Tuesday, February 25, 2014

Curious racial politics omission in otherwise astute analysis of Prez Obama's criminal justice reform record

New York Times big-wig Bill Keller has this interesting final column headlined "Crime and Punishment and Obama," which discusses his transition to a notable new job in the context of a review of Prez Obama's criminal justice record.  Here are excerpts of a piece which should be read in full and which, as my post title suggests, does not discuss racial politics as much as I would expect: 

[W]hen the former community organizer took office, advocates of reform had high expectations.

In March I will give up the glorious platform of The Times to help launch something new: a nonprofit journalistic venture called The Marshall Project (after Thurgood Marshall, the great courtroom champion of civil rights) and devoted to the vast and urgent subject of our broken criminal justice system.  It seems fitting that my parting column should address the question of how this president has lived up to those high expectations so far....

In his first term Obama did not make this a signature issue; he rarely mentioned the subject....

In practice, the administration’s record has been more incremental than its rhetoric.

By the crudest metric, the population of our prisons, the Obama administration has been unimpressive.  The famously shocking numbers of Americans behind bars (the U.S., with 5 percent of the world’s people, incarcerates nearly a quarter of all prisoners on earth) have declined three years in a row.  However the overall downsizing is largely thanks to California and a handful of other states.  In overstuffed federal prisons, the population continues to grow, fed in no small part by Obama’s crackdown on immigration violators.

Obama is, we know, a cautious man, leery of getting ahead of public opinion and therefore sometimes far behind it.  And some reform advocates argue that it made sense for Obama to keep a low profile until a broad bipartisan consensus had gathered.  That time has come. Now that Obama-scorners like Senators Rand Paul and Mike Lee and even Ted Cruz are slicing off pieces of justice reform for their issue portfolios, now that red states like Texas, Georgia, South Carolina, Missouri and Kentucky have embraced alternatives to prison, criminal justice is one of those rare areas where there is common ground to be explored and tested.

The Obama presidency has almost three years to go, and there is reason to hope that he will feel less constrained, that the eight commutations were not just a pittance but, as he put it, “a first step,” that Holder’s mounting enthusiasm for saner sentencing is not just talk, but prelude, that the president will use his great pulpit to prick our conscience.

“This is something that matters to the president,” Holder assured me last week.  “This is, I think, going to be seen as a defining legacy for this administration.”  I’ll be watching, and hoping that Holder’s prediction is more than wishful thinking

This column covers a lot of modern criminal justice ground quite well, and gets me even more excited for Keller's forthcoming new journalistic venture called The Marshall Project. But I find curious and notable that this commentary does not directly address the racialized political dynamics that necessarily surrounds the first African-American Prez and AG if and whenever they prioritize criminal justice reform.

I have heard that Thurgood Marshall, when doing advocacy work with the NAACP before he became a judge, was disinclined to focus on criminal justice reform because he realized the politics of race made it hard enough for him to garner support for even law-abiding people of color. Consequently, while important federal elections in which Prez Obama is the key player still loom, I suspect the Prez and his team have made a very calculated decision to only move very slowly (and behind folks like Senator Rand Paul) on these matters.

And yet, just as Thurgood Marshall could and did make criminal justice reform a priority when he became a judge and Justice insulated from political pressure, so too am I expecting that Prez Obama will prioritize criminal justice issues once he in the last two lame-duck years of his time in the Oval Office. Two years is ample time for the Prez to make federal criminal justice reform a "defining legacy for this administration," and there is good reason to think political and social conditions for bold reform work will be in place come 2015 and 2016 (even with the inevitably racialized realities surrounding these issues).

February 25, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, February 20, 2014

"Institutionalizing Bias: The Death Penalty, Federal Drug Prosecutions, and Mechanisms of Disparate Punishment

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

The empirical study of capital punishment in the “modern” era has been largely decoupled from scholarship addressing the corollary late-20th century noncapital punitive developments, such as the rise of mass incarceration. Consequently, research that has examined the problem of racial disparities in the administration of the death penalty and research on the proportional growth of minorities in American correctional populations have advanced on parallel tracks, rarely intersecting.

In light of this symposium’s effort to strengthen the linkages between the death penalty and mass incarceration, this article examines two seemingly distinct cases of racially disparate criminal justice practices — the trial courts’ processing of contemporary capital cases and federal drug trafficking cases — to illustrate the institutionalized mechanisms that produce racial inequalities in both mass incarceration and capital punishment. I advance a meso-level, social-psychological theory on the production of institutional racism that also aims to integrate contested lines of thought about the mechanisms of bias and discrimination.

To accomplish these ends, I specifically focus on three problem areas in the structure and operation of contemporary American criminal justice: 1) the codification of inequality in how crimes and criminal culpability are defined and how sentencing rules are structured; 2) the distribution, by both stage and actor, of discretionary decision-making power; and 3) the mechanisms for relief from the harshest potential punishments.

February 20, 2014 in Death Penalty Reforms, Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, February 17, 2014

Noticing racial disproportion in who ends up serving time in private prisons

People-of-color-private-prisonsThis new Mother Jones piece, headlined "Why There's an Even Larger Racial Disparity in Private Prisons Than in Public Ones," highlights a new study concerning the racial composition of private prison populations.  Here is how the piece begins, with all the notable links (including a link to the discussed study) included: 

It's well known that people of color are vastly overrepresented in US prisons. African Americans and Latinos constitute 30 percent of the US population and 60 percent of its prisoners. But a new study by University of California-Berkeley researcher Christopher Petrella addresses a fact of equal concern. Once sentenced, people of color are more likely than their white counterparts to serve time in private prisons, which have higher levels of violence and recidivism (PDF) and provide less sufficient health care and educational programming than equivalent public facilities.

The study compares the percentage of inmates identifying as black or Hispanic in public prisons and private prisons in nine states. It finds that there are higher rates of people of color in private facilities than public facilities in all nine states studied, ranging from 3 percent in Arizona and Georgia to 13 percent in California and Oklahoma.  According to Petrella, this disparity casts doubt on cost-efficiency claims made by the private prison industry and demonstrates how ostensibly "colorblind" policies can have a very real effect on people of color.

The study points out an important link between inmate age and race. Not only do private prisons house high rates of people of color, they also house low rates of individuals over the age of 50 — a subset that is more likely to be white than the general prison population.  According to the study, "the states in which the private versus public racial disparities are the most pronounced also happen to be the states in which the private versus public age disparities are most salient." (California, Mississippi, and Tennessee did not report data on inmate age.)

Private prisons have consistently lower rates of older inmates because they often contractually exempt themselves from housing medically expensive—which often means older—individuals (see excerpts from such exemptions in California, Oklahoma, and Vermont), which helps them keep costs low and profits high. This is just another example of the growing private prison industry's prioritization of profit over rehabilitation, which activists say leads to inferior prison conditions and quotas requiring high levels of incarceration even as crime levels drop. The number of state and federal prisoners housed in private prisons grew by 37 percent from 2002 to 2009, reaching 8 percent of all inmates in 2010.

