Sentencing Law and Policy

Important reminder that sentencing reform does not always complete offenders' need for help

This notable new local article, headlined "Newly released California 'three-strikers' face new challenges," provides an intriguing report on the new problems facing certain offenders even after they receive the benefits of sentencing reform. Here are excerpts:

In an unforeseen consequence of easing the state's tough Three Strikes Law, many inmates who have won early release are hitting the streets with up to only $200 in prison "gate money" and the clothes on their backs.

These former lifers are not eligible for parole and thus will not get the guidance and services they need to help them succeed on the outside, such as access to employment opportunities, vocational training and drug rehabilitation.  The lack of oversight and assistance for this first wave of "strikers" alarms both proponents and opponents of the revised Three Strikes Law -- as well as the inmates themselves.

"I feel like the Terminator, showing up in a different time zone completely naked, with nothing," said Greg Wilks, 48, a San Jose man who is poised to be released after serving more than 13 years of a 27-years-to-life sentence for stealing laptops from Cisco, where he secretly lived in a vacant office while working as a temp in shipping and receiving.

Experts say California voters didn't have this situation in mind when they approved Proposition 36 in November by an overwhelming margin.  Under the new law, judges cannot impose a life sentence on most repeat offenders who commit minor crimes. But the law also allows about 3,000 inmates whose last strike was a minor crime to petition for early release or shorter sentences -- as long as a judge finds they don't pose a serious risk to public safety.

Because of the way the state's complex sentencing laws work, many of those strikers have already been locked up longer than their newly calculated terms and usual period of parole, leaving many to fend for themselves without supervision or assistance once they are released.

So far, none of three dozen or so strikers who have been resentenced since November or with the help of the Three Strikes Project before the election has been rearrested.   But some say it's only a matter of time.   "It's pretty clear if you release people early without any supervision, there's an increased ability of them to re-offend," said Mike Reynolds, a Fresno man who helped draft the Three Strikes Law after his daughter was slain in 1992 by two repeat offenders. "It's a very, very dangerous policy."

Supporters of the revised three strikes policy are concerned that a notable uptick in crime -- even minor crimes by strikers -- will make the new law look like an ill-advised failure.

To reduce the risk, the same Stanford University Law School instructors who co-wrote Proposition 36 are now organizing a statewide effort to create re-entry plans for strikers using a combination of public and private services.  They're planning to meet with operators of homeless shelters and innovative transitional programs from around the state, like San Francisco's Delancey Street Foundation, one of the country's leading residential self-help organizations for former substance abusers, ex-convicts, homeless people and others who have hit bottom.

"We want these people to succeed," said Michael Romano, director of Stanford's Three Strikes Project. "We don't want them committing crimes and creating more victims." Proponents say the main reason they didn't foresee the situation is that the rules regarding parole changed significantly -- after officials had already approved the ballot language for Proposition 36....

Three-strikers face greater re-entry challenges than normal inmates, said Joan Petersilia, a Stanford law professor.  About 38 percent receive some level of mental health treatment in prison, compared with 22 percent of the general population.

Romano and his group are hoping to turn to the same donors who funded Proposition 36 for help in creating a statewide re-entry program.  A lot rides on the strikers' success. If they do well -- with the help of people like liberal billionaire George Soros, who donated heavily to Proposition 36 -- advocates could use their success to advance the cause of prison reform. If they fail, it could weaken the national effort to reduce mass incarceration.

Notable new research exploring connections between incarceration and mental health

Via The Crime Report, I just learned that the December 2012 issue of the Journal of Health and Social Behavior has two notable new research articles concerning links between incarceration and psychiatric disorders. (Having just recently seen Silver Linings Playbook, which I recommend, I am tempted to call these articles companion pieces to that intriguing movie in which criminal justice realities play a more important role than football.)  Here are links to the articles, along with their abstracts:

Jason Schnittker, Michael Massoglia, & Christopher Uggen, "Out and Down: Incarceration and Psychiatric Disorders":

Psychiatric disorders are unusually prevalent among current and former inmates, but it is not known what this relationship reflects.  A putative causal relationship is contaminated by assorted influences, including childhood disadvantage, the early onset of most disorders, and the criminalization of substance use. Using the National Comorbidity Survey Replication (N = 5692), we examine the relationship between incarceration and psychiatric disorders after statistically adjusting for multidimensional influences.

The results indicate that (1) some of the most common disorders found among former inmates emerge in childhood and adolescence and therefore predate incarceration; (2) the relationships between incarceration and disorders are smaller for current disorders than lifetime disorders, suggesting that the relationship between incarceration and disorders dissipates over time; and (3) early substance disorders anticipate later incarceration and other psychiatric disorders simultaneously, indicating selection. Yet the results also reveal robust and long-lasting relationships between incarceration and certain disorders, which are not inconsequential for being particular.  Specifically, incarceration is related to subsequent mood disorders, related to feeling “down,” including major depressive disorder, bipolar disorder, and dysthymia.  These disorders, in turn, are strongly related to disability, more strongly than substance abuse disorders and impulse control disorders. Although often neglected as a health consequence of incarceration, mood disorders might explain some of the additional disability former inmates experience following release, elevating their relevance for those interested in prisoner reintegration.

Kristin Turney, Christopher Wildeman, & Jason Schnittker "As Fathers and Felons: Explaining the Effects of Current and Recent Incarceration on Major Depression":

Dramatic increases in the American imprisonment rate since the mid-1970s have important implications for the life chances of minority men with low educational attainment, including for their health.  Although a large literature has considered the collateral consequences of incarceration for a variety of outcomes, studies concerned with health have several limitations: Most focus exclusively on physical health; those concerned with mental health only consider current incarceration or previous incarceration, but never both; some are cross-sectional; many fail to consider mechanisms; and virtually all neglect the role of family processes, thereby overlooking the social roles current and former prisoners inhabit.

In this article, we use stress process theory to extend this research by first considering the association between incarceration and major depression and then considering potential mechanisms that explain this association. Results from the Fragile Families and Child Wellbeing Study (N = 3,107) show current and recent incarceration are substantially associated with the risk of major depression, suggesting both immediate and short-term implications.  In addition, consistent with stress proliferation theory, the results show the well-known consequences of incarceration for socioeconomic status and family functioning partly explain these associations, suggesting the link between incarceration and depression depends heavily on the consequences of incarceration for economic and social reintegration, not only the direct psychological consequences of confinement.

New Vera Institute report looks at performance funding for criminal justice reform

As detailed in this helpful post by Alison Shames, headlined "Performance Incentive Funding Focus of New Vera Report," the Vera Institute of Justice has just released a terrific new research report on a notable new structure for developing criminal justice reform and helping to ensure a cost-effective criminal justice system.  Here is an explanation of the report (along with a link to the full report and an executive summary and additional resources):

The idea that our tax dollars should be directed towards programs that deliver positive outcomes to the community is neither novel nor radical — but there are some interesting and innovative “pay for success” strategies for achieving this.  Social impact bonds, which are being piloted in the United Kingdom, New York City, and Massachusetts, are perhaps among the best known of these.  In the field of criminal justice, performance incentive funding (PIF) is another promising approach being tried in the United States.

PIF programs encourage local jurisdictions to supervise more offenders in the community and achieve better outcomes, namely lower recidivism and fewer prison commitments. They are premised on the idea that if the supervision agency or locality succeeds in sending fewer low-level offenders to prison — thereby causing the state to incur fewer costs—some portion of the state savings should be shared with the agency or locality.  By delivering fewer prison commitments, agencies or localities receive a financial reward, which is reinvested into evidence-based supervision programs.

A new report from Vera’s Center on Sentencing and Corrections — Performance Incentive Funding: Aligning Fiscal and Operational Responsibility to Produce More Safety at Less Cost — details how PIF programs can lead to better offender outcomes while reducing overall corrections costs.  It presents the findings of a summit held in September 2011, which was convened by Vera, the Pew Center on the States, and Metropolis Strategies, to discuss the key challenges and tasks that states must address to develop and implement a PIF program.

Achieving positive outcomes, such as reduced recidivism and revocations and safer and stronger communities, is a goal that tax payers, policymakers, and criminal justice professionals can all agree on.  By emphasizing the use of evidence-based practices, reporting on outcomes, and paying for success, PIF programs can help states reduce their corrections costs, strengthen their community supervision programs, and build safer neighborhoods.

California appeals court upholds probation condition prohibiting use of medical marijuana

This local article, headlined "Antioch man cannot use medical marijuana while on probation for pot sales, court rules," reports on an interesting ruling from a California intermediate appellate court. Here are the details:

A state appeals court ruled in San Francisco on Monday that trial judges can ban the use of medical marijuana in some cases as a condition of probation for people convicted of possessing the drug for sale.

A three-judge panel of the Court of Appeal unanimously upheld a sentence in which Contra Costa County Superior Court Judge Leslie Landau last year prohibited Daniel Leal, 28, of Antioch, from using medical marijuana during his three years of probation.

Leal was sentenced to the probation term as well as to nine months in county jail after being convicted of possessing marijuana for sale in two incidents in Antioch in 2008 and 2009 and carrying a concealed, loaded gun in the first incident. Leal, who has completed his jail sentence, appealed the probation condition barring him from using medical marijuana.

He argued the ban violated his right to use the substance under the state's voter-approved Compassionate Use Act of 1996, which allows patients with a doctor's approval to use marijuana for medical purposes. Leal, who had approval for marijuana treatment for high blood pressure, contended the probation condition wasn't related to his crimes and that there could have been a way to limit his use of medical marijuana without prohibiting it entirely.

But Justice Anthony Kline, writing for the appeals panel, said the ban on use of the substance was justified by "abundant evidence of need to rehabilitate Leal and protect the public."...

Kline wrote in Monday's decision that trial judges setting probation conditions must balance the need to protect the public with California residents' right to use medical marijuana. He said there could be cases in which a ban would not be justified if a defendant posed little threat to society and had proved a compelling need for marijuana to alleviate pain.

But the evidence in Leal's case didn't show an overriding medical need and did show "both rehabilitative and public protection value in interfering with Leal's medical use of marijuana while on probation," Kline wrote.

Leal's lawyer in the appeal, Donald Lipmanson of Sebastopol, said no decision has been made on whether to ask the California Supreme Court to review the case. Lipmanson said the decision was consistent with other state appeals court rulings on the issue, but said the panel's purpose in issuing the detailed 22-page opinion may have been "to send a very clear message that if you end up being convicted of possessing marijuana for sale, don't expect to be able to continue using medical marijuana."

The full opinion in California v. Leal, No. A131366 (Cal. 1st App. Oct. 29, 2012), is available at this link.

Ninth Circuit finds "fundamental right of to familial association" made special sex offender SR conditions "substantively unreasonable"

A lengthy opinion from the Ninth Circuit today in US V. Wolf Child, No. 11-30241 (9th Cir. Oct. 23, 2012) (available here), should be of interest to anyone who has ever been concerning about the application of broad supervised release conditions. Here is how the panel opinion gets started:

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer.  The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée.  It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members.  We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.”  The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary.  Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals.  Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.

In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer.  On remand, if the district court deems it appropriate to adopt a special condition limiting Wolf Child’s contact with children under the age of 18 (other than his own children) and associating with parents of children under the age of 18 (other than his fiancée) it must ensure that any such condition is reasonably necessary to accomplish the statutory goals of supervised release and that it infringes on his particularly significant liberty interests no more than reasonably necessary to accomplish those goals.

NPR piece spotlights Ohio success with sentencing reforms and reducing recidivism

I am very pleased to see that my state is getting well-deserved national attention for its recent success with sentencing and corrections reforms.  Specifically, NPR's Talk of the Nation had this lengthy segment earlier this week on Ohio's reforms under the heading "Programs Keep Inmates From Returning To Prison." Here is how the NPR site sets up the discussion:

States pay tens of thousands of dollars a year to house each inmate. Some states are rethinking the way they spend that money. In Ohio, sentencing reform, increased support for former inmates, and rehabilitation and education programs for current prisoners have helped keep prisoners from returning.

Well, ... at least these parolees had a zero recidivism rate (unless they're zombies)

The title of this post is the snarky reaction I had to this new local article from Tennessee, which is headlined "Parolees monitored, but no longer alive."  Here is how the (unintentionally amusing) article begins:

Tennessee’s Board of Probation and Parole reported in the past year that dozens of dead offenders were alive and being monitored, according to a state comptroller report released on Monday.   The state-funded office, which at the time of the audit had an $86 million budget, claimed that at least 82 dead people on probation or parole were still alive, a mistake the comptroller attributed to “inadequate supervision.”

“It’s obviously a problem,” said Sen. Brian Kelsey, a member of the Senate Judiciary Committee. “With that many dead people supposedly being supervised, it makes you wonder how many live people were also not being supervised.”

In one instance, a criminal who died in October 2011 was reported to be “bedridden at home.” In another case, an officer documented contacting a parolee who, the comptroller’s office learned, had been dead for 19 years.

The comptroller’s office declined to identify individual officers, and neither agency was able to say whether anyone had been disciplined for reporting errors. But Comptroller Justin Wilson echoed Kelsey’s concern that the audit raised questions both about the expenditure of public funds and the supervision of parolees statewide. “If parole officers are supervising dead people, this is a waste of taxpayer dollars and makes us wonder about the supervision of parolees living in our communities,” Wilson said.

The state’s Board of Probation and Parole, which keeps track of about 60,000 offenders, has long faced heavy caseloads and contended with high employee turnover. It also has been widely reported that the agency’s resources have been stretched so thin that its ability to monitor some of the state’s most dangerous criminals has been compromised.

Since the economic downturn, the agency has rarely met its supervision standards. Though more probation officers have been added to the ranks, a high turnover rate has made proper supervision nearly impossible, according to previous reporting by The Tennessean. Most officers are tasked with overseeing about 100 offenders.

Deborah Loveless, the comptroller’s assistant director for state audit, would not comment on whether the errors were made by one individual or by many at the agency. How much the blunders have cost taxpayers is unknown, according to Loveless.  The audit does suggest, however, that “tax payer resources were used in an ungrateful way,” she said.

In a written response included in the audit, the board admitted that reporting dead people as alive was a problem.  All staff will be trained to better detect deceased offenders by the end of the year, the agency said.  On Wednesday, the comptroller’s office will present the audit to state legislators, at which point they will recommend whether to continue to fund the agency, or relocate the probation and parole program under a different government arm.

The 83-page audit referenced in this article is available at this link.  And while I am being snarky, I have to comment on two lines I love from this article. 

First, what a great response from Tennessee Board of Probation and Parole: "staff will be trained to better detect deceased offenders by the end of the year."  I am so glad to hear there will be extensive staff training to make sure workers can better detect which offender are truly deceased.  After all, we would not want staff to be fooled by offenders who were only pretending to be dead.  Even worse, if some seemingly deceased offenders are in fact undead (i.e., are zombies), they may need to be placed under more intensive supervisions.  Based on what I have seen in various movies, it seems that zombies have remarkably high violent crime rates.

Second, I adore this double-speak phrasing from the state auditors: by monitoring the deceased, "tax payer resources were used in an ungrateful way."  To begin, I question whether this is statement accurate because I suspect that living parolees are in fact grateful that they are being monitored less because dead persons are still being monitored.  Moreover, what a polite was to lament government waste: taxpayers should not be angry about massive criminal justice systems misusing our money, we should just not be "grateful" about waste of the scarce state resources devoted to keeping society safe.

Report from Council of State Governments indicates reduced recidivism in many states

I always enjoy reporting good crime and punishment news; I am thus pleased to highlight this press release from The Council of State Governments Justice Center’s National Reentry Resource Center  discussing findings that "a number of states [are] reporting significant reductions in recidivism."  The press release provides a summary of this policy brief, including these highlights:

The states profiled in the report show significant declines in their three-­year recidivism rates based on data tracking individuals released from prison in 2005 and 2007. Texas and Ohio reported reductions of 11 percent, while the Kansas rate fell by 15 percent and Michigan’s rate dropped by 18 percent.  Incorporating data through 2010 (and in some cases, through 2011), the report provides the most recent multi-state information available on recidivism....

US Senator Rob Portman (R, OH), a co-author of the Second Chance Act, applauded the states, including Ohio, for their accomplishments.  “Second Chance Act programs, in collaboration with faith-based and community organizations and local reentry coalitions, have a proven record of helping inmates turn their lives around, and I applaud their continued good efforts to reduce recidivism.  Encouraging people released from prison to become productive members of society not only strengthens communities, but also reduces the burden on taxpayers who shoulder the costs associated with incarceration.”

The brief, “States Report ReducAons in Recidivism,” highlights strategies that leaders in several states credit with helping drive down recidivism:

• In Ohio, state policymakers standardized the use of a validated risk assessment instrument to focus limited treatment and supervision resources on those individuals assessed at the highest risk for reoffending.

• In Kansas, state leaders awarded performance-based grants to community corrections agencies, partnered with local communities where recidivism rates were highest to improve post-release supervision, and enhanced housing and workforce development services to beaer meet the needs of people coming out of prison.

• Michigan officials invested heavily in the state’s Prisoner Reentry Program, prioritizing funding for housing, employment, and other transition support services in order to provide the most effective community-based programming for released individuals.

Third Circuit requires more rigorous approach to supervised release conditions

The Third Circuit handed down a notable opinion today in US v. Murray, No. 11-3196 (3d Cir. Sept. 5, 2012) (available here), which effectively reviews a good bit of doctrine and procedure concerning the imposition of supervised release conditions. Here is how the opinion gets started:

In 2004 in the District of New Jersey, Charles Murray pleaded guilty to traveling interstate to engage in illicit sexual conduct with a minor.  Later that same year, in a separate case in the Eastern District of Pennsylvania, he pleaded guilty to possession of child pornography.  For these offenses, he was sentenced to an aggregate term of 95 months' imprisonment, to be followed by concurrent three-year terms of supervised release. Both of Murray's sentencing judges imposed upon him various special conditions of supervised release that, for example, require him to register as a sex offender and to submit to unannounced searches of his computer.

After Murray was released from prison in July 2010, he moved to the Western District of Pennsylvania.  That District thus assumed jurisdiction over him for the remainder of his term of supervised release.  Though Murray had not violated his existing supervised release conditions, the Probation Office sought to modify them to bring them in line with the conditions of release that are typically used in the Western District.  Some of the Probation Office's proposed conditions were duplicative of those already mandated by the Eastern District of Pennsylvania and District of New Jersey, but others were new.  The District Court granted the Probation Office's request and imposed several new, more stringent conditions on Murray.  Murray now appeals.  For the reasons that follow, we will remand this case to the District Court.

This opinion struck me as blog-worthy because litigation over supervised release conditions for sex offenders is sure to keep increasing in the years ahead, and because the Third Circuit panel was forced to remand largely because the district court was so ready to impose additional onerous conditions on the defendant without even bothering to make the necessary findings.  For these reasons, I cannot help but wonder if this Murray ruling represents only the tip of a problematic supervised release iceberg.

New York claims success with prison shock camps

As detailed in this AP article, New York is citing to evidence of success at reducing its offender recidivism rate through the use of shock incarceration programs.  Here are the details:

New York corrections officials say they have graduated 45,000 inmates from military-style boot camp over the past 25 years and data shows that most don't commit new crimes. Established around the country in the 1980s as an alternative to regular prison, the so-called "shock camps" got mixed reviews and several states dropped them.  New York kept three camps going with a model they say is effective and cutting down the rate of repeat offenses and saving money.

Only prisoners convicted of nonviolent crimes who volunteer and sign contracts go to the camps.  Many drop out or are kicked out before completing the six months of mandatory physical training, manual labor, education and drug counseling, scrutinized by drill instructors.  The prize for completing the course is a shortened sentence....

Some observers say the lower recidivism is predictable because it's a self-selected and motivated group of inmates who prove capable of finishing the program.  They also note that the lower recidivism, far lower in the first year, starts rising after that.  "Our view is that it's somewhat mixed, but there are definitely some positive elements to it," said Jack Beck, who directs the visiting project for the Correctional Association of New York.  "The regimentation is so different from what these individuals will experience on the outside, it's very hard to translate those experiences into something when they return home."

New York has 1,087 inmates at the shock camps, Moriah in the Adirondacks, Lakeview in western New York's Chautauqua County, and Monterey in the Finger Lakes region.  All are minimum-security without fences and set in rural areas.  Before the state shut the Summit camp southwest of Albany in 2011 to save money, there were 1,284 offenders in the shock program.  The system has some 56,000 inmates in 60 correctional facilities, down from a peak 71,600 in 1999.

Revisions in drug sentencing laws and diverting more inmates to treatment programs have reduced the available pool for shock programs.  Initially intended for prisoners up to age 23, they have been opened to inmates up to age 50 with less than three years left on their sentences.

Corrections spokeswoman Linda Foglia said they estimate having saved $1.34 billion because of the shortened incarceration for 45,135 shock graduates, including 3,355 females, over the past 25 years.  Meanwhile, New York data show 7 percent of those who completed the program from 2007 to 2009 returned to prison within one year, compared to 19.9 percent of all inmates released from state prison.  Recidivism data after three years show a 26.4 percent return rate for those who completed shock in 2007, compared with 42 percent for all releases that year....

A 2003 National Institute of Justice research review said boot camps proliferated nationally starting in the late 1980s, with 75 adult programs by 1995.  Five years later, one-third had closed and there was a 30 percent population drop in remaining state programs. While "almost universally successful improving inmates' attitudes and behavior during the course of the program," the review said those changes did not translate to reduced recidivism, with limited exceptions.  Boot camps that lasted longer, like New York's six months, and offered more intensive treatment and post-release supervision, did better.

As this article highlights, slowly but surely we are learning more about what kinds of correctional programs are more likely to reduce recidivism among various offender populations.

"Changes in Community Supervision Offer the Get into Jail Free Ticket"

The title of this post is the title of this new paper available via SSRN by Paige Jann. Here is the abstract:

California traditionally had two types of community supervision, probation and parole. While probation generally consisted of a sentence given in lieu of prison with incarceration as a consequence for violating its terms, parole instead consisted of a term of supervision following an individual’s prison sentence.  However, the recent passage of The Criminal Justice Realignment Act (AB 109) drastically changed the landscape of community supervision by shifting the responsibility of supervising certain offenders from the state to the county level.  Companion legislation also amended California Penal Code section 1170(h) to include a new sentencing option called a split sentence, whereby a court can craft a sentence that combines both a period of local incarceration and mandatory supervision.  Ultimately, Realignment legislation combined the oversight of parole, probation, and split sentencing all into one unified agency: county probation departments. A lingering question now remains as to whether each of these very different programs may suffer under such a unification.

This paper examines California’s scheme of felony sentencing and community supervision prior to Realignment, as well AB 109’s various changes to these areas.  Further, this paper critically examines the idea of entrusting all community supervision to one department. These critiques suggest a resulting paradox where offenders may prefer harsher sentencing alternatives over probation because it is more difficult to graduate from the latter.  Finally, this paper concludes that oversight of community supervision may be incapable of integration, and that each program may instead require individual attention. Realignment and its accompanying legislation have drastically transformed California’s criminal justice system.  Examining the extent to which 1170(h) augments county probation departments’ responsibilities may reveal the potential struggles that lie ahead and offer guidance in further implementation of these changes.

Fascinating Eighth Amendment ruling by Kansas appeals court about (uniquely?) extreme sex offender sentence

I have been slow to note a remarkable Eighth Amendment opinion handed down late last week by a Kansas appellate court in State v. Proctor, No. 104,697 (Kan. Ct. App. July 6, 2012) (available here). (Hat tip to Eugene Volokh.)  The lengthy opinion and its (limited?) import are hard to summarize, so I will quote in full the start of the opinion here:

In this case, the court must address the constitutionality of a sentence potentially subjecting Defendant Daniel Proctor to lifetime postrelease supervision and, in turn, to imprisonment for life without parole if he were later to commit any felony, including a property crime otherwise calling for probation.  Proctor faces that prospect because he pled guilty to a sex offense — aggravated indecent solicitation of a child — for which he has received a permissible guideline sentence of probation.  For Proctor, a man in his early 20′s, the statutory sentencing scheme could put him behind bars for 50 years if he were to shoplift a $1,000 ring or computer or to write a bad check for them.  Given Proctor’s circumstances and the peculiarly harsh result that could be inflicted on him, the sentence violates the protections against cruel and unusual punishment contained in § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution.  The punishment may be considered grossly disproportionate in that context and incompatible with the general purposes of incarceration as a sanction in the criminal justice system.  We, therefore, vacate the sentence imposed on Proctor to that extent and remand to the Saline County District Court for resentencing.

The governing statutes create the prospect of an exceptionally severe punishment — life in prison without parole is second only to a death sentence in its extremity — for persons convicted of designated sex offenses who then commit property crimes.  For Proctor, the disparity between his criminal conduct and that punishment reflects an imbalance of a magnitude implicating constitutional protections.  The Kansas sentencing statutes permit probation for both his underlying offense in this case and property crimes amounting to felonies.  But the commission of those two offenses in that order may lead to life in prison with no prospect for release.  Controlling authority from the United States Supreme Court and the Kansas Supreme Court construing the federal and state constitutional prohibitions on cruel and unusual punishment cannot be reconciled with that result.  The sentencing scheme exacts a punishment harsher than those for murder, kidnapping, and other crimes the Kansas Legislature has designated as more serious than Proctor’s.  It also appears to be more severe than similar statutes applied to sex offenders in the vast majority of other states.  Those are the ingredients of an unconstitutionally disproportionate punishment.

The analysis by this appellate panel to back up these conclusions is quite interesting and worth a close read by any and everyone interested in the development of modern Eighth Amendment jurisprudence.

Ohio's Republican legislature, prodded by Republican gov, enacts major felon reentry reforms

This local story from my own Columbus Dispatch, which is headlined "Bill signings include help for freed felons," effectively highlights not only that bipartisanship remains vibrant on some "smart" criminal justice reforms, but also that having Republicans in charge of a state's political branches may be essential to moving these reforms from good ideas to enacted legislation.  Here is how the piece starts:

A bill that will reduce barriers to employment and education for felons when they leave prison was among the 13 pieces of legislation that Gov. John Kasich signed yesterday.

Deemed the “collateral sanctions” bill, Senate Bill 337 will make it easier for people getting out of prison to get jobs cutting hair, working construction, selling hearing aids and working as security guards. Judges will be able to award certificates to remove job barriers and protect employers from potential liability. Also, courts can order community service instead of fines or driver’s-license revocation for non-driving offenses, and child-support orders can be modified when inmates are in jail or have a felony record.

It was a truly bipartisan bill introduced by Democratic Sen. Shirley Smith of Cleveland and Republican Sen. Bill Seitz of Cincinnati — and championed by Kasich — that the House passed unanimously.

On issues key modern state criminal justices ranging from sentencing reform to collateral consequences to use of clemency powers, Ohio's Governor John Kasich has been, in my view, one of the most engaged and effective chief executives in the nation.  (For this reason, I may now have to start rooting for Mitt Romney to pick Gov Kasich as his running mate, though I doubt he is on any realistic short lists.)  And the Ohio General Assembly, perhaps because it is dominated by members of the same party as Governor Kasich and has a number of real thoughtful members on both sides of the aisle, merits great credit for not turning any of these issues into a political football to kick around seeking polling points.

Though sometimes I fear that praise from the ivory tower might hurt rather than help some politicians, I still must give a proud shout-out and hearty praise to Gov Kasich and the Ohio legislature.  I hope they keep up the great work and keep trying to make sure my Ohio tax dollars are not wasted on unduly harsh and ineffective criminal laws and policies.

Local restrictions on sex offenders continue to grow and expand

This New York Times article, headlined "Public-Place Laws Tighten Rein on Sex Offenders," documents that we have still not yet reached a tipping point when it comes to post-sentencing restrictions on sex offenders. Here are excerpts:

Convicted sex offenders are barred from surfing at the famous pier in this Orange County city. In nearby Dana Point, they are prohibited from casting a fishing line in the harbor.

And if they wander into a public park in Mission Viejo, they could be shipped back to jail for six months, following the City Council’s vote this year to ban them from a host of places where children congregate. “We need to protect our kids,” the Orange County district attorney, Tony Rackauckas, had told the Mission Viejo City Council. “The danger is very real.”

Orange County finds itself at the enter of a new wave of laws restricting the movement of sex offenders. The county government and a dozen cities here have banned sex offenders from even setting foot in public parks, on beaches and at harbors, rendering almost half the parks in Orange County closed to them. Ten more cities are considering similar legislation.

And Orange County is far from alone. In recent years, communities around the country have gone beyond regulating where sex offenders can live and begun banning them outright from a growing list of public places.

From North Carolina to Washington State, communities have designated swimming pools, parks and school bus stops as “child safety zones,” off limits to some sex offenders. They are barred from libraries in half a dozen Massachusetts cities, and from all public facilities in tiny Huachuca City, Ariz. “Child safety zones are being passed more and more at the city and county level,” said Elizabeth Jeglic, a professor at John Jay College of Criminal Justice. “It’s becoming more and more restrictive. They’re not only limiting where sex offenders can live, but they’re limiting their movement as well.”

The proliferation of such restrictions reflects the continued concerns of parents and lawmakers about potential recidivism among sex offenders. But it has also increasingly raised questions about their effectiveness, as well as their fairness.

Opponents have dismissed “child safety zones” as unenforceable, saying they are designed to make politicians look tough on crime and drive sex offenders from the area, not make children safer. “These are cheap laws that can be passed to make people feel good,” said Charles P. Ewing, author of “Justice Perverted: Sex Offense Law, Psychology, and Public Policy.”...

Greg Bird was convicted of indecent exposure in 2001. Since then, Mr. Bird said, he has gotten married and turned his life around. But he now pauses at the idea of having children of his own, because he knows he could not even take them to the park to play catch. “Sometimes I wonder, is there any compassion?” Mr. Bird said. “I know I don’t deserve compassion. I broke the law. I get that. But these laws set people up to fail more.”

In some cities, law enforcement has done very little to enforce child safety zones. In Albuquerque, where some sex offenders have been banned from libraries since 2008, with some exceptions, the police have never even issued a trespass notice, a prerequisite to an arrest. Thus far, the parks bans here have led to just three convictions across the entire county.

Still, Mr. Rackauckas said he was satisfied that the laws were serving as a deterrent. “We’re not going to know how many kids were not molested or groomed for later sexual contact as a result of this law,” he said....

[O]nce one community has enacted “child safety zones,” they often spread quickly to nearby towns, as municipal governments fear becoming local havens for sex offenders. In Lake County, Fla., this year, county commissioners — surrounded by communities with tough laws on sex offenders — responded with some of the most restrictive measures anywhere, including a law prohibiting sex offenders from going within 300 feet of a park, school or playground.

Joe Carchio, a city councilman in Huntington Beach, where a park ban went into effect in December, said he felt bad for lower-level offenders whose convictions many years ago prevent them from taking their children to Little League games. Still, he wishes he could have made the restrictions even broader. “In a lot of ways, it is a feel-good law; it makes people feel safe,” Mr. Carchio said. “You make choices in this world, and I guess the choice that individual made is one that is going to follow him for the rest of his life.”

Effective coverage of modern reentry issues

The Christian Science Monitor has this terrific, lengthy piece discussing modern reentry challenges facing the nation in the months and years ahead.  The piece is headlined "US prison inmates returning to society: How will they be received?".  Here are excerpts:

From California to New York, Texas to Michigan, a record number of convicted criminals are either being released from cells or serving time in community-based programs as states, under pressure to cut costs, adopt new philosophies on how to handle nonviolent offenders and many inmates incarcerated in the 1970s and '80s near the end of their terms. In some cases, lawsuits designed to reduce overcrowding are forcing authorities to open prison doors as well.

These days roughly 700,000 ex-cons are hitting US streets each year -- a new high, according to Marc Mauer, executive director of the Sentencing Project, a Washington-based advocacy group. While the vast majority of the inmates are nonviolent, some ... served sentences for serious crimes and are now winning parole in higher numbers.

The result is an unprecedented test -- of authorities' ability to monitor the newly released prisoners, of social service groups' capacity to help them forge new lives, of the inmates' willingness to start over, of communities' tolerance to let them do so.

Nowhere is this social experiment playing out with more intensity than in California, the nation's largest jailer. It is looking to move as many as 33,000 prisoners out of state penitentiaries over the next year alone, many of whom could end up on the streets. It will provide the country's clearest look at how ready many criminals are to be on the outside -- and society's readiness to have them there.

America's arc in getting to this point involved a lot of clanking cell doors.  From 1973 to 2009, the US prison population grew by more than 700 percent -- the result of an uptick in crime, huge numbers of drug arrests, and tough sentencing laws.  At the end of that time more than 1.6 million people sat behind bars in federal and state penitentiaries, the largest inmate population in the world.

Yet in 2010, for the first time in 38 years, the US prison population declined.  Experts cite myriad reasons for the modest (0.3 percent) drop: a decrease in crime in many cities, more use of alternative sentencing, and fewer people put back in prison for parole violations.  Early release of inmates for good behavior was also a factor.

Half the states in the country reported a decrease in their prison populations last year. The number of inmates in Michigan, which hit a peak of 51,500 in 2006, now sits around 43,500.  The state has closed down 17 penitentiaries and prison camps as a result.

Similarly, New York State has emptied more than 15,000 prison beds over the past decade, mostly through sentencing reform.  New Jersey's prison population has dipped, too, in part because of early parole grants.  Even rawhide-tough Texas gave up plans five years ago to build eight new prisons, channeling the money instead into probation programs, outpatient treatment, and drug courts.

"We're starting to see a triumph of sound science over sound bites," says Adam Gelb, who studies criminal justice issues at the Pew Center on the States, a Washington research group. "State leaders from both parties are adopting research-based strategies that are more effective and less expensive than putting more low-risk of-fenders into $30,000-a-year taxpayer-funded prison cells."

While states are emptying cell beds for different reasons, the one common motive is the high cost of keeping so many people behind bars.  States now spend more than $51 billion a year on prisons -- the equivalent of the gross domestic product of Syria.  Prisons represent one of the fastest-growing items in state budgets at a time of pressing fiscal penury. Many states face fraught decisions over whether to spend money on classrooms or concertina wire.

Reducing prison budgets, in part by sentencing nonviolent offenders to programs outside prison walls, is one of the few issues many groups on the left and right now agree on. "There's more cooperation on this topic than on any other that I can think of right now," says Marc Levin of Right on Crime, a conservative group whose supporters include former presidential candidate Newt Gingrich, antitax crusader Grover Norquist, and former Florida Gov. Jeb Bush.

"Can a sex-offender ever have a fresh start?"

The question in the title of this post is the headline of this notable commentary by Ronnie Polaneczky appearing in the Philadelphia Daily News.  Here is how it begins:

Twenty-seven years ago, Dale Bickerstaff did a horrible thing. He was strung out on crack, so he’s sketchy on the details. But he admits he had sex with a female acquaintance whose apartment he broke into, with a friend, to steal a TV.

Bickerstaff maintains that the sex he had with the acquaintance, who was at home, was consensual. The victim and the court disagreed, and he went to jail in 1985 for rape.  He was released from prison in 2001 eager for a fresh start.  But a fresh start, he has learned, is often impossible once potential employers learn that you’ve been imprisoned for a sex crime.

“They say, ‘You can’t work here; you’re a rapist,’” says Bickerstaff, 52, who was recently offered good custodial jobs by two employers — including the Philadelphia International Airport — that then canceled the offers once his long-ago conviction came to light.  “No one takes the time to know you.  They see you on the Internet [sex-offender registry] and they slam the door.”

I won’t lie.  When Bickerstaff asked me to tell his story, I flinched.  What employer in his right mind, I wondered, would knowingly hire a convicted rapist?  If something terrible happened, the employer would be held liable for a negligent hiring.  And I can’t imagine many employees would happily work alongside Bickerstaff once they learned of his past.

Then again, the rape was in 1985, Bickerstaff did his time, and he hasn’t had a single infraction since leaving prison 12 years ago.  So he has more than paid his debt to society. He has also married a good woman whose five grown children and grandchildren have provided him a level of stability and support he says he has never known.

What more does he need to convince an employer that he’s worth a chance? “Honestly, there’s no easy answer,” says William Hart, director of the city’s Re-Integration Services for Ex-offenders (RISE).  The program helps newly released inmates who are most likely to re-offend (overwhelmingly, young men) find community and social supports to prevent them from re-terrorizing the public.

But RISE doesn’t work with either sex offenders or arsonists because the program hasn’t the professional staff to deal with clinical issues specific to those offenders.  Still, Hart believes that Bickerstaff’s conviction, as time goes on, will play less and less a role in his employment.

Megan Dade, director of the Pennsylvania Sexual Offenders Assessment Board, is not so sure.  “The problem is that many people still believe that ‘once a sex offender, always a sex offender,’ even though new research shows that for many people that is just not the case,” says Dade, whose board evaluates sex offenders for the courts.

Her organization is working to refine the state’s classification of sex offenders to distinguish those likely to re-offend from those who probably won’t.  But she knows that, no matter the classification, sex offenders face huge employment hurdles.  “It’s not easy for any former inmate to find work, especially in this economy,” she says.  “For a sex offender, it’s doubly hard.”

But this local story, headlined "Registered sex offender wins election in small Texas town," reveals that at least in some places and with some jobs, a registered sex offender can get a second chance.  Here are the basics:

Everywhere you look in Skellytown, there are signs of support for Warren "Red" Mills, which is why him winning one of the two open seats should come as no surprise.

But Mills is a registered sex offender with a history that includes jail time for sexual contact without consent and probation for separate allegations of sexual contact with two minors.  That made him an unlikely candidate for city office.  But according to city officials, Mills is allowed to hold the position because he does not have a felony conviction.

Some residents still don't like it. Some say it was inappropriate for him to run in the first place and even more inappropriate for him to win.  Others are disappointed.   But his supporters say he is a good man who will do good things for their city.

Significant sentencing reform passes (nearly unanimously) in yet another red state

As reported in this local article, headlined "Missouri Legislature passes sentencing, parole guidelines," yet another so-called red state has now enacted a significant piece of sentencing reform legislation. Here are the basics:

During three decades as a St. Louis police officer and FBI agent, Gary Fuhr worked to lock up lawbreakers. As he puts it: "I spent my entire career trying to make sure all our correctional facilities operated at maximum capacity."

But after becoming a member of the state House last year, Fuhr participated in an eye-opening study of who is in state prisons and why. Now, the south St. Louis County Republican is the chief sponsor of a bill designed to keep some nonviolent offenders out of prison by beefing up community supervision alternatives. "It keeps our beds available for the folks who truly need to be locked up," Fuhr said.

The Legislature passed the bill on Wednesday and sent it to Gov. Jay Nixon, who is expected to sign it. The bill is projected to save the state an estimated $168,657 next year and potentially more in future years. The House passed the bill on a vote of 151-0. The Senate approved it 24-3.

While the bill is not as far-reaching as prison-closing measures passed in some states, its overwhelming, bipartisan approval stands out in a legislative session marked by gridlock and election-year politics. It garnered support from prosecutors as well as public defenders, staunch law-and-order legislators as well as social welfare advocates, domestic violence workers as well as civil libertarians....

At the heart of the plan is more intensive community supervision. For example, probation officers could mete out immediate, 48-hour jail stays when an offender violates a rule of supervision, such as failing a drug test. Backers say swift punishment would get the message across better than the current system, in which minor violations pile up, get mired in court backlogs and then result in an offender being shipped to the penitentiary.

The bill had its beginnings in a "State of the Judiciary" speech given in 2010 by Missouri Supreme Court Judge William Ray Price. He told legislators that incarcerating nonviolent offenders — without treating their underlying drug and alcohol problems — was costing billions and wasn't making a dent in crime.

Missouri spends more than $660 million a year to keep 31,130 people behind bars and 73,280 offenders on probation and parole. More than 11,000 employees, or one out of every five people on the state government payroll, work for the Department of Corrections.

Last year, Nixon, a Democrat, and the Legislature's top Republican leaders teamed with court officials to set up a working group to analyze prison data and make recommendations. Crunching the data was the Pew Center on the States and staff from its Public Safety Performance Project, which has done similar work in about 20 states. "The idea is, we can get more public safety at less cost," said Brian Elderbroom, a project manager at the Pew Center.

The most striking finding in Missouri's study: 71 percent of prison admissions resulted from probation or parole violations. And about 43 percent of the incoming prisoners had committed "technical" violations, such as failing to report a move or missing an appointment with a probation officer.

The bill aims to keep those offenders on track while they're on probation so they don't wind up in prison. The state would award points for following the rules, shortening an offender's supervision period by 30 days for every 30 days of compliance. "It motivates them to do the right thing," Fuhr said....

The new system would apply only to people convicted of certain drug offenses and lower-level C and D felonies, such as stealing, bad checks and forgeries. Prosecutors insisted that felonies such as aggravated stalking and sexual assault be excluded. "We're very happy with the bill as it is now," said McCulloch, president of the Missouri Association of Prosecuting Attorneys.

Some states, such as Kentucky, went too far, McCulloch said, by requiring that the state's prison population be reduced by several thousand people. "The easiest thing is to empty prisons," the prosecutor said. "You just start paroling people. But that hurts public safety. We wanted to make sure we stayed away from that."

Indiana legislators (over?)reacting to pair of sex offenders earning early prison release

This new AP story, headlined "Early prison release for sex offenders irks lawmakers," provides a telling and notable how sex offenders can get into trouble and prompt a harsh legislative response for, in essence, just being good prisoners.  Here are the details:

Indiana lawmakers are planning changes to the state’s early release law in response to this week’s slated release of two convicted sex offenders who significantly shortened their prison terms by earning college degrees.

Republican Sen. Jim Merritt of Indianapolis said Tuesday the law’s shortcoming is illustrated by the case of Christopher Wheat, a former high school swim coach convicted of having a sexual relationship with a 14-year-old female swim student.

Wheat, 38, is scheduled for release Thursday from the New Castle Correctional Facility after serving less than two years of his eight-year sentence.  Merritt said Wheat “manipulated the system” to cut his sentence to about 20 months by earning two computer science degrees behind bars. “I think he gamed the system.  And we need to make sure nobody does that anymore,” Merritt said.  “We all believe education in prison should be for the rehabilitation of one’s character and preparing them for their life as an ex-offender.”...

Wheat was sentenced to eight years in September 2010 following his conviction on two counts of sexual misconduct with a minor and one count of child solicitation.  His victim was a then-14-year-old student he coached at Lawrence North High School in Indianapolis.

Doug Garrison, a spokesman for the Indiana Department of Correction, said Wheat was sentenced to 15 years in prison, with five years suspended and another two years in community corrections, leaving him with an eight-year sentence.  It was cut to four years for good behavior and another two years and three months were removed when he earned an associate degree and a bachelor’s degree. Garrison said Wheat must wear a GPS-monitored ankle bracelet following his release from prison.

Merritt said he’s working with Sen. Randy Head, R-Logansport, to draft legislation for the next General Assembly that would likely include making convicted sex offenders unable to shave time off their sentences by earning degrees in prison.  It might also seek to prevent inmates from using previously accumulated college credits toward their degrees, as Wheat had done....

Merritt said the slated release of another convicted sex offender -- also Thursday from the New Castle prison -- demonstrates that changes are needed to the state’s early release law. Daniel J. Moore, a 53-year-old former New Whiteland Baptist Church pastor, pleaded guilty in March 2010 to child solicitation and sexual misconduct with a minor for a sexual relationship with a 15-year-old girl who was a church member.  His 10-year sentence was cut to five for good behavior, and he earned associate and bachelor’s degrees in human services, further paring his sentence to about two and a half years.

State Sen. Pat Miller, R-Indianapolis, said she also will push for changes to the early release law “to fix this terrible situation.” “Sexual predators are a menace to our society. The pain they inflict upon their victims lasts a lifetime, and it makes no sense that these violent offenders are being released early from prison,” Miller said in a statement.

Local program to enable low-level offenders (messy) community service alternative to jail

The only thing I may more than a positive "win-win" sentencing story is a positive and amusing sentencing story on a Friday afternoon which readily fosters posting entertaining pictures and links and which might encourage some (punny) reader comments all weekend long.  Thus, I was giddy to come across this new local story out of Michigan, headlined "Sheriff: Sentencing criminals to roadkill cleanup will save Ingham County money." Here are the basics:

Ingham County Sheriff Gene Wriggelsworth said his agency's new program putting non-violent offenders to work as roadkill cleanup crews will save taxpayer dollars.

The Dead Animal Recovery Team, or DART, will allow judges to sentence non-violent offenders to cleanup duty as opposed to probation, jail time and other sentences. Wriggelsworth said the new program will save Ingham County $40 a day for each criminal sentenced to DART as opposed to jail time.

"That's the whole point," Wriggelsworth said. "The benefit will be cleaner streets clearly, but also the fact that we've got people that could have been sentenced to jail working for the community. It's a win-win."

The Ingham County Sheriff's Office has been developing DART for the past several months, Wriggelsworth said. His inspiration came from the Saginaw County Sheriff's Office where a similar program is employed. The Sheriff's Office purchased a trailer and equipment such as shovels for DART, at no cost to taxpayers. Wriggelsworth said everything was paid for through inmate booking fee funds.

A volunteer deputy will supervise DART offenders as they work, Wriggelsworth added. "Basically, the only cost to taxpayers is going to be the gas," he said.

DART will remove smaller animals from Ingham County's roadways, such as racoons and possums, according to Wriggelsworth. That service is currently nonexistent throughout the county as the Road Commission only removes larger animals. "The smaller animals are just smushed into oblivion," Wriggelsworth said. "I believe there is a need for (DART)."

Ingham District judges Thomas Boyd and Donald Allen both are supportive of DART and the sentencing alternatives it will provide them. Wriggelsworth emphasized that those sentenced to DART work will only be low-court offenders. "We're not going to put murderers or rapists out there," he said.

I hope readers are amused not only by this alternative sentencing story, but also by the picture uploaded with this post which comes from product line at Roadkill Toys. (Pictured here is Twitch, a flattened raccoon.  Checking out some alternative images that might have been posted with this story is not recommended during the lunch hour.)

I think it would be extra cool if Sheriff Gene Wriggelsworth — great name in this context, by the way — would make a habit of rewarding offenders who do especially good work as part of the DART team with one of the "squash-plush toys" sold by the creative folks at Roadkill Toys.  As the website explains, in addition to Twitch there is Grind (a rabbit), Splodge (a hedgehog), Pop (a weasel) and Smudge (a squirrel), and it is important for folks to "get your squash-plush toys before the maggots set in."

"Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments"

The title of this post is the title of this notable new paper by Richard Re and Christopher Re, which is now available via SSRN.  Here is the abstract:

The Reconstruction Amendments are justly celebrated for transforming millions of recent slaves into voting citizens.  Yet this legacy of egalitarian enfranchisement had a flip side. In arguing that voting laws should not discriminate on the basis of morally insignificant statuses, such as race, supporters of the Reconstruction Amendments emphasized the legitimacy of retributive disenfranchisement as a punishment for immoral actions, such as crimes. Former slaves were not just compared with virtuous military veterans, as commentators have long observed, but were also contrasted with immoral criminals.  The mutually supportive relationship between egalitarian enfranchisement and punitive disenfranchisement — between voting and vice — motivated and shaped all three Reconstruction Amendments. Counterintuitively, the constitutional entrenchment of criminal disenfranchisement facilitated the enfranchisement of black Americans.  This conclusion complicates the conventional understanding of how and why voting rights expanded in the Reconstruction era.

Criminal disenfranchisement’s previously overlooked constitutional history illuminates four contemporary legal debates.  First, the connection between voting and vice provides new support for the Supreme Court’s thoroughly criticized holding that the Constitution endorses criminal disenfranchisement.  Second, Reconstruction history suggests that the Constitution’s endorsement of criminal disenfranchisement extends only to serious crimes. For that reason, disenfranchisement for minor criminal offenses, such as misdemeanors, may be unconstitutional.  Third, the Reconstruction Amendments’ common intellectual origin refutes recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the Fourteenth Amendment’s endorsement of criminal disenfranchisement.  Finally, the historical relationship between voting and vice suggests that felon disenfranchisement is specially protected from federal regulation but not categorically immune to challenge under the Voting Rights Act.