Thursday, October 31, 2013
New report (from small government groups) urges Louisiana to reform its toughest sentencing lawsAs reported in this AP article, headlined "New study calls on La. to change sentencing laws," a notable group of libertarian-leaning organizations has produced a big report urging the state with the highest rate of incarceration to significantly scale back its most extreme sentencing laws. Here are the basics:
The full 36-page report, titled "Smart on Sentencing, Smart on Crime: An Argument for Reforming Louisiana’s Determinate Sentencing Laws," is available at this link. The reports executive summary can be accessed here, and it gets started this way:
Louisiana should shrink its prison population and costs by repealing minimum mandatory sentences for nonviolent crimes, said a study released Tuesday by several right-leaning policy organizations. The groups suggest that Louisiana could maintain public safety while also reducing a per capita incarceration rate that is the highest in the nation, by making changes to the habitual offender law and locking up fewer people for nonviolent offenses.
The Reason Foundation, a libertarian organization based in California, made the suggestions along with the Pelican Institute for Public Policy, a Louisiana-based conservative organization, and the Texas Public Policy Foundation. "Harsh, unfair sentences are putting too many Louisianans in jail for far too long, and at a terrible cost to taxpayers and society," Julian Morris, vice president of Reason Foundation and co-author of the study, said in a statement.
Nonviolent offenders account for the majority of the state's inmates, the report says. By shrinking its prison population, the study says Louisiana could invest more money in rehabilitation programs for those who remain in jail.
Gov. Bobby Jindal's administration said it has asked the state's sentencing commission to review the report's recommendations. Any changes would need approval from state lawmakers.
Over the past several decades, Louisiana legislators have passed a number of determinate sentencing laws aimed at reducing crime and incapacitating certain types of offenders. Because these laws have been disproportionately applied to nonviolent crimes, nonviolent offenders now account for the majority of inmates and admissions to prison in the state. This has produced a number of unfortunate consequences, such as an increase in the state’s prison population from 21,007 in 1992 to 39,709 in 2011 and a $315 million increase in correction expenditures during the same time period, from $442.3 million (in 2011 dollars) in 1992 to $757.4 million in 2011. Meanwhile, there is little evidence that the laws have done anything to reduce Louisiana’s violent crime rate, which remains considerably above both the national average and the rates in its neighboring states. Today, Louisiana has the highest incarceration rate in the country, with 868 of every 100,000 of its citizens in prison.
Louisiana’s citizens could benefit considerably from changes to the way in which convicted criminals are sentenced. As things stand, nonviolent offenders who pose little or no threat to society are routinely sentenced to long terms in prison with no opportunity for parole, probation or suspension of sentence. In most cases, this is a direct result of the state’s determinate sentencing laws. These prisoners consume disproportionate amounts of Louisiana’s scarce correctional resources, which could be better utilized to ensure that violent criminals are more effectively kept behind bars.
Wednesday, October 30, 2013
"Gimme Shelter: Mass Incarceration and the Criminology of the Housing Boom"The title of this post is the title of this intriguing new short paper by the always intriguing Jonathan Simon from a book intriguingly titled "Architecture and Justice." Here is the abstract:
Mostly when we think about the intersection of architecture and justice we think of the connections between buildings, like courts, prisons, jails, and the ideas, ideologies, and policies that shape both the scale and aspirations of these buildings. Here I want to propose a different kind of connection. Just as buildings belong to a ‘built environment’, and policies emerge not directly from interest groups but out of broader ‘political rationalities’. We can learn something by reflecting on how these influence each other.
Do lead exposure realities continue to best explain modern crime-rate realities?Every time I see reports new reports about crime rates in the United States or in certain regions, I cannot avoid continuing to think about the interesting research connecting crime rates and childhood exposure to lead. Against that backdrop, I was pleased that Rick Nevin, a Senior Economist at ICF International, sent me this lengthy e-mail discussing his research and writing on this topic:
I want to thank you for yourJanuary blog about the Mother Jones article discussing my lead and crime research. I also want to let you know that I have several posts at www.ricknevin.com that update my earlier analyses, and are closely related to recent posts:Your October 28 post about the NYT editorial on "Why Prisons Are Shrinking" is related to my paper on The Plummeting USA Incarceration Rate showing that the recent incarceration rate decline reflects much steeper declines for younger adults (ages 18-30) born across years of declining lead exposure, partly offset by rising incarceration rates for older adults born across years of pandemic lead poisoning.
Your October post on NYC murder rates is directly related to my post on Why is the Murder Rate Lower in New York City?You had two posts in October about 2012 FBI and BJS data showing relatively stable crime rates related to my recent Lead Poisoning and Juvenile Crime Update paper showing that juvenile arrest rates are falling to record lows since 1980, reflecting ongoing declines in lead exposure over the 1990s, while arrest rates since 1980 have increased for older adults. This paper also updates my crime trend graphs for Britain and Canada showing the predictive power of earlier lead exposure trends, with the same relationship between lead exposure and crime trends and the same shifts in arrest rates by age observed in the USA. I also have a recent paper showing how lead exposure trends can explain Juvenile Arrest Rate Trends by Race and Gender
I also have a post on Lead Exposure and Murder in Latin America and a longer paper called The Answer is Lead Poisoning that updates and integrates findings from several of my related peer-reviewed studies. All of the questions at The Questions link to this same paper.
I know the Kevin Drum story in Mother Jones seemed new and speculative to most readers, but there is actually a large body of research now supporting this relationship, and I have links to many peer-reviewed studies in my posted papers. I don’t know of any other criminology theory that can explain both the rise and fall of crime in so many places -- and different trends by age, race, and gender -- or any theory that has so accurately predicted ongoing crime trends in so many different places for so many years. I hope you will consider bringing some of this information to a broader audience through your blog, and I would welcome your use of any text or graphs from my posted papers.
