Monday, April 14, 2014
Would embrace of "judicial corporal punishment" help remedy mass incarceration?
The question in the title of this post is prompted by this provocative new commentary by John Dewar Gleissner and given the headline "Who is biased against prison and sentencing reform?". Here are excerpts:
Private prison companies and the guards’ labor unions are biased, of course. Politicians do not wish to appear soft on crime. Some communities need the jobs prisons provide. The public is biased about crime generally, and believes crime rates are going up when they are actually declining. Many want prison to be horrible. Who can blame crime victims? Taxpayers dislike money going to prisons. Law-abiding people do not have much in common with prisoners. Businesses don’t sell much to prisoners. Prison industries lose money and cannot succeed with government control.
The media prefer sensational stories about egregious criminal behavior. Once the offender is sentenced, the story usually ends. Prisoners do not have access to the internet.
Incarceration is hidden from the eyes of the people, harmful to the morals of prisoners and expensive. Cultural, generational and religious bias prevent us from crediting our ancestors or other countries with effective crime-control techniques....
Attacking the supply of illegal drugs did not work. The costs of fully supporting 2.3 million inactive welfare recipients, America’s prisoners, finally caught our attention. The Constitution is the standard in conditions of confinement litigation. But when the Constitution was adopted, massive incarceration as we now know it did not exist. Back then, judicial corporal punishment was constitutional; it was approved of or used by all the presidents carved into Mt. Rushmore.
Incarceration is all Western civilization has known for several generations. As the death penalty declines, most of us think of prison as the nearly exclusive serious punishment method. Criminal justice systems focus on the single, inflexible, expensive and inexorable dimension of time. Most Americans are shocked by the idea of judicial corporal punishment, which is invariably depicted as cruel, perverted or unjust in movies and TV.
Science proves that rehabilitation, restitution and deterrence are not often achieved by lengthy incarceration. But some violent offenders deserve their long prison sentences. Prisons will not be abolished. Real bad folks need to stay behind bars.
We think society moves forward. Reformers are supposed to be “forward-looking.” Belief in continual social progress ignores history. Society periodically degenerates into barbarism, disorganization, bankruptcy, genocide, war and revolution. Scientific study of changed values sometimes takes decades before conclusions are reached and legislation enacted. Our belief in social progress is accompanied by rejection of biblical principles in favor of unproven secular values.
We do not often enough look in the Bible for answers. If we did, the relatively simple solution to ending massive incarceration would be obvious: Deuteronomy 25:1-3. We could cut the American prison population in half. Modern behavioral and neurological science can and would confirm the superior effectiveness of traditional judicial corporal punishment. Believe it or not, judicial corporal punishment was largely abolished in the U.S. because it was too effective.
Judicial corporal punishment is in public, less expensive, much faster and repeatable. Its last use in the United States was to punish wife-beating without diminishing family income. In The Collapse of American Criminal Justice, Harvard law professor William J. Stuntz wrote, “Today's would-be reformers would do well to … consider the possibility that the best models for productive change may not come from contemporary legislation or court decisions, but from a past that has largely disappeared from our consciousness. Sometimes, the best road forward faces back.”
Friday, April 11, 2014
"Abandoned: Abolishing Female Prisons to Prevent Sexual Abuse and Herald an End to Incarceration"
The title of this post is the title of this intriguing new article by David Frank now available via SSRN. Here is the abstract:
Because the U.S. is unable to prevent widespread sexual violations of incarcerated women, it should apply the prescriptions of a recent U.K. female prison abolitionist movement as the most effective and humane solution to the problem.
Part I of this article examines the mass incarceration, composition, and sexual victimization of U.S. female prisoners. Part II evaluates the most recent attempt to stop the sexual victimization of U.S. prisoners under the Prison Rape Elimination Act. Part III presents the U.K. abolitionist solution and the small, though notable, consensus of support that developed around it. Part IV contends that, because neither the Prison Rape Elimination Act nor any previous law has adequately protected prisoners from sexual abuse, the incarceration of women is unconscionable when adequate prison alternatives of support programs and community care are available. This Part also argues against alternatives rooted in retaliation and violence. The article concludes with hope: it argues that the best response to chaotic brutality is not calculated brutality, but humanity.
Thursday, April 10, 2014
US Sentencing Commission to vote on reducing drug sentencing guidelines
As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Thursday, April 10, 2014, at 2:30 p.m." On the official agenda is "Vote to Promulgate Proposed Amendments," and as reported in this prior post, in January the USSC voted to publish proposed amendments to the federal sentencing guidelines that include an across-the-board reduction in the sentences recommended for all drug offenses.
I expect there will be some press reports about the USSC vote on the drug guidelines later today. In the meantime, this effective new PBS Frontline article headlined "Feds to Reconsider Harsh Prison Terms for Drug Offenders," provides some background and context:
The federal prison population has expanded by nearly 800 percent in the past 30 years, spurred in part by the increasing use of tougher sentences applied to nonviolent drug crimes. Now there’s a growing movement to scale it back. On Thursday, the U.S. Sentencing Commission, an independent federal agency, plans to vote on an amendment to sentencing guidelines that could ultimately begin to winnow the federal prison population, nearly half of whom are people convicted of drug offenses.
The amendment is part of a bipartisan push away from America’s addiction to incarceration, which prison reform experts say costs far too much, not only in dollars — $80 billion a year in 2010 — but also in the devastation primarily of African-American communities, who have been disproportionately caught up in the system.
The commission’s proposal would lower the sentencing guideline levels for drug-trafficking offenses, allowing judges to impose reduced sentences by about 11 months, on average, for these crimes. The guidelines are the range between which a judge can sentence an offender. Currently, those guidelines are set higher even than mandatory minimum sentences — the lowest possible sentence a judge could impose — to give prosecutors bargaining power. The amendment would set the upper and lower guideline limits around the mandatory minimums, leading to lower sentences for nearly 70 percent of drug-trafficking offenders, the commission said....
Prison reform advocates say the commission’s proposal is an incremental step, but an important one. “When you’re serving 10 years, six months can make a difference,” said Jesselyn McCurdy, an attorney with the ACLU’s Washington legislative office. “It’s incremental, but it’s all important because it sends the larger message that we have to do something about the harsh sentencing in the federal system.”
Should the Sentencing Commission’s amendment pass, it will be sent to Congress, which will have 180 days to make any changes. If it does nothing — which is the likely outcome given bipartisan Congressional support for the proposal — the resolution will take effect on Nov. 1.
For years, states, which carry the bulk of U.S. prisoners, have taken the lead on sentencing reform — largely out of necessity. Struggling with stretched budgets and overflowing prisons, 40 states have passed laws that ease sentencing guidelines for drug crimes from 2009 to 2013, according to a comprehensive analysis by the Pew Research Center. Seventeen states have invested in reforms like drug treatment and supervision that will save about $4.6 billion over 10 years, according to the Justice Department.
Such reforms also have gained popular public support. According to Pew’s own polling, 63 percent of Americans say that states moving away from mandatory minimum sentencing is a “good thing,” up from 41 percent in 2001. Even more — 67 percent — said that states should focus on treatment, rather than punishment, for people struggling with addiction to illegal drugs....
The Sentencing Commission itself notes that substantial reform requires action by Congress. “Our proposed approach is modest,” said Patti Saris, the commission’s chairwoman. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...
The Senate is currently considering a bill called the Smarter Sentencing Act, a bipartisan bill introduced in July 2013 by Sen. Richard Durbin (D-Ill.) and Sen. Mike Lee (R-Utah). It wouldn’t abolish mandatory minimums, but it would allow judges to impose more lenient sentences for certain non-violent drug offenses. “Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said when introducing the bill, adding that the act “takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”...
But the bill, which even the senators acknowledged as “studied and modest” on their website, doesn’t have great odds of passing. According to govtrack.us, a nonpartisan website that tracks congressional legislation, the Smarter Sentencing Act has only a 39 percent chance of being enacted.
Some recent related posts:
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- Notable talk of sentencing reform at CPAC conference
- Effective Heritage analysis of federal MMs and statutory reform proposals
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
- Previewing what AG Holder will say about drug sentencing to US Sentencing Commission
UPDATE: This press release reports that, as expected, the USSC voted today to reduce the federal guidelines for all drug offenses. Here is an excerpts from the press release:
The Commission voted unanimously to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types. The drug guidelines under the amendment would remain linked to statutory mandatory minimum penalties. The Commission estimates that approximately 70 percent of federal drug trafficking defendants would qualify for the change, with their sentences decreasing an average of 11 months, or 17 percent, from 62 to 51 months on average.
The Commission this year has prioritized addressing federal prison costs and capacity with a continued commitment to public safety. The Commission estimates that the amendment reducing drug guidelines would reduce the federal prison population by more than 6,500 over five years, with a significantly greater long-term impact.
“This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner,” said Judge Patti B. Saris, chair of the Commission. “Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.”
In addition, the Chair of the USSC made a statement in conjunction with today's vote, which is now available here via the USSC's website. The interesting three-page statement concludes with this interesting paragraph concerning possible retroactive application of the proposed new guidelines:
Over the next few months, the Commission will be studying the issue of whether the drug amendment should apply retroactively, which we are statutorily required to do. This is a complex and difficult issue, and requires a different analysis than the decision we have made today about reducing drug sentences prospectively. The Commission will take into account, as it always does when considering retroactivity, the purposes of the amendment, the magnitude of the change, and the difficulty of applying the change retroactively, among other factors. I know the Commission will carefully consider this issue, and many stakeholders will have strong views. I do not know how it will come out, but we will carefully review data and the retroactivity impact analysis we have directed staff to conduct as well as public comment in order to ensure that we weigh all perspectives.
Notable NY Times op-ed asks "What is prison for?"
The new Marshall Project's editor in chief, Bill Keller, has this lengthy op-ed in this morning's New York Times under the headline "College for Criminals." There is much of note in the op-ed, and I found these closing paragraphs especially intriguing:
Considering that the United States is the world’s leading warden, we should be able to answer with some conviction this question: What is prison for?
First, punishment, although it is often demeaning, brutal, psychologically debilitating and wildly disproportionate to the offense. Second, public safety. Social scientists argue about how much of our recent decline in crime is attributable to a surge in incarceration (I’ve heard estimates from 3 percent to 30 percent). But common sense says at least some of it is.
Third, rehabilitation. The bureaucracies that run prisons are called departments of “corrections” for a reason. This is at least as important as the first two purposes, because nearly 95 percent of the incarcerated are eventually released back into society.
Alas, nearly half of those released are returned to prison within three years for committing new crimes. Clearly we are not doing a good job of “correcting.”
This is not a bleedingheart cause. Leading conservatives and red state politicians have supported prison college programs as a matter of public safety and fiscal prudence. A RAND metaanalysis of 58 studies concluded that inmates who participated in these programs were 43 percent less likely to return to a life of crime; even assuming that the most redeemable inmates are the likeliest to sign up, this is an incredible return on a modest investment. Moreover, wardens and prison guards believe such programs lower the explosive tensions in prison.
Yet while 76 percent of prisons in the country offer high school diploma programs, only a third offer college degrees, which are, more than ever, a prerequisite for decent jobs. Education programs are among the first things to go in a recession. Now — when the economy is in slow recovery, the crime rate is relatively low, and there is an emerging national awareness that our way of punishment wastes money and lives — should be an opportune time to expand inmate education. But it has to be sold, not sprung without groundwork.
Experts who have studied the American way of crime and punishment far longer than I have tell me, to quote Michael P. Jacobson, a veteran corrections official who heads a public policy institute for the City University of New York, that they see “almost a complete disconnect between what we know and what we do.”
“The influence of highprofile crimes, fear of crime, issues of race, the acquisition of cheap political capital — all have had far more influence on criminal justice policy than what we know works, or what is fair or just,” Mr. Jacobson told me.
Governor Cuomo is now trying to rally private donors to underwrite his college program for a year, with an understanding that he will get the state to take over in Year 2. Let’s hope. But apparently the inmates of Sing Sing and Attica are not the only ones in need of correction.
Wednesday, April 09, 2014
Reviewing how US prisons now serve as huge warehouses for the mentally ill
This MSNBC article, headlined "Prisons are the ‘new asylums’ of the US: Report," effectively summarizes a new study documenting that that US prisons now "house ten times more people with mental illnesses than its hospitals." Here is more:
The report, released Tuesday by the Treatment Advocacy Center, found that state prisons and county jails house approximately 356,268 people with mental illnesses, while state mental hospitals hold only 35,000. The disparity is also a nationwide problem – only six states have psychiatric hospitals with more people in them than a prisons or jail.
Prisons, according to the report, have become the nation’s “new asylums.” The number of beds available at hospitals for mental health patients has been dropping for decades. And as the population of incarcerated people has exploded, so has the number of people with serious problems....
The report provided a breakdown of the number of mentally ill prisoners in each state’s correctional facilities, the laws governing treatment, and examples of how inmates are treated. Among others, they include a Mississippi prison designed for mentally ill inmates, overrun by rats, where some prisoners capture the rats, put them on makeshift leashes, and sell them as pets to other inmates. There was also a case in which a schizophrenic man spent 13 of 15 of his years in prison in solitary confinement....
“Inmates who linger untreated in jails and prisons become increasingly more vulnerable to their symptoms and the resulting victimization or violence,” the report read. Dr. E. Fuller Torrey, founder of the Treatment Advocacy Center and lead author of the study, said in a statement, “The lack of treatment for seriously ill inmates is inhumane and should not be allowed in a civilized society.”...
The report’s authors admit that reducing the number of mentally ill inmates in jails would have to come along with a massive recommitment to high-quality mental health care in hospitals – a tall order in this age of austerity. In the interim, they advocate for more outpatient treatment and jail diversion programs, as well as more planning, both when inmates enter the system and leave it.
The full report released by the Treatment Advocacy Center is titled "The Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey," and it can be accessed in full at this link.
Fourth Circuit deepens (via dramatic split opinion) circuit split over fixing sentencing problems via 2255 motions
Though one needs to be a hard-core federal sentencing or habeas aficionado to really enjoy all the action, even casual fans may want to check out the extraordinary work of a Fourth Circuit panel yesterday in Whiteside v. US, No. 13-7152 (4th Cir. Apr. 8, 2014) (available here). Excerpts from the three separate opinions provides a flavor of all the action, but a full read is needed to understand and appreciate the passion that is reflected in the passages quoted below.
To begin, writing for the panel majority, Judge Gregory explains the legal basics at the outset:
This case presents the question of whether a federal inmate may use a 28 U.S.C. § 2255 motion to challenge a sentence that was based on the career offender enhancement under the United States Sentencing Guidelines when subsequent case law reveals the enhancement to be inapplicable to him. We find that he may, and in doing so hold that the mistake results in a fundamental miscarriage of justice that is cognizable on collateral review. For the reasons stated below, we grant a certificate of appealability, vacate the petitioner’s sentence, and remand the case for resentencing.
More than 30 pages later comes a concurring opinion by Judge Davis that runs only two pages, but effectively highlights the heart of the issues splitting this panel (and the circuit courts more generally). Here is an excerpt:
I am pleased to join Judge Gregory’s extraordinarily compelling opinion, which fully responds to the dissent’s overwrought and formalistic protestations that our judgment here presages an end to law as we know it. (Evidently, it is not enough simply for the dissent to say that there is no miscarriage of justice shown on this record.)
The dissenting opinion is hopelessly pleased with itself. This is not surprising, as it prostrates itself at the altar of finality, draped in the sacred shroud of judicial restraint....
In any event, what’s remarkable is that, as viewed through the lens of our good friend’s dissenting opinion, it is perfectly fine for the United States Department of Justice, which is to say the Executive Branch, to bypass supposed reverence for finality on a case-by-case basis, through waivers of limitations and other devices, see ante, Maj. op., n.6, but the Third Branch is duty-bound never to acknowledge instances in which law’s interest in finality must give way to competing values rooted in our shared abhorrence of manifest injustice. To devolve to the Executive Branch sole authority to identify a cognizable miscarriage of justice amounts to judicial abdication, not judicial restraint. Such an approach enjoys no legitimate place in our scheme of institutional checks and balances. The Third Branch’s transcendent role, in our enviable but imperfect system of criminal justice, is to afford protection from the loss of individual liberty resulting from profoundly erroneous decision-making, and not least of all, erroneous decision-making by the Third Branch itself, as in this very case.
The dissenting opinion favors what’s “finished” over what’s “right” and thereby blinks at a profound miscarriage of justice. It is wrong to do so.
Finally, Judge Wilkinson provides an addition 30+ pages to explain his views about why the panel majority gets this matter so very wrong. Here is how his lengthy opinion starts and ends:
Deangelo Whiteside was properly designated a career offender in the course of his federal sentencing proceedings. Now, years later, the majority vacates that sentence. In invalidating Whiteside’s sentence, the majority creates a circuit split over whether career-offender designations are cognizable on collateral review, and ignores settled law as to whether changes in circuit precedent can reset the statute of limitations for post-conviction review of federal criminal proceedings. The majority opinion represents a dramatic expansion of federal collateral review that is unsupported by law or precedent. It makes a shambles of the retroactivity doctrines that have long safeguarded the basic finality of criminal convictions. It disrupts the orderly administration of our criminal-justice system....
The Great Writ stands for the fundamental proposition that government too is subject to the given law. Here the government observed the law; it is, sadly, a court that accords no meaning to that fact. How is it that requiring someone to serve a sentence lawfully imposed and constitutionally rendered becomes a “plain injustice” and a “fundamental unfairness”? Maj. Op. at 29. This path vindicates no fundamental liberty. It only transforms collateral review into a double of direct review, a redundant mechanism for routine error correction, deployed to unsettle sentences that were imposed years earlier under governing law, in accordance with unexceptionable procedure, and by a sovereign acting in accordance with its sovereign duty to protect citizens from those who repeatedly violate its criminal laws.
For the aforementioned reasons, and because I view this decision as wholly wrong and deeply damaging to our criminal-justice system, I respectfully dissent.
Tuesday, April 08, 2014
"Imprisonment Inertia and Public Attitudes Toward 'Truth in Sentencing'"
The title of this post is the title of this intriguing new paper by Michael O'Hear and Darren Wheelock now available via SSRN. here is the abstract:
In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong.
In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the authors conducted public opinion surveys of hundreds of Wisconsin voters in 2012 and 2013 and report the results here. Notable findings include the following: (1) public support for TIS is strong and stable; (2) support for TIS results less from fear of crime than from a dislike of the parole decisionmaking process (which helps to explain why support for TIS has remained strong even as crime rates have fallen sharply); (3) support for TIS is not absolute and inflexible, but is balanced against such competing objectives as cost-reduction and offender rehabilitation, (4) a majority of the public would favor release as early as the halfway point in a prison sentence if public safety would not be threatened, and (5) a majority would prefer to have release decisions made by a commission of experts instead of a judge.
Monday, April 07, 2014
"Billion Dollar Divide: Virginia's Sentencing, Corrections and Criminal Justice Challenge"
The title of this post is the title of a new report by the Justice Policy Institute, which was released last week, is available here, and is summarized via this press release. Here are excerpts from the press release:
As Virginia lawmakers consider a budget that would see corrections spending surpass a billion dollars in general funds, a new report points to racial disparities, skewed fiscal priorities, and missed opportunities for improvements through proposed legislation, and calls for reforms to the commonwealth’s sentencing, corrections and criminal justice system.
According to Billion Dollar Divide Virginia’s Sentencing, Corrections and Criminal Justice Challenge, ... while other states are successfully reforming their sentencing laws, parole policies and drug laws, Virginia is lagging behind and spending significant funds that could be used more effectively to benefit public safety in the commonwealth....
According to the report, approximately 80 percent of the corrections budget is being spent on incarcerating people in secure facilities, while only about 10 percent of the budget is spent on supervising people in the community. Put another way, in 2010 for every dollar the Commonwealth of Virginia spent on community supervision, it spent approximately $13 on costs for those incarcerated. Other states have a better balance between prison spending, and supporting individuals in the community.
"Taxpayers' wallets – and more important, people's lives – are in jeopardy," said Marc Schindler, executive director of JPI. "Instead of planning to spend more than $1 billion on an ineffective corrections system, Virginia should be looking to policies that are being implemented successfully in other states to make wiser use of precious resources and get better public safety outcomes.”...
The report describes challenges facing Virginia’s sentencing, corrections and criminal justice system, including:
- Worrisome racial and ethnic disparities in how the state deals with drugs and drug crimes: African Americans make up approximately 20 percent of the Virginia population, but comprise 60 percent of the prison population, and 72 percent of all people incarcerated for a drug arrest. JPI has compiled information for the largest Virginia cities and counties that show the disparities in drug enforcement, and the latest data show Virginia’s drug arrest rates on the rise;
- More people serving longer sentences and rising length-of-stay: The changes to Truth-in-Sentencing enacted in the 1990s eliminated parole, and reduced access to earned-time and good-time credits. The commonwealth has added more mandatory minimums that have lengthened prison terms, and about one quarter of all of Virginia’s mandatory minimum sentences involve drug offenses. Between 1992 and 2007, there has been a 72 percent increase in individuals serving time for drug offenses. There has also been a substantial and very expensive increase in the number of elderly individuals incarcerated in Virginia, despite strong evidence that these individuals pose little threat to public safety....
Saturday, April 05, 2014
Dueling sentencing reform perspective from Heritage and Crime & Consequences blogs
Two recent posts from two notable blogs are worthwhile weekend reads as the debate over federal sentencing reform continues to heat up in Congress. First, via Heritage, this post by Israel Ortega asks "Can We Get Some Americans Out of Jail?" and includes these sentiments:
An unlikely alliance is forming between conservatives and liberals rightly asking whether it makes sense that America has the highest incarceration rate in the world.... Besides the tremendous cost of housing an inmate in a maximum-security federal prison — pegged at around $33,000 per year — the sheer volume of the U.S. prison population warrants a closer look....
[I]t’s encouraging to see senators from both sides of the aisle pursuing sentencing reform. Introduced by Senators Dick Durbin (D-Ill.) and Mike Lee (R-Utah), the Smarter Sentencing Act is proof that there are legislators from both political parties who are ready to have a fact-based and policy-driven discussion on sentencing reform without the fear of being branded “soft on crime.”
If done right, sentencing reform would not only save American taxpayers millions each year, but it would also free up resources to focus on prevention and rehabilitation — an approach that is working in places like Texas.... In Texas, which incarcerates more people than any other state, lawmakers have adopted alternatives to prison, such as drug courts and improved community supervision programs, that help keep people from reoffending. The result has been a steady decline in the prison population and the closing of three state prisons, even as crime rates go down.
Mississippi’s governor just signed a sentencing reform bill this week that was praised by Texas Governor Rick Perry (R). These are the kinds of innovation we need — and the kinds of programs that truly help people turn their lives around.
But, via Crime and Consequences, this post by Bill Otis explains "Why the Feds Can't Just Copy State Prison Population Reductions" and includes these sentiments:
The increased use of incarceration has accounted for about a quarter of the decline in crime. What that means is that about three quarters of the decline is attributable to other factors (things such as hiring more police and improved and proliferating private security measures). When three quarters of the factors responsible for the decrease in crime are still on-going, crime is very likely to continue to decrease. What reducing the prison population will do, by putting recidivist criminals back on the street, is slow the rate of the decrease. And that is, in fact, what's been happening. As some large states have been marginally lowering their prison populations, crime has continued to decease, but at a slower rate....
To the extent we have more recent data, they come from California, the state laboring under the effects of the Plata decision, ordering it to make substantial cuts to its prison population. Accordingly, and because of its very large size to begin with, California has had a greater reduction in its prison population than any other state. Result: property crime is up, I believe by 7%.
Even if prison reduction programs work for the states, they are not going to work for the feds. The feds prosecute precisely the kind of drug gangs, and drug offenders, who are the most violent, the most entrenched, and the most prone to recidivism. The kind of offender you see coming out of the county courthouse is a choir boy compared to what you see coming out of the federal courthouse.
Persons very familiar with crime and punishment data know that there are some questionable claims and concerns set forth in both these postings. But they should also appreciate that these piece provide two good examples of the nature and tenure of the modern sentencing reform debate.
Friday, April 04, 2014
"Should T.J. Lane's 3 life sentences get another look from the appellate court?"
The title of this post is the question in the headline of this local editorial discussion of a high-profile school shooter who might be the type of juvenile murderer that even the US Supreme Court would conclude can be given a juvenile LWOP sentence. Here are a few excerpts:
The lawyer for Chardon High School shooter T.J. Lane wants an appellate court to overturn Lane's three consecutive life sentences for the 2012 shootings in which three students died and three were wounded on the grounds that the sentencing judge didn't explicitly consider Lane's age — 17 at the time of the crime — as a mitigating factor in the sentencing. A recent Ohio Supreme Court ruling in another case said a judge must specifically address the age of a juvenile defendant when sentencing a youth to life without parole. Geauga County prosecutors say the appeal is frivolous because Geauga County Common Pleas Judge David Fuhry was well aware of Lane's age throughout the proceedings and that his age also featured prominently in the many reports on T.J. Lane's psychological state and life going back to kindergarten that Fuhry had before him at sentencing.
Does Lane's lawyer raise a valid point or should the three life sentences stand? Editorial board members share their thoughts on this case...
Thomas Suddes, editorial writer: The appeal of T.J. Lane's sentencing is a perfect example of why so many Ohioans, like Charles Dickens' Mr. Bumble, think "the law is a ass — a idiot." First, Lane pleaded guilty to killing three students, and wounding three others, in Chardon High School's cafeteria. His guilty plea is a fact. There is no question about his guilt, no doubt his guilty plea was voluntary. Those, too, are facts. Second, Lane's sentence — three consecutive life terms in prison without parole — was, is, eminently just. Third, unless an Ohioan was on Mars, virtually everyone who knew of the Chardon murders, and just about everybody in Ohio did know about them, also knew that Lane was 17 when he embarked on his homicidal rampage....
The facts of the sentencing that resulted from the Cincinnati case are whatever those facts are. But no rational bystander can claim that Fuhry was unaware of, or failed to take into account, Lane's age when he murdered. Everyone charged with a crime is entitled to a vigorous legal defense, but given the facts of the Lane case, and his guilty plea, this appeal represents the privileging of form over substance. In Lane's case, justice was done. And justice was seen to be done. And justice requires the dismissal of this appeal.
Kevin O'Brien, deputy editorial page editor, The Plain Dealer: Age is an arbitrary measure that often comes into play in the law. People under 21 cannot legally consume alcohol — a rule made based on the supposition that allowing otherwise would be detrimental to social order. T.J. Lane’s lawyer is making a general argument about 17-year-olds that doesn’t fit the specifics of his client’s case. Lane knew what he was doing in the school cafeteria, and he certainly was aware that it was wrong. He knew what he was doing at his sentencing hearing, when he wore his disgustingly boastful T-shirt. He is a cowardly assassin who, far from showing any remorse, has gone out of his way to compound the emotional hurt to his victims’ loved ones. He is right where he belongs, and three consecutive life sentences are perfectly appropriate.
Elizabeth Sullivan, opinion director, Northeast Ohio Media Group: Judges should consider a young offender's age when sentencing someone to life in prison without any possibility of parole. The Ohio Supreme Court is absolutely right about that, and if any judge fails to do so, he or she should be challenged on it. But it seems the most trivial of technicalities to suggest that Judge David Fuhry in Geauga County didn't consider T.J. Lane's age simply because he didn't explicitly reference it in his sentencing decision. Lane's age was a factor throughout this case, whether or not the judge spoke to it during sentencing. That's why this appeal is likely going nowhere. And if the appellate court takes a second look, what then? Two consecutive life terms instead of three? All the data before the judge at the time of sentencing pointed to the fact that T.J. Lane, a clearly disturbed and dangerous young man, should be locked up for life.
Christopher Evans, editorial writer, Northeast Ohio Media Group: The cold-blooded executions of three Chardon High School students and the wounding of three others, the lack of remorse and the contempt for the families, the community and the justice system made Lane ageless. He wasn't 17. He was psycho. The smirk, the handwritten "Killer" T-shirt — which mirrored the one he wore when he opened fire in the school cafeteria — and his offensive comments to the packed courthouse all speak to that. Lane earned every minute of those three life sentences for the three lives he took. But we're better than T.J. Lane. Reduce his sentence to two life sentences without parole. I can live with that.
Prior related post:
- Is TJ Lane eager to be the "uncommon" juvenile murderer who can constitutionally get an LWOP sentence?
Tuesday, April 01, 2014
Forecasting the uncertain present and future of federal legislative sentencing reform
Writing for CQ Weekly (which calls itself the "definitive source for news about Congress") John Gramlich has this fascinating and lengthy new article about the state of federal sentencing reform efforts. The piece is headlined "The Prison Debate, Freshly Unlocked," and here are excerpts from a piece that merits a full read:
A bipartisan Senate coalition intent on shrinking the swollen federal prison population will see its toughest test yet in the weeks ahead. Party leaders face the delicate task of shepherding legislation through a politically charged chamber that could ease punishment for tens of thousands of felons — in an election year, no less.
The political stakes, particularly for Democrats, are substantial. Control of the Senate is up for grabs in November and if Majority Leader Harry Reid of Nevada presses forward with a debate over crime and punishment, he could force members of his own caucus to cast difficult votes on a subject that has haunted the party in the past. Many vulnerable Democrats want to focus on jobs rather than softening criminal penalties.
Despite the risks, it’s clear that Congress is closer than it has been in decades to slowing the growth of the federal prison population, which has ballooned to about 216,000 today from 25,000 in 1980. Overhaul supporters have covered their bases, building consensus and deliberately pushing legislation through the committee process. But floor consideration will pressure any cracks in the coalition, given lingering reservations from influential lawmakers in both parties and opposition from prosecutors, which could stoke public fears about crime.
Reid has two bills on his slate, both of which would cut criminal penalties for a broad cross-section of federal offenses. One would slash mandatory minimum sentences for some drug offenders by as much as 60 percent and give judges more leeway to impose lighter penalties than those set out in statute. It also would allow crack cocaine users and dealers who were sentenced under a system that Congress abolished in 2010 to seek shorter sentences retroactively.
The other measure would allow as many as 34,000 currently incarcerated inmates — more than 15 percent of the federal correctional population — to leave prison early, provided they successfully complete rehabilitation programs first.
Both bills have support from opposite ends of the ideological spectrum, further undermining the decades-old caricature of party orthodoxy on criminal justice: that Republicans are “tough on crime” while Democrats are “soft.”...
Predicting the outcome of an election year Senate debate about criminal justice is not easy. Reid is still weighing whether to bring the legislation up in a year in which his party is at risk of losing control of the Senate for the first time since 2007.
And even if legislation passes the Senate, finding a path through the House is more difficult. The House Judiciary Committee has set up a task force to examine sentencing and prison population issues. But House leadership has, so far, shown no interest in taking up companion bills to the Senate measures. House Judiciary Chairman Robert W. Goodlatte, a Virginia Republican, said his panel “is taking a comprehensive look at the prison reform issue, and plans to continue its review over the next several months.”...
Lobbying from law enforcement organizations could still prove pivotal in this debate, particularly if it focuses on the specter of increased crime. The sentencing bill sponsored by Durbin and Lee has sparked notable opposition from the National Association of Assistant U.S. Attorneys, a prosecutors’ group that took the rare step of publicly breaking with Attorney General Eric H. Holder Jr. — their boss — to denounce the legislation and warn that it could endanger public safety....
Meanwhile, the Fraternal Order of Police ... has its own concerns about any proposals that might reduce time behind bars. The group is still evaluating both bills. “The argument that we hear most often for reducing the prison population is cost,” James Pasco, the executive director of the group’s legislative advocacy center, says. “Well, you know, the fact of the matter is if somebody commits a crime serious enough for lengthy incarceration, it’s at variance with common sense to suggest that’s not a good penalty just because it costs too much.”
“We have had conversations with the administration and we’ve had conversations with both sides in Judiciary, and they are aware of our apprehensions [about the bills],” Pasco added. “But the game really begins now.”
Bipartisan opposition from a handful of holdouts could make for speed bumps on the floor, if not outright problems. California Democrat Dianne Feinstein, a senior member of the Judiciary panel, warned that the early-release bill could endanger public safety because “we do not know the facts of any of the 34,000 inmates estimated to be affected by this bill.”
Judiciary Chairman Patrick J. Leahy, a Vermont Democrat, also withheld his support for the early-release bill by voting “present” in committee. Leahy expressed concerns that the measure, which would let lower-risk inmates earn credits allowing them to transfer from prison to halfway houses and other forms of supervision, could worsen “racial and socioeconomic disparities in our prison system” and place an unfunded mandate on the Bureau of Prisons by requiring the agency to do widespread risk assessments on the inmates it incarcerates.
Holder has endorsed the sentencing measure, but stopped short of endorsing the early-release proposal, telling the U.S. Sentencing Commission in March that it needs changes to make it “as good as it might be.”
The sentencing bill also faces likely amendments. In an interview with CQ Roll Call, South Carolina Republican Lindsey Graham said he and fellow Judiciary member Charles E. Schumer, a New York Democrat, are working on an amendment that would scale back some of the bill’s sentencing reductions.
Republicans, for their part, are divided about whether they want both measures to reach the floor at all. Tea-party-backed members such as Lee and Paul support both bills, but Cornyn and the ranking Republican on the Judiciary Committee, Charles E. Grassley of Iowa, represent the party’s establishment wing and support only the early-release measure. “If Sen. Reid would take up the prison reform legislation, I think then it has a good chance of passing. It’s got good, strong bipartisan support,” Cornyn, the Senate minority whip, says. “If they’re going to try to pair it with the sentencing reform, I think that’s a problem.”
In the Senate, where opposition from even a single member can stop legislation dead, Alabama Republican Jeff Sessions is still evaluating his options to oppose both bills. Sessions, another member of the Judiciary Committee and a former federal prosecutor who helped broker a new law in 2010 to reduce sentencing disparities between crack and powder cocaine offenses, voted against both of the new proposals in committee.
“One of the reasons people want to reduce sentences is because the crime rate is down,” Sessions said. “They think that just happened. But a fundamental reason is we enhanced enforcement, we enhanced the likelihood that you’d be apprehended and actually convicted, and we enhanced the penalties. I believe the changes in the law that they have proposed are larger and more impactful than the sponsors fully realize.”
Though I sincerely hope I am very wrong, I take away one fundamental message from this story (aided, in part, by reading between the lines): the real chance of passage of any significant federal sentencing or prison reform legislation this year seems slim, at best.
Monday, March 31, 2014
Is it time for AARP to get active in policy debates over sentencing and prison reforms?
The (provocative) question in the title of this post is prompted by this lengthy article from a local Pennsylvaia paper under the headline, "Older criminals present challenges for prisons, courts; Our population is getting grayer everywhere, including behind bars." I have seen and highlighted a number of these article in the past, and often they appear in a series of articles about state prison policies and reform. But this lengthy article is within a series of articles called "Coming of Age" addressing a range of issues facing a greying baby-boom population.
It is surely a sign of the modern mass incarceration times that a series about growing old includes a lengthy article about growing old in prison. And here are excerpts from the piece:
Older prison inmates are more likely to have chronic illnesses and mental conditions that require special treatment, and moving them through the court system can be a complicated balancing act on the scales of justice.
At the Bucks County Correctional Facility in Doylestown Township, 7.5 percent of the population — about 89 prisoners — are 65 and older. There is no special cell block for the elderly, although some prisoners who are especially frail may be placed in protective custody, said William Plantier, Bucks County’s director of corrections....
Most of Pennsylvania’s state correctional institutions house elderly inmates. All have wheelchair-accessible cells and showers that can accommodate people with disabilities. Inmates with medical conditions that require elaborate care are sent to SCI Laurel Highlands, a minimum security prison located about 70 miles southeast of Pittsburgh.
Built on the site of a former state hospital, Laurel Highlands is set up like a medical facility. Inmates receive treatments like kidney dialysis and chemotherapy, and staff members have been trained to treat chronic illnesses such as Alzheimer’s disease and other forms of dementia. Laurel Highlands has 15 dialysis chairs. Before the facility opened in 1966, inmates had to be transported to outside clinics for treatment. “We’re saving a ton of money by doing it in-house,” said Betsy Nightingale, assistant superintendent at Laurel Highlands. “It’s also much better for security purposes, because the inmates do not have to travel.”
Inmates in Laurel Highlands follow a normal prison schedule; there are regular times when prisoners are counted and meals follow a schedule. Frail inmates who cannot move about the facility easily have activities brought to them. “There’s bingo and a current events program,” Nightingale said.
About 120 inmates reside in Laurel Highland’s skilled care unit. That part of the prison has nurses on staff 24/7. Prisoners who have Alzheimer’s and other incapacitating illnesses take up most of the rooms. While the majority of the 1,571 beds at Laurel Highlands are filled with older inmates, younger people with chronic illnesses may also be sent there. Sometimes, they are nursed back to health and transferred to another prison.
Currently, about 5,365 of Pennsylvania’s 51,512 state-sentenced prisoners are over age 55. That’s about 10.42 percent of all prisoners. In 2000, the percentage was 4.82, about 1,775 out of 36,802 inmates.
There are 1,249 prisoners over age 65 — about 2.49 percent of the prison population. Nationwide, the number of prisoners age 55 and older has risen sharply over the past decade, according to a 2013 study by the Pew Charitable Trust, a nonpartisan research center. In 1999, there were 43,300 prisoners age 55 and up. By 2011, that number had blossomed to 121,800.
The health care costs for inmates age 55 and older with a chronic illness is, on average, two to three times that of the cost to house and care for other inmates, according to the study. In Pennsylvania, the ratio of older to younger inmates fluctuates, as prisoners complete their sentences and are released, said Susan Bensinger, deputy press secretary for the state Department of Corrections. “Not everyone who is older and goes to prison, even to Laurel Highlands, goes there to die, which is a common assumption,” she said.
But the reality is, people do die behind bars. To address this issue, the department has created an end-of-life care initiative, in which an inmate volunteer is paired with another prisoner who is terminally ill. The two inmates spend several hours a day together, so the dying prisoner spends less time alone and is more comfortable. The program, which isn’t hospice care, can be an emotional experience for the volunteers, Bensinger said. “It’s a very different thing to watch another human being die,” she said. “Some of them are probably seeing themselves in 10 years. The volunteers are very compassionate.”
In the prison system, 50 is considered elderly. That’s because inmates often enter the facilities with serious health problems. “Many inmates come to us never having received dental care or regular health care. Most of them also have drug and alcohol dependence, which ages a body much more rapidly,” Bensinger said.
Sunday, March 30, 2014
As heroin concerns grow, so do proposals to increase sentences
Everyone who follows sentencing reform developments knows that it is common for legislative proposals calling for longer prison terms to follow reports of a new or increased crime problem. The biggest crime problem being discussed these days seems to be heroin use and abuse, and here are two stories from Louisiana and Ohio reporting on proposals to increase drug sentences:
From LA here, "In heroin debate, a detour from sentencing reform"
From OH here, "New bill would allow murder charges against drug dealers in overdose deaths."
The sentencing reform debate developing around heroin in Louisiana is especially interesting, and here are excerpt from the article linked above:
Heroin-related deaths soared last year from New Orleans to Baton Rouge, and the drug has shown no signs of loosening its grip as the epidemic spills into more and more parishes. On the verge of panic, authorities are warning of a public health crisis that demands new methods of deterrence. “When we’re getting to people, they’re dead,” said Col. Mike Edmonson, the State Police superintendent. “When we’re getting to people, the needle is still hanging out of their skin.”
Against this backdrop, law enforcement officials are supporting legislation to drastically increase prison time for heroin dealers and users, including a bill backed by the influential Louisiana Sheriffs’ Association that would impose a mandatory minimum of two years behind bars — without parole — for anyone caught possessing even a small amount of heroin. House Bill 332 sailed through the House Criminal Justice Committee last week and is attracting bipartisan support, even among lawmakers otherwise skeptical of the “tough-on-crime” policies that have been blamed for Louisiana’s nation-leading incarceration rate.
“I think everybody understands the danger of heroin,” said Rep. Joseph Lopinto, R-Metairie, the committee’s chairman and the author of the bill. “I don’t want to put them away for the rest of their lives, but from the other standpoint, I want to make it enough of a deterrent that when they do get out of prison they say, ‘I’m staying away from that stuff.’ That’s the purpose.”
The proposal, which also would double the mandatory minimum sentence for heroin distribution from five to 10 years, stands in sharp contrast to a package of other legislative measures that aim to reduce the state’s teeming prison population, in part by shortening jail time for nonviolent offenders. And it comes at a time of growing recognition among conservatives and liberals alike that mandatory minimums for drug offenses have strained state coffers while doing little, if anything, to curb crime.
“Louisiana already has the highest incarceration rate in the nation, and part of the reason for that is their history with mandatory minimums for nonviolent drug offenses,” said Lauren Galik, a policy analyst at the Reason Foundation, a libertarian think tank, who has studied the state’s sentencing laws. “It clearly hasn’t served as a deterrent effect if people are still using drugs.”
Saturday, March 22, 2014
"Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment"
The title of this post is the title of this new article by Elizabeth Bennion now available via SSRN. Here is the abstract:
"To be kept in solitude is to be kept in pain . . . and put on the road to madness." (E.O. Wilson).
The United States engages in extreme practices of solitary confinement that maximize isolation and sensory deprivation of prisoners. The length is often indefinite and can stretch for weeks, months, years, or decades. Under these conditions, both healthy prisoners and those with pre-existing mental health issues often severely deteriorate both mentally and physically. New science and data provide increased insight into why and how human beings (and other social animals) deteriorate and suffer in such environments. The science establishes that meaningful social contacts and some level of opportunity for sensory enrichment are minimum human necessities. When those necessities are denied, the high risks of serious harm apply to all prisoners, no matter how seemingly resilient beforehand.
Given these facts, this Article argues that solitary confinement, as commonly practiced in the United States, is cruel and unusual punishment — whether analyzed under current Supreme Court standards or an improved framework. Furthermore, recently released data on states implementing reforms shows that extreme solitary confinement tactics are counterproductive to numerous policy interests, including public safety, institutional safety, prisoner welfare, and cost efficiency. Both the scientific and policy data suggest possible avenues for effective reform.
Florida state judge balks at 50-year proposed sentence for notable child porn downloader
As reported in this local article, headlined "Sentencing on porn charges delayed for former Univision star," a state judge in Florida is concerned about the lengthy prison sentence being urged by prosecutors for a high-profile defendant. Here are the details:
A hearing to determine the fate of former Univision star Adonis Losada on child pornography possession charges ended without a prison sentence Friday after a judge said she needed more time to decide. Circuit Judge Karen Miller made the rare move after she told prosecutors that their 50-year recommended sentence for Losada was more than double the highest punishment she had seen for similar crimes in recent years — harsher than sentences in cases where defendants actually had contact with victims.
Losada, who has been in jail since his 2009 arrest on dozens of charges capping an undercover investigation, was uncharacteristically quiet Friday. He again refused to have Miller appoint a lawyer to represent him, as he had during his seven-day trial in February, but refrained from the long rants that forced Miller to halt proceedings several times.... Losada played the laughable, clumsy grandmother, Doña Concha, on the Univision variety show Sabado Gigante — a role he played until his 2009 arrest. Univision is the largest Spanish-language television network in the United States.
Assistant State Attorney Gregory Schiller told Miller that the high sentence was proper for Losada because he had more than 1,000 images of child pornography and was actively trying to arrange to have sex with either the niece or daughter of the undercover detective who was posing as another chat-room user. “He has no sympathy, no care for the children who were being raped, being sodomized in those images. He traded them like baseball cards,” Schiller said.
Miller, however, said her research found that the highest sentence for a child pornography possession case in Palm Beach County over the past three years was 18 years. She also noted that prosecutors who charge defendants with dozens of counts in these cases usually carry a fraction of those charges into trial or drop some of the charges upon conviction.
Schiller noted that Losada rejected a 20-year plea deal before trial. “So you want me to penalize him for exercising his constitutional right to go to trial?” Miller asked.
Based on the convictions, Miller could sentence Losada to up to 330 years in prison, Schiller noted. The minimum recommended sentence based on state sentencing guidelines is 571 months — or just under 48 years....
Losada also faces similar charges in Miami and had been under investigation for child pornography possession in California.
Thursday, March 20, 2014
Illinois Supreme Court deems Miller ruling substantive and thus retroactive
As reported in this Chicago Tribune piece, headlined "Ruling allows new hearings for 100 convicted killers," earlier today the Illinois Supreme Court "ruled that state prison inmates serving life without parole for murders they committed years ago as juveniles will receive new sentencing hearings." Here is more about the ruling:
The ruling means that the inmates, some of whom were as young as 14 when they committed murder, will be allowed to present evidence to mitigate their responsibility and obtain a shorter sentence that would allow them to be set free at some point. Prosecutors will be able to offer to try to persuade judges to re-impose the life sentences....
With the ruling, Illinois joins states such as Iowa, Massachusetts and Texas in deciding a 2012 ruling from the U.S. Supreme Court applies to prisoners whose crimes were committed before the ruling. Minnesota, Pennsylvania and Louisiana are among the states that have refused....
“A minor may still be sentenced to natural life imprisonment without parole so long as the sentence is at the trial court’s discretion rather than mandatory,” the Illinois Supreme Court wrote in today’s unanimous opinion written by Justice Charles Freeman.
The ruling in Illinois v. Davis, No. 115595 (Ill. March 20, 2014) (available here), provides this account of its retroactivity assessment:
As the Iowa Supreme Court recognized: “From a broad perspective, Miller does mandate a new procedure. Yet, the procedural rule for a hearing is the result of a substantive change in the law that prohibits mandatory life-without-parole sentencing.” State v. Ragland, 836 N.W.2d 107, 115 (Iowa 2013). In other words, Miller places a particular class of persons covered by the statute — juveniles — constitutionally beyond the State’s power to punish with a particular category of punishment — mandatory sentences of natural life without parole. See Miller, 567 U.S. at ___, ___, 132 S. Ct. at 2464, 2468; Diatchenko v. District Attorney for the Suffolk District, 1 N.E.3d 270, 277 (Mass. 2013). Since Miller declares a new substantive rule, it applies retroactively without resort to Teague. See Schriro, 542 U.S. at 351-52 & n.4.
Also, we find it instructive that the Miller companion case, Jackson v. Hobbs, arose on state collateral review. Notwithstanding its finality, the Court retroactively applied Miller and vacated Jackson’s sentence. While our analysis is independent as a matter of Illinois law, the relief granted to Jackson under Miller tends to indicate that Miller should apply retroactively on collateral review. See People v. Williams, 2012 IL App (1st) 111145, ¶ 54; People v. Morfin, 2012 IL App (1st) 103568, ¶ 57.
We observe that defendant and several amici assert that this court should depart from Teague and adopt a different rule of retroactivity. However, we do not rely on Teague in our analysis because we view Miller as a new substantive rule, which is outside of Teague rather than an exception thereto. Accordingly, we need not and do not address this argument. See People v. Campa, 217 Ill. 2d 243, 269-70 (2005) (reviewing court will not decide nonessential issues or render advisory opinions).
March 20, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, March 18, 2014
"Prisoners Could Serve '1,000 Year Sentences In 8.5 Hours' In The Future"
The title of this post is the headline of this awesome new article that an awesome former student sent my way. Here are excerpts:
Future biotechnology could be used to trick a prisoner's mind into thinking they have served a 1,000 year sentence, a group of scientists have claimed. Philosopher Rebecca Roache is in charge of a team of scholars focused upon the ways futuristic technologies might transform punishment. Dr Roache claims the prison sentence of serious criminals could be made worse by extending their lives.
Speaking to Aeon magazine, Dr Roache said drugs could be developed to distort prisoners' minds into thinking time was passing more slowly. "There are a number of psychoactive drugs that distort people’s sense of time, so you could imagine developing a pill or a liquid that made someone feel like they were serving a 1,000-year sentence," she said.
A second scenario would be to upload human minds to computers to speed up the rate at which the mind works, she wrote on her blog. "If the speed-up were a factor of a million, a millennium of thinking would be accomplished in eight and a half hours... Uploading the mind of a convicted criminal and running it a million times faster than normal would enable the uploaded criminal to serve a 1,000 year sentence in eight-and-a-half hours. This would, obviously, be much cheaper for the taxpayer than extending criminals’ lifespans to enable them to serve 1,000 years in real time."...
"To me, these questions about technology are interesting because they force us to rethink the truisms we currently hold about punishment. When we ask ourselves whether it’s inhumane to inflict a certain technology on someone, we have to make sure it’s not just the unfamiliarity that spooks us," Dr Roache said.
"Is it really OK to lock someone up for the best part of the only life they will ever have, or might it be more humane to tinker with their brains and set them free? When we ask that question, the goal isn’t simply to imagine a bunch of futuristic punishments — the goal is to look at today’s punishments through the lens of the future."
Monday, March 17, 2014
DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
Very long time readers with very good memories may recall the array of notable post-Booker issues that surround the sentencing of Antwuan Ball following his conviction for crack distribution in Washington DC. As first noted in this prior post (from June 2008!), Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.
Fast forward to 2011 and, as reported here, the feds are urging the district judge to rely heavily on all sorts of alleged/claimed wrongdoing by Ball to impose a max statutory sentence of 40 years on the crack charge. (Significant side note: in light of the passage of the FSA and Supreme Court's subsequent Dorsey ruling, I am not sure 40 years was in fact the proper stat-max for Ball, but more on that point later.)
Relying on the prosecution's allegations that Ball was the leader of a huge crack consipracy (claims which the jury rejected), the district judge apparently calculated Ball's guideline sentence range to be 292 to 365 months (though again, due to the FSA, I am not sure that was the right guideline range circa March 2011). This NACDL amicus brief filed in January 2013 indicates that Ball's guideline range would have been only 51 to 71 months absent consideration of acquitted conduct.
As reported here, District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction." At the time of Ball's 2011 sentencing, I noted here that I was quite pleased the acquitted conduct issues preserved in this notable case, and I suggested "some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct."
Now fast forward exactly three more years, and I find myself quite disturbed and troubled by how the acquitted conduct issues (and other issues) were given seemingly quite short shrift by a panel of the DC Circuit in its ruling late last week in US v. Jones, No. 08-3033 (DC Cir. Mar. 14, 2014) (available here).
For starters, as I read the panel opinion in Jones, I find myself persistently wondering whether and how the district court at Ball's 2011 sentencing may have been influenced by the pre-FSA crack statutes and guidelines before the Supreme Court in Dorsey subsequently made clear that post-FSA rules should apply to all post-FSA sentencings. This issue is not discussed in the Jones opinion (and perhaps it was not raised/preserved), but uncertainty about the application of the FSA at the time of sentencing might arguably alone be reason enough to require resentencing for Ball.
More fundamentally, to reject Ball's acquitted conduct claims, the DC Circuit opinion in Jones only cites to (now dated) post-Booker precedents from all the circuits via this discussion (my emphasis added):
Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime. See United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008) (citing United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam)); Dorcely, 454 F.3d at 371 [D.C. Cir. 2006] (“[A] sentencing court may base a sentence on acquitted conduct without offending the defendant’s Sixth Amendment right to trial by jury.”). This is true even when consideration of the acquitted conduct multiplies a defendant’s sentence severalfold. See Dorcely, 454 F.3d at 370-71. Appellants, in effect, ask us to reconsider Settles and Dorcely. But not only do those decisions bind us, no subsequent decision by the Supreme Court or another circuit calls their validity into question. Cf. FED. R. APP. P. 35(b)(1) (suggesting contrary decisions by the Supreme Court or by another court of appeals as grounds for en banc review). Indeed, since the Supreme Court struck down the mandatory federal sentencing guidelines and freed judges “to exercise broad discretion in imposing a sentence within a statutory range,” United States v. Booker, 543 U.S. 220, 233, 243-44 (2005), every numbered circuit has addressed the constitutionality of sentencing based on acquitted conduct, and each one has reached the same conclusion reached by this court. See United States v. White, 551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting cases from every numbered circuit but the Sixth).
I have emphasized a phrase from the middle of this paragraph because I actually believe there are at least two SCOTUS rulings since the DC Circuit addressed this issue in Settles and Dorcely that arguably "calls their validity into question." Specifically, just from 2013, the Supreme Court's Peugh decision (basics here) and especially its Alleyne decision (basics here and here) provide a reasonable basis to question the continued validity of severe acquitted conduct guideline enhancements. A fair reading of Alleyne suggests that judicial fact-finding as to facts which "alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment" can be constitutional problematic even if these facts do not raise the applicable statutory maximum sentence.
Critically, I am not asserting that the 2013 SCOTUS rulings Peugh and/or Alleyne now require reversal of old circuit precedents upholding major acquitted conduct enhancements. But I do strongly believe that 2013 SCOTUS rulings Peugh and/or Alleyne raise significant new questions about old circuit precedents upholding major acquitted conduct enhancements. Consequently, I find this cursory treatment of what strikes me as a significant sentencing issue in a significant case to be disconcerting.
That all said, perhaps the "optimistic" way to read this opinion is as an invitation to Ball and others to see en banc review of old circuit precedent upholding major acquitted conduct enhancements. At the very least, given that Ball still likely has a decade in federal prison left for his $600, half-ounce, hand-to-hand crack-cocaine deal in 2001, I hope he seriously considers pursuing further appeals of his sentence.
Some old posts on the Ball case and acquitted conduct sentencing enhancements:
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- Practitioner’s Note: Acquitted Conduct in the News (Again)
- Strong commentary on acquitted conduct sentencing
- Sincere questions about acquitted conduct sentencing
- Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
March 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack
Sunday, March 16, 2014
NY Times sees "A Rare Opportunity on Criminal Justice"
The title of this post is drawn from the headline of this new New York Times editorial about federal sentencing reform. Here are excerpts:
The current Congress is the place where virtually all legislation, however urgent or reasonable, goes to die. Yet out of this stew of partisan mistrust and dysfunction there may come one promising and unexpected achievement: the first major reforms to America’s broken criminal justice system in a generation.
Two bipartisan bills now under consideration aim to unwind our decades-long mass incarceration binge and to keep it from happening again. This fact is remarkable not only because of Congress’s stubborn standstill, but because crime and punishment has long been one of the most combustible issues in American politics....
The Smarter Sentencing Act — introduced in the Senate last year by Richard Durbin, the Illinois Democrat, and Mike Lee, the Utah Republican — would halve mandatory minimum sentences for certain nonviolent drug crimes, which currently stand at five, 10 and 20 years. It would also give judges more discretion to sentence below the mandatory minimum in some cases, and it would provide a chance at early release for thousands of inmates sentenced under an older law that disproportionately punished crack cocaine offenders.
The Recidivism Reduction and Public Safety Act, introduced by Sheldon Whitehouse, Democrat of Rhode Island, and John Cornyn, the Texas Republican, would allow low-risk prisoners to earn credit for early release by participating in education, job training and drug treatment programs.
Reforms like these were unthinkable even a few years ago, when the Republicans’ longtime tough-on-crime dogma — echoed by Democrats who fearfully fell into line — drove irrational sentencing laws. Why have things changed so quickly? In a word, money — or the lack of it. The bloated Bureau of Prisons eats up nearly $7 billion a year, a quarter of the Justice Department’s entire budget. Politicians like Senator Rand Paul, Republican of Kentucky, and Mr. Lee have become the public face of the conservative turnabout, and they deserve credit for their efforts, but it’s important to remember that almost none of this would be happening without the need to save money.
In fact, many of the reforms now under consideration at the federal level began in reliably conservative states, where budget crises long ago demanded sweeping and lasting change. In Texas, which incarcerates more people than any other state, lawmakers have adopted alternatives to prison, such as drug courts and improved community supervision programs, that help keep people from reoffending. The result has been a steady decline in the prison population and the closing of three state prisons, even as crime rates go down. As Mr. Cornyn told The Times, “From Texas’s perspective, the evidence is in.”
Since 2000, 29 states have moved to cut back on mandatory sentences, particularly for low-level and nonviolent drug offenders, according to a new report by the Vera Institute of Justice.
Some prosecutors and politicians warn that all this reform comes at a serious risk to public safety, but the experience of multiple states shows otherwise. Reserving prison for the most violent offenders saves money, and antirecidivism programs targeted at low-risk inmates protect public safety.
Whether the concern is too much government, too little money, or the inherent unfairness of locking people up for years for no good reason, the energy from both the right and the left is converging, and the moment for meaningful reform has arrived.
Though I share the general perspective that there is a “fierce urgency of now" for federal sentencing reforms, I disagree that money explains these recent developments at the federal level. States, especially red states, have been at the forefront of modern sentencing reforms because of the need to balance budgets without raising taxes, but the feds have long shown a willingness to borrow money for any and all federal priorities. Rather, I think there is a new generation of politicians and voters who no longer view crime as much more salient concern than just and effective punishment.
Younger and more diverse politicians and voters appreciate that too much government and punishment can be as worrisome as a bit more crime, and that is what I think we are now finally getting a much more balanced federal political discourse about these issues than we did a generation ago. (Notably, the Baby Boomers were the first major generation who did not directly experience/witness the harms/problems of Prohobition and totalitarian regimes, so it makes some sense that generation would embrace a big criminal justice system eschewed by their parents and their children.)
March 16, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack
Saturday, March 15, 2014
Top Texas criminal court, in split ruling, decides Miller is to be applied retroactively
As reported in this Austin American-Statesman article, headlined "Court tosses out sentence for Austin killer," the Texas Court of Criminal Appeals ruled this past week that the US Supreme Court's Miller ruling is to apply retroactively. Here are the basics:
The state’s highest criminal court Wednesday ordered a new sentence for Terrell Maxwell, who is serving life in prison without the possibility of parole for shooting an Austin man in the head during a 2007 robbery. Maxwell was 17 at the time of the shooting, and the Texas Court of Criminal Appeals ruled that his automatic sentence of life without parole violated the U.S. Constitution’s prohibition on cruel and unusual punishment when applied to defendants who were under the age of 18 at the time of the crime.
The 5-4 ruling left intact Maxwell’s conviction for capital murder in the death of Fernando Santander, who was shot while sitting in a van in the parking lot of his apartment complex near Rundberg Lane. Two accomplices testified that Maxwell shot Santander when the 31-year-old, startled to find a gun pointing at his cheek, quickly raised his hands in surrender, court records show.
The Texas court split on whether a 2012 U.S. Supreme Court ruling — Miller v. Alabama, which established that automatic no-parole sentences for juveniles were unconstitutional — applied retroactively to defendants like Maxwell.
Writing for the Texas court’s majority [opinion available here], Judge Cathy Cochran said the Miller ruling required that Maxwell be given the opportunity to argue in court that life without parole was not an appropriate sentence. The Miller ruling did not prevent life without parole for juvenile murderers, Cochran wrote. But before such a sentence can be imposed, jurors must consider “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” she noted.
Two dissents — written by Judges Michael Keasler and Paul Womack, joined by Presiding Judge Sharon Keller and Judge Barbara Hervey [available here and here] — said the Miller ruling should not be applied retroactively....
Texas no longer allows the practice, but 17 Texans are serving life without parole for murders committed while they were juveniles between 2005 and 2009. In 2005, Texas juries were given the choice between execution and life without parole for those convicted of capital murder. Because capital punishment was unconstitutional for offenders younger than 18, a guilty verdict meant a mandatory life sentence without parole for teens tried as adults.
Four years later, the law was amended to ban no-parole sentences for juveniles. Several legislators said the move was intended to correct an oversight in the 2005 law, but the no-parole ban was not made retroactive.
March 15, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack