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."
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.
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.
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.”
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.
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.
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.
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"
The 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:
Hidden jail costs typically fall into six categories: employee benefits, inmate health care, capital costs, administrative costs, legal costs, and inmate services.
The largest jail costs are those associated with personnel. Because these expenses are driven by jail population, jurisdictions that wish to lower their costs must take steps to reduce the number of people in jail.
Cuts to inmate programs and administrative costs have a relatively small impact on jail spending, because they don’t affect personnel.
Fees charged to inmates for phone calls, purchases, and medical services can be considerable for incarcerated people and often leave them in debt, but this inmate-generated revenue only recoups an average of 3% of jail spending.
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.”
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.
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:
- You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?
- Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility
- After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage
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.
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.
Tuesday, May 12, 2015
"Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives"
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.
Friday, May 08, 2015
Alabama rolls to join tide of red states enacting significant prison and sentencing reform
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."
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?
"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.
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.
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.
Imprisonment for 15 years for sex on the beach?!?! Really?!?!
I 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.
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
Today'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:
- Examining the sources of an ever-aging US prison population
- New major report documents costs and concerns with aging prison populations
- Big new ACLU report highlights the high cost of high numbers of elderly prisoners
- "Aging Prisoners, Increasing Costs, and Geriatric Release"
- What should Florida and other states do with all their old sex offenders?
- Are all states going to need to create old-age prisons?
- The high costs of an aging prison population
- The story of prisons becoming nursing homes in Virginia
- "Frail and Elderly Prisoners: Do They Still Belong Behind Bars?"
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.
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:
- Candidate Hillary Clinton to call for criminal justice reforms that would “end the era of mass incarceration”
Candidate Hillary Clinton to call for criminal justice reforms that would “end the era of mass incarceration”
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.
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.
'Cause all of me, loves all of you ... who are harmed by mass incarceration's imperfections
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.
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.
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.
Wednesday, April 08, 2015
Terrific review of possible USSC fraud guideline amendments (and DOJ's foolish opposition)
As detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for tomorrow, April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.
I doubt the actual USSC meeting will be a must-see event, though I have urged my sentencing students to tune in. (I plan to watch the meeting live on my iPad while also keeping an eye on another notable on-going event in Augusta, Georgia.) But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases." The entire commentary is a must-read (with lots of great links) for all federal sentencing fans, and here are a few choice excerpts:
On March 12, 2015, the US Sentencing Commission held a public hearing on its annual proposed amendments to the Federal Sentencing Guidelines. A number of the proposals concern the guideline for economic crimes and fraud cases, § 2B1.1. The amendments would reduce the recommended sentence in many such cases, particularly those involving large dollar amounts.
At the hearing the US Department of Justice opposed most of these amendments. DOJ argued that any move to reduce the sentences in fraud cases would be bad policy and would ignore the "overwhelming societal consensus" in favor of harsh punishment for these crimes.... But given the current realities of federal sentencing, DOJ is fighting the wrong battles....
At the March 12 hearing DOJ opposed the inflation adjustment; opposed the amendments concerning sophisticated means, intended loss, and fraud on the market; and supported the new enhancement based on causing victims substantial hardship. In other words, DOJ opposed virtually any amendment that could lead to lower sentences while supporting changes that could lead to higher ones. While this may seem predictable, I think it's a mistake.
DOJ was a lonely voice at the hearing and is definitely swimming against the tide by opposing the amendments. There is a widespread and growing belief that the sentences called for in major fraud cases have become excessive. More broadly, there is an emerging bipartisan movement in the country favoring criminal justice reform, including measures to reduce skyrocketing sentences (particularly for non-violent offenders) and our enormous prison population.
Law professor Frank Bowman provided some compelling hearing testimony tracing the history of the fraud guideline and demonstrating how various forces, both intentional and unintentional, have combined over the years to escalate the sentences in such cases dramatically. As he pointed out, given the large dollar values involved in some recent Wall Street frauds, it's relatively easy for a white-collar defendant to zoom to the top of the sentencing table and end up with a recommended sentence of 30 years or even life in prison—on a par with sentences recommended for homicide, treason, or a major armed bank robbery.
DOJ's resistance to virtually any amendment that might lead to lower sentences in economic crime cases appears short-sighted and runs the risk of looking reflexive. The Sentencing Commission has researched these questions for several years, gathering input from all stakeholders. The proposals seem reasonable and justified, and in fact are more modest than many had hoped.
It's hard to see what criminal justice purpose is being served by the escalating sentences in fraud cases. The prospect of prison does have a powerful and important deterrent effect that is unique to criminal law. But for a typical business executive it's hard to believe there's much additional marginal deterrent value in a possible twenty or twenty-five year sentence as opposed to, say, a fifteen year one.
But the more important fact is that legal developments have rendered DOJ's position in favor of higher guidelines sentences increasingly beside the point. It's been ten years since the Supreme Court ruled in US v. Booker that the mandatory sentencing guidelines were unconstitutional and the guidelines must be advisory only. Later in Kimbrough v. US the Court made it clear that a judge is free to depart from the recommended sentence if the judge disagrees with a policy decision underlying the guidelines.
In this legal environment, DOJ's push for higher guidelines looks like a struggle to keep the barn door closed when the horse left for greener pastures long ago. In the post- Booker/Kimbrough world, if judges believe a sentence called for by the guidelines is out of whack they will simply reduce it. For example, in the recent public corruption case involving former Virginia Governor Robert McDonnell, the judge called the recommended guidelines sentence of six to eight years in prison "ridiculous" and proceeded to sentence McDonnell to only two years.
There's evidence that the same thing is already happening in fraud cases. According to the Sentencing Commission's data, judges sentence below the recommended guidelines range in about 21 percent of fraud cases (not counting those cases where the government itself requests a reduced sentence). But in the Southern District of New York, home to Wall Street and many of the big-dollar fraud cases, judges depart below the guidelines in a whopping 45.6 percent of such cases. It does no good for DOJ to continue to push for extremely high guidelines numbers only to have judges ignore the guidelines and impose the lower sentences that they feel are just and reasonable.
DOJ's approach is worse than futile, it's counter-productive. The more that judges come to regard the guidelines as calling for inappropriate sentences, the more comfortable they may become not following them. This could lead to more widespread departures from the guidelines not merely in fraud cases but in cases across the board, accelerating a deterioration in the force and influence of the guidelines that so far has been held relatively in check since Booker.
April 8, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, April 07, 2015
Announcing his Prez campaign, Senator Rand Paul talks up liberty and (arguably) repeal of drug laws
Senator Rand Paul, the most vocal and consistent GOP voice pushing for federal criminal justice reforms, announced today that he is running from President. Here are a few excerpts from this transcript of his speech today that ought to interest sentencing fans:
This message of liberty is for all Americans, Americans from all walks of life. The message of liberty, opportunity and justice is for all Americans, whether you wear a suit, a uniform or overalls, whether you’re white or black, rich or poor....
We need to boldly proclaim our vision for America. We need to go boldly forth under the banner of liberty that clutches the Constitution in one hand and the Bill of Rights in the other....
Love of liberty pulses in my veins not because we have beautiful mountains or white sand beaches, although we do, and not because of our abundance of resources. It’s more visceral than that. Our great nation was founded upon the extraordinary notion that government should be restrained and freedom should be maximized....
I see an America where criminal justice is applied equally and any law that disproportionately incarcerates people of color is repealed.
It is telling, and should be a bit disappointing to criminal-justice reformers, that Senator Paul did not make express mention in his launch speech of sentencing and criminal justice reform beyond the final sentence quoted above. Nevertheless, building off this line and also Senator Paul's past work on criminal justice reform, Vox has these two notable new pieces about what kind of reforms we might (and might not) hear about during the coming Paul campaign:
Sunday, April 05, 2015
NY Times notes Justice Kennedy's criminal justice perspective
Today's New York Times has this extended editorial effectively contextualizing recent comments by SCOTUS Justice Anthony Kennedy headlined "Justice Kennedy’s Plea to Congress." Here are excerpts:
Members of the Supreme Court rarely speak publicly about their views on the sorts of issues that are likely to come before them. So it was notable when Justices Anthony Kennedy and Stephen Breyer sat before a House appropriations subcommittee recently and talked about the plight of the American criminal justice system.
Justice Kennedy did not mince his words. “In many respects, I think it’s broken,” he said. It was a good reminder of the urgency of the problem, and a stark challenge to a Congress that remains unable to pass any meaningful sentencing reform, despite the introduction of multiple bipartisan bills over the past two years....
“The corrections system is one of the most overlooked, misunderstood institutions we have in our entire government,” he said. He chastised the legal profession for being focused only on questions of guilt and innocence, and not what comes after. “We have no interest in corrections,” he said. “Nobody looks at it.”
That is not entirely fair; many lawyers and legal scholars have devoted their careers to studying the phenomenon of mass incarceration in America and to improving intolerable prison conditions. But Justice Kennedy was right that all too often decisions about sentencing and corrections are made without meaningful consideration of their long-term costs and benefits, or of their effect on the millions of people who spend decades behind bars. “This idea of total incarceration just isn’t working,” he said. “And it’s not humane.”...
Justice Kennedy — whose regular role as the swing vote on a closely divided court gives him tremendous power — has a mixed record on [the Eighth] amendment. Several times he has voted to uphold breathtakingly long sentences for nonviolent crimes. For example, in two 2003 cases, he joined the five-member majority that let stand sentences of 25 years to life and 50 years to life for men convicted in California of thefts totaling a few hundred dollars.
Justice Kennedy’s response to such manifestly unjust results is that fixing prison sentences is the job of lawmakers, not the courts. But that too easily absolves the justices of their constitutional responsibility. The four justices dissenting in the California cases argued that those grossly disproportionate sentences violated the Eighth Amendment.
In more recent years, Justice Kennedy has increasingly invoked the amendment in sentencing cases, as he did in writing the 2008 decision prohibiting the death penalty as a punishment for child rape, and in 2010 and 2012 when he voted to bar sentences of life without parole for juveniles in most circumstances. He also relied on it in a 2011 decision ordering California to reduce overcrowding in its prisons, a condition that threatened inmates’ physical and mental health.
Justice Breyer, who before joining the court helped design the modern federal sentencing guidelines in the 1980s, told the committee of his own concerns about the justice system, and in particular was sharply critical of mandatory minimum sentences. Such sentences, he told the representatives, are “a terrible idea.”
The justices were right to lay these issues directly at Congress’s door. They can accomplish only so much on their own. Meanwhile, states from Texas to California to New York to Mississippi have been reforming their prisons and their sentencing laws for several years now, with overwhelmingly positive results. Now it is Congress’s turn to reform the unjustly harsh and ineffective sentencing laws it passed in the first place.
Prior related post:
Wednesday, April 01, 2015
"A Republican Governor Is Leading the Country's Most Successful Prison Reform"
The title of this post is the headline of this notable new piece from The New Republic. Here are excerpts:
During his second inaugural address this past January, Georgia Governor Nathan Deal shared the story of Sean Walker. After serving 12 years of a life sentence for murder, Walker was paroled in 2005 and began working in the governor’s mansion while in a state transitional center. At the time of Deal’s address, Walker was working for Goodwill as a banquet catering sales coordinator and was nominated for Goodwill International Employee of the Year. As of January, Walker was planning to take college courses with the hope of becoming a counselor.
Deal, who got to know Walker at the governor’s mansion, shared the story to underscore his own “message to those in our prison system and to their families: If you pay your dues to society, if you take advantage of the opportunities to better yourself, if you discipline yourself so that you can regain your freedom and live by the rules of society, you will be given the chance to reclaim your life.” He continued, “I intend for Georgia to continue leading the nation with meaningful justice reform.”
That last sentence could seem at best like optimism, and at worst like hyperbole. However, one could reasonably argue that Georgia is doing more to reform its criminal justice system than any other state in the country — from sentencing to felon employment after release to juvenile detention.
Over the last four years, mandatory sentencing minimums have been modified, and judges’ discretion in sentencing has been expanded. The adult prison population has been given enhanced access to educational resources, including a program that enables two charter schools in the state to go into prisons to teach inmates, and those participating earn a high school diploma instead of a GED. (Studies suggest that some recipients of a GED tend not to fare any better in employment prospects than high school dropouts do.)
In addition, inmates with felonies applying to work for the state no longer have to check a box on their job applications that discloses their criminal histories and would often disqualify them from being considered for a job from the outset. “We banned the box,” said Deal, “It is not going to affect them getting an interview.” The state has also invested $17 million into measures aimed at reducing recidivism and rehabilitating low-risk, nonviolent offenders — including expanding accountability courts like those for drug use and DUIs, and funding community-based programs that have already proven to be more cost-effective than a prison sentence and are designed to reduce crime in the long run....
Some, like Vikrant Reddy, a senior policy analyst at Right on Crime and at the Texas Public Policy Foundation’s Center for Effective Justice, label Georgia’s criminal justice reforms conservative because they are saving the state millions, putting them in line with conservative fiscal values. Others, like Alison Holcomb, the national director of ACLU’s Campaign to End Mass Incarceration, call the reforms expansive for their holistic agenda—with improving educational and re-entry opportunities for inmates at the top of the list. The reforms have been called innovative, though some argue that it isn’t the reform initiatives themselves, so much as the way they’re being applied together that is unprecedented.
Sunday, March 29, 2015
"Federal Sentencing 'Reform' Since 1984: The Awful as Enemy of the Good"
The title of this post is the headline of this notable new article by Michael Tonry now available via SSRN. Here is the abstract:
The federal sentencing system was conceived in one era and delivered in another. When the first bills that culminated in passage of the Sentencing Reform Act of 1984 were introduced, they aimed at reducing the worst excesses of indeterminate sentencing and achieving greater fairness, consistency, equality, accountability, and transparency in sentencing federal offenders. The overriding goal was reduction of unwarranted racial and other disparities.
In the different political climate of the mid-1980s the federal sentencing commission instead sought to achieve greater rigidity and severity and to respond to the law-and-order policy preferences of the Reagan administration and the Republican-controlled US Senate. Probation, formerly the sentence of half of convicted federal offenders, was nearly eliminated as a stand-alone punishment. Lengths of prison sentences increased enormously. After the federal guidelines took effect, buttressed by a plethora of mandatory minimum sentence laws, the growth of the federal prison population far outpaced that of the states and the federal system became the extreme example nationally and internationally of the dangers of politicization of crime policy. The political climate may be changing and the federal system may change with it. Only time will tell.
Oregon Supreme Court to consider constitutionality of LWOP sentence for public pubic promotion
This local article from the Beaver State, headlined "Oregon Supreme Court to consider: Is it 'cruel and unusual' to imprison public masturbator for life?," reports that the top court in Oregon is taking up a notable sentencing issue in a notable setting. Here are the details:
William Althouse is serving a life prison sentence -- but not because, like many in that situation, he killed someone. Althouse, 69, has repeatedly exposed his genitals in public with sexual intent. In 2012, after a Marion County jury found him guilty of that conduct again, a judge sentenced him to life without any hope of being released.
The Oregon Supreme Court, however, announced Thursday that it will consider if that amounts to cruel and unusual punishment. The sentence is disproportionate to the offense, said Daniel Carroll, the defense attorney who represented Althouse at trial, told The Oregonian/OregonLive on Friday. "No one died," he said.
The high court's consideration of the case seems particularly timely given another lengthy sentence -- 18 years -- handed down to a 49-year-old Sherwood man last week who was found guilty of masturbating or exposing himself eight times at the drive-through windows of fast-food restaurants and coffee shops.
In Althouse's case, the state likely will point out that he isn't only a serial flasher -- his life sentence was meant to reflect a long and concerning history of sex offenses. His sex crime convictions include sexual abuse in 1982 and kidnapping, sodomy and sexual abuse in 1993.
Typically, first-time public indecency offenders receive probation and counseling. It's unclear from court records how many times Althouse has been convicted of public indecency, but when he was convicted in 2002 of the crime, court records indicate that he had at least one earlier conviction.
Althouse, who was living in Salem, was arrested in his last case after a female jogger reported seeing him exposing his genitals -- the prosecution contended masturbating -- along a walking path next to the Salem Parkway in October 2011. After a jury found him guilty in 2012, Marion County Circuit Judge Lindsay Partridge sentenced Althouse to the life term under an Oregon law meant to get tough on sex offenders after their third felony sex conviction.
One of many interesting aspects of this case is the import and possible impact of the age of the offender. In recent SCOTUS rulings, some Justices seemed sensibly influenced by the reality that an LWOP sentence for a juvenile offender can be functionally worse than even a no-parole 50-year sentence. But for an offender in his late 60s, an LWOP sentence is arguably functionally no worse than a no-parole 50-year sentence. Whether and how that should matter for constitutionally purposes is an issue still not yet resolved in debates over LWOP sentences that have been described as "living death sentences."
Saturday, March 28, 2015
"The activist nun reforming profit-prisons"
The title of this post is the headline of this intriguing new article via CNNMoney. Here are excerpts:
Some of America's most controversial companies -- for profit prisons -- have unlikely owners: nuns. Mercy Investment Services Inc. is the investment fund for the Institute of Sisters of Mercy of the Americas, an international religious order.
The fund is managed by Sister Valerie Heinonen, a soft-spoken nun who's been buying shares in for-profit prison companies since early 2000. She's not doing it in the hopes of making big bucks. Rather, she tries to use her leverage as an owner to reform the industry.
"What we want is the establishment of a human rights policy at these companies," Heinonen told CNNMoney. Even more importantly, she wants the policy to be thoughtfully implemented, monitored and transparently disclosed to shareholders....
For decades, investors have put billions of dollars into the two largest such companies, Geo Group (GEO) and Corrections Corporation of America (CXW). Many investors saw dollar signs as prison populations swelled. The stock of Geo Group has risen 130% in the past three years.
While profits have been huge, some money managers feel it is unfair for Wall Street to profit from what they see as the inhumane warehousing of human beings. This issue is back in the forefront given the surge of immigrant detainees following the mass deportation effort of the Obama administration....
GEO Group and CCA say they are committed to protecting the human rights of prisoners and detainees. "Our company adopted a Global Human Rights policy two years ago, which we believe was a first for any private correctional organization in the United States," Geo Group told CNNMoney in a statement.
CCA said its human rights policy is publicly available on its website and is incorporated into the ethics and professionalism course that every new employee receives. "It has been shared across our organization in communications from our CEO and others in leadership," a CCA spokesman said.
Mercy has raised questions about food, housing and education for the detained children and adults. "We've also been concerned about legal access for people," Heinonen said. Implementation and monitoring of human rights policies and transparency in communicating progress to investors is a work in progress.
"How often do the guards get a refresher course and what kind of oversight is there," Heinonen asked. Mercy and the prison companies say they continue to meet regularly in order to address these issues. Mercy's relationship with prisons started out pretty warm and fuzzy.
"A number of orders have members who are chaplains in prisons and perhaps this conversation came from what these people saw," she said. Mercy initially focused on executive compensation. It introduced an investor resolution onto the ballot of both Geo Group and CCA, tying compensation to social as well as financial criteria.
"By the time we got started with the human rights policy, we had had had some success with other shareholder initiatives," Heinonen said. "For example, with the environmental initiative, everyone was recycling their waste."
Friday, March 27, 2015
NY Times Magazine covers modern prisons at home and abroad
I am pleased to see that this week's New York Times Magazine has three significant pieces about prisons. Here are the headlines and teasers from this webpage:
The Radical Humaneness of Norway’s Halden Prison: The goal of the Norwegian penal system is to get inmates out of it.
Prison Planet: Different nations take very different approaches to the convicts they deem the most dangerous.
Inside America’s Toughest Federal Prison: For years, conditions inside the United States’ only federal supermax facility were largely a mystery. But a landmark lawsuit is finally revealing the harsh world within.
Thursday, March 26, 2015
Highlights from AG Holder remarks at Bipartisan Summit on Criminal Justice Reform
Thanks largely to the GOP Senators in charge of Senate procedure, we still do not yet know whether Loretta Lynch will be confirmed as the next Attorney General and thus we still have Eric Holder serving in this important role a full six months after he announced his resignation. Today, in that role, AG Holder gave this address to the "Bipartisan Summit on Criminal Justice Reform." Here are excerpts:
[T]his country faces serious challenges—an excessive prison population that is draining our resources and devastating our communities; systemic institutional biases that disproportionately affect people of color; and an overreliance on incarceration at the expense of alternatives proven to prevent recidivism and strengthen our society. These are momentous and complex issues calling for urgent and concrete solutions and it is abundantly clear that we cannot allow the status quo to persist.
But it is equally evident that we have an unprecedented opportunity – even at this time of deep division and stubborn gridlock – to bring about a fundamental shift in our criminal justice system, and to act together to drive historic change. That opportunity is presented not only by the wide range of distinguished individuals who have come to this conference to speak out against injustice and speak up for progress, but also by the rare consensus emerging across the country. Recently, we have seen conservative stakeholders like Koch Industries and Americans for Tax Reform join with progressive voices like the Center for American Progress to form a new coalition dedicated to this cause....
In the last year, federal prosecutors have gone from seeking a mandatory minimum penalty in two out of every three drug trafficking cases, to doing so in one out of two, representing the lowest rate ever recorded by the U.S. Sentencing Commission. Last year we also saw the first overall reduction in the federal prison population in 32 years. Most impressive of all, we achieved this drop in incarceration while also cutting the overall crime rate, marking the first simultaneous national reduction in both crime and incarceration rates in more than four decades.
Of course, we also recognize that challenges to re-entry, and the likelihood of recidivism, can be exacerbated by an array of collateral consequences that make it more difficult for formerly incarcerated individuals to get a job, to further their education, to find housing and to participate fully in this country’s democratic institutions. For example, across this country today, an estimated 5.8 million Americans – more than the individual populations of 31 U.S. states – are prohibited from voting because of current or previous felony convictions. Nearly 150 years after Reconstruction, when felony disenfranchisement laws were first widely implemented throughout the South to intentionally reduce the electoral strength of former slaves, 40 percent of these individuals are African-American – meaning that nearly one in 13 African-American adults is currently ineligible to cast a ballot. In three states – Florida, Kentucky and Virginia – that ratio is one in five.
These statistics describe a nation at odds with the promise of its founding, and in tension with its most vital ideals. They demand that we examine our institutions and reorient our practices to create the more perfect Union that our earliest citizens imagined and the more just society that all Americans deserve....
In 2011, while only 30 percent of Americans were black or Hispanic, the U.S. prison population was 60 percent black and Hispanic, a disparity that is simply too stark. But justice reinvestment policies can help. The Council of State Governments Justice Center recently examined data from three states – Georgia, Connecticut, and North Carolina – that have employed a Justice Reinvestment approach. And I am pleased to announce that today our Bureau of Justice Assistance is releasing a report showing that these common-sense reforms produced a marked reduction in incarceration rates – particularly among men and women of color.
In Georgia, since sweeping criminal justice reforms were enacted three years ago, prison admissions have fallen by 8 percent and admissions among African Americans have fallen by 11 percent. In Connecticut, the total number of people in state prisons has declined by 17 percent since 2008, while the number of incarcerated African Americans and Hispanics has dropped by 21 percent and 23 percent, respectively. In North Carolina, expanded access to substance abuse treatment and new supervision practices, among other crucial reforms, have led to a 21 percent drop in total prison admissions between 2011 and 2014, while African-American and Hispanic admissions dropped by 26 percent and 37 percent, respectively. And in each of these cases, policies that reduced racial disparities had no adverse effect on public safety. In fact, all three states experienced a reduction in their overall crime rates....
We must reject the notion that old practices are unchangeable, that the policies that have governed our institutions for decades cannot be altered and that the way things have always been done is the way they must always be done. When the entire U.S. population has increased by a third since 1980, but the federal prison population has grown by almost 800 percent, it is time – long past time – to look critically at the way we employ incarceration. When the United States is home to just five percent of the world’s population but incarcerates almost a quarter of its prisoners, it is time – long past time – to reexamine our approach to criminal justice. And when estimates show that a staggering 1 in 28 American children has a parent behind bars and that the ratio for African-American children is 1 in 9, it is time – long past time – to take decisive action in order to end a vicious cycle of poverty, criminality and incarceration that traps too many individuals, degrades too many families and devastates too many communities.
That means more state legislatures must end felon disenfranchisement – and so many other barriers to reentry – for individuals who have served their sentences and rejoined their communities, and invest in alternatives to incarceration like drug courts – something I’d like to see in the next five years in every federal district in America. It means Congress must act to restrict and refine those crimes to which mandatory minimums apply and extend the Fair Sentencing Act so that no one is serving a sentence based on a disparity in punishment between crack cocaine and powder cocaine offenses that Congress, the President and the Attorney General have all declared unjust. And it means gatherings like this one must continue to bring together leaders and advocates, academics and public servants, from all backgrounds and circumstances, to renew our commitment to this vital cause.
Tuesday, March 24, 2015
Justices Kennedy and Breyer urge Congress to reform "broken" federal criminal justice system
This new ThinkProgress piece, headlined "Supreme Court Justices Implore Congress To Reform The Criminal Justice System — ‘It’s Not Humane’," effectively reports on the notable comments made about criminal justice reform by two Justices who were testifying before Congress on budget issues yesterday. Here are some of the details:
The prisons are one of the most misunderstood institutions of government. Solitary confinement drives individuals insane. And mandatory minimum sentences are a bad idea. These were the assertions of U.S. Supreme Court Justices Anthony Kennedy and Stephen Breyer in testimony before a House Appropriations subcommittee Monday afternoon.
Asked by Rep. Steve Womack (R-AR) about United States “capacity to deal with people with our current prison and jail overcrowding,” each justice gave an impassioned response in turn, calling on Congress to make things better. “In many respects, I think it’s broken,” Kennedy said of the corrections system. He lamented lawyer ignorance on this phase of the justice system:
I think, Mr. Chairman, that the corrections system is one of the most overlooked, misunderstood institutions we have in our entire government. In law school, I never heard about corrections. Lawyers are fascinated with the guilt/innocence adjudication process. Once the adjudication process is over, we have no interest in corrections. doctors know more about the corrections system and psychiatrists than we do. Nobody looks at it. California, my home state, had 187,000 people in jail at a cost of over $30,000 a prisoner. compare the amount they gave to school children, it was about $3,500 a year. Now, this is 24-hour care and so this is apples and oranges in a way. And this idea of total incarceration just isn’t working. and it’s not humane.
Kennedy, traditionally considered the swing vote among the current set of justices, recalled a recent case before the U.S. Supreme Court in which the defendant had been in solitary confinement for 25 years, and “lost his mind.”
“Solitary confinement literally drives men mad,” he said. He pointed out that European countries group difficult prisoners in cells of three or four where they have human contact, which “seems to work much better.” He added that “we haven’t given nearly the study, nearly enough thought, nearly enough investigative resources to looking at our correction system.”
Kennedy’s comments come just weeks after a federal review of U.S. solitary confinement policy also found that the United States holds more inmates in solitary confinement than any other developed nation. Confinement typically involves isolation in an often windowless cell with a steel door for 23 hours a day, with almost no human contact. The treatment has been found to have a psychological impact in as many as a few days, though, as Justice Kennedy pointed out, many are held for decades. In the wake of the new report, Sen. Dick Durbin (D-IL) called upon the Federal Bureau of Prisons to alter its practices.
In his response, Breyer honed in on Womack’s use of the word “priorities” to suggest that prioritizing long prison sentences was not the best use of resources. “Do you want to have mandatory minimums? I’ve said publicly many times that i think that’s a terrible idea,” Breyer said. “And I’ve given reasons, which I’ll spare you.”
“Is it worth your time on earth, or mine, to try to work out ways of prioritizing? I think it is,” Breyer said. “I think it is a big problem for the country. and so I can’t do anything more in the next minute or 30 seconds other than say I like the word prioritize. I hope you follow it up. And I hope do you examine the variety of ways that there of trying to prioritize and then work out one that’s pretty good.”
As far back as 1998, Breyer has called for the abolition of mandatory minimum sentences, which mandate minimum prison terms by law according to the crime, amount of drugs, or other factors, and give judges no discretion to lower those sentences. He has said they “set back the cause of justice” because they don’t allow for exceptions depending on the circumstances of a given case. Particularly for drug crimes, they have sent low-level drug offenders to prison for sentences that start at 5 or 10 years and quickly ratchet up from there.
This Wall Street Journal article, headlined "Two Supreme Court Justices Say Criminal-Justice System Isn’t Working: Justice Breyer says mandatory minimum sentences are 'a terrible idea'," provides some more notable quotes from the Justices.
Should prison terms end once criminals seem "too old" to recidivate?
The question in the title of this post is prompted by this intriguing recent New York Times piece headlined "Too Old to Commit Crime?". Here are excerpts:
Dzhokar TsarnaevV is facing the death penalty or life in prison for the Boston Marathon bombing. But what if, instead, the maximum prison sentence were just 21 years? That was the sentence that Anders Behring Breivik received in 2012 after killing 77 people, most of them teenagers attending a summer program, in Norway in 2011. It was the harshest sentence available. That doesn’t mean Mr. Breivik will ever walk free. Judges will be able to sentence him to an unlimited number of fiveyear extensions if he is still deemed a risk to the public in 2033, when he is 53.
The idea of a 21-year sentence for mass murder and terrorism may seem radically lenient in the United States, where life without parole is often presented as a humane alternative to the death penalty. Yet in testimony last week to a congressional task force on reforming the federal prison system, Marc Mauer, the director of the Sentencing Project, an advocacy group, suggested exactly that approach. He made the case for a 20-year cap on federal prison terms with an option for parole boards or judges to add more time if necessary to protect the public. Such a policy would “control costs” in a system that is now 40 percent over capacity, Mr. Mauer told the task force, and would “bring the United States more in line with other industrialized nations.”
This proposal has little chance of becoming law. But a compelling case can be made for it nonetheless. Research by American social scientists shows that all but the most exceptional criminals, even violent ones, mature out of lawbreaking before middle age, meaning that long sentences do little to prevent crime....
Some crimes are simply too physically taxing for an older person to commit. Regardless of why offenders age out of trouble, American sentencing practices are out of whack with the research on criminal careers. Between 1981 and 2010, the average time served for homicide and nonnegligent manslaughter increased threefold, to almost 17 years from five years. Over 10 percent of federal and state inmates, nearly 160,000 people, are serving a life sentence, 10,000 of them convicted of nonviolent offenses. Since 1990, the prison population over the age of 55 has increased by 550 percent, to 144,500 inmates. In part because of this aging population, the state and federal prison systems now spend some $4 billion annually on health care.... [A] sentence that outlasts an offender’s desire or ability to break the law is a drain on taxpayers, with little upside in protecting public safety or improving an inmate’s chances for success after release. Mr. Mauer’s proposal for a 20-year sentence cap, applied retroactively, would free 15 percent of federal prisoners — some 30,000, except for those few whom judges or parole boards might deem unfit to re-enter society.
This is much more aggressive than the Smarter Sentencing Act, a bipartisan proposal in Congress which would lower mandatory minimum sentences only for nonviolent drug crimes. Both the House and Senate versions of the bill keep mandatory minimum sentences of 20 or 25 years for third-time drug offenders, and most of the bill’s provisions would not benefit current inmates. Of course, for many Americans the prison system is not only about preventing crime by getting criminals off the street, but also about punishment. Long sentences send a clear message that certain acts are unacceptable. Some conservatives who support sentencing reform say that Mr. Mauer’s proposal goes too far, offering a one-size-fits-all leniency to even violent offenders.
Mr. Mauer responds that given the immense scale and cost of incarceration, “modest reforms” would be insufficient. “How much punishment is enough?” he asked. “What are we trying to accomplish, and where does redemption come into the picture?”
March 24, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Friday, March 20, 2015
Should SCOTUS Justices (and lots of other federal and state judges) regularly visit prisons?
The question of the title of this post is prompted by this interesting local article from Michigan, headlined "Justice goes to prison to weigh Mich. sentencing system." Here are excerpts from this lengthy story:
On an early March tour of Michigan's prison intake center, new Supreme Court Justice Richard Bernstein learned that corrections officials want more guidance from judges about their expectations for the lawbreakers sent here.
New prisoners and rearrested parole absconders are processed at the three-building complex before being assigned to correctional facilities around the state. Inmates arrive with sentencing orders and other paperwork but nothing to indicate why a judge prescribed a certain prison term or what the goal of it is, Michigan Corrections Director Dan Heyns said.
"It would be helpful for judges to tell us the intent of their sentences," Heyns told Bernstein, the nation's first blind state Supreme Court justice. "If it's strictly to provide public safety, we know how to do that. But if the intent is to get at the root cause of their criminality, tell us that."
Bernstein's unusual visit — prison officials couldn't recall a previous visit from a sitting Supreme Court justice — came as lawmakers attempt to revive failed 2014 legislation calling for reforms of 1998 sentencing guidelines and parole policies. The changes were recommended last May by the Council of State Governments Justice Center, which noted 1 in 5 state dollars is spent on corrections....
Bernstein's visit lasted four hours. He was keen to get a feel for what prison is like and learn how he and the state's highest court might improve coordination between judges who dispense justice and incarceration officials who administer it. Corrections chief Heyns provided examples of the way judges' decisions and state sentencing policies impact costs. For the crime of burglary, for example, the recidivism rate — chance of a repeat offense — is no lower after a five-year sentence than a three-year sentence, Heyns said. "There's no return on our investment for the other two years," he added.
The 41-year-old justice was elected last year to an eight-year term after working at his family's well-known Farmington Hills law firm, which specializes in personal injury litigation, not criminal law. He handled a number of disability rights cases the firm litigated. "They said I have no experience with the criminal justice system," he said referring to critics of his November campaign for the Supreme Court. "That's a legitimate criticism."
Bernstein said the legal briefs for criminal cases that come before the Supreme Court are "academic" in nature and don't convey the harsh realities of prison life and rehabilitation. At the Charles Egeler Reception and Guidance Center, Bernstein encountered stark facilities where 9,000 men are processed annually. They live for two weeks to a month in barred cells stacked in tiers with yellow-railed gangways....
"I wanted to know what it feels like to come here, I want to know the consequences of our decisions," Bernstein said in the midst of it. "You learn about how every facet of your life is controlled. A free person does not think about that."...
At the end, the justice pressed for feedback about how to make the system work better. Half of the job of Supreme Court justices, he said, is to administer Michigan's court system through rules governing their proceedings. Heyns suggested perhaps something as simple as a statement outlining the expectations in each judge's sentencing order would be a great help to prison officials. Bernstein said he wants to work at it but said any change "won't happen overnight."
Nearly two-thirds of the inmates now feeding into the system through Egeler are first-timers and half of them will be released within two years, according to Heyns. "We don't have a whole lot of time to do a lot of correction," Heyns told Bernstein. "It calls into question, what are we really accomplishing with these people? It's a huge cost."
I think it is fantastic that this new Michigan Supreme Court Justice took the time to check out one part of his state's prison system. I think all judges with a significant part of their dockets comprised of criminal justice cases ought to consider doing the same. (I would guess that only a very small percentage of federal or state appellate judges have spent any real time inside a prison facility.)
Thursday, March 19, 2015
Making the effective case for graduated reentry to reduce incarceration and recidivism
This notable new commentary at Vox, headlined "We don’t need to keep criminals in prison to punish them" and authored by Mark A.R. Kleiman, Angela Hawken and Ross Halperin, is a must-read for would-be criminal justice reformers. Th piece is lengthy (with lots of helpful links), and here are excerpts to whet the appetite:
While it lasts, prison is horrible for the prisoner and expensive for the state. And things often don't get better when it ends: of the people released from prison today, about 60 percent will be back inside within three years.
The transition from prison to the "free world" can be very tough, both for the offender and for the neighborhood he returns to. In the month after getting out, a person released from prison has about a dozen times the mortality rate of people of the same age, race, and sex in the same neighborhood, with the leading causes of death among former inmates being drug overdose, cardiovascular disease, homicide, and suicide.
This shouldn't be a surprise. Consider someone whose conduct earned him (much more rarely "her") a prison cell. Typically, that person went into prison with poor impulse control, weak if any attachment to the legal labor market, few marketable skills, and subpar work habits. More often than not, he's returning to a high-crime neighborhood. Many of his friends on the outside are also criminally active. Maybe, if he's lucky and has been diligent, he's learned something useful in prison. Perhaps he's even picked up a GED. But he hasn't learned much about how to manage himself in freedom because he hasn't had any freedom in the recent past. And he hasn't learned to provide for himself because he's been fed, clothed, and housed at public expense.
Now let him out with $40 in his pocket, sketchy if any identification documents, and no enrollment for basic income support, housing, or health insurance. Even if he has family or friends who can tide him over during the immediate transition, his chances of finding legitimate work in a hurry aren't very good. If he's not working, he has lots of free time to get into trouble and no legal way of supporting himself....
For the transition from prison to life outside to be successful, it needs to be gradual. If someone needed to be locked up yesterday, he shouldn't be completely at liberty today. And he shouldn't be asked to go from utter dependency to total self-sufficiency in one flying leap. He needs both more control and more support. Neither alone is likely to do the job.
Of course, both control and support cost money. But so does prison. The trick is to start the re-entry process before what would otherwise have been the release date, so the money you spend in the community is balanced by the money you're not spending on a cell. The average cost of holding a prisoner comes to about $2,600 per month. At the same time, even very intrusive supervision leaves a released offender freer than he would have been on the inside. So even a program that looks expensive and intrusive compared with ordinary re-entry or parole is cheap and liberating compared with a cellblock....
There's no way to guess in advance how many prisoners would succeed in making the transition: for all the statistical work on risk assessment, looking into the soul remains hard, and looking into the future impossible. It's not even obvious whether the success rate would be higher with men or with women, with younger or older offenders, with those convicted of nonviolent crimes or of violent ones. But there's good reason to think the success rate would be higher for graduated release than for the current approach, and that the costs of the program could be more than recouped from the savings in reduced incarceration, now and in the future. But budget savings aren't the main goal: the greatest benefits would flow to the offenders, to their families, to their neighborhoods, and to those who otherwise would have been the victims of their future crimes.
Can we really get back to a civilized level of incarceration while continuing to push crime rates down? We can't know until we try. Graduated re-entry might work. That's more than can be said for any other proposal now on the table. If we find a version of it that works somewhere, expand it there and try it elsewhere. If not, go back to the drawing board. But sticking with the existing system, and accepting its disastrous results, is not a reasonable choice.
March 19, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (7) | TrackBack
Saturday, March 14, 2015
Oklahoma House passes safety valve to give judges more sentencing discretion
In the course of this lengthy discussion in the comments at Crime & Consequences, Bill Otis labelled the the federal bill known as the Justice Safety Valve Act as "radically pro-criminal" because it would give federal judges some limited authority to sentence defendants below statutory mandatory minimums. Though I disputed this label, I suspect Bill might be inclined to call most members of the Oklahoma House "radically pro-criminal" based on this recent news, headlined "Oklahoma House passes bills to give judges more discretion in sentencing." Here are the details:
The Oklahoma House on Wednesday approved a key piece of justice reform legislation intended to help reduce the state’s growing population of prison inmates.
Rep. Pam Peterson’s House Bill 1518 would give judges the authority to hand down shorter sentences for some crimes that now require mandatory minimum prison time. The judge would be allowed to do this if the longer sentence would be unjust or if the offender does not present a risk to public safety. There are more than 100 crimes in Oklahoma that carry requirements for incarceration for specified minimum durations.
Called the Justice Safety Valve Act, the Tulsa Republican’s measure was passed 76-16 and was sent to the Senate. It is modeled after similar legislation that has been approved in 17 other states. The bill would not allow judges to consider lesser sentences for violent or sexual offenses....
Rep. Scott Biggs, R-Chickasha, argued against the measure, saying it would minimize the role of district attorneys in the sentencing process and isn’t tough enough on repeat offenders.
“I’ve said I’m for reform, just not when it comes to violent offenders. Here we have repeat offenders,” he said. “This is a bad bill.”
Peterson said it’s time to reform the state’s justice system, noting Oklahoma’s prisons are overflowing due to the highest incarceration rate in the nation for women and one of the highest for men. The state’s prison population has doubled since 1990, but the crime rate has not declined as fast as that of other states, she said. “The definition of insanity is to do the same thing over and over again and expect a different result,” she said.
Gov. Mary Fallin has urged the Legislature to embrace justice reform efforts this session, including finding ways to offer more prison diversion programs that would provide treatment rather than incarceration for nonviolent offenders with drug and mental health problems.
Thursday, March 12, 2015
"Prisons Are Making America's Drug Problem Worse"
The title of this post is the headline of this notable new Politico piece. Here are excerpts that reinforce my fear that one of the biggest problems with the modern drug war is that we are fighting it so very poorly:
After two decades of rapidly rising incarceration rates — rates that continued to rise even as crime sat at record historic lows — America today has nearly 2.2 million adult inmates in local, state and federal jails and prisons, including about 300,000 who have a history of heroin addiction. The BOP spends $110 million annually on drug treatment programs for approximately 80,000 inmates identified as dependent on narcotics. But for the 10,000 or so federal inmates dependent on heroin or other opioids, millions of those dollars are currently spent on outdated, ineffective approaches that wrongly prohibit medication-assisted therapies — approaches that, in other words, fail to help prisoners addicted to opioids during their sentence and ultimately return them afterwards to society as addicted as they were when they went into jail.
It doesn’t have to be that way. A recent study of opioid-dependent inmates leaving Rikers Island jail in New York City showed that nearly nine out of ten inmates who were not medicated relapsed within a month, as opposed to just 2 out of 5 inmates who were on medication-assisted treatment. The difference to society between those two numbers — in terms of health outcomes, reduced crime, and improved employment stability — is huge.
Science notwithstanding, the U.S. criminal justice system has resisted medication-assisted therapy, with only a few large urban jails (e.g. New York City, San Francisco, Albuquerque) and a handful of state prisons such as those in Rhode Island and Vermont opting to use it. Yet most major correctional experts, including the U.S. Bureau of Justice Assistance (BJA), the National Re-Entry Resource Center and the National Commission on Correctional Health Care, all recommend increasing the availability of medication-assisted therapy for opioid dependence in the country’s jails and prisons. The U.S. Bureau of Justice Assistance (BJA) recently concluded that the effects of MAT are “many times greater” than behavioral therapies without medications.
Beyond the correctional world, the World Health Organization, UNAIDS, the United Nations Office on Drug Policy, and the National Institute on Drug Abuse (NIDA) all agree that people dependent on heroin and other opioids should have access to medication-assisted therapy. In a recent publication, NIDA stated, “Taking these medications as prescribed allows patients to hold jobs, avoid street crime and violence, and reduce exposure to HIV.” The White House Office of Drug Control Policy calls MAT combined with behavioral therapy the “standard of care” for opioid dependence and recently announced that drug courts, which offer treatment as an alternative to prison for some criminal offenders, will be required to offer MAT in order to continue to receive federal dollars.
Nevertheless, despite the evidence to the contrary, the Federal Bureau of Prisons prohibits such treatments entirely for “routine” (non-detox) purposes. Corrections officials frequently cite security concerns to justify denying buprenorphine and methadone therapy to inmates, fearing the medicine will be diverted to other prisoners — despite the fact that these issues can be resolved with tighter security measures and closer staff supervision (the prison systems of Western Europe, Scotland, Canada and even Iran can attest to that).
Wednesday, March 11, 2015
"Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence"
The title of this post is the title of this notable new report/guidelines from The Campaign for Fair Sentencing of Youth . As this webpage notes, these new guidelines draw from the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in the capital context and the NJDC National Juvenile Defense standards in the juvenile court context. Here is the introduction to the report/guidelines:
The objective of these guidelines is to set forth a national standard of practice to ensure zealous, constitutionally effective representation for all juveniles facing a possible life sentence (“juvenile life”) consistent with the United States Supreme Court’s holding in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) that trial proceedings “take into account how children are different, and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”
The representation of children in adult court facing a possible life sentence is a highly specialized area of legal practice, therefore these guidelines address the unique considerations specific to the provision of a zealous trial defense. These guidelines set forth the roles and responsibilities of the defense team for the duration of a trial proceeding and outline child-specific considerations relevant to pre-trial, trial, and sentencing representation. Direct appeal and collateral review are not explicitly addressed in these guidelines.
These guidelines are premised on the following foundational principles:
children are constitutionally and developmentally different from adults;
children, by reason of their physical and mental immaturity, need special safeguards and care;
children must not be defined by a single act;
juvenile life defense is a highly specialized legal practice, encompassing the representation of children in adult court as well as the investigation and presentation of mitigation;
juvenile life defense requires a qualified team trained in adolescent development;
juvenile life defense requires communicating with clients in a trauma-informed, culturally competent, developmentally and age-appropriate manner;
juvenile life defense is based on the client’s expressed interests, informed by meaningful and competent child client participation;
juvenile life defense counsel must ensure that child clients and their families are treated with dignity and respect;
juvenile life defense counsel must ensure that victims’ families are treated with dignity and respect;
juvenile life defense counsel must litigate for a presumption against life sentences for children; and
juvenile life defense counsel must litigate to ensure a meaningful individualized sentencing determination, in which defense counsel is able to fully and effectively present mitigation to the court.
Colson Task Force highlights " biggest driver of growth in the prison population is in federally sentenced drug offenders"
As reported in this Crime Report piece, the Charles Colson Federal Corrections Task Force has just released this notable new research brief titled "Drivers of Growth in the Federal Prison Population." Here are excerpts from the document (with emphasis in original):
The federal prison population has grown by 750 percent since 1980, resulting in rapidly increasing expenditures for incarceration and dangerous overcrowding. In response, Congress created the Charles Colson Task Force on Federal Corrections to examine trends in correctional growth and develop practical, data-driven policy responses. Following the example of many states that have recently engaged in criminal justice reform, the first step for the Task Force is to understand the underlying drivers of growth in the prison population.
The biggest driver of growth in the prison population is in federally sentenced drug offenders, almost all of whom were convicted of drug trafficking. In fiscal year (FY) 2013, there were almost 50,000 more drug offenders in federal prisons than there were in FY 1994. Incarceration for drug offenses disproportionately affects nonwhite offenders: in FY 2013, over 75 percent of all drug offenders in federal prison were black or Hispanic....
The population growth is driven by both the number of people who are admitted to prison for drug crimes every year and the length of their sentences. In FY 2013, more people were admitted to federal prison for drug crimes than any other crime type, and the average sentence for those entering prison was almost six years. Every year, about 95 percent of federally sentenced drug offenders receive a term of incarceration as part of their sentence, up from about 76 percent in the year before the passage of the Anti-Drug Abuse Act in 1986, which established mandatory minimum penalties for certain drug offenses.
In particular, length of stay for drug offenders, often dictated by statutory mandatory minimum penalties, has driven most of the recent growth. Though the number of admissions has remained largely constant over time, the number of drug offenders in federal prison has increased because of people serving longer sentences.