Some recent related posts:
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Uh-oh: BJS reporting significant spike up in violent and property crime for 2012
- FBI releases 2012 crime statistics showing stability in relatively low crime rates
- New National Academy of Sciences effort seeking to unpack the crime decline
Tuesday, October 29, 2013
Detailing new state reform efforts to ensure kids get treated as kids by criminal justice systemToday's New York Times has this big story about modern juvenile justice reforms under the headline "A Bid to Keep Youths Out of Adult Prisons." The piece is mostly focused on a recent reform in Colorado, but here is an excerpt discussing the national trends:
In a reversal of the tough-on-crime legislation that swept the nation in the late 1980s and ’90s, nearly half of the states have now enacted one or more laws that nudge more young offenders into the juvenile justice system, divert them from being automatically tried as adults and keep them from being placed in adult jails and prisons.
Sarah Brown, a director of the criminal justice program at the National Conference of State Legislatures, said the shift stems from a decline in juvenile crime, concerns about the costs of adult prisons and a growing understanding of adolescent brain development showing that the young have a greater potential for rehabilitation.
The Supreme Court has increasingly taken neurological research into account on juvenile justice issues — most recently in a 2012 case, Miller v. Alabama, which barred mandatory life sentences without the possibility of parole for those who committed their crimes before they turned 18. Justice Elena Kagan’s majority opinion in the case cited adolescents’ “diminished culpability and heightened capacity for change.”
Eleven states, including Pennsylvania, Texas and Virginia, have passed laws that keep most young offenders out of adult jails and prisons. Eight states, including California, Missouri and Washington, passed laws that alter mandatory minimum sentencing for young offenders charged as adults. Four — Connecticut, Illinois, Massachusetts and Mississippi — have broadened the powers of their juvenile courts, enabling them to take cases of juveniles who would have automatically been tried as adults. And 12 states, including Arizona, Nevada, Ohio and Utah, have adjusted the laws governing the transfer of young offenders into the adult system in ways that make it more likely that they will be tried as juveniles.
Many of these bills have passed with bipartisan support in states both Republican and Democratic and with the testimony of the young who are affected and their families, said Liz Ryan, the president of Campaign for Youth Justice, which recently issued a report on the shifts.
October 29, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack
Monday, October 28, 2013
NY Times editorial (poorly) urges better assessments of "Why Prisons Are Shrinking"Today's New York Times has this new editorial headlined "Why Prisons Are Shrinking" making these important points:
The mandatory sentencing movement that swept the United States beginning in the 1970s drove the state prison population up from less than 200,000 to about 1.4 million today and made corrections the second-fastest-growing state expense after Medicaid. But bipartisan sentencing reforms in a growing number of states are starting to reverse that trend — causing the prison population to decline by about 3.8 percent since 2009.
Underlying the state reforms is a relatively new and more sophisticated way of using data about the offender — including criminal history, drug abuse and instances of antisocial behavior — to assess the likelihood of that individual’s committing a new crime. And by examining arrest, sentencing and probation data, the states can revise policies that might be driving people back into prison unnecessarily....
Despite the merits of a risk-assessment approach, a report issued earlier this year by the Council of State Governments Justice Center said that many states are still flying blind, because they don’t have the resources to gather data. Moreover, the study noted, handling high-risk and low-risk offenders in the same way is a big mistake, because “low risk individuals have an increased likelihood of recidivism when they are oversupervised or receive treatment or services in the same programs as medium- and high-risk individuals.”
There are proven ways to move away from discredited, ruinously expensive corrections policies. More states need to adopt these approaches.
I am fully supportive of the ideas and themes in this editorial, but a lot more could and should be said at this dynamic moment of sentencing and corrections reform. For example, in the wake of the lastest crime data indicating a spike up in national violent and property crimes (discussed here), this editorial should be stressing the need and importance of a careful state-by-state examination of where crime is going up and whether new (and still emerging) data on changes imprisonment rates and crimes rates provide critical new lessons concerning what we can now conclude about the connections between crime and punishment.
In addition, I think this editorial (and other advocacy concerning these critical issues) ought to be urging sustained examination and analysis of a handful of big jurisdictions in which stories of crime and punishment have been especially dynamic over the last few years. Specifically, I strongly believe that the big states of California, Illinois, New York and Texas, all of which have diverse urban and rural regions and all of which have changes its sentencing laws in diverse ways in recent years, should be a special focal point for sorting through and fairly assessing "proven ways to move away from discredited, ruinously expensive corrections policies."
Last but not least, federal sentencing realities and reform discussions — as well as the interesting "new politics" of criminal justce reform — should be brought into these discussions ASAP. The federal prison population continues to grow despite the reforms ushered in by the Fair Sentencing Act, and it is now unclear whether or when any additional proposed federal sentencing reforms will get through Congress and if any of these reforms will effectively incorporate "proven ways to move away from discredited, ruinously expensive corrections policies." More broadly, I think this editorial (and other advocacy concerning these critical issues) should be urging Congress — and especially those eager to support state rights and state-level solutions — to help provide states with the "the resources to gather data" and build on successful reform efforts. (For example, I have long believe the feds ought to be conducting a kind of "race to the top" federal funding competition to motivate the better development and analysis of state-level crime and punishment data.)
Just a few of many recent related posts:
- Uh-oh: BJS reporting significant spike up in violent and property crime for 2012
- FBI releases 2012 crime statistics showing stability in relatively low crime rates
- New National Academy of Sciences effort seeking to unpack the crime decline
- "Conservatives latch onto prison reform"
- Alabama rolls out new presumptive sentencing guidelines (which prosecutors mostly oppose)
- Guess which state has the highest rate of incarceration of black men in the entire US?
- "Three myths about conservatives and criminal justice" ... which are really stories about (slowly) changing modern realities
- Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
October 28, 2013 in National and State Crime Data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack
Thursday, October 24, 2013
Michigan Senate passes (prospective-only) Miller fix proposalAs reported in this local article, headlined "Michigan juvenile lifers: Senate moves to fix unconstitutional law, not offer resentencing," the Michigan legislature is finally making some progress on reforming unconstitutional aspects of its juvenile sentencing scheme. Here are the details:
The Michigan Senate on Thursday unanimously approved legislation that would allow some minors convicted of murder to avoid life in prison -- unless they are already behind bars and have exhausted appeal.
Senate Bills 318 and 319, now headed to the House for consideration, would update Michigan laws that currently allow mandatory life sentences without the possibility of parole for offenders who were under 18 at the time of their crime....
Under the Senate proposal, prosecutors could still seek life sentences without the possibility of parole for minors. But judges, after considering aggravating and mitigating circumstances, would be given new discretion to impose a prison term of between 25 and 60 years. With good behavior, an individual convicted at 15 could have the chance to request a parole hearing and make their case for release when they reached 40.
The bills would not apply retroactively, meaning that "juvenile lifers" already behind bars and out of appeals would not have the opportunity for parole. Michigan is home to more than 360 juvenile lifers, the second-highest total in the nation.
State Sen. Bert Johnson, D-Detroit, proposed an amendment that would have added retroactivity to the legislation, but sponsoring Sen. Rick Jones, R-Grand Ledge, argued against it, and the amendment was shot down. "The bill brings us into compliance with the Supreme court ruling," said Jones. "It does not go into retroactivity because they didn't address that."
Advocates say that juvenile lifers deserve the same opportunities for release as future convicts, but victim families have argued that opening old cases would also open old wounds.
The Supreme Court did not address the retroactivity question, and state and federal courts have offered different answers. U.S. District Court Judge John Corbet O'Meara has said Michigan juvenile lifers deserve a "fair and meaningful possibility of parole," but he has not yet determined what that possibility should look like.
State Rep. Joe Haveman, R-Holland, has introduced House measures that include retroactivity for juvenile lifers. But those bills, the subjects of an emotional hearing in August and opposition from Attorney General Bill Schuette, have not advanced out of committee.
October 24, 2013 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, October 22, 2013
In dissent, Judge Bright laments Eighth Circuit affirmance of 115 months in prison PLUS two life sentences for repeat bank robber
Dissenting from a panel affirmance today in US v. Scott, No. 12-3131 (8th Cir. Oct. 22, 2013) (available here), Judge Bright expressed these (and other) notable points about what he clearly considers an unreasonable sentence:
The sentence of 115 months in prison plus two life sentences imposed on Michael Scott by the district court represents a prime example of what may be called “gilding the lily.” It is unreasonable and excessive. For all practical purposes, the roughly 39-year mandatory minimum sentence in this case — for a defendant who is 56 at the time of sentencing — would have itself amounted to a sentence of life imprisonment. I ask what more is required. The sentence in this case is unreasonable and simply represents an effort to send a message of being tough on crime. But that’s not the purpose of a sentence....
As an appellate judge, I add another observation. The federal courts are now entering a new era of sentencing. Eric H. Holder, Jr., the United States Attorney General, has recently called for a new approach to criminal sentencing in the federal courts. The Attorney General emphasized the harsh reality that, as it stands today, “our system is in too many respects broken.” Eric Holder, Attorney General of the United States, United States Department of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html. Indeed, I agree with the Attorney General that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Id.
The clearly excessive sentence imposed in this case illustrates very graphically the broken criminal justice system in the federal courts. Here, had Scott received a 39-year sentence — which the parties agreed was the mandatory minimum sentence in this case — he would be in prison until he was 95 years old. Yet the district court felt the need to impose a 115-month sentence followed by two life sentences. The district court justified the sentence by emphasizing Scott’s “criminal history and the need to protect the public.” But just how much protection does the public need from a 95- year-old man — assuming Scott were to live that long? According to the National Vital Statistics Reports, at the time he was sentenced, Scott was expected to live for another 27 years, or until he is about 83 years old.... A 39-year sentence would have been more than enough to serve as a deterrent and an appropriate punishment for a series of bank robberies, during which no one fired a gun and no one was physically injured. But instead, the district court imposed a substantially unreasonable sentence that is greater than necessary to accomplish the goals of sentencing. See 18 U.S.C. § 3553(a). This sentence is not justified and is improper and I will not affirm a sentence that is obviously too harsh and imposed simply to appear tough on crime.
I would reverse and remand this case with instruction to the district court to impose a sentence no greater than a 39-year sentence.
"Can Obamacare Reduce the Cost of Corrections?"The question in the title of this post is the headline of this intriguing new piece by Graham Kates over at The Crime Report. Here are excerpts:
The Affordable Care Act (ACA) has the potential to dramatically reduce costs associated with incarceration and prisoner re-entry, a U.S. Department of Justice (DOJ) official said today at a conference on health care and corrections at the John Jay College of Criminal Justice in New York City.
Local and federal governments spend about $80 billion annually on corrections — about $35,000 per inmate, but Amy Solomon, an advisor to the DOJ’s Office of Justice Programs, noted that those receiving continuing healthcare beyond incarceration are significantly less likely to be re-arrested.
Beginning in 2014, Americans who earn up to 133 percent of the federal poverty line and reside in 25 states that have agreed to a Medicaid expansion will qualify for access to the government insurance program. Those who earn up to four times the poverty line will qualify for federally subsidized insurance. For impoverished former inmates re-entering their communities, Solomon said that could mean their first opportunities to pursue healthcare beyond bars. “Continuity of care is essential if we want to see health and safety benefits,” Solomon said....
And for communities struggling with the ravages of addiction, mental illness and other issues often relegated to the corrections system, it could mean opportunities to find less costly alternatives to incarceration. “I hope that judges will have viable community-based treatment options, so they won’t feel compelled to lock up someone with mental health issues,” Solomon said.
The key to diverting would-be inmates is separating low-risk offenders from those who are a high-risk, according to Elizabeth Glazer, former deputy secretary for public safety at the New York State Office of Criminal Justice Services. In New York State, 8 percent of offenders account for 80 percent of crime, Glazer said at the conference....
But for both low- and high-risk inmates currently in prison, the task of meeting healthcare needs upon release can be tricky. Few continue care with the provider they had in prison and healthcare often drops off entirely. New York recently unveiled a program called Medicaid Health Homes, which is designed to facilitate communication between all of an individual’s caregivers. For inmates re-entering local communities after prison stays, Glazer said the result will be an increased continuity of care. “Done right, fewer people are going back to jail and prison, and that’s sort of where the bigger incentive is,” Glazer said.
Monday, October 21, 2013
"Federal judges extend Gov. Brown's prison crowding deadline -- again"The title of this post is the headline of this afternoon report from the Los Angeles Times concerning the latest development in the long-running dickering over how California is dealing with a federal court order to reduce its prison population. Here are the details:
A panel of federal judges has given Gov. Jerry Brown an additional 28 days to come up with long-term solutions to the state's prison crowding problems.
In an order issued Monday, the judges moved the deadline for California to remove about 9,600 inmates from state lockups to Feb. 24, adding almost a month to their last deadline of Jan. 27. It previously was Dec. 31. They also ordered the state to continue negotiating for solutions with lawyers representing California's 134,000 prisoners.
Monday was the deadline for a state appeals judge, Peter Siggins, who was assigned to mediate those confidential talks, to report on the two sides’ progress. Based on Siggins' confidential update and recommendations, the federal panel ordered the negotiations to continue, with another update due Nov. 18, the jurists said in their signed order. The judges extended their first deadline and ordered the discussions after Brown asked them last month for three more years in which to reduce inmate numbers.
Monday, October 14, 2013
Florida legislature told to "End confusion on juvenile sentencing"The title of this post is drawn from the headline of this effective recent editorial from the Tampa Bay Times, which makes these points about the post-Miller mess in Florida:
By reinstating the original sentence of life in prison without parole for Nicholas Lindsey on Friday, a Pinellas-Pasco Circuit Court judge entered muddy legal waters. Lindsey and other juveniles convicted of murder continue to be sentenced under a state statute that is now unconstitutional as applied to them. There is no clear road map for judges, because the Florida Legislature has failed to bring state law into conformance with a U.S. Supreme Court ruling. Lindsey's reconsidered sentence for shooting and killing a St. Petersburg police officer will likely be challenged, wasting resources and prolonging the pain for the victim's family. Had the Legislature acted responsibly, the courts would not be operating in the dark and creating law as they go.
State courts are puzzling through what to do with juveniles who were convicted of first-degree murder and sentenced under state law that provides for a death sentence or life in prison without the possibility of parole. Minors cannot be sentenced to death because of a 2005 U.S. Supreme Court ruling. Last year, the court ruled that a life sentence without parole cannot be mandatory for juvenile offenders — people who committed their crime before reaching 18 years old. The court said that in light of a young person's lack of maturity and capacity to change as he grows up, courts must be permitted to take these circumstances into account in sentencing. Florida law gives judges no discretion to impose a lesser sentence....
Other circuit court judges have ruled inconsistently. A judge in Hillsborough County recently resentenced Amer Ejak, now 20 years old, to life without parole for clubbing and strangling a man in 2009 — the same sentence Ejak originally received. But compare that to a teen murderer in Pasco County who was sentenced last month to life in prison with the possibility of parole after 25 years, even though state law makes no provision for it. An August ruling by the 5th District Court of Appeal in Daytona Beach said that the only legal sentence for juveniles guilty of capital murder is life with the possibility of parole after 25 years, but that decision is only controlling precedent for part of the state.
The Florida Legislature surely knew that by not rewriting state law to reflect the U.S. Supreme Court ruling and giving judges the opportunity to impose lesser sentences it would cause confusion and result in disparate treatment of juvenile offenders across the state. Lawmakers shifted their responsibility to the courts. The Florida Supreme Court will have to bring clarity to the law. In the meantime, trial courts faced with resentencing some of Florida's more than 200 inmates who were convicted and sentenced on murder charges should follow the U.S. Supreme Court's ruling as best they can.
October 14, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, October 13, 2013
"Prison Accountability and Performance Measures"The title of this post is the title of this notable new paper by Alexander Volokh now available via SSRN. Here is the abstract:
A few decades of comparative studies of public vs. private performance have failed to give a strong edge to either sector in terms of quality. That supposed market incentives haven’t delivered spectacular results is unsurprising, since by and large market incentives haven’t been allowed to work: outcomes are rarely measured and are even more rarely made the basis of compensation, and prison providers are rarely given substantial flexibility to experiment with alternative models.
This Article argues that performance measures should be implemented more widely in evaluating prisons. Implementing performance measures would advance our knowledge of which sector does a better job, facilitate a regime of competitive neutrality between the public and private sectors, promote greater clarity about the goals of prisons, and, perhaps most importantly, allow the use of performance-based contracts.
Performance measures and performance-based contracts have their critiques, for instance: (1) the theoretical impossibility of knowing the proper prices, (2) the ways they would change the composition of the industry, for instance by reducing public-interestedness or discouraging risk-averse providers, and (3) potentially undesirable strategic behavior that would result, for instance manipulation in the choice of goals, distortion of effort away from hard-to-measure dimensions or away from hard-to-serve inmates, or outright falsification of the numbers. I argue that these concerns are serious but aren’t so serious as to preclude substantial further experimentation.
Thursday, October 10, 2013
US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleasRegular readers have of late become familiar with the remarkable series of opinions being issued by US District Judge John Gleeson in which he forcefully expresses his deep concerns with how federal prosecutors can and will use mandatory minimum sentencing provisions to distort the operation of the federal criminal justice system. Judge Gleeson's latest opinion in this series was handed down yesterday in US v. Kupa, No. 11-CR-345 (E.D.N.Y. Oct. 9, 2013) (available for download below), and its full 60 pages are must-read material for federal sentencing fans. The opinion can not be easily summarized, but its conclusion provide a flavor of what comes before:
Some prior posts noting Judge Gleeson's recent sentencing opinions:
I sentenced Lulzim Kupa to a 132-month term of imprisonment for a variety of reasons. The most important by far was because I could, that is, I was not required to impose a sentence of life in prison for his nonviolent drug trafficking offense. And the only reason for that is Kupa buckled under the enormous pressure that looming sentence placed on him. The prior felony information ushered that 800-pound gorilla into the case at the eleventh hour and it took the case over. Once it was filed, everything that followed was done with all eyes on the draconian sentence that a jury’s verdict of guilty would require me to impose. It snuffed out an imminent trial at which Kupa wanted to do what our Constitution and Bill of Rights guarantee him: hold the government to its burden of proving him guilty beyond a reasonable doubt. And indeed the desire to snuff out that trial was reason the sole reason the prosecutor filed it.
Throughout, I have assumed that both the drug offense mandatory minimums and the onerous enhancements triggered by prior felony informations are here to stay, at least in some form. After all, as a circuit judge wrote in 2009, “[t]he Judicial Conference of the United States for almost 20 years, and the Sentencing Commission for almost 10 years, have pleaded with the judiciary committees of Congress to do something about the serious injustices that these long, mandatory minimum sentences impose -- to no avail.” [footnote citing Gonzalez-Ramirez, 561 F.3d at 31 (Merritt, J., concurring).] I have also assumed the constitutionality of using prior felony informations as bludgeons in federal prosecutors’ efforts to get defendants to plead guilty. But arguing that it is not illegal for prosecutors to use prior felony informations to produce the guilty pleas and sentences described above is no way to defend such a wayward policy. Attorney General Holder’s admirable leadership toward sentencing reform should lead him to refocus his attention on prior felony informations. If DOJ cannot exercise its power to invoke recidivist enhancements in drug trafficking cases less destructively and less brutally, it doesn’t deserve to have the power at all.
- Former US Attorney, and now District Judge, makes pitch to AG Holder on mandatory minimum charging
- Former federal prosecutor urges "Mandatory minimums for kingpins only"
- US District Judge Gleeson assails drug guidelines in another potent opinon
October 10, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (32) | TrackBack
Wednesday, October 09, 2013
"Anormative Conceptions of Punishment and Humanitarian Ideals"The title of this post is the title of this notable new paper available via SSRN authored by the prolific and profound Michael Tonry. Here is the abstract:
For the past quarter century, scholars have identified and attempted to explain large differences and changes over time in countries’ penal policies as expressed in their imprisonment rates. Explanations differ, and imprisonment rates change, sometimes radically, but one thing has remained the same. The countries atop the rankings have consistently included the United States, South Africa, Russia, the Baltics, Ukraine, and Belarus.
What distinguishes them, and more recently England and Wales, which has led the Western European league tables for two decades, is that they are countries in which punishment discourses, policies, and practices take little account of the interests of offenders. "There but for the grace of God…" empathy is largely absent. Mainstream retributive and consequentialist theories of punishment appear to have little influence. Policies and practices, and the implicit punishment theory might best be described as anormative.
District Judge Graham gets in a final word on child porn sentencing despite Sixth Circuit reversals
I am about to head off line for the bulk of the day in order to head down to the Queen City in order to watch the full en banc Sixth Circuit consider crack sentencing modification rules in Blewett. (I hope late tonight to report on what I see in the argument, perhaps with a prediction as to the outcome.)
For my last word before I go to watch the Sixth Circuit in action, I am pleased to post a recent opinion by US District Judge James Graham that provides its own kind of last word about the Sixth Circuit's recent sentencing work in a child pornography downloading case that the Sixth Circuit took out of Judge Graham's hands. The opinion in US v. Childs (which can be downloaded below) is relatively brief, and it starts and winds down this way:
This is a disturbing case. Defendant is charged with one count of possession of child pornography. I am called upon to decide whether to accept a plea agreement which requires me to impose a sentence which is roughly only one sixth of the lowest sentence recommended by the United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”). This is disturbing not because I disagree with the sentence, but because I am convinced that under the law of the Sixth Circuit announced in United States v. Bistline, 665 F.3d 758, 761-64 (6th Cir. 2012)(“Bistline I”), I would not have been free to select such a sentence without the government’s agreement....
The Sixth Circuit's decision in Bistline I blurs the distinction between mandatory and advisory by requiring more deference to congressionally created guidelines than that accorded to Sentencing Commission-created guidelines. Just what implications this might have under Apprendi was not discussed by the Sixth Circuit.
There have been some very important developments since the Sixth Circuit's decision in Bistline I. In its Report to Congress: Federal Child Pornography Offenses (Dec. 2012), www.ussc.gov/Legislative_ and_ Public_ Affairs/ Congressional_ Testimony_ and_ Reports/ Sex_ Offense_ Topics/ 201212_ Federal_ Child_ Pornography_ Offenses/ (visited October 1, 2013), the Sentencing Commission publicly declared that the existing guidelines for child pornography offenses were flawed and in need of repair. In a letter to Judge Patti B. Saris, Chair of the Commission, dated March 5, 2013, Anne Gannon, National Coordinator for Child Exploitation Prevention and Interdiction, responded to the Commission’s report on behalf of the Department of Justice. See Letter from Anne Gannon, Nat’l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep’t of Justice, to Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (Mar. 5, 2013), available at http://sentencing.typepad.com/files/doj-letter-to-ussc-on-cpreport. pdf (visited Sept. 30, 2013). The Department expressed its agreement with many of the Commission’s conclusions, noting that the report “reflects a significant amount of detailed research and thoughtful analysis" and thanking the Commission for "undertaking the important task of laying the foundation for reforming sentencing practices involving non-production child pornography offenses." Id. at 1.
Nevertheless, on June 27, 2013, four months after the Commission’s report, the Sixth Circuit filed its opinion in United States v. Bistline, 720 F.3d 631 (6th Cir. 2013)(“Bistline II”) reaffirming it's holding in Bistline I, with no mention whatsoever of the Commission’s findings or the extent of the Department of Justice's concurrence. As a judge who has regularly sat on the Sixth Circuit Court of Appeals by designation for more than two decades, I find this inexplicable. Many of the Commission’s criticisms of the child pornography guidelines, including criticisms which the Justice Department concurred in, are identical to the ones I expressed in my sentencing colloquy in Mr. Bistline’s case. The Sentencing Commission’s criticism of the crack cocaine guidelines was cited as a reason for diminished deference for those guidelines in Kimbrough, and that part of the Kimbrough decision was cited by the Sixth Circuit in Bistline I to explain why the Supreme Court decided that the crack cocaine guidelines were entitled to less deference. See Bistline I, 665 F.3d at 763. In light of the fact that, in the interim, the Commission had spoken on the child pornography guidelines, why would the court not revisit the applicability of Kimbrough when it decided Bistline II? It seems clear to me that under Kimbrough, the child pornography guidelines should be accorded less, not more, deference than others.
It is a tragic irony that sentencing judges in the Sixth Circuit are required to give enhanced deference to guidelines which the independent Commission, relied upon so heavily by the Supreme Court in upholding the Guidelines, has now declared flawed and in need of reform. It is even more tragic that offenders in this circuit will have to rely on prosecutorial discretion, not judicial discretion, in order to receive a just and fair sentence in these cases.
October 9, 2013 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Tuesday, October 08, 2013
"Native American Sentencing Disparity and the Case of Dana Deegan"
The title of this post is the title of this notable event taking place next week at the University of North Dakota School of Law. Long-time readers may vaguely recall this 2010 post about the Eighth Circuit panel's split ruling affirming the defendant's within-guideline sentence in US v. Deegan, No. 08-2299 (8th Cir. May 25, 2010) (available here). I called the Deegan case remarkable in part because of the criminal offense (second-degree murder of a newborn due to neglect), in part because of the offender (the newborn's mother, a Native American who has suffered a long history of physical and sexual abuse), and in part because of a must-read 50+ page dissent by Judge Myron Bright.
I am very pleased that the (under-explored) sentencing issues spotlighted by one case and one dissent has now prompted a full panel discussion. And I am very sad that I am unable to skip out on all my classes to head out to Grand Forks for this event; the topics and speakers looks like it would be worth the trip:
Schedule of Speakers:
Overview of the Disparity Problem and its Origins
- BJ Jones, Director, Tribal Judicial Institute & Chief Justice of the Turtle Mountain Tribal Court of Appeals
- Chris Ironroad, Associate Attorney at Sonosky, Chambers, Sachse, Endreson & Perry, LLP
Impact of Disparity on Native Americans - The Case of Dana Deegan
- Judge Myron H. Bright, United States Court of Appeals for the Eighth Circuit
- Judge David E. Ackerson, St. Louis County, Minnesota
- Sarah Deer, Assistant Professor of Law, William Mitchell College of Law
- Marmie Jotter, sister of Dana Deegan and licensed psychotherapist
How the Guidelines Unfairly Treat Domestic Violence Victims
- Radmilla Cody - Ms. Navajo Nation 1997-98 and recording artist
What is the "right" sentencing range for aggravated vehicular homicide as a result of drunk driving?The question in the title of this post is prompted by this recent lengthy article from my local Columbus Dispatch, and it is a question perhaps likely be be broadly in the run-up to the scheduled sentencing next week here in Ohio in a a high-profile drunk driving homicide case. The article is headlined "Vehicular homicide sentences not harsh enough, say victims’ families: Others say defendant’s history, remorse should count," and here are excerpts:
When she learned that the drunken driver who killed her 15-year-old son could get no more than two to eight years in prison for aggravated vehicular homicide, Ellenna Houser was shocked....
Cathy Humphries, who struck Austin Houser with her pickup truck a year ago as he walked on a rural route in Logan County and left him there to die, was sentenced in May to eight years in prison — six years for aggravated vehicular homicide and two years for leaving the scene. “Drug dealers get more time than that,” Houser said.
Columbus defense attorney Brad Koffel gets a different reaction to the potential sentence when he speaks to the family members of a client charged with killing someone while driving drunk. “They find it harsh,” he said. “They’ll say, ‘He has no prior record. This wasn’t intentional.’ ”
But Koffel understands that the families of the victims, and those prosecuting such cases, have a different attitude. “If I were the prosecutor, representing the state of Ohio, I would find eight years to be wholly insufficient,” he said. Finding a balance between those positions at sentencing is one of the toughest jobs a judge will ever face, Koffel said.
Franklin County Common Pleas Judge David W. Fais will be in that spot on Oct. 16 when he announces a sentence in an aggravated vehicular homicide case that is drawing national attention.
Matthew Cordle, 22, of Powell, pleaded guilty last month to the charge after posting an online confession that went viral. He admitted that he was driving drunk at 2:40 a.m. on June 22 when he killed 61-year-old Vincent Canzani in a wrong-way crash on I-670 near 3rd Street. In the video, which has garnered more than 2.2 million hits on YouTube, Cordle promises to “take full responsibility” for his actions and begs others not to drink and drive.
Prosecutor Ron O’Brien said taking responsibility in this case means serving the maximum penalty, which his office will request at the sentencing hearing. He is among those who think Ohio’s penalties for causing a death through drunken driving are too lenient.
O’Brien said he has received emails from across the country as a result of the Cordle case. “They’re asking, ‘What’s up with Ohio? How can somebody be totally drunk, driving the wrong way on the freeway, kill someone and the penalty is only eight years?’ And it can be as low as two years,” he said. “I don’t think that’s a fair or appropriate penalty.”
W. Martin Midian, one of Cordle’s attorneys, said a fair sentence for his client, who has no felony record and no previous DUI convictions, is something less than the maximum. “I think if Matt were to receive the maximum sentence, it would send the wrong message about people accepting responsibility for their actions,” he said.
Koffel went further, saying that if Cordle receives the maximum as a first-time offender, “I think he has a very good argument on appeal. Max sentences are to be reserved for the worst of the worst.”...
Those found to be driving recklessly when they cause a fatal crash, for such things as texting behind the wheel or running a red light, are charged with a lower-level felony that has a sentencing range of one to five years in prison.
Ohio’s neighboring states are stricter about drunken drivers who cause a death, according to information compiled by Mothers Against Drunk Driving. A first offense brings a prison term of two to 10 years in West Virginia and five to 10 years in Kentucky. The maximum penalty is 10 years in Pennsylvania and 15 years in Michigan. In Indiana, punishment for a first offense is two to eight years for those with a blood-alcohol content of 0.08 percent to 0.14 percent. Those who test higher can get up to 20 years.
“Ohio is weaker than a lot of states, but we’re not the weakest,” said Doug Scoles, state executive director of MADD. In about half of the states, prison isn’t mandatory, according to MADD’s literature.
The last time Ohio altered penalties for the offense was in 2007. That’s when the legislature passed a law that toughened the sentence for those convicted of aggravated vehicular homicide while drunk who have three or more DUI convictions in the preceding six years. For them, the penalty is 10 to 15 years.
Thursday, October 03, 2013
Guess which state has the highest rate of incarceration of black men in the entire US?
Click through to see the somewhat surprising answer...This NPR story answers the question in the title of this post. The piece is headlined "Wisconsin Prisons Incarcerate Most Black Men In U.S.," and it starts this way:
The United States prison population is still the world's highest, with more than 1.5 million people behind bars. Black men are more likely to be sent to prison than white men, and often on drug offenses. A study from the University of Milwaukee-Wisconsin looked at that state's incarceration rates and found they were the highest in the country for black men.
The University of Wisconsin researchers say their analysis was truly eye-opening. They found that Wisconsin's incarceration rate for black men — 13 percent — was nearly double the country's rate.
"We were so far above everybody else. That just sort of stunned us when we saw that," says Professor John Pawasarat, who studied two decades of Wisconsin's prison and employment data.
Pawasarat found that nearly 1 in 8 black men of working age in Milwaukee County had served some time in the state's correctional facilities. At 13 percent, the rate was about 3 percentage points above Oklahoma's — the state with the second highest rate of incarceration for black males. (Gene Demby wrote about this same topic and noted that Wisconsin also has the highest rate of Native American men who are behind bars. One in 13 Indian men are incarcerated.)
Wednesday, October 02, 2013
NY Times editorial laments "Writing Off Lives"The New York Times earlier this week ran this editorial headlined "Writing Off Lives" to complain about the modern (over)use of LWOP sentences. Here are excerpts:
[T]he number of people in prison for life has more than quadrupled since 1984 and continues to grow at a startling pace. The zealous pursuit of these sentences began in the 1970s, becoming something of a fad; it is past time to revisit the practice.
A new study from the Sentencing Project, a research group, found that one in nine inmates, about 160,000 people, is serving a life sentence. Nearly one-third of these prisoners are serving life without parole. Many of these lifers were convicted of nonviolent crimes or of crimes that occurred before they turned 18.
For much of the 20th century, a sentence as harsh as life without parole was rarely used. Instead, a person sentenced to “life” — for murder, say — could be released after 15 years when the parole board determined that he or she had been rehabilitated and no longer posed a threat. This began to change during the drug war years. Harsher sentences once reserved for people convicted of capital crimes were expanded to include robbery, assault and nonviolent drug offenses. States restricted the use of parole and governors who feared being portrayed as soft on crime began to deny virtually all clemency requests.
Research shows lengthy sentences do nothing to improve public safety. But these long sentences are turning prisons into geriatric centers where the cost of care is prohibitively high. The practice of routinely locking up people forever — especially young people — also ignores the potential for rehabilitation. The whole trend is deeply counterproductive. States need to encourage more rational sentencing, restore the use of executive clemency and bring parole back into the corrections process.
Alabama rolls out new presumptive sentencing guidelines (which prosecutors mostly oppose)
While October 1, 2013 was an eventful day around the nation with the roll-out of the new federal health care law and the partial federal government shut down. But in Alabama, the start of October 2013 was also a big deal because it was the effective date for the application of new sentencing reforms. And, in sharp contrast to the federal sentencing system where applicable guidelines are distinctly harsh and draw the ire mostly of defense attorneys, under Alabama's new more lenient guidelines, it is the prosecutors who are complaining about judges having to follow presumptive sentencing rules.
This local article, headlined "More Alabama nonviolent offenders may avoid prison under law now in effect, DAs not happy," explains the new Alabama sentencing world and the concerns being expressed by prosecutors about having judges having to follow sentencing laws they disfavor:
Thieves, small-time drug dealers, repeat drug-users and other nonviolent offenders will find the world has changed beginning today, as Alabama tries to cope with its bursting-at-the-seams prison system by being more “selective” about who gets locked up.
Starting today new sentencing guidelines cover many nonviolent theft and drug charges. Burglary and drug trafficking charges are not on the list, but Alabama’s habitual offender laws that led to long sentences after two or more prior felonies will no longer automatically result in decades-long prison sentences for nonviolent offenders.
There are numerous changes, but the key differences are that judges in most cases are expected to use a worksheet to guide the decisions about “in or out of prison” and “how long a sentence.”
There have been complaints by prosecutors and some judges that the guidelines take the court’s discretion out of the system. The guidelines were developed beginning in 2000 and went into effect in 2006 as “voluntary.” But guideline use varied widely around the state, said Bennet Wright, executive director of the Alabama Sentencing Commission. In 2012, the Alabama Legislature agreed to make the guidelines “presumptive” meaning they would be applied unless compelling reasons were found to deviate from the guidelines.
Madison County District Attorney Rob Broussard said in a purely theoretical world, his office would oppose the new sentencing system. “But in the practical, budget-driven world, we understand why we have them,” Broussard said. “In this state, as in a lot of jurisdictions, we can about talk justice and what something is worth until we’re blue in the face, unfortunately it’s a money game. Do you have space to house criminals or not?”
Wright said prison costs and issues of fairness have driven the new process. “Alabama has the most overcrowded prison system in the country,” he said. “There is a very serious funding issue, coupled with an overcrowding issue and something has to be done. The state has to be increasingly more selective about which nonviolent offenders are sentenced to prison.”
Defendants facing similar charges across the state were not getting the same sentences, an issue that the Sentencing Commission has long been concerned about, Wright said. “The commission’s goal was to eliminate as much unwanted disparity as possible and create as much uniformity statewide as possible,” he said. “There has not been a lot of uniformity statewide amongst similar cases. You could have neighboring counties -- whether urban or rural, some in the same courthouse -- with judges using different practices. It was varied across the state, and a lot of people’s reactions have been, ‘That’s why it’s presumptive now.’ It’s an issue of fundamental fairness.”....
The Alabama District Attorneys Association has also been critical of the changes, arguing the rules will limit prosecutors’ ability to punish repeat offenders. St. Clair County District Attorney Richard Minor, president of the Alabama District Attorneys Association, said the association is working on proposed legislation for changes to the law.
Minor said the DA’s would like to see multiple charges in a drug distribution case be counted individually in the guidelines, rather than as one sentencing event which could lessen the likelihood of prison. Minor said he’s also concerned by what the worksheet requirements leave out.
“I think it’s hard to determine someone’s criminal behavior and their ability for rehabilitation, based on numbers on a sheet of paper,” Minor said. “I think a DA’s office and judge in the community have more information than can be put down on paper.”
I find it so very telling that when states create sentencing guidelines which generally push judges away from long prison terms (unlike the federal guidelines which general push judges toward long prison terms) we hear state prosecutors complaining that use of guidelines at sentencing does not capture all the unique facets of offenses and offenders. This provide for me still more proof that the severity of applicable rules is what really shapes the litigants perspectives as to whether sentencing guidelines should be presumptive or merely advisory.
For lots of reasons, and perhaps especially because Alabama's sentencing laws are evolving in kind of the reverse concerning how federal sentencing laws evolved over the last 25 years, I think sentencing reformers ought to be studying Alabama sentencing reforms past, present and future very closely. Helpfully, as the state starts a new sentencing reform chapter, the local papers have all this notable new coverage of developments:
- "Madison County courts must adjust to new, lighter sentences for nonviolent offenders"
- "Mobile-area prosecutors rip sentencing rules calling for little or no prison time"
- "First challenge in sentencing guidelines? Getting judges to fill out the paperwork"
- "Shortsighted? Critics question whether sentencing reform will create repeat offenders"
Tuesday, October 01, 2013
"Jailing Black Babies"The provocative title of this post is the provocative title of this provicative new article now available via SSRN and authored by James Dwyer. Here is the abstract (the last sentence of which, I suspect, may appeal to (some? many?) readers of this blog:
In many situations of family dysfunction stemming from poverty, the interests of parents are in conflict with the interests of their offspring. This presents a dilemma for liberals. We want to mitigate the harsh consequences and suffering that conditions we deem unjust have caused some adults, especially adults of minority race. But we are also concerned about the welfare of children born into impoverished and troubled communities. The predominant liberal response to this dilemma has been to sidestep it by ignoring or denying the conflict and to then take positions aimed at protecting parents’ interests, without giving serious attention to the impact on children. The result is a set of liberal polies that effectively imprison black children in dysfunctional families and communities and so ensure that they fall into the inter-generational cycle of poverty, addiction, and criminality.
Epitomizing this phenomenon is the fast-growing phenomenon of states’ placing newborn children, predominantly of minority race, into prison to live for months or years with their incarcerated mothers. Advocates for incarcerated women, not advocates for children, have promoted prison nurseries, and they have done so with no research support for any hope of positive child welfare outcomes. Conservative legislators and prison officials agree to experiment with such programs when convinced they will reduce recidivism among female convicts, a supposition that also lacks empirical support. Remarkably, states have placed babies in prisons without anyone undertaking an analysis of the constitutionality of doing so.
This Article presents a compelling child welfare case against prison nurseries, based on rigorous examination of the available empirical evidence, and it presents the first published analysis of how constitutional and statutory rules governing incarceration and civil commitment apply to housing of children in prisons. It shows that prison nursery programs harm the great majority of children who begin life in them, and it argues that placing infants in prison violates their Fourteenth Amendment substantive and procedural due process rights as well as federal and state legislation prohibiting placement of minors in adult prisons.
This Article further challenges liberal family policy more generally. Its final Part describes other policy contexts in which liberal advocacy and scholarship relating to persons who are poor or of minority race consistently favors the interests of adults in this population over the interests of children. It offers a diagnosis of why this occurs, and it explains why this is both morally untenable and ultimately self-defeating for liberals committed to racial equality and social justice. The Article’s broader thesis is that liberals bear a large share of the responsibility for perpetuation of blacks’ subordination.