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.
Friday, January 23, 2015
"Where Do We Go from Here? Mass Incarceration and the Struggle for Civil Rights"
On the surface, crime and punishment appear to be unsophisticated matters. After all, if someone takes part in a crime, then shouldn’t he or she have to suffer the consequences? But dig deeper and it is clear that crime and punishment are multidimensional problems that stem from racial prejudice justified by age-old perceptions and beliefs about African Americans. The United States has a dual criminal justice system that has helped to maintain the economic and social hierarchy in America, based on the subjugation of blacks, within the United States. Public policy, criminal justice actors, society and the media, and criminal behavior have all played roles in creating what sociologist Loic Wacquant calls the hyperincarceration of black men. But there are solutions to rectify this problem.
To summarize the major arguments in this essay, the root cause of the hyperincarceration of blacks (and in particular black men) is society’s collective choice to become more punitive. These tough-on-crime laws, which applied to all Americans, could be maintained only because of the dual legal system developed from the legacy of racism in the United States. That is, race allowed for society to avoid the trade-off between societies “demand” to get tough on crime and its “demand” to retain civil liberties, through unequal enforcement of the law. In essence, tying crime to observable characteristics (such as race or religious affiliation) allowed the majority in society to pass tough-on-crime policies without having to bear the full burden of these policies, permitting these laws to be sustained over time.
What’s more, the history of racism, which is also linked to the history of perceptions of race and crime, has led society to choose to fight racial economic equality using the criminal justice system (i.e., incarceration) instead of choosing to reduce racial disparities through consistent investments in social programs (such as education, job training, and employment, which have greater public benefits), as King (1968) lobbied for before his assassination. In other words, society chose to use incarceration as a welfare program to deal with the poor, especially since the underprivileged are disproportionately people of color.
At the same time, many communities attempted to benefit economically from mass incarceration by using prisons as a strategy for economic growth, making the incarceration system eerily similar to the system of slavery. Given all of the documented social and economic costs of mass incarceration (e.g., inferior labor market opportunities, increases in the racial disparity in HIV/AIDS, destruction of the family unit), it can be concluded that it has helped to maintain the economic hierarchy, predicated on race, in the United States. In order to undo the damage that has been done, and in order to move beyond our racial past, we must as a nation reeducate ourselves about race; and then, as a society, commit to investing in social programs targeted toward at-risk youth. We must also ensure diversity in criminal justice professionals in order to achieve the economic equality that King fought for prior to his death. Although mass incarceration policies have recently received a great deal of attention (due to incarceration becoming prohibitively costly), failure to address the legacy of racism passed down by our forefathers and its ties to economic oppression will only result in the continued reinvention of Jim Crow.
Thursday, January 22, 2015
"Heroin addiction sent me to prison. White privilege got me out and to the Ivy League."
The provocative title of this post is the headline of this provocative Washington Post piece authored by Keri Blakinger. Here is how it gets started (with links from the original):
I was a senior at Cornell University when I was arrested for heroin possession. As an addict — a condition that began during a deep depression — I was muddling my way through classes and doing many things I would come to regret, including selling drugs to pay for my own habit. I even began dating a man with big-time drug connections that put me around large amounts of heroin. When police arrested me in 2010, I was carrying six ounces, an amount they valued at $50,000 — enough to put me in prison for up to 10 years. Cornell suspended me indefinitely and banned me from campus. I had descended from a Dean’s List student to a felon.
But instead of a decade behind bars and a life grasping for the puny opportunities America affords some ex-convicts, I got a second chance. In a plea deal, I received a sentence of 2½ years. After leaving prison, I soon got a job as a reporter at a local newspaper. Then Cornell allowed me to start taking classes again, and I graduated last month. What made my quick rebound possible?
I am white.
Second chances don’t come easily to people of color in the United States. But when you are white, society offers routes to rebuild your life. When found guilty of a drug crime, white people receive shorter sentences than black people. And even after prison, white men fare better in the job market than black men with identical criminal records.
It was prison that clued me in to just how much I benefit from systemic racism in our society. Until then, I hadn’t thought much about white privilege, which is exactly how privilege works — as a white person, I could ignore it. But sitting behind bars, I saw how privilege touches almost everything, especially the penal system.
Thursday, January 15, 2015
Political scientist highlights how Ted Kennedy and Joe Biden helped produce modern mass incarcertation
I first spotlighted in this prior post the fascinating new book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America. I now see that The Marshall Project has published this great piece by Dana Goldstein with a brief overview of the book and a potent Q&A with its author. Here is how the piece starts and some of my favorite excerpts:
Are liberals as responsible for the prison boom as conservatives?
That’s the thesis of a new book, The First Civil Right: How Liberals Built Prison America. It has begun to attract reviews and debate from across the political spectrum. Princeton political scientist Naomi Murakawa seeks to upend assumptions about the politics of crime and punishment. She argues that conservatives, playing the politics of racial animus, helped quadruple the incarceration rate, but they were not alone. Rather, she points to “liberal law and order” ideas first expressed by Harry Truman, Lyndon B. Johnson, and even the NAACP. These liberals believed that federalizing crime policy would “professionalize” the justice system and prevent racial bias. But in fact, federal funding and federal oversight of courts, sentencing, and policing helped build what Murakawa calls a “carceral state” that disproportionately punishes people of color.
Murakawa and I talked about her book and its implications for criminal justice reform today, especially the #BlackLivesMatter movement and the Obama administration’s policing reforms....
Q: Your book aims to expose the liberal roots of the prison boom. But Democrats did not create the Willie Horton ad. It was Richard Nixon who expanded the drug war by claiming that drug use was “the common denominator” that explained lawlessness among hippies, inner-city blacks, and antiwar protestors. Is it important to distinguish between the different motives of conservatives and liberals?
A: I think it’s important to stay focused on outcomes in terms of how they affect people’s day-to-day lives. I do discount stated intentions quite a lot. I do this in part because I have a feeling that for those being sentenced under punitive sentencing guidelines it doesn’t make a difference to them that Sen. Ted Kennedy was liberal and overall had a good voting record. It doesn’t make the brutality of living in a cage any less violent.
Kennedy promulgated this idea of sentencing guidelines. It was his baby. He ushered it through the Senate at first as guidelines that were rigid but would have been somewhat anti-carceral. They became guidelines that were rigid and more carceral. And Reagan signed this legislation, in 1984. Kennedy had the rest of his life to say, “The sentencing guidelines have had a terrible impact. This is not what I meant.” Not once did he introduce legislation to reform the guidelines. Not once did he apologize or try to change it. When I look at that kind of history, that’s where I feel like it’s fair to hold liberals responsible.
Q: Joe Biden played an interesting role in what you call Democrats “upping the ante” to outbid conservatives on being tough on crime. Can you talk about Biden’s history?
A: He was really pivotal in leading the Senate in worsening all of the provisions of Clinton's 1994 Omnibus Crime Act, which expanded the death penalty and created new mandatory minimum sentences. Biden was truly a leader and worked very closely and very happily with conservative senators just to bid up and up and up. There’s a tendency now to talk about Joe Biden as the sort of affable if inappropriate uncle, as loudmouth and silly. But he’s actually done really deeply disturbing, dangerous reforms that have made the criminal justice system more lethal and just bigger.
That 1994 act is overwhelmingly, incredibly punitive. One of the ways Biden brokered it was by making it such a huge bill that it had something for everyone. It provided political coverage for everyone who wanted to vote for it. There were certain liberal members who might have been opposed to mandatory minimums, but they were also getting the Violence Against Women Act. The Congressional Black Caucus opposed the death penalty expansions, but the bill also did include some modest money for rehabilitation programs. Everyone got goodies through the criminal justice system.
Prior related post:
January 15, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack
Friday, January 09, 2015
"How White Liberals Used Civil Rights to Create More Prisons"
The potent title of this post is the potent title of this new piece at The Nation by Willie Osterweil, which serves as a review of sorts of a book by historian Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America. Both the full Nation article and the book it discusses are worth attention, and here are excerpts from the article:
In her first book, The First Civil Right: How Liberals Built Prison in America, historian Naomi Murakawa demonstrates how the American prison state emerged not out of race-baiting states’-rights advocates nor tough-on-crime drug warriors but rather from federal legislation written by liberals working to guarantee racial equality under the law. The prison industry, and its associated police forces, spy agencies and kangaroo courts, is perhaps the most horrific piece of a fundamentally racist and unequal American civil society. More people are under correctional supervision in the United States than were in the Gulag archipelago at the height of the Great Terror; there are more black men in prison, jail or parole than were enslaved in 1850. How did this happen?
The common-sense answer is that launching the war on drugs during the backlash against civil-rights struggles encouraged agents of the criminal-justice system to lock up black people for minor infractions. This isn’t wrong, or not exactly. Ronald Reagan’s infamous Sentencing Reform Act of 1984, which established federal minimums (a k a sentencing “guidelines”) and abolished parole in the federal prison systems, did lead to an explosion in the number of federal prisoners, particularly drug offenders. It was one of the pivotal moments in the production of the prison-industrial complex (PIC) — the overlapping sphere of government and industrial activity that employs hundreds of thousands of guards, cops, judges, lawyers, bail-bondsmen, administrators and service employees and which sees millions of prisoners performing barely paid production labor to generate profit. But, as Murakawa painstakingly demonstrates, the Sentencing Reform Act has a “liberal core,” and is built on the technical and administrative logic of racial fairness that structures all federal civil-rights legislation.
This is the fundamental thesis of Murakawa’s book: legal civil rights and the American carceral state are built on the same conceptions of race, the state and their relationship. As liberals believe that racism is first and foremost a question of individual bias, they imagine racism can be overcome by removing the discretion of (potentially racist) individuals within government through a set of well-crafted laws and rules. If obviously discriminatory laws can be struck down, and judges, statesmen or administrators aren’t allowed to give reign to their racism, then the system should achieve racially just outcomes. But even putting aside the fact that a removal of individual discretion is impossible, such a conception of “fairness” applies just as easily to producing sentencing minimums as school desegregation....
Murakawa does not simply collapse liberal and conservative into each other. She makes an important distinction between postwar racial-liberalism and postwar racial-conservatism. Race conservatives are those who don’t believe that racism is real, but that race is: they believe that black people are innately inferior to whites, and attribute their place in society to a failure of black culture. This race-conservatism is what is broadly considered “real racism.”
Race-liberalism, on the other hand, remains the dominant — and usually unspoken — American framework for understanding race. Built on the premise that racism is real but manifests as the prejudice of white people, race-liberals argue that individuals’ racism can corrupt institutions and bias them against black people. That bias damages black psyches as well as black people’s economic and social prospects. Race-liberals believe that training, laws, stricter rules and oversight can eliminate prejudice and render institutions “colorblind.” Since it is biased treatment that damages black prospects, then this fix — civil rights — applied to all of society’s institutions, would eventually end racial disparity.
Both race-liberals and race-conservatives base their theories on one disastrous assumption: black people naturally produce crime. For race-conservatives, black people are innately, genetically criminal, full stop. For race-liberals, the psychological, economic and social damage of prejudice makes black people “lash out” violently and criminally–either in the form of individual criminal acts or, as the black freedom movement begins in earnest, as protests and rioting. Under both schema, however, the reason society must achieve racial equality is because equality will eliminate black crime.
Wednesday, January 07, 2015
"How to reduce poverty and improve race relations by rethinking our justice system"
The title of this post is the subheadline of this notable Politico commentary authored by Charles Koch and Mark Holden. Here are excerpts:
As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. This proliferation is sometimes referred to as “overcriminalization,” which affects us all, but most profoundly harms our disadvantaged citizens.
Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders. Enforcing so many victimless crimes inevitably leads to conflict between our citizens and law enforcement. As we have seen all too often, it can place our police officers in harm’s way, leading to tragic consequences for all involved.
How did we get in this situation? It began with well-intentioned lawmakers who went overboard trying to solve perceived or actual problems. Congress creates, on average, more than 50 new criminal laws each year. Over time, this has translated into more than 4,500 federal criminal laws spread across 27,000 pages of the United States federal code. (This number does not include the thousands of criminal penalties in federal regulations.) As a result, the United States is the world’s largest jailer — first in the world for total number imprisoned and first among industrialized nations in the rate of incarceration....
We have paid a heavy price for mass incarceration and could benefit by reversing this trend. It has been estimated that at least 53 percent of those entering prison were living at or below the U.S. poverty line when their sentence began. Incarceration leads to a 40 percent decrease in annual earnings, reduced job tenure and higher unemployment. A Pew Charitable Trust study revealed that two-thirds of former inmates with earnings in the bottom fifth upon release in 1986, remained at or below that level 20 years later. A Villanova University study concluded that “had mass incarceration not occurred, poverty would have decreased by more than 20 percent, or about 2.8 percentage points” and “several million fewer people would have been in poverty in recent years.” African-Americans, who make up around 13 percent of the U.S. population but account for almost 40 percent of the inmates, are significantly affected by these issues.
According to Harvard sociologist Bruce Western: “Prison has become the new poverty trap. It has become a routine event for poor African-American men and their families, creating an enduring disadvantage at the very bottom of American society.”...
Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society — especially for the disadvantaged.
Some prior related posts on Koch family efforts in support of criminal justice reform:
- Big talk from Charles Koch about big (money) criminal justice reform efforts
- Koch Industries give "major grant" to NACDL to help with indigent defense
- Highlighting that George Soros and the Koch Brothers agree on the need for criminal justice reform
- Another sign of the modern sentencing times: notable sponsor for "How the Criminal Justice System Impacts Well-Being"
- ACLU to devote $50 million to political efforts to attack mass incerceration
Congressional Black Caucus saying it will focus on criminal justice reform
I expect the next few years to be dynamic with respect to federal criminal justice reform, and this inside-the-Beltway story provides another reason why:
The Congressional Black Caucus will focus on criminal justice reform, U.S. Rep. G.K. Butterfield of North Carolina said in a speech on Tuesday at a ceremony where he was sworn in as the group’s new chairman. “There is a well-founded mistrust between the African American community and law enforcement officers,” Butterfield said in a speech. “The statistics are clear. Video clips are clear.
“We recognize that the overwhelming majority of law enforcement officers put their lives on the line every day to protect our communities. Unfortunately, there are some officers who abuse the sacred responsibility to protect and serve by using excessive, and sometimes deadly force when a less severe response is warranted,” the North Carolina Democrat said. “The CBC will seek legislative action to reverse this terrible trend.”
The Congressional Black Caucus also would work to try to change sentencing laws, hold prosecutors to ethical standards, and ensure that defendants have competent lawyers, Butterfield added....
The Congressional Black Caucus welcomed five new members at the ceremony where Butterfield spoke, including one Republican, conservative Mia Love of Utah, and Democratic Reps. Alma Adams of North Carolina, Bonnie Watson Coleman of New Jersey, Brenda Lawrence of Michigan and Stacey Plaskett of the U.S. Virgin Islands.
As I noted in this prior post, Mia Love, the first black Republican woman ever elected to Congress, could be an especially important voice on these issues if she embraces the CBC's commitment to making these matters a priority for reforms.
A few prior related posts:
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- What does Rep-elect Mia Love, the new most-interesting person in Congress, think about sentencing reform and the federal drug war?
Tuesday, January 06, 2015
GOP apparently eager to have Eric Holder as AG for at least one more month
The (slightly) tongue-in-cheek title of this post is my reaction to the news reported in "this notable NPR report, titled "Senate Slow To Schedule Hearings For Attorney General Nominee." In the piece, Carrie Johnson reports that Democrats have been pushing for confirmation hearings ASAP for Attorney General nominee Lorreta Lynch, but new GOP Judiciary Chair Charles Grassley has indicated that these hearings will not take place before the last week in January at the earliest.
I am very eager for the Lynch hearings because they should provide an important window into what both the GOP-controlled Congress and the Obama Administration are thinking about on federal criminal justice issues for the next two years. But I suspect the GOP is feeling a bit forced to take a go slow approach on how to best approach (and attack) nominee Lynch and Prez Obama on these fronts, in part because the GOP has real internal divisions on these issues and in part because racial issues and divides are especially salient in criminal justice reform discussions these days.
So, because AG Eric Holder remains in his position until his successor is confirmed, the GOP Senate is right now functionally extending his term as the nation's top prosecutor and lawyer.