Tuesday, July 29, 2014

"Right on Crime: A Return to First Principles for American Conservatives"

The title of this post is the title of this new article by Marc Levin and Vikrant Reddy which I recently discovered via the Right on Crime blog. Here is an excerpt from the tail-end of the article's introduction:

The idea that conservatives are ideologically committed to mass incarceration is — and always was — a caricature.  American incarceration rates increased significantly in recent decades, and many on the right supported this increase, but conservative support for increased incarceration was linked to unique historical circumstances, not to any philosophical commitment.  Moreover, while conservatives were correct in the early 1970s that some increase in incarceration was necessary to ensure that violent and dangerous offenders served significant prison terms, the sixfold increase in incarceration from the early 1970s to the mid-2000s reached many nonviolent, low-risk offenders.  Now, as crime rates are declining, conservatives are increasingly focused on developing policies that prioritize using limited prison space to house violent offenders while looking for alternative sanctions to hold nonviolent offenders accountable, restore victims, and protect public safety.  In generating and advocating these policies, conservatives are returning to first principles: skepticism of state power, insistence on government accountability, and concern for how public policy affects social norms.

In this article, we discuss the conservative return to first principles in criminal justice.  In Part II, we explain the modern problem of mass incarceration.  Then, in Part III, we note the historical reasons behind the push to increase incarceration in the 1980s and 1990s.  In Part IV, we detail legislative reforms to remedy the incarceration problem that are consistent with conservative ideological principles.

July 29, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Alabama struggling (and facing lawsuits) as sentencing toughness produces overcrowded prisons

As reported in this new local article, headlined "Governor Bentley to feds, prison reform advocates: 'You all are crazy to sue us'," elected officials in Alabama are struggling to figure out how best to deal with too many prisoners and prison problems. Here are the details:

Gov. Robert Bentley acknowledged the immense problems facing the state's prison system but said Monday that his administration needs time to address them, not lawsuits. Speaking at the annual convention at the Alabama Sheriffs' Association, Bentley said his message is the same whether his audience is the U.S. Justice Department or advocacy groups like the Southern Poverty Law Center.

"You all are crazy to sue us," he said. "What good does it do to sue us?"

Bentley said he is as interested as anyone in solving problems that include overcrowding and allegations of mistreatment of inmates. He said he wants to work with anyone who has ideas about how to improve the system but added that lawsuits only divert time and money away from those solutions.

The Montgomery-based Southern Poverty Law Center has, in fact, sued the state over its prisons. The organization alleged last month that the state has failed to meet its constitutional responsibilities to provide adequate health care to prisoners. Maria Morris, an attorney for the Southern Poverty Law Center, said her organization had no choice but to sue to force improvement to years-old problems.

The Justice Department so far has not sued. But a scathing report in January detailing alleged abuses at the Tutwiler Prison for Women in Wetumpka has raised fears among the state's elected leaders that federal authorities are preparing to do so.

Bentley said the state cannot solve its prison problem without taking further steps to reduce long sentences, although he offered no specific proposals. "It is a real problem in this state. Not only is it a problem, but our sentencing of our prisoners is a real problem," he said.

The Legislature already has taken action in recent years on that front. Sentencing guidelines designed to reduce penalties for certain nonviolent and drug crimes have been "presumptive" since October, meaning that judges must cite specific reasons if they depart from the recommendations.

As far as addition action, Bentley said the state is waiting recommendations from the Justice Reinvestment Initiative, a program coordinated by the National Council of State Governments Justice Center. He acknowledged the political difficulty of taking on the prison issue.

"I can't run for governor talking about prison reform. People say, 'I don't care about that,'" he said. "But they do care if you have to raise taxes to build more prisons. They do care if you let violent prisoners out."

Bentley suggested changes in the state's Habitual Felony Offender Act, which was designed to crack down on repeat criminals but has helped spark a massive increase in the state's prison population since its passage in 1977. "The habitual offender act probably has increased our prison population more than anything else," he said.

Bentley said he opposes leniency for violent criminals and sex offenders – "I don't think we ought to let them out" – but said some nonviolent offenders serving longer prison terms because of the law probably can be rehabilitated faster. "If we don't do that, we're going to have to find money to build more prisons," he said.

July 29, 2014 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, July 28, 2014

Fascinating Fourth Circuit split over how federal sentencing problems should inform guideline interpretation

I just noticed a notable ruling by a split Fourth Circuit panel from late last week in US v. Valdovinos, No. 13-4768 (4th Cir. July 25, 2014) (available here). The precise legal issue concerning guideline interpretation in Valdovinos is not all that compelling, but how the judges dispute the right way to resolve the issue surely is.  Here is how the panel majority opinion (running 18 pages) concludes:

For the foregoing reasons, we hold that North Carolina’s legislatively mandated sentencing scheme, not a recommended sentence hashed out in plea negotiations, determines whether an offender’s prior North Carolina conviction was punishable by more than a year in prison.  Because Valdovinos’s offense of conviction was indeed punishable by imprisonment exceeding one year, it qualifies as a predicate felony under Section 2L1.2(b)(1)(B) of the Guidelines [thereby enhancing his sentence].  We appreciate the fervor and policy arguments of our friend in dissent.  Indeed, we can agree with many of the latter.  What we cannot agree with is that “application of relevant precedent” does not require the result here.  Carachuri and Simmons do just that.  The judgment of the district court is affirmed.

Here is how Judge Davis's remarkable dissenting opinion (running 30 pages) gets revved up and concludes (emphasis in the original):

Our disagreement as to the outcome in this case stems, I think, less over the content and application of relevant precedent and more from a fundamental disagreement regarding our role as arbiters of a flailing federal sentencing regime.  Where, as here, we have been presented with a choice in how to interpret the interstices of federal sentencing law, and where one choice would exacerbate the