The high rate of incarceration among young people of color is partly due to the war on drugs, which introduced strict sentencing policies and mandatory minimums that have disproportionately affected non-white communities for the past 40 years. As a result, Bureau of Justice Statistics data shows that in 2009, only 33.2 percent of prisoners under 50 reported as white, as opposed to 44.2 percent of prisoners aged 50 and older.

So when private prisons avoid housing older inmates, they indirectly avoid housing white inmates as well. This may explain how private facilities end up with "a prisoner profile that is far younger and far 'darker'... than in select counterpart public facilities."

Private prisons claim to have more efficient practices, and thus lower operating costs, than public facilities. But the data suggest that private prisons don't save money through efficiency, but by cherry-picking healthy inmates.  According to a 2012 ACLU report, it costs $34,135 to house an "average" inmate and $68,270 to house an individual 50 or older. In Oklahoma, for example, the percentage of individuals over 50 in minimum and medium security public prisons is 3.3 times that of equivalent private facilities.

"Given the data, it's difficult for private prisons to make the claim that they can incarcerate individuals more efficiently than their public counterparts," Petrella tells Mother Jones.  "We need to be comparing apples to apples. If we're looking at different prisoner profiles, there is no basis to make the claim that private prisons are more efficient than publics."

February 17, 2014 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, February 06, 2014

"Profiting from Probation: America's 'Offender-Funded' Probation Industry"

The title of this post is the title of this notable new report from Human Rights Watch. Here is the start of the report's summary:

The United States Supreme Court has ruled that a person sentenced to probation cannot then be incarcerated simply for failing to pay a fine that they genuinely cannot afford. Yet many misdemeanor courts routinely jail probationers who say they cannot afford to pay what they owe — and they do so in reliance on the assurances of for-profit companies with a financial stake in every single one of those cases.

Every year, US courts sentence several hundred thousand people to probation and place them under the supervision of for-profit companies for months or years at a time.  They then require probationers to pay these companies for their services.  Many of these offenders are only guilty of minor traffic violations like speeding or driving without proof of insurance.  Others have shoplifted, been cited for public drunkenness, or committed other misdemeanor crimes.  Many of these offenses carry no real threat of jail time in and of themselves, yet each month, courts issue thousands of arrest warrants for offenders who fail to make adequate payments towards fines and probation company fees.

This report, based largely on more than 75 interviews conducted with people in the states of Alabama, Georgia, and Mississippi during the second half of 2013, describes patterns of abuse and financial hardship inflicted by the “offender-funded” model of privatized probation that prevails in well over 1,000 courts across the US.  It shows how some company probation officers behave like abusive debt collectors.  It explains how some courts and probation companies combine to jail offenders who fall behind on payments they cannot afford to make, in spite of clear legal protections meant to prohibit this.  It also argues that the fee structure of offender-funded probation is inherently discriminatory against poor offenders, and imposes the greatest financial burden on those who are least able to afford to pay.  In fact, the business of many private probation companies is built largely on the willingness of courts to discriminate against poor offenders who can only afford to pay their fines in installments over time.

The problems described in this report are not a consequence of probation privatization per se.  Rather, they arise because public officials allow probation companies to profit by extracting fees directly from probationers, and then fail to exercise the kind of oversight needed to protect probationers from abusive and extortionate practices.  All too often, offenders on private probation are threatened with jail for failing to pay probation fees they simply cannot afford, and some spend time behind bars.

February 6, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, February 05, 2014

Distaff side death penalty developments in Texas and Arizona

Women-death-rowI always find gender differences and disparities quite interesting in the administration of the modern death penalty, and thus these two news stories from two states captured my attention this morning.

From Texas via the AP here, "Woman Set to Be Executed in Texas for 1998 Killing," gets started this way:

A woman convicted of torturing and killing a mentally impaired man she lured to Texas with the promise of marriage was scheduled to be executed Wednesday in a rare case of a female death-row inmate.

If 59-year-old Suzanne Basso is lethally injected as scheduled, the New York native would be only the 14th woman executed in the U.S. since the Supreme Court allowed capital punishment to resume in 1976.  By comparison, almost 1,400 men have been put to death. Texas, the nation's busiest death-penalty state, has executed four women and 505 men.

Basso was sentenced to death for the 1998 slaying of 59-year-old Louis "Buddy" Musso, whose battered and lacerated body, washed with bleach and scoured with a wire brush, was found in a ditch outside Houston.  Prosecutors said Basso had made herself the beneficiary of Musso's insurance policies and took over his Social Security benefits after luring him from New Jersey.

The 5th U.S. Circuit Court of Appeals refused to halt the execution in a ruling Tuesday, meaning the U.S. Supreme Court is likely her last hope.  A state judge ruled last month that Basso had a history of fabricating stories about herself, seeking attention and manipulating psychological tests.

Leading up to her trial, Basso's court appearances were marked by claims of blindness and paralysis, and speech mimicking a little girl.  "It was challenging, but I saw her for who she was," said Colleen Barnett, the former Harris County assistant district attorney who prosecuted Basso.  "I was determined I was not going to let her get away with it."

Basso's attorney, Winston Cochran Jr., had asked the appeals court to overturn the lower court's finding that Basso was mentally competent to face execution.  He argued that Basso suffered from delusions and that the state law governing competency was unconstitutionally flawed.  Her lawyer said a degenerative disease left her paralyzed, but Basso, who uses a wheelchair, blamed her paralysis on a jail beating years ago.  At a competency hearing two months ago, she testified from a hospital bed wheeled into a Houston courtroom and talked about a snake smuggled into a prison hospital in an attempt to kill her. But she acknowledged lying about her background, including that she was a triplet, worked in the New York governor's office and had a relationship with Nelson Rockefeller.

From Arizona via The Republic here, "5 Arizona Women Face Rare Death Penalty" gets started this way:

Women make up less than 2 percent of death-row populations in the United States. There are two women on death row in Arizona, and no woman has been executed here since Eva Dugan was hanged in 1930. So, it’s a peculiar confluence of fate that five capital-murder cases against women are working through Arizona courts in these early months of 2014:

On Jan. 17, the Arizona Supreme Court upheld the death sentence for Shawna Forde, a self-styled anti-immigration vigilante convicted of killing two people southwest of Tucson in 2009.

On Jan. 23, a Maricopa County Superior Court judge refused to reconsider her decision to allow a former Phoenix police detective to invoke the Fifth Amendment in the Debra Milke case, putting Milke’s potential retrial on hold until prosecutors can file a special action appeal. Milke was freed after 23 years on death row when the 9th U.S. Circuit Court of Appeals granted her a new trial.

Wendi Andriano, who was sent to death row in 2004 for murdering her husband, is back in Maricopa County Superior Court for the next two weeks in a stage called post-conviction relief, arguing that she deserves a new trial because her defense attorneys did not represent her effectively.

Marissa DeVault’s trial starts Thursday on charges of killing her husband with a hammer in 2009. And Jodi Arias will go back to trial on March 17 to determine if she should be sentenced to death or to life in prison for the 2008 murder of her lover Travis Alexander.

Death-penalty cases are rarely clear-cut; less so when the defendants are women. Last spring, a first jury could not reach a decision as to whether to let Arias live or die.

In 2010, a Superior Court jury balked at sending Marjorie Orbin to death row, even though it found her guilty of killing her husband and cutting him in pieces. One chunk of his torso was found in a plastic tub in the desert in north Phoenix.

And in 2002, the Arizona Supreme Court threw out a death sentence for Doris Carlson, who paid two men to kill her mother-in-law in 1996, after determining that the murder was not committed in an especially cruel, heinous or depraved manner. That is one of the aggravating factors alleged in the DeVault case, and the Arias argument on the death penalty is based on the murder being considered especially cruel.

Capital cases against women also are often more complex because the crimes are often more passionate and more intimate.  “The death penalty is mostly about crimes against strangers. That really frightens people,” said Elizabeth Rapaport, a law professor at the University of New Mexico. Those crimes often include rapes and robberies, “and women just don’t do those kind of crimes,” Rapaport said.  Women who kill tend to kill spouses, lovers, children and family members. “Those cases are rarely capital cases,” she said.

February 5, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Tuesday, February 04, 2014

Is there a faith-based perspective on modern marijuana laws and reforms?

God potThe question in the title of this post is prompted by this interesting article from the Washington Post headlined "Faith leaders wrestle over growing support for marijuana." Here are excerpts:

Sunday’s Super Bowl was dubbed by some as the “pot bowl,” as the Denver Broncos and Seattle Seahawks hail from the two states where fans can soon get marijuana as easily as they can get pizza. As public opinion has shifted in support of legalized marijuana, religious leaders are wrestling over competing interests, including high prison rates and legislating morality.

According to a 2013 survey from the Public Religion Research Institute, 58 percent of white mainline Protestants and 54 percent of black Protestants favor legalizing the use of marijuana. On the other side, nearly seven-in-10 (69 percent) white evangelical Protestants oppose it.

Catholics appear to be the most divided Christian group, with 48 percent favoring legalization and 50 percent opposing it. Opinions on how states should handle those who possess or sell marijuana varies among Christian leaders.

Caught in the middle of the debate are pastors, theologians and other religious leaders, torn over how to uphold traditional understandings of sin and morality amid a rapidly changing tide of public opinion.

Mark DeMoss, a spokesman for several prominent evangelicals including Franklin Graham and Hobby Lobby founder Steve Green, admits he takes a view that might not be held by most Christian leaders. “When 50 percent of our prison beds are occupied by nonviolent offenders, we have prison overcrowding problems and violent offenders serving shortened sentences, I have a problem with incarceration for possession of marijuana,” he said. “None of that’s to say I favor free and rampant marijuana use. I don’t think it’s the most serious blight on America.”

Alcohol abuse, he said, is a much more serious issue. President Obama suggested something similar to The New Yorker recently when he said that marijuana is less dangerous than alcohol.

But don’t expect pastors to start preaching in line with DeMoss, who said he has not seen much comment from religious leaders on the issue. “If a pastor said some of what I said, there would be some who would feel the pastor was compromising on a moral issue,” he said. “No one wants to risk looking like they’re in favor of marijuana. I’m not in favor, but I think we should address how high of a priority it should be.”...

Laws on marijuana have disproportionately impacted minorities, said the Rev. Samuel Rodriguez, president of the National Hispanic Christian Leadership Conference. “There are community programs that can better engage young people than incarceration,” he said. “Many black and brown lives are destroyed because of incarceration.”...

Most Christians are still reluctant to favor legalization, Rodriguez said, since the effects of marijuana aren’t much different from getting drunk, which is a biblical no-no. “It has the ability of diluting reason, behavior, putting your guard down,” he said. “We are temples of God’s Holy Spirit, and it has the ability of hindering a clear thought process.”

Some who favor legalized marijuana liken the Christians who oppose it to be like the early 20th-century evangelicals and fundamentalists who supported a federal prohibition on alcohol. Part of a move in the Republican Party toward a loosening on marijuana legislation could be coming from people who also would sympathize with the Tea Party, said Russell Moore, head of the Southern Baptist Convention’s Ethics & Religious Liberty Commission.

“I definitely think there’s been a coalition of ‘leave us alone’ libertarians and Woodstock nation progressives on this issue of marijuana,” Moore said. “I do think there has been an effort to stigmatize those with concerns as Carrie Nations holding on to prohibition.”

Cross-posted at Marijuana Law, Policy and Reform

February 4, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (28) | TrackBack

Friday, January 31, 2014

"Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism"

The title of this post is the title of this intriguing new article recently posted on SSRN and authored by Robert Smith, Justin Levinson and Zoe Robinson. Here is the abstract:

Commentators idealize a racially fair criminal justice system as one without racial animus. But unjustified racial disparities would persist even if racial animus disappeared overnight. In this Article, we introduce the concept of implicit white favoritism into criminal law and procedure scholarship, and explain why preferential treatment of white Americans helps drive the stark disparities that define America’s criminal justice system.

Scholarly efforts thus far have shone considerable light on how unconscious negative stereotyping of black Americans as hostile, violent, and prone to criminality occurs at critical points in the criminal justice process. We rotate the flashlight to reveal implicit favoritism, a rich and diverse set of automatic associations of positive stereotypes and attitudes with white Americans. White favoritism can operate in a range of powerful ways that can be distinguished from traditional race-focused examples: in the way, for example, white drivers are pulled over less often than unseen drivers or crimes against white victims are seen as more aggravating. Our account of implicit white favoritism both enriches existing accounts of how implicit racial bias corrupts the criminal justice system and provides explanations for disparities that implicit negative stereotyping explanations miss altogether.

January 31, 2014 in Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Sunday, January 26, 2014

GOP leaders now getting what Mitt missed: drug war reform may make good politics (as well as being principled) for small-government conservatives

Jindal and perryTwo years ago, just when Mitt Romney was finally sewing up the Republican nomination and could pivot his campaign toward wooing general election voters, I wrote this post suggesting it might be shrewd for Romney to consider trying to appeal to independents, young voters and minorities by talking up sentencing and drug war reforms. I followed up these ideas via this April 2012 Daily Beast commentary suggesting Romney should consider embracing "what Right On Crime calls the 'conservative case' for criminal-justice reform, and in doing so appeal to groups of independent and minority voters (especially young ones) while demonstrating a true commitment to some core conservative values about the evils of big government."

Two years later, it is (too) easy for me to assert that Mitt Romney might be preparing his own State of the Union address now had he taken my advice on this front.  Nevertheless, I am hardly the only one who came to see that Mitt missed the boat with younger and minority voters.  Romney himself commented that his campaign "fell short ... in being able to speak openly and effectively to minority populations," and this post-election post-mortem done by RNC Chair Reince Priebus highlighted that "young voters are increasingly rolling their eyes at what the [GOP] represents, and many minorities wrongly think that Republicans do not like them or want them in the country."

These 2012 issues all came to mind again when I read this interesting new post by Alex Kriet over at Marijuana Law, Policy and Reform.  The post is titled "More politicians backing marijuana reform," and it notes that "the past few days have seen a number of prominent Republican politicians express support for easing marijuana laws." Alex provides excerpts from recent comments by Governors Christie, Jindal and Perry and noted that they are "three Republicans rumored to be considering 2016 presidential bids [who are all] expressing support for easing drug laws."

Of course, even among leading conservative voices, these three prominent GOP Governors are coming a bit late to the sentencing and drug war reform table.  The Right on Crime movement has now been going strong for more than three years, with conservative stalwarts like Jeb Bush, Newt Gingrich, and Grover Norquist signing on to this statement of principles that "we must also be tough on criminal justice spending ... [to reconsider our] reliance on prisons ... [which can] have the unintended consequence of hardening nonviolent, low-risk offenders — making them a greater risk to the public than when they entered."  And, two of the most prominent elected Tea Partiers, Senators Mike Lee and Rand Paul, have been co-sponsors and prominent supports of bill to reform some of the harshest and most rigid aspects of the federal sentencing system. 

Regular readers know I have long asserted that anyone truly and deeply committed to oft-stressed conservative principles of constitutionally limited government, transparency, individual liberty, personal responsibility, and free enterprise should be troubled by the size and power of modern American criminal justice systems, especially at the federal level. But Alex's astute observation that many GOP leaders considered viable national candidates for 2016 are now talking up sentencing and drug war reforms suggests that Republican leaders are now getting what Mitt missed — GOP talk of serious criminal justice reform (especially at the federal level) may now be very smart politics as well as being in keeping with prominent conservative principles.

Some recent and older related posts:

January 26, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack

Will Prez Obama mention sentencing reform in the State of the Union address?

Presidents traditionally use the annual State of the Union address to outline a planned legislative agenda and to articulate a perspective on national priorities. Consequently, in light of all the recent talk from Attorney General Holder and members of Congress about the need for federal sentencing reform, I will be extremely interested to see what Prez Obama might say (or not say) about sentencing reform when speaking to Congress this Tuesday.

This notable new commentary by Juliet Sorensen at The Atlantic, which is headlined "Why Obama Should Back Drug-Sentencing Reform in the State of the Union," highlights that I am not the only one now thinking about POTUS, SOTU and sentencing.  Here are excerpts:

In the last week of 1963, my father, Ted Sorensen, met with President Lyndon Johnson late into the night at his Texas ranch to decide what provisions of President John F. Kennedy’s unfinished agenda to include in the upcoming State of the Union address.  Last on the list was a provision for expanded federal jurisdiction over illegal drugs, which provided not only for federal criminal-law enforcement but also for expanded rehabilitation and treatment programs.

As my father recounted in his memoir, Johnson angrily brushed aside the suggestion. “Drugs? I don’t want to have anything to do with them. Just lock them up and throw away the key!”  The meeting ended, and my father deleted that portion of the speech, which famously announced the War on Poverty — but kept the drug provision in Johnson’s legislative program. This led to controlled-substance and drug-addiction reform that passed with bipartisan support in Congress. Despite Johnson’s dismissal of my father’s proposal of treatment and rehabilitation, he extolled those ideas when he signed the Narcotic Addict Rehabilitation Act into law in November 1966, describing it as a “pioneering measure” that recognizes that “treating addicts as criminals neither curtails addiction nor prevents crime.”

President Obama now has a golden opportunity in his own State of the Union to confront the U.S. government’s continued struggle to effectively legislate drugs.  In a January 8 statement, Obama endorsed the very same priorities articulated in LBJ’s War on Poverty and catalogued exactly 50 years ago in Johnson’s own State of the Union address.  This indicates that he will also focus on income inequality — 21st century lingo for entrenched poverty — in his speech on January 28.  While a renewed commitment to tackling persistent poverty is laudable, Obama should also seize the moment to further another, related legislative aim of the Kennedy and Johnson Administrations: reduced sentencing for drug-law violators who are nonviolent offenders....

Members of the bench and bar have come to recognize that mandatory minimums don’t always keep society safe or effectively punish every defendant.  A bill in the Senate, co-sponsored by Senators Dick Durbin, a Democrat, and Mike Lee, a Republican, would capitalize on shifting opinions in Congress and the general public.  The Smarter Sentencing Act (SSA) would reduce the mandatory-minimum penalties for many drug offenses and give federal judges more leeway to sentence nonviolent offenders with limited criminal histories below the high mandatory-minimum sentences.  It would also reduce disparities between crack- and powder-cocaine offenders by making the Fair Sentencing Act of 2010, which reduced the gap between the amount of crack and powder cocaine needed to trigger certain penalties, retroactive.  Support for the SSA from law enforcement, victims’ organizations, prosecutors, and judges has poured in, including a letter signed by more than 100 former judges and prosecutors, including me....

The Obama Administration has indicated it supports mandatory-minimum-sentencing reform.  Tellingly, the president last month commuted the sentences of eight nonviolent drug offenders who would most likely have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules, and charging policies.  Attorney General Eric Holder stated last August that legislation such as the SSA will “ultimately save our country billions of dollars while keeping us safe.”  In an interview published in this week’s issue of The New Yorker, Obama acknowledged the disparate impact of drug laws on minorities, noting that “African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support” — in their families, in their schools, and in their communities — to avoid lengthy prison sentences for marijuana crimes, even as he acknowledged the “profound” social costs of drug trafficking.

A declaration of support for the SSA in his State of the Union Address — broadcast live and heard not only by Congress but approximately 50 million people around the world — would go far to create momentum and support for the bill and its goal of curbing unnecessarily harsh sentencing. In so doing, the president would put America back on the road paved by Kennedy and Johnson. My father, and the presidents he served, would be pleased.

January 26, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, January 25, 2014

"Murder, Minority Victims, and Mercy"

The title of this post is the title of this interesting looking paper that just appears on SSRN and is authored by Aya Gruber.  Here is the abstract:

Should the jury have acquitted George Zimmerman of murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding “no.”  Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy.  According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest sanctions available.  Equality is thus achieved by ratcheting up punishment.

There is a similar bias in assessment of the death penalty, where those who kill racial minorities are treated more leniently than those who kill whites and are often spared execution.  But the typical liberal response here is to call for abolition rather than more frequent executions.  Equality is thus achieved by ratcheting down punishment.

This article asserts that the divergence between the accepted scholarly positions on the provocation defense and capital punishment can be explained by provocation critics’ choice to concentrate on spectacular individual instances of leniency toward those who kill gender minorities and death penalty theorists’ tendency to view the entire institution of capital punishment as racist and retrograde.  The article then provides the institutional sketch of noncapital murder law currently missing from provocation analysis by discussing sentencing practices, the demographic composition of murder defendants, and the provocation defense’s potential role as a safety valve.  It concludes that inserting institutional analysis into the critical assessment of provocation might undermine the prevailing scholarly dogma supporting pro-prosecution reform.

January 25, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4) | TrackBack

Tuesday, January 21, 2014

Florida prisons struggling with extra costs of a hearty appetite for religion

This new New York Times article, headlined "You Don’t Have to Be Jewish to Love a Kosher," highlights the extra costs of respecting religious freedoms for the incarcerated. Here are excerpts:

Florida is now under a court order to begin serving kosher food to eligible inmates, a routine and court-tested practice in most states.  But state prison officials expressed alarm recently over the surge in prisoners, many of them gentiles, who have stated an interest in going kosher.

Their concern: The cost of religious meals is four times as much as the standard fare, said Michael D. Crews, who is expected to be confirmed as secretary of the Department of Corrections in March.  “The last number I saw Monday was 4,417,” Mr. Crews said of inmate requests at his recent confirmation hearing before a State Senate committee. “Once they start having the meals, we could see the number balloon.”...

Kosher food in prisons has long served as fodder for lawsuits around the country, with most courts coming down firmly on the side of inmates.  As long as inmates say they hold a sincere belief in Judaism — a deeply forgiving standard — they are entitled to kosher meals, even if takes a little chutzpah to make the request.

“Florida is an outlier,” said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, which has represented inmates around the country.  “It’s a holdout. I don’t know why it’s being a holdout.  It is strange that Florida, of all places, is placing a special burden on Jewish inmates.  It’s just stubbornness.”

In Florida’s prison system. which faces a $58 million deficit, money is the easy answer for the battle against kosher food.  The cost of three kosher meals in Florida is $7 a day, a big jump from the $1.54 for standard meals, Mr. Crews said.  In New York State, where 1,500 inmates out of about 56,000 keep kosher, the cost of a kosher meal is $5 a person.  In California, where some prisons have kosher kitchens, the price tag is $8, and the meals are served to 0.7 percent of about 120,000 inmates.

Last April, facing an inmate lawsuit, Florida began a pilot program for the religious diet at Union Correctional Facility near Jacksonville. Initially, some 250 inmates signed up, Mr. Crews said. But once other inmates spied the individually boxed lunches, 863 expressed a sudden interest in keeping kosher....

But the question of who gets a kosher meal is tricky.  In all, less than 1.5 percent of the country’s 1.9 million inmates are Jewish, according to the Aleph Institute, a social services organization, and many do not even request kosher meals.  “Who is a Jew?” Mr. Rassbach said. “People disagree about who is a Jew.”

The courts steer clear of that perilous debate.  Instead, inmates need only say they have a “sincerely held” religious belief.  Attempts by prison officials and rabbis to quiz prisoners about the Torah and the rules of keeping kosher were ruled not kosher. Tracing maternal lineage was similarly viewed unfavorably....  Some states, like New York, do nothing to try to discern who is feigning Jewishness.  In California, inmates talk with a rabbi who will gauge, very generally, a prisoner’s actual interest.

But some Jewish groups in Florida are pushing for greater control, which may pose a difficult legal hurdle.  “There should be away to ascertain who really does require a kosher meal for their religious belief,” said Rabbi Menachem M. Katz, director of prison and military outreach for the Aleph Institute in South Florida, “and who is just gaming the system.”

January 21, 2014 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

Monday, January 20, 2014

Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition

I MLK am intrigued and pleased to see that the New Yorker has just released this very lengthy article profiling President Obama that has a very interesting small section with quotes from the President concerning modern marijuana policies and reform. Though I expect to cover various aspects of what Prez Obama said a lot more over at Marijuana Law, Policy and Reform in the week ahead, these comments should be of special interest to sentencing fans: 

What clearly does trouble him is the radically disproportionate arrests and incarcerations for marijuana among minorities.  “Middle-class kids don’t get locked up for smoking pot, and poor kids do,” he said.  “And African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support to avoid unduly harsh penalties.”  But, he said, “we should not be locking up kids or individual users for long stretches of jail time when some of the folks who are writing those laws have probably done the same thing.”  Accordingly, he said of the legalization of marijuana in Colorado and Washington that “it’s important for it to go forward because it’s important for society not to have a situation in which a large portion of people have at one time or another broken the law and only a select few get punished.”

As is his habit, he nimbly argued the other side. “Having said all that, those who argue that legalizing marijuana is a panacea and it solves all these social problems I think are probably overstating the case.  There is a lot of hair on that policy. And the experiment that’s going to be taking place in Colorado and Washington is going to be, I think, a challenge.”

As the title of this post highlights, I think it is valuable and fitting that news of the President of the United States making these points hits the papers on the weekend we honor the work and legacy of Dr. Martin Luther King.  As students of history know, Dr. King was concerned about economic inequallity as well as racial inequality, and I think the stories of modern pot prohiibition reflect both.  More broadly, as I highlight in a new post over at my other blog, titled MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition, I think MLK's most famous exhortations about freedom and equality are useful to consider at this unique moment of marijuana reform debates.

Some related recent posts (mostly from MLPR):

January 20, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Saturday, January 18, 2014

After new revelations, should every defendant ever sentenced by Judge Cebull seek resentencing?

The question in the title of this post is prompted by this new AP report headlined " "Federal judge sent hundreds of bigoted emails," which is a summary of this lengthy report released on Friday by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States.  Here are the basics:

A former Montana judge who was investigated for forwarding a racist email involving President Barack Obama sent hundreds of other inappropriate messages from his federal email account, according to the findings of a judicial review panel released Friday.

Former U.S. District Judge Richard Cebull sent emails to personal and professional contacts that showed disdain for blacks, Indians, Hispanics, women, certain religious faiths, liberal political leaders, and some emails contained inappropriate jokes about sexual orientation, the Judicial Council of the 9th U.S. Circuit Court of Appeals found.

Many of the emails also related to pending issues that could have come before Cebull's court, such as immigration, gun control, civil rights, health care and environmental issues, the council found in its March 15, 2013, order. The investigation looked at four years of Cebull's personal correspondence sent from his official email account. Investigators also reviewed his past cases and interviewed witnesses.

The investigation found no evidence of bias in Cebull's rulings or sentences, and the witnesses generally regarded him as a "good and honest trial lawyer, and an esteemed trial judge," according to the report.

The 9th Circuit council issued Cebull a public reprimand; ordered no new cases be assigned to him for 180 days; ordered him to complete training on judicial ethics, racial awareness and elimination of bias; and ordered him to issue a second public apology that would acknowledge "the breadth of his behavior." The panel said impeachment was not warranted because Cebull did not violate federal or state law, though two of the judges on the council said they would have asked for his resignation.

But none of the sanctions took effect and the findings did not become public until Friday on the order of a national judicial review panel. Cebull announced his resignation March 29, two weeks after the judicial council issued its order. After Cebull retired May 3, the 9th Circuit council vacated its previous order and wrote a new one calling the complaints against Cebull "moot" because of his retirement....

Cebull himself and 10 others requested the misconduct investigation after The Great Falls Tribune reported Cebull forwarded an email in February 2012 that included a joke about bestiality and Obama's mother. Cebull apologized to Obama after the contents of the email were published. He told the 9th Circuit panel that his "public shaming has been a life-altering experience" and that he was "acutely aware that each day in my court is the most important day in someone's life."

Cebull was nominated by former President George W. Bush and received his commission in 2001. He served as chief judge of the District of Montana from 2008 until 2013.

I am quite surprised to hear that Judge Cebull sent so many inappropriate e-mail from his chambers, though I am not at all surprised that an investigation by other judges reached the (self-serving) conclusion that there was "no evidence of bias in Cebull's rulings or sentences."  In my view, any defendant (especially any female or minority defendant) still sitting in federal prison unhappy with a past sentencing decision made by Judge Cebull could and should use this new report to at least request a focused review of any of his specific sentencing outcomes.

Prior related posts (from 2012) concerning Cebull controversy:

January 18, 2014 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, December 27, 2013

"White man charged with 'knockout game' hate crime. Racial hypocrisy?"

Folks on this blog (myself included) often discuss and debate the impact of racial issues, federalism and prosecutorial discretion on the operation of our nation's criminal justice systems.  Consequently, this new Christian Science Monitor article with the same headline of this post just caught my eye as blogworthy. Here is the article's subheading: "The Obama administration's decision to charge a white man with a hate crime for allegedly punching a black man as part of the knockout game has led to criticism that it is applying the law unevenly." And here is more from the piece:

The US Department of Justice on Thursday stepped into the cultural fray about the so-called “knockout game” when it brought federal hate crime charges against a white Texas man for assaulting an unsuspecting black man.

The decision shines a brighter spotlight on the knockout game, in which an assailant tries to knock out a bystander with a single punch. A spate of incidents have gathered national attention in recent months, though it is unclear whether the game has become more popular or whether the Internet has simply allowed for isolated incidents to be broadcast more widely.

The majority of the reported incidents, however, have involved black men targeting white victims – and none triggered federal involvement. The fact that the Justice Department has elected to step in now, when a black man was the victim, has led to criticism among conservative pundits that the Obama administration is applying the hate-crime statute unevenly....

Conrad Barrett was arrested Thursday and charged under federal hate crimes law, which defines a hate crime as “motivated by enmity or animus against a protected class.” (The Federal Bureau of Investigation also lists anti-white crimes as hate crimes.)...

Federal prosecutors say Mr. Barrett planned the Nov. 24 attack, which he filmed with his cellphone. He approached “G.C.”, an elderly black man, and said, “How’s it going, man?” then punched him so hard that G.C.'s jaw was broken in two places and he lost three teeth. Barrett then allegedly cried “knockout!” and ran.

He was caught after he told the tale at a bar, where an off-duty cop was present. Federal prosecutors argue that the attack was motivated by racial animus because police uncovered videos where Barrett allegedly used racial epithets and at one point said that black people “haven’t fully experienced the blessing of evolution.” In another video from the day of the assault, Barrett says, “If I were to hit a black person, would this be nationally televised?”

A single hate crime charge carries a maximum of 10 years in federal prison and a $250,000 fine.

Some conservative bloggers see racial hypocrisy in the charges. “This case shows how warped law enforcement has gotten as a result of hate crime legislation,” writes Rick Moran on the American Thinker blog. “No matter who is in charge, the law will always be selectively enforced. It makes a mockery of the notion of equal justice under the law.”

Concern about the game has percolated within the black community. This fall, several black leaders, including Philadelphia Mayor Michael Nutter, spoke out about the knockout game and warned black parents, in particular, about the consequences for dangerous behavior by their kids.

Hate crime charges have been brought this year against one black suspect accused of playing the knockout game, but they were state charges brought by New York in the case of a knocked-out Jewish man.

For his part, Jack Levin, a criminologist at Northeastern University in Boston, is not convinced that knockout game attacks are growing.  He argues in an upcoming journal article that racially fueled knockout attacks are in the news is because they’ve actually become rarer than in the past, so they are more notable.  The 1990s, he says, had far more reports of so-called “thrill hate crimes” -- think white teenagers beating up homeless men....

According to FBI hate crime statistics, 22 percent of the 3,297 reported racially motivated hate crimes in 2012 were anti-white, while 66 percent were anti-black. (Others included anti-Pacific Islander and anti-Alaskan native attacks.) The Justice Department insisted Thursday that it does not discriminate in how it makes decisions on hate crime charges. “Suspected crimes of this nature will simply not be tolerated,” said US Attorney Kenneth Magidson of the Southern District of Texas. “Evidence of hate crimes will be vigorously investigated and prosecuted with the assistance of all our partners to the fullest extent of the law.”

Especially in light of the fact that "thrill" beatings are likely always to be localized assaults and that such crimes may actually be declining even as media reports about them increased, I am inclined to criticize the feds for getting involved at all before I will express concerns about racial disparities in how local federal prosecutors decide to bring hate-crime federal charges. More broadly, to the extent that a lot of federal involvement in state matters has often been justified by a concerns that southern courts have in the past been much more concerned about white victim than black ones, the fact that the feds have gotten involved in a case like this in Texas (perhaps after state authorities were slow to respond) involving a younger hoodlum going after elderly man, makes me hesitant to throw around labels like racial hypocrisy until I had more detailed information about why prosecutors moved forward with federal charges in this case but not in others.

That all said, this case and the reaction thereto provides further support for my belief that everyone tends to favor a potent federal criminal justice system and unregulated federal prosecutorial discretion unless and until the feds start using their broad powers in ways that a particular group dislikes.

December 27, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack

Saturday, December 21, 2013

"If our prisons were a country, what would Incarceration Nation look like?"

The title of this post is the headline of this fascinating commentary by lawprof Rosa Brooks, which merits a read in full.  Here are just a few highlights from a very interesting piece:

You already know that the United States locks up a higher percentage of its population than any other country in the world.  If you look at local, state and federal prison and jail populations, the United States currently incarcerates more than 2.4 million people, a figure that constitutes roughly 25 percent of the total incarcerated population of the entire world.

A population of 2.4 million is a lot of people -- enough, in fact, to fill up a good-sized country. In the past, the British Empire decided to convert a good chunk of its prison population into a country, sending some 165,000 convicts off to Australia.  This isn't an option for the United States, but it suggests an interesting thought experiment: If the incarcerated population of the United States constituted a nation-state, what kind of country would it be?

Here's a profile of Incarceration Nation:

Population size: As a country -- as opposed to a prison system -- Incarceration Nation is on the small side. Nonetheless, a population of 2.4 million is perfectly respectable: Incarceration Nation has a larger population than about 50 other countries, including Namibia, Qatar, Gambia, Slovenia, Bahrain and Iceland....

Population Density:  No matter how you look at it, Incarceration Nation is a crowded place. If we assume a land area of 2,250 square miles, it has a population density of roughly 1,067 people per square mile, a little higher than that of India.  Of course, the residents of Incarceration Nation don't have access to the full land-area constituting their nation: most of them spend their days in small cells, often sharing cells built for one or two prisoners with two or three times that many inmates....

Demographics:

A nation of immigrants: Like many of the smaller Gulf States, Incarceration Nation relies almost entirely on immigration to maintain its population. You might even say that Incarceration Nation is a nation of displaced persons: most of its residents were born far away from Incarceration Nation, which has a nasty habit of involuntarily transporting people hundreds and sometimes thousands of miles away from their home communities, making it extraordinarily difficult for residents to maintain ties with their families. In New York, for instance, one study found that "70 percent of incarcerated individuals are in prisons over 100 miles from their homes" -- often in "isolated rural areas that are inaccessible by direct bus or train routes."...

Gender balance: International attention to gender imbalances has tended to focus on China, India and other states, but Incarceration Nation has the most skewed gender ratio of any country on Earth: men outnumber women by a ratio of about 12 to 1.

Racial and ethnic makeup: If Incarceration Nation were located in a geographical region matching its racial and ethnic makeup, it would probably be somewhere in the Southern Hemisphere, perhaps near Brazil.  Roughly 40 percent of the incarcerated population is of African descent, another 20 percent is of Hispanic descent, and the remaining 40 percent are Caucasian or mixed....

Health: Incarceration Nation doesn't do so well here. One recent study found that the incarcerated are "more likely to be afflicted with infectious disease and other illnesses associated with stress."...

Per Capita Spending: Judged by per capita government spending, Incarceration Nation is a rich country: its government spends an average of about $31,000 per year on each incarcerated citizen. (State by state, costs vary. Kentucky and Indiana spend less than $15,000 on each inmate per year, while in New York State, the per capita cost per inmate is more than $60,000 a year. In New York City, per capita costs for jail inmates reach an astronomical $168,000 per year.) Internationally, only little Luxembourg spends as much on its citizens as Incarceration Nation; among the generally wealthy states of the Organization for Economic Cooperation and Development, average per capita spending is under $15,000, and Sweden, France, Germany, Canada, the United States and the United Kingdom all spend under $20,000 per year on each citizen.

Gross Domestic Product: Incarceration Nation doesn't have a GDP, per se, but that doesn't mean it doesn't turn a profit -- sometimes, and for some people. For American taxpayers, aid to Incarceration Nation is pretty expensive: looking at just 40 U.S. states, the Vera Institute of Justice found that the cost to taxpayers of incarceration in these states was $39 billion. Overall, federal and state governments spend an estimated $74 billion on prisons each year. (This doesn't count spending on state and local jails.) How much is $74 billion? It's higher than the GDP of more than half the countries in the world, including Lebanon, Paraguay, Nepal and Lithuania.

Some people make a lot of money from Incarceration Nation. Incarceration Nation employs about 800,000 people as prison guards, administrators and the like -- almost as many people as are employed in the entire U.S. automobile industry -- and in some rural areas, prisons are the main employers. But the real money goes to the operators of private prisons and the companies that make use of prison labor.

December 21, 2013 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (32) | TrackBack

Wednesday, December 11, 2013

Massachusetts Supreme Judicial Court suggests gender is important consideration for placement on state sex offender registry

This AP article, headlined "Mass. court overturns escort's sex offender label," reports on a very interesting ruling today by the top state court in Massachusetts.  Here are the basics:

The state’s highest court on Wednesday overturned the classification of a former escort service manager as a low-level sex offender, finding that the state’s Sex Offender Registry Board should have considered research showing women are less likely than men to commit new sex offenses.

The woman, who wasn’t identified in the court’s ruling, pleaded guilty in 2006 to federal charges stemming from her management of an escort service from 2000 to 2002, including one count of transporting a minor to engage in prostitution and one count of sex trafficking of children. She served 17 months in prison while awaiting trial before pleading guilty.

In 2008, the woman requested funds to hire an expert witness, arguing that the board’s guidelines didn’t encompass scientific research on female sex offenders. Her request was rejected by the board. A hearing officer eventually found that she should be classified as a level one sex offender, the lowest level of offender, considered the least likely to reoffend and the least dangerous....

In its ruling Wednesday, the SJC agreed with the woman that the hearing examiner abused his discretion by denying her request for funds for an expert witness who could testify on the subject of how infrequently female sex offenders commit new crimes when compared with men. "We conclude that it was arbitrary and capricious for (the board) to classify Doe’s risk of re-offense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism," Justice Barbara Lenk wrote for the court....

The court also said the board is required to ensure that its guidelines are based on "the available literature."

"We do not purport to suggest a frequency with which the guidelines must be updated, but caution that guidelines that fail to heed growing scientific consensus in an area may undercut the individualized nature of the hearing to which a sex offender is entitled, an important due process right," Lenk wrote.

I was able to access the full text of the opinion in Doe v. Sex Offender Registry Board, No. SJC-11328 (Mass. Dec. 11, 2013), at this link.

December 11, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Sunday, November 24, 2013

"'Cocaine congressman' received the right sentence"

The title of this post is the headline of this new commentary by Clarence Page appearing in the Chicago Tribune. Here are excerpts:

"Cocaine Congressman" Trey Radel, as headline writers have rebranded him, voted to allow states to drug test all food stamp recipients. Congress, it turns out, should have drug-tested Radel....

Radel became the first sitting congressman in 31 years, according to The Associated Press, to plead guilty to a misdemeanor drug-possession charge.

FBI and Drug Enforcement Administration agents swooped in to arrest him after he bought 3.5 grams of cocaine for $250 in a late October sting operation in Washington's fashionable DuPont Circle neighborhood. Charging documents described Radel as having a frequent-buyer reputation in the neighborhood. After Radel pleaded guilty in District of Columbia Superior Court, he was sentenced to a year of probation and will undergo substance abuse treatment in Florida.

House Republicans did not rush to escort Radel out the door, even though he reportedly waited three weeks before telling them about his bust. Speaker John Boehner said before Radel's sentencing that the matter should be left up to the courts, Radel, his family and his constituents.

Indeed, it would hardly be the first time that a politician continued to serve and potentially be re-elected after a misdemeanor conviction. Voters can be very forgiving of lawbreaking politicians.

"Today, I checked myself into a facility to seek treatment and counseling," Radel said in a statement last week. "It is my hope, through this process, I will come out a better man." I wish him luck. Unlike his more outraged critics, I don't think Radel should have been sent to jail. Quite the opposite, I think his case offers a good example of why a lot of nonviolent, first-arrest drug offenders shouldn't be in jail.

Contrast his case, for example, with another high-profile District of Columbia case, the arrest of then-Mayor Marion Barry for taking a hit of crack cocaine during an FBI hotel room sting in 1990. He was sentenced to six months in a federal prison. His sentence could have been worse if the video had not provided so much evidence to back the mayor's argument that he was a victim of FBI entrapment.

The fact that Barry is black and Radel is white doesn't mean that racism played a role in either case. But the differences in their sentences illustrate a persistent problem: Despite recent reforms, a racial disparity persists between the minimum sentences for crimes involving crack and powder cocaine. The Fair Sentencing Act that Congress passed in August of 2010 reduced the 100-to-1 disparity between crack and powder cocaine that was created during the anti-crack uproar of the 1980s. But it still remains way too huge at about 18-to-1. Fairness should never end at the color line.

Radel is fortunate to have been sentenced in D.C., where enlightened attitudes led to a special "drug court" in 1993 that is designed to funnel low-level addicts into rehab instead of long-term jail time. With prison costs skyrocketing — even after overall crime rates declined in the mid-1990s — even states with reputations for tough justice are turning to alternatives to prison for nonviolent drug offenders. Drug addiction should be handled as a disease, not a crime. Trey Radel knows.

Recent related post:

November 24, 2013 in Criminal Sentences Alternatives, Drug Offense Sentencing, New crack statute and the FSA's impact, Race, Class, and Gender | Permalink | Comments (11) | TrackBack

Thursday, November 21, 2013

"Have Inter-Judge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker"

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

The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing.  After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker.  What has been the result of reintroducing greater judicial discretion on inter-judge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned?

This Article utilizes new data covering over 600,000 criminal defendants linked to sentencing judge to undertake the first national empirical analysis of interjudge disparities post Booker.  The results are striking: inter-judge sentencing disparities have doubled since the Guidelines became advisory.  Some of the recent increase in disparities can be attributed to differential sentencing behavior associated with judge demographic characteristics, with Democratic and female judges being more likely to exercise their enhanced discretion after Booker.  Newer judges appointed after Booker also appear less anchored to the Guidelines than judges with experience sentencing under the mandatory Guidelines regime.

Disentangling the effect of various actors on sentencing disparities, I find that prosecutorial charging is a prominent source of disparities.  Rather than charge mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of sentencing judge, potentially through superseding indictments.  Drawing on this empirical evidence, the Article suggests that recent sentencing proposals that call for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.

November 21, 2013 in Booker in district courts, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Split Texas appeals court refuses to allow additional habeas action for death row defendant complaining about racialized testimony

As reported in this local article from Texas, that "state’s highest criminal court Wednesday dismissed an appeal by death row inmate Duane Buck, who claims his sentence is improper because it was based, in part, on a psychologist’s finding that he presents a greater danger to society because he is black." Here is more about the ruling and its context:

In a 6-3 ruling, the Court of Criminal Appeals said that Buck had already filed his one guaranteed appeal, known as a petition for writ of habeas corpus, in 1999 and wasn’t legally entitled to another.

But the court’s newest member, Judge Elsa Alcala, submitted a blistering dissent that said Buck had been ill-served by previous lawyers and the court system. “The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness,” Alcala wrote in a dissenting statement joined by Judges Tom Price and Cheryl Johnson.

The upshot, Alcala said, is that no state or federal court has examined, let alone ruled on, Buck’s claim that his constitutional rights had been violated by the inclusion of inappropriate racial testimony and by the incompetence of previous lawyers. “This cannot be what the Legislature intended when it (voted in 1995 to provide) capital habeas litigants ‘one full and fair opportunity to present all claims in a single, comprehensive post-conviction writ of habeas corpus,’” Alcala wrote.

Though there is no question about Buck’s guilt — he gunned down a former girlfriend and her male friend, shot his stepsister and targeted a fourth adult in Houston — his case has become a rallying point for judicial reformers and civil rights advocates, largely because of its racial overtones at trial.

The controversy centers on punishment-phase testimony by psychologist Walter Quijano, a defense expert who told jurors that Buck was less likely to pose a future danger — and therefore not eligible for the death penalty — because the crime wasn’t a random act of violence. But Quijano also testified, unprompted, that “Hispanics and black people are overrepresented in the criminal justice system.” On cross-examination, a prosecutor followed up by asking Quijano if race, particularly being black, increases a defendant’s future dangerousness “for various complicated reasons.” Quijano replied, “Yes.”

Buck was sentenced to death in 1997. Three years later, however, then-state Attorney General John Cornyn, now a U.S. senator, acknowledged that seven death penalty convictions — including Buck’s — had been improperly influenced by Quijano’s testimony linking race to dangerousness. The attorney general’s office did not oppose new punishment trials for the other six inmates to cure the constitutional defect.

State lawyers later decided, however, to oppose a new trial for Buck, arguing that his case was “strikingly different” because Quijano was a defense expert whose questionable testimony was elicited by a defense lawyer. Instead, lawyers for Texas argued that Buck should have objected to the racial testimony in his 1999 habeas petition. Because he didn’t, Buck lost his chance to appeal the matter, they argued.

On Wednesday, the Court of Criminal Appeals agreed, dismissing Buck’s latest habeas petition as improper. In her dissent, Alcala said she would have accepted the new petition because Buck’s 1999 appeal was so poorly done that it amounted to no defense at all, depriving a death row inmate of a full review of constitutional claims before his execution.

The two-page majority opinion in this case says nothing of substance, but the 30-page dissent has a whole lot to say.

November 21, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Sunday, November 17, 2013

"Sentenced to a Slow Death"

The title of this post is the headline of this new New York Times editorial discussing this week's noteworthy new ACLU report on the thousands of persons serving LWOP sentences for non-violent offenses in the United States (first discussed here).  Here are excerpts:

If this were happening in any other country, Americans would be aghast. A sentence of life in prison, without the possibility of parole, for trying to sell $10 of marijuana to an undercover officer?  For sharing LSD at a Grateful Dead concert?  For siphoning gas from a truck?  The punishment is so extreme, so irrational, so wildly disproportionate to the crime that it defies explanation.

And yet this is happening every day in federal and state courts across the United States. Judges, bound by mandatory sentencing laws that they openly denounce, are sending people away for the rest of their lives for committing nonviolent drug and property crimes. In nearly 20 percent of cases, it was the person’s first offense.

As of 2012, there were 3,278 prisoners serving sentences of life without parole for such crimes, according to an extensive and astonishing report issued Wednesday by the American Civil Liberties Union. And that number is conservative.  It doesn’t include inmates serving sentences of, say, 350 years for a series of nonviolent drug sales.  Nor does it include those in prison for crimes legally classified as “violent” even though they did not involve actual violence, like failing to report to a halfway house or trying to steal an unoccupied car....

As in the rest of the penal system, the racial disparity is vast: in the federal courts, blacks are 20 times more likely than whites to be sentenced to life without parole for nonviolent crimes.  The report estimates that the cost of imprisoning just these 3,278 people for life instead of a more proportionate length of time is $1.78 billion....

Several states are reforming sentencing laws to curb the mass incarceration binge.  And Congress is considering at least two bipartisan bills that would partly restore to judges the power to issue appropriate sentences, unbound by mandatory minimums.  These are positive steps, but they do not go far enough.  As the report recommends, federal and state legislators should ban sentences of life without parole for nonviolent crimes, both for those already serving these sentences and in future cases.  President Obama and state governors should also use executive clemency to commute existing sentences.  Just one-fifth of all countries allow a sentence of life without parole, and most of those reserve it for murder or repeated violent crimes.  If the United States is to call itself a civilized nation, it must end this cruel and ineffective practice.

Recent related posts:

November 17, 2013 in Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5) | TrackBack