Sentencing Law and Policy

Noting distinct criminal sentencing responses to "hacktivism" in the US and the UK

This new piece from Salon highlights the severity of the US sentencing system relative to our friends across the pond.  The piece is headlined " U.K. hacker sentencing highlights U.S. overreach: LulzSec members in Britain receive maximum of 15 months, while hacktivist Jeremy Hammond faces life in prison here." Here is how it starts:

Hacktivist Jeremy Hammond has already spent 14 months in pretrial detention at federal prison in New York.  He awaits trial for his alleged involvement in the famed LulzSec Stratfor hack and faces up to 42 years in prison.  Meanwhile, across the Atlantic, sentencing of admitted LulzSec hackers in Britain highlights the severity of the U.S. approach to hacktivism.  Three young men in the U.K. pled guilty to activity attributed to the Anonymous offshoot; their charges mirror those facing Hammond, while the extent of punishment is wildly disparate.

As activist publicity organization Sparrow Media pointed out Thursday, “three English co-defendants who plead guilty to being members of the Lulzsec hacktivist group were today sentenced by a UK court.  Ryan Acroyd, the most technically experienced of the three, received the longest sentence -- he will spend 15 months in prison.”

"Crackheaded Ruling by Sixth Circuit"

The title of this post is the headline of this new commentary by Ed Whelan at the National Review Online concerning yesterday's suprising split panel ruling by the Sixth Circuit in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (opinion here; my commentary here).  Here are excerpts from Whelan's take:

[I]n an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman....

Under [the panel majority's] illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.

As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.

Unsurprisingly, folks at the ACLU and FAMM have a much different perspective on the Sixth Circuit panel majority's work in Blewett.  Here are the titles and links to the press releases coming from these groups:

• from the ACLU here, "Appeals Court Says Fair Sentencing Act Applies Retroactively"
• from the FAMM here, "Don't Appeal Crack Fairness Ruling, FAMM Tells DOJ"

For legal, policy and practical reasons, it should be very intriguing to watch closely just where, when and how the Justice Department and others are going to argue that the majority in Blewett really blew it.

Related post:

• On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences

On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences

With thanks to all the folks who alerted me while I was dealing with other matters, I am finally back on-line and able to report on a remarkable new split panel ruling by the Sixth Circuit today in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here). The start of the majority opinion (per Judge Merritt) will highlight for all federal sentencing fans why this ruling is a very big deal:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005.  The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years.  The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes.  The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support.  The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio.  However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination).  As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.”  The Collapse of American Criminal Justice 184 (2011).  He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010.  The Act should apply to all defendants, including those sentenced prior to its passage.  We therefore reverse the judgment of the district court and remand for resentencing.

The start of the dissent (per Judge Gilman) will highlight for all federal sentencing fans why this ruling seems sure to get en banc and/or Supreme Court review:

I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat.  To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.

As the title of my post hints, though I really like the effort, I am not sure a Fifth Amendment equal protection theory provides a strong constitutional foundation for giving the new crack sentences retroactive effect.  But I have long thought, in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.

If (dare I say, when) this notable Blewett ruling gets subject to further review, I hope to have a chance to fully explicate (perhaps via an amicus brief) my Eighth Amendment approach to reaching the conclusions reached by the majority here on distinct constitutional grounds. In the meantime, we have an interesting Friday ruling to debate through the weekend.

Isn't it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of "judge-shopping"?

This recent new article in CQ Weekly was especially notable, as I noted in this post, because it highlighted how many Republican members of Congress are now leading serious discussions of review and possible reform of the federal criminal justice system and severe federal sentencing laws.  But I needed to do this separate post to spotlight what seems to be a stunningly stupid comment from Wisconsin Republican Jim Sensenbrenner in his explanation for why he still supports federal mandatory minimum sentencing laws. Here is the passage from the CQ Weekly article that almost made my head explode:

While the dialogue may be changing, passing legislation, as always, is another story.  Even the idea of studying the criminal justice system proved too controversial in the Senate in 2011, when a national commission proposed by former Democratic Sen. Jim Webb of Virginia fell to partisan fighting.

The House task force might agree to weed out relatively minor crimes such as possession of a migratory bird — the kind of regulations Republicans tend to view as government overreach — but it may be less inclined to rethink the mandatory minimum sentences that many Democrats abhor.

Sensenbrenner said as much in an interview, arguing that without such sentences, prosecutors and defense attorneys would “shop” for judges based on their reputations for handing out tough or lenient penalties.  “If there isn’t a better way to stop judge-shopping, then I think we’re stuck with mandatory minimums,” he says.

Perhaps Sensenbrenner knows something magical about the operation of the federal criminal justice system that I do not know, but I am pretty sure there are no existing mechanisms for either prosecutors or defense attorneys to somehow "shop" for judges based on their sentencing reputations.  If there were, I am confident federal prosecutors would do their very darnedest to make sure they never had any sentencing cases before district judges like Jack Weinstein (who has a well-deserved reputation for abhorring any sentencing rules demanding long setences) and defense attorneys would do their very darnedest to make sure they never had any sentencing cases before district judges like Linda Reade (who has a well-deserved reputation for being eager to give long within-guideline sentences).

As regular readers should know, I think there are a few valid — but ultimately unconvincing — arguments to be made in support of some existing federal mandatory minimum sentencing laws.  And I heartily welcome supporters of existing federal mandatory minimum laws to make their very best arguments in support of the status quo, especially as Rand Paul and other notable new congressional voices urge statutory reforms.  But gosh, is it too much to ask that powerful members of Congress at least have the most basic understanding of how our existing sentencing laws and procedures actually work before they assert that we have to be "stuck with mandatory minimums"?

In my perfect sentencing law and policy world, a comment this idoitic from someone who has long played a central role in passage and reform of federal sentencing laws would be grounds for impeachment.  But, as my work on this blog so often highlights, we are very far — and, I fear, will always be very far — from my perfect sentencing law and policy world.

Some recent and older related posts:

• Noting some new GOP sentencing reform voices inside the Beltway
• Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• Justice Safety Valve Act gets bipartisan introduction in House of Representatives
• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"
• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"
• NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)

Gov Brown bringing California prison fight back to SCOTUS

As reported in this local article, headlined "Gov. Jerry Brown on Monday followed through with his vow to turn to the U.S. Supreme Court in a bid to end years of judicial control over California's overcrowded prison system." Here is more about the latest legal development in a seemingly never-ending California corrections saga:

In a three-page filing, the governor and his top prison officials notified a three-judge panel the state is appealing an April order requiring California to shed at least 10,000 more inmates by the end of December.  The attorney general's office now has 60 days to file its full legal arguments with the Supreme Court....

In the recent order, the federal judges found that California prisons remain over capacity, and that the state has various ways to improve medical care and release inmates without jeopardizing public safety.

The governor responded to that order with a plan that would remove about 7,000 inmates by the end of this year, still thousands short of the judges' demands.  But state officials do not want to take those measures, arguing a reduction of more than 25,000 inmates over the past few years has solved the overcrowding issue.

Lawyers for the inmates contend the state must do more to end the legal battle.  The Supreme Court, in a 5-4 ruling, upheld the 2009 orders to reduce prison overcrowding.  The justices would likely decide next fall whether to review the issue again.

Noting some new GOP sentencing reform voices inside the Beltway

This notable new article, amusingly headlined "An End to the Jailhouse Blues?", authored by By John Gramlich and appearing in CQ Weekly discusses what I am inclined to call the "new right on criminal justice reform" on the Hill.  Here are excerpts:

Congressional Democrats have argued for years that too many low-level drug offenders are locked away in federal prisons and that mandatory-sentencing laws disproportionately harm minorities and tie judges’ hands.  Lately, they have been joined in those criticisms by Sen. Rand Paul, a tea-party-backed Republican with White House aspirations.  “I think the Republican Party could grow more if we had a little bit more of a compassionate outlook,” the Kentuckian says.

Paul is emblematic of a quiet but unmistakable shift among conservatives in Congress when it comes to criminal justice.  Not only are Republicans engaging in a serious debate about relaxing federal criminal penalties — an idea that was once anathema to lawmakers who worried that their next campaign opponent would label them “soft on crime” — they are leading the discussion.

The House Judiciary Committee, which has poured cold water on Democratic priorities since Republicans regained control of the chamber in 2010, last week created a bipartisan, 10-member task force that will conduct a six-month analysis of the estimated 4,500 crimes on the federal books.

The task force will examine “overcriminalization” in the federal justice system and evaluate what Judiciary Chairman Robert W. Goodlatte calls an “ever-increasing labyrinth” of criminal penalties, some of them for relatively minor crimes in which perpetrators may not have realized they were breaking the law. The Virginia Republican cited the example of an 11-year-old girl who “saved a baby woodpecker from the family cat” but received a $535 fine because of a federal law banning the possession of a migratory bird.

The panel will be led by law-and-order Wisconsin Republican Jim Sensenbrenner and Virginia Democrat Robert C. Scott, an outspoken critic of more-contentious criminal policies such as mandatory minimum sentencing, which the task force will also evaluate. A diverse range of groups endorses the effort, including the American Civil Liberties Union, the Heritage Foundation and the U.S. Chamber of Commerce.

At the same time, the Republican chairman of the House Appropriations subcommittee that oversees federal prison spending, Frank R. Wolf of Virginia, plans to work with his Democratic ranking member, Chaka Fattah of Pennsylvania, to create a separate task force to review all aspects of the rapidly growing federal correctional system. Wolf is outraged that federal prisoners are not provided more opportunities to gain work experience and believes the Bureau of Prisons is holding too many people, including ill older inmates who no longer pose a threat to society. A report by the Justice Department’s inspector general recently came to the same conclusion.

“If you’re 68 years old and you’re dying of cancer and your life expectancy is seven months, why do we want to keep you in prison?” Wolf says.

Then there is Paul, who perhaps more than any other Senate Republican aligns with Democrats on sentencing issues. Paul is co-sponsoring a bill with Democratic Judiciary Chairman Patrick J. Leahy of Vermont that would allow federal judges to depart from mandatory minimum sentences under certain conditions — a so-called “safety valve” that effectively would do away with congressionally mandated punishments in many cases. Similar House legislation is co-sponsored by Scott and another Kentucky Republican, Thomas Massie. “Some of the sentencing has been disproportionately unfair to African-Americans, and so I am for getting rid of the mandatory minimums or letting judges override them,” Paul says.

He argues that young drug offenders, in particular, are vulnerable to overly harsh punishments and points out that each of the past three presidents — Barack Obama, George W. Bush and Bill Clinton — was “accused of doing drugs as a kid.... Had they been caught, none of them would have ever been president,” he says. “Just by luck of not being caught, they did fine. But a lot of kids don’t.”...

If Republicans sound kinder and gentler on criminal justice today than they did two decades ago, their perspective has been guided by cold, hard numbers.

Goodlatte last week cited statistics showing that Congress has added an average of 500 new crimes to the law books in each of the past three decades. Those federal crimes overlap with scores of existing penalties for the same crimes enacted by the states, which handle the vast majority of the nation’s criminal trials.

The creation of hundreds of new federal crimes, combined with mandatory minimum sentencing laws and the 1984 elimination of parole for federal offenders, has resulted in a steady and costly uptick in the federal prison population. The federal corrections system is now the largest in the country, much larger than state systems in Texas and California.

In fiscal 2006, the Bureau of Prisons had 192,584 inmates. Five years later, the number had grown 14 percent to 218,936, according to a November report by the Justice Department inspector general.

Massie, formerly the top elected official in Lewis County, Ky., says his perspective has been shaped by his experience managing a local budget, where he says his “biggest line item” was incarceration. The first-term lawmaker backs a bipartisan corrections overhaul that Kentucky enacted in 2011 and said Republicans on the federal level should embrace similar changes because mass incarceration runs counter to established GOP principles on government spending. “I call it socialism with constrained mobility,” Massie says. “You’re paying for all their medical costs. You’re paying for all their food, all their housing. You’ve got to have air conditioning. Jails are not cheap.”

While the dialogue may be changing, passing legislation, as always, is another story. Even the idea of studying the criminal justice system proved too controversial in the Senate in 2011, when a national commission proposed by former Democratic Sen. Jim Webb of Virginia fell to partisan fighting.

The House task force might agree to weed out relatively minor crimes such as possession of a migratory bird — the kind of regulations Republicans tend to view as government overreach — but it may be less inclined to rethink the mandatory minimum sentences that many Democrats abhor....

While the challenges are clear, those who support the GOP-led discussion surrounding criminal justice say it is encouraging that the debate is happening at all. It’s a significant step forward that a bipartisan group of legislators is really for the first time looking in a very serious way at ways to try to get their arms around this behemoth,” says John G. Malcolm, a senior legal fellow at the Heritage Foundation.

Some recent and older related posts:

• Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• Justice Safety Valve Act gets bipartisan introduction in House of Representatives
• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"
• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"
• NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)

Ohio prosecutor upset public unwilling to pay higher taxes to make his job easier

The title of this post is my proposed alternative headline for this local article discussing recent sentencing law reforms in Ohio (made by a Republican legislature and signed in law by GOP Governor John Kasich).  The actual headline from the local paper is "Prosecutor: Sentencing changes damaging judicial system," and here are excerpts (with the prosecutor's telling comments highlighted by me):

In light of a recent trial in which a Springfield man was convicted in Athens County Common Pleas Court of three counts of trafficking in cocaine, Prosecutor Keller Blackburn discussed how the man will face a lesser sentence thanks to House Bill 86 and said the legislation changes in sentencing is hurting the state’s judicial system.

Michael Turner, 29, sat through a four-day trial before a jury found him guilty of two third-degree felony counts of trafficking in cocaine and one second-degree count of trafficking in cocaine.  When he was indicted in August of 2011, the charges he faced carried a maximum prison sentence of 18 years with at least eight years being mandatory. However, after House Bill 86 passed through legislation, the maximum he can now be sentenced is only nine years.  A sentencing date has yet to be set.

Blackburn explained that House Bill 86 not only made a distinction between cocaine and crack cocaine and the weights of the drugs, but it also significantly changed the prison sentences associated with lower level felony crimes.  Prior to the changes, fifth-degree and fourth-degree felonies carried the real possibility of prison time.  Now, probation or jail time is more likely for first-time offenders.  Third-degree felony crimes carried a maximum of five years in prison but now only three can be ordered....

“It’s balancing the budget on the backs of local taxpayers on felony cases,” he added. “There’s a reason things are felonies and others are misdemeanors.  Local communities are supposed to pay for misdemeanors and the state is supposed to pay for felonies.  Now felony fives, fours and some threes are paid for by the counties.” 

While Blackburn does not believe the sentencing changes affects the criminal mind much, he does point out the differences it makes after the fact.  “When you change the numbers, then negotiations get more difficult.  If someone is only risking six additional months by not taking a deal, they’ll go to trial.  It harms negotiations and pass costs to local communities,” Blackburn said.

According to Blackburn, there are around 600 cases that come across his desk in a year. He said it’s not possible for the prosecution and defense to try that many cases, nor is it possible for the courts to handle such a load and taxpayers cannot afford that many cases. He said there is also additional stress placed on the probation department.

“The principles and purposes of sentencing used to be to punish the offender and protect the public.  It’s now to punish the offender and protect the public in the most economical manner.  That’s not what’s supposed to be happening but that’s what legislation has decided,” Blackburn said....

“You start taking tools out of the toolbox.  Maybe the person with 24 balloons of heroin does need an intensive treatment program but maybe we know they just sold twice and we just missed them,” the prosecutor said.  “Maybe they are one of the major spokes in the wheel and all I can do is put them on probation when the probation department is underfunded.”

“The problem is money and they don’t want to put any more money into prisons so they’re not willing to make many changes,” said Blackburn.

Based on the prosecutor's comments here, it does not seem at all accurate to say, as does this article's headline, that a new sentencing law is "damaging [Ohio's] judicial system" in any way.  Rather, by enabling more defendants to go to trial and by making sure communities cover certain costs, it would appear the new sentencing law may actually be strengthening the judicial system in the Buckeye State.

Rather, what really seems to be bothering Prosecutor Keller Blackburn is that Ohio's new sentencing laws make plea negotiations "more difficult" and may lead to more defendants exercising their constitutional right to a jury trial.  Pulling back the curtain as to what prosecutors really care about, Backburn laments that he is losing one of the tools he wants in his toolbox so he can determine the fate of a defendant's future without the complications or challenges of proving to a jury or judge why this fate is appropriate or cost effective.  And dang those voters and legislators, concludes Blackburn, they are unwilling to put more of their hard-earned money into making his job as a prosecutor easier.

"Sentencing Bill Could Cost Taxpayers $760 Million Over 10 Years"

The title of this post is the headline of this recent report concerning the projected price tag for a sentencing proposal being discussed as an approach to dealing with Chicago's gun violence.  Here are the details:

A bill designed to reduce gun violence by increasing gun-crime sentences could end up costing Illinois taxpayers hundreds of millions of dollars, according to an investigation by NBC Chicago and The Chicago Reporter.

State Representative Mike Zalewski (D-Riverside) has proposed a bill to increase Illinois’ minimum mandatory prison sentence for gun violators from one year to three years. "We have to make sure individuals are afraid, frankly, of the law, and afraid of the consequences," Zalewski said. "I think three years sets a high bar that if you’re found guilty of the offense, you’re going to face serious consequences. You’re not going to be right back out on the street."

But critics say the bill is nothing more than "political theatre." What’s more, it’s prohibitively expensive, according to opponents like John Maki, Executive Director of the John Howard Association, a local prison-watchdog group. "It’s going to add about 4,000 inmates in about three years," Make explained. "It’s going to explode the budget."

The results of a study done by NBC Chicagos partner, The Chicago Reporter, would seem to support that view. The Reporter analyzed all criminal cases in Cook County Criminal Court from 2000 through 2011, and estimated that it cost taxpayers more than $5.3 billion to imprison Chicago criminals during that period. If those sentencing costs were extrapolated to include the increased prison time resulting from Zalewski’s gun-sentencing bill, The Reporter estimates the bill to taxpayers would have increased by an additional $760 million during that same time period....

As for the potential added expense of these expanded prison sentences, Zalewski is part of a separate discussion in Springfield, aimed at freeing up space in Illinois’ overcrowded prisons. The discussion centers around reducing the number of non-violent offenders — people convicted of such offenses as prostitution or drugs, for example — to make room for these more violent gun offenders.

Discussing this idea and similar gun sentencing proposals making the rounds in other states, Daniel Denvir has this recent commentary in The New Republic.  Its headline captures its themes: "The Worst Gun Control Idea Has Bipartisan Support: Why states should not pass new mandatory minimums for firearm possession."

"Looking Past the Hype: 10 Questions Everyone Should Ask About California's Prison Realignment"

The title of this post is the title of this new paper on SSRN by Joan Petersilia and Jessica Snyder. Here is the abstract:

California’s Criminal Justice Realignment Act passed in 2011 shifted vast discretion for managing lower-level offenders from the state to the county, allocated over $2 billion in the first 2 years for local programs, and altered sentences for more than 100,000 offenders. Despite the fact that it is the biggest penal experiment in modern history, the state provided no funding to evaluate its overall effect on crime, incarceration, justice agencies, or recidivism.

We provide a framework for a comprehensive evaluation by raising 10 essential questions: (1) Have prison populations been reduced and care sufficiently improved to bring prison medical care up to a Constitutional standard? (2) What is the impact on victim rights and safety? (3) Will more offenders participate in treatment programs, and will recidivism be reduced? (4) Will there be equitable sentencing and treatment across counties? (5) What is the impact on jail crowding, conditions, and litigation? (6) What is the impact on police, prosecution, defense, and judges? (7) What is the impact on probation and parole? (8) What is the impact on crime rates and community life? (9) How much will realignment cost? Who pays? (10) Have we increased the number of people under criminal justice supervision?

Feds and Jeff Skilling cut resentencing deal to fix new guideline range at 168 to 210 months

As had been previewed a public notice to victims from the Justice Department last month (noted here), federal prosecutors and former Enron CEO Jeff Skilling have reached a deal concerning unresolved matters before Skilling's resentencing. This Reuters article details the basics of this notable high-profile sentencing development:

Jeffrey Skilling, the former Enron Corp chief executive, could be freed from prison nearly a decade sooner than originally expected, under an agreement with federal prosecutors to end the last major legal battle over one of the biggest corporate frauds in U.S. history.

The agreement calls for Skilling to see his federal prison sentence reduced to as little as 14 years, down from the 24 years imposed in 2006. It could result in Skilling's freedom in late 2018, with good behavior.

In exchange, Skilling, 59, who has long maintained his innocence, agreed to stop appealing his conviction. The agreement would also allow more than $40 million seized from him to be freed up for distribution to Enron fraud victims.

A resentencing became necessary after a federal appeals court upheld Skilling's conviction but found the original sentence too harsh....  Wednesday's agreement, which is subject to court approval, recommends that Skilling be resentenced to between 14 and 17-1/2 years in prison, including time already spent there. Skilling has been in prison since December 2006.

A helpful readers forwarded to me the 7-page sentencing agreement, which can be downloaded below.  Here are the essential pieces of the deal:

The Government and the defendant agree that, based on the previous decisions of the Fifth Circuit with respect to proper calculation of the United States Sentencing Guidelines range and this Court's prior sentencing rulings on October 23, 2006, the United States Sentencing Guidelines provide that the defendant should be resentenced using an adjusted offense level of 36 and a criminal history category of I, resulting in an advisory guidelines range of 188 to 235 months of imprisonment.

For the reasons set forth below as "Relevant Considerations," the Government and the defendant agree to recommend jointly that the District Court apply a one-level downward variance and resentence the defendant using an adjusted offense level of 35, pursuant to the United States Sentencing Guidelines.  Given that the defendant is located in criminal history category I for resentencing purposes, the jointly recommended adjusted offense level will result in a jointly recommended guidelines range of 168 to 210 months of imprisonment.

Neither the Government nor the defendant will seek any variance or departure from the jointly recommended guidelines range.  The Government may allocute at sentencing, but the Government will not take a position regarding the particular sentence the District Court should impose within the jointly recommended guidelines range.

The defendant agrees to waive all potential challenges to his convictions and sentence, including a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, appeals, and collateral attacks, except as set forth [below]....

Neither the Government nor the defendant will appeal a sentence imposed within the jointly recommended guidelines range.  However, the Government and the defendant each reserve the right to appeal a sentence imposed outside this range.

Download Skilling Sentencing Agreement final.cfv

Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013

Thanks to the suggestions, and insights and energy of Harlan Protass, a criminal-defense lawyer in New York and an adjunct professor at the Cardozo School of Law, some of the ideas first expressed in this recent post concerning the proposed Justice Safetly Valve Act of 2013 now find expression in this Wall Street Journal opinion piece we co-authored.  Here is are snippets from the the piece:

There are few topics on which leading Democratic and Republican voices agree these days. But the recently introduced Justice Safety Valve Act of 2013 — which would authorize federal judges to impose prison terms below statutory mandatory minimums in some cases — represents a new bipartisan effort at addressing America's overcrowded prisons and bloated budget.  Passage of the act, though, will depend on President Obama and his Justice Department getting behind it....

The Justice Safety Valve Act, recently introduced by Sens. Patrick Leahy (D., Vt.) and Rand Paul (R., Ky.), and to the House by Reps. Robert C. "Bobby" Scott (D., Va.) and Thomas Massie (R., Ky.), could help reduce the millions of taxpayer dollars wasted keeping thousands of people sentenced under mandatory minimum laws locked up.  The bill would enable federal judges to consider when or whether a mandatory-minimum sentence serves legitimate law-enforcement purposes given the particular circumstances of the crime and defendant.  Judges could impose prison terms below the statutory minimums only when they explain, through an on-the-record, reviewable opinion, that a shorter term is sufficient to serve the express goals of the criminal justice system set out by Congress....

[B]ipartisan support and sponsorship of the Justice Safety Valve Act highlights that prominent lawmakers on both sides of the aisle agree — at this time of lean budgets, sequester cuts and overcrowded prison facilities — that the current federal sentencing scheme is neither fair nor effective, and that mandatory-minimum sentencing laws lie at the heart of the problem.

President Obama's vocal support of this bill would signal a real commitment to using his bully pulpit to advocate on behalf of significant reform proposals.  If he does not, the president's failure to champion sentencing reform may become his most lasting federal criminal-justice legacy.

Some recent and older related posts:

• Justice Safety Valve Act gets bipartisan introduction in House of Representatives
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"

New bipartisan House Judiciary Committee task force to examine overcriminalization

As reported in this Wall Street Journal article, Congress is creating a new federal criminal justice task force to address the problem of Congress creating too much federal criminal justice.  The article is headlined "Task Force Aims to Lighten Criminal Code: Bipartisan Congressional Initiative Targets Bloated Federal Provisions Cited by Critics for Driving Up Incarceration Rates," and here are excerpts:

Congress plans this week to create a new, bipartisan task force to pare the federal criminal code, a body of law under attack from both parties recently for its bloat.

The panel, which will be known as the House Committee on the Judiciary Over-Criminalization Task Force of 2013, will comprise five Republicans and five Democrats.  It marks the most expansive re-examination of federal law since the early 1980s, when the Justice Department attempted to count the offenses in the criminal code as part of an overhaul effort by Congress.

Rep. Bobby Scott (D., Va.) said he expected the committee to work through consensus. "We've been warned it's going to be a working task force and it means we'll have to essentially go through the entire code," he said.

Rep. F. James Sensenbrenner (R., Wis.) a longtime champion of overhauling the code, will lead the task force.  He is expected to reintroduce a bill he has tried to get through several congresses that would cut the size of the criminal code by a third. "Overcriminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of problems," he said.

In a city with deep political divisions, the expansion of federal criminal law has created a coalition of allies from opposite sides of the aisle, including the conservative Heritage Foundation, the libertarian Cato Institute, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and the American Bar Association. Legal experts estimate there are 4,500 criminal statutes and tens of thousands of regulations that carry criminal penalties, including prison.

The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year. In recent years, states have reversed years of steady increases by reducing their prison populations while the number of people held at the federal level has continued to climb.  Federal lawmakers and legal experts attribute part of the continuing increase to the rise in criminal offenses and regulations that carry prison time and the creation of laws that don't require knowledge of wrongdoing.

Democrats have long opposed the growth of parts of the system, blaming mandatory minimums for the increase in the federal prison population, especially the rise in African-American inmates.  For Republicans, the encroachment of federal law into areas that could be handled by the states is a top concern....

Other committee members include Rep. Raul Labrador (R., Idaho) and Rep. Karen Bass (D., Calif.). Recommendations made by the task force will be taken up by the House Judiciary Committee, Chairman Robert Goodlatte (R., Va.) said in an interview.

As the first sentence of this post suggests, I am not especially optimistic about the prospects for a new federal criminal justice entity doing a robust job of curtailing the size and scope of the federal criminal justice system.  Nevertheless, simply the creation of this new task force, as well as its composition and commitment to work via consensus, suggests that at least a few persons inside the Beltway have come to realize there can and should be bipartisan efforts to shrink the considerable costs of the massive modern federal criminal justice system.

"Guantanamo camp burns through $900,000 a year per inmate"

The title of this post is the headline of this new Reuters article, which gets started this way:

It's been dubbed the most expensive prison on Earth and President Barack Obama cited the cost this week as one of many reasons to shut down the detention center at Guantanamo Bay, which burns through some $900,000 per prisoner annually.

The Pentagon estimates it spends about $150 million each year to operate the prison and military court system at the U.S. Naval Base in Cuba, which was set up 11 years ago to house foreign terrorism suspects. With 166 inmates currently in custody, that amounts to an annual cost of $903,614 per prisoner.

By comparison, super-maximum security prisons in the United States spend about $60,000 to $70,000 at most to house their inmates, analysts say. And the average cost across all federal prisons is about $30,000, they say.

The high cost was just one reason Obama cited when he returned this week to an unfulfilled promise to close the prison and said he would try again. Obama also said that the prison, set up under his Republican predecessor George W. Bush and long the target of criticism by rights groups and foreign governments, is a stain on the reputation of the United States....

The cost argument could be a potent weapon at a time of running budget battles between Obama and the Republican-controlled House of Representatives, and of across-the-board federal spending cuts that kicked in in March. The "sequestration" as it is known, is due to cut some $109 billion in spending up to the end of September and has cut government services small and large.

Just one inmate from Guantanamo, for example, is equivalent to the cost of 12 weeks of White House tours for the public - a treasured tradition that the Secret Service says costs $74,000 a week and that has been axed under sequestration.

A single inmate is also the equivalent of keeping open the control tower at the Northwest Arkansas Regional Airport for 45 months. That control tower, another victim of cuts, costs $20,000 per month to run.

The $900,000 also matches the funding for nearly seven states to help serve home delivered meals to the elderly. Sequestration has cost Meals on Wheels a median shortfall of $129,497 per state, the organization says.

I do not blog much about GTMO because the inmates held there have not be duly convicted and sentenced. That said, I think it is notable just how high the price tag seems to be on keeping that facility in operation.

"What I Saw at San Quentin"

The title of this post is the title of this interesting new post at Crime & Consequences by Michael Rushford, President of Criminal Justice Legal Foundation.  The post describes at great length a recent tour of what was California's first prison.  Here are excerpts from the start and end of a fascinating read:

While I have been through some other state prisons, San Quentin was different. It was opened in 1852 as the state's first prison.  It was located on a 432 acre point facing the San Francisco Bay because, at the time, the city was overrun with crime.  Although it's obvious that the prison has been expanded over the years, walking through the main gate into the actual prison compound is like stepping back in time.  The gate itself is original and large enough to accommodate a stagecoach. Inside the compound is a grassy quad flanked by the gate wall, a cell block, a hospital and a building housing several small churches.  In addition to death row, which is isolated from the rest of the prison, roughly 4,500 inmates are housed inside the main prison.

The cell block we saw was identical to those portrayed in the movies: long rows of 5 x 9 foot cells, each with sliding bar doors, a metal toilet, sink, and two bunks, stacked five stories high.  Inmates who are able to get along with their colleagues share cells in the largest cell block.  There is a fairly large building called the adjustment center for inmates, including about 200 condemned murderers who are either too violent or too vulnerable to mix with other inmates.  Richard Allan Davis, for example, lives in the adjustment center because the other inmates hate child killers....

Anyone who believes that murderers in California are living comfortably on death row should take this tour.  It is a miserable existence.  I now understand why we receive letters from death row inmates asking for our help in expediting their executions. Legislators, bleeding hearts and judges who think that they are helping these murderers by preventing executions are hopelessly naive.  Those who think we should improve their living conditions are missing a critical point: these murderers have been sentenced to death for murdering innocent people.  Keeping them alive any longer than necessary to confirm their guilt is an injustice.

Finally, San Quentin is a very old, dilapidated facility sitting on 442 acres of the most valuable real estate in California.  It should be torn down and the property sold off.  Some fraction of the profit should be used to built a modern prison in a less expensive part of California.

DOJ review confirms government waste and mismanagement of BOP's handling of compassionate release

Public policy groups have long criticized the many terrible ways in with the federal Bureau of Prisons (BOP) administered the authority Congress provided it for the early release of prisoners in dire condition. Most notably, late last year, as discussed here, Human Rights Watch and Families Against Mandatory Minimums today released a major report criticizing the poor administration of the federal compassionate release program. Today, this big new report from the Justice Department's Office of Inspector General confirmed what critics have long said. Here are key excerpts from the final portion of the report:

We concluded that an effectively managed compassionate release program would result in cost savings for the BOP, as well as assist the BOP in managing its continually growing inmate population and the resulting capacity challenges it is facing.  We further found that such a program would likely have a relatively low rate of recidivism.  However, we found that the existing BOP compassionate release program is poorly managed and that its inconsistent and ad hoc implementation has likely resulted in potentially eligible inmates not being considered for release.  It has also likely resulted in terminally ill inmates dying before their requests for compassionate release were decided.  Problems with the program’s management are concentrated in four areas.

First, the BOP’s regulations and Program Statement do not establish appropriate medical and non-medical criteria for compassionate release consideration and do not adequately define “extraordinary and compelling” circumstances that might warrant release....

Second, the BOP has failed to put in place timeliness standards at each step of the review process....

Third, the BOP does not have procedures to inform inmates about the compassionate release program....

Fourth, the BOP does not have a system to track all compassionate release requests, the timeliness of the review process, or whether decisions made by institution and regional office staff are consistent with each other or with BOP policy....

The BOP also does not track the time it takes to process requests and has no formal or standard means of determining the date the review process begins.  Consequently, the BOP cannot monitor its process effectively.  This is especially problematic for inmates with terminal medical conditions, and we found that 13 percent of inmates whose requests had been approved for compassionate release by a Warden and Regional Director died before a decision was made by the BOP Director....

Further, the BOP does not maintain cost data associated with the custody and treatment of inmates who may be eligible for compassionate release.  Despite this lack of data, the BOP reported to Congress that it could save $3.2 million by expanding the compassionate release program....

Finally, we found the rate of recidivism for inmates approved and released through the existing compassionate release program to be low compared with the overall rate for federal inmates released into the community.

Some recent related posts:

• New report assails (lack of) compassionate release in federal system
• NY Times editorial laments lack of compassionate release

Is adjective "draconian" fitting for a proposed 13-year prison sentence for insider trader?

The question in the title of this post is prompted by this lengthy new Bloomberg article about the defense's sentencing submission in a high-profile, white-collar federal sentencing scheduled for later this month.  The Bloomberg article is headlined "Chiasson Seeks Leniency From U.S. Judge Citing Charitable Deeds," and here are excerpts:

Level Global Investors LP co-founder Anthony Chiasson, convicted of an insider-trading scheme that reaped $72 million, asked a judge to give him less time in prison than the 13-year term called for by U.S. sentencing guidelines.

Lawyers for Chiasson, 39, called such a sentence “draconian” in a, April 29 court filing. They urged U.S. District Judge Richard Sullivan in Manhattan to impose an unspecified shorter prison term, saying the alleged crimes were “aberrant” and that Chiasson has led an “exemplary life.”

Defense lawyers Greg Morvillo and Reed Weingarten cited Chiasson’s charitable work, including his effort to save his Catholic Jesuit high school in Portland, Maine, from closure, the creation of a scholarship program for his alma mater, Babson College, and his contributions to the Robin Hood Foundation and the Michael J. Fox Foundation.  “Anthony Chiasson is an extraordinary man,” Morvillo and Weingarten said in a memo to Sullivan. “But for the conduct that brings him before the court, Anthony has led an exemplary life.”

Chiasson, who began his career on Wall Street at Solomon Brothers and left SAC Capital Advisors LP to start the hedge fund, is scheduled to be sentenced May 13.  While U.S. court officials said that based on non-binding guidelines Chiasson should serve 121 to 157 months in prison, his lawyers said the appropriate range is 78 to 97 months.

A Manhattan federal jury in December found Chiasson guilty of five counts of securities fraud and convicted former Diamondback Capital Management LLC portfolio manager Todd Newman of one count of conspiracy and four counts of securities fraud.  Newman is scheduled to be sentenced May 2.  The U.S. alleged that the two portfolio managers were part of a “corrupt chain” of hedge-fund managers and analysts and insiders at technology companies who swapped and traded on illicit tips.  The U.S. said Level Global earned $68 million as a result of the insider trading based on material nonpublic information Chiasson received from Spyridon “Sam” Adondakis, a former Level Global analyst who worked for him. 

Defense lawyers estimated the fund earned $11.7 million as a result of trading in the stocks of Dell Inc. and Nvidia Corp. They disputed the government’s allegation that Chiasson based the transactions on illicit information and argued that federal sentencing guidelines allow prosecutors to inflate profits generated as a result of alleged crimes.  “There is only one reason the range is so high: the guidelines’ unrelenting predisposition to punish profit,” Morvillo and Weingarten said.

Morvillo and Weingarten also argued that Chiasson “should not be required to forfeit gains of any co-conspirators.” They said that the fund earned more than $21.6 million on trades by David Ganek, a Level Global co-founder who was ruled by Judge Sullivan to be an uncharged co-conspirator in the insider- trading scheme.  Adondakis, who pleaded guilty, testified that he didn’t tell Ganek about the source of his tips.  Ganek hasn’t been charged with wrongdoing....

Chiasson’s lawyers argued that he deserves a sentence comparable to others convicted of insider trading, including former Goldman Sachs Group Inc. director Rajat Gupta, who was ordered to serve two years in prison, and former Primary Global Research LLC executive James Fleishman and Michael Kimelman, the co-founder of Incremental Capital LLC, who were both given 30- month prison terms.  In January, a federal appeals court allowed Gupta to remain free while he fights his conviction.  Both Fleishman and Kimelman were recently released from prison.

The adjective draconian is often used now as a synonym for unduly harsh punishments, and I am sure I have sometimes used the term this way in various settings. But the faint-hearted linguistic originalist in me cannot help but note that arguably no prison terms should be really called draconian because incarceration was largely an unknown punishment in achient Greece and Draco the lawgiver was (in)famous for prescribing death as a punishment for both major and minor crimes. (With tongue-in-cheek, I suppose maybe a different (but less real) Draco could be expected to be a proponent of long prison terms, though I this this character probably realized he and his family only narrowly avoid imprisonment in Azkaban.)

Historical and literary references aside, these latest insider-trader, white-collar sentencing cases are surely worth watching closely.  My sense is that, especially with the economy seeming to be improving, there is diminishing public and social pressure to "throw the book" at wall-street types like Anthony Chiasson.  And yet, as the arguments in Chiasson's case highlight, every below-guideline sentence given in major white-collar cases provide a strong defense argument in later cases that only below-guideline sentences are proper pursuant to the sentencing commands of 3553(a).

"Is 100 Years a Life Sentence? Opinions Are Divided"

The title of this post is the headline of this notable new Sidebar column in the New York Times by Adam Liptak.  Hard-core sentencing fans should realize from the title that this is a story about one of the many doctrinal questions gurgling in lower courts three years after a landmark Eighth Amendment SCOTUS ruling.  Here are excerpts from the column:

If people who are too young to vote commit crimes short of murder, the Supreme Court said in 2010, they should not be sentenced to die in prison.  That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.

One is formal. The court may have meant only to bar sentences labeled “life without parole.”  On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life....

The other way to understand the decision is practical.  If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.

The lower courts are split on how to interpret the Graham decision, and the Supreme Court seems to be in no hurry to answer the question.  Last week, the justices turned away an appeal from Chaz Bunch of Ohio, who was convicted of kidnapping and raping a woman in a carjacking when he was 16.  He was sentenced to 89 years.  Even assuming he becomes eligible for early release, he will be 95 years old before he can leave prison.

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the sentence, even as it acknowledged that there were two ways to approach the matter.... Until the Supreme Court speaks, Judge Rogers wrote, there is no “clearly established federal law” to assist Mr. Bunch, who was challenging his state conviction in federal court.

Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.”  An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.

“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.

Mr. Henry is black and was born in 1989.  The life expectancy of black males born that year was 64, according to the Centers for Disease Control and Prevention. Life expectancy in prison is shorter than it is outside. Wherever the line is, then, a 76-year sentence would seem to be past it.  “Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.

That is a reasonable question.  But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one.  “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said.  It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said....

The number of juvenile offenders serving de facto life terms because of very long sentences is probably in the hundreds.  Some of the appeals court judges who have upheld such sentences did not sound enthusiastic about the task.  “Without any tools to work with, however, we can only apply Graham as it is written,” Judge Griffin wrote.  “If the Supreme Court has more in mind, it will have to say what that is.”

"Passive Pedophiles: Are child porn viewers less dangerous than we thought?"

The title of this post is the headline of this notable recent commentary by Emily Bazelon at Slate. Here are excerpts:

Making child pornography is abuse.  What about possessing it? As a group, these offenders — the ones who look but don’t abuse children to create new images — are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years.  Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”

It’s hard to feel concern for people (mostly men) who prowl the Internet for sexually abusive images of children, some of whom are very young.  Their crimes aren’t “victimless,” as defense lawyers sometimes argue.  These men create the market for new images.  They are the demand behind the supply.  I’ve written about how hard it is for women who were abused and photographed as girls to know that men are still viewing, and taking pleasure in, the record of their suffering — and about the victims’ efforts to win restitution from these men.

But the main reason Congress has upped the penalties for men who possess child pornography is the deep-seated belief that many of them physically abuse children and that they are highly likely to keep doing so because they can’t stop themselves.  Is that true? I’ve heard it so many times it’s hard to think otherwise.  Yet that premise is contested in a new 468-page report by the U.S. Sentencing Commission (the body Congress established to advise it about federal sentencing law).  The commission did its own research.  It says the federal sentencing scheme for child pornography offenses is out of date and argues that this leads to penalties that “are too severe for some offenders and too lenient for other offenders.”...

This isn’t an easy subject.  Punishments for sex offenders move only in one direction in this country — they get harsher.  But the Sentencing Commission’s critique should get a serious hearing.  Prison comes with a cost for taxpayers as well as the people it incarcerates.  And if there’s increasing hope for effective treatment, as the commission suggests, investing in it could save kids....

Maybe men convicted of possessing child pornography probably reoffend more than the researchers can measure because they don’t tell.  Surely they commit more new crimes than the number they get arrested for, as the commission is careful to say.  The question is how many more.  Do they really pose a different risk in this regard than other criminals do?  The Justice Department “takes issue” with the commission’s conclusions about recidivism and the link between viewing pornography of children and molesting them. These questions won’t be resolved any time soon.  In the meantime, Congress could fix the aspects of child pornography sentencing that both DOJ and the Sentencing Commission see as broken.

Current NRA president vocally supporting (liberal? conservative?) mandatory minimum sentencing reform in Oregon

David Keene, a former chairman of the American Conservative Union who is now serving as president of the National Rifle Association, has this notable new commentary piece in the Salem Statesman Journal promoting sentencing reform in the Beaver State. Here are excerpts:

If you are an Oregon conservative, I hope you’re asking the same question the state’s bipartisan Commission on Public Safety asked: “Are taxpayers getting the most from the money we spend on public safety?”  Oregon has been a leader in effective corrections policy and boasts one of the lowest recidivism rates in the nation.

But the state is trending in the wrong direction when it comes to corrections spending, and much of the growth is due to mandatory minimum sentences that violate conservative principles.

Oregon criminal justice agencies predict that the state’s prison population will grow significantly over the next 10 years, and that the growth will be composed mostly of nonviolent offenders. The expected inmate surge is projected to cost Oregon taxpayers $600 million, on top of the biennial corrections budget of $1.3 billion.

The time is ripe for comprehensive criminal justice reform — not only supported by Oregon conservatives, but led by Oregon conservatives.

We believe all government spending programs need to be put to the cost-benefit test, and criminal justice is no exception.  Oregon has done a good job with this in the past but is slipping, by locking up more offenders who could be held accountable with shorter sentences followed by more effective, less expensive local supervision programs....

As conservatives, we also believe that a key to protecting our freedom is maintaining the separation of powers between the branches of government.  Such protection is lost when so-called “mandatory minimum” sentences force the judicial branch to impose broad-brush responses to nuanced problems.  Mandatory minimums were adopted in response to the abuses of a few judges decades ago, but have proven a blunt, costly and constitutionally problematic one-size-fits-all solution begging for reform.

The commission’s recommendations make modest prospective changes to mandatory minimums under Measures 11 and 57.  These measures have given prosecutors unchecked power to determine sentences by way of charging decisions, regardless of the facts of the case, or the individual’s history and likelihood of re-offending.

The reform package now before the Legislature would restore the constitutional role of the courts for three of the 22 offenses covered by Measure 11. Judges could still impose the stiffest penalties where necessary, but would regain discretion in sentencing appropriate offenders to shorter prison terms or less expensive, more intensive community supervision.

These sensible reforms will restore some checks and balances between prosecutors and the courts, allow prison resources to be focused on serious violent offenders and let taxpayers know that their public safety dollars are being spent more wisely.

A data-based exploration of prison growth and the drug war

I am very pleased to see that John Pfaff is guest-blogging over at PrawfsBlawg about the modern growth in US prison populations and the role that the drug war may or may not have played in this story.  Here are his first three posts in a series that is a must-read for a number of reasons:

• Hunting Zombies: The War on Drugs and Prison Growth
• Setting the Stage: The Explosion in Prison Populations
• Some More Evidence Against the War on Drugs Hypothesis