Monday, January 26, 2015

Shouldn't true fiscal conservatives question a federal program with 600% recent spending growth?

PSPP_Fed_Growth_FS_fig1The question in the title of this post is part of my reaction to this new fact sheet released by the Pew Public Safety Performance Project. The Pew document is titled "Growth in Federal Prison System Exceeds States': Federal imprisonment rate, taxpayer costs soar as states curtail expansion, protect public safety," and here is how it starts (footnoted omitted):

Between 1980 and 2013, the federal imprisonment rate increased 518 percent, from 11 inmates for every 100,000 U.S. residents to 68.  During the same period, annual spending on the federal prison system rose 595 percent, from $970 million to more than $6.7 billion in inflation-adjusted dollars.  Prison expenditures grew from 14 percent of the Justice Department’s total outlays to 23 percent, increasingly competing for resources with law enforcement and national security programs.

States, like the federal government, recorded sharp increases in incarceration and corrections costs over the past three decades.  However, between 2007 and 2013, many states made research-driven policy changes to control prison growth, reduce recidivism, and contain costs. While the federal imprisonment rate continued to rise during that period, the state rate declined.

Folks like Bill Otis and some other defenders of the modern state of the modern federal criminal justice system are often suspect when I (and others like Senator Rand Paul and Grover Norquist) assert that a true commitment to conservative values should prompt serious questions about the size and operation of federal criminal justice system.  And I fully understand how folks committed to certain social conservative values, and who also believe the federal government should be actively promoting certain social values, can continue to support strongly the federal war on drugs and ever-increasing federal expenditures in service to promoting certain social values.

But, as the title of this post suggests, I do not understand how anyone who is truly committed to fiscal conservative values is not now compelled to examine whether it is wise to keep spending/borrowing more and more federal monies to keep growing the federal prison system.  As this Pew document and many others have highlighted, a significant number of states have been able to reduce its spending on incarceration over the last decade without any obvious harmful impact on public safety.  My advocacy for federal sentencing reform is based largely on the hope and belief that the feds can now do the same.

January 26, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, January 23, 2015

"Where Do We Go from Here? Mass Incarceration and the Struggle for Civil Rights"

The title of this post is the title of this recent essay by Robynn J.A. Cox  from the Economic Policy Institute.  Here is the essay's executive summary:

On the surface, crime and punishment appear to be unsophisticated matters.  After all, if someone takes part in a crime, then shouldn’t he or she have to suffer the consequences? But dig deeper and it is clear that crime and punishment are multidimensional problems that stem from racial prejudice justified by age-old perceptions and beliefs about African Americans.  The United States has a dual criminal justice system that has helped to maintain the economic and social hierarchy in America, based on the subjugation of blacks, within the United States.  Public policy, criminal justice actors, society and the media, and criminal behavior have all played roles in creating what sociologist Loic Wacquant calls the hyperincarceration of black men.  But there are solutions to rectify this problem.

To summarize the major arguments in this essay, the root cause of the hyperincarceration of blacks (and in particular black men) is society’s collective choice to become more punitive. These tough-on-crime laws, which applied to all Americans, could be maintained only because of the dual legal system developed from the legacy of racism in the United States. That is, race allowed for society to avoid the trade-off between societies “demand” to get tough on crime and its “demand” to retain civil liberties, through unequal enforcement of the law. In essence, tying crime to observable characteristics (such as race or religious affiliation) allowed the majority in society to pass tough-on-crime policies without having to bear the full burden of these policies, permitting these laws to be sustained over time.

What’s more, the history of racism, which is also linked to the history of perceptions of race and crime, has led society to choose to fight racial economic equality using the criminal justice system (i.e., incarceration) instead of choosing to reduce racial disparities through consistent investments in social programs (such as education, job training, and employment, which have greater public benefits), as King (1968) lobbied for before his assassination. In other words, society chose to use incarceration as a welfare program to deal with the poor, especially since the underprivileged are disproportionately people of color.

At the same time, many communities attempted to benefit economically from mass incarceration by using prisons as a strategy for economic growth, making the incarceration system eerily similar to the system of slavery. Given all of the documented social and economic costs of mass incarceration (e.g., inferior labor market opportunities, increases in the racial disparity in HIV/AIDS, destruction of the family unit), it can be concluded that it has helped to maintain the economic hierarchy, predicated on race, in the United States. In order to undo the damage that has been done, and in order to move beyond our racial past, we must as a nation reeducate ourselves about race; and then, as a society, commit to investing in social programs targeted toward at-risk youth. We must also ensure diversity in criminal justice professionals in order to achieve the economic equality that King fought for prior to his death. Although mass incarceration policies have recently received a great deal of attention (due to incarceration becoming prohibitively costly), failure to address the legacy of racism passed down by our forefathers and its ties to economic oppression will only result in the continued reinvention of Jim Crow.

January 23, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Sunday, January 18, 2015

Highlighting that most prisoners in Wisconsin now sent there for parole or probation violations

B99420782z.1_20150117211308_000_g199j1go.1-0This lengthy Milwaukee-Wisconsin Journal Sentinel article highlights the interesting reality of just who gets sent to prison in the Badger State and how. The piece carries this headline and subheading: "No new conviction, but sent back to prison; Re-incarceration for rule, parole violations costs taxpayers millions." Here is how the article starts:

More than half of the nearly 8,000 people sent to Wisconsin's prisons in 2013 were locked up without a trial — and they weren't found guilty of new crimes.  Some were punished for violating probation or parole by doing things such as accepting a job without permission, using a cellphone or computer without authorization, or leaving their home county. Some were suspected of criminal activity, but not charged.

Re-incarcerating people for breaking the rules costs Wisconsin taxpayers more than $100 million every year. The process that forces violators back behind bars relies largely on the judgment of individual parole agents, which can vary widely. Once accused of violations, people on parole can be sent back to prison for years without proof beyond a reasonable doubt — and they are left with little chance of a successful appeal.

Hector Cubero's agent, for example, recommended he be returned to prison on his original sentence of life with the possibility of parole after he inked a tattoo on the shoulder of a 15-year-old boy. The tattoo featured a cross and a quote from peace activist Marianne Williamson: "Our deepest fear is not that we are inadequate, our deepest fear is that we are powerful beyond measure."

Cubero maintains the teen lied about his age. Had Cubero been found guilty of tattooing a minor, a city ordinance violation, he would have been ticketed and fined $200. If he had been convicted of tattooing without a license, a misdemeanor, he could have been fined $500 and faced a maximum of 30 days in jail. But because he was on parole at the time, Cubero, 52, has served more than two years — with no guarantee he will ever go home.

Cubero already had spent more than 27 years behind bars for being a party to the crimes of first-degree murder and armed robbery. Court records show Cubero, 18 at the time of the offense, did not plan the robbery or fire the shots that killed the victim, a Milwaukee dentist.

Until the parents of the 15-year-old complained about the tattoo, Cubero had never violated parole, according to Corrections Department records. During the four years he'd been free, he passed all his drug tests, paid his restitution and court costs and worked fairly steadily. Nonetheless, Cubero's parole agent recommended he be sent back to prison. The agent, with cooperation from a prison social worker, also blocked his fiancée, Charlotte Mertins of Delafield, and her three children, all in their 20s, from visiting him.

January 18, 2015 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, January 17, 2015

"If crime is falling, why aren’t prisons shrinking?"

Cbpp_statesThe title of this post is the headline of this notable Boston Globe commentary. Here are some excerpts:

The prison population in Massachusetts has tripled in size since 1980. That’s faster than the state economy has grown and even faster than the rise in obesity. Massachusetts is hardly alone in this. Prison populations have mushroomed all across the United States, occasionally reaching rates far higher than anything seen here.  But while many states are now experimenting with approaches that ease criminal penalties, Massachusetts has taken few steps in this direction.
How many people are in prison? About 165 of every 100,000 people in Massachusetts are currently serving prison sentences of a year or longer. That number used to be a lot lower. In the late 1970s, just 50 of every 100,000 people were in state prisons.  You can find this same upward trend most everywhere in the United States; across the country, roughly 430 of every 100,000 people are in state prisons.
 Why has the prison population grown so rapidly? Initially, the growth in prison populations was a response to the surge in crime that shook American cities in the ’60s and ’70s. Faced with eruptions of violence, states everywhere began to put more people in prison and to increase the length of prison sentences.
Despite the fact that crime rates have declined dramatically since the early 1990s, those policing techniques and sentencing laws stayed in place. As a result, the prison population remains elevated....
Liberal and conservative states alike have begun to reassess the efficacy of their incarceration policies.  Partly, that’s about the strain on state budgets — building and maintaining prisons has proved extremely costly. But it’s also because of new research showing that it’s possible to loosen criminal penalties and reduce crime at the same time.
Over the last few years, the states that made the biggest reductions to their prison populations, including New Jersey and Connecticut, have also seen some of the biggest drops in crime.
Since 2008, 29 states have seen both lower crime rates and smaller prison populations. “Justice reinvestment” is the term being used to describe this effort, and what it involves is a careful cost-benefit analysis to see how states can simultaneously keep people out of prison, reduce crime, and save money. Among other things, states are experimenting with:
Looser drug laws. Over a dozen states, from California to Maine, have stopped sending people to prison for possessing small amounts of marijuana. And even with more serious drugs, it can be more effective — and cheaper — to help people get treatment. Texas has invested millions of dollars in treatment programs for drug offenders.
Electronic monitoring. Only recently has it become possible to effectively monitor people without putting them in prison. For those awaiting trial or struggling to keep up with the conditions of their parole, an ankle monitor can be a relatively inexpensive alternative to confinement. New Jersey is one of the states making use of this technology.
Therapy. Some forms of cognitive-behavioral therapy have been shown to keep one-time criminals from becoming two-time criminals, which is good for the public and good for state budgets. Dozens of different states have experimented with these therapies.
What reforms are being tried in Massachusetts? Given that the prison population in Massachusetts is far smaller than elsewhere in the United States, there’s less urgency around issues of reform.  Still, Massachusetts devotes about 3 percent of its budget — over $1 billion each year — to corrections. That’s twice what we spend on early education and roughly the same amount that we devote to higher education....
During his time in office, Governor Patrick had said he hoped this new information would revitalize the state’s sentencing commission, but it’s a big step from data-gathering to policy-making.  For now, other states seem to be taking the lead in the effort to find targeted reforms that can safely reverse the decades-long increase in prison populations.

January 17, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, January 15, 2015

Political scientist highlights how Ted Kennedy and Joe Biden helped produce modern mass incarcertation

Murakawa2014I first spotlighted in this prior post the fascinating new book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America.  I now see that The Marshall Project has published this great piece by Dana Goldstein with a brief overview of the book and a potent Q&A with its author.  Here is how the piece starts and some of my favorite excerpts:

Are liberals as responsible for the prison boom as conservatives?

That’s the thesis of a new book, The First Civil Right: How Liberals Built Prison America.  It has begun to attract reviews and debate from across the political spectrum.  Princeton political scientist Naomi Murakawa seeks to upend assumptions about the politics of crime and punishment.  She argues that conservatives, playing the politics of racial animus, helped quadruple the incarceration rate, but they were not alone.  Rather, she points to “liberal law and order” ideas first expressed by Harry Truman, Lyndon B. Johnson, and even the NAACP.  These liberals believed that federalizing crime policy would “professionalize” the justice system and prevent racial bias.  But in fact, federal funding and federal oversight of courts, sentencing, and policing helped build what Murakawa calls a “carceral state” that disproportionately punishes people of color.

Murakawa and I talked about her book and its implications for criminal justice reform today, especially the #BlackLivesMatter movement and the Obama administration’s policing reforms....

Q: Your book aims to expose the liberal roots of the prison boom.  But Democrats did not create the Willie Horton ad.  It was Richard Nixon who expanded the drug war by claiming that drug use was “the common denominator” that explained lawlessness among hippies, inner-city blacks, and antiwar protestors.  Is it important to distinguish between the different motives of conservatives and liberals?

A: I think it’s important to stay focused on outcomes in terms of how they affect people’s day-to-day lives. I do discount stated intentions quite a lot.  I do this in part because I have a feeling that for those being sentenced under punitive sentencing guidelines it doesn’t make a difference to them that Sen. Ted Kennedy was liberal and overall had a good voting record.  It doesn’t make the brutality of living in a cage any less violent.

Kennedy promulgated this idea of sentencing guidelines.  It was his baby.  He ushered it through the Senate at first as guidelines that were rigid but would have been somewhat anti-carceral.  They became guidelines that were rigid and more carceral.  And Reagan signed this legislation, in 1984. Kennedy had the rest of his life to say, “The sentencing guidelines have had a terrible impact. This is not what I meant.”  Not once did he introduce legislation to reform the guidelines.  Not once did he apologize or try to change it.  When I look at that kind of history, that’s where I feel like it’s fair to hold liberals responsible.

Q: Joe Biden played an interesting role in what you call Democrats “upping the ante” to outbid conservatives on being tough on crime.  Can you talk about Biden’s history?

A:  He was really pivotal in leading the Senate in worsening all of the provisions of Clinton's 1994 Omnibus Crime Act, which expanded the death penalty and created new mandatory minimum sentences.  Biden was truly a leader and worked very closely and very happily with conservative senators just to bid up and up and up.  There’s a tendency now to talk about Joe Biden as the sort of affable if inappropriate uncle, as loudmouth and silly.  But he’s actually done really deeply disturbing, dangerous reforms that have made the criminal justice system more lethal and just bigger.

That 1994 act is overwhelmingly, incredibly punitive.  One of the ways Biden brokered it was by making it such a huge bill that it had something for everyone.  It provided political coverage for everyone who wanted to vote for it.  There were certain liberal members who might have been opposed to mandatory minimums, but they were also getting the Violence Against Women Act.  The Congressional Black Caucus opposed the death penalty expansions, but the bill also did include some modest money for rehabilitation programs. Everyone got goodies through the criminal justice system.

Prior related post:

January 15, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, January 14, 2015

"In a Safer Age, U.S. Rethinks Its ‘Tough on Crime’ System"

The title of this post is the headline of this lengthy front-page New York Times article discussing modern criminal justice realities that should already be known by regular readers of this blog.  Here are a couple snippets from the effective piece:

Democrats and Republicans alike are rethinking the vast, costly infrastructure of crime control and incarceration that was born of the earlier crime wave. “The judicial system has been a critical element in keeping violent criminals off the street,” said Senator Richard J. Durbin, Democrat of Illinois, who is co­sponsor of a bill to reduce some federal drug sentences. “But now we’re stepping back, and I think it’s about time, to ask whether the dramatic increase in incarceration was warranted.”

Senator Charles E. Grassley, Republican of Iowa and the new chairman of the Senate Judiciary Committee, has opposed broad reductions in sentences. But he still agreed, in an interview, that “there are a lot of ideas — prison reform, policing, sentencing — being discussed now that wouldn’t be if we hadn’t had this drop in the crime statistics.”...

Along with uncertainty about the sources of lower crime are contentious debates about what should come next.  How far can incarceration be reduced without endangering safety? Where is the proper line between aggressive, preventive policing and intrusive measures that alienate the law­abiding?

The rise in incarceration has been even more striking than the decline in crime, leading to growing agreement on both the right and the left that it has gone too far.  From the early 1970s to 2009, mainly because of changes in sentencing, the share of American residents in state or federal prison multiplied fourfold, reaching 1.5 million on any given day, with hundreds of thousands more held in local jails, although the rate has tapered off somewhat since 2009.

The social and economic costs are now the subject of intense study.  Some conservatives such as William G. Otis, a former federal prosecutor and adjunct professor of law at Georgetown University, argue that while many factors account for falling crime, harsher justice surely played a significant role. “When people are incarcerated they are not out on the street to ransack your home or sell drugs to your high school kid,” he said.

But many criminologists say the impact has been limited.  “The policy decisions to make long sentences longer and to impose mandatory minimums have had minimal effect on crime,” said Mr. Travis, of John Jay College. “The research on this is quite clear.”

Higher imprisonment might explain from 10 percent to, at most, 25 percent of the crime drop since the early 1990s, said Richard Rosenfeld, a criminologist at the University of Missouri ­St. Louis.  But it brought diminishing returns, he said, as those committing less severe crimes also received lengthy sentences.  

Many states, led by Republicans as well as by Democrats, have acted to reduce sentences for low­level and nonviolent crimes and to improve drug and other treatment services, while still bringing down crime rates.

January 14, 2015 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Monday, January 12, 2015

County budget woes forces a official jail break in Ohio

Jail12-01A helpful reader altered me to this remarkable local story from Ohio, headlined "Summit County releases 72 inmates from jail," which highlights the extreme measures some officials feel they have to take when budget pressures and prisoner overcrowding reaches a breaking point.  Here are the details that explain this picture:

Summit County closed a wing of its jail Sunday for financial and safety reasons and began releasing inmates.  Seventy-two people — some with low-level felony charges and most nonviolent — filed out of the correctional facility shortly after noon.

They were greeted in the parking lot by family and social agencies, and then headed either to shelters, alternative sentencing programs or home.

“For the safety of everyone in this facility, not only the staff but the inmates as well, we’re doing what we have to do due to the financial situation of this county,” Sheriff Steve Barry said.  Barry, whose career began with the sheriff’s office in 1979, could not recall another time when the county released a large number of inmates for budgetary reasons.

The sheriff had announced the release plan last month, saying he doesn’t have enough deputies to safely oversee the jail.  The county already has cut recreation time and programming for inmates because of staffing.

In late 2013, a national jail expert recommended that the county hire at least 50 more workers or close a portion of the facility.  Then last fall, county voters rejected a sales tax increase that would have funneled most of the money to jail operations.  The facility, on East Crosier Street in Akron, can hold 671 inmates, but will be reduced to 522.  “I don’t want these people out,” Barry said. “I got no choice.”

Asked what the county would do in the future, the sheriff responded: “That’s a very good question” and acknowledged he doesn’t know what the solution is.  The release Sunday was complicated by the fact that the jail received about 50 new inmates over the last two days, Barry said.  That meant some people charged with assaults, domestic violence and other crimes not expected to be let go were set free.

No one charged with murder or rape was released, the sheriff said. It was unclear if any of the inmates were released early from a sentence or if they were all awaiting trial. Sheriff’s officials could not say Sunday.

Barry credited the jail staff for handling the background reviews of all inmates. “They have been working around the clock the last four to five days on who could go and who could not go,” Barry said. He added that authorities attempted to contact every victim of the inmates who were released.

Former inmate Antonio Spragling, 50, of Akron had been in the jail for 47 days. He was arrested last year on drug charges and violation of a protection order and is awaiting trial. “All I could do is thank God,” he said. “I’m spiritual. God is my savior. … Unfortunately I’ve been in situations like this before and there was talk of release and it never happened. I look at it as a second chance and I’m not going to let anyone down. No judge. The system. And more important, I’m not going to let myself down.”

David Kennedy of Barberton and Joseph Griffin Jr. of Akron came to the jail to pick up relatives. As they stood in the parking lot waiting, they said they wished there were more programs to help former inmates and more businesses willing to hire them. Without training and jobs, they’ll just end up back in jail, they said. “They’ve got some good people in there,” Kennedy said. “They just had a bad turn. Somebody didn’t help them out. Nobody gave them that momentum, encouraging them to do the right thing. Some of the people in there you can tell have a good heart.”

January 12, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Sunday, January 11, 2015

Toledo Blade urges "No more prisons" for Ohio as it deals with overcrowding issues

This new editorial from The Toledo Blade makes the case for sentencing reform to deal with Ohio's prison overcrowding problems.  Here are excerpts:

Fueled largely by growing numbers of nonviolent, drug-addicted offenders from rural counties, Ohio’s crowded prison system is at a crossroads: The state must either increase capacity or take the far more sensible, humane, safe, and cost-effective route of finding community-based alternatives to incarceration.

Statistical profiles of the state’s incoming inmates underscore the need for change.  They show many low-level offenders with short sentences that community sanctions could handle more effectively, at a fraction of the $25,000 a year it costs to lock up each prisoner. Ohio’s prison system costs $1.5 billion a year.

Nearly 45 percent of inmates who go to prison each year in Ohio — almost 9,000 people — serve less than a year.  That’s not enough time for them to get involved in meaningful programs that would reduce their chances of returning to prison.  Expanding drug courts in Ohio would ensure that more offenders who struggle with addiction were sentenced to treatment instead of prison.

Gary Mohr, director of the Ohio Department of Rehabilitation and Correction, prudently and courageously rules out building more prisons, though he said crowding statewide could force Ohio to reopen a prison camp.... “As a state, we’re going to have to make some policy decisions,” Mr. Mohr told The Blade’s editorial page. “Are we going to invest in brick and mortar, spending $1 billion over the next 20 years to build and run another prison, or are we going to invest in people? ... I’m not going to build another prison, not with so many nonviolent people coming into the system.”

The rest of the state should listen to its prison chief. Mr. Mohr recently convened a working group of judges and state politicians to find ways to divert more low-level offenders from prison.  He said he would expand halfway houses and other community alternatives to incarceration, and support sentencing reforms that could emerge from the General Assembly this year.

Roughly 30 percent over capacity, Ohio’s prison system holds 50,382 inmates, including 4,049 women.  That’s up about 2 percent from August, 2012.  The prison population would be far higher if the recidivism rate in Ohio were not at a record low 27.1 percent, compared to nearly 50 percent nationwide.  The state could lower that rate even further by starting drug treatment, including medication-assisted treatment, before prisoners are released and continuing that treatment after they go home....

The number of offenders coming from Ohio’s six largest counties, including Lucas, is down, Mr. Mohr said. But a growing number of new prisoners from the rest of the state has more than offset decreases from major urban areas. Ohio’s goal should not be to manage its prison population. It should be to reduce that population significantly, by acting now to expand cost-effective alternatives to incarceration.

Some recent related posts:

January 11, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Saturday, January 10, 2015

SCOTUS orders new briefing and argument on ACCA's constitutionality in Johnson!?!?!

The US Supreme Court on Friday afternoon added a remarkable twist to what had been a small sentencing case, a case which had its (first) SCOTUS oral argument earlier this Term, via this new order:

13-7120 JOHNSON, SAMUEL V. UNITED STATES

This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague."  The supplemental brief of petitioner is due on or before Wednesday, February 18, 2015.  The supplemental brief of the United States is due on or before Friday, March 20, 2015.  The reply brief, if any, is due on or before Friday, April 10, 2015.  The time to file amicus curiae briefs is as provided for by Rule 37.3(a). The word limits and cover colors for the briefs should correspond to the provisions of Rule 33.1(g) pertaining to briefs on the merits rather than to the provision pertaining to supplemental briefs.  The case will be set for oral argument during the April 2015 argument session.

As some readers likely know, and as Will Baude effectively explains in this new post at The Volokh Conspiracy, "Justice Scalia has been arguing with increasing force that the Act is vague, and the reargument order suggests that there’s a good chance he may finally have convinced his colleagues that he’s right."

This strikes me as huge news, especially because I think any ruling that part of ACCA is unconstitutionally vague would be a substantive constitutional judgment that should get applied retroactively to hundreds (and potentially thousands) of federal prisoners serving mandatory minimum terms of 15 years or more. US Sentencing Commission data suggests that perhaps 5000 or more federal defendants have been sentenced under ACCA over the last decade, though I would guess the majority of these cases did not hinge on the ACCA subprovision that SCOTUS might now find unconstitutional.

January 10, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, January 09, 2015

"How White Liberals Used Civil Rights to Create More Prisons"

9780199892808The potent title of this post is the potent title of this new piece at The Nation by Willie Osterweil, which serves as a review of sorts of a book by historian Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America. Both the full Nation article and the book it discusses are worth attention, and here are excerpts from the article:

In her first book, The First Civil Right: How Liberals Built Prison in America, historian Naomi Murakawa demonstrates how the American prison state emerged not out of race-baiting states’-rights advocates nor tough-on-crime drug warriors but rather from federal legislation written by liberals working to guarantee racial equality under the law.  The prison industry, and its associated police forces, spy agencies and kangaroo courts, is perhaps the most horrific piece of a fundamentally racist and unequal American civil society.  More people are under correctional supervision in the United States than were in the Gulag archipelago at the height of the Great Terror; there are more black men in prison, jail or parole than were enslaved in 1850. How did this happen?

The common-sense answer is that launching the war on drugs during the backlash against civil-rights struggles encouraged agents of the criminal-justice system to lock up black people for minor infractions.  This isn’t wrong, or not exactly. Ronald Reagan’s infamous Sentencing Reform Act of 1984, which established federal minimums (a k a sentencing “guidelines”) and abolished parole in the federal prison systems, did lead to an explosion in the number of federal prisoners, particularly drug offenders.  It was one of the pivotal moments in the production of the prison-industrial complex (PIC) — the overlapping sphere of government and industrial activity that employs hundreds of thousands of guards, cops, judges, lawyers, bail-bondsmen, administrators and service employees and which sees millions of prisoners performing barely paid production labor to generate profit.  But, as Murakawa painstakingly demonstrates, the Sentencing Reform Act has a “liberal core,” and is built on the technical and administrative logic of racial fairness that structures all federal civil-rights legislation.

This is the fundamental thesis of Murakawa’s book: legal civil rights and the American carceral state are built on the same conceptions of race, the state and their relationship. As liberals believe that racism is first and foremost a question of individual bias, they imagine racism can be overcome by removing the discretion of (potentially racist) individuals within government through a set of well-crafted laws and rules.  If obviously discriminatory laws can be struck down, and judges, statesmen or administrators aren’t allowed to give reign to their racism, then the system should achieve racially just outcomes.  But even putting aside the fact that a removal of individual discretion is impossible, such a conception of “fairness” applies just as easily to producing sentencing minimums as school desegregation....

Murakawa does not simply collapse liberal and conservative into each other. She makes an important distinction between postwar racial-liberalism and postwar racial-conservatism. Race conservatives are those who don’t believe that racism is real, but that race is: they believe that black people are innately inferior to whites, and attribute their place in society to a failure of black culture. This race-conservatism is what is broadly considered “real racism.”

Race-liberalism, on the other hand, remains the dominant — and usually unspoken — American framework for understanding race.  Built on the premise that racism is real but manifests as the prejudice of white people, race-liberals argue that individuals’ racism can corrupt institutions and bias them against black people.  That bias damages black psyches as well as black people’s economic and social prospects.  Race-liberals believe that training, laws, stricter rules and oversight can eliminate prejudice and render institutions “colorblind.” Since it is biased treatment that damages black prospects, then this fix — civil rights — applied to all of society’s institutions, would eventually end racial disparity.

Both race-liberals and race-conservatives base their theories on one disastrous assumption: black people naturally produce crime.  For race-conservatives, black people are innately, genetically criminal, full stop.  For race-liberals, the psychological, economic and social damage of prejudice makes black people “lash out” violently and criminally–either in the form of individual criminal acts or, as the black freedom movement begins in earnest, as protests and rioting. Under both schema, however, the reason society must achieve racial equality is because equality will eliminate black crime.

January 9, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, January 07, 2015

Mapping facilities in incarceration nation which "has more jails than colleges"

The terrific Washington Post wonkblog has this notable post by Christopher Ingraham with a fascinating map and discussion of prisoners and incarceration facilities in the United States.  The post is titled "The U.S. has more jails than colleges. Here’s a map of where those prisoners live." Here is an excerpt: 

There were 2.3 million prisoners in the U.S. as of the 2010 Census. It's often been remarked that our national incarceration rate of 707 adults per every 100,000 residents is the highest in the world, by a huge margin. We tend to focus less on where we're putting all those people....

Much of the discussion of regional prison population only centers around inmates in our 1,800 state and federal correctional facilities. But at any given time, hundreds of thousands more individuals are locked up in the nation's 3,200 local and county jails....

To put these figures in context, we have slightly more jails and prisons in the U.S. -- 5,000 plus -- than we do degree-granting colleges and universities. In many parts of America, particularly the South, there are more people living in prisons than on college campuses. Cumberland County, Pa. -- population 235,000 -- is home to 41 correctional facilities and 7 colleges.  Prisons outnumber colleges 15-to-1 in Lexington County, S.C....

[S]tates differ in the extent to which they spread their correctional populations out geographically. Florida, Arizona and California stand out as states with sizeable corrections populations in just about every county. States in the midwest, on the other hand, tend to have concentrated populations in just a handful of counties.

I encourage everyone to click through to see the map of all this in the WaPo posting.

January 7, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (8) | TrackBack

"How to reduce poverty and improve race relations by rethinking our justice system"

The title of this post is the subheadline of this notable Politico commentary authored by Charles Koch and Mark Holden.  Here are excerpts:

As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned.  But the reality is often different.  It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws.  This proliferation is sometimes referred to as “overcriminalization,” which affects us all, but most profoundly harms our disadvantaged citizens.

Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders.  Enforcing so many victimless crimes inevitably leads to conflict between our citizens and law enforcement.  As we have seen all too often, it can place our police officers in harm’s way, leading to tragic consequences for all involved.

How did we get in this situation?  It began with well-intentioned lawmakers who went overboard trying to solve perceived or actual problems.  Congress creates, on average, more than 50 new criminal laws each year.  Over time, this has translated into more than 4,500 federal criminal laws spread across 27,000 pages of the United States federal code. (This number does not include the thousands of criminal penalties in federal regulations.) As a result, the United States is the world’s largest jailer — first in the world for total number imprisoned and first among industrialized nations in the rate of incarceration....

We have paid a heavy price for mass incarceration and could benefit by reversing this trend.  It has been estimated that at least 53 percent of those entering prison were living at or below the U.S. poverty line when their sentence began.  Incarceration leads to a 40 percent decrease in annual earnings, reduced job tenure and higher unemployment.  A Pew Charitable Trust study revealed that two-thirds of former inmates with earnings in the bottom fifth upon release in 1986, remained at or below that level 20 years later.  A Villanova University study concluded that “had mass incarceration not occurred, poverty would have decreased by more than 20 percent, or about 2.8 percentage points” and “several million fewer people would have been in poverty in recent years.” African-Americans, who make up around 13 percent of the U.S. population but account for almost 40 percent of the inmates, are significantly affected by these issues.

According to Harvard sociologist Bruce Western: “Prison has become the new poverty trap. It has become a routine event for poor African-American men and their families, creating an enduring disadvantage at the very bottom of American society.”...

Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society — especially for the disadvantaged.

Some prior related posts on Koch family efforts in support of criminal justice reform:

January 7, 2015 in Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Criminology & Public Policy special issue on sentencing reform and mass incarceration

CoverA helpful reader alerted me to this special November 2014 issue of the journal Criminology & Public Policy with an array of top criminologists and legal scholars talking about modern sentencing reform and mass incarceration in the united States. The entire issue looks like a must-read, and here is a list of the contents: 

January 7, 2015 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, January 06, 2015

Notable discussions of children as mass incarceration’s "collateral damage"

Child-in-Court-boy-text1The latest issue of The Nation includes this effective piece about the generational impact of incarceration headlined "Mass Incarceration’s Collateral Damage: The Children Left Behind; When a parent is sent to prison, a child’s life is derailed, leaving schools to pick up the pieces."  Here is an excerpt:

A growing body of research suggests that one of the most pernicious effects of high adult-incarceration rates can be seen in the struggles of children ... who often lose a crucial source of motivation and support with their parents behind bars....

A very small subset of children — those with abusive parents — were found to be more likely to thrive academically and socially if their parents are incarcerated. But most children declined markedly. In fact, the new research suggests that prisoners’ children may be the most enduring victims of our national incarceration craze. “Even for kids at high risk of problems, parental incarceration makes a bad situation worse,” concluded Christopher Wildeman and Sara Wakefield in their recently published book, Children of the Prison Boom: Mass Incarceration and the Future of American Inequality.

Wildeman and Wakefield found that children with incarcerated fathers were three times more likely than peers from similar backgrounds to become homeless. They also suffered significantly higher rates of behavioral and mental-health problems, most notably aggression.

Kristin Turney, a professor of sociology at the University of California, Irvine, reached similar conclusions in a report published this past September. Turney found that children with incarcerated parents were three times more likely to suffer from depression or behavioral problems than the average American child, and twice as likely to suffer from learning disabilities and anxiety....

Within the last few years, however, a broad range of agencies and policy-makers have begun to frame the nation’s prison boom as a children’s issue. Last summer, the Justice Department launched a wide-reaching campaign to provide support to the children of imprisoned parents — by rethinking visitation policies and changing the protocol for arresting parents in front of children, for example. In August, the American Bar Foundation and the National Science Foundation invited key researchers, advocates and federal officials to the White House for a conference to discuss reducing the “collateral costs” to children and communities when parents are incarcerated. The conference was part of a larger inter-agency initiative begun in 2012 to focus the attention of participating agencies, including the Department of Education, on the children of incarcerated parents. A few months later, in November, the Federal Bureau of Prisons hosted its first-ever Universal Children’s Day, an event attended by nearly 8,500 children visiting more than 4,000 federal inmates....

John Hagan, a professor of sociology and law at Northwestern University, led the White House conference with his research collaborator, Holly Foster, of Texas A&M University. Fifteen years ago, in an oft-cited paper, Hagan first suggested that the effects on children might be “the least understood and most consequential” result of mass incarceration. Now Hagan is seeing his hypothesis proved. More than that, as his adolescent subjects enter adulthood, the effects are compounded: “Almost no children of incarcerated mothers make it through college,” he noted. “These people are now in early adulthood, and they’re really struggling.”

I have long believed and asserted that politicians and policy advocates truly concerned about family values and children's interests should be deeply concerned about the over-use of incarceration as a punishment, especially for non-violent offenders.  And I find fascinating and compelling the suggestion in this lengthy post at The Clemency Report titled "Children deserve legal standing when parents are sentenced." Here is how the potent post by Dennis Cauchon starts:

Are children entitled to legal standing when parents are sentenced in criminal cases? The current answer is “no.” The answer should be “yes.”

Today, the well-being of a defendant’s children is close to irrelevant in criminal courtrooms. Institutional indifference to children is official policy. This is the most profound legal error in the last 35 years, the mistake that made mass imprisonment possible.

Criminal courts produce millions of orphans every year using procedures that weigh only the interests of adults in the courtroom. This is a profoundly ignorant way for a bureaucracy to act. Removing a mother or father from a child’s life is a not mere “side effect”of the day’s procedure; it is an “effect,” often the most important thing that will happen that day.

Children deserve rights — legal rights, established in law — to end their mistreatment in criminal courts.

In domestic courts, the “best interest of the children” is the trump card standard that overrides almost all other adult needs in divorce and custody cases. In criminal courts, defendant’s children are treated as trash in the back row. This difference is legally shameful and morally indefensible.

January 6, 2015 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Sunday, January 04, 2015

Despite recent reforms, Indiana and Ohio still struggling greatly with prison crowding and costs

This weekend brought two similar stories from two heartland states struggling with similar persistent prison problems.  Here are links to the stories with their headlines and highlights:

From Indiana here, "Despite code changes, state's prisons will grow":  

Amid other demands the Legislature will be juggling starting this month is a request from the Indiana Department of Correction for money to build and operate new prison cells. Without those cell units, department officials told legislators recently, the state will run out of beds for male inmates in about two years....

One reason is that the criminal code revisions, in addition to sending more prisoners back to the county, tightened the credit-for-time-served formula for other types of prisoners, keeping them in state prisons longer. It's not yet clear exactly how much more pressure that will put on the prison system, but DOC officials believe they would have had to increase capacity soon anyway. Indiana's prison population numbered 6,281 in 1980. At the end of 2013, it was 29,377. That's more than 4½ times as many prisoners.

From Ohio here, "Emergency early release of prisoners is considered":

As Ohio’s inmate population once again approaches record levels, with no money available for bricks and mortar, prisons chief Gary Mohr is looking at something never used here before — emergency early release of prisoners.

In his budget overview for 2015-16, Mohr said, the department will “request strengthened language on emergency release of inmates contained in Ohio Revised Code 2967.18.” The changes Mohr will ask the General Assembly to make weren’t specified. JoEllen Smith, spokeswoman for the Department of Rehabilitation and Correction, emphasized that emergency release will be an option only if overcrowding persists and money is unavailable for additional prison beds....

As of Dec. 29, Ohio prisons held 50,641 inmates, 31 percent above design capacity and about 1,000 more than two years ago at this time.

The section of state law Mohr referenced, ORC 2967.18, specifies the chain of events for declaring an “overcrowding emergency,” resulting in the release of some nonviolent prisoners 30, 60 or 90 days early. Enacted in 1997, the early-release provision has never been used.

Mohr’s budget letter said the state is at a “significant decision point for criminal justice policy. Do we invest in people or in bricks and mortar? To build and operate one prison for two decades would cost Ohioans one billion dollars.”

New projections have the population hitting 50,794 by July 1, and rising to 52,844 by 2023. Ohio’s all-time high was 51,273 on Nov. 10, 2008. The prison population is increasing despite an overall drop in the crime rate and the fact that Franklin and the other five largest counties are sending fewer people to state prisons. The other 82 counties are making up for it....

State lawmakers have in recent years passed a host of laws adding offenses or increasing prison time for existing ones. Reform efforts to rein in the growth have helped, but the slow creep in prison population continues.

As outlined in law, Mohr would submit a declaration of an overcrowding emergency to the Ohio Correctional Institution Inspection Committee, a legislative watchdog agency, which would forward a recommendation to Gov. John Kasich. The governor could then declare an official emergency, clearing the way for early release of qualifying nonviolent offenders. That would exclude inmates serving sentences for murder, voluntary manslaughter, felonious assault, kidnapping, rape, aggravated arson and aggravated robbery.

January 4, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

"Switzerland has too many criminals and too few prisons"

ImagesThe title of this post is from the first sentence of this recent AP article headlined "Switzerland mulls plan to export prisoners." Here is more about a notable European nation having a problem all to common in the US:

Now the Justice Ministry is reportedly considering a proposal to export convicts to neighboring France and Germany.  Swiss prisons chief Thomas Freytag told public broadcaster SRF in a program aired late Friday that the country's correctional facilities are at more than 100 percent capacity.

Prisons in the French-speaking cantons (states) of western Switzerland are said to be particularly overcrowded.  It's unclear when the Justice Ministry would decide on the plan, and whether France or Germany would be prepared to let Swiss inmates do their time there.

Left out of this brief story is the basic fact that Switzerland, at recent count, has less than 7,000 prisoners in the whole country and an incarceration rate that is only about 1/8th of the incarceration rate in the United States. For comparison, consider that the US state of Virginia has a state-wide population that is a little lower than Switzerland's, but it has more than 30,000 prisoners (and that count excludes a few thousand federal prisoners coming from Virginia).

January 4, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (5) | TrackBack

Tuesday, December 30, 2014

"The Steep Cost of America’s High Incarceration Rate"

The title of this post is the headline of this recent Wall Street Journal commentary authored by Robert Rubin and Nicholas Turner. Here are excerpts:

One of us is a former Treasury secretary, the other directs a criminal-justice institute. But we’ve reached the same conclusions.  America’s overreliance on incarceration is exacting excessive costs on individuals and communities, as well as on the national economy. Sentences are too long, and parole and probation policies too inflexible.  There is too little rehabilitation in prison and inadequate support for life after prison.

Crime itself has a terrible human cost and a serious economic cost.  But appropriate punishment for those who are a risk to public safety shouldn’t obscure the vast deficiencies in the criminal-justice system that impose a significant drag on the economy....

[Mass incarceration] is not only a serious humanitarian and social issue, but one with profound economic and fiscal consequences.  In an increasingly competitive global economy, equipping Americans for the modern workforce is an economic imperative. Excessive incarceration harms productivity.  People in prison are people who aren’t working.  And without effective rehabilitation, many are ill-equipped to work after release.

For the more than 600,000 people who leave prison and re-enter society every year, finding employment can be a severe challenge.  Prison time carries a social stigma, which makes finding any job, let alone a good job, all too difficult....

The costs of incarceration extend across generations.  Nearly three million American children have a parent in prison or jail.  Growing up with an incarcerated parent can harm childhood development.  Research by Pew shows that children with fathers who have been incarcerated are nearly six times more likely to be expelled or suspended from school. Incarceration therefore helps perpetuate the cycle of family poverty and increases the potential for next generation criminal activity....

Model programs are being piloted at the state level. For example, the Vera Institute of Justice’s Pathways from Prison to Post-Secondary Education project is working with more than 900 students in 14 prisons.  The program provides college classes and re-entry support such as financial literacy training, legal services, employment counseling and workshops on family reintegration.  A 2013 meta-analysis by RAND has already found that recidivism decreases when a former inmate graduates from college, which also boosts lifetime earning potential.

And clearly, we need significant sentencing and parole reform.  There is widespread bipartisan agreement that we are using prison for too many crimes and for too long, with concentrated effects in many communities.  One possibility for reform is the Smarter Sentencing Act, introduced by Democratic Sen. Dick Durbin and Republican Sen. Mike Lee, which boasts 30 co-sponsors and was successfully reported out of the Senate Judiciary Committee this spring.  The bill’s House companion also enjoys strong bipartisan support. There are also examples of progress in statehouses around the country.  In 2013, 35 states passed bills to change some aspect of how their criminal justice systems address sentencing and parole; since 2009, more than 30 states have reformed existing drug laws and sentencing practices, according to reports from Vera this year.

The time has come to make sensible reform in these four areas — sentencing, parole, rehabilitation and re-entry — a national priority.  Doing so could accomplish a tremendous amount for families, communities and the U.S. economy.

December 30, 2014 in Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Sunday, December 21, 2014

"U.S. Incarceration: Still Mass; The shrink-the-prisons movement hasn’t moved the numbers."

The title of this post is the headline of this basic analysis at The Marshall Report on the latest official BJS incarceration data (noted previously here).  Here are excerpts:

New Bureau of Justice Statistics figures out this morning measured a slight decrease — about half of a percent — in the number of adults incarcerated in the United States last year.  The decline comes from a drop in inmates of local jails. The number of people in local jails last year fell by almost 2 percent — to 731,200.  At the same time, despite a growing national concern with the costs and consequences of mass incarceration, the number in prisons grew a tiny bit, one-third of a percent from the previous year, to 1,574,700.

The increase in the prison population comes entirely from state facilities — reversing a three-year downward trend.  The number of inmates in federal prisons actually declined for the first time since 1980.

There are real lives behind these numbers: every percentage point accounts for approximately 22,200 people.  But the rate of change is almost negligible. If the nation’s incarcerated adult population continued to decrease at this pace, it would take 215 years — until 2228 — to drop below the number of adults incarcerated in 1985.

Looking at changes over the long term, the number of inmates in jails and prisons is down from 2010, but remains up more than 14 percent from what it was at the turn of the century.

Recent related post:

December 21, 2014 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Friday, December 19, 2014

New BJS data show continued (very) slow decline in correctional populations in US

This official press release from the Bureau of Justice Statistics, which carries the heading "U.S. Correctional Population Declined By Less Than 1 Percent For The Second Consecutive Year," provides highlights from the latest official accounting of who is subject to criminal justice control in the United States. Here are some of the details:

The number of persons under adult correctional supervision fell by 41,500 persons during 2013, dropping to 6.89 million by yearend, the Bureau of Justice Statistics (BJS) announced today. The decline in the correctional population (down 0.6 percent) was less than 1 percent for the second consecutive year.

By yearend 2013, the number of persons under adult correctional supervision was the smallest number observed since 2003. About 7 in 10 offenders under adult correctional supervision were supervised in the community on probation (3.91 million) or parole (853,200) at yearend 2013, compared to about 3 in 10 incarcerated in state and federal prisons (1.57 million) or local jails (731,200).

The entire drop in the correctional population during 2013 was due to a decline in the number of probationers (down 32,100) and persons held in local jails (down 13,300). The parole population (up 2,100) and prison population (up 4,300) increased, partially offsetting the overall decline in the total correctional population.

While the U.S prison population increased during 2013, the number of inmates under the jurisdiction of the Federal Bureau of Prisons decreased (down 0.9 percent or 1,900) for the first time since 1980. The growth in the U.S. prison population was attributed to the increase in the number of inmates under the jurisdiction of state prisons (up 0.5 percent or 6,300).

About 1 in 35 adults in the United States (or 2.8 percent of the adult resident population) was under some form of correctional supervision at yearend 2013. This rate was unchanged from 2012, when it dropped to the lowest rate observed since 1997. About 1 in 51 adults was on probation or parole at yearend 2013, compared to 1 in 110 incarcerated in prisons or local jails....

In 2013, females accounted for almost 25 percent of the probation population, up from about 22 percent in 2000. They made up 14 percent of the jail population in 2013, up from about 11 percent in 2000. The percentage of females on parole or incarcerated in state or federal prisons remained unchanged between 2000 and 2013. Since 2010, the female jail population has been the fastest growing correctional population, increasing by an average annual rate of 3.4 percent.

The full report with all these data and a whole lot more it titled simply "Correctional Populations in the United States, 2013," is available at this link.

December 19, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Monday, December 15, 2014

Former Virginia Gov McDonnell facing significant (trial?) penalty in his federal guideline calculation

This recent article from the Washington Post, headlined "Early federal sentencing recommendation for McDonnell: At least 10 years in prison," spotlights the seemingly severe sentence recommended by the federal sentencing guidelines for a former Governor's corruption.  Among other notbale aspects of this high-profile sentencing story is the fact that former Virginia Gov Bob McDonnell is now facing a guideline sentencing range that is more than three to four times longer than the longest possible sentence he would have faced had he been willing to plead guilty on terms urged by federal prosecutors.  Here are the notable details at this stage of a developing high-profile sentencing story:

The guidelines recommended by the U.S. probation office are preliminary, and even if finalized, U.S. District Judge James R. Spencer is not required to follow them. But experts said that Spencer typically heeds the probation office’s advice, and judges in his district have imposed sentences within the recommendations more than 70 percent of the time in recent years. “It’s of critical importance,” said Scott Fredericksen, a white-collar criminal defense lawyer. “The fact is, the vast majority of times, courts follow those recommendations closely.”

The matter is far from settled. The probation office recommended a punishment from 10 years and a month to 12 years and 7 months. Calculating an appropriate range of sentences in the federal system is a complicated, mathematical process that takes into account a variety of factors, including the type of crime, the defendant’s role and the amount of loss. The judge has yet to see the arguments from each side.

McDonnell and his wife, Maureen, were convicted in September of lending the prestige of his office to Richmond businessman Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury items. McDonnell is scheduled to be sentenced Jan. 6. His wife’s sentencing is scheduled for Feb. 20, and her guideline range is expected to be lower than her husband’s. The probation office has not yet filed a report concerning her.

It is unclear how the probation office determined that the former governor’s crimes necessitate a minimum decade-long sentence. The initial report on the matter is sealed, and people familiar with its contents revealed only the recommended range to The Washington Post.

The range is particularly notable because last December, prosecutors offered to let McDonnell plead guilty to just one count of lying to a bank as part of an agreement that would have meant he could be sentenced to three years in prison at the most and probation at the least. Importantly, though, McDonnell would have been required to sign a statement acknowledging that he helped Star Scientific, Williams’s dietary-supplement company, at the same time the businessman was giving him loot, fully shouldering blame for a relationship he has insisted was not criminal and was driven largely by his wife....

White-collar criminal defense lawyer Matthew Kaiser said McDonnell’s range probably was increased because he was a high-ranking public official, because he took more than one payment from Williams and because the total value of the gifts he received was so high. Kaiser said the probation officer also probably faulted McDonnell because his testimony was contrary to the jury’s verdict.

Prosecutors and defense attorneys will still have an opportunity to argue to the probation officer about whether the range was correctly calculated — although Kaiser said the probation office often “sticks to its guns.” After that, both sides can try to persuade Spencer to modify the recommended range.

Even then, Spencer is not bound by the guideline. Defense attorneys have already begun working vigorously in their bid to sway him toward leniency. This week, they won a legal skirmish with prosecutors so they can file additional pages in their sentencing memorandum — a key document outlining the sentence they believe McDonnell should receive and why. It is unclear whether their efforts to move Spencer away from the probation office’s recommended range will be fruitful.

In the Eastern District of Virginia, where McDonnell is being sentenced, judges imposed sentences within the guideline range more than 70 percent of the time last fiscal year, according to data from the U.S. Sentencing Commission. In about 21 percent of cases, they imposed sentences below the guideline range without a request from prosecutors to do so. Nationally, judges imposed sentences within the guideline range about 51 percent of the time last fiscal year and deviated downward without a request from prosecutors to do so in about 19 percent of cases.

In the McDonnell case, prosecutors are not expected to ask for a sentence below the guideline range.... Brian Whisler, a defense lawyer who used to work as a federal prosecutor in

Richmond, said that Spencer is known to be “largely deferential to the probation office and its sentencing calculations.” Whisler — whose firm, Baker & McKenzie, represented state employees in the McDonnell case — said the judge will likely draw on other cases in the district to inform his conclusion.

The outcome of those might not be to McDonnell’s liking. In 2011, another federal judge in Richmond sentenced former Virginia delegate Phillip A. Hamilton to 9.5 years in prison in a bribery and extortion case. In 2009, a federal judge in Alexandria sentenced former congressman William J. Jefferson to 13 years in prison for accepting hundreds of thousands of dollars in bribes — though, notably, that fell well short of the recommended range of 27 to 33 years.

December 15, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (1) | TrackBack