Monday, September 30, 2013
Detailing Florida's continuing struggle to deal with Graham and MillerThis lengthy and interesting local article, headlined "Lawmakers committed to solving juvenile sentencing," highlights how legislators in the Sunshine State have been struggling to fix its sentencing laws in the wake of two Supreme Court rulings concerning limits on LWOP sentences for juvenile offenders. Here are excerpts:
With the courts threatening to intercede, Florida lawmakers say they are committed to finding a solution to sentencing juveniles under U.S. Supreme Court rulings that restrict the use of life sentences. The issue is likely to be a focal point of debate in next year’s legislative session and could affect two local cases.
But lawmakers have failed to find an agreement for the last three years, leaving Florida Supreme Court justices to suggest earlier this month that they could impose a parole system to review lengthy sentences for juveniles in light of the Legislature’s inaction....
Heading toward their 2014 session, lawmakers must address two groups of juvenile offenders. One group is juveniles convicted of non-homicide crimes — for which the U.S. Supreme Court banned life sentences in 2010. The other group is juveniles convicted of murder, who can be sentenced to life but their punishment must follow protocols outlined by the nation’s highest court in a 2012 ruling.
In the 2013 session, the sentencing legislation failed when [Sen. Rob Bradley, R-Fleming Island, a former state prosecutor] advanced a bill capping sentences at 50 years for non-homicide juvenile crimes and establishing a sentencing procedure for juvenile murderers, who would face a minimum 50-year sentence if they were not sentenced to life. But senators, who believed the bill was still too harsh, amended the bill in 20-19 vote, calling for a sentence review at 25 years for the juvenile offenders. In response, Bradley killed the legislation.
He and other lawmakers say they understand the frustration of the state’s highest court — where two cases are pending involving juveniles who received 70- and 90-year sentences for non-homicide crimes — but they said they hope to resolve the issue without putting the burden on the court....
Rep. Ray Pilon, R-Sarasota, who sponsored the House version of the sentencing bill, said he understood why the courts are not happy with the lack of legislative action. “They’re pushing us to do something,” Pilon said. “I think it was kind of travesty that we couldn’t come to a compromise last year. I’m certainly hopeful that we do this year. It’s our responsibility.”
There has been tension between the Legislature and the court in recent years, with some legislative leaders suggesting the justices have intruded into the legislative arena. But some lawmakers say the failure to act on the juvenile sentencing would leave the court little choice. “If we’re lawmakers we need to make the law,” said Rep. Dave Kerner, D-Lake Worth, a member of the House Criminal Justice Subcommittee, which would initiate the juvenile sentencing legislation. “We talk a lot about judges acting outside their authority. But it’s hard to blame them when we don’t write the laws.”...
Lawyers for an Orlando juvenile facing a 90-year sentence have suggested the state Supreme Court re-impose a parole system — which was abolished for non-capital crimes in 1983 and for all crimes in 1995 — to review lengthy juvenile sentences. In their questioning during oral arguments on the case, several justices talked about using the Parole Commission, which still exists to handle prisoners sentenced before parole was abolished.
But reviving the parole system would likely meet resistance from lawmakers. “Parole has become a dirty word in Florida,” said House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach. “I don’t know that there is enough momentum to sort of change that cultural shift that has occurred in our state.”
Nonetheless, lawmakers generally agree that they may have to come up with some review process for the non-homicide juveniles since the U.S. Supreme Court has said they must be given “some realistic opportunity to obtain release” before the end of their prison term. “We can call it whatever you want but we have to have that ability to go back and look,” Kerner said.
While acknowledging a review process for the non-homicide juveniles is necessary, Bradley said he would strongly resist any type of review for the juveniles convicted of murder. He said that would impose an emotional burden on the families of the crime victims, calling it unfair “to bring them back for a hearing and to go relive the crime over and over again.”
Under Bradley’s previous legislation, juveniles could be sentenced to a life sentences for murder if the judge weighed some 10 factors in the sentencing, including the offender’s level of maturity and the nature of the crime. The U.S. Supreme Court ruling has called for “individualized sentencing decisions” for juveniles based on the argument that they were different from adult offenders.
September 30, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, September 29, 2013
Did Louisiana really give Corey Ladd "20 years hard labor" for possessing less than an ounce of marijuana?The question in the title of this post is prompted by this recent commentary by Bill Quigley at Dissident Voice headlined "Half Ounce of Pot Gets Louisiana Man Twenty Years in Prison." I have now seen this story of an extreme sentence for a minor marijuana offense reprinted and repeated in various ways via various news sources and blogs, but I cannot find any materials that provide more information or context about this case other than these details reported via the commentary:
While Colorado and Washington have de-criminalized recreational use of marijuana and twenty states allow use for medical purposes, a Louisiana man was sentenced to twenty years in prison in New Orleans criminal court for possessing 15 grams, .529 of an ounce, of marijuana.
Corey Ladd, 27, had prior drug convictions and was sentenced September 4, 2013 as a “multiple offender to 20 years hard labor at the Department of Corrections.”
Marijuana use still remains a ticket to jail in most of the country and prohibition is enforced in a highly racially discriminatory manner. A recent report of the ACLU, “The War on Marijuana in Black and White,” documents millions of arrests for marijuana and shows the “staggeringly disproportionate impact on African Americans.”...
Louisiana arrests about 13,000 people per year for marijuana, 60% of them African Americans. Over 84 percent were for possession only. While Louisiana’s population is 32 percent black, 60 percent of arrests for marijuana are African American making it the 9th most discriminatory state nationwide. In Tangipahoa Parish, blacks are 11.8 times more likely to be arrested for marijuana than whites and in St. Landry Parish the rate of black arrests for marijuana is 10.7 times as likely as whites, landing both parishes in the worst 15 in the country.
In Louisiana, a person can get up to six months in jail for first marijuana conviction, up to five years in prison for the second conviction and up to twenty years in prison for the third. In fact, the Louisiana Supreme Court recently overturned a sentence of five years as too lenient for a fourth possession of marijuana and ordered the person sentenced to at least 13 years....
Arrests and jail sentences continue even though public opinion has moved against it. National polling by the Pew Research Center show a majority of people support legalizing the use of marijuana. Even in Louisiana, a recent poll by Public Policy Polling found more than half support legalization and regulation of marijuana.
Karen O’Keefe, who lived in New Orleans for years and now works as Director of State Policies at the Marijuana Policy Project, said “A sentence of 20 years in prison for possessing a substance that is safer that alcohol is out of step with Louisiana voters, national trends, and basic fairness and justice. Limited prison space and prosecutors’ time should be spent on violent and serious crime, not on prosecuting and incarcerating people who use a substance that nearly half of all adults have used.”
Defense lawyers are appealing the twenty year sentence for Mr. Ladd, but the hundreds of thousands of marijuana arrests continue each year. This insanity must be stopped.
The Louisiana Supreme Court case referenced in this commentary is Louisiana v. Noble, No. 12-K-1923 (La. April 19, 2013) (available here), and the Noble court did in fact rule that Louisiana's Habitual Offender Law demanded imposition of a mandatory prison term of 13.3 years for a defendant who "was convicted of a fourth offense possession of marijuana and adjudicated as a third felony offender based on two prior guilty pleas to possession of cocaine" and even though "defendant supports seven children, two of whom have significant medical problems, and ... all of the defendant’s offenses have been non-violent ... and all involved the possession of small quantities of narcotics."
The Noble case documents that at least some defendants are, despite claims by supporters of the modern drug war, that nobody really serves long terms of imprisonment merely for possessing marijuana. But the opinion in Noble does not reveal just how much much marijuana the defendant in that case possessed, and perhaps the possession offense there involved a significant quantity.
This case involving Corey Ladd surely also involves application of Louisiana's Habitual Offender Law because subsection 4(a) of that law provides a mandatory minimum of 20 years for the "fourth or subsequent felony." And I suspect the sentencing court felt obligated to give the 20-year term because the Noble court reversed another sentencing court for trying to go below the applicable mandatory minimum. But I am still gobsmacked that possessing such a small amount of marijuana in the Bayou could be a felony and in turn require the imposition of a 20-year prison term for a habitual offender.
Cross-posted at Marijuana Law, Policy and Reform
"Life Without Parole as a Conflicted Punishment"The title of this post is the title of this lengthy and notable new article available now via SSRN and authored by Craig Lerner. Here is the abstract:
Life without parole (LWOP) has displaced the death penalty as the distinctive American punishment. Although the sentence scarcely exists in Europe, roughly 40,000 inmates are serving LWOP in America today. Despite its prevalence, the sentence has received little academic scrutiny. This has begun to change, a development sparked by a pair of Supreme Court cases, Graham v. Florida (2010) and Miller v. Alabama (2012), which express European-styled reservations with America’s embrace of LWOP. Both opinions, like the nascent academic commentary, lament the irrevocability of the sentence and the expressive judgment purportedly conveyed -- that a human being is so incorrigible that the community brands him with the mark of Cain and banishes him forever from our midst. In the tamer language of the Graham opinion, LWOP “forswears altogether the rehabilitative ideal.”
This Article tests whether that phrase is a fair characterization of LWOP today, and concludes that the Graham Court’s treatment of LWOP captures only a partial truth. Life without parole, the Article argues, is a conflicted punishment. The community indulges its thirst for revenge when imposing the sentence, but over time softer impulses insinuate themselves. LWOP is in part intended as a punishment of incalculable cruelty, more horrible than a prison term of many years, and on par with or worse than death itself. In practice, however, LWOP also emerges as a softer punishment, accommodating a concern for the inmate’s humanity and a hope for his rehabilitation.
September 29, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Friday, September 27, 2013
Judge Weinstein quickly responds to Second Circuit reversal of his below-mandatory-minimum child porn sentencingThanks to How Appealing here, I have just seen that Judge Jack Weinstein wasted little time in responding to the ruling yesterday by the Second Circuit in US v. Reingold (discussed here) that Judge Weinstein had erred when sentencing a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Judge Weinstein's response appears in this nine-page Memorandum and Order, which gets started this way:
This case exemplifies the sometimes unnecessary cruelty of our federal criminal law. The Court of Appeals for the Second Circuit has ordered — pursuant to statutes it held binding — that defendant’s prison term be increased substantially; another 30 months must now be added to the term reluctantly imposed by the district court of 30 months in a prison medical treatment center — an additional period likely to be spent in the general prison population. See United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 13, 2013) (order reversing in part as to sentencing and remanding); United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 26, 2013) (opinion of the court remanding for resentencing). Such a long sentence is unjust.
After release from prison, C.R. will be severely restricted as a convicted sex offender in where, and with whom, he can live, work and recreate for up to life. See 42 U.S.C. §§ 16911, 16915(a)(1), 16915(b); N.Y. Correct. Law § 168-h(1); Judgment of Conviction, United States v. C.R., No. 09-CR-155 (E.D.N.Y. Jun. 21, 2011), ECF No. 157; cf. Michael Schwirtz, In 2 Trailers, the Neighbors Nobody Wants, N.Y. Times, Feb. 5, 2013, at A1 (discussing the lack of permissible, housing for “sex offenders”).
The effect of harsh minimum sentences in cases such as C.R.’s is, effectively, to destroy young lives unnecessarily. The ancient analog of our modern destruction of youngsters by cruel, unnecessarily destructive and self-defeating, long minimum prison sentences, was physically sacrificing them to ancient gods for the supposed benefit of society. Leviticus 18:21 (King James ed.) warns, “[T]hou shalt not let any of thy [children] pass through the fire to Molech.” See W. Gunther Plaut et al., The Torah: A Modern Commentary, 149 n.1, 883 (1981) (ancient human sacrifice of children); Maimonedes Mishneh Torah, 116 (Rabbi Eliyahu trans. with commentaries and notes, Moznaim Publ’g. Corp. 2001) (“[A] person who gives his descendants to Molech” is executed by stoning.). And a pillar of major religions is the banning of the sacrifice of children. Genesis 22:12-13; see Plaut et al., at 149 (“[R]eligion . . . rejects the sacrifice of a [mortal] son . . . .”). Yet we continue using the criminal law to unnecessarily crush the lives of our young.
An important duty of an Article III district judge is to prevent injustices by the government in individual cases. See United States v. Ingram, 2013 WL 2666281, at *14 n.9 (2d Cir. June 14, 2013) (Calabresi, J. concurring) (“[W]e judges have a right — a duty even — to express criticism of legislative judgments that require us to uphold results we think are wrong.” (footnotes and citations omitted)); Charles E. Wyzanski, Jr., A Trial Judge’s Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1303 (1952) (“clearly ethical in its nature”); Jack B. Weinstein, Every Day Is A Good Day for A Judge To Lay Down His Professional Life for Justice, 32 Fordham Urb. L. J. 131, 155 (2004) (“The judge must decide: does this law violate the essence of my duty to . . . humanity.”). Where, as here, in the opinion of a ruling appellate court, the trial court has exceeded its power, at least the matter has been brought to the government’s and public’s attention, so that in due course, in our caring democracy, future injustices of this kind will be avoided.
Recent related post:
September 27, 2013 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (35) | TrackBack
"The New Asylums: Jails Swell With Mentally Ill"
The title of this post is the headline of this lengthy new investigative report published in The Wall Street Journal. Here are excerpts from the important article:
America's lockups are its new asylums. After scores of state mental institutions were closed beginning in the 1970s, few alternatives materialized. Many of the afflicted wound up on the streets, where, untreated, they became more vulnerable to joblessness, drug abuse and crime.
The country's three biggest jail systems — Cook County, in Illinois; Los Angeles County; and New York City — are on the front lines. With more than 11,000 prisoners under treatment on any given day, they represent by far the largest mental-health treatment facilities in the country. By comparison, the three largest state-run mental hospitals have a combined 4,000 beds.
Put another way, the number of mentally ill prisoners the three facilities handle daily is equal to 28% of all beds in the nation's 213 state psychiatric hospitals, according to the National Association of State Mental Health Program Directors Research Institute Inc. "In every city and state I have visited, the jails have become the de facto mental institutions," says Esteban Gonzalez, president of the American Jail Association, an organization for jail employees.
Correctional systems define mental illness differently. Generally, the term is used to describe prisoners who require medication for serious issues ranging from major depressive disorders to schizophrenia and bipolar disorders. Also included are inmates with diagnoses that warrant overnight stays in a mental hospital or who demonstrate serious functional impairment.
To get a snapshot of how the U.S. is grappling with such an explosive societal issue, The Wall Street Journal surveyed all 50 states about issues of mental health within their prison populations. Of the 22 states that provided detailed responses, their mental-health patient ratios ranged from one in 10 inmates to one in two. Inmates in all 23 responding states account for 55% of the prisoners in the U.S. under state jurisdiction.
In Oregon, the trend is particularly acute. Officials there estimate that half the state's 14,000 prison inmates suffer from some type of mental-health issue. Several states with large inmate populations, like Michigan and Illinois, reported to the Journal that about 8% to 10% of their inmates suffered from serious mental illnesses, such as schizophrenia. Smaller states, like Montana, said as many as 15% of their inmates suffered from serious mental illness.
Roughly 5% of all adult Americans suffer from a serious mental illness, according to a 2012 report by a division of the U.S. Department of Health and Human Services.
Caring for such distressed inmates is costly. National Alliance on Mental Illness, one of the leading advocacy research groups, estimates that prisoners with mental illness cost the nation $9 billion annually. Other challenges are evident. In Los Angeles, for example, the U.S. Department of Justice found in 1997 that mentally ill inmates were abused and endured conditions that violated their federal civil rights.
Earlier this month the DOJ sent a letter to L.A. officials saying that despite some apparent progress, there is "a growing number" of mentally ill inmates housed in general population quarters at Men's Central Jail, as well as a "recent increase in suicides." Assistant Los Angeles County Sheriff Terri McDonald said the growing population of mentally ill inmates "certainly strains the system." She said they would continue to work with DOJ officials "and we welcome their thoughts."
Some facilities have attempted to cope by hiring psychiatric staff and retraining prison officers. Few, however, claim to be adequately equipped to handle some of the nation's most mentally frail. A seeming revolving door compounds the problem: Upon their release, the mentally ill tend to find scant resources and often quickly fall back into the system, says Mr. Gonzalez.
Even in some areas that have seen reductions in the general inmate population, the mentally ill constitute a growing share of correctional space. For example, New York City's total prison population has fallen to 11,500, down from 13,576 in 2005. Yet the number of mentally ill prisoners has risen, to 4,300 from 3,319, says Dora Schriro, commissioner of corrections for the city. That means the city's percentage of mentally ill prisoners grew from 24% to 37%.
The picture echoes the past. Two centuries ago, reformers were disturbed to find large numbers of the mentally ill in jails, paving the way for the development of state-run institutions. In the 1950s and 1960s, complaints about abuses, advances in medication and a push to give the patients more independence led to another change, this time toward community settings. The weaknesses of that concept—a lack of facilities, barriers created by privacy laws and tightened local and state funding—has brought the picture full circle.
"Society was horrified to warehouse people in state hospitals, but we have no problem with warehousing them in jails and prisons," says Thomas Dart, sheriff of Cook County.
Wednesday, September 25, 2013
Federal judges give California officials a little more time to unpack overcrowded prisionsAs reported in this local piece, headlined "California prisons: Judges give state more time to deal with inmate release order," Governor Jerry Brown and other California officials have succeeded in getting the court-ordered deadline for prison reform pushed back a bit. Here are the basics:
Giving California prison officials a temporary reprieve to deal with the state's overcrowding crisis, a federal court on Tuesday ordered the Brown administration and inmates' lawyers to discuss whether the latest legislative plan will solve the long-running prison problem.
In the order, a special three-judge panel gave the state until the end of January to report back to the court, for now dissolving a December deadline to rid California's prisons of nearly 10,000 more inmates. The judges indicated that the state and inmates' lawyers could ask for further extensions, suggesting the court may be willing to give California more time to end a decades-long legal battle. At the same time, the judges ordered California to stop transferring inmates to private or out-of-state prisons while the latest proposal is considered....
Gov. Jerry Brown and the Legislature agreed recently to address the court's overcrowding orders by trying to use mental health and drug treatment programs to limit the number of inmates being sent to the state's prisons for new crimes, asking the judges to give the state three more years to meet the latest goals. State officials have said they would otherwise spend more than $300 million to ship inmates to private prisons and prisons in other states if the judges would not agree to that solution.
In Tuesday's order, the judges did not indicate whether they would accept the proposal, but instructed state officials and inmates' advocates to focus on several categories, including elderly and juvenile inmates, immigration violators, the seriously ill and those serving three-strikes sentences.
The order calls for the two sides to meet in the coming months with San Francisco state appeals court Justice Peter Siggins, formerly a top lawyer in the Brown administration. Siggins is expected to report to the judges on the progress of the negotiations in late October....
The federal judges previously found that the state's prisons are so overcrowded that they fail to give inmates adequate medical and mental health care. The court determined there are still enough problems to require the release of more inmates.
Tuesday, September 24, 2013
Lengthy discussion of "Why Scandinavian Prisons Are Superior"The title of this post is drawn from the headline of this notable lengthy new article at The Atlantic by Doran Larson. The piece carries the subheading "'Open' prisons, in which detainees are allowed to live like regular citizens, should be a model for the U.S." Here is a snippet from the piece:
Nordic prisons are not all open facilities. Closed prisons here date to the mid-19th century, copied from Philadelphia’s Eastern State, or New York’s Auburn, back when those prisons represented models of humane treatment. To an American eye, these prisons look like prisons: 10-meter walls, cameras, steel doors. I’ve heard men describe Scandinavian closed-prison conditions in ways that echo those of the American prison where I have led a writing workshop since 2006: officials intent on making life onerous, long hours in lockup, arbitrarily enforced rules.
Yet inside the four high-security prisons I’ve visited in Denmark, Norway, Sweden and Finland, common areas included table tennis, pool tables, steel darts, and aquariums. Prisoner art ornamented walls painted in mild greens and browns and blues. But the most profound difference is that correctional officers fill both rehabilitative and security roles. Each prisoner has a “contact officer” who monitors and helps advance progress toward return to the world outside—a practice introduced to help officers avoid the damage experienced by performing purely punitive functions: stress, hypertension, alcoholism, suicide, and other job-related hazards that today plague American corrections officers, who have an average life expectancy of 59.
This is all possible because, throughout Scandinavia, criminal justice policy rarely enters political debate. Decisions about best practices are left to professionals in the field, who are often published criminologists and consult closely with academics. Sustaining the barrier between populist politics and results-based prison policy are media that don’t sensationalize crime—if they report it at all. And all of this takes place in nations with established histories of consensual politics, relatively small and homogenous populations, and the best social service networks in the world, including the best public education. Standing outside a Nordic closed prison, the American son would have felt perfectly at ease. But inside, northern Europe’s closed facilities operate along the lines of humanism that American prisons abandoned early, under a host of pressures -- such as overcrowding, the push to make prisons profitable by contracting out collective labor, the use of unpaid prisoners as private farmhands, and, since 1973, the rise of an $80 billion mass incarceration industry. There is also the matter of scale. The prison population of Sweden (6,900) is less than half the population of Rikers Island at its height (14,000). Several prisons in the U.S. each hold nearly twice the prison population of Finland. This is not simply the difference between large and much smaller countries. U.S. incarceration rates are the highest in the world, about 10 times those throughout Scandinavia, which are among the world’s lowest.
Saturday, September 21, 2013
"The Modern Chain Gang: How Convict Leasing Can Help Repair the California Prison System"The title of this post is the title of this intriguing new article by Ryan Minarovich now available on SSRN. Here is the abstract:
Inmates who work while incarcerated are less likely to succumb to the common negative effects of prison life both during their incarceration and after their release. Both the federal government and California, which have inmate labor programs already in place, realize the benefits and importance of inmate labor to the government, the individual inmate, prisons systems, and society. Labor as a means to reform served as the backbone of early private prison labor programs. These problems were vastly successful until opposition from organized labor caused their dissolution.
This article proposes a regulated and humane return to the convict leasing system. Because the private sector cannot currently utilize the benefits of inmate labor, using laws, regulations, and doctrine from both private prisons and labor, I propose a cooperation program between private industry and the California Department of Corrections and Rehabilitation (CDCR). This program will see private companies permanently house, secure, and care for inmates who produce goods or services for the companies on-site, or transport inmates between the prisons and the production facilities and secure and care for inmates who are in their custody while paying the state a fee for each inmate assigned a position with the company. This system will help defray the per inmate cost to the California prison system by requiring private industry to internalize inmate expenses while in their care and will also secure a recurring revenue stream for the CDCR while adhering to current political, cultural, societal, and legal standards that will insulate inmates from the problems of early convict leasing systems and current private prisons.
Friday, September 20, 2013
New report assails "lockup quotas" in private prison industry
The organization In the Public Interest (ITPI), which bills itself as "a comprehensive resource center on privatization and responsible contracting," has just released this new report on the private prison industry titled "How Lockup Quotas and 'Low-Crime Taxes' Guarantee Profits Guarantee Profits." Here is 17-page report's introduction:
In 2012, Corrections Corporation of America (CCA), the largest for-profit private prison company in the country, sent a letter to 48 state governors offering to buy their public prisons. CCA offered to buy and operate a state’s prison in exchange for a 20-year contract, which would include a 90 percent occupancy rate guarantee for the entire term. Essentially, the state would have to guarantee that its prison would be 90 percent filled for the next 20 years (a quota), or pay the company for unused prison beds if the number of inmates dipped below 90 percent capacity at any point during the contract term (a “low-crime tax” that essentially penalizes taxpayers when prison incarceration rates fall). Fortunately, no state took CCA up on its outrageous offer. But many private prison companies have been successful at inserting occupancy guarantee provisions into prison privatization contracts, requiring states to maintain high occupancy levels in their private prisons.
For example, three privately-run prisons in Arizona are governed by contracts that contain 100 percent inmate quotas. The state of Arizona is contractually obligated to keep these prisons filled to 100 percent capacity, or pay the private company for any unused beds.
These contract clauses incentivize keeping prison beds filled, which runs counter to many states’ public policy goals of reducing the prison population and increasing efforts for inmate rehabilitation. When policymakers received the 2012 CCA letter, some worried the terms of CCA’s offer would encourage criminal justice officials to seek harsher sentences to maintain the occupancy rates required by a contract. Policy decisions should be based on creating and maintaining a just criminal justice system that protects the public interest, not ensuring corporate profits.
Bed guarantee provisions are also costly for state and local governments. As examples in the report show, these clauses can force corrections departments to pay thousands, sometimes millions, for unused beds — a “low-crime tax” that penalizes taxpayers when they achieve what should be a desired goal of lower incarceration rates. The private prison industry often claims that prison privatization saves states money. Numerous studies and audits have shown these claims of cost savings to be illusory, and bed occupancy requirements are one way that private prison companies lock in inflated costs after the contract is signed.
This report will discuss the use of prison bed occupancy guarantee clauses in prison privatization contracts and explore how bed occupancy guarantees undermine criminal justice policy and democratic, accountable government. Section 1 explains the for-profit private prison industry’s reliance on high prison populations, and how these occupancy guarantee pr ovisions directly benefit its bottom line. Section 2 discusses the prevalence of bed guarantee clauses, drawing on a set of contracts that ITPI obtained through state open records requests. Section 3 describes how occupancy guarantees have harmed states, focusing on the experiences of Arizona, Colorado, and Ohio — three states that have agreed to these provisions to detrimental consequences. Lastly, Section 4 will discuss our recommendation that governments can and should reject prison occupancy guarantees.
Some related posts:
- "Billions Behind Bars: Inside America's Prison Industry"
- ACLU of Ohio releases new report assailing Governor's plan to sell state prisons
- Might private prisons actually cost taxpayers more than public prisons?
- "Who Benefits When A Private Prison Comes To Town?"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
- "Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"
- "International Trends in Prison Privatization"
- Notable review of Kentucky's (now-ending) experiences with private prisons
Thursday, September 19, 2013
Linda Greenhouse reflects on changing crime culture changing SCOTUS jurisprudenceLinda Greenhouse's new commentary piece at the New York Times "Opinionator" blog is focused on crime and punishment issues. The lengthy piece, headlined "Winds of Change," is worth a full read and here are excerpts:
Back in 1991, the Supreme Court upheld a Michigan man’s prison sentence of life without the possibility of parole for possessing more than 1.5 pounds of cocaine. The sentence did not represent the third strike of a three-strikes law: the prisoner, Ronald A. Harmelin, 45, had no previous criminal record. The police found the drugs when they stopped him for running a red light. Since simple possession was enough to trigger Michigan’s mandatory life-without-parole sentence, the prosecution didn’t even have to bother trying to prove that Mr. Harmelin intended to sell the cocaine.
In upholding the sentence, the court rejected the argument that it was so disproportionate to the crime as to violate the Eighth Amendment’s prohibition on cruel and unusual punishment. The three justices who then occupied the middle of the court (yes, there was a multi-justice middle back then) — Anthony M. Kennedy, Sandra Day O’Connor and David H. Souter — voted with the 5-to-4 majority.
In “Five Chiefs,” the very interesting (and underappreciated) Supreme Court memoir he published in retirement, Justice John Paul Stevens reflected on the Harmelin decision, from which he dissented. Those three justices were all relatively new to the court at the time, he wrote. The justices they had replaced — Lewis F. Powell Jr., Potter Stewart and William J. Brennan Jr. — were all long-serving veterans who Justice Stevens speculated would have voted to invalidate the sentence. It may be, he added, that “the views of individual justices become more civilized after 20 years of service on the court.”
That was an intriguing thought, and when I had a chance last year to interview Justice Stevens, I asked him to say more. He said he still thought about the case “a lot.” He was “quite sure” that Justice Kennedy would come to the opposite conclusion today, and that the other two probably would as well if they were still on the court. Nonetheless, he added, “the precedent is still there, and it’s really a very unfortunate case.”
I’ve been thinking a lot myself about the Harmelin decision in light of recent events. First there was the announcement last month by Attorney General Eric H. Holder Jr. that the Justice Department was revising its prosecution strategy in order to avoid the impact of mandatory minimum sentences for low-level drug offenses. That was followed by the announcement that the federal government wouldn’t sue to block state laws that have legalized marijuana for medical or recreational use. Either policy shift would have been greeted with amazement not too many years ago, but neither provoked anything approaching a fuss....
Something is clearly in the wind. I’ve also been thinking about the New York City mayoral primary. It’s impossible to read the election outcome as other than, at least in part, a public repudiation of the Bloomberg administration’s law-enforcement policies, particularly the administration’s embrace of stop-and-frisk. Mayor Michael R. Bloomberg not only denounced Federal District Judge Shira A. Scheindlin’s ruling last month that stop-and-frisk as the police were using it was unconstitutional, but he also attacked the judge herself as an “ideologically driven” judicial activist.
Unlike the days when politicians could score easy points by attacking courts as soft on crime, however, the mayor got no traction. Bill de Blasio, the Democratic primary winner, ran as the non-Bloomberg, making opposition to stop-and-frisk a centerpiece of his campaign. An exit poll indicated that black New Yorkers and white New Yorkers were equally supportive of Mr. de Blasio, who also received nearly identical support across the income spectrum — a fascinating development. People so often separated by race and class, seemed to unite around the conclusion that enough was enough.
The question is what this shift in public attitudes might mean for the courts, the Supreme Court in particular. The Supreme Court operates inside the mainstream culture — which is, after all, where the justices live — influenced not by the “weather of the day” but by the “climate of the age,” as Justice Ruth Bader Ginsburg likes to say, quoting the great constitutional scholar Paul Freund....
In his reflection on the Harmelin decision, Justice Stevens offered the tantalizing idea that longevity on the bench makes justices “more civilized.” Can that prediction apply not only to individual members of the court, but also to the court as a whole? As the Roberts court begins year nine, that may be a distant hope, but one worth clinging to.
The recent SCOTUS Eighth Amendment rulings in Graham and Miller reflect, in my view, the impact of these "winds of change." But it remains to see whether and when these winds will blow hard enough to knock over the problematic precedent set by the Harmelin decision 22 years ago.
September 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack
Wednesday, September 18, 2013
US Attorney defends fraud guidelines while others urge reform in USSC eventToday notable events in the federal sentencing reform arena were not confined only to today's U.S. Senate Judiciary Committee hearing on federal mandatory minimums (discussed here and here). Also starting today was a two-day event in NYC in which the U.S. Sentencing Commission is discussing potential reform to the federal fraud guidelines. This Reuters report, headlined "U.S. prosecutor cautions against white-collar sentencing revamp," provides a few notable highlights from the events in NYC:
The U.S. Justice Department opposes a wholesale revamping of white-collar criminal sentences that defense lawyers and some judges have urged, a top federal prosecutor said on Wednesday.
But Melinda Haag, the U.S. attorney in San Francisco, said the department was open to limited changes in white-collar sentencing that could reduce sentences in some fraud cases. The comments came as the U.S. Sentencing Commission is weighing revisions to advisory sentencing guidelines used by judges for securities, healthcare, mortgage and other fraud offenses.
Defense lawyers, the American Bar Association, some judges and others have criticized the guidelines, saying they emphasize financial losses caused by crime over all other factors, sometimes resulting in sentences that are too severe.
Haag, speaking at a symposium on white-collar sentencing in New York, said the Justice Department believes the current guidelines "result in tough but fair sentences in the vast majority of the cases." But she suggested that the department may be open to some changes, saying certain categories of cases, such as securities cases involving frauds on the market, warrant "careful study" by the commission. "Despite our questions and concerns, however, we do agree that in some cases, loss may overstate the seriousness of the offense," Haag said.
A growing number of judges have imposed terms less than prescribed by the guidelines, which became advisory rather than mandatory following a U.S. Supreme Court decision in 2005.
U.S. District Judge Loretta Preska, sitting on a panel with Haag, cited the case of Joseph Collins, a former partner at the law firm Mayer Brown, who was convicted for his role in a fraud at commodities broker Refco Inc. With losses calculated at $2.4 billion, Preska said under the guidelines Collins faced life in prison. She instead sentenced him in July to a year in prison, citing his community service and the fact he didn't financially benefit from the scheme. "This was absurd, absolutely absurd," she said.
Haag said the Justice Department recognized there "may be issues in some high-loss cases." But she said the department didn't believe a wholesale change was needed to the fraud sentencing guidelines or the loss table used to calculate sentences. She said it was a relatively small number of cases that had caused judicial concern. Citing commission statistics, she said 54 percent of economic crime cases involve less than $120,000 in losses and 83 percent involve less than $1 million.
Haag also argued that in some big cases involving investment fraud like Ponzi schemes, judges "don't seem to hesitate in imposing lengthy prison terms, noting the devastation these fraud schemes wreak on other people and the greed that motivated most of the defendants before them."...
In the last 18 months, federal prosecutors have handled investment fraud cases involving 800 defendants and more than $20 billion, she said. For the FBI, investment fraud is now 60 percent of its white-collar case load, she said.
Nonetheless, she said "certain categories of cases warrant careful study by the commission and potentially narrowly tailored amendments" to the fraud sentencing guidelines. Among the suggestions she gave would be for the Sentencing Commission to review how the guidelines treat loss in certain securities fraud cases where a drop in stock value by a few dollars per share can turn into a billion dollar loss.
The Sentencing Project releases "Life Goes On: The Historic Rise in Life Sentences in America"
I received an email alerting me to an important new publication about life and LWOP sentence just released by The Sentencing Project. Here is the text of the email, which includes links to the publication as well as a summry of its key findings:
While serious crime rates in the U.S. have been declining for the last 20 years, the number of prisoners serving life sentences has more than quadrupled since 1984. As documented in our new report, Life Goes On: The Historic Rise in Life Sentences in America, by senior research analyst Ashley Nellis, over 159,000 people were serving life sentences in 2012, with nearly 50,000 serving life without parole.
Key findings from the report include:
In order to reshape our crime policies to facilitaterehabilation, promote public safety, and reduce the high cost of massincarceration, the report recommends eliminating life without parole,increasing the use of executive clemency, preparing persons sentenced to lifefor release from prison, and restoring the role of parole in prisoner release.
- One of every nine individuals in prison is serving a life sentence.
- The population of prisoners serving life without parole (LWOP) has risen more sharply than those with the possibility of parole: there has been a 22.2% increase in LWOP since just 2008.
- Approximately 10,000 lifers have been convicted of nonviolent offenses.
- Nearly half of lifers are African American and 1 in 6 are Latino.
- More than 10,000 life-sentenced inmates have been convicted of crimes that occurred before they turned 18 and nearly 1 in 4 of them were sentenced to LWOP.
- More than 5,300 (3.4%) of the life-sentenced inmates are female.
September 18, 2013 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack
Tuesday, September 17, 2013
"Brown seeks 3-year delay on easing prison crowding"The title of this post is the headline of this new article from the Los Angeles Times, which gets started this way:
Following through on a deal struck with legislative leaders, Gov. Jerry Brown told federal judges Monday that he is prepared to spends hundreds of millions of dollars moving inmates out of crowded prisons — but would rather use the money to rehabilitate prisoners so they don't come back.
To do that, the state is asking for a three-year delay in meeting the inmate population caps the judges ordered in 2010. "For prison population reduction measures to be effective and lasting, they cannot be unilaterally imposed," the governor's lawyers said in a late-night filing, arguing that "state prisons are just one part of the larger, interconnected criminal justice system."
The proposal Brown submitted is based on a compromise hammered out with lawmakers who opposed his plan to reduce crowding by sending thousands of inmates to privately owned prisons and other detention facilities.
If judges agree to delay the deadline, Brown will still move 2,500 inmates out of state lockups and into alternative facilities within California, according to the court filing. And he will set aside $150 million next year for treating drug abuse and mental illness and other rehabilitation programs.
If the judges say no, the state proposes to meet their Dec. 31 deadline by spending $315 million this year — and more the next — to move more than three times as many prisoners, primarily to private lockups as far away as Mississippi.
Monday, September 16, 2013
Two new commentaries on California's enduring need for enduring sentencing and corrections reformCommentators in California soundly and sensibly recognize that last week's "deal" to deal with the state's overcrowded prisons (basics here) is not a long-term solution to the range of issues that helped lead to the state's problems in the first place. For example, this new Los Angeles Times op-ed by Lois Davis, a policy researcher at the Rand Corporation, stresses the need for better prison programming to reduce recidivism. Here are excerpts:
If California is serious about reducing its prison population, one crucial component will have to be reducing recidivism. Currently, a lot of the state's inmates are men and women who've been in prison more than once. They get out, they have little training or education, they can't get jobs and, in many cases, they return to lives of crime and find themselves back behind bars.
But a major new study of correctional education in U.S. state prisons suggests there are things California could do to slow that revolving door. Our research demonstrates that ex-offenders' futures may depend on what, if anything, they learn while behind bars....
My Rand Corp. colleagues and I recently completed a national study examining all the evidence on the effect of correctional education on recidivism and employment. We found that inmates who participated in correctional education programs — remedial education to develop reading and math skills, GED preparation, postsecondary education or vocational training — were 43% less likely to return to prison within three years of release in comparison to those who did not participate. That's a 13-percentage-point reduction in the risk of reoffending.
Inmates who receive correctional education behind bars are not just significantly less likely to return to prison; they are also more likely to find jobs after being released. Prisoners who participated in academic or vocational education programs had a 13% better chance of finding employment than those who did not. And prisoners who participated specifically in vocational training programs were 28% more likely to be employed after release from prison than those who were left out.
With times being tough and budgets tight, state policymakers, corrections officials and correctional education administrators will rightly ask whether the cost of providing such programs are worth the gains in lower recidivism. Our research shows that it is....
Failing to invest properly in education and training programs carries real risks, thrusting more uneducated and ill-equipped ex-cons onto the streets. And in California, that investment needs to be made not just in state prisons but in county jails too, since realignment has meant that many offenders who would have served their terms in prison are incarcerated in jails instead. The benefits of inmate education can extend far beyond prison walls. When former inmates are able to land jobs and stay out of prison, their families and communities gain too.
Similarly, though with a distinct reform focus, this local editorial stresses the need for broader sentencing changes in California. Here is an excerpt:
California has spent the past two decades learning a harsh, expensive lesson: The state does not have the financial resources to keep pace with the consequences of the hard-line sentencing laws imposed in the 1990s....
Politicians have long known that comprehensive sentencing reform is the solution, but have largely balked for fear of being labeled soft on crime. Until now. The compromise between Gov. Jerry Brown and Republican and Democratic legislative leaders on prison overcrowding creates a rare opportunity for California to seriously address the issue....
The challenge will be crafting new sentencing laws that deter crime, provide a fair punishment for criminal transgressions and reduce the state's 65 percent recidivism rate -- the highest in the nation. The national average is about 45 percent....
Comprehensive sentencing reform is the logical next step for California to create a sustainable, efficient and just state prison system. Maybe we can leave politics out of it.
September 16, 2013 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack
Sunday, September 15, 2013
Notable review of Kentucky's (now-ending) experiences with private prisonsThe (Louisville) Courier-Journal has this intriguing review of Kentucky's modern experiences with private prisons. The extended piece is headlined "Private prisons' legacy in Kentucky is mixed," and it gets started this way:
For decades, Kentucky officials looked at private prisons as a cost-effective solution to an inmate population that exploded under “tough on crime” policies in the 1980s and ’90s.
Even some critics of the industry acknowledged a need for private facilities as Kentucky’s incarceration rates soared past most other states’ and consumed an increasingly larger share of the state budget — more than $487 million in 2012.
But this month, as the Department of Corrections cuts ties with the largest prison company in the country and moves all remaining inmates to publicly run institutions, Kentucky’s 28-year venture with for-profit prisons is ending with a mixed legacy.
Officials say recent penal reforms and declining prisoner counts are behind the state’s decision not to renew its contract with Corrections Corp.of America, a Nashville-based firm that has operated three private prisons and held thousands of inmates in Kentucky since 1998, most recently at the Marion Adjustment Center in St. Mary. “Our decision wasn’t based on an opinion of private prisons,” said Kentucky Justice Secretary J. Michael Brown. “CCA was a great partner. We could not have operated without that partnership while our (inmate) population was trending up.”
CCA estimates that it has saved the state millions of dollars — 12 percent to 24 percent in corrections costs, according to an industry-backed study — while employing hundreds of workers and boosting local economies.
Still, critics argue that outsourcing a key function of government to a private company raised significant issues, including criminal charges of sexual misconduct, poor health care and lawsuits at the CCA-run Otter Creek Correctional Center in Eastern Kentucky.
And they say those concerns have defined Kentucky’s partnership with private prisons in ways that a cost analysis cannot show. “I think it became a blight on the state,” said Dr. Mark Hovee, a clinical psychologist who worked at Otter Creek for about six years before resigning in 2007. “I think it was like a stain, allowing a prison to come in from the outside and run things the way they did.”
Some related posts:
- "Billions Behind Bars: Inside America's Prison Industry"
- ACLU of Ohio releases new report assailing Governor's plan to sell state prisons
- Might private prisons actually cost taxpayers more than public prisons?
- "Who Benefits When A Private Prison Comes To Town?"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
- "Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"
- "International Trends in Prison Privatization"
Saturday, September 14, 2013
"No Prisoner Left Behind? Enhancing Public Transparency of Penal Institutions"The title of this post is the title of this intriguing looking new paper by Andrea Armstrong available via SSRN. Here is the abstract:
Prisoners suffer life-long debilitating effects of their incarceration, making them a subordinated class of people for life. This article examines how prison conditions facilitate subordination and concludes that enhancing transparency is the first step towards equality. Anti-subordination efforts led to enhanced transparency in schools, a similar but not identical institution. This article argues that federal school transparency measures provide a rudimentary and balanced framework for enhancing prison transparency.
Thursday, September 12, 2013
California legislature quickly approves new plan to deal with prison overcrowdingThe old saying is "Where there is a will, there is a way." The proper saying in California concerning prison overcrowding might be "Where there is a prisoner-release federal court order, there becomes the will needed to find a way." I say this based on this latest legislative news via the Los Angeles Times coming from the Golden State, headlined "Legislators give bill on prisons quick passage: Measure aimed at easing crowding by rehabilitating offenders goes to the governor." Here are excerpts:
A plan to ease prison crowding is on its way to Gov. Jerry Brown after winning swift approval Wednesday from both houses of the Legislature. The fast-tracked bill, announced Monday, addresses a federal court order requiring the state to shrink its prison population by about 9,600 inmates by the end of the year.
Lawmakers also completed work on measures that would further restrict firearms, increase penalties for sex offenders who remove their GPS monitoring devices and relax rules on billboard advertising.
Under the prison deal, brokered by the governor and legislative leaders, the state will seek extra time to comply with the court. If an extension is granted, officials will use it to expand rehabilitation programs aimed at keeping offenders from returning to prison after they have served their time.
If judges reject the request, the state will relocate thousands of inmates to privately owned prisons and other detention facilities. Moving the prisoners would cost $315 million in the current fiscal year and is projected to cost $415 million in each of the two subsequent years.
Senate President Pro Tem Darrell Steinberg (D-Sacramento), who initially had clashed with Brown and Assembly Speaker John A. Pérez (D-Los Angeles) over how to meet the court's demand, called passage of the bill a "pivotal moment," potentially shifting California's efforts toward a long-term solution to prison overcrowding.
Senate minority leader Robert Huff (R-Diamond Bar) said the proposal was needed to avoid the possible release of inmates before their sentences were up. "It gives us certainty that there is no early release," Huff told his colleagues.
Some Democrats pushed back on the price tag for housing in the bill, SB 105, by Steinberg and Huff. One of those Democrats, Sen. Noreen Evans of Santa Rosa, said during the debate that after years of state belt-tightening, "I simply cannot in good conscience give a $315 million blank check to the director of our corrections system. "I don't believe it is fiscally responsible," Evans said. "It will not provide the reforms that we want."
If the state does not relocate prisoners, at least $75 million of that money will go to rehabilitation programs such as drug treatment and mental health services. The rest of the $315 million will be divided between rehab programs and the state's general fund....
On another law-enforcement issue, legislators approved a measure, spurred by reports in The Times, about a growing number of sex offenders cutting off the electronic monitoring devices the law requires them to wear. Those who do so would face a mandatory 180 days in jail under SB 57 by Sen. Ted Lieu (D-Torrance), which went to Brown. Many such offenders get little or no time behind bars now.
Wednesday, September 11, 2013
Could GOP Senator John Cornyn be the next big advocate for reducing federal prison terms?The question in the title of this post is prompted by this very interesting new piece by Greg Sargent via the Washington Post under the headline "Where are Republicans on sentencing reform?." Here are excerpts:
When Eric Holder announced recently that he is pursuing an ambitious package of sentencing reforms, including proposals to reduce “mandatory minimum” sentences, there was a widespread sense it could attract broad bipartisan support. The thinking was that agreement cuts across party lines that our decades-long experiment in mass incarceration has been a huge policy failure.
Now Dem Congressional aides are asking: Will leading Republicans step forward and support reform?...
I can report a new development on this front. I’m told GOP Senator John Cornyn is working on a separate but related package of prison-reform legislation that could help bring more attention to the overall debate. According to his office, Cornyn is developing proposals designed to reduce recidivism rates and time served in prison. The ideas are not sentencing reform and would not reduce the sentences themselves — as would Holder’s proposals — but instead would give prisoners ways to reduce already-doled-out sentences.
The policies, which are modeled on similar reforms in Texas, would allow certain types of non-violent prisoners to do various programs — such as recidivism reduction programming, work programs, or other productive activities. Prisoners at low risk of recidivism could trade in the time they do in such programs to convert their remaining time in prison into time in halfway houses or home confinement.
While these ideas don’t attack the problem in precisely the same way the ideas pushed by Holder and Dems do, there is overlap. As Cornyn’s office notes, their goal would be to reduce the amount of time people spend in prison, reduce recidivisim, and reduce costs. Cornyn’s office says he will try to round up Republican and Democratic support for them and possibly introduce them this fall. If that happens, it could help ignite a conversation on the broader set of issues here....
But we have yet to hear from leading Republicans whose support would be required to push this debate forward, such as Senators Orrin Hatch and Jeff Sessions, both of whom are on the Judiciary Committee and (to my knowledge) have not seriously weighed in on Holder’s push. The question is whether establishment Republicans are going to have a real voice on this issue this fall. Let’s hope so.
I am pretty sure there are more than a few folks within the Justice Department who have advocated (both formally and behind the scenes) for expanding "good time" credits and creating "earned time" credits in order to make it much easier for nonviolent federal prisoners "to reduce already-doled-out sentences." Consequently, it is not so much the specifics of Senator Cornyn's working plan that are such a big deal, but rather that someone without a obvious Tea Party history is working on a federal prison reduction plan at all. Kudos to Senator Cornyn, and I hope joins the ever-growing chorus of GOP voices calling for federal criminal justice reforms.
Some old and newer related posts about AG Holder's speech and the "new politics" of sentencing reform:
- "With Holder In The Lead, Sentencing Reform Gains Momentum"
- Lots of (mostly positive) reactions to AG Holder's big sentencing speech
- Notable inside-the-Beltway discussion of modern sentencing politics
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
- Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
- Justice Safety Valve Act gets bipartisan introduction in House of Representatives
- "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- "As Prisons Squeeze Budgets, GOP Rethinks Crime Focus"
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
September 11, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, September 10, 2013
Reformers claim California three-strikes reform is reducing excessive imprisonment without endangering publicI am very pleased to see this new story out of California following up on an important example of voters directly embracing "smart" versus "tough" sentencing reform. The piece is headlined "Prop. 36's '3 strikes' change working, lawyers say," and here are excerpts:
Ten months after Californians voted to ease the state's "three strikes" law by exempting lesser offenders from life sentences, drafters of the ballot measure said Monday it's working just as they predicted -- reducing unnecessary imprisonment without endangering the public.
In fact, the 1,000 inmates released so far under Proposition 36 are committing new crimes at a far lower rate than other newly freed inmates in California, lawyers at Stanford's Three Strikes Center and the NAACP Legal Defense Fund said at a media briefing.
Those three strikes prisoners have been free for an average of four months, and fewer than 2 percent have been charged with new crimes, mostly misdemeanors and all relatively minor offenses, the report said. By contrast, it said, 16 percent of newly freed inmates in California are charged with new crimes in the first 90 days.
Opponents' prediction of "blood in the streets was hyperbole," said David Mills, a Stanford law professor who founded the Three Strikes Center. "Millions of dollars have been saved and many lives changed, hopefully for the better." He said the state provides some support for rehabilitation and training of other released prisoners, but offers no such assistance to those released under Prop. 36.
More than 2,000 additional people with third strikes have asked a judge for release under Prop. 36, including more than 850 in Los Angeles County, which is processing the cases slower than other counties, said Mike Romano of the Three Strikes Center.
The report was released on the same day that Gov. Jerry Brown and legislative leaders announced agreement on a proposal to reduce California's prison population by nearly 10,000 inmates over three years, rather than the Dec. 31 deadline set by a federal court. The plan would cost $200 million a year for local drug treatment and other rehabilitation programs, which are designed to lower the prison population over time, if the court agreed to extend the deadline. If not, Brown plans to spend $315 million a year to lease cells in jails and private prisons where current prison inmates would be transferred....
Prop. 36, passed with a 69 percent majority in November, abolished life terms for criminals whose third strikes were neither serious nor violent and instead sentenced them to twice the normal term. Those reductions did not apply, however, to defendants who had previous convictions for sexual assaults and some other crimes or violence or drug trafficking.
Inmates serving 25 years-to-life terms for third strikes that were neither violent nor serious can seek to have their sentences reduced. Before release, a judge must decide, based on the prisoner's record and prison conduct, that he or she does not pose an unreasonable risk to the public. Prosecutors can object to release but cannot veto it.
Though not made so clear in this article, the Stanford Law School Three Stikes Project has released this effective (and short) Progress Report (which was co-published by the NAACP Legal Defense and Eduction Fund) to mark the 1,000th inmate released under the Three Strikes Reform Act of 2012 ("Proposition 36"). Here is part of the report's abstract:
Fewer than ten months after the California electorate voted overwhelmingly in favor of Proposition 36 in November 2012, over 1,000 inmates have been resentenced and released pursuant to its provisions. Although many prisoners have been resentenced, there are still more than 2,000 eligible cases outstanding, including over 800 unresolved eligible claims in Los Angeles County alone.
This Report shows that the recidivism rate of prisoners released under the Proposition 36 (2 percent) is well below California's statewide average (16 percent). The Report also presents individual success stories of some of those resentenced and released.
Finally, this report proposes recommendations to address outstanding issues regarding the proposition’s implementation, including expediting the review of over 2,000 prisoners still waiting for their cases to be resolved under Proposition 36; ensuring that prosecutors and public defenders have adequate resources to litigate those cases; and providing better housing, drug treatment, and job training opportunities for prisoners reentering the community.
Wednesday, September 04, 2013
Another effective review of the messy Miller aftermathThis morning's Wall Street Journal has this new article reviewing all the legal uncertainty which persists in state courts more than a year after the Supreme Court's Miller ruling declared unconstitutional mandatory LWOP sentences for juvenile murderers. (Regular readers may recall similar recent AP and Stateline piecesfocused mostly on legislative responses to Miller discussed here and here.) This new WSJ piece is headlined "Courts Split Over Ruling on Juvenile Life Sentence: Confusion on 2012 Decision Creates a Legal Limbo for Inmates, Their Lawyers," and here are excerpts:
Jeffrey Ragland, sentenced to life without parole in 1986 for his involvement in the killing of a fellow teen with a tire-iron blow to the head, could soon be a free man. That outcome is the result of a ruling by the Iowa Supreme Court last month that found the sentence handed down to Mr. Ragland, now 44 years old, unconstitutional. The court concluded that a June 2012 ruling from the U.S. Supreme Court outlawing mandatory life-without-parole sentences for juveniles should be applied retroactively, rather than only to future cases.
Other high-level courts, including the Minnesota Supreme Court and the Eleventh U.S. Circuit Court of Appeals in Atlanta, have ruled otherwise, finding the Supreme Court's ruling in Miller v. Alabama shouldn't reach backward in time. Inmates challenging their sentences in those cases had their appeals denied.
This schism over the Miller ruling has helped sow deep confusion among inmates, their lawyers, lawmakers and sentencing-policy advocates. More than a year after the high court ruling, many of the approximately 2,100 people sentenced as juveniles to mandatory life-without-parole sentences before June 2012 are being held in a sort of legal limbo — with few answers in sight.
"The situation is an absolute mess," said Wendell Sheffield, a criminal defense lawyer in Birmingham, Ala., who represents a juvenile being held in jail on capital murder charges. "We got an opinion from the highest court in the land, but nobody knows how to implement it."... [S]o far, courts have largely divided over a highly technical question of constitutional law: whether the rule established in Justice Kagan's opinion is "substantive" in nature, and therefore should apply retroactively, or "procedural," which would only alter the method of determining a sentence going forward.
Several Supreme Court rulings in recent years in regard to sentencing, such as the 2002 decision that banned the death penalty for the mentally disabled, were in the former category and applied to sentences already imposed. Justice Kagan's opinion didn't explicitly label the new rule as procedural or substantive....
Advocates for overhauling the juvenile-justice system hailed the Ragland ruling. "An incentive to rehabilitate should be part of most juvenile sentences," said Jody Kent, director of the Campaign for the Fair Sentencing of Youth. "So often we have no idea what a child is going to be like in 10, 20 or 30 years."
A spokesman for Iowa Gov. Terry Branstad, a Republican whose office had argued against Mr. Ragland's new sentence, said victims "must never be re-victimized and can never be forgotten from the process." It is a concern echoed by other victims' rights supporters, who think renewed parole hearings, with their promise of springing convicted murderers from prison, would open old wounds.
Since the Miller ruling, a handful of the 28 states with mandatory life-without-parole sentences for at least some juveniles have changed their laws. Some, like Delaware and Texas, scrapped the option of such sentences entirely. Others, like Arkansas and Nebraska, still allow judges to impose the sentence, but also let them consider a life sentence with the possibility of parole.
But the majority of states have yet to change their laws, leaving the status of scores of inmates and defendants up in the air. Mr. Sheffield said his client in Alabama is "completely stuck in a holding pattern" until the legislature or the Alabama courts give some clarity. "I think the [U.S.] Supreme Court was hopeful that state legislatures would deal with this fairly quickly," he said. "But they haven't — and it's just adding to the chaos."
I suspect the US Supreme Court will eventually feel compelled to take up the issue of whether and how the Miller ruling is to apply retroactively to long ago final cases. If (and when?) the Justice take up this matter, I think the case could end up being one of the most significant SCOTUS retroactivity decisions since Teague.
A few recent related posts:
- Effective press review of some state responses to SCOTUS Miller ruling
- Terrific Stateline review of states' varied applications of and reactions to Miller
- A year after Miller confirmed kids are different, how may kids have different sentences?
- Iowa Supreme Court rules in favor of juve defendants in three post-Graham appeals
- In lengthy split opinion, Minnesota Supreme Court concludes Miller should not apply retroactively
September 4, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack