can spare them a death sentence, he said.
Sunday, March 01, 2015
Must one study lynchings past to understand US punishments present?
The question in the title of this post is prompted by this article discussing a recent speech by a prominent civil rights activist. The piece is headlined "Angela Davis equates lynchings with prisons, death penalty," and here are excerpts:
Iconic civil rights leader Angela Davis opened her lecture Wednesday evening at Purdue University by evoking Black History Month — setting the stage for a moving presentation that connected past stories of oppression to today's movements for freedom....
During her talk at Purdue, Davis tied the historical tradition of the black struggle against oppression to multiple contemporary movements against racist violence, anti-Semitism, Islamophobia, homophobia and able-ism. "The black radical tradition can be claimed by anyone who believes that freedom is a worthy cause and that the struggle for freedom links our contemporary aspirations with many struggles of the past," she said.
She connected the history of black lynchings to today's issues of mass incarceration and capital punishment. "The death penalty's roots are sunk deep into the legacy of lynching," she said. "… If we fail to take into account the central role of lynching, then we will never truly understand the way racism worked its way into the criminal justice system."
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
Monday, February 23, 2015
Oscar speech by John Legend spotlights the New Jim Crow stat about hyperincarceration of blacks in US
I watched most of last night's Oscar festivities while trying to get some work done and with most of it with a finger on the fast-forward button on the remote control. I did so, in part, because we can always count on the media (both old and new) to give extra attention to anything especially interesting or noteworthy that happens during the telecast.
I am now pleased to learn that one of the interesting and noteworthy Oscar moments getting attention today is a portion of John Legend's acceptance speech. This Washington Post WonkBlog piece, headlined "There’s a disturbing truth to John Legend’s Oscar statement about prisons and slavery," provides the story and its context:
The artists John Legend and Common received an Academy Award Sunday night for "Glory," their song in the film "Selma." In his acceptance speech, Legend called for reform of the U.S. criminal justice system. "There are more black men under correctional control today than there were under slavery in 1850," he noted.
It's true. There are some, as Politifact has written, 1.7 million black men under some form of correctional control, including probation and parole, excluding those held in local jails on any given day. That is about twice the 870,000 or so black men at least 15 years old who were enslaved in 1850, according to the Census.
In some ways, of course, the comparison is misleading. Although there are more blacks under correctional control now than there were slaves before the Civil War, the population has a whole has grown tremendously in that time. The Census that year found that roughly nine in 10 of the nation's 3.6 million blacks were enslaved. By contrast, one in 11 blacks is under correctional supervision today, according to the Pew Center on the States. And it would be wrong to obscure the horrors of slavery by comparing that peculiar institution to today's systems of probation and parole (although in modern prisons, practices such as solitary confinement are indeed profoundly damaging to inmates).
In other ways, though, these numbers conceal the size of our criminal justice system and its consequences, especially for blacks -- in a society that, unlike that of the 1850s, is supposed to be free and equitable.
Urging more media coverage of the "truly guilty and violent"
The mainstream media and “social justice” journalists treat criminal justice subjects compassionately at times, but the beneficiaries of their compassion diverge. The mainstream media focus on the victims of crime, while social justice journalists focus on victims of the criminal justice system.
The former task is easier, because readers are quick to sympathize with crime victims. The latter task is commendable, because it involves telling the stories of outcasts. Yet, even those of us who take on the latter task still tend to stick to the easier parts of the topic. Our favorite subjects are innocent people who are wrongly convicted.
When we do write about the guilty, we prefer they be nonviolent offenders. We’re particularly partial to petty drug offenders. Among violent offenders, we prefer juveniles.
We fear our readers can’t possibly develop compassion for anyone who robs, beats, rapes, or kills. We ourselves have trouble feeling compassion for such offenders; to do so violates a taboo. Only if the violent offender has the mitigating factor of youth, or sometimes mental illness, are we likely to take on his or her story.
But this means we neglect much that is immensely significant. There are too many drug offenders in prison, but prisons are not mainly holding drug offenders or the nonviolent. Seventeen percent of the 49,000 inmates in Illinois prisons were serving terms for controlled substance crimes, and another 1.6 percent had violated the cannabis control act, as of June 2013 (the most recent figures), according to the Illinois Department of Corrections. That’s less than 19 percent in all who were doing time for drug offenses–compared with 54 percent who’d been convicted of violent offenses. Nationally, the proportion of prisoners serving sentences for violent crimes in 2012 was also 54 percent, according to the Bureau of Justice Statistics.
Stories about the wrongly convicted, and about the drug war, and about juvenile and mentally ill offenders, can lead to much-needed reforms of the criminal justice system. But stories about the truly guilty and violent can have a larger target: our nation’s structural inequality, and the wounds it inflicts every hour, every day, on African-Americans more than any other group, in segregated cities throughout the nation.
Concentrated poverty – resulting from the virulent mix of poverty and racial segregation – yields many poisoned fruits, not the least of which is violence. Children growing up amid concentrated poverty are more likely to witness violence in their neighborhoods, and to experience it in their homes, than children in more advantaged areas. And children growing up amid violence are far more likely to become violent themselves.
There’s a crying need for stories that make the crucial connections between concentrated poverty and violence, and that shift the focus from individual responsibility to our collective culpability. In the context of criminal justice stories, it’s not a connection journalists can make when their subjects are innocent or nonviolent.
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.
Friday, February 20, 2015
More from ACSBlog's "symposium on racial inequalities in the criminal justice system"
Last week in this post I noted that the ACSBlog kicked off a "two-week symposium on racial inequalities in the criminal justice system" via this post titled "Pervasive Inequalities in the Criminal Justice System." This week brought these additional published posts in this series, al of which should be of special interest to sentencing law and policy fans:
Tuesday, February 17, 2015
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.
Friday, February 13, 2015
ACSBlog conducting "symposium on racial inequalities in the criminal justice system"
I just noticed that the ACSBlog early this week kicked off a "two-week symposium on racial inequalities in the criminal justice system" via this post titled "Pervasive Inequalities in the Criminal Justice System." Here are excerpts from this introductory post:
[R]acial inequality in this country remains tightly intertwined with economic inequality, and aspects of the criminal justice system that disadvantage poor people disproportionately disadvantage people of color. There also exists implicit racial bias, if not outright prejudice, in the hearts of some police, prosecutors, judges and jurors which can manifest itself during any phase of a criminal case.
The result is that Americans of color face disadvantages at every stage of the criminal justice system. From arrest to sentencing, obtaining bail to obtaining a lawyer, plea bargaining to jury selection, and even in being put to death, criminal defendants consistently fare better when they are white....
Whether due to racial hatred, implicit bias or economic inequality, there is overwhelming evidence that criminal defendants of color are subjected to a different criminal justice system than white defendants. For the next two weeks, ACSblog and a succession of experts will examine flaws at each stage of the criminal justice system and propose solutions so that the Constitution’s guarantee of equal justice under the law may be realized for every American.
Here are links to the posts in this series that have been published so far:
Tuesday, February 03, 2015
"Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System"
The title of this post is the title of this timely new report from The Sentencing Project. Here is a partial summary of its contents from an e-mail I received earlier today:
The report identifies four key features of the criminal justice system that produce racially unequal outcomes, beyond the conditions of socioeconomic inequality that contribute to higher rates of some crimes in marginalized communities, and showcases initiatives to abate these sources of inequity in adult and juvenile justice systems around the country. In many cases, these reforms have produced demonstrable results, including:
- Indiana amended its drug-free zone sentencing laws, which imposed harsh penalties on a defendant population that was over 75% African American in Indianapolis.
- Multnomah County (Portland), OR, revised and removed bias in its risk assessment instrument for determining juvenile detention, reducing African American and Latino youth detention levels by half.
- Berks County, PA, reduced the number of youth in secure detention – who were primarily youth of color – by 67% between 2007 and 2012 in part by increasing reliance on alternatives including non-secure shelters and expanding use of evidence-based treatment programs.
- The Milwaukee County prosecutor’s office eliminated racial disparity in charges of possession of drug paraphernalia by instituting case oversight and emphasizing diversion to treatment programs and dismissals.
Friday, January 30, 2015
Aggressive litigation prompts federal prosecutor in Chicago to drop stash house sting
As reported in this lengthy front-page Chicago Tribune article, aggressive litigation by the federal defense bar concerning aggressive federal drug-war tactics have now resulted in federal prosecutors backing off the most aggressive federal criminal charges these tactics have generated. The article is headlined "Chicago prosecutors quietly drop charges tied to drug stash house stings," and here is how it begins:
Federal prosecutors in Chicago have quietly dropped narcotics conspiracy charges against more than two dozen defendants accused of ripping off drug stash houses as part of controversial undercover stings that have sparked allegations across the country of entrapment and racial profiling.
The decade-old strategy is also under fire because federal authorities, as part of a ruse, led targets to think large quantities of cocaine were often stashed in the hideouts, ensuring long prison terms upon conviction because of how federal sentencing guidelines work. Experts said the move by Chicago prosecutors marked the first step back by a U.S. attorney's office anywhere in the country in connection with the controversial law enforcement tactic.
In the court filings seeking the dismissals, prosecutors gave no clue for the unusual reversal, and a spokesman for U.S. Attorney Zachary Fardon declined to comment. But the move comes two months after the 7th U.S. Circuit Court of Appeals issued a stinging rebuke to the policy, ordering a new trial for a Naperville man who alleged he was goaded into conspiring to rob a phony drug stash house by overzealous federal agents.
The stings, led by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, have been highly criticized for targeting mostly minority suspects, many of whom were drawn into the bogus rip-offs by informants who promised easy money at vulnerable points in their lives.
The cases are built on an elaborate ruse concocted by the ATF. Everything about the stash house is fictitious and follows a familiar script, from supposedly armed guards that need to be dealt with to the quantity of drugs purportedly stashed there. By pretending the house contains a large amount of narcotics, authorities can vastly escalate the potential prison time defendants face, including up to life sentences. Earlier this month, federal prosecutors in Chicago sought to drop drug conspiracy charges in seven of the nine pending stash-house cases, leading some of the judges to quickly approve the move without a hearing.
In each case, the defendants — 27 in all — still face weapons and other charges for the alleged scheme and potentially long prison sentences upon conviction. But without the drug conspiracy charges, the mandatory minimum sentences for most of the defendants would drop to just five years in prison from as much as 25 years, according to Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School.
The ATF investigations have also faced legal backlash around the country, including in California, where last year two federal judges ruled the stings amounted to entrapment.
Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York, said hundreds of people nationally have been charged as part of the drug house ruse. The ATF has been using this sting for at least a decade, she said. Tinto said she believes the decision to drop the cases in Chicago is an acknowledgment of the fact that federal agents involved in the sting set the quantity of the phony drugs, a critical factor in driving the sentencing.
The dismissal of the seven cases likely "signals that the government is starting to take a critical look both at these tactics and the immense sentencing these tactics can bring," Tinto said. "In this tactic the drugs are imaginary, and the amount of the drugs is set by the government."
I have been preaching in recent years that I have come to believe that aggressive litigation taking on some of the worst extremes of the federal drug war and excesses of mass incarceration was more likely to "move the sentencing reform needle" as much, if not more, than legislative advocacy directed and a gridlocked Congress. This story reinforces my sense that more and more federal judges are growing more and more willing to criticize and seek to rein in what they more and more are seeing as federal prosecutorial overreach in the drug war and elsewhere.