Sentencing Law and Policy

"The Conservative Case Against More Prisons"

The title of this post is the headline of this lengthy new piece authored by Vikrant Reddy and Marc Levin, senior policy advisers to the Right on Crime campaign, and now appearing in The American Conservative. Here is how it starts:

Since the 1980s, the United States has built prisons at a furious pace, and America now has the highest incarceration rate in the developed world. 716 out of every 100,000 Americans are behind bars. By comparison, in England and Wales, only 149 out of every 100,000 people are incarcerated. In Australia — famously founded as a prison colony — the number is 130. In Canada, the number is 114.

Prisons, of course, are necessary.  In The Scarlet Letter, Nathaniel Hawthorne observed that “The founders of a new colony, whatever Utopia of human virtue and happiness they might originally project, have invariably recognized it among their earliest practical necessities to allot a portion of the virgin soil… as the site of a prison.”  As long as there are people, there will be conflict and crime, and there will be prisons.  Prisons, however, are not a source of pride.  An unusually high number of prison cells signals a society with too much crime, too much punishment, or both.

There are other ways to hold offenders — particularly nonviolent ones — accountable. These alternatives when properly implemented can lead to greater public safety and increase the likelihood that victims of crime will receive restitution.  The alternatives are also less costly.  Prisons are expensive (in some states, the cost of incarcerating an inmate for one year approaches $60,000), and just as policymakers should scrutinize government expenditures on social programs and demand accountability, they should do the same when it comes to prison spending.  None of this means making excuses for criminal behavior; it simply means “thinking outside the cell” when it comes to punishment and accountability.

This argument is increasingly made by prominent conservatives.  Bill Bennett, Jeb Bush, Newt Gingrich, Ed Meese, and Grover Norquist have all signed the Statement of Principles of Right On Crime, a campaign that advocates a position on criminal justice that is more rooted in limited-government principles.  They are joined as signatories by the conservative criminologist John Dilulio and by George Kelling, who helped usher in New York City’s successful data-driven policing efforts under Mayor Rudolph Giuliani.  Some groups, like Prison Fellowship Ministries, approach the issue from a socially conservative perspective.  Others, like the American Legislative Exchange Council and the State Policy Network, have fiscal concerns top of mind.  Regardless, a sea change is underway in sentencing and corrections policy, and conservatives are leading it.

Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)

I have been talking to a variety of federal criminal justice folks since sequestration became official on March 1, 2013, and there has been much buzz about possible furloughs.  And in his Senate testimony Wednesday, AG Eric Holder closed with this ominous comments about the impact of sequestration:

[C]uts are already having a significant negative impact not just on Department employees, but on programs that could directly impact the safety of Americans across the country. Important law enforcement and litigation programs are being disrupted.  Our capacity — to respond to crimes, investigate wrongdoing, and hold criminals accountable — has been reduced. And, despite our best efforts to limit the impact of sequestration, unless Congress quickly passes a balanced deficit reduction plan, the effects of these cuts — on our entire justice system, and on the American people — may be profound.

But, as my post title suggests, I think we could and should improve the administration of justice and save money if DOJ and BOP and others would use existing statutory mechanisms to reduce federal prison populations and costs.  FPD Steve Sady recently reminded me that, a year ago, the federal defenders, drawing from data gathered by the Government Accountability Office, provided a simple roadmap of action that could and should be taken now to reduce excessive sentencing practices which is could save hundreds of millions of dollars just by better implementing certain "smart sentencing" statutes.

The title of the federal defender report, which is available here, sets the tone: "GAO Report Reveals Multiple Ways To End The Waste Of Millions On Unnecessary Over-Incarceration." The full report is a dense account of BOP policies that lead to longer periods of incarceration than necessary to accomplish sentencing goals; the key recommendations suggest we could achieve large savings simply by providing some relief to the least dangerous and most deserving of federal prisoners. This executive summary from the report makes these essentials clear:

First, the GAO identified three statutory programs that, if fully implemented, would save taxpayer dollars that are now being wasted on unnecessary incarceration:

• The BOP underutilizes the residential drug abuse program (RDAP) incentive for nonviolent offenders. If inmates had received the full 12-month reduction from 2009 to 2011, the BOP would have saved up to $144 million. Much more would be saved if all statutorily eligible prisoners were allowed to participate.

• The BOP underutilizes available community corrections so that inmates serve an average of only 4 months of the available 12 months authorized by the Second Chance Act. Just by increasing home confinement by three months, the BOP could save up to $111.4 million each year.

• The BOP underutilizes available sentence modification authority for “extraordinary and compelling reasons,” depriving sentencing judges of the opportunity to reduce over-incarceration of deserving prisoners whose continued imprisonment involves some of the highest prison costs.

Second, the GAO confirmed that amending the good time credit statute to require that inmates serve no more than 85% of the sentence would better calibrate actual time served with the assumptions underlying the sentencing guidelines consulted at sentencing. Both the Department of Justice and the BOP favor the amendment. After the release of about 3,900 inmates in the first fiscal year, the BOP would continue to save about $40 million a year once the amendment was enacted.

Third, the GAO identifies cost savings that the BOP could realize simply by using available rules for executing and calculating sentences. For example, the BOP unilaterally abolished the shock incarceration program, spending unnecessary millions by replacing sentence reductions and increased home detention with prison time for nonviolent offenders with minimal criminal history. The BOP also fails to treat defendants’ time in immigration custody as “official detention,” an unnecessary policy that increases custody costs by creating dead time. The BOP should act immediately to end these and other unnecessary and wasteful policies.

Is Miller an Eighth Amendment "bombshell or baby step"?

I have the honor and pleasure of participating today in a fantastic Missouri Law Review symposium which is to explore the question in the title of this post.  This webpage details today's schedule of panels and speakers, and this page reports on these essentials of today's event:

This year's Missouri Law Review Symposium will focus on constitutional, practical and policy matters, regarding juveniles and sentencing more generally, that now challenge courts, legislatures and attorneys in the opinion's wake. 

On the constitutional front, in what ways are adult offenders who are subject to mandatory sentencing schemes asking lower courts to extend Miller, and how are those courts replying?  The Miller opinion extends the Court's "death is different" doctrine to mandatory life-without-parole sentences for juveniles: should that doctrine, requiring individualized sentencing, apply in other contexts?  How are state legislatures and Congress responding — and how should they respond — in designing sentencing procedures for juvenile homicide offenders?  What special challenges will attorneys face when representing a juvenile in a life-without-parole sentencing trial?  Morally, to what extent, if any, do recent discoveries in developmental psychology and neuroscience shed normative light for courts and legislatures on juvenile offenders.

Judge Nancy Gertner, Professor of Practice at Harvard Law School, will deliver the keynote address.  She will be joined by eminent attorneys, inside and outside the academy, to explore these and other important questions regarding criminal sentencing in general and juvenile sentencing in particular.

Noting the intersection of mental illness and gender in incarceration nation

This recent article in the Denver Post, headlined "Two of three women in Colorado prisons diagnosed with psychological disorders," provides a notable window into the impact and import of issues of mental illness and gender with regard to who commits crimes and gets sent to prison for their crimes.  Here is how the piece starts:

The number of Colorado female prisoners diagnosed with psychological disorders has risen sharply to more than twice the level of male prisoners.

The women are almost without exception victims of severe sexual and physical abuse, experts say. They cycle through jail and prison, often because they don't get adequate treatment or community support.

"The trauma histories are extreme," said Theresa Stone, chief of mental health at Denver Women's Correctional Facility. "It's hard to hear what these women have been through."

While most women are incarcerated for nonviolent crimes, a certain percentage of them are committing increasingly violent acts, Stone said.

"Women are in many cases extremely violent," she said. "I think we're seeing the impact of abuse and mental illness."

The state prison system has in recent years taken great strides in diagnosing and addressing the needs of mentally ill women, Stone said. There is drug counseling, psychological treatment and group therapy. Some women live in highly structured therapeutic communities in special pods. The first step was identifying the true scope of the problem, Stone said.

In 2001, a Colorado Department of Corrections review determined that 39 percent of women incarcerated in Colorado were diagnosed with some type of mental illness. A Dec. 31 report says that 67 percent of those women are mentally ill.

That is slightly lower than the national rate of women incarcerated in prison. According to a December 2006 Department of Justice study, 73 percent of women in state prisons nationally have some type of mental disorder. Within the general population, 12 percent of women have a diagnosed mental disorder, the same report says.

The percentage of men in Colorado prisons with a diagnosed mental illness also increased dramatically in the same time frame — from 18 percent to 30 percent — but the ratio is less than half the level of female inmates.

The percentage of female prisoners suffering mental conditions, including schizophrenia, bipolar disorder and major depression, has always been high but many women hadn't been diagnosed, experts say. Many of the women also had declined to seek treatment until they were behind bars.

The many (impossible?) challenges of federal child pornography sentencing

The title of this post is inspired in part by the US Sentencing Commission's recent report, which highlights many of the flaws with the current child porn sentencing guidelines and set forth a number of ideas and needs for effective reform (basics here and here).  But what is really driving it is this new local article reporting on a federal sentencing in Maine, headlined "‘There will be no more victims,’ judge tells man at child pornography sentencing."  First, here are the basics of the sentencing story:

“There will be no more victims of Walter Mosher,” a federal judge told the 65-year-old convicted sex offender Monday in sentencing him to more than a dozen years in prison for possessing child pornography.

U.S. District Judge John Woodcock sentenced Walter A. Mosher Jr. of Hampden to 12 years and seven months behind bars. The judge also ordered him to remain on supervised release for life when he is released.

Mosher is scheduled to be sentenced Wednesday at the Penobscot Judicial Center on one count of gross sexual assault. Mosher reported to police through his attorney that he molested a boy under the age of 14 between Feb. 1, 2011 and March 1, 2012, according to the sentencing memorandum filed in federal court by his attorney, Jeffrey Silverstein of Bangor. Mosher pleaded guilty to the Class A crime Nov. 21 at the Penobscot Judicial Center.

Under the federal sentencing guidelines, Woodcock was allowed to consider Mosher’s recent guilty plea as “relevant conduct” in connection with the possession of child pornography charge, even though the victim was not depicted in the images found on Mosher’s computer. The federal judge focused on the sexual abuse of the child as he directed his comments at Mosher.

“There are some cases in this court that cry out for justice and yours is one of them,” Woodcock told Mosher shortly before sentencing him. “This was an inexplicable and hideous violation of trust. What we’ve seen today is just the tip of the iceberg of pain you have caused.” A parent of the victim told the judge that Mosher needed “to go away, and go away for a very long time.”

Mosher was required to register as a sex offender because he was convicted in 1986 in Aroostook County Superior Court in Houlton in connection with the molestation or abuse of 15 minors, according to the sentencing memorandum. Since serving 11 years on the 1986 charges, Mosher was not charged with another crime until he was indicted by a federal grand jury on March 15, 2012, according to court documents.

In an emotional statement, Mosher described in graphic detail how he was sexually abused as a child by a female relative. He said that when he committed his earlier crimes, he was going through a divorce and drinking heavily. “I am deeply ashamed and sorry for what I have done,” he told Woodcock. “I don’t know why I have done these things. I have no idea how I got to a place to do these horrible things.”

Mosher has been held without bail since his arrest the day after he was indicted. Mosher pleaded guilty to possession of child pornography in June in federal court. According to court documents, Mosher’s computer contained images of child pornography, specifically digital images and videos that were produced using minors engaged in sexually explicit conduct....

Because of his 1986 convictions, Mosher faced a minimum of 10 years in federal prison and a maximum of 20 years and a fine of up to $250,000. On the gross sexual assault charge, Mosher faces up to 30 years in state prison and a fine of up to $50,000.

Even without knowing any more that these most basic details about the defendant in this case or the particulars of his crime, it is easy to see all the tough questions facing Chief Judge Woodcock: e.g., should the defendant's federal child porn sentence here be longer (or shorter) given that he is surely soon to get a lengthy state sentence for gross sexual assault? should the defendant's recidivism at such an advanced age mean that a federal sentence now should try to ensure Mosher dies in prison, or should the sentence at least offer the defendant a glimmer of hope that he might be able to be free again in his 80s? With the facts of the criminal and the defendants criminal history so troublesome, should the defendant get much (if any) credit for pleading guilty and accepting responsibility?

I could go on and on highlighting all these challenges in this one case, but what really caught my attention when reviewing this article was these notably disparate headlines below the piece noting "similar articles":

• "New Gloucester man sentenced to 25 years on child porn charges"
• "Old Orchard Beach man gets 1 year and 1 day for possessing child porn"

In turn, a quick search for headlines from the same local Maine paper (the Bangor Daily News) revealed these additional sentencing headlines concerning the disposition of child porn charges over just the last 24 months:

• "Berwick man gets 7 years for possessing child pornography"
• "Bangor lawyer suspended from practicing gets six months for child pornography"
• "Former Newport man sentenced to 20 years in federal prison for having child pornography"
• "Fort Fairfield man sentenced to five years in federal prison for possessing child porn"
• "Sanford man gets nearly 30-year sentence on child porn charges"
• "Ex-kindergarten teacher gets 16 years on child porn charge"
• "Ex-state prosecutor sentenced to 16 years for child porn offenses"

A quick click through to a number of these article reveals that there are a number of striking parallels as well as a number of striking differences in the offenses and offenders in these cases.  Nevertheless, I still find notable and telling that even in a small and seemingly homogeous federal district like Maine, here is an accounting of the number of months in prison given to 10 child pornography offenders (going from lowest to highest sentence):

6 months; 12 months; 60 months; 84 months; 151 months; 192 months; 192 months; 240 months; 300 months; 340 months

The point of my post here is not to assert or even suggest that any of these referenced sentences is right or wrong or should be higher or lower.  Without spending a lot more time looking through the facts of all these cases, I think it is extremely hard to reach even a tentative conclusion about this pattern of sentencing result.  But that is my main broader point: there is, of course, a pressing interest and enduring goal for everyone involved to try to determine the "right" sentence in federal child pornography cases not only in each individual case, but also across a range of cases.  But, these cases all necessarily raise so many important and challenging issues, I wonder and worry if the goal to get federal child pornography sentencing "just right" is a kind of "fool's gold" that many will pursue at a great cost but ultimately with little of value to show from the pusuit.

Recent related posts:

• US Sentencing Commission releases big new report on federal child porn sentencing
• Doesn't the new USSC report necessarily rebut any appellate "presumption of reasonableness" for within-guideline child porn sentences?

A notable first echo from Ohio's notable new early release law

This local AP article, headlined "Five should be freed, state prisons chief says," reaffirms my belief that Ohio is now a dynamic and important "state to watch" concerning modern sentencing law and practices. Here are the interesting details from this latest story in the important Buckeye chapter of modern sentencing reform:

Ohio’s prison chief has recommended the release of five inmates who have served 80 percent of their time. The recommendations, if approved, would mark the first use of a 2011 law meant to help reduce the state’s inmate population and save the state money.

Director Gary Mohr of the Department of Rehabilitation and Correction cited several reasons, including good behavior, for his recommendations in letters to judges, who have the final say. He also considered information from prison employees who are go-betweens with the prisons, the courts and the inmates.

The five inmates — two women and three men — are serving time mostly for low-level felonies, although one was convicted of aggravated vehicular homicide.

Prisons spokeswoman JoEllen Smith said the 80 percent release option encourages inmates to act responsibly in prison “and is significant in our effort to better communicate with courts and assist the eligible, suitable offenders in having a successful transition back into our communities.”

The 2011 law aims to save the state millions of dollars by shrinking the number of inmates and reducing the number of offenders who might return to prison as repeat offenders. By several measures, the law and other efforts are working.

Ohio’s prison population remains under 50,000 inmates, a level not seen since 2007. Also, the state reported on Feb. 22 that the number of inmates returning to Ohio prisons upon release has hit a new low, a trend officials attribute to a focus on keeping inmates in the community and the involvement of groups that work with inmates before their release.

Other factors Mohr considered in making his recommendations included little or no rule-breaking during incarceration; a history of participating in prison programs; and development of a plan for dealing with the release.

Inmate Mary Clinkscales of Summit County, sentenced to a seven-year prison term in 2007 for possession of drugs, is a prime candidate for release because of her activities in prison, according to a Feb. 15 letter from a go-between, called a justice reinvestment officer.

Clinkscales had just one rule infraction while imprisoned — wearing shorts that were not part of her state-issued clothing — said Suzanne Brooks, the agency’s Cleveland-area justice reinvestment officer.

Clinkscales has attended literacy, anger-management and family-values skills classes, worked on community service projects making hats and scarves and is not a gang member, Brooks said. All these factors, plus no previous prison sentence, make her a suitable candidate for release, Brooks said.

I am tempted at this point to jokingly suggest that it would make sense to expect that someone named "Clickscales" would at some point get sent to prison for a drug offense. But this new story about prison officials actually actively advocating for the early release of a few prisoners is too serious and important to make the basis of jokes about surnames. And speaking of serious and important, the five prisoners likely to get released first via this Ohio early release program ought to seriously understand how very important it will be for other prisoners and so many others throughout Ohio for them to fulfil the faith that Ohio's prison chief has in them.

There are lots of potential reactions and commentary justified by this story and the operationalization of the 2011 Ohio law meant to help reduce the state's inmate population and save the state money. For now, I want to focus on an important political reality in this Ohio "smart on crime" development: both houses of the Ohio General Assembly and the executive branch of Ohio were all in firm Republican control when Ohio enacted the broad-based sentencing reform that is now enabling at least five offenders to likely obtain early release from their prison sentences. For this reason (and others), I think prison reform is right now much better understood, at least at the state level, as a matter of avoiding the (budget) red rather than a matter of political debate among the blue and red sides of the aisle.

Drug courts come to federal system (and New York Times' front page)

Regular readers know about the drug courts movement and its (varied but still very important) success as an alternative means to process certain drug offenders through the modern criminal justice system.  But, thanks to this big new front-page article in today's New York Times, which is headlined "Outside Box, Federal Judges Offer Addicts a Free Path," the notable new story of drug court development in the federal criminal justice system is due to get a lot more attention.  Here are extended passages from the Gray Lady's important coverage of this important federal sentencing story:

Federal judges around the country are teaming up with prosecutors to create special treatment programs for drug-addicted defendants who would otherwise face significant prison time, an effort intended to sidestep drug laws widely seen as inflexible and overly punitive.

The Justice Department has tentatively embraced the new approach, allowing United States attorneys to reduce or even dismiss charges in some drug cases.  The effort follows decades of success for “drug courts” at the state level, which legal experts have long cited as a less expensive and more effective alternative to prison for dealing with many low-level repeat offenders.

But it is striking that the model is spreading at the federal level, where judges have increasingly pushed back against rules that restrict their ability to make their own determination of appropriate sentences.  So far, federal judges have instituted programs in California, Connecticut, Illinois, New Hampshire, New York, South Carolina, Virginia and Washington.  About 400 defendants have been involved nationwide.

In Federal District Court in Brooklyn on Thursday, Judge John Gleeson issued an opinion praising the new approach as a way to address swelling prison costs and disproportionate sentences for drug trafficking.  “Presentence programs like ours and those in other districts mean that a growing number of courts are no longer reflexively sentencing federal defendants who do not belong in prison to the costly prison terms recommended by the sentencing guidelines,” Judge Gleeson wrote.

The opinion came a year after Judge Gleeson, with the federal agency known as Pretrial Services, started a program that made achieving sobriety an incentive for drug-addicted defendants to avoid prison.... 

The new approach is being prompted in part by the Obama administration, which previously supported legislation that scaled back sentences for crimes involving crack cocaine. The Justice Department has supported additional changes to the federal sentencing guidelines to permit the use of drug or mental health treatment as an alternative to incarceration for certain low-level offenders and changed its own policies to make those options more available.

“We recognize that imprisonment alone is not a complete strategy for reducing crime,” James M. Cole, the deputy attorney general, said in a statement.  “Drug courts, re-entry courts and other related programs along with enforcement are all part of the solution.”...

The development of drug courts may meet resistance from some Republicans in Congress. “It is important that courts give deference to Congressional authority over sentencing,” Representative F. James Sensenbrenner Jr., Republican of Wisconsin, a member and former chairman of the Judiciary Committee, said in a statement.  He said sentencing should not depend “on what judge happens to decide the case or what judicial circuit the defendant happens to be in.”

At the state level, pretrial drug courts have benefited from bipartisan support, with liberals supporting the programs as more focused on rehabilitation, and conservatives supporting them as a way to cut spending.  Under the model being used in state and federal courts, defendants must accept responsibility for their crimes and agree to receive drug treatment and other social services and attend regular meetings with judges who monitor their progress.  In return for successful participation, they receive a reduced sentence or no jail time at all.  If they fail, they are sent to prison....

In interviews, the federal judges who run the other programs pointed to a mix of reasons for their involvement. Judge Ricardo S. Martinez ran a state drug court in Seattle before he was appointed to the federal bench.  “People that have a serious addiction, you can put them in custody, but the minute you put them back in the community, they go back to the same thing and lo and behold you see them again,” Judge Martinez said in an interview.

Some of the most pointed criticism of the status quo has come from Judge Gleeson, a former federal prosecutor.  The drug court he helped set up is open to defendants who committed a range of nonviolent crimes, like fraud and selling prescription pills, and whose addictions fueled their actions.

In a 35-page opinion he issued this week, he criticized the Justice Department for charging defendants with drug offenses that carry mandatory minimum sentences, urged the Sentencing Commission to reduce the guideline range for many drug offenses and called for more programs that divert defendants from prison time.  The opinion chronicled the case of three graduates of the drug court....

Loretta E. Lynch, the United States attorney in Brooklyn, said she backed the program because drug courts elsewhere had lowered recidivism rates. “Our overall strategy of law enforcement and crime prevention isn’t just incarceration,” Ms. Lynch said.

At a sentencing hearing for Ms. Leitch last month, a prosecutor vacated her guilty plea and agreed to dismiss the charges if she did not use drugs or get arrested for 18 months. After the hearing, Judge Gleeson offered some encouraging words for the defendant, and then a hug. “I don’t know them as just the judge,” Ms. Leitch said later. “People see judges as the bad guy. They get deeper. They get to know who you are.”

Judge Gleeson's 35-page opinion in US v. Leitch et al, 11-CR-00609 (EDNY Feb. 28, 2013), not only merits NY Times front-oage coverage, but also a read in full. I have uploaded that opinion here.

Download Gleeson SOR in Nunez.Leitch

Some older and newer related posts about drug court programs and research:

• Talk of drug courts, but not major policy changes, in drug war from Obama team
• Important new NACDL report critical of modern drug court movement
• New report on drug courts from The Sentencing Project
• "Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice"
• NJ commission endorsing expanding drug courts
• A religious pitch for drug courts
• Terrific NIJ drug court report
• Reexamining drug courts
• Judge Lay advocating drug courts again
• A Mississippi pitch for drug courts and getting smarter on crime and punishment
• Resources on drug courts
• New JPI report expressing concerns about drug courts and net widening
• New research shows positive outcomes from drug court programs

"Should defendants’ age, health issues be sentencing factors?"

The question in the title of this post is the sub-heading of this notable article appearing in my own local Columbus Dispatch, which carries the main headline "Seniors argue for less time in prison." Here are excerpts:

Is prison more of a punishment if a defendant is 50 rather than 20? Some defense attorneys are debating that issue in federal court as they seek to minimize prison sentences for defendants 50 or older.

“We’re seeing it a lot,” Assistant U.S. Attorney Deborah A. Solove said. The issue is at the heart of an unprecedented second appeal that Solove has filed over the prison sentence imposed by U.S. District Judge James L. Graham on a Knox County man, Richard Bistline.

Graham originally sentenced Bistline, 70, of Mount Vernon, in 2010.  The sentence, for possessing child pornography, was one day in prison plus 10 years of supervised probation. Solove appealed, saying the sentence was too lenient.  The 6th U.S. Circuit Court of Appeals ordered Graham to resentence Bistline, saying the original penalty “does not reflect the seriousness of his offense.”

In January, Graham ordered the same sentence but added three years of home confinement as part of Bistline’s probation. The judge said he didn’t order more prison time because he was concerned about Bistline’s age and health problems, which included two strokes and a heart attack a year ago.  He questioned whether Bistline would get adequate medical care in prison.

Solove, who prosecuted the case, had asked for a five-year prison term, which was a bit less than is called for in the sentencing guidelines determined by the court. Graham maintained that would be “a life sentence, or more accurately, a death sentence,” for Bistline.

Graham said last week that judges can consider age and infirmity in sentencing, and he does that if a defendant is not a danger to the public. “I was completely satisfied in this case that he was not.  Your job as a judge is to figure out which one of these defendants are the really bad guys you need to put away.”

In another case, Laura E. Byrum, an assistant federal public defender, is arguing that her 64-year-old client should get a prison sentence that’s shorter than the guidelines call for, in part because of his age and health problems.   Robert W. Burke of 767 Bracken Court, Worthington, pleaded guilty to one count of receiving child pornography, and the guidelines call for a 20-year prison term.

Byrum has asked for a 10-year prison term followed by 20 years of supervised release. She argues that the life expectancy of a man Burke’s age is 18 years, and his is likely shorter because he has skin cancer and chronic obstructive pulmonary disease.  Twenty years is a “virtual death sentence,” she wrote in her sentencing memorandum.

Assistant U.S. Attorney Heather Hill said the federal prison system can handle most of the typical health problems associated with aging. “Going to prison isn’t easy for anyone, but that is the consequence of breaking the law,” she said. “We’re not sure that being nearer to the grave gives you license to be a criminal.”

According to a 2012 report by Human Rights Watch, state and federal prisons held 124,440 prisoners who were 55 or older in 2010.  That was a 282 percent increase from 1995, at a time when the total number of prisoners rose by 42 percent.

Prior related posts:

• Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
• District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal

Procedural rules now blocking efforts to undo convictions of federal defendants who are legally innocent

As reported in this new USA Today piece, headlined "Federal judge refuses to release innocent prisoners," a number of procedural issues are getting in the way of undoing federal convictions of defendants that the US Justice Department now recognizes are legally innocent.  Here are the details:

Even the federal prosecutors who put Gordon Lee Miller in prison couldn't get him out.  U.S. Justice Department lawyers took the unusual step in December of asking a federal judge to throw out Miller's conviction and free him because, they said, he had not actually broken the law.

But the judge's answer was still more unusual: No. 

The judge's ruling against Miller is among the latest in a handful of court decisions blocking — at least temporarily — efforts by defense lawyers and prosecutors to overturn convictions in hundreds of cases in which the Justice Department agrees that people were sent to prison improperly because of a misunderstanding of federal law. The decisions raise for the first time the prospect that scores of prisoners still waiting for courts to decide their cases might remain locked up.

"It's very frustrating," said Chris Brook, legal director of the ACLU of North Carolina, which has been tracking the cases.  "These are cases where everybody is on the same page. The government and the defense agree.  The only one standing in the way is the judge."  Miller finished his prison sentence while the case was being decided, but still must serve three years on supervised release.

The legal dispute stems from a misunderstanding about which North Carolina state convictions were serious enough to make having a gun a federal crime.  A USA TODAY investigation last year identified 60 people who had been sent to prison on gun charges even though an appeals court later determined that it was not illegal for them to have a gun.  The Justice Department had initially asked courts to keep the prisoners locked up anyway, but dropped that position last year "in the interests of justice," and is now asking courts to let them out.

In response, judges have so far freed 34 people and taken at least 16 others off supervised release, court records show.  A Justice Department review last year identified 175 others in the smallest of the state's three judicial districts who are entitled to be released or have their prison sentences reduced.

But this month, U.S. District Judge Robert Conrad in Charlotte turned down petitions by Miller and another man seeking to have their convictions overturned, even though prosecutors said in court filings that they were "convicted for conduct that we now understand is not criminal." Another judge, Martin Reidinger, has expressed skepticism that he can free five other men, and has asked prosecutors and defense lawyers to prepare additional filings before he makes his decision.

A Justice Department spokeswoman, Allison Price, declined to comment on the specifics of those cases, saying only that "the court is empowered with great discretion and we respect the court's decision."  The department has until next week to tell Reidinger whether it still believes the men can be freed.

Miller was sent to federal prison under a law that bars people from owning guns if they have already been convicted of a crime that could have put them in prison for more than a year.  But Miller's prior North Carolina convictions could have put him in jail for no more than eight months. Conrad — the former chief federal prosecutor in Charlotte — said in a Feb. 15 order that he could not upend Miller's conviction.  Miller, he wrote, was "lawfully sentenced under then-existing law," and an appeals court's 2011 decision that changed that understanding of the law did not apply to cases that were already concluded.

Miller's lawyers, who declined to comment, have appealed Conrad's order.  If an appeals court upholds the decision, it could effectively block other judges from overturning convictions in similar cases that are still pending in federal courts throughout North Carolina.

Related prior posts:

• "Scores in N.C. are legally 'innocent,' yet still imprisoned" due to federal gun laws
• Wrongful federal gun convictions finally getting undone in North Carolina
• More wrongful federal gun convictions and sentences being remedied in North Carolina
• Still more stories of wrongful federal gun convictions and sentences from North Carolina

New Sentencing Project report notes recent changing racial make-up of prison populations

As summarized in this New York Times article, "[i]ncarceration rates for black Americans dropped sharply from 2000 to 2009, especially for women, while the rate of imprisonment for whites and Hispanics rose over the same decade, according to a report released Wednesday" by The Sentencing Project. Here is more:

The declining rates for blacks represented a significant shift in the racial makeup of the United States’ prisons and suggested that the disparities that have long characterized the prison population may be starting to diminish.

“It certainly marks a shift from what we’ve seen for several decades now,” said Marc Mauer, the executive director of the Sentencing Project, whose report was based on data from the federal Bureau of Justice Statistics, part of the Justice Department. “Normally, these things don’t change very dramatically over a one-decade period.”

The decline in incarceration rates was most striking for black women, dropping 30.7 percent over the ten-year period. In 2000, black women were imprisoned at six times the rate of white women; by 2009, they were 2.8 times more likely to be in prison. For black men, the rate of imprisonment decreased by 9.8 percent; in 2000 they were incarcerated at 7.7 times the rate of white men, a rate that fell to 6.4 times that of white men by 2009.

For white men and women, however, incarceration rates increased over the same period, rising 47.1 percent for white women and 8.5 percent for white men. By the end of the decade, Hispanic men were slightly less likely to be in prison, a drop of 2.2 percent, but Hispanic women were imprisoned more frequently, an increase of 23.3 percent.

Over all, blacks currently make up about 38 percent of inmates in state and federal prisons; whites account for about 34 percent. More than 100,000 women are currently incarcerated in state or federal prisons. The overall rate of incarceration varies widely from state to state, as does the ratio of blacks to whites and Hispanics.

But the trend is clear, Mr. Mauer said, adding that no single factor could explain the shifting figures but that changes in drug laws and sentencing for drug offenses probably played a large role. Other possible contributors included decreasing arrest rates for blacks, the rising number of whites and Hispanics serving mandatory sentences for methamphetamine abuse, and socioeconomic shifts that have disproportionately affected white women.

Alfred Blumstein, an expert on the criminal justice system at Carnegie Mellon University, said his own findings from research he conducted with Allen J. Beck of the Bureau of Justice Statistics also indicated that the rate of incarceration for blacks was declining compared with that for whites. “A major contributor has been the intensity of incarceration for drug offending,” Dr. Blumstein said, “and that reached a peak with the very long sentences we gave out for crack offenders, stimulated in large part by the violence that was going on in the crack markets.”

But crack cocaine has become far less of an issue in recent years, he noted, a fact reflected in revisions of federal sentencing laws. And inmates serving time for crack offenses are now emerging from prison, “so there would be a disproportionate black exodus from prison that as a result would be reflected in a lowering of the incarceration-rate ratio,” he said.

Mr. Mauer said that especially for black women, the drop in incarceration compared with whites was “all about drug offenses.” In New York State, for example, where the overall prison population has dropped substantially, for women “virtually the entire decline was a decline in drug offenses,” he said. Increasingly severe drug laws and stiff sentences for drug offenses resulted in disproportionate numbers of black women going to prison, he said, “and now they are disproportionately benefiting from reductions in that area.”

The full 26-page report from The Sentencing Project is titled "The Changing Racial Dynamics of Women’s Incarceration," and it is available at this link.

US Sentencing Commission releases big new report on federal child porn sentencing

As reported in this official press release, this morning "the United States Sentencing Commission submitted to Congress its comprehensive report examining federal sentencing policy in child pornography cases." Here is more from the press release, which serves as a partial summary of the 468-page(!) report (which is available in full here):

Although still only a small percentage of the overall federal caseload, child pornography prosecutions have grown significantly during the past decade and now account for nearly 2,000 federal cases each year.  That growth reflects the increasing role of the Internet in child pornography offenses.  Before the Internet, law enforcement officers had significantly curtailed the child pornography market in the United States.

Significant technological changes in offenders’ conduct have occurred since the federal penal statutes and sentencing guidelines for child pornography offenses were last amended comprehensively a decade ago.  Child pornography offenders today typically use Internet technologies such as peer-to-peer file-sharing programs that enable offenders to distribute, receive, and collect child pornography images more easily and in greater quantities than when the current penalty structure was established.  Several penalty enhancements in the guidelines for child pornography offenses,such as use of a computer, now apply to typical offenders.  As a result, prison sentences for efendants convicted of federal child pornography offenses have almost doubled in the last decade to approximately five years for possession and 11 years for receipt and distribution.

Judge Saris concluded, “Because of changes in the use of Internet-based technologies, the existing penalty structure is in need of revision.  Child pornography offenders engage in a variety of behaviors reflecting different degrees of culpability and sexual dangerousness that are not currently accounted for in the guidelines.”

The Commission’s study found that approximately one in three federal child pornography offenders had a known history of engaging in illegal sexual misconduct prior to or in conjunction with their federal child pornography offenses.  Such illegal behavior ranged from sexual assaults against children to “non-contact” sex offenses such as soliciting self-produced sexual images from minors in on- line communication. The Commission’s recidivism study also concluded that approximately 7 percent engaged in illegal sexual misconduct after serving their sentences for federal child pornography offenses.  Both figures should be considered conservative because such offenses are underreported....

Judge Saris stated, “The Commission will continue to study child pornography sentencing practices, and looks forward to working with Congress on developing a sentencing scheme that serves to better distinguish offenders, thereby reducing unwarranted sentencing disparities in these serious crimes.”

All the pieces of this important new report are available via this link. The press release summary alone suggests there is considerable food for sentencing thought in this important new USSC report, and I am going to start my view by reading closely the 26-page executive summary available here.

I expect a lot more posts on this topic will following the days ahead. And in addition to digging into the substance of this report, I also will be keeping on eye on how federal officials in other branches and the media respond to what the USSC has to say.

"Sequestration Will Wreak Chaos On U.S. Federal Prisons"

The title of this post is the headline of this very interesting new piece from Business Insider.  Here are excerpts:

Sequestration will hit each and every aspect of the U.S. government, but for the Bureau of Prisons, the impact could be horrifying. According to the Attorney General's office, the federal Bureau of Prisons (BOP) will have to handle a rising number of inmates with a major budget reduction, a cut of $338 million.

And while other agencies can find ways to do more with less — for example, by reducing procurement, enacting hiring freezes or cutting services — BOP has to maintain constant security at federal prisons around the country with even less money. The solutions will not be pretty.

In an email to Business Insider, a spokesperson from the Department of Justice said that they are "acutely concerned about staff and inmate safety should sequestration occur." The Department indicated that it may at times maintain a minimum level of staff for security purposes, and that lock-downs may be required.

The Bureau oversees 188 facilities and contracts 16 facilities out to private prison companies.  Currently, there is a grand total of 217,249 inmates in the federal prison system, a number BOP expects to rise to 229,300 by the end of 2013. In 2012, the BOP had a budget of $6.6 billion, with 41,310 employees. Correctional officers make up around half of the staff, with 19,756 employees in 2012.

According to DOJ, the sequester budget cuts will result in 5 percent reduction in the Bureau's workforce, which will be achieved by freezing future hiring and furloughing 36,700 staff for an average of 12 days. This means that almost every employee will have to go home without pay for some time, leaving BOP to function at unnecessarily low security levels.

Attorney General Eric Holder indicated that this reduction in force would endanger the lives of staff and inmates. According to the Attorney General, the BOP will have to implement full or partial lock downs across the board. In a letter to Senate Appropriations Chair Barbara Mikulski (D-Md.), Holder said "This would leave inmates idle, increasing the likelihood of inmate misconduct, violence, and other risks to correctional workers and inmates."

Complicating all of this is the fact that the federal prison system is already severely overcapacity. According to the 2012 Justice Department annual report, the system is 38 percent overcapacity, a problem that the Department has identified as a major weakness. But efforts to find a solution will be thwarted by the sequester.

In 2013, the BOP was slated to activate 5 new prisons throughout the system, alleviating the crunch with 8,100 new beds. In addition to cuts in guards, those projects will have to be delayed, exacerbating the overcrowding problem further. On top of these issues, Holder reported that the BOP will be forced to curtail or cancel some of the crucial rehabilitation programs that bring long term savings to the criminal justice system....

Jesselyn McCurdy, an attorney at the American Civil Liberties Union who specializes in civil liberties in the criminal justice system, is very concerned about the impact that the cuts will have on inmates. “"Sequestration could result in disaster for people in federal prisons who already live in dangerously overcrowded conditions,”" McCurdy said.

The private prison industry, which is largely dependent on federal contracts, is also worried about the cuts. Damon Hininger, CEO of Corrections Corporation of America, one of the largest private prison companies, voiced these concerns on a February 14 call to investors.

Through not mentioned in this article, it is interesting to consider that the passage of reduced crack guidelines which were made retroactive likely has help prevent this bad situation from being even worse.  Absent the sentencing reductions from reduced crack guidelines passed in 2007 and 2010, the current federal prison population would perhaps already be creeping up near 250,000.

Recent related post:

• Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?

"Mass Incarceration at Sentencing"

The title of this post is the title of this interesting looking new paper by Anne Traum now available via SSRN. Here is the abstract:

Courts can address the problem of mass incarceration at sentencing.  Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform.  Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales — individual, family, and community — and the power of courts to address such broad harm is limited.

This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing.  Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors.  In this phase, judicial discretion is at its highest, the judges’ contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts.

Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant’s history and the traditional sentencing purposes — including the need to benefit public safety and to ensure that sentences are fair and just.  Information about mass incarceration would enhance courts’ understanding of the impacts of sentencing on the defendant and others in the local community.  This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts’ capacity to consider and mitigate the harms of mass incarceration in individual cases.

Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?

The question in the title of this post in prompted by these two recent commentaries by Walter Pavlo, who writes about white-collar crime over at Forbes' website:

• Sequester Impact on Federal Prisons

• Here's an Idea To Reduce The Deficit -- Release Some Federal Inmates

The first post above links to this intriguing letter from AG Eric Holder which details the significant "downsizing" that would be required within the Justice Department if the sequester's automating budget cuts kick in.  The second post concludes with these notable points about how we might sensibly cut some federal costs at limited risk to public saefty:

In a time when we want people off of government assistance, the federal justice system is feeding more people into prison …. and believe me, prison IS government assistance (food, shelter, healthcare, supervision and monthly stipend (yes, inmates are paid)). Are we less safe with guys like Raj Rajaratnam (insider trading) doing only 6 years in prison rather than the 11 years he received? Raj’s long sentence sure did not deter someone from trading on Heinz shares prior to the announcement it was going private at a stock premium. Would a Raj sentence of 6 years uphold respect for the law?  I think it would.  Do you think Raj, whether he spent 6 years in prison or 11 years, would be any more likely to commit a another crime?  I’m thinking Raj is done with trading and doubt he placed any of those suspicious trades on Heinz.  Look, the primary difference between an inmate doing 11 years and another one doing 2 has to do with the number of people he/she testified against and not their threat to society.

There is no doubt that long prison sentences make the general public feel good over the short term, but the costs of incarceration go on for the long term.  I realize that images of white-collar felons and low-level drug dealers working side by side breaking rocks conjures up feelings of justice.  However, we now live in a time when there are video cameras at stop-light intersections, drones that patrol war zones, my iPhone can even find itself, so there has to be a better way to monitor felons (inmates) without having them housed on sprawling government complexes and on the government payroll.  Ankle bracelet?  GPS? Community service projects?   Punishment/Sentences can still be vetted out in years but does an entire prison term need to be served on a government, tax payer subsidized, compound?

Sequester this!!!

UPDATE:  On this topic, I see Ted Gest at The Crime Report has this notable recent entry headlined "Justice Groups to White House: Cuts Could Have 'Enormous Impact.'"

Notable account of "old school" Japanese approach to prisons

This new article appearing in The Economist, headlined "Eastern porridge: Even Japanese criminals are orderly and well-behaved," provides an fascinating international perspective on prison practices.  Here are excerpts:

With its façade of red brick, Chiba prison, just outside Tokyo, looks like a Victorian-era British jail. That is where the similarity ends.  Prisons in Britain are often loud, dirty and violent, but Chiba resembles a somewhat Spartan retirement home for former soldiers. The corridors and the tiny cells are spotless.  Uniformed prisoners shuffle in lockstep behind guards and bow before entering rooms.

The deputy warden, Hiroyuki Shinkai, who once visited British prisons as a UN researcher, was shocked by what he found.  He can still recall his surprise at seeing inmates freely mingling and talking. “Japanese penal philosophy is different,” he explains.  In Japan, talking is banned, except during break-times.  Unpaid work is a duty, not a choice.

Japan incarcerates its citizens at a far lower rate than most developed countries: 55 per 100,000 people compared with 149 in Britain and 716 in America.  The country’s justice ministry can also point to low rates of recidivism.  Yet increasingly the nation’s 188 prisons and detention centres come in for harsh criticism, particularly over their obsession with draconian rules and secrecy (on February 21st the government unexpectedly announced it had hanged three men for murder), and their widespread use of solitary confinement....

Over two-thirds of the inmates of Chiba prison were convicted for crimes that caused death — mainly murder, arson or manslaughter.  Half are serving life sentences and, in Japan, life means life.  The average prisoner is 50.  Many of them have never used a mobile phone or a credit card.  Conjugal visits are banned, so marriages break down.

In the prison workshops, inmates silently make leather shoes and furniture, overseen by a single unarmed guard.  No riot has taken place in a Japanese prison since just after the second world war.  Escapes are rare, and drugs and contraband almost non-existent.  The prison notes that its ratio of one guard to four prisoners is roughly half that in Britain.  Yet no one can recall a violent attack on a staff member.

A landmark report in 1995 by Human Rights Watch, a lobby group, said this remarkable order “is achieved at a very high cost”, including the violation of fundamental human rights and falling far short of international standards.  Europeans and Americans inside Japan’s prison system have developed mental problems.  Yet for Mr Shinkai the differences with the West are a point of pride. “Of course we look too strict to outsiders,” he says. But his inmates, he goes on, all come from Japanese society. For them, it works beautifully.

Students of prison history will know that this account of modern Japanese prisons suggests that they are structured and run in a manner and with a philosophy remarkably similar to the first major American prisons such as Pennsylvania's Eastern State Penitentiary and New York's Auburn Correctional Facility. prison (some history here).

George Will makes strong (conservative?) case against solitary confinement

George Will has this notable new Washington Post op-ed headlined "When solitude is torture." Here are excerpts:

“Zero Dark Thirty,” a nominee for Sunday’s Oscar for Best Picture, reignited debate about whether the waterboarding of terrorism suspects was torture. This practice, which ended in 2003, was used on only three suspects. Meanwhile, tens of thousands of American prison inmates are kept in protracted solitary confinement that arguably constitutes torture and probably violates the Eighth Amendment prohibition of “cruel and unusual punishments.”

Noting that half of all prison suicides are committed by prisoners held in isolation, Sen. Richard Durbin (D-Ill.) has prompted an independent assessment of solitary confinement in federal prisons. State prisons are equally vulnerable to Eighth Amendment challenges concerning whether inmates are subjected to “substantial risk of serious harm.”

America, with 5 percent of the world’s population, has 25 percent of its prisoners. Mass incarceration, which means a perpetual crisis of prisoners re-entering society, has generated understanding of solitary confinement’s consequences when used as a long-term condition for an estimated 25,000 inmates in federal and state “supermax” prisons — and perhaps 80,000 others in isolation sections within regular prisons. Clearly, solitary confinement involves much more than the isolation of incorrigibly violent individuals for the protection of other inmates or prison personnel.

Federal law on torture prohibits conduct “specifically intended to inflict severe physical or mental pain or suffering.” And “severe” physical pain is not limited to “excruciating or agonizing” pain, or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.” The severe mental suffering from prolonged solitary confinement puts the confined at risk of brain impairment.

Supermax prisons isolate inmates from social contact. Often prisoners are in their cells, sometimes smaller than 8 by 12 feet, 23 hours a day, released only for a shower or exercise in a small fenced-in outdoor space. Isolation changes the way the brain works, often making individuals more impulsive, less able to control themselves. The mental pain of solitary confinement is crippling: Brain studies reveal durable impairments and abnormalities in individuals denied social interaction. Plainly put, prisoners often lose their minds....

Mass incarceration is expensive (California spends almost twice as much on prisons as on universities) and solitary confinement costs, on average, three times as much per inmate as in normal prisons. And remember: Most persons now in solitary confinement will someday be back on America’s streets, some of them rendered psychotic by what are called correctional institutions.

"Defunding State Prisons"

The title of this post is the title of this new article now on SSRN authored by W. David Ball. Here is the abstract:

Local agencies drive criminal justice policy, but states pick up the tab for policy choices that result in state imprisonment.  This distorts local policies and may actually contribute to increased state prison populations, since prison is effectively “free” to the local decisionmakers who send inmates there.  This Article looks directly at the source of the “correctional free lunch” problem and proposes to end state funding for prisons. States would, instead, reallocate money spent on prisons to localities to use as they see fit — on enforcement, treatment, or even per-capita prison usage.  This would allow localities to retain their decision-making autonomy, but it would internalize the costs of those decisions.

Amusingly, in this post at Prawfs, Giovanna Shay describes David's work in this piece as part of the "Best Trilogy Since Star Wars."  That post explains the positive description this way:

Okay, that might be over-selling it just a bit.   But David Ball of Santa Clara recently has posted to SSRN the third in his trilogy of articles inspired by the California prison "realignment."...  In his three articles, David demonstrates that counties rely on state corrections facilities (and funding) to varying degrees, and makes proposals that he hopes could require counties to internalize the costs of their reliance on incarceration.... Whatever your ultimate assessment of David's proposals, this is one trilogy definitely worth checking out.  (I will spare you further Star Wars references).

Jacksons plead guilty and federal prosecutors recommend significant prison terms for both

This recent post, titled "You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?", engendered a lengthy debate over federal sentencing law and practice as applied to a pair of new high-profile federal defendants.  Now, this New York Times article, headlined "Jesse Jackson Jr. Pleads Guilty: ‘I Lived Off My Campaign’," reports that federal prosecutor, apparently parroting the recommendations of the federal sentencing guidelines, have already urged significant prison terms for Jesse and Sandi Jackson.  Here are the details:

Jesse L. Jackson Jr., the former Democratic representative from Illinois, pleaded guilty on Wednesday to one felony fraud count in connection with his use of $750,000 in campaign money to pay for living expenses and buy items like stuffed animals, elk heads and fur capes.

As part of a plea agreement, prosecutors recommended that Mr. Jackson receive a sentence of 46 to 57 months in prison. The federal judge overseeing the case, Robert L. Wilkins, is scheduled to sentence Mr. Jackson on June 28....

“Guilty, Your Honor — I misled the American people,” Mr. Jackson said when asked whether he would accept the plea deal. Mr. Jackson’s father, the Rev. Jesse L. Jackson, his mother and several brothers and sisters accompanied him to the hearing.

Mr. Jackson’s wife, Sandi, also accompanied him, and later in the day she pleaded guilty to a charge that she filed false income tax statements during the time that Mr. Jackson was dipping into his campaign treasury. Prosecutors said they would seek to have her sentenced to 18 to 24 months....

Last summer, Mr. Jackson took a medical leave from Congress and was later treated for bipolar disorder. After winning re-election in November, he resigned, citing his health and the federal investigation into his use of campaign money.

After the hearing, Mr. Jackson’s lawyer, Reid H. Weingarten, said his client had “come to terms with his misconduct.” Mr. Weingarten said that Mr. Jackson had serious health issues that “directly related” to his conduct. “That’s not an excuse, it’s just a fact,” Mr. Weingarten said.

Court papers released by federal prosecutors on Wednesday provided new details about how Mr. Jackson and his wife used the $750,000 in campaign money to finance their lavish lifestyle.

From 2007 to 2011, Mr. Jackson bought $10,977.74 worth of televisions, DVD players and DVDs at Best Buy, according to the documents. In 2008, Mr. Jackson used the money for things like a $466.30 dinner at CityZen in the Mandarin Oriental in Washington and a $5,587.75 vacation at the Martha’s Vineyard Holistic Retreat, the document said.

On at least two instances, Mr. Jackson and his wife used campaign money at Build-A-Bear Workshop, a store where patrons can create stuffed animals.  From December 2007 through December 2008, the Jacksons spent $313.89 on “stuffed animals and accessories for stuffed animals” from Build-A-Bear, according to the documents....

Documents released on Friday showed how Mr. Jackson used his campaign money to buy items like fur capes, celebrity memorabilia and expensive furniture.   Among those items were a $5,000 football signed by American presidents and two hats that once belonged to Michael Jackson, including a $4,600 fedora.

Because neither Jesse Jr. nor Sandi Jackson would appear to present any threat to public safety whatsoever, I am not quite sure why federal prosecutors believe that imposing a sentence "sufficient but not greater than necessary" to achieve congressional sentencing purposes requires a muti-year prison term for both of them.  I fully understand, of course, that the sentences here ought to be severe enough to serve general deterrence purposes.  But I am not sure that such extended prison terms are needed, especially if the Jacksons' sentences require them now to pay significant criminal fines and penalities in addition to forfeiting all ill-gotten gains and paying all their tax liabilities.

Former federal prosecutor Bill Otis has said repeatedly in recent threads that federal prosecutors should not have their sentencing recommendations defined by applicable sentencing guidelines.  But I surmise that the prosecutors' recommendations here that Jesse Jr. get 46 to 57 months in prison and that Sandi get 18 to 24 months are drawn directly from the guidelines.  (We can be quite sure that the defense attorneys in these cases will not draw their recommendations from the guidelines, and I would guess that the defense will end up making full-throated arguments for non-prison sentences for both Jesse Jr. and Sandi.)

Recent related post:

• You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?

Some notable recent NPR coverage of modern incarceration realities

I was pleased to hear on my local NPR station this afternoon, while I was driving around in my Prius looking for a good place to get a latte, this lengthy feature story concerning US incarceration levels on the On Point program.  Here is how the program is described via its website:

The Cost Of Prison: States fed up with high prison costs and mandatory sentencing move to change. Must the U.S. be number one in prisoners?

The USA is number one in the world when it comes to the number of people in prison. Bigger than China. Bigger than Russia. America’s prison population is tops. 2.2 million. Bigger than fifteen American states.  And its incarceration rate is number one.....  All that American imprisonment is very expensive. And very debatable when it comes to effectiveness, fairness -- to justice itself.  Now states across the country are reconsidering the mandatory sentencing policies and more that filled those cells. This hour, On Point: slimming down American prisons.

In addition, last week NPR had two new pieces as part of this special series titled "The Legacy And Future Of Mass Incarceration." Here are links and brief descriptions:

Decades On, Stiff Drug Sentence Leaves A Life 'Dismantled':  George Prendes was 23 when he was sentenced under New York's Rockefeller drug laws — tough mandatory sentencing guidelines for nonviolent drug crimes. The 15 years Prendes served for a drug transaction still reverberate for him and his family.

The Drug Laws That Changed How We Punish:  Forty years ago, New York enacted tough laws in response to a wave of drug-related crime. They became known as the Rockefeller drug laws, and they set the standard for states looking to get tough on crime.  But a new debate is under way over the effectiveness of such strict sentencing laws.

"A Company That Runs Prisons Will Have Its Name on a Stadium"

The title of this post is the headline of this lengthy and fascinating article from the sports section of today's New York Times.  Here are excerpts:

In recent years, where stadium naming rights could be sold, universities and professional sports teams have sold them — to airlines and banks and companies that sell beer, soda, doughnuts, cars, telecommunications, razors and baseball bats....

On Tuesday, that trend took another strange turn when Florida Atlantic University, in Boca Raton, firmed a deal to rename its football building GEO Group Stadium. Perhaps that pushed stadium naming to its zenith, if only because the GEO Group is a private prison corporation.

For this partnership, there is no obvious precedent.  The university’s president described the deal as “wonderful” and the company as “well run” and by a notable alumnus.  But it also left some unsettled, including those who study the business of sports and track the privatization of the prison industry.  To those critics, this was a jarring case of the lengths colleges and teams will go to produce revenue, of the way that everything seems to be for sale now in sports — and to anyone with enough cash.

“This is an example of great donor intent, terrible execution,” said Paul Swangard, the managing director at the University of Oregon Warsaw Sports Marketing Center.  “Here’s a guy with strong ties to the university, who wants to make a difference, and is mixing his philanthropic interest with a marketing strategy that doesn’t make any sense.”

The GEO Group, which is based in Boca Raton, secured the naming rights with a $6 million gift, paid out over 12 years through its charitable arm, the largest such donation in Florida Atlantic’s athletic history.  In a news release, the university said the money would finance athletic operations, the stadium, scholarships and “academic priorities.”

The stadium, which opened in the fall of 2011, cost $70 million and seats more than 29,000. It offers 6,000 premium seats, 24 suites and 26 loge boxes. In a telephone interview, the university’s president, Mary Jane Saunders, noted that GEO’s chairman, George Zoley, had two degrees from Florida Atlantic and once served as chairman of the Board of Trustees. Four members of the board, Saunders added, have also worked for the GEO Group, including two past student government presidents. The company’s corporate headquarters overlook the stadium....

Critics say the cost may be too high.  One is Bob Libal, the executive director of Grassroots Leadership, a social justice group that opposes private prison systems.  Libal said the GEO Group “poured enormous resources” in recent years into “attempting to take over a large portion of the Florida prison system.” He said the company’s usual practices included lobbying and charitable donations, often in areas where it operated facilities or planned to. To that end, this move could represent a way for the company to rebrand itself in Florida, he added....

GEO Group reported revenues in excess of $1.6 billion in 2011, income generated mostly from state and federal prisons and detention centers for illegal immigrants.  The company owns or runs more than 100 properties that operate more than 73,000 beds in sites across the world.  It holds nearly $3 billion in assets.  The company has been opposed by civil liberty and human rights groups and immigrant rights organizations.  It has been cited by state and federal regulators and lost a series of high-profile lawsuits....

Asked if Florida Atlantic had looked into the allegations against the GEO Group, Saunders said, “We think it’s a wonderful company, and we’re very proud to partner with them.”  An N.C.A.A. spokeswoman said individual universities made decisions regarding naming rights, with no N.C.A.A. involvement.

Swangard, at the University of Oregon, said he told his students that “sponsorship begins and ends with objectives” and “sponsorship is not philanthropy.”  He said universities should draw the line where they can defend the natural association that comes with the company they do business with.  “It can’t just be about the money,” he said.  “That’s great, but at what cost?  Now, across the country, they’re going to say that Florida Atlantic can change its uniforms to stripes.  That’s not fair.  But that’s reality.”

As are the financial requirements of big-time college sports.  To that end, said David Ridpath, a professor of sports administration at Ohio University and a member of the Drake Group, a network of professors who lobby for academic integrity in college sports, those constraints must also be considered.  In an e-mail, he described his response to the naming rights deal as “ambivalent,” adding: “The short answer is, I understand to an extent.  But it does appear we’re prostituting ourselves to the highest bidder regardless of what they represent.  Again — the sanctity of higher education matters little when the dollars are needed.”

I tend not to be convinced in the big-money world of college sports by a claim that the "sanctity of higher education" is central to any decisions that get made concerning a university's sports program. Nevertheless, because of the unique products and brand that GEO Group represents, this is an amazing story whether or not one is a rabid college sports fan or a rabid sentencing fan (or both, as in my case).

Among other notable parts of this story is the new opportunity for new kinds of jokes about a lot more than the future uniforms of Florida Atlantic players. Is it wrong to start joking about Jerry Sandusky now having a new shot at coaching again or about the recruits being told that Michael Vick and Plaxico Burress are now kind of like alums?  Should we say that this deal brings new meaning to concerns about the so-called "school-to-prison" pipeline?  And might Florida Atlantic or the GEO Group bring some kind of court action to prevent anyone from now referring to Michigan's stadium as "The Big House"?