Sunday, June 28, 2015

"Reducing Racial and Ethnic Disparities in Jails: Recommendations for Local Practice"

The title of this post is the title of this notable new report authored by Jessica Eaglin and Danyelle Solomon for the Brennan Center for Justice. Here is how the report is summarized:

People of color are overrepresented in our criminal justice system. One in three African American men born today will be incarcerated in his lifetime. In some cities, African Americans are ten times more likely to be arrested when stopped by police. With the national debate national focused on race, crime, and punishment, criminal justice experts are examining how to reduce racial disparities in our prisons and jails, which often serve as initial entry points for those who become entangled in the criminal justice system.

This report, which relies on input from 25 criminal justice leaders, pinpoints the drivers of racial disparities in our jails lays out common sense reforms to reduce this disparity, including increasing public defense representation for misdemeanor offenses, encouraging prosecutors to prioritize serious and violent offenses, limiting the use of pretrial detention, and requiring training to reduce racial bias for all those involved in running our justice system.

June 28, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Saturday, June 27, 2015

"Will New Bipartisan Criminal Justice Reform Plan Fly?"

The question in the title of this post is the headline of this notable new Crime Report piece by Ted Gest discussing the prospects for the newly introduced SAFE Justice Act (basics here). Here are excerpts:

As support for criminal justice reform has spread, many states have left the federal government behind when it comes to reducing their prison populations. There were 208,598 federal inmates as of yesterday, dwarfing the state with the most in the last national count: Texas, with about 168,000. Prisons are consuming at least a quarter of the U.S. Justice Department's budget, putting a squeeze on other spending.

Until yesterday, most discussion of the issue in Congress has taken place in the Senate, where several members, ranging from conservative Republican Rand Paul of Kentucky to liberal Democrat Cory Booker of New Jersey have filed competing bills that would change federal sentencing laws and help inmates return successfully to society.

Now, two key House members from both major political parties are weighing in with a "Safe, Accountable, Fair, and Effective Justice Act"-- dubbed SAFE -- they suggest could go even farther than the Senate measures.

They are James Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, who have long headed the House subcommittee dealing with crime. (Scott recently moved from the panel, officially called the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, and turned his role over to Rep. Sheila Jackson Lee of Texas.)...

Sensenbrenner and Scott headed a House over-criminalization task force that has spent the last year and a half holding hearings on the issue that led in large part to the new bill. Sensenbrenner contended yesterday that over-criminalization is a "major driver" of the federal prison count, although he conceded that no one know how many such cases are filed.

Liberals are much more interested in drug cases, arguing that mandatory minimum penalties dating from the 1980s have ensnared thousands of Americans serving terms of five or ten years or longer for relatively minor violations. Scott said that two-thirds of federal inmates serving mandatory terms in drug cases are not narcotics kingpins. He argued that in the end, the nation's high incarceration rate "generates more crime than it stops."

One notable aspect of yesterday's announcement was the presence of a wide range of organizations supporting the bill, including the American Civil Liberties Union, the conservative Koch Industries, the American Conservative Union Foundation, Families Against Mandatory Minimums, and the Police Foundation.

Helpfully, this article provides this link to this full text of the new House proposal which is formally the "Sensenbrenner-Scott Over-Criminalization Task Force Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015."

Prior related post:

June 27, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, June 26, 2015

How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?

After this post, I am going to take some time off-line in order to calmly and carefully read all the opinions in the big SCOTUS constitutional sentencing ruling today in Johnson v. US.  (Sadly, I think it is a bit too early to get some liquid assistance in calming down, but that will change in due time.) Helpfully, Justice Scalia's opinion for the Court in Johnson is relatively short and thus it should not prove too difficult for everyone to figure out the import of the Johnson ruling for future applications of ACCA or even for future vagueness/due process Fifth Amendment constitutional jurisprudence.

But, as the title of this post is meant to highlights, I suspect it may prove quite difficult for everyone to figure out the impact of the Johnson ruling for past applications of ACCA and those currently serving long federal ACCA mandatory prison sentences.  I am pretty sure vagueness ruling are considered substantive for retroactivity purposes, so even long-ago sentenced federal prisoners should at least be able to get into federal court to now bring Johnson claims.  But not every federal prisoner serving an ACCA sentence has even a viable Johnson claim and I suspect most do not have what I would call a strong Johnson claim.  In my mind, to have a strong Johnson claim, a defendant would have to be able to show he clearly qualified for an ACCA sentence based on and only on a triggering prior conviction that hinged on the application of the (now unconstitutional) residual clause.

That said, I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim.  And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in federl prison.

I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners.  In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid. 

Some prior posts on Johnson and its possible impact (last two from before the opinion)

June 26, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (17)

Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders

SS-602x399As this report from The Hill details, a notable and significant group of Representatives are backing a notable and significant new federal criminal justice reform bill.  Here are the basics:

A bipartisan pair of lawmakers on Thursday unveiled a comprehensive criminal reform bill aimed at reducing the federal prison population.  The Safe, Accountable, Fair, and Effective (SAFE) Justice Act from Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) calls for new rehabilitation methods and sentencing reforms.  The bill is the result of the House Judiciary Committee's over-criminalization task force which examined ways to reform federal prisons....

Sensenbrenner said the bill was intended to reverse the staggering increase in the prison population, which has quadrupled in the last 30 years.  Despite increased incarceration and spending on prisons, recidivism still remains a problem, he also noted.  The bill applies mandatory minimums only to major crimes, and “expands recidivism reduction programming to incentivize and reward those who are working to make a change,” Sensenbrenner said....

Scott said the bill would encourage innovate approaches to criminal justice reform. “We were not interested in playing politics with crime policy,” said Scott.  He noted that 32 states had been able to reduce both crime and incarceration rates over the past five years. Calling those states "laboratories of democracy," he said the bill adopted many of those tested practices.

Scott lamented the high incarceration rate in the U.S. He said the bill aims to “direct non-violent low level, first time offenders from prison" and better acknowledge the conditions that lead to crime.  “If you address those underlying issues, you will have a better return rate than just from locking them up,” he said.

The bill also garnered support from major groups across the political spectrum. Leaders and representatives from Koch Industries, the ACLU, the NAACP, the Washington D.C. Police Foundation, Families Against Mandatory Minimums, and the Center for Criminal Justice Reform at the American Conservative Union have expressed support for the bill.

The bill is co-sponsored by Reps. Doug Collins (R-Ga.), Elijah Cummings (D-Md.), Raul Labrador (R-Idaho), Judy Chu (D-Calif.), Mia Love (R-Utah), and Scott Rigell (R-Va). “Too many of our children have gotten caught into a cycle that they can not get out of,” said Love, explaining the bill's appeal.

Rep. Rigell touted the broad coalition backing the bill, which includes Koch Industries, owned-by the Koch Brothers, who are major conservative donors. “If you think of those as two gate posts, “ he said, noting Koch Industries and the ACLU, “that’s an awfully wide gate.”

I am struggling to find on-line the full text of this important new federal sentencing reform proposal, but this summary from FAMM leads me to believe that this new SAFE Justice Act may go significantly farther (and be more politically viable) that the Smarter Sentencing Act and the Justice Safety Valve Act proposals that failed to move forward in the last Congress.  Indeed, these passages from this new Vox article, which provides the most detailed media account of the SAFE Justice bill's specifics, is prompting me to think all would-be federal reformers — including Prez Obama and his Justice Department, and especially Senators Cruz and Paul and other reform-minded GOP Prez candidates — should think seriously about giving up on the SSA and other reform bills now in the Senate in order to put all their advocacy efforts behind getting SAFE Justice passed through the House ASAP:

While Senate efforts at criminal justice reform have exposed a generational split in the Republican Party, in which young reformers like Senators Mike Lee and Rand Paul face off against old-school, tough-on-crime conservatives like Senators Chuck Grassley and Jeff Sessions, the House's bill was written by one of those old-school Republicans — Rep. James Sensenbrenner of Wisconsin — as well as Rep. Bobby Scott (D-VA).

Sensenbrenner and Scott think of the Safe Justice Act as a federal version of the criminal justice reform bills that have been taken up in state after state over the past several years, many of them under the mottos of "justice reinvestment" and "smart on crime." In their minds, they're building on what's worked in the states and are in line with reformers' emphasis on "data-driven" and "evidence-based" criminal justice policymaking.

The Safe Justice Act is a collection of dozens of different reforms. Most of them aren't terribly big on their own, but many of them overlap. That makes it really hard to estimate exactly how much the federal prison population would shrink if the bill became law. But its effect would be bigger than anything that's been introduced in Congress so far.

Many of the reforms would cut sentences for drug crimes — which reflects a growing consensus that nonviolent drug offenses aren't as bad as violent crimes. Drug prisoners are about half of all federal prisoners (unlike in states, where violent crime is the biggest cause of incarceration). That means that many of the Safe Justice Act's biggest reforms would target the largest slice of the federal population....

Most changes to prison sentences in Congress have focused on cutting mandatory minimum sentences, which force judges to sentence people to five, 10, or 20 years for certain drug crimes. But across-the-board cuts to mandatory minimums have been met with serious resistance from old-school Republicans, including Senate Judiciary Chair Chuck Grassley (R-IA). The House's solution, via the Safe Justice Act, isn't to reduce the mandatory minimums themselves — but to narrow the range of people who they apply to. Instead of someone who's convicted of trafficking a certain amount of cocaine being automatically sentenced to 10 years, for example, he'd only trigger the 10-year minimum if he were also a leader or organizer of an organization of five or more people. And even then, the bill says that judges can override the mandatory minimum if the defendant doesn't have much of a criminal history, or has a serious drug problem.

The bill would also make it possible for more people to be sentenced to probation instead of getting sent to prison. It would allow drug offenders to get probation if they'd been convicted of low-level drug crimes before. It would encourage judges to give probation to first-time low-level offenders. And it would encourage districts to start up drug courts and other "problem-solving courts"; some states have found these are better ways to treat some addicts than prison is....

Current prisoners whose sentences would have been affected by the bill's front-end reforms could apply to get their sentences reduced that way. But the Safe Justice Act would also give them another way to reduce their sentences: by getting time off for rehabilitation. Under the bill, every federal prisoner would get an individual case plan, based on what particular prison education, work, substance abuse, or other programs are the best fit for his needs. For every month a prisoner follows the case plan, he'd get 10 days off his prison sentence — meaning a prisoner with a perfect behavior record could get his sentence reduced by a third. (Prisoners serving time for homicide, terrorism, or sex crimes aren't eligible for time off, but that's a very small slice of the federal prison population.) The logic is that prisoners who want to rehabilitate themselves, and whose good behavior shows they're succeeding, shouldn't be forced to spend extra time in prison just for prison's sake.

The bill goes even further when it comes to probation — which affects many more people than prison. For every month of perfect behavior on probation, the offender would get 30 days off the end of his sentence — essentially cutting the probation term in half. If the offender violated probation, on the other hand, there would be a set of gradually escalating punishments, instead of an automatic ticket back to prison....

In the year 2015, it is extremely hard to get any sort of bill through Congress. And Sensenbrenner, Scott, and their fellow reformers have a narrow window before the presidential campaign saps Congress of any will to act it has left. So the barriers are pretty high. But this isn't, in itself, supposed to be a polarizing bill. The presence of Sensenbrenner and other old-school Republicans reflects that. And this is something that both houses of Congress have been debating for some time.

If House leadership decides to snatch up the Safe Justice Act and bring it to the floor quickly, it might give the Senate enough time to act. Maybe they'll be interested in the provisions that would make it a little harder for the federal government to treat regulatory violations as crimes; that's a pet cause of conservatives, even those who aren't otherwise committed to reforming criminal justice.

Still, House leadership might not be interested. But this is the broadest bill that's been introduced during the current wave of criminal justice reform, and it's a marker of just how much consensus there is among reformers in both parties when it comes to reducing federal incarceration.

June 26, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, June 25, 2015

Highlighting the need for much better modern prison metrics

Adam Gelb and Craig Prins, who are directors of the Pew Charitable Trusts' public safety performance project, have this notable new Washington Times commentary about prisons and prison reform. The piece, headlined "Who’s behind bars?: A better prison composition index could gauge whether reforms are succeeding," effectively highlights that for more effective prison reform (and more effective assessment of these reforms) could benefit greatly from more effective prison metrics. Here are excerpts:

The verdict is in, and it’s close to unanimous: The United States has built too many prisons. After nearly 40 years of uninterrupted prison growth that put one in 100 adults behind bars, a wave of state reforms over the past several years has reduced the incarceration rate while the crime rate has continued to fall. These tandem trends have convinced many Americans that locking more and more people up for longer and longer periods of time is neither the best nor only way to protect public safety.

Governors and legislatures in red and blue states alike have enacted substantial policy shifts, often by wide bipartisan majorities. Voters, in opinion surveys and at the ballot box, appear to be solidly behind putting the brakes on prison construction and steering lower-level offenders to alternatives.

Shifting national attitudes about crime and punishment have led to calls for even more aggressive reforms to criminal penalties and deep reductions in the inmate population. Elected officials and opinion leaders from opposite ends of the political spectrum have begun a dialogue about what it would mean — and take — to cut the current prison population in half, a once far-fetched fantasy that several new advocacy groups have adopted as their outright objective.

Tracking the number of inmates is essential but not enough to know whether we are making progress toward a more effective criminal justice system. A fuller picture requires a new and more nuanced measure — one that goes beyond the tally and captures the type of inmates behind bars. Recent state reforms have sought to protect public safety, hold offenders accountable and control corrections costs. To achieve these goals, many states are focusing their expensive prison beds on violent and career criminals with new policies that divert lower-level offenders into non-prison sanctions or reduce the time they spend locked up, restrict revocations of parole and probation for minor rules violations, and expand eligibility and funding for drug courts and other alternatives.

Yet most states cannot readily determine whether the new policies are working any better than those they replace. Beyond a simple count of prisoners, the typical state data report offers basic demographic information and breaks down how many inmates are serving time for violent, property, drug and other crimes. These numbers are helpful, but by themselves they reveal only fragments of the information necessary to paint a meaningful portrait of inmate populations. For instance, an offender currently serving time for a relatively minor crime may have a string of prior violent convictions that make him a higher risk to society than someone in prison for a more serious offense not likely to be repeated.

A more holistic look at prison use would blend current offense, prior record and risk of recidivism. By joining some combination of these elements into a single measure — a prison composition index — policymakers and the public could develop a better understanding of how their prison beds are being used and whether their reforms are succeeding....

The end goal is to come up with a single measure tracked over time that answers the question: What percentage of the prison population consists of violent and chronic offenders who pose a threat to public safety, and how many are offenders who could safely pay their debt to society in less expensive and more effective ways?

Pennsylvania is probably the first state to attempt to use a sophisticated prison composition index. Under the direction of Secretary John Wetzel, the Pennsylvania Department of Corrections uses an “Offender Violence Risk Typology” tool, which merges information about current offense, prior record and risk level to create three categories of inmates. According to the index, 69 percent of Pennsylvania’s prison admissions and 59 percent of the standing population in 2013 fell into the least serious of the three categories, figures that have changed little since 2010.

The raw number of prisoners is an important barometer of our criminal justice system. But we also need to know who the inmates are, why they’re there, and whether society will be better off if they are incarcerated or sentenced in other ways.

June 25, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Noticing Senator Cornyn's notable role in federal criminal justice reform efforts

ImagesRegular readers know that Senator Charles Grassley is perhaps the most critical current player in the current debates over federal sentencing reform because of his role as Senate Judiciary Committee Chair.  But this new National Journal article, headlined "Cornyn's New Role: The 'Bridge' on Tricky Bipartisan Bills," highlights the key role now being played by the current Senate whip.  Here are excerpts from an interesting piece about Texas Senator John Cornyn:

On April 10, John Cornyn toured a huge prison in rural east Texas, about a three-hour drive north of his Houston birthplace. Nearly 700 security employees stroll the H.H. Coffield facility, which has a maximum capacity of around 3,800 prisoners, and Cornyn, a three-term senator who rose to the Texas Supreme Court and attorney general positions during the lock-'em-up-and-throw-away-the key 1990s, was there to draw attention to a project helping prisoners learn the skills they need to rehabilitate — and get out.

"Some of the inmates were so poorly educated they couldn't even read a tape measure," said Cornyn in an interview in his Washington office this week. "Which if you think about it, it doesn't say much for our public education system, but it also just shows how big a problem we have when people have zero coping skills — no education — and they basically have lived a continuous life of crime, and they know nothing else in terms of the challenges. We have to break that cycle."

Almost seven months into his role as Senate majority whip, Cornyn talks quite a bit about breaking cycles, whether in prisons or the nature of crises in the Senate. His official role is to keep the Republicans in line and on-message, but he also has been an influential figure — the "bridge," as one Democrat puts it — on bipartisan pieces of legislation, particularly on two in the Judiciary Committee that bedeviled the last Congress: a criminal-justice reform package — the cause du jour infiltrating liberal and conservative think tanks, as well as the 2016 presidential debate — and patent-reform legislation with Sen. Chuck Schumer. Neither is on the Senate GOP leadership's short list, but both bills could see floor action with Cornyn's help, especially if the appropriations process breaks down, leaving room in the schedule.

On criminal justice, Democrats see Cornyn as an instrumental figure in creating the package that requires low-risk offenders to participate in recidivism-reduction programs for an earlier release—saving taxpayer money and making communities safer — and that includes a bipartisan bill reducing mandatory-minimum prison sentences. That bill is supported by members across the ideological spectrum but was opposed by Cornyn — who says now that it wasn't ready for "prime time" — along with Sen. Chuck Grassley, now the Judiciary Committee chairman, and others last year.

"I think we need a marriage of both of those proposals," said Cornyn, who would like to build on his bill to include some sentencing reforms. "I think looking at nonviolent offenders, low-risk offenders, I think there's some things we can do."

"My hope is that in the near future we will have a product that we can then have a hearing on and then mark up, and my hope is that we'll get something to the president this year," he added.

Sen. Dick Durbin, who is leading the sentencing-reform effort with Sen. Mike Lee, said Tuesday that Congress could have a "dramatic impact" on the federal prison population by addressing even just a "very narrow" category of drug offenses not involving firearms, gangs, violence, or terrorism.

Grassley has been an obstacle on the issue, according to Sen. Jeff Flake, a Judiciary panel member. Grassley was not invited to a White House meeting to discuss the topic this year and was advised in his hometown paper to take up sentencing reform a few months ago. But he seems more willing to move the package now — he said recently that the committee has the "capability" of reaching a bipartisan agreement this year — and has been convening meetings to see if a compromise can be struck.

Sen. Sheldon Whitehouse, a Judiciary Committee Democrat, sees Cornyn as the "bridge" trying to get their bills through the panel. "As you know, I think Chairman Grassley has gone to the floor three separate times to express his displeasure and dissatisfaction with the mandatory-minimum bill," said Whitehouse. "So by way of the chairman putting a marker down that he's not pleased with a piece of legislation in his committee, it would be hard to imagine much of a bigger, louder marker than that."

"And I think Senator Cornyn is a very helpful voice in trying to be a bridge among the different parties involved here," he added. "Whether it's Chairman Grassley, or Senator Lee or Senator Durbin, I think both Senator Cornyn and I are trying to be that bridge, but given that the chairman is a Republican and given that Senator Cornyn is a former attorney general, former judge, and leader within the Republican caucus, I think Senator Cornyn is a particularly important figure in the bridge between Senator Lee and Chairman Grassley."

June 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 24, 2015

"A Shrinking Texas Death Row"

The title of this post is the headline of this intriguing new item from the Texas Tribune.  The piece has a series of great interactive charts providing the details on this basic death-penalty data story:

The number of inmates on Texas’ death row is falling. At its peak in 1999, 460 men and women were living with a death sentence in Texas, according to the federal Bureau of Justice Statistics (BJS). Today, there are 260.

The reason for the decline isn't a rise in executions. In 2000, an all-time high of 40 inmates were executed in Texas, compared with 10 last year.  So far this year, nine inmates have been executed.

The main reason is a drop in new death sentences.  In 1999, 48 people were sentenced to Texas death row, according to BJS data.  In 2008, that number was nine — and has stayed in that range ever since.  This year, there have been no new death sentences so far, according to the Texas Department of Criminal Justice (TDCJ).

Kathryn Kase, executive director of the Texas Defender Service, a nonprofit organization of death penalty attorneys, said that zero is significant.  “This is the longest we’ve gone in a calendar year in Texas without a new death sentence,” Kase said. “Before this year, the longest that we’ve gone is through the first quarter."

Experts suggest several factors could be contributing to the falling number of death sentences, from a national decline in support for the death penalty to shortages of the lethal drugs used in executions.  In 2005, the U.S. Supreme Court ruled that juvenile offenders could not face execution, lessening future sentences as well as sparing 29 offenders who were already sitting on death row.

But consistently, they point to a 2005 law that offered Texas prosecutors the option to pursue life-without-parole sentences against capital murder defendants.  Previously, capital murder offenders who did not receive the death penalty were eligible for parole after 40 years....

Since that law was enacted, the number of life-without-parole sentences has increased nearly every year, according to TDCJ.  Between 2007 and 2014, the number of life-without-parole sentences jumped from 37 to 96.

Currently, 745 people are serving a life-without-parole sentence in Texas, nearly three times the number of death row inmates.  So far this year, Kase said three death penalty cases have gone to trial.  All have ended with life-without-parole sentences.

June 24, 2015 in Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, June 23, 2015

"Policing, Mass Imprisonment, and the Failure of American Lawyers"

In prior comments, someone spotlighted this notable recent commentary by Alec Karakatsanis appearing in the Harvard Law Review Forum under the title that serves as the title of this posts. Here are excerpts from the introduction and the final paragraph of this provocative piece:

The contemporary system of American policing and incarceration puts human beings in cages at rates unprecedented in American history and unparalleled in the modern world. Its current rate of incarceration is about five to ten times that of other comparably wealthy countries and five times its own steady historical average prior to 1980.  It is a considerable bureaucratic achievement to accomplish the transfer of thirteen million bodies each year from their homes and families and schools and communities into government boxes of concrete and metal.  It is also a failure of the legal profession....

The failure of lawyers is a tragedy in two parts.  First, there has been an intellectual failure of the profession to scrutinize the evidentiary and logical foundations of modern policing and mass incarceration.  Second, the profession has failed in everyday practice to ensure that the contemporary criminal legal system functions consistently with our rights and values....

Legal academics, judges, and lawyers of conscience must take up this two-pronged challenge: we must bring intellectual rigor to legal discourse and doctrine on these issues, and we must use the energy that animates our bodies to ensure that the legal system looks in practice as it appears in our scrolls and on our marble monuments.

June 23, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Sunday, June 21, 2015

Great new USSC report (with some not-so-great data) on "Alternative Sentencing in the Federal Criminal Justice System"

Alternatives_thumbThe US Sentencing Commission released last week this notable new report on titled "Alternative Sentencing in the Federal Criminal Justice System." (Notably, the report itself shows a cover date of May 2015, but I am pretty sure it was just posted last week on the USSC's website.)  Here is how the USSC itself briefly describes its new (data-heavy) document:

As a supplement to the Commission's 2009 publication, this report examines more recent trends in the rates of alternative sentences and examines how sentencing courts use their discretion to impose alternative sentences.

This 30+ page report has lots of data about when and how federal judges impose alernative sentences in the post-Booker era. The data could (and perhaps should) be assessed in a variety of different ways, but I found at least some of these data realities somewhat discouraging.  In particular, these passages from this USSC Alternative Sentencing report caught my eye, and they reflect data that I found at times a bit surprising and at times more than a bit depressing:

Although most federal offenders were not convicted of an offense carrying a mandatory minimum penalty, alternative sentences are imposed for only small proportion of federal offenders not convicted of such an offense. ...

During the past ten years, the proportion of United States citizen federal offenders eligible for alternative sentences (i.e., those offenders with sentencing ranges in Zones A, B, or C and who were not statutorily ineligible) decreased slightly from 27.6 percent in 2005 to 24.6 percent in 2014....

In contrast to the moderate decrease in the proportion of offenders eligible for alternative sentences (with sentencing ranges in Zones A through C), there was a larger decrease in the proportion of those offenders actually sentenced to an alternative. The proportion of eligible offenders sentenced to an alternative decreased from 71.9 percent to 65.0 percent during that time period....

Though relatively modest, there has been a clear trend of a decreased rate of alternative sentences during the past ten years.... Rates of alternative sentences decreased regardless of whether offenders were sentenced within or below the guideline range....  Despite the increased discretion that courts have used to vary from the guidelines after Gall, the data seem to demonstrate that courts are not using that discretion to impose alternative sentences at a greater rate.

Black and Hispanic offenders consistently were sentenced to alternatives less often than White offenders. The data indicate some differences in criminal history and offense severity that provide some insight to this finding. Black offenders had more serious criminal history scores compared to the other groups....

[F]emale offenders were sentenced to alternatives at higher rates than male offenders. This difference is especially apparent for offenders with sentencing ranges in Zone B, in which 75.4 percent of female offenders were sentenced to alternatives compared to 55.9 percent of male offenders.

In general, alternative sentences were imposed for more than half of offenders in each age group. Excluding offenders under the age of 21, there was a clear trend of increasing rates of alternatives as the age of the offender increased, and this trend was consistent across the sentencing zones.

June 21, 2015 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Saturday, June 20, 2015

The Economist explains "how to make America’s penal system less punitive and more effective"

Download (7)This notable new piece from the print edition of The Economist, headlined "Jailhouse nation: How to make America’s penal system less punitive and more effective," provides advice from across the pond about how the US ought to reform its criminal justice system to address mass incarceration.  Here are excerpts:

More and more Americans accept that the harm caused by mass imprisonment now exceeds its benefits.  Hillary Clinton, whose husband’s 1994 crime bill filled many a cell, has now changed her mind.  On the right, fiscal conservatives decry the burden on taxpayers, while Christians talk of mercy.  Rick Perry, a former governor of Texas and a Republican presidential candidate, boasts of his record of closing three prisons in his state.  Nationwide, the incarcerated population appears to have plateaued; it should be sharply reduced.

A good start would be to end the war on drugs, which would do less harm if they were taxed, regulated and sold in shops, not alleys, as marijuana is in Colorado and Washington state.  In fact, the drug war is already ebbing: in 1997 drug offenders were 27% of all prisoners; now they are around 20%. That could be cut to zero if drugs were legalised.

The next step would be to amend or repeal rules that prevent judges from judging each case on its merits, such as state and federal “mandatory minimum” sentences and “three strikes” rules that compel courts to lock up even relatively minor repeat offenders for most of their lives.  New York has dramatically reduced its state-prison population this way. Prosecutors there have in effect been told to limit the number of people they imprison, giving them an incentive to lock up only the most dangerous. Prosecutors have long had huge discretion in which charges they bring; those in New York now use police intelligence to help them decide.  If the man in the dock seems relatively harmless, they go easy on him; if they know him to be a career criminal who has remained free because he intimidates witnesses, they throw the book at him. Crime has fallen in New York. There has been no backlash among voters.

Reducing the prison population to European levels is probably impossible, for America is still a much more violent place, even if most districts are reasonably safe.  There are roughly 165,000 murderers in American state prisons and 160,000 rapists. If America were to release every single prisoner who has not been convicted of killing or raping someone, its incarceration rate would still be higher than Germany’s.

But still, America does not need to lock up every violent criminal for as long as it does — which is longer than any other rich country. Some 49,000 Americans are serving life without the possibility of ever being released.  (In England and Wales the number is just 55.) Such harshness is unnecessary. A 50-year sentence does not deter five times as much as a ten-year sentence (though it does cost over five times as much).  Money wasted on long sentences cannot be spent on catching criminals in the first place, which is a more effective deterrent.

Reform is hard. Prosecutors and judges are often elected in America; many woo votes by promising to be tougher than their predecessors. Politicians who are seen to be soft on crime run a risk....

Nonetheless, the big fall in crime in the past two decades means that Americans are now less afraid than they were, and more open to reform. Californians voted last year in a referendum to downgrade several non-violent felonies to misdemeanours.  Other states are experimenting with better education in prisons (so that ex-convicts have a better chance of finding work), and drug treatment or GPS-enabled ankle bracelets as alternatives to incarceration.  Some are also trying to improve prison conditions, not least by curbing assaults and rapes behind bars. The aim of penal policy should be harm reduction, not revenge.  Tighter gun laws might help, because guns can turn drunken quarrels into murders; alas, that is politically improbable for now.  There is no single fix for America’s prisons, but there are 2.3m reasons to try.

June 20, 2015 in Drug Offense Sentencing, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (5)

Thursday, June 18, 2015

Terrific Marshall Project coverage of "How Germany Does Prison"

Germany-bug-200pxAmong the great stuff at The Marshall Project these days is a series of original pieces authored by Maurice Chammah as he and a delegation of American officials tour the German prison system. So far there have been three daily reports, and here are the full headlines and links:

Here is an excerpt from the second of these pieces, which highlights themes of the series:

[I]t was clear that this trip would be as much about the United States as about Europe. Germany’s system of sentencing (15 years is the longest most people go to prison here unless they are demonstrably dangerous) and incarceration (open, sunny prisons, full of fresh air, where prisoners wear their own clothes) serves as a reference point for reflecting on the punitive mentality that has come to define the U.S. justice system....

On Monday, as we visited Heidering Prison.... Bernie Warner, the corrections secretary of Washington, noticed the faint smell of smoke — all the prisoners can smoke here, unlike their counterparts in the U.S. Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. They have privacy—correctional officers knock before entering. Prisoners wear their own clothes, and can decorate their space as they wish. They cook their own meals, are paid more for their work, and have opportunities to visit family, learn skills, and gain education. (Inmates are required to save money to ensure that they are not penniless upon release.)

There are different expectations for their corrections officers — who are drawn primarily from the ranks of lawyers, social workers, and mental health professionals to be part of a "therapeutic culture" between staff and offenders — and they consequently receive more training and higher pay. There is little to no violence — including in communal kitchens where there are knives and other potentially dangerous implements. And the maximum time inmates spend in any kind of punitive solitary is eight hours.

"Find a [security] camera,” Gregg Marcantel, the corrections secretary of New Mexico, said as he walked through the prison’s main corridor. “There aren’t any!” When he heard that prisons in Berlin have 33 physicians to care for 4,200 inmates, Marcantel’s response was a hearty, “Good God!” That’s a ratio of about 1 doctor for 127 prisoners. In Virginia's state system, according to a recent count, there was one doctor for every 750 inmates. We walked through pristine white cells that looked more like dorm rooms at a liberal arts college than the steel and concrete boxes most U.S. prisoners call home. The toilets and sinks were white and ceramic, nothing like the stainless steel bowls bolted to the wall in many U.S. prisons (Heidering Prison opened in 2013, but such toilets have been installed in older prisons as well). Most prisoners have knives and forks in their cells. Though the prisoners cannot access the Internet, they have telephones in their rooms, and they can call anyone — even the media. “We have nothing to hide,” Detlef Wolf, vice governor for Heidering Prison, said with evident pride....

Administrators here freely work terms like “human rights” and “dignity” into speeches about their prison system, and Germans appear to view people who commit crimes as medical patients (the word “prognosis” came up a lot to describe the status of an inmate). There is little stigma after prisoners finish their sentences — employers in Germany generally do not ask job applicants if they have a criminal record, according to Michael Tonry, a University of Minnesota professor on the trip who’s studied corrections systems in the U.S. and Europe. In some cases, the cultural norms were so foreign that it was pretty much impossible to imagine them taking root in the U.S.

Once the shock wore off, the questions came, and they reflected the political and professional concerns of those doing the asking. Many of the leaders here who have been elected or appointed — including Marcantel of New Mexico and Jeff Rosen, the elected district attorney in Santa Clara, California — wanted to know about victims. Do their desires for retribution play any role in sentencing here? (In the U.S., they are often allowed to read “victim impact statements” before juries assess punishment, and prosecutors often consult with them). Do sensational murders lead to the passage of more punitive laws?

The Germans had trouble making sense of these questions. There were a lot of blank stares. In Germany, prosecutors and judges are not elected. As career civil servants, they are insulated from public opinion. Their work is more “technical,” said Gero Meinen, who directs the prison system in Berlin. The role is to protect the rational system of correction — which aims to restrict freedom the least amount necessary — from the retributive impulses that individual victims and society in general might feel. Now it was the Americans’ turn for blank stares.

Besides the surprise, other emotions lingered just below the surface. A few travelers were skeptical, and will be looking for ways in which things might be worse than they appear throughout the rest of the week.

June 18, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (5)

Tuesday, June 16, 2015

"The Death Penalty Is Cruel. But So Is Life Without Parole."

Download (4)The title of this post is the headline of this notable new New Republic commentary by Stephen Lurie.  Here are excerpts of a piece that echoes my oft-stated and enduring concern that LWOP punishments should garner a lot more attention from the anti-death penalty crowd:

Prison cells don’t attract many spectators, but executions have always drawn crowds. Paradoxically, the names and identities of death row inmates only come to matter when their execution had been scheduled: from impending death we take a sudden interest in life.

Despite the incongruity, this isn’t all that surprising. Twenty-first century America is still susceptible to the time-honored spectacle of state-sanctioned death, even if much of the attention now scrutinizes, rather than cheers, the practice. Recently, there have been many stories typical of the current fascination with American capital punishment, most notably Ben Crair’s piece in this magazine and Jeffrey Stern’s in The Atlantic. Like other recent examinations of the death penalty, both accounts focus specifically on the act of execution by lethal injection; each covers botched executions and the question of cruel and unusual punishment in the death chamber itself....

For Stern and Crair, as well as many human rights-minded activists and advocates, the death chamber is a potent and useful example of inhumanity. Other, newer abolitionists—like the legislators in Nebraska that voted to abolish the death penalty there last month—focus on the act of execution as well. While the death chamber is itself horrific, abolitionists would be remiss to ignore the more common punishment: the immense cruelty of a prisoner’s long wait for execution. The “death row phenomenon” and associated prison conditions cause significant psychological and physical harm; a so-called “death before dying” is both internationally condemned and domestically pervasive. If the end to capital punishment in the U.S. is based on concern for human beings — whether in a religious or moral sense — the reform movement must be concerned with the prison conditions left when death is not on the table.

Executions of any kind are exceedingly rare, so much so that death row itself appears to be the real punishment for the vast majority of inmates. There are just over 3,000 people awaiting execution in United States prisons. In 2013, the latest year for which the Bureau of Justice Statistics has data, there were 39 executions. That is just more than the 31 inmates who died before their scheduled executions; it is just less than the 44 death row convictions or sentences overturned that year....

Because solitary confinement is the de facto housing for American death row convicts, and because excruciating delays are par for the course, international observers have considered U.S. capital punishment inhumane enough to delegitimize its practice entirely. In his report to the UN General Assembly in 2012, Juan Méndez (the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or Punishment) suggested that the realities of imperfect executions and death row conditions almost unavoidably run afoul of the international prohibition against human mistreatment. “Solitary confinement, in combination with the foreknowledge of death and the uncertainty of whether or when an execution is to take place, contributes to the risk of serious and irreparable mental and physical harm and suffering to the inmate,” Méndez writes. “Solitary confinement used on death row is by definition prolonged and indefinite and thus constitutes cruel, inhuman or degrading treatment or punishment or even torture.”...

Nearly every prisoner faces an abrogation of his or her 8th Amendment protections against cruel and unusual punishment; only a small few face the added cruelty and indignity of a botched execution. What about the pain of a cramped concrete cell, of shackling and restraints, attempts at self-harm, inedible food, existential fear, depression, and deprivation of any human contact? If there is concern is over fair treatment of human beings sentenced to death, it’s unwise, from a strategic standpoint, to continue ignoring the majority of their lives. Campaigns based on claims of cruel and unusual treatment would not rely on staying the execution of a single individual, but rest on the indefinite torture of thousands. That would be powerful.

Moreover, the instances of death penalty abolition that do not consider the background conditions for capital punishment invariably leave immense cruelty in its place. Nebraska’s legislation is typical in this regard: All death sentences become sentences of life imprisonment without the possibility of parole (LWOP). The de facto alternative for states that abolish the death penalty, LWOP actually retains many of the worst conditions of confinement described above, as well as still effectively sentencing the prisoner to death. It is in almost every way a death row, and as such is also an internationally condemned practice.

It’s for this reason that some, like Andrew Dilts, an assistant professor of political theory at Loyola Marymount University, refer to current forms of death penalty abolition as “death penalty replacement,” the same result but with the added effect that prisoners lose even more legal protections. As Dilts writes in the new volume Death and Other Penalties: Philosophy in a Time of Mass Incarceration, these alternative sentences appease the “almost fetishistic levels” of concern over execution while it “effectively deflects attention away from the moment of death, even though death is necessarily a part of the sentence.” In addition, whereas “the Court requires strict review of offender qualifications, strict procedural guidelines, extended appeals processes, and additional standards of heightened scrutiny…the same procedural and substantive protections are simply not applied” to life sentences. The result, ultimately, is simply a “dramatic reduction of appellate rights” for inmates that are still condemned to die; it’s a slower death with even less of a chance for redemption. While the conversion of these sentences might lessen some of the specific psychological traumas related to the death row phenomenon, it does not address the expected use of solitary confinement or other inhumane treatment. There is nothing in an execution-focused narrative that would lead to the transformation of these conditions: It might, rather, cement them as appropriate penal policy.

June 16, 2015 in Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (6)

Sunday, June 14, 2015

Fascinating account of how "how neoliberalism lies at the root of the carceral state"

LogoThe always interesting poly-sci prof Marie Gottschalk has this especially interesting new piece in the Boston Review headlined "The Folly of Neoliberal Prison Reform."  The lengthy piece merits a full read; these excerpts from the start and end of the piece are intended to highlight the article's themes and strong flourishes:

Amid deficit-allergic neoliberal politics, everyone can agree on the appeal of budgetary savings.  So now it is not just liberals going after mass incarceration. A group of brand-name conservatives, including Newt Gingrich, Grover Norquist, and, most recently, former governor Rick Perry of Texas, has endorsed various budget-cutting initiatives that would reduce prison populations.  Utah Senator Mike Lee, an influential Tea Party Republican, has delivered speeches on “the challenge of over-criminalization; of over-incarceration; and over-sentencing.”

This bipartisanship has fostered a wave of optimism; at last it seems the country is ready to enact major reforms to reduce the incarceration rate.  But it is unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities, states, and the federal government to make deep and lasting cuts in their prison and jail populations and to dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties, employment, and public benefits to many people with criminal convictions.

For one thing, the carceral state has proved tenacious in the past.... If there is to be serious reform, we will have to look beyond the short-term economic needs of the federal and state governments. We can’t rely on cost-benefit analysis to accomplish what only a deep concern for justice and human rights can.  Indeed, cost-benefit analysis is one of the principal tools of the neoliberal politics on which the carceral state is founded....

[T]he carceral state was not built by punitive laws alone, and it can be dismantled, at least in part, by a change in sensibilities.  The carceral state was born when police officers, parole and probation agents, judges, corrections officials, attorneys general, local district attorneys, and federal prosecutors began to exercise their discretion in a more punitive direction as they read the new cues coming from law-and-order politicians.

That discretion could be turned toward lenience.  President Obama and state governors have enormous, largely unexercised, freedom to grant executive clemency.  Federal judges have considerable wiggle room to depart from the federal sentencing guidelines, as the Supreme Court confirmed in United States v. Booker (2005) and reconfirmed in Gall v. United States (2007).  The Department of Justice could put an end to overcrowding in federal penitentiaries by calling a halt to the federal war on drugs. The Federal Bureau of Prisons (BOP) could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a report by the American Bar Association.  For example, the BOP and many state departments of corrections could release more infirm and elderly inmates early via a process known as compassionate release.

Prosecutors may be the linchpins of penal reform. The late legal scholar William Stuntz described them as the “real lawmakers” of the criminal justice system because they enjoy vast leeway in charging and sentencing decisions.  Attorneys general and district attorneys also set the tone and culture of their offices and determine how prosecutors working under them exercise their discretion....

Alleviating the root causes of poverty and inequality will take a long time.  In the meantime, no compelling public safety concern justifies keeping so many people from poor communities locked up and so many others at the mercy of the prison beyond the prison. The demands of justice and human rights compel thoroughgoing change, whatever the cost-benefit analysis returns.

I am a bit less pessimistic than this piece about what "neoliberal" cost-benefit analysis might achieve in the context of modern sentencing and prison reform, in part because I think mass incarceration was fueled (and is sustained) more by "classical" notions of justice and victim-rights than this article acknowledges. I especially think that "neoliberal" cost-benefit analysis has an especially important role to play in ratcheting back the modern drug war. That all said, there is much I agree with in this article, and it should be read by everyone eager to think deeply about modern criminal justice reform goals and means.

June 14, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)

Saturday, June 13, 2015

Citing much research and data, Judge Posner rails against "the problem of the elderly prisoner"

The Seventh Circuit this past week issued an otherwise routine affirmance of a drug conviction in US v. Presley, No. 14-2704 (7th Cir. June 11, 2015) (available here), the opinion end up not at all routine because of Judge Posner's lengthy concluding (dicta?) about problems with exceedingly long federal sentences and the elderly prisoners these sentences create.  I would urge all federal sentencing fans to read Judge Posner's work in Presley in full, and these passages help highlight why (even with lots of Judge Posner's great cites and data left out):

The only questionable feature of the judgment is the length of the sentence — almost 37 years, though it is within the applicable guidelines range because of Presley’s very lengthy criminal history. Presley was 34 years old when sentenced... [and if he] earns the maximum possible good-time credit he’ll be almost 64 years old when released. If he earns no good time he’ll be almost 69.  And after release he’ll undergo five years of supervised release, which like parole is a form of custody because it imposes significant restrictions on the supervisee....

The judge pointed out that Presley is a career offender, that he began his criminal career when he was 16, that he was a large-scale heroin dealer, and that he had committed disciplinary violations in previous incarcerations.  What the judge failed to consider was the appropriateness of incarcerating Presley for so long that he would be elderly when released.  Criminals, especially ones engaged in dangerous activities such as heroin dealing, tend to have what economists call a “high discount rate” — that is, they weight future consequences less heavily than a normal, sensible, law-abiding person would....

The sentencing judge in this case ... gave no reason to think that imposing a 37-year sentence on Presley would have a greater deterrent effect on current or prospective heroin dealers than a 20-year or perhaps even a 10-year sentence, or that incapacitating him into his sixties is necessary to prevent his resuming his criminal activities at that advanced age.  Sentencing judges need to consider the phenomenon of aging out of risky occupations.  Violent crime, which can include trafficking in heroin, is generally a young man’s game.  Elderly people tend to be cautious, often indeed timid, and averse to physical danger.  Violent crime is far less common among persons over 40, let alone over 60, than among younger persons....

There needs finally to be considered the cost of imprisonment to the government, which is not trivial.  The U.S. prison population is enormous by world standards — about 1 percent of the nation’s entire population — and prisons are costly to operate because of their building materials (steel especially is very expensive) and large staffs.  If the deterrent or incapacitative effect on criminal propensities fades sharply with time, the expenses incurred in the incarceration of elderly persons may be a social waste....

We are not suggesting that sentencing judges (or counsel, or the probation service) should conduct a cost-benefit analysis to determine how long a prison sentence to give. But the considerations that we’ve listed should be part of the knowledge base that judges, lawyers, and probation officers consult in deciding on the length of sentences to recommend or impose.  There is no indication that these considerations received any attention in this case.  We do not criticize the district judge and the lawyers and probation officers for the oversight; recognition of the downside of long sentences is recent and is just beginning to dawn on the correctional authorities and criminal lawyers.  Neither the Justice Department nor the defendant’s lawyer (or the probation service) evinced awareness in this case of the problem of the elderly prison inmate....

There is much that federal sentencing judges are required to consider in deciding on a sentence to impose — maybe too much: the guidelines, the statutory sentencing factors, the statutory and regulatory provisions relating to conditions of supervised release, presentence reports, briefs and arguments of counsel, statements by defendants and others at sentencing hearings.  But in thinking about the optimal sentence in relation to the problem of the elderly prisoner, probably the judge’s primary focus should be on the traditional triad of sentencing considerations: incapacitation, which prevents the defendant from committing crimes (at least crimes against persons other than prison personnel and other prisoners) until he is released, general deterrence (the effect of the sentence in deterring other persons from committing crimes), and specific deterrence (its effect in deterring the defendant from committing crimes after he’s released).  A sentence long enough to keep the defendant in prison until he enters the age range at which the type of criminal activity in which he has engaged is rare should achieve the aims of incapacitation and specific deterrence, while lengthening the sentence is unlikely to increase general deterrence significantly if the persons engaged in the criminal activity for which the defendant is being sentenced have a high discount rate; for beyond a point reached by a not very long sentence, such persons tend not to react to increases in sentence length by abandoning their criminal careers.

June 13, 2015 in Booker in the Circuits, Drug Offense Sentencing, Examples of "over-punishment", Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (8)

Wednesday, June 10, 2015

"Invisible Women: Mass Incarceration's Forgotten Casualties"

The title of this post is the title of this notable new paper authored by Michele Goodwin now available on SSRN. Here is the abstract:

This Essay fills an important gap in social and legal policy literature, addressing the intersection of sex and mass incarceration as a serious blind spot in legal analysis. It considers two works, James B. Jacobs’ The Eternal Criminal Record, and Alice Goffman’s On The Run to make important contributions to the literature.  Among its claims, it argues that Black lives should matter to human research.

In Part I, it critiques Goffman’s book as fitting within a paradigm that pays too little attention to ethical standards and moral considerations involving Black human research subjects.  This is particularly relevant in light of Goffman’s hunger for one of her primary research subject’s “killer to die.”  It argues that cognitive bias — perceiving poor, African American human subjects as already marginal, blinds researchers to appreciating the harms in which they may expose their subjects.  Part II turns to the missing narrative of women and mass incarceration in the U.S. It sheds light on and analyzes the complex patterns that frame women’s subjugation to law enforcement — issues absent in On The Run.  Part III analyzes the extra-legal and collateral consequences of policing women, including felony disenfranchisement, loss of housing, and the chilling impacts on their children. It unpacks, what Professor James Jacobs terms, the eternal criminal record, and teases out findings in his compelling new book of the same name.

June 10, 2015 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, June 08, 2015

"America's Largest Mental Hospital Is a Jail"

The title of this post is the headline of this new Atlantic article which carries this subheadline: "At Cook County, where a third of those incarcerated suffer from psychological disorders, officials are looking for ways to treat inmates less like prisoners and more like patients." Here is an excerpt from the piece: 

At Cook County Jail, an estimated one in three inmates has some form of mental illness. At least 400,000 inmates currently behind bars in the United States suffer from some type of mental illness—a population larger than the cities of Cleveland, New Orleans, or St. Louis—according to the National Alliance on Mental Illness. NAMI estimates that between 25 and 40 percent of all mentally ill Americans will be jailed or incarcerated at some point in their lives.

“This is typically what I see everyday,” said Elli Petacque-Montgomery, a psychologist and the deputy director of mental health policy for the sheriff’s department. She showed me a medical intake form filled with blue pen scribbles. Small boxes listed possible illnesses: manic depression, bipolar disorder, ADHD, schizophrenia, and so on. The forms are designed to help jail officials identify which inmates have mental illnesses as early as possible. Details from four new inmates could fit on a single sheet. She showed me a completed one. “Of those four,” she said, pointing to the descriptors, “I have three mentally ill people.”...

What sort of crimes had these people been arrested for? One kid on the list had a tendency toward aggression, but officials emphasized that the overwhelming majority were “crimes of survival” such as retail theft (to find food or supplies) or breaking and entering (to find a place to sleep). For those with mental illness, charges of drug possession can often indicate attempts at self-medication. “Even the drugs of choice will connect to what the mental illness is,” Petacque-Montgomery told me. People with severe depression might use cocaine “to lift their mood.” Those who hear voices and have schizophrenia or bipolar disorder often turn to heroin to regulate their sleep. Marijuana use “is just constant for kids with ADD and depression,” she notes. “I’ll ask, ‘Can you eat or sleep without this?’ and they’ll say no.’”

Chicagoans with mental illness end up in jail through a chain of small decisions by different local officials. Police officers can choose to take a mentally ill person home, to the hospital, to a shelter—or to jail. Prosecutors can choose whether or not to not bring charges. Judges can choose to set higher or lower bail amounts, thereby determining whether poorer defendants can avoid pre-trial detention and keep their jobs and housing. But once a person reaches the jail, the local sheriff can’t simply decline to take them into custody.

June 8, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Thursday, June 04, 2015

"Shining a Light on Overcriminalization"

The title of this post is the title of this notable new "Backgrounder" from The Heritage Foundation authored by Jordan Richardson.  Here is the abstrat:

Overcriminalization — the overuse or misuse of the criminal law to address societal problems — manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing, and criminal sanctions for simple mistakes or accidents under a theory of strict liability.  However, overcriminalization has a more tangible aspect beyond legislation and legal theory: American citizens all too often find themselves trapped by the very system that they assumed existed for their protection and prosecuted for crimes that most people would not even recognize as criminal offenses.

Criminal justice reform is about more than policy debates in Congress or legal procedure; it is about how the lives and fortunes of ordinary Americans are threatened by abuse of the law.  Only by identifying the problem and highlighting why it matters will any meaningful change take place.

June 4, 2015 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, June 03, 2015

New Deputy AG suggesting every too-long federal prison sentence hurts public safety

This recent NPR piece, which provide a mini-profile on the new Deputy Attorney General, Sally Yates, has a headline and some quotes that might be effectively utilized by defense attorneys to argue that any unduly long federal prison sentence damages national public safety.  The piece is headlined "No. 2 At Justice Warns Growing Prison Budget Detracts From Public Safety," and here are excerpts:

Prosecutors usually spend their energy putting criminals behind bars — not urging their release. But racial disparities in the system and the huge costs of locking up so many people are pushing some government officials to call for a new approach. One of them is the woman who now runs day-to-day operations at the Justice Department. Sally Yates says she's hardly soft on crime: "I'm a career prosecutor."...

"I've been at this for 27 years now," Yates says. "I believe that it's really imperative that we do everything we can to keep our communities as safe as possible but to do that in a way that is just and fair."

The Senate confirmed Yates last month as deputy attorney general. She's using her new platform as the second in command at the Justice Department to warn the expanding prison budget has begun to threaten public safety.

The federal government spends $7 billion a year to incarcerate about 200,000 inmates. That's money she says that could pay for more FBI agents and local police. "We know that it's the cop on the street that's one of the most important things to be able to keep our communities safe. But yet over the past decade, there's been a 40 percent reduction in the grant money that's available for cops on the street," Yates says.

New Justice Department estimates obtained by NPR suggest the situation will only get worse over the next decade. If nothing changes, the projections say authorities will need to take tens of millions of dollars that could have been devoted to community policing and local law enforcement, and instead, pour that money into federal prisons. "It is simply not sustainable for us to continue at the present rates that we are now of our incarceration levels," she says.

Yates is taking that message to Capitol Hill. She wants members of Congress to dial back long mandatory prison sentences for nonviolent drug criminals. Red States like Texas and Georgia launched efforts to overhaul their justice systems years ago. Now a left-right coalition of groups from the ACLU to Koch Industries is advocating for a smarter approach at the federal level too....

The Obama administration says it has reduced both the violent crime rate and the number of people going to prison. Former Attorney General Eric Holder, one of Yates's main supporters, crowed about the data in a speech last year: "This is the first time, the first time that these two critical markers have declined together in more than 40 years."

June 3, 2015 in Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Tuesday, June 02, 2015

Spotlighting the role and importance of federal prosecutors in the drug war

Mona Lynch has this notable new op-ed in today's New York Times headlined "Reining In Federal Prosecutors." here are excerpts:

In recent months, police departments and prison systems have been taking heat for the systemic abuses that mar our nation’s justice system. But one key player has been notably absent: For decades, our federal court system has been quietly perpetrating some of the deepest injustices in the name of the war on drugs.

Federal laws passed at the height of our punitive frenzy in the 1980s have been abused by overzealous federal prosecutors to compel guilty pleas and obtain long, unjust prison sentences, especially against black drug defendants. We must rein in these practices if we are to reshape our country’s criminal justice system for the 21st century.

Prosecutors have a number of tools at their disposal, the most powerful of which is the “851,” which can be filed against those with prior drug convictions to at least double mandatory minimum sentences. In the worst case, a 10-year mandatory minimum becomes a life sentence without parole for a defendant with two prior convictions. The 851 statute was passed in 1970 to give prosecutors more discretion to seek harsh sentences against only the most serious offenders, and exempt lower-level defendants. But it has been deployed in exactly the opposite manner.

I have conducted in-depth qualitative research and interviews in four federal districts; in each, the 851 threat loomed for nearly everyone with the eligible prior record. In the words of one of my interviewees, “the 851 is the ultimate lever” used by prosecutors to force a guilty plea. And it almost always worked: Defendants were compelled to waive their rights and plead guilty to ensure that their sentences were not doubled, or worse.... [N]o entity tracks the threat or use of the 851 in drug cases. We do know, however, from qualitative research like mine and recent work by the United States Sentencing Commission that its coercive use has been pervasive.

Data also indicate that mandatory minimums and enhancements like the 851 have been disproportionately used against black defendants. While research shows that illicit drug use and distribution is generally proportionate to the racial makeup of the nation’s population, black people are overrepresented as drug defendants in federal courts, constituting 30 percent of all those sentenced for drug crimes, and a full two-thirds of those who receive life sentences.

Between 1992 and 2012, about 2,300 black men have been sentenced to life for federal drug convictions, 72 percent of whom had asserted their right to trial. While data cannot pinpoint the 851 as the trigger of those life sentences, it does indicate that 96 percent were subject to drug mandatory minimums at sentencing.

Some effort has been made to address the overzealous use of the 851 threat. In 2014, Attorney General Eric H. Holder Jr. directed prosecutors to refrain from using the 851 as a threat or inducement in plea negotiations. But while his directive has clearly changed behavior in some districts, the 851 threat remains alive in others.

As we grapple with the consequences of a three-decade-long law-and-order binge that has disproportionately affected black communities, we must repair the damage done in the past and prevent a repeat in the future. That means revisiting the unconscionably long sentences that keep Brandon and others behind bars for most or all of their lives, and it means removing hammers like the 851 from the prosecutors’ toolbox to prevent their future abuse.

June 2, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Thursday, May 28, 2015

Newt Gingrich and Van Jones lament treatment of mentally ill in US criminal justice system

CNN has this notable new commentary authored by the notable twosome of Newt Gingrich and Van Jones headlined "Mental illness is no crime." Here are excerpts:

Today, mentally ill Americans are disproportionately more likely to be arrested, incarcerated, suffer solitary confinement or rape in prison and commit another crime once released.

Quick: Name the largest provider of mental health care in America. If you guessed "our prisons and jails," you would be right. A 2006 U.S. Department of Justice study found that three out of four female inmates in state prisons, 64% of all people in jail, 56% of all state prison inmates and 45% of people in federal prison have symptoms or a history of mental disorder.

America's approach when the mentally ill commit nonviolent crimes -- locking them up without addressing the problem -- is a solution straight out of the 1800s.

When governments closed state-run psychiatric facilities in the late 1970s, it didn't replace them with community care, and by default, the mentally ill often ended up in jails. There are roughly as many people in Anchorage, Alaska, or Trenton, New Jersey, as there are inmates with severe mental illness in American prisons and jails, according to one 2012 estimate. The estimated number of inmates with mental illness outstrips the number of patients in state psychiatric hospitals by a factor of 10.

Today, in 44 states and the District of Columbia, the largest prison or jail holds more people with serious mental illness than the largest psychiatric hospital. With 2 million people with mental illness booked into jails each year, it is not surprising that the biggest mental health providers in the country are LA County Jail, Rikers Island in New York and Cook County Jail in Chicago.

Our system is unfair to those struggling with mental illness.  Cycling them through the criminal justice system, we miss opportunities to link them to treatment that could lead to drastic improvements in their quality of life and our public safety.  These people are sick, not bad, and they can be diverted to mental health programs that cost less and are more effective than jail time. People who've committed nonviolent crimes can often set themselves on a better path if they are provided with proper treatment....

A new initiative, "Stepping Up," unites state and local governments and the American Psychiatric Foundation to promote research-based practices to tackle our overreliance on jail as mental health treatment, such as in-jail counseling programs that reduce the chances of repeat offenders.

State and local officials have shown us the way.  We've seen large communities such as Miami-Dade County, Florida, completely redesign their systems at every level, training police officers in crisis intervention, instituting careful assessments of new jail admissions and redirecting their mentally ill populations into treatment, effectively reducing the rates of re-arrest....

Perhaps most surprisingly in these partisan times, Republicans and Democrats in Congress are standing shoulder-to-shoulder to support mental health reform.  The bipartisan Comprehensive Justice and Mental Health Act, co-sponsored by Sen. Al Franken, D-Minnesota, and Sen. John Cornyn, R-Texas, in the Senate, passed unanimously out of the Senate Judiciary Committee earlier this month. The legislation includes simple measures that would fund alternatives to jail and prison admissions for those in need of treatment and expand training programs for law enforcement personnel on how to respond to people experiencing a mental health crisis.

The notion of bipartisan, comprehensive criminal justice reform is not just idle talk.  It is happening.  Both sides see practical alternatives to incarceration that can reduce prison populations, improve public safety, save lives and save money.  If Congress moves swiftly to pass the great ideas now percolating in the House and Senate, it will become a reality. Take it from a conservative and a liberal: A good place to start is by addressing the needs of our mentally ill citizens in jails and prisons.

May 28, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, May 27, 2015

"A new report could have a big impact on New York’s prison population — if anyone pays attention"

The title of this post is the astute subheadline of this effective Marshall Project piece by Beth Schwartzapfel talking about a sentencing reform report finally released in New York. Here are excerpts:

A new report by some of New York’s key criminal justice players recommends major changes to the state’s sentencing system.  The report, which [is available here], would reduce the length of prison sentences and broaden eligibility for probation and other alternatives to incarceration for about one-third of the felony convictions New York hands down each year.  The report would also end the state parole board’s traditional role as the arbiter of when, exactly, prisoners go home.

With more than 50,000 people imprisoned in New York State, even small sentencing changes can make a big difference. “If you increase the time served even by three months across 10,000 people, you’re going to generate a whole lot more imprisonment,” says Martin Horn, executive director of the New York State Sentencing Commission, which produced the report.

Jonathan Lippman, chief judge of the state’s highest court, established the commission in 2010 to craft a simpler, more transparent sentencing scheme. “He did not specifically charge us to reduce the prison population,” Horn says. “If that turns out to be a side benefit, that’s terrific.”

At this point, the commission’s recommendations are just that — recommendations. The suggested changes were compiled into a piece of draft legislation that the committee has submitted to the state legislature.  But the bill so far has no sponsor, and the prospect of fewer prison beds — and, by extension, fewer prisons — has traditionally faced fierce opposition by the New York state correctional officers union and by legislators representing the upstate communities where most of the state’s prisons are located.  As it is, upstate District Attorney Kathleen Hogan, who served on the Commission, says she would not support the legislation. “I would support the idea of migrating to determinate sentences, but I think that the numbers are too low,” she told The Marshall Project. Gov. Andrew Cuomo has not said whether he will support the proposals.

New York’s body of sentencing laws is a patchwork, with the history of the state’s changing politics woven into it and over it.  As a result, the new report says, sentencing is “confusing and misleading” for prisoners and victims alike.

Historically, New York State’s sentences were all indeterminate: a judge could hand down a range of years that a prisoner might serve (such as 1-to-3 or 5-to-15).  When during that window the person would actually go home was unpredictable: it was up to a parole board.

The changes began in 1995 under Gov. George Pataki. The nation had just kicked off a federally-funded prison-building boom, and a get-tough attitude prevailed. Pataki proposed eliminating parole for those convicted of violent felonies.  Under the resulting law, judges handed down determinate sentences — a specific number of years, with very little wiggle room — and they were long.

In the 2000s, the public began calling for a change to the 1973 Rockefeller drug laws, which mandated draconian sentences like 15 years to life for even low-level drug crimes. The resulting reforms in 2004 and 2009 eliminated indeterminate sentences for most drug crimes, too.

So now, sentences for violent felonies and drug crimes are fixed, and sentences for everything else depend on the parole board. The crimes still subject to the parole board’s discretion are a hodgepodge, from filing a false tax return to second-degree stalking. The commission’s report is aimed at these crimes — class C, D, and E felonies — considered “non-violent” under the law but not always so in reality.  About 5,500 out of the 14,000 people who enter the New York State prison system each year are convicted of these crimes.

The commission, composed of judges, victims’ representatives, professors, and attorneys, recommended bringing these sentences into line with those for other crimes by eliminating the parole board’s discretion. They suggested a new matrix of sentence lengths that judges can hand down, eliminating mandatory minimums for a wide range of crimes and expanding the number of crimes eligible for alternatives to incarceration like drug treatment and community service. They also recommended much shorter terms of supervision once people are out of prison; for most offenders, researchshows that longer periods on parole do not improve public safety but do increase the odds that someone will go back to prison for a technical violation....

Similar recommendations by the 2007 O’Donnell Commission, established by Gov. Eliot Spitzer, never gained any legislative traction, in part because the recommended sentence ranges in that report were too harsh, Horn says: “The Assembly rejected that. They felt those maximums were too high, were too broad.”

This time around the opposite might be true; with these recommendations shaving months off of thousands of sentences, district attorneys and other tough-on-crime advocates might push back. Lake George District Attorney Kate Hogan submitted a letter — included as an addendum to the report — expressing “grave concerns” about the shortened sentence ranges.  She told the Marshall Project that reducing the maximum penalty available for certain crimes “discounts plea bargaining in its entirety. No one pleads the maximum. That’s how you incentivize someone to resolve a case by plea.”

May 27, 2015 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 26, 2015

"Charging Inmates Perpetuates Mass Incarceration"

The title of this post is the title of this notable new Brennan Center white paper authored by Lauren-Brooke Eisen.  Here is its introduction (with endnotes omitted):

The American criminal justice system is replete with fees that attempt to shift costs from the government to those accused and convicted of breaking the law.  Courts impose monetary sanctions on a “substantial majority of the millions of U.S. residents convicted of felony and misdemeanor crimes each year.”  Every aspect of the criminal justice process has become ripe for charging a fee.  In fact, an estimated 10 million people owe more than $50 billion in debt resulting from their involvement in the criminal justice system. In the last few decades, additional fees have proliferated, such as charges for police transport, case filing, felony surcharges, electronic monitoring, drug testing, and sex offender registration.  Unlike fines, whose purpose is to punish, and restitution, which is intended to compensate victims of crimes for their loss, user fees are intended to raise revenue.  The Justice Department’s March 2015 report on practices in Ferguson, Mo. highlights the overreliance on court fines as a primary source of revenue for the jurisdiction.  The New York Times noted that the report found that “internal emails show city officials pushing for more tickets and fines.”

Fees and debts are increasing partially because the criminal justice system has grown bigger.  With 2.2 million people behind bars, courts — and all the relevant agencies — have expanded as well.  Since the 1970s, incarceration in the U.S. has risen steeply, dwarfing the incarceration rate of any other nation on Earth.  The U.S. added about 1.1 million incarcerated people, almost doubling the nation’s incarcerated population, in the past 20 years.  The fiscal costs of corrections are high — more than $80 billion annually — about equivalent to the budget of the federal Department of Education.6 A recent report by the Center on Budget and Policy Priorities finds that corrections is currently the third-largest category of spending in most states, behind education and health care.  In fact, somewhat disconcertingly, 11 states spent more of their general funds on corrections than on higher education in 2013.

Fees already on the books have increased.  And, these fees are extending into state and local corrections.

As a result of these runaway costs, counties and states continue to struggle with ways to increase revenue to pay for exorbitant incarceration bills.  In 2010, the mean annual state corrections expenditure per inmate was $28,323, although a quarter of states spent $40,175 or more.  Not surprisingly, departments of corrections and jails are increasingly authorized to charge inmates for the cost of their imprisonment.  Although this policy is alarming, less widely understood but equally troubling is the reality that these incarceration fees perpetuate our nation’s addiction to incarceration.  This policy brief exposes how the widespread nature of charging fees to those who are incarcerated connects to the larger problem of mass incarceration in this country.

May 26, 2015 in Fines, Restitution and Other Economic Sanctions, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Monday, May 25, 2015

Providing a script for "How To Lock Up Fewer People" in the United States

Given that there has been plenty of talk, but still relatively little action. on proposals for significant federal sentencing reform, perhaps it is especially timely for Marc Mauer and David Cole to have this New York Times commentary providing someting of a how-to guide for dealing with modern mass incarceration.  The piece is headlined "How To Lock Up Fewer People," and here are excerpts:

Today, nearly everyone acknowledges that our criminal justice system needs fixing, and politicians across the spectrum call for reducing prison sentences for low-­level drug crimes and other nonviolent offenses.  But this consensus glosses over the real challenges to ending mass incarceration.  Even if we released everyone imprisoned for drugs tomorrow, the United States would still have 1.7 million people behind bars, and an incarceration rate four times that of many Western European nations.  Mass incarceration can be ended.  But that won’t happen unless we confront the true scale of the problem.

A hard­nosed skeptic would tell you that fully half the people in state prisons are serving time for violent offenses.  And most drug offenders behind bars are not kids caught smoking a joint, but dealers, many with multiple prior convictions.  We already have about 3,000 drug courts diverting those who need it to treatment rather than prison.  Recidivism remains astonishingly high for those we release from prison, so releasing more poses real risks....

It’s true that half the people in state prisons are there for a violent crime, but not all individuals convicted of violent crimes are alike. They range from serial killers to minor players in a robbery and battered spouses who struck back at their abusers. If we are going to end mass incarceration, we need to recognize that the excessively long sentences we impose for most violent crimes are not necessary, cost­-effective or just.

We could cut sentences for violent crimes by half in most instances without significantly undermining deterrence or increasing the threat of repeat offending.  Studies have found that longer sentences do not have appreciably greater deterrent effects; many serious crimes are committed by people under the influence of alcohol or drugs, who are not necessarily thinking of the consequences of their actions, and certainly are not affected by the difference between a 15-­year and a 30­-year sentence....

Offenders “age out” of crime — so the 25-­year-­old who commits an armed robbery generally poses much less risk to public safety by the age of 35 or 40.  Yet nearly 250,000 inmates today are over 50.  Every year we keep older offenders in prison produces diminishing returns for public safety.  For years, states have been radically restricting parole; we need to make it more readily available.  And by eliminating unnecessary parole conditions for low­-risk offenders, we can conserve resources to provide appropriate community­based programming and supervision to higher-­risk parolees.

It’s true that most individuals incarcerated for a drug offense were sellers, not just users. But as a result of mandatory sentencing laws, judges often cannot make reasonable distinctions between drug kingpins and street­corner pawns.  We ought to empower judges to recognize the difference, and to reduce punishment for run­-of­-the-­mill offenders, who are often pursuing one of the few economic opportunities available to them in destitute communities....

Recidivism is also a serious obstacle to reform.  Two­-thirds of released prisoners are rearrested within three years, and half are reincarcerated.  But many of the returns to prison are for conduct that violates technical parole requirements, but does not harm others.  And much of the problem is that the scale and cost of prison construction have left limited resources for rehabilitation, making it difficult for offenders to find the employment that is necessary to staying straight. So we need to lock up fewer people on the front end as well as enhance reintegration and reduce collateral consequences that impede rehabilitation on the back end.

Criminal justice is administered largely at the state level; 90 percent of those incarcerated are in state and local facilities.  This means mass incarceration needs to be dismantled one state at a time.  Some states are already making substantial progress. New Jersey, California and New York have all reduced their prison populations by about 25 percent in recent years, with no increase in crime.  That should be good news for other states, which would reap substantial savings — in budgetary and human terms — if they followed suit. While the federal government cannot solve this problem alone, it can lead both by example and by providing financial incentives that encourage reform....

Today, at long last, a consensus for reform is emerging. The facts that no other Western European nation even comes close to our incarceration rates, and that all have lower homicide rates, show that there are better ways to address crime. The marked disparities in whom we choose to lock up pose one of the nation’s most urgent civil rights challenges. But we will not begin to make real progress until we face up to the full dimensions of the task.

May 25, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Thursday, May 21, 2015

Examining what qualifies as an LWOP sentence for purposes of Graham and Miller

This new piece at The Marshall Project, headlined "Life Expectancy: How many years make a life sentence for a teenager?," spotlights an Eighth Amendment issue that has been engaging lower courts in the five years since SCOTUS in Graham began putting limits of LWOP sentences for juvenile offenders.  Eventually the Supreme Court will have to resolve the issue of just what qualifies as an LWOP sentence, and here is an account of issue (with some links to notable rulings):

James Comer was 17 when he, an older cousin, and their friend made a series of violent and irreversible decisions: One night in April 2000, they robbed four people at gunpoint. They followed one of their victims for miles as she drove home from her night shift as a postal worker, then pointed a gun at her head outside her house.  Comer’s friend, 17-year-old Ibn Ali Adams, killed their second victim when he discovered the man had no money.

Comer’s youth, his lawyers argue, was at least partly responsible for his poor judgment and impulsive behavior. And it is his youth that may save him from dying in prison. Earlier this month, an Essex County, New Jersey, judge ordered a new sentencing hearing for Comer in light of Miller v. Alabama. ...

But Comer isn’t serving life without parole, at least not technically. For felony murder and multiple counts of armed robbery, he was sentenced to 75 years. He will be eligible for parole, but not until his 86th birthday — more than 20 years past his life expectancy, according to actuarial data his lawyers cited. This sentence “amounts to de facto life without parole and should be characterized as such,” the judge wrote.

Miller v. Alabama was the third in what’s come to be known as the “Roper/Graham/Miller trilogy” of cases in which the Supreme Court ruled, essentially, that kids are different. Teenagers’ still-developing brains make them more impulsive, more susceptible to peer pressure, and less able to understand the consequences of their actions. This makes them less culpable than adults and more amenable to rehabilitation as they mature, the court said.

With Roper, the court outlawed the death penalty for juveniles. With Graham, it struck down life-without-parole sentences for non-homicide crimes. With Miller, the justices forbid mandatory life-without-parole sentences, even for murder. Life sentences for juveniles are allowed only if the judge first has the chance to consider how youth and immaturity may have contributed to the crime....

Now a growing number of courts are interpreting the trilogy even more broadly, applying their principles to cases, like Comer’s, that aren’t explicitly covered by the court’s rulings.

“When read in light of Roper and Graham,” Miller v. Alabama “reaches beyond its core holding,” the Connecticut Supreme Court held last month in State v. Riley. In that case, 17-year-old Ackeem Riley was sentenced to 100 years in prison after he shot into a crowd in a gang-related incident, killing one teenager and wounding two children.  The court ordered a new sentencing hearing, finding that the sentencing judge had not adequately considered Riley’s youth.  Though Miller specifically targeted mandatory life without parole sentences — technically, Riley’s sentence was neither mandatory nor life without parole — the Supreme Court’s reasoning “counsels against viewing these cases through an unduly myopic lens,” the Connecticut court said.

Courts have handed down similar rulings in Wyoming, Florida, California, Iowa, and Colorado.  Another case is pending in Ohio.

In Brown v. Indiana, the state supreme court ordered a new sentencing hearing for Martez Brown, who was 16 when he and two friends killed a couple in a botched robbery. Quoting Miller, the court ruled that “similar to a life without parole sentence, Brown’s 150 year sentence ‘forswears altogether the rehabilitative ideal.’”  Although Brown’s sentence was not formally a life-without-parole sentence, they wrote, “we focus on the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.”

May 21, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

New Vera Institute of Justice report highlights the true, high "Price of Jails"

Vera-300x188The Vera Institute of Justice has just published this important new report titled, "The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration." I received a press release about the report which provides this summary of its coverage and findings:

Hidden costs make jails far more expensive than previously understood, according to a new report released today by the Vera Institute of Justice, The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration. Because other government agencies, whose expenditures are not reflected in jail budgets, bear a large share of costs, the report finds that Americans significantly underestimate how much of their tax dollars are being spent on incarceration.

While the U.S. Department of Justice estimated that local communities spent $22.2 billion on jails in 2011, that figure fails to take into account significant costs such as employee benefits and inmate medical care that may not be included in jail budgets. For example, in addition to the $1.1 billion spent by the City of New York Department of Corrections in 2014, other agencies spent $1.3 billion on jail employee benefits, health care and education programs for incarcerated people, and administration, bringing the total cost to $2.4 billion—more than double the official jail budget....

Despite growing national attention to the large number of Americans confined in state and federal prisons, significantly less attention has been paid to local criminal justice systems, where over-incarceration begins. There are nearly 12 million local jail admissions every year — almost 20 times the number of prison admissions, and equivalent to the populations of Los Angeles and New York City combined. The report found that the high cost of jails is most directly tied to inmate population and associated personnel costs, rather than to misspent funds in any one particular budget area.

The report’s findings are based on surveys of 35 jail systems, representing small, medium, and large jails in 18 states from every region of the country, and representing 9% of the total jail population. The survey results confirm that determining the total cost of a jail is not a simple task, even for the agency that runs it. In documenting jail expenses—which in every case surveyed extended beyond the reported corrections budget—and who pays for them, the report finds that, by and large, local taxpayers foot the bill for jails, and the costs are much higher than most people realize.

“Jails are a tremendous public cost,” said Julia Stasch, President of the MacArthur Foundation, which supported the report. “This new report proves those costs are even higher than previously thought, adding urgency to the need for reform that addresses their overuse and misuse in fiscally strapped jurisdictions nationwide.”

In addition to developing a first-of-its-kind survey for jurisdictions to use that accurately measures all of the costs of running a jail, the report reveals:

May 21, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Tuesday, May 19, 2015

Is a former lobbyist and former federal prisoner likely to be a uniquely good sentencing reform advocate?

The question in the title of this post is prompted by this notable new CQ Roll Call article headlined "Out of Prison, Ex-Lobbyist Pushes Sentencing Overhaul." Here are excerpts:

Kevin Ring helped write a bill in the 1990s that toughened penalties for methamphetamine charges. Now, recently out of prison, the former Team Abramoff lobbyist says he wants Congress to overhaul the nation’s justice system and to undo mandatory minimum requirements altogether.

His own effort comes at a pivotal time for the issue on Capitol Hill, where bipartisan measures (S 502, HR 920) to reduce stiff sentencing requirements for drug charges appear to be gaining some traction.

Ring, a former Hill aide, is wrapping up his 20-month sentence for an honest services fraud conviction by serving home confinement that allows him to work in downtown Washington, D.C. He is drawing on his K Street and criminal justice experiences at Families Against Mandatory Minimums, an advocacy group devoted to peeling back the same sort of laws he helped push through while serving as a Senate Judiciary Committee staffer.

“We wanted to look tough on meth,” said Ring, a Republican, who recently started working full-time as FAMM’s new director of strategic initiatives. “The Hill is run by too many 20-year-olds with a lot of opinions and not enough experience, and I was part of that. I didn’t have enough experience to write criminal statutes. What did I know?”

Ring is a former colleague of ex-K Street power player Jack Abramoff, and like Abramoff he went to the federal prison camp in Cumberland, Md. Ring started working with FAMM part-time five years ago, doing grant writing. He’d already lost two jobs at K Street firms amid the unraveling Abramoff scandal, and he needed work. He had to terminate all outside employment during his prison term.

“When he first interviewed with us, he was incredibly humble, hat in hand, and said, ‘I’m about to be indicted,’” recalled Julie Stewart, FAMM’s president and founder and a self-described libertarian. “I immediately realized what an incredible gem we had in Kevin because of his conservative background. It was very clear to me that Kevin could do so much good for FAMM and for our issue and promoting it in a voice that could really be heard by the people we were trying to influence on the Hill.” FAMM, she noted, is a rare organization that gets funding from conservative David Koch and liberal George Soros.

Ring, 44, said he doesn’t expect he will meet the legal definition of a lobbyist at FAMM, but he intends to write op-eds, congressional testimony and advocacy letters. In short, he plans to influence the process largely from the background. It's not likely to be an easy sell.

Even as the White House and Republicans on the Hill, including Sen. Mike Lee of Utah and Rep. Raúl R. Labrador of Idaho, are championing sentencing overhaul legislation, such proposals are far from a fait accompli. Senate Judiciary Chairman Charles E. Grassley of Iowa has pushed back on criticism that he is blocking sentencing legislation, but he’s made clear his support would come with a price....

Grassley, in a recent speech at the Press Club, said white-collar criminals such as Ring receive "paltry sentences." He has suggested such criminals ought to be subject to mandatory minimums in exchange for reduced minimums for nonviolent drug offenders. "The last thing we need is to take away a tool that law enforcement and prosecutors use to get the bad guys," Grassley said.

His spokeswoman, Beth Levine, said Grassley’s staff and aides to the lawmakers pushing for sentencing legislation “have been sitting down to work something out.”

FAMM, as well as Ring, opposes new mandatory minimum requirements for white-collar crimes. “It’s an awful, awful idea,” Ring said during an interview last week in FAMM’s offices near Metro Center. “Even without mandatory minimums, prosecutors can threaten you with such a long sentence that you want to plead guilty.”

He said the mandatory minimums have inflated sentencing guidelines across crimes, even those not subject to mandatory sentences. In Ring’s case, prosecutors asked the judge to sentence him to at least 20 years in prison. He said even his current home confinement, which includes a GPS ankle tracker to monitor his location 24 hours a day, is surprisingly restrictive and ought to be used more for nonviolent offenders — keeping them out of the prison system and allowing them to continue to work, pay taxes and care for their children.

It’s a message that resonates with budget-conscious Republicans, especially those with a libertarian stance. Stewart, who started FAMM 24 years ago, when her brother went to federal prison for growing marijuana in Washington state, said the current conversation on Capitol Hill and across the country is unprecedented. “My one fear is that talk is cheap,” she said. “It’s going to be a push.”

And Ring will be right in the middle of it. “I believed it before, and now I just feel like I’m better informed for having had the experience,” Ring said. “You know I wouldn’t wish the experience on anyone, but now that I have it, I feel compelled to say what I saw. So that goes to not only how prosecutions work, how sentencing works, but then also how prisons work or don’t work.”

May 19, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 18, 2015

NY Times editorial astutely praises "Justice Reform in the Deep South"

Throughout too much of America's history, the term "Southern Justice" would invoke shudders and fear. (Indeed, as discussed here, Norman Rockwell used this term as the title for his historic painting depicting the deaths of three civil rights workers killed for seeking to register African American voters.) But, as effectively highlighted by this new New York Times editorial, lawmakers in the deep south are lately doing a lot to remake the image of southern justice:

It has been getting easier by the day for politicians to talk about fixing the nation’s broken criminal justice system. But when states in the Deep South, which have long had some of the country’s harshest penal systems, make significant sentencing and prison reforms, you know something has changed.

Almost all of these deep-­red states have made changes to their justice systems in the last few years, and in doing so they have run laps around Congress, which continues to dither on the passage of any meaningful reform.  Lawmakers in Alabama, for example, voted nearly unanimously early this month to approve a criminal justice bill.  Alabama prisons are stuffed to nearly double capacity, endangering the health and lives of the inmates, and the cost of mass imprisonment is crippling the state budget at no discernible benefit to public safety.

The bill would cut the state’s prison population of nearly 25,000 by about 4,500 people over the next five years. Sentences for certain nonviolent crimes would be shortened, and more parole supervisors would be hired to help ensure that people coming out of prison don’t return. Gov. Robert Bentley is expected to sign the measure as soon as Tuesday.

Before Alabama, South Carolina passed its own package of reforms in 2010.  In February, it closed its second minimum-­security prison in a year.  Georgia got on board with significant reforms to its adult and juvenile prison systems in 2012 and 2013, including giving judges more leeway to sentence below mandatory minimums and increasing oversight of prisons.  In 2014, Mississippi passed its own systemic fixes, like providing more alternatives to prison for low­level drug offenders.

Of course, all these states had abysmal conditions to start with. Mississippi imprisons more of its citizens per capita than China and Russia combined. That’s worse than any state except Louisiana, which has not yet managed reforms as broad as its neighbors. Alabama was facing the threat of federal intervention to alleviate its crushingly overcrowded prisons if it didn’t act.  And many of these state reforms are far more modest than they should be....

Nonetheless, these initiatives show important progress. Less than a decade ago, it was difficult to find any governor anywhere, of either party, who would go near this issue. Now, a Republican governor like Nathan Deal of Georgia is pointing with pride to two major reform packages, as well as the state’s “ban the box” law, which prohibits the state from asking potential employees about their criminal history until later in the hiring process.

Still, justice reform is a fragile proposition, and can be easily thwarted by more powerful political forces.  As the 2016 presidential election approaches, most of the major candidates agree that criminal­justice reform is a priority, but there remains a good deal of ambivalence on how to move forward.  There needn’t be.  The reforms in the southern states, though limited, are already paying off.  The presidential candidates — not to mention Congress — should be paying close attention.

May 18, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, May 17, 2015

After reversal of most serious charges, elderly nun and fellow peace activists released from federal prison

As reported in this AP article, headlined "3 anti-nuclear activists released from federal prison," a notable federal civil disobedience case has taken some notable new turns this month. Here are the details:

An 85-year-old nun and two fellow Catholic peace activists who vandalized a uranium storage bunker were released from prison on Saturday, their lawyer said.  Attorney Marc Shapiro says Sister Megan Rice was released just hours after 66-year-old Michael Walli and 59-year-old Greg Boertje-Obed also were let out of prison.

The trio was ordered released by a federal appeals court on Friday.  The order came after the 6th U.S. Circuit Court of Appeals in Cincinnati last week overturned their 2013 sabotage convictions and ordered resentencing on their remaining conviction for injuring government property at the Y-12 National Security Complex in Oak Ridge.

The activists have spent two years in prison.  The court said they likely already have served more time than they will receive for the lesser charge.

On Thursday, their attorneys petitioned the court for an emergency release, saying that resentencing would take weeks if normal court procedures were followed.  Prosecutors responded that they would not oppose the release, if certain conditions were met. "They are undoubtedly relieved to be returning to family and friends," said Shapiro, who represented the activists in their appeal.

Rice, Walli and Boertje-Obed are part of a loose network of activists opposed to the spread of nuclear weapons.  To further their cause, in July 2012, they cut through several fences to reach the most secure area of the Y-12 complex.  Before they were arrested, they spent two hours outside a bunker that stores much of the nation's bomb-grade uranium, hanging banners, praying and spray-painting slogans....

Rice was originally sentenced to nearly three years and Walli and Boertje-Obed were each sentenced to just over five years.  In overturning the sabotage conviction, the Appeals Court ruled that their actions did not injure national security.

Boertje-Obed's wife, Michele Naar-Obed, said in a phone interview from her home in Duluth, Minnesota, she hoped her husband would be released from prison by Monday, which will be his 60th birthday.  Naar-Obed previously served three years in prison herself for anti-nuclear protests.  She said that if their protests open people's minds to the possibility of life without nuclear weapons, then "yeah, it was worth it."

Prior related posts:

May 17, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Wednesday, May 13, 2015

"What Private Prisons Companies Have Done to Diversify in the Face of Sentencing Reform"

The title of this post is this interesting Bloomberg Business article, and here are excerpts:

America’s overall prison population has increased by 500 percent over the last 40 years, and the U.S. incarcerates more people than any other country, by far.  State and federal authorities began turning to private prison companies in the 1980s to handle overflowing facilities, and today about 8 percent of prisoners in the U.S. are housed in privately run prisons. Almost all are run by the two largest providers: Corrections Corporation of America and GEO Group.

In September 2014, then-Attorney General Eric Holder announced that the federal prison population had declined for the first time since 1980.  There were nearly 5,000 fewer prisoners in federal prisons in the 2014 fiscal year, compared to the year before, he said. The latest figures for state prisons are only from 2013, which showed an increase of 6,300 prisoners from the previous year.

Both GEO Group and CCA — which last year pulled in a combined $3.3 billion in annual revenue — have taken moves in recent years to diversify into services that don't involve keeping people behind bars.  GEO Group in 2011 acquired Behavioral Interventions, the world’s largest producer of monitoring equipment for people awaiting trial or serving out probation or parole sentences.  It followed GEO’s purchase in 2009 of Just Care, a medical and mental health service provider which bolstered its GEO Care business that provides services to government agencies.

“Our commitment is to be the world’s leader in the delivery of offender rehabilitation and community reentry programs, which is in line with the increased emphasis on rehabilitation around the world,” said GEO chairman and founder George Zoley during a recent earnings call.  

For $36 million in 2013, CCA acquired Correctional Alternatives, a company that provides housing and rehabilitation services that include work furloughs, residential reentry programs, and home confinement.  “We believe we’re going to continue to see governments seeking these types of services, and we’re well positioned to offer them,” says Steve Owen, CCA’s ‎senior director of public affairs.

Brian W. Ruttenbur, a managing director at CRT Capital Group’s research division, says that neither GEO or CCA will be significantly hurt by sentencing reform in the near future. “The big growth in recent years has been with [U.S. Immigration and Customs Enforcement, or ICE] and both of these companies have historically made heavy investments there,” Ruttenbur says.  Immigration detainees are commonly held in the same private facilities that contain state and federal prisoners, and a Government

Accountability Office analysis of ICE data showed that immigration detentions more than doubled between 2005 and 2012. Alex Friedmann, associate director of the Human Rights Defense Center and managing editor of Prison Legal News, says sentencing reform will probably not affect immigration detainees. “Immigration reform might, but even under proposed reform legislation, detention will likely increase,” he says. In 2015, more than $2 billion in federal contracts are up for bid to run five or more prisons that meet the “Criminal Alien Requirements” and house non-U.S. citizens.

May 13, 2015 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Senator Cornyn highlights his plan to "ensure that prisons don’t become nursing homes behind bars"

This recent post spotlighted the Washington Post's extended front-page story about the graying of America's prison populations.  Notably, Senator John Cornyn has now penned this letter to the editor to explain what he is trying to do to deal with this issue:

A bipartisan proposal working its way through Congress would offer a path home for some nonviolent, elderly prisoners.

The Corrections Act, which I have introduced with Sen. Sheldon Whitehouse (D-R.I.), includes a provision that would make prisoners age 60 and older eligible for early release after serving two-thirds of their sentences.  This reform builds on an expired pilot program from a bipartisan prison reform law known as the Second Chance Act of 2007.  That program showed good results before it was canceled last year, and our proposal would save taxpayer money by treating seriously ill and dying individuals with compassion.

It is becoming increasingly clear that we must make bipartisan efforts to reform our criminal justice system.  Many of the issues involved are complex, but reforming the system to ensure that prisons don’t become nursing homes behind bars doesn’t need to be one of them.

May 13, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 12, 2015

"Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives"

The title of this post is the title of this notable new report released today from the Vera Institute of Justice. Here is how the report is described on this Vera webpage:

Segregated housing, commonly known as solitary confinement, is increasingly being recognized in the United States as a human rights issue.  While the precise number of people held in segregated housing on any given day is not known with any certainty, estimates run to more than 80,000 in state and federal prisons — which is surely an undercount as these do not include people held in solitary confinement in jails, military facilities, immigration detention centers, or juvenile justice facilities.  Evidence mounts that the practice produces many unwanted and harmful outcomes — for the mental and physical health of those placed in isolation, for the public safety of the communities to which most will return, and for the corrections budgets of jurisdictions that rely on it for facility safety.

Yet solitary confinement remains a mainstay of prison management and control in the U.S. largely because many policymakers, corrections officials, and members of the general public still subscribe to some or all of the common misconceptions and misguided justifications addressed in this report.  This publication is the first in a series on solitary confinement, its use and misuse, and ways to safely reduce it in our nation’s correctional facilities made possible in part by the Robert W. Wilson Charitable Trust.

May 12, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, May 08, 2015

Alabama rolls to join tide of red states enacting significant prison and sentencing reform

Images (1)As reported in this local article, the "Alabama Legislature Thursday gave final approval to a sweeping prison reform bill aimed at addressing the state's prison overcrowding crisis." Here are the basic details and the back-story:

The bill passed the House on a 100 to 5 vote Thursday evening.  The Senate, which approved the bill in March, concurred in the changes just a few minutes later on a 27 to 0 vote.  The legislation now goes to Gov. Robert Bentley, who said in a statement Thursday evening he planned to sign the bill, pending a legal review.

Bentley said in a statement the passage of the bill signaled "a historic day for Alabama as we take a significant step forward to address reform of Alabama's criminal justice system."...

Sen. Cam Ward, R-Alabaster, said Thursday evening the passage of the bill was a first step, not a final solution to the crisis. "No one should think we pass this bill tonight and prisons are solved, because they're not," Ward said.

Prison overcrowding, an issue in Alabama for decades, stood at 186 percent in January, and the crisis has contributed to mounting violence in the state's correctional facilities. The U.S. Department of Justice is investigating the Julia Tutwiler Prison for Women over accounts of sexual violence and harassment.  Six inmates have been killed at the St. Clair Correctional Facility since 2011, and allegations of physical or sexual violence have been leveled at three other prisons, including Elmore County Correctional Facility.

The reform bill aims to address the prison overcrowding crisis with new investments in parole, probation and supervision; the creation of a Class D felony for relatively minor crimes; limits on prison time and mandatory supervision for those convicted of Class C felonies, and changes to punishments for technical violations of parole.  The changes are expected to cost between $23 and $26 million a year, roughly 6.5 percent of the Department of Corrections' current $394.1 million allocation from the General Fund.

On its own, the bill will not resolve the crisis.  However, with additional building funded under a separate piece of legislation, capacity could fall to 138 percent over the next five years, with the overall population falling by about 4,500 inmates.  "That would be the largest reduction of any state in the country to this date," Ward said.

Ward said that may prevent the system from falling into federal receivership, which could lead to significant increases in prison spending; mass release of prisoners, or both. The bill before the House, Ward said, was a targeted way to address the population.  "No one's being released early," he said. "That's what we're trying to avoid, a bunch of violent offenders being released early."

The bill reflects recommendations made by the Council of State Governments and approved by the Alabama Prison Reform Task Force, which Ward chairs.  House Judiciary Committee chairman Mike Jones, R-Andalusia, said at the start of the House debate that the bill was not a matter of ideology.  "This is not about being Democrats, this is not about being Republicans, this is about being responsible for a problem our state faces," he said....

Some members of the Alabama Prison Reform Task Force had pushed for a more sweeping bill that would have made many of the provisions retroactive.  However, Ward and other sponsors of the legislation said the coalition behind the reforms was not likely to have gone that far.

The passage of the legislation received praise from both sides of the ideological divide. Susan Watson, the executive director of ACLU Alabama, applauded the passage of the bill in a statement Thursday evening.  "The passage of this legislation shows that Alabama acknowledges there is a serious over-incarceration problem in our prisons and that it is dedicated to fixing it," the statement said.

Katherine Robinson, vice president of the Alabama Policy Institute, called the move a "significant step" toward addressing the problem.  "This collaborative effort has provided the necessary catalyst of meaningful reform to Alabama's prison system," Robinson said in a statement.

House Speaker Mike Hubbard, R-Auburn, said the accusations at Tutwiler, St. Clair and other facilities served as a "wake-up call" to legislators who may have otherwise been reluctant to address a politically difficult issue.  "Clearly the best course of action for us as a state was to take control of this and fix it ourselves," he said.  "I'm proud of the fact we have taken a leadership role.  It was clear we were running out of time."

May 8, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, May 07, 2015

"Mass Incarceration: The Silence of the Judges"

The title of this post is the headline of this lengthy piece authored by Judge Jed Rakoff appearing in The New York Review of Books.  Here is how it starts and ends:

For too long, too many judges have been too quiet about an evil of which we are a part: the mass incarceration of people in the United States today.  It is time that more of us spoke out. 

The basic facts are not in dispute.  More than 2.2 million people are currently incarcerated in US jails and prisons, a 500 percent increase over the past forty years.  Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population.  The per capita incarceration rate in the US is about one and a half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada.  Another 4.75 million Americans are subject to the state supervision imposed by probation or parole.

Most of the increase in imprisonment has been for nonviolent offenses, such as drug possession.  And even though crime rates in the United States have declined consistently for twenty-four years, the number of incarcerated persons has continued to rise over most of that period, both because more people are being sent to prison for offenses that once were punished with other measures and because the sentences are longer.  For example, even though the number of violent crimes has steadily decreased over the past two decades, the number of prisoners serving life sentences has steadily increased, so that one in nine persons in prison is now serving a life sentence.

And whom are we locking up? Mostly young men of color.  Over 840,000, or nearly 40 percent, of the 2.2 million US prisoners are African-American males.  Put another way, about one in nine African-American males between the ages of twenty and thirty-four is now in prison, and if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes.  Approximately 440,000, or 20 percent, of the 2.2 million US prisoners are Hispanic males....

In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality.  More haltingly, we have also made some progress in our treatment of the poor and disadvantaged.  But the big, glaring exception to both these improvements is how we treat those guilty of crimes.  Basically, we treat them like dirt.  And while this treatment is mandated by the legislature, it is we judges who mete it out.  Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?

May 7, 2015 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

"Unequal Justice: Mobilizing the Private Bar to Fight Mass Incarceration"

The title of this post is the title of this intriguing new report recently published by the Lawyers’ Committee for Civil Rights Under Law.  This new Crime Report piece, headlined "Acknowledging Bias in the Criminal Justice System," provides a helpful summary of the report's key themes:

Mass incarceration reform efforts rarely formally address racial disparities within the criminal justice system, according to a new report from the Lawyers’ Committee for Civil Rights Under Law, an advocacy group.  The report outlines systematic racial disparities in the criminal justice system and proposes strategies to address them.  It was created as a result of a series of “listening sessions” on race and imprisonment.

The sessions included dozens of practitioners, experts, academics, national law firm representatives, and formerly incarcerated individuals, who gathered “to discuss the state of mass incarceration, reform efforts, and the role of national law firms in this movement.”  The discussions near unanimous agreement that there is bias against black and Hispanic defendants in the criminal justice system.

“However, this fact is often absent in public discourse and almost never formally addressed in reform efforts.  This is particularly troubling since racial disparities in incarceration are often the result of implicit racial bias and structural or institutionalized racial discrimination, deep-rooted species of dysfunction which can only begin to be addressed by the acknowledgement and recognition that it exists,” the report’s authors wrote.

The report also noted that there is a “huge gap” in the legal effort to change mass incarceration. “Simply put, very few organizations in the nation have the resources, expertise, and will to fight mass incarceration in the courts,” the authors wrote.

May 7, 2015 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Inspector General report highlights problems posed by aging federal prison population

As reported in this USA Today piece, headlined "Feds struggle to manage growing number of elderly inmates," a new report highlights an "old problem" in federal prisons.  Here are the basics:

Aging inmates remain the fastest-growing segment of the federal prison population and authorities are struggling to manage their increasing medical care and assistance with daily living, an internal Justice Department's review found. Between 2009 and 2013, the number of inmates 50 and older grew by 25% to 30,962, while the portion of younger prisoners declined by 1%, the Justice Department's inspector general reported.

The review is part of a continuing series of examinations of the federal government's costly prison system. And while the federal Bureau of Prisons last year relaxed its policy on the release of elderly or medically compromised inmates who are 65 and older, the review found that only two inmates without medical conditions had been freed during the first year of the revised policy (August 2013 to September 2014) aimed at trimming an overall prison population of more than 200,000.

In a written response, the Justice Department said that 18 prisoners had been freed under the new compassionate release policy from August 2013 to the present. "The department is committed to continued implementation of its compassionate release program ... and it will carefully consider the inspector general's recommendation to further expand the program,'' the Justice statement read.

Largely due to increasing health care needs, the average annual cost to house older inmates (defined as 50 and over) is $24,538 or 8% more than younger prisoners. "BOP institutions do not have appropriate staffing levels to address the needs of aging inmates, and they provide limited training for this purpose,'' the inspector general's report concluded, adding that the prison facilities are "inadequate'' for those inmates with compromised mobility or other physical limitations.

The full 70+ page report, titled "The Impact of an Aging Inmate Population on the Federal Bureau of Prisons," is available at this link.

May 7, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Wednesday, May 06, 2015

How many federal prison years are being served by defendants who (plausibly?) claimed compliance with state medical marijuana regimes?

The question in the title of this post is prompted by this new article from Michigan headlined "West Michigan man sent to prison for purported medical marijuana grow operation."  Here are the basics of this story with some follow-up data/questions:

One of the two leaders of a medical marijuana grow operation has been sentenced to 14 years in federal prison.  Phillip Joseph Walsh, 54, was sentenced Monday by U.S. District Judge Paul Maloney in Kalamazoo.  Betty Jenkins, described as his "life partner" in court records, will be sentenced June 29.

The Kent County residents were convicted at trial of running a marijuana grow operation that prosecutors say brought in $1.3 million.  The two, along with eight others, including a doctor who authorized patients for use of medical marijuana, were arrested last year for growing marijuana in multiple places in West Michigan.

The government contended that much of the marijuana grown was sold outside of Michigan. Jenkins was considered the leader of the organization.  The defendants argued they acted within the guidelines of Michigan's medical marijuana law but were not allowed to use the law as a defense to the federal charges.

Kent County Area Narcotics Team and U.S. Drug Enforcement Administration used multiple search warrants to raid numerous properties, including apartment buildings in Gaines Township. Police seized 467 marijuana plants and 18 pounds of processed marijuana.

Defense attorney Joshua Covert said his client, a father of four daughters, was "very nervous" after reviewing advisory sentencing guidelines that called for 151 to 188 months in prison.  He said that Walsh has been a good, caring father and a hard worker and has led a productive life.  "Mr. Walsh and his life partner, Ms. Jenkins, lived a comfortable but certainly not lavish or extravagant life that was financed by rental income from property Ms. Jenkins obtained through her divorce," the attorney wrote in a sentencing memorandum.

"The endeavor of manufacturing marijuana was not particularly successful for Mr. Walsh from a financial standpoint because it proved to be difficult and expensive to manufacture marijuana," he wrote....  He said his client "is not seeking sympathy or pity" but asked for leniency "given the relaxed attitude toward marijuana nationwide and specifically Michigan in regards to marijuana."

Assistant U.S. Attorney Mark Courtade said Walsh and Jenkins began manufacturing marijuana on Forest Hill Avenue SE in 2010.  Walsh hired a man to help with the grow operation before both were convicted for their roles.  The other man quit, "but Walsh and Jenkins carried on, unfazed," Courtade said.

"Defendant Walsh developed the 'marketing scheme' that ensnared many of the codefendants in this case," the prosecutor wrote....  He said that Walsh tried to insulate himself by staying he was only "'building grow rooms' ... his real motivation was far more nefarious."

He said Walsh grew marijuana for profit, with some sold in Ohio, some in Rhode Island. Courtade also said that Walsh could not document wages he earned — he reported remodeling and roofing homes — but he managed to hired his own attorneys, pay for a co-defendant's expert witnesses and build numerous manufacturing operations. He recommended a sentence within guidelines.

This story of a lengthy federal prison sentence for major marijuana dealing in a medical marijuana state itself highlights the challenges of coming up with a satisfactory answer to the question in the title of this post.  The defendants here were apparently quick to claim that they were acting in accord with Michigan state medical marijuana laws, but the facts reported suggest little basis for this defense claim of state-law compliance.

That said, I know there are at least a handful (and perhaps more than a handful) of the roughly 5000 federal prosecutions for marijuana trafficking sentenced in federal courts each year involving defendants who truly have a plausible claim to being in compliance with state medical marijuana laws.  A low "guestimate" that an average of 10 federal marijuana defendants in each of the last 10 years have been been sentenced to an average of 10 years in federal prison for medical marijuana activities would, in turn, suggest that 1000 years in federal prison are being served by defendants who plausibly claimed compliance with state medical marijuana regimes.  

That is a lot of federal prison time (which would be costing federal taxpayers roughly $30 million because each prison year costs roughly $30,000).  And I have an inkling the number could be higher.

May 6, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Imprisonment for 15 years for sex on the beach?!?! Really?!?!

ImagesI had heard earlier this week about the Florida couple getting into criminal trouble for having sex in public on a beach, but only this morning have I focused on the reality that, thanks to Florida's severe recidivist sentencing laws, it appears that one of the defendants may have to serve 15 years(!!) in state prison for this crime.  This local story, headlined "Couple found guilty of having sex on Florida beach," explains:

A jury Monday found a couple guilty of having sex on Bradenton Beach after only 15 minutes of deliberation. The convictions carry a maximum prison sentence of 15 years.

Jose Caballero, 40, and Elissa Alvarez, 20, were charged with two counts each of lewd and lascivious behavior for having sex on a public beach on July 20, 2014. Video played in the courtroom during the 1- 1/2-day-long trial showed Alvarez moving on top of Caballero in a sexual manner in broad daylight. Witnesses testified that a 3-year-old girl saw them.

Both Caballero and Alvarez will now have to register as sex offenders.

A sentencing date was not announced, but Assistant State Attorney Anthony Dafonseca said they will pursue a harsher sentence for Caballero than Alvarez, since Alvarez has no prior record and Caballero has been to prison for almost eight years for a cocaine trafficking conviction.

The state will ask for jail time for Alvarez and prison time for Caballero. Dafonseca said due to Caballero being out of prison less than three years before committing another felony, he's looking at serving the maximum time of 15 years. "We gave them a reasonable offer, what we felt was reasonable, and they decided it wasn't something they wanted to accept responsibility for," Dafonseca said. "Despite the video, despite all the witnesses."

Ronald Kurpiers, defense attorney for the couple, said his clients were "devastated," by the verdict. Though Dafonseca hinted that they'd be speaking with the judge about whether or not 15 years was appropriate for Caballero, Kurpiers said the judge would have no discretion. "That's what he'll get," Kurpiers said.

Ed Brodsky, elected state attorney for the 16th judicial district, joined Defonseca in prosecuting the case. When asked why the case was an important one to the state attorney, Dafonseca said it was important that the community knew what wouldn't be tolerated on public beaches. "We're dealing with basically tourists, that came from Brandon and Riverview and West Virginia, and they're here on the beaches of Manatee County, our public beaches," Dafonseca said, referring to the witnesses. "So you want to make sure that this isn't something that just goes by the wayside. And that it is well known to the community, what will be tolerated and what won't be."

Family members who witnessed the act and a Bradenton Beach police officer, as well as Caballero, testified in the case. The defense argued that the two weren't actually having sex, but that Alvarez had been dancing on Caballero or "nudging" him to wake him up. "She wasn't dancing," Dafonseca said during closing arguments. "It's insulting your intelligence to say that she was dancing."

Kurpiers said since the witnesses had not seen genitals or penetration, and neither was visible in the video, either, that saying the two had sex was speculation. "You folks cannot speculate," Kurpiers told the jury. "And in order to say they had intercourse, you would have to speculate."

Brodsky said they weren't calling it the crime of the century, but it was still a violation of Florida law. "Did they try to cuddle, or do it discreetly? Did they go in the water, where people couldn't see?" Brodsky asked the jury. "Did Ms. Alvarez try to drape a towel over herself, or anything? They didn't care."

I do not know Florida sentencing law well enough to know if defendant Caballero is in fact going to have to be sentenced and actually going to have to serve a decade or more in state prison for his misguided dirty dancing on a public beach. This press report makes it sound as though perhaps there may be some means for the sentencing judge to impose a lesser sentencing term, and I think a constitutional challenge based on the Eighth Amendment might also be viable here if state law really does mandate such a severe term in this case.

In addition to wondering whether and how Florida sentencing law may provide the judge with some sentencing discretion in this setting, I especially wonder about the terms of the "reasonable offer" that prosecutors offers to resolve this case via a plea deal. Specifically, I wonder if the offer required either or both defendants to serve significant time incarcerated and required sex offender registration. Especially given all the housing restrictions on registered sex offenders in Florida, that component of any conviction may have led to the defendants being especially eager to try to fight the charges.

May 6, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Tuesday, May 05, 2015

"What can one prosecutor do about the mass incarceration of African-Americans?"

The question in the title of this post is the subheadline of this lengthy and timely New Yorker article authored by Jeffrey Toobin.  For many reasons (as perhaps the highlights below suggest), the full article is a must-read:

Like many people in the criminal-justice system, John Chisholm, the District Attorney in Milwaukee County, has been concerned for a long time about the racial imbalance in American prisons.  The issue is especially salient in Wisconsin, where African-Americans constitute only six per cent of the population but thirty-seven per cent of those in state prison. According to a study from the University of Wisconsin-Milwaukee, as of 2010 thirteen per cent of the state’s African-American men of working age were behind bars — nearly double the national average, of 6.7 per cent.  The figures were especially stark for Milwaukee County, where more than half of African-American men in their thirties had served time in state prison.  How, Chisholm wondered, did the work of his own office contribute to these numbers?  Could a D.A. do anything to change them?

The recent spate of deaths of unarmed African-Americans at the hands of police officers has brought renewed attention to racial inequality in criminal justice, but in the U.S. legal system prosecutors may wield even more power than cops.  Prosecutors decide whether to bring a case or drop charges against a defendant; charge a misdemeanor or a felony; demand a prison sentence or accept probation.  Most cases are resolved through plea bargains, where prosecutors, not judges, negotiate whether and for how long a defendant goes to prison.  And prosecutors make these judgments almost entirely outside public scrutiny.

Chisholm decided to let independent researchers examine how he used his prosecutorial discretion.  In 2007, when he took office, the Vera Institute of Justice, a research and policy group based in New York City, had just begun studying the racial implications of the work of the Milwaukee County District Attorney’s office.  Over several years, Chisholm allowed the researchers to question his staff members and look at their files. The conclusions were disturbing.  According to the Vera study, prosecutors in Milwaukee declined to prosecute forty-one per cent of whites arrested for possession of drug paraphernalia, compared with twenty-seven per cent of blacks; in cases involving prostitution, black female defendants were likelier to be charged than white defendants; in cases that involved resisting or obstructing an officer, most of the defendants charged were black (seventy-seven per cent), male (seventy-nine per cent), and already in custody (eighty per cent of blacks versus sixty-six per cent of whites).

Chisholm decided that his office would undertake initiatives to try to send fewer people to prison while maintaining public safety.  “For a long time, prosecutors have defined themselves through conviction rates and winning the big cases with the big sentences,” Nicholas Turner, the president of the Vera Institute, told me.  “But the evidence is certainly tipping that the attainment of safety and justice requires more than just putting people in prison for a long time.  Prosecutors have to redefine their proper role in a new era.  Chisholm stuck his neck out there and started saying that prosecutors should also be judged by their success in reducing mass incarceration and achieving racial equality.” Chisholm’s efforts have drawn attention around the country....

Chisholm reflects a growing national sentiment that the criminal-justice system has failed African-Americans.  The events in Baltimore last week drew, at least in part, on a sense there that black people have paid an undue price for the crackdown on crime. Since 1980, Maryland’s prison population has tripled, to about twenty-one thousand, and, as in Wisconsin, there is a distressing racial disparity among inmates. The population of Maryland is about thirty per cent black; the prisons and local jails are more than seventy per cent black....

Chisholm decided to move to what he calls an evidence-driven public-health model. “What’s the most effective way to keep a community healthy?” he asked. “You protect people in the first place.  But then what do you do with the people who are arrested?” There are two basic models of prosecutorial philosophy.  “In one, you are a case processor,” he said.  “You take what is brought to you by law-enforcement agencies, and you move those cases fairly and efficiently through the system.  But if you want to make a difference you have to do more than process cases.”

So Chisholm began stationing prosecutors in neighborhoods around Milwaukee.  “If people view prosecutors as just the guys in the courthouse, who are concerned only with getting convictions, then you are creating a barrier,” he said.  He and his team started asking themselves in every instance why they were bringing that case.  “In those that were seen as minor, it was the least experienced people who were deciding whether to bring them.  And these people saw that we had generally brought those cases in the past, so they went ahead with them again. But we started to ask, ‘Why are we charging these people with crimes at all?’ ”

May 5, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Oklahoma Gov signs "safety valve" legislation giving judges more sentencing discretion

As noted in this prior post, a few month ago the Oklahoma House passed by a significant margin a state Justice Safety Valve Act authorizing state judges to give sentences below otherwise-applicable mandatory minimums.  Now, as effectively reported via this FreedomWorks posting, this notable sentencing reform has become law.  The piece is headlined "Oklahoma becomes the latest Republican state to enact meaningful justice reforms," and here are the details (with links from the original).

Oklahoma Gov. Mary Fallin signed a major bill into law allowing judges to sentence nonviolent offenders below mandatory minimum sentences, a big government, one-size-fits-all policy that costs taxpayers big bucks....

Introduced in February by state Rep. Pam Peterson (R-Tulsa), the Justice Safety Valve Act, HB 1518, is aimed at reducing the rate of incarceration in the Oklahoma, which is among the highest in the United States. The bill allows sentences below mandatory minimums if a judge determines, based on a risk assessment, that a nonviolent offender is not a public safety risk. The bill would allow the state to save much-needed bed space for dangerous criminals.

"Our prison bed space is being taken up with people who don’t need to be there," Peterson told NewsOK.com in February. "These people are breaking the law, but I think we’ve gone to the point now where we need that space for violent offenders and are filling it up with too many nonviolent offenders."

"The courts' hands are often tied because of these mandatory minimums," she said. “Longer sentences do not equate to public safety.”

HB 1518 passed both chambers of the Republican-controlled Oklahoma State Legislature with relative ease. The House approved the bill in March by a 76 to 16 vote. The Senate followed suit in late April, passing the bill in a 31 to 13 vote.  Fallin, a Republican, signed the bill on Monday.

In her State of the State address delivered in February, Fallin urged lawmakers to get "smart on crime," offering support for alternatives to incarceration for nonviolent offenders. Incarceration, she explained, actually increases the likelihood that an offender will continue a cycle of crime.

"Personal and community safety remain top priorities, and violent criminals will continue to be incarcerated. But the fact is, one in eleven Oklahomans serve time in prison at some point in their lives. Many of our current inmates are first time, nonviolent offenders with drug abuse and alcohol problems. Many also have mental health issues they need treatment for," said Fallin. "For some of these offenders, long sentences in state penitentiaries increase their likelihood of escalated criminal behavior.

"Oklahoma must ramp up its 'smart on crime' policies, including the Justice Reinvestment Initiative, designed to intervene for low-risk, nonviolent offenders and more readily offer alternatives such as drug-courts, veterans courts and mental health courts," she continued. "Implementation of coordinated 'smart on crime' efforts between state and local governments and tribal nations has demonstrated significant cost savings and improved outcomes for offenders and public safety."...

"It costs the state around $19,000 a year to house an inmate, but only $5,000 a year to send an addict through drug court and on to treatment," Fallin explained. "In addition to being less expensive, it’s also more effective; the recidivism rate for offenders sent to drug court is just one-fourth of the rate for those sent to prison."

The Justice Safety Valve Act will take effect on November 1.

May 5, 2015 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, May 03, 2015

The never-aging (and ever-costly) story of ever-aging US prison populations

14972752EToday's Washington Post has this extended front-page story about the graying of America's prison populations. This will feel like an old story to regular readers of this blog, but these prison realities will remain timely as more and more offenders "age into" the decades-long sentences that became far more common even for lesser offenses over the last quarter-century. The piece is headlined "The painful price of aging in prison: Even as harsh sentences are reconsidered, the financial — and human — tolls mount," and here are a few excerpts:

Twenty-one years into his nearly 50-year sentence, the graying man steps inside his stark cell in the largest federal prison complex in America. He wears special medical boots because of a foot condition that makes walking feel as if he’s “stepping on a needle.” He has undergone tests for a suspected heart condition and sometimes experiences vertigo. “I get dizzy sometimes when I’m walking,” says the 63-year-old inmate, Bruce Harrison. “One time, I just couldn’t get up.”...

In recent years, federal sentencing guidelines have been revised, resulting in less severe prison terms for low-level drug offenders. But Harrison, a decorated Vietnam War veteran, remains one of tens of thousands of inmates who were convicted in the “war on drugs” of the 1980s and 1990s and who are still behind bars. Harsh sentencing policies, including mandatory minimums, continue to have lasting consequences for inmates and the nation’s prison system. Today, prisoners 50 and older represent the fastest-growing population in crowded federal correctional facilities, their ranks having swelled by 25 percent to nearly 31,000 from 2009 to 2013.

Some prisons have needed to set up geriatric wards, while others have effectively been turned into convalescent homes. The aging of the prison population is driving health-care costs being borne by American taxpayers. The Bureau of Prisons saw health-care expenses for inmates increase 55 percent from 2006 to 2013, when it spent more than $1 billion. That figure is nearly equal to the entire budget of the U.S. Marshals Service or the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to the Justice Department’s inspector general, who is conducting a review of the impact of the aging inmate population on prison activities, housing and costs....

“Prisons simply are not physically designed to accommodate the infirmities that come with age,” said Jamie Fellner, a senior advisor at Human Rights Watch and an author of a report titled “Old Behind Bars.”

“There are countless ways that the aging inmates, some with dementia, bump up against the prison culture,” she said. “It is difficult to climb to the upper bunk, walk up stairs, wait outside for pills, take showers in facilities without bars and even hear the commands to stand up for count or sit down when you’re told.”

For years, state prisons followed the federal government’s lead in enacting harsh sentencing laws. In 2010, there were some 246,000 prisoners age 50 and older in state and federal prisons combined, with nearly 90 percent of them held in state custody, the American Civil Liberties Union said in a report titled “At America’s Expense: The Mass Incarceration of the Elderly.”

On both the state and federal level, the spiraling costs are eating into funds that could be used to curtail violent crime, drug cartels, public corruption, financial fraud and human trafficking. The costs — as well as officials’ concerns about racial disparities in sentencing — are also driving efforts to reduce the federal prison population.

For now, however, prison officials say there is little they can do about the costs. Edmond Ross, a spokesman for the Bureau of Prisons, said: “We have to provide a certain level of medical care for whoever comes to us.”

A few (of many) recent and older related posts:

May 3, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Saturday, May 02, 2015

"Re-Examining Juvenile Incarceration: High cost, poor outcomes spark shift to alternatives"

The title of this post is the title of this notable issue brief released this past week by Pew's Public Safety Performance Project. Here is how the document starts and concludes:

A growing body of research demonstrates that for many juvenile offenders, lengthy out-of-home placements in secure corrections or other residential facilities fail to produce better outcomes than alternative sanctions.  In certain instances, they can be counterproductive. Seeking to reduce recidivism and achieve better returns on their juvenile justice spending, several states have recently enacted laws that limit which youth can be committed to these facilities and moderates the length of time they can spend there.  These changes prioritize the use of costly facilities and intensive programming for serious offenders who present a higher risk of reoffending, while supporting effective community-based programs for others....

In recent years, a number of states have passed laws excluding certain juveniles from being placed in state custody, reflecting a growing recognition of the steep cost and low public safety return of confining juveniles who commit lower-level offenses in residential facilities.  Some states also have modified the length of time juveniles spend in custody. Because research shows little to no recidivism reduction from extended stays for many offenders, a handful of states have adopted mechanisms to evaluate youth placements and shorten them when appropriate.

May 2, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Wednesday, April 29, 2015

Candidate Clinton laments mass incarceration, but proposes only a "national debate" to address it

I have now had a chance to read this full text of Hillary Clinton's big policy speech on criminal justice reform delivered today at Columbia University (previewed here).  If forced to summarize my reaction in a word, I would probably go with ... MEH.  

The Clinton speech included plenty of heart-felt expressions of existing problems because, in Clinton's words, "we have allowed our criminal justice system to get out of balance."  She also claimed to have past legal experiences that enabled her to "see how families could be and were torn apart by excessive incarceration."  But despite staying that it was "time to change our approach [and] to end the era of mass incarceration," Clinton provided no concrete (or even not-so-concrete) proposals that could help chart a new approach that would help end the mass incarceration era. 

Though the Clinton speech merits a read in full, here are some excerpts from Clinton's comments on "how we approach punishment and prison":

It's a stark fact that the United States has less than 5 percent of the world's population, yet we have almost 25 percent of the world's total prison population. The numbers today are much higher than they were 30, 40 years ago, despite the fact that crime is at historic lows.

Of the more than 2 million Americans incarcerated today, a significant percentage are low-level offenders: people held for violating parole or minor drug crimes, or who are simply awaiting trial in backlogged courts. Keeping them behind bars does little to reduce crime. But it is does a lot to tear apart families and communities....

Without the mass incarceration that we currently practice, millions fewer people would be living in poverty. And it's not just families trying to stay afloat with one parent behind bars. Of the 600,000 prisoners who reenter society each year, roughly 60 percent face long-term unemployment. And for all this, taxpayers are paying about $80 billion a year to keep so many people in prison....

If the United States brought our correctional expenditures back in line with where they were several decades ago, we'd save an estimated $28 billion a year. And I believe we would not be less safe. You can pay a lot of police officers and nurses and others with $28 billion to help us deal with the pipeline issues.

It's time to change our approach. It's time to end the era of mass incarceration. We need a true national debate about how to reduce our prison population while keeping our communities safe.

I don't know all the answers. That's why I'm here — to ask all the smart people in Columbia and New York to start thinking this through with me. I know we should work together to pursue together to pursue alternative punishments for low-level offenders. They do have to be in some way registered in the criminal justice system, but we don't want that to be a fast track to long-term criminal activity, we don't want to create another "incarceration generation."

Recent related post:

April 29, 2015 in Campaign 2016 and sentencing issues, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Candidate Hillary Clinton to call for criminal justice reforms that would “end the era of mass incarceration”

Images (3)As reported in this Los Angeles Times article, all the media chasing around a notable presidential candidate are about to have a meaty and timely criminal justice reform story.  The headline of the LA Times piece is "Hillary Clinton to call for end to 'mass incarceration'," and here are excerpts:

Hillary Rodham Clinton will call Wednesday morning for far-reaching reforms in the criminal justice system that would “end the era of mass incarceration,” according to a campaign aide.

In a speech at Columbia University in New York City, Clinton will address the violence in Baltimore with plans for a new approach to punishing criminals, according to the aide, who requested anonymity because the proposal is not yet public.

The speech will mark the unveiling of Clinton’s first major policy proposal as a presidential hopeful, coming as candidates are under pressure to confront the unrest in Baltimore. The city erupted in rioting Monday night, following the funeral of Freddie Gray, an African American man who was mortally injured while in police custody.

The plan also appears to stem from the “listening tour” Clinton has been on since launching her campaign this month. In roundtable meetings with voters in the early-voting states of Iowa and New Hampshire, the drug issue played prominently. Clinton said at the meetings that she was alarmed by the stories people relayed to her about how drugs are infecting rural communities.

She began talking about her proposal at a campaign fundraiser in New York City on Tuesday night, a gathering of about 150 supporters who donated $2,700 each. “It’s heartbreaking,” Clinton said of Baltimore. “The tragic death of another young African American man. The injuries to police officers. The burning of people’s homes and small businesses. We have to restore order and security. But then we have to take a hard look as to what we need to do to reform our system.”

Clinton said the nation must “reform our criminal justice system.” As she called to end mass

incarceration for nonviolent offenders, donors erupted in applause. In Wednesday’s address, Clinton will also join the chorus of politicians demanding that police officers everywhere be equipped with body cameras. Clinton will argue they are necessary “to improve transparency and accountability in order to protect those on both sides of the lens,” according to the aide.

The sentencing reforms Clinton plans to champion focus on nonviolent offenders. They would include shifting those found guilty of drug crimes from lockups to drug treatment and rehabilitation programs. Other alternative punishments would also be explored for low-level offenders, particularly minors. Mental health programs would get a boost in funding.

“She will also discuss the hard truth and fundamental unfairness in our country that, today, African American men are far more likely to be stopped and searched by police, charged with crimes and sentenced to longer prison terms,” the aide wrote in an email.

I am going to be off-line for most of the rest of today, but I am going to be very eager to learn about (and blog about) late tonight the specifics of what Candidate Clinton is going to be advocating in order to end the era of mass incarceration.  I am hoping that the full Clinton plan will be somewhere on this Clinton campaign official website, though it is right now hard to find anything substantive on that website.

Based on this press report, it sounds as though she is not going to be advocating too much more than what nearly all the other presidential candidates, including all the Republican candidates, have been talking about for some time.   Moreover, a genuine understanding of how best to "end the era of mass incarceration" has to include some account for how the policies of President William Clinton contributed significantly to that era.  But perhaps, rather than already expect to be disappointed, the new Clinton plan will have something at least as bold as what GOP candidate Rand Paul has been proposing already for a number of years.

April 29, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 28, 2015

"Solutions: American Leaders Speak Out on Criminal Justice" (with some notable omissions)

The first part of the title of this post is the title of this fascinating new publication released today by the Brennan Center for Justice.  Here is how the 164-page text is described in an e-mail I received this morning:

In a remarkable cross-ideological effort, this book includes essays by public figures and experts who will play a leading role in the nation’s debate over the coming year.  The book contains original essays by Joseph R. Biden, Jr., Cory Booker, Chris Christie, Hillary Rodham Clinton, Ted Cruz, Mike Huckabee, Cathy L. Lanier, Martin O’Malley, Janet Napolitano, Rand Paul, Rick Perry, Marco Rubio, Bryan Stevenson, Scott Walker, and Jim Webb, among others.

In his foreword, former President William J. Clinton writes, “There is one area where we have a genuine chance at bipartisan cooperation: the over-imprisonment of people who did not commit serious crimes.  The drop in violence and crime in America has been an extraordinary national achievement.  But plainly, our nation has too many people in prison and for too long — we have overshot the mark.”

This book offers a first-of-its-kind preview of the solutions likely to be debated in the lead up to 2016. There is striking consensus around one idea: the need to reduce mass incarceration.  Solutions range from releasing low-level offenders waiting for trial to using federal grants to change police practices … from eliminating prison for low-level drug crimes to increasing mental health treatment.

This effort, spearheaded by our Justice Program director Inimai Chettiar, aims to elevate ending mass incarceration as a vital national issue in need of urgent attention. We look forward to your partnership in the months ahead — as these reforms are debated before the nation.

I am very interested in seeing what everyone in this new publication has to say, and I suspect the words of the presidential candidates in this collection will prove especially important in the months ahead. In short, this is must-read, perhaps especially as sad, harmful and disturbing events continue to unfold in Baltimore this week.

That all said, I must state that I am a bit put off by the fact that Bill Clinton authors the foreword without noting his own significant role in helping to encourage the adoption and preservation of, in his words, the "too many laws [that were] overly broad instead of appropriately tailored [which has resulted in] some [who] are in prison who shouldn’t be, others [who] are in for too long, and without a plan to educate, train, and reintegrate them into our communities." Relatedly, I am deeply disappointed that none of the other three living Presidents, all of whom have long and notable criminal justice track records (especially both President Bushes) are included in this important collection of "American Leaders" speaking out.

Particularly notable and disconcerting is the absence of anything in this collection by our most recent in former President, George W. Bush, especially in light of Bill Clinton's justifiable concerns about the importance of efforts to "educate, train, and reintegrate [former offenders] into our communities." As often highlighted on this blog (and in too few other places), President George W. called America "the land of second chance" in his 2004 State of the Union address while spotlighting prisoner re-entry issues and proposing "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups."

In his important 2004 SotU speech, President Bush compelling advocated that "when the gates of the prison open, the path ahead should lead to a better life."  But now, more than a decade later, and thanks largely to the failings of both Congress and President Bush's successor in the Oval Office, there is still far too little attention given to the needs and challenges of former offenders.  President Bush highlighted 11 years ago that persons released from prison each year represented  "another group of Americans in need of help," but it seems only now have a number of other "American Leaders" gotten the message. 

April 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 21, 2015

"Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"

The title of this post is the title of this notable new and timely paper concerning the potential impact of the Supreme Court case re-argued yesterday.  The piece is authored by Leah Litman, and here is the abstract:

This Essay examines the impact a favorable decision in Johnson v. United States could have at the various stages of post-conviction relief for three categories of prisoners -- prisoners whose convictions have not yet become final; prisoners whose convictions have become final but who have not yet filed a petition seeking post-conviction relief; and prisoners whose convictions have become final and who have already filed at least one petition seeking post-conviction relief.  In doing so, it offers a reading of the relevant cases and statutes that permits any defendant sentenced under the Armed Career Criminal Act to obtain relief based on a decision invalidating the residual clause.  It also highlights some under-explored statutes and doctrinal questions that courts will confront as they determine which prisoners should be resentenced in light of Johnson.

April 21, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 14, 2015

"Criminal Justice Reform: The Present Moment"

The title of this post is the title of this notable new article by Lynn Adelman now available via SSRN. (Notably, Judge Adelman was among a small handful of judges who got a shout-out in Judge Rakoff's provocative recent speech at Harvard Law School about the need for the judiciary to speak out about modern mass incarceration.)   Here is the article's abstract:

As part of a symposium on the collateral consequences of criminal convictions sponsored by the Wisconsin Law Review, this paper, entitled “Criminal Justice Reform: The Present Moment,” discusses whether we have reached a point where we have a realistic opportunity to implement major reforms in our criminal justice system.

While recognizing both that the prospects for reform are greater than they have been, largely because of the increased awareness of the harm caused by mass incarceration, and that some progress has been made as, for example, the Supreme Court’s decision in Brown v. Plata upholding a lower court decision requiring California to reduce its prison population by approximately 40,000, the paper points out that any reforms would come on the heels of an approximately 35 year period of unremitting punitive legislation. As a result, it will be very difficult to put a serious dent in the mountain of harsh consequences, both direct and collateral, that is part of our present criminal justice system.

April 14, 2015 in Collateral consequences, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

'Cause all of me, loves all of you ... who are harmed by mass incarceration's imperfections

Images (1)The title of this post is my weak effort to merge John Legend's most popular song lyrics with his notable new campaign.  This AP story provides the details:

John Legend has launched a campaign to end mass incarceration. The Grammy-winning singer announced the multiyear initiative, FREE AMERICA, on Monday.  He will visit and perform at a correctional facility on Thursday in Austin, Texas, where he also will be part of a press conference with state legislators to discuss Texas' criminal justice system.

"We have a serious problem with incarceration in this country," Legend said in an interview.  "It's destroying families, it's destroying communities and we're the most incarcerated country in the world, and when you look deeper and look at the reasons we got to this place, we as a society made some choices politically and legislatively, culturally to deal with poverty, deal with mental illness in a certain way and that way usually involves using incarceration."

Legend, 36, will also visit a California state prison and co-host a criminal justice event with Politico in Washington, D.C., later this month.  The campaign will include help from other artists — to be announced — and organizations committed to ending mass incarceration.

"I'm just trying to create some more awareness to this issue and trying to make some real change legislatively," he said.  "And we're not the only ones. There are senators that are looking at this, like Rand Paul and Cory Booker, there are other nonprofits that are looking at this, and I just wanted to add my voice to that."

Legend's speech at the Academy Awards this year struck a chord when he spoke about mass incarceration.  He won the Oscar for best original song with rapper Common for "Glory" from the film "Selma."

The singer said an early victory for his campaign was the approval of Proposition 47 in California in November, which calls for treating shoplifting, forgery, fraud, petty theft and possession of small amounts of drugs — including cocaine, heroin and methamphetamines — as misdemeanors instead of felonies.  "Once you have that tag of a felony on your name, it's hard for you to do anything," Legend said. "Getting those reduced to misdemeanors really impacted a lot of lives and we hope to launch more initiatives like that around the country."

Perhaps "Weird Al" Yankovic or John Legend himself can pen a version of "All of Me" that could become the movement's theme song.

April 14, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 13, 2015

Judge Jed Rakoff gives provocative speech on mass incarceration and the responsibility of lawyers and judges

A helpful reader alerted me to a notable speech (made available in full here by Bloomberg BNA) delivered by US District Judge Jed Rakoff as part of a Harvard Law School conference about lawyers' roles and responsibilities. Titled "Mass Incarceration and the 'Fourth Principle'," the full speech is a must read in full for all sentencing fans. Here are excerpts providing a taste of why:

I want to build my little talk around ... the responsibility of lawyers to help create a safe, fair, and just society even when legal issues, in the narrow sense, are not directly at stake.  I want to discuss that responsibility — which I will refer to here simply as the “Fourth Principle”— as it applies to lawyers and as it applies to judges...

Of course, even lawyers devoted to the Fourth Principle may have different views as to what societal issues are of such central concern that lawyers should feel a professional responsibility to speak out about them.  Nevertheless, I want to suggest one such issue, and I submit that it is one that is so deeply connected to the administration of law that [lawyers] would have no difficulty seeing it as an appropriate subject for bar association resolutions and the like: and that is the issue of mass incarceration in our country today.

But I should mention at the outset that the relative failure of organized bar associations and lawyers in general to speak out on this issue pales in comparison to the silence of the judges, who, I submit, have a special duty to be heard on this issue.  Indeed, the commentary to Canon Four of the Code of Conduct for United States judges expressly encourages federal judges to speak out on issues relating to the administration of justice in general and criminal justice in particular.  Yet, for too long, too many judges (including me) have been too quiet about an evil of which we are ourselves a part: the mass incarceration of people in the United States today.

The basic facts are not in dispute.  More than 2.2 million people are currently incarcerated in U.S. jails and prisons, a 500 percent increase over the past 40 years. Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population.  The per capita incarceration rate in the U.S. is one-and-a-half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada.  Another 4.8 million Americans are subject to the state supervision imposed by probation or parole....

And whom are we locking up?  Mostly young men of color.  Over 840,000, or nearly 40 percent, of the 2.2 million U.S. prisoners are young African-American males.  Put another way, one in nine African-American males between the ages of 20 and 34 is currently in prison, and, if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes.  Another 440,000, or 20 percent, of the 2.2 million U.S. prisoners are Hispanic males.

This mass incarceration — which also includes about 800,000 white and Asian males, as well as over 100,000 women (the great majority of whom committed non-violent offenses) — is the product of statutes that were enacted, beginning in the 1970s, with the twin purposes of lowering crime rates in general and deterring the drug trade in particular.  These laws imposed mandatory minimum terms of imprisonment on many first offenders.  They propounded sentencing guidelines that initially mandated, and still recommend, substantial prison terms for many other offenders.  And they required life-time imprisonment for many recidivists.  These laws also substantially deprived judges of sentencing discretion and effectively guaranteed imprisonment for many offenders who would have previously received probation or deferred prosecution, or who would have been sent to drug treatment or mental health programs rather than prison.

The unavoidable question is whether these laws have succeeded in reducing crime. Certainly crime rates have come down substantially from the very high rates of the 1970s and 1980s that gave rise to these laws.  Overall, crime rates have been cut nearly in half since they reached their peak in 1991, and they are now at levels not seen in many decades.  A simple but powerful argument can be made that, by locking up for extended periods the people who are most likely to commit crimes, we have both incapacitated those who would otherwise be recidivists and deterred still others from committing crimes in the first place.

But is this true?  The honest answer is that we don’t know.  And it is this uncertainty that makes changing the status quo so difficult: for, the argument goes, why tamper with what seems to be working unless we know that it isn’t working?

There are some who claim that they do know the answer to whether our increased incarceration is the primary cause of the our decline in crime.  These are the sociologists, the economists, the statisticians, and others who assert that they have “scientifically” determined the answer.  But their answers are all over the place....

Put another way, the supposition on which our mass incarceration is premised — namely, that it materially reduces crime — is, at best, a hunch. Yet the price we pay for acting on this hunch is enormous.  This is true in the literal sense: it costs more than $80 billion a year to run our jails and prisons.  It is also true in the social sense: by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of unemployable ex-cons, many of who have learned in prison how better to commit future crimes.  And it is even true in the symbolic sense: by locking up, sooner or later, one out of every three African-American males, we send a message that our society has no better cure for racial disparities than brute force....

But why, given the great decline in crime in the last quarter century, have most of the draconian laws that created these harsh norms not been repealed, or at least moderated?  Some observers, like Michelle Alexander in her influential book The New Jim Crow, assert that it is a case of thinly-disguised racism.  Others, mostly of an economic-determinist persuasion, claim that it is the result of the rise of a powerful private prison industry that has an economic stake in continuing mass incarceration.  Still others blame everything from a continuing reaction to the “excesses” of the ‘60s to the never-ending nature of the “war on drugs.”

While there may be something to each of these theories, a simpler explanation is that most Americans, having noticed that the crime-ridden environment of the 1970s and 1980s was only replaced by the much safer environment of today after tough sentencing laws went into force, are reluctant to tamper with the laws they believe made them safer.  They are not impressed with academic studies that question this belief, suspecting that the authors have their own axes to grind; and they are repelled by those who question their good faith, since they perceive nothing “racist” in wanting a crime-free environment.  Ironically, the one thing that might convince them that mass incarceration is not the solution to their safety would be if crime rates continued to decrease when incarceration rates were reduced.  But although this has in fact happened in a few places (most notably, New York City), in most communities people are not willing to take the chance of such an “experiment.”

This, then, is a classic case of members of the public relying on what they believe is “common sense” and being resentful of those who question their motives and dispute their intelligence.  What is called for in such circumstances is leadership: the capacity of those whom the public does respect to point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the key to controlling crime, and why, in any case, the long-term price of mass incarceration is too high to pay, not just in economic terms, but also in terms of societal values.  Until quite recently, that leadership appeared to be missing in both the legislative and executive branches, since being labeled “soft on crime” was politically dangerous.  Recently, however, there has been some small signs of progress. For example, in 2013, Attorney General Holder finally did away with the decades-old requirement that federal prosecutors must charge offenders with those offenses carrying the highest prison terms.  And in the last Congress, a bill to eliminate mandatory minimum sentences for non-violent drug offenders was endorsed not only by the Department of Justice, but also by such prominent right-wing Republican Senators as Ted Cruz and Rand Paul. On the other hand, prosecutors still have discretion to charge offenders with the most serious offenses available, and they usually do. And the aforementioned bill to modify the applicability of mandatory minimum sentences never reached a vote.

As for the organized bar, the American Bar Association, to its great credit, has increasingly spoken out about the dangers of mass incarceration and, most recently, has created a Task Force on Overcriminalization to suggest alternatives . But no other bar association, so far as I am aware, has openly denounced mass incarceration, called for outright repeal of mandatory minimum laws, supported across-the-board reductions of statutory and guideline imprisonment levels, or otherwise taken the kind of forceful positions that would cause the public to sit up and notice.

And where in all this stands the judiciary?  In some ways, this should be our issue, not just because sentencing has historically been the prerogative of judges, but also because it is we who are forced to impose these sentences that many of us feel are unjust and counter-productive.  It is probably too much to ask state judges in the 37 states where judges are elected to adopt a stance that could be characterized as “soft on crime.” But what about the federal judiciary, protected by lifetime tenure from political retaliation and, according to most polls, generally well-regarded by the public as a whole?

On one issue — opposition to mandatory minimum laws — the federal judiciary has been consistent in its opposition and clear in its message. As stated in a September 2013 letter to Congress submitted by the Judicial Conference of the United States (the governing board of federal judges), “For 60 years, the Judicial Conference has consistently and vigorously opposed mandatory minimums and has supported measures for their repeal or to ameliorate their effects.”  But nowhere in the nine single-spaced pages that follow is any reference made to the evils of mass incarceration; and, indeed, most federal judges continue to be supportive of the federal sentencing guidelines....

Several brave federal district judges — such as Lynn Adelman of Wisconsin, Mark Bennett of Iowa, Paul Friedman of the District of Columbia, and Michael Ponsor of Massachusetts, as well as former federal judges Paul Cassell and Nancy Gertner — have for some time openly denounced the policy of mass incarceration.  More recently, a federal appellate judge, Gerard Lynch of New York, expressed his agreement (albeit in an academic article) that “The United States has a vastly overinflated system of incarceration that is excessively punitive, disproportionate in its impact on the poor and minorities, exceedingly expensive, and largely irrelevant to reducing predatory crime.”

Perhaps the most encouraging judicial statement was made just a few weeks ago, on March 23, 2015, when Justice Anthony Kennedy — the acknowledged centrist of the Supreme Court — told a House subcommittee considering the Court’s annual budget that “This idea of total incarceration just isn’t working,” adding that it many instances it would be wiser to assign offenders to probation or other supervised release programs.  To be sure, Justice Kennedy was quick to tie these views to cost reductions, avoidance of prison overcrowding, and reduced recidivism rates — all, as he said, “without reference to the human factor.”  Nor did he say one word about the racially disparate impact of mass incarceration.  Yet still, his willingness to confront publicly even some of the evils of mass incarceration should be an inspiration to all other judges so inclined.

In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality.  More haltingly, we have also made some progress in our treatment of the poor and disadvantaged.  But the big, glaring exception to both these improvements is how we treat those guilty of crimes. Basically, we treat them like dirt.  And while this treatment is mandated by the legislature, it is we judges who mete it out.  Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?  We may be the Third Branch, but we have yet to learn the Fourth Principle.

April 13, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack

Friday, April 10, 2015

Controversy surrounding California judge who sentenced 19-year-old child rapist way below mandatory minimum 25-year-term

As reported in this lengthy CNN piece, headlined "California judge faces recall try over sentence in child rape case," a judge's decision to impose only a 10-year prison term on a child rapist is causing a big stir in Los Angeles. Here are some of the details:

Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.

At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant. The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.

"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."... [An] account of [the April 3] sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said. The judge noted that the defendant "almost immediately" stopped and "realized the wrongfulness of his act," according to the newspaper.

"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."

Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett and Supervisor Shawn Nelson. ...

Spitzer said he was responding to "a huge community outcry" against the judge's sentence and his comments from the bench. "We as a community spoke on behalf of the victim today, the 3-year-old child," Spitzer said. "If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It's a family member," Spitzer said. "The victim is related to the perpetrator, and that is what is so difficult here."

But Spitzer said the judge didn't follow state law. "We don't want a judge that legislates from the bench," Spitzer said. "It's just unfathomable that the judge would try to describe what is a brutal sodomy," Spitzer added. "Sodomy of a 3-year-old child is a brutal, violent act in itself."...

Orange County District Tony Rackauckas has called the sentence "illegal," and his office will appeal it, said his chief of staff, Susan Kang Schroeder. "We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature," Schroeder said. "We're doing what the people of Orange County have asked us to do. We're going to fight through the courts."...

The June crime occurred in the garage of the family home in Santa Ana, where the defendant, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous. The defendant also made the victim touch his penis, and he covered the girl's mouth while the mother called out to her, prosecutors said....

"As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant's actions, however, as sexual frustration," prosecutors said in court papers. "All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted." But the defendant "poses a great danger to society and probably will for the majority of his life," prosecutors added.

During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript. "While a mother's love is nothing less than unconditional, I am clearly aware of the gravity of my son's actions and the inevitable discipline that he must now confront," the mother's statement said. "It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place."

The mother said she hadn't had the strength or courage yet "to directly talk" to her son about the crime, but she said her son "has allowed God into his heart and has committed himself to God's guidance." Her son "is not a bad person," and she asked for forgiveness for his "transgressions and for the opportunity to have a second chance at liberty," the husband told the judge, summarizing his wife's statement.

The judge remarked about the rarity of the mother's plea. "I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime," the judge said. "It's very rare in these situations. So I know it must be very difficult for you."

Defense attorney Erfan Puthawala said his client never denied his responsibility "for the heinous act he committed" and, in fact, cooperated with investigators. "He made a statement essentially incriminating himself, which he did not have to do," the attorney said.

"He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself," Puthawala added. "It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism." Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.

Intriguingly, the judge at the center of this controversial sentencing was a senior local prosecutors for more than a decade before he became a member of the state judiciary. Perhaps because of that history, this judge perhaps though the prosecutor who charged this case likely had some discretion not to charge an offense that carried a 25-year mandatory minimum and thus perhaps he thought he should have some discretion not to sentence based on the mandatory minimum. Based on this case description, too, I wonder if this judge found that some of the Eighth Amendment themes stressed by the Supreme Court in Graham and Miller had some applicability in this setting because the defendant was only 19.

April 10, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, April 09, 2015

Intriguing Sentencing Project analysis of a new analysis of state-by-state incarceration trends

The Sentencing Project has this notable little analysis of variations in incarceration trends in different states across the country.  Here is the e-mail I received explaining the details:

This comparative analysis of recent changes in state and federal prison populations contextualizes the scale and timing of efforts to downsize prisons.  Through customized measures for each jurisdiction — calculating declines since each jurisdiction's peak year, and increases in other states since 2008 — we assess the full impact of recent policy changes.  The analysis reveals:

  • While the total U.S. prison population declined by 2.4% since 2009, incarceration trends among the states have varied significantly.  Two-thirds (34) of the states have experienced at least a modest decline, while one-third (16) have had continuing rises in imprisonment.
  • Nine states have produced double-digit declines during this period, led by New Jersey (29% since 1999), New York (27% since 1999), and California (22% since 2006).  Sixteen states, and the federal government, have had less than a 5% decline since their peak years.​​
  • Among states with rising prison populations, five have experienced double-digit increases, led by Arkansas, with a 17% rise since 2008.  While sharing in the national crime drop, these states have resisted the trend toward decarceration.

These findings reinforce the conclusion that just as mass incarceration has developed primarily as a result of changes in policy, not crime rates, it will require ongoing changes in both policy and practice to produce substantial population reductions.

April 9, 2015 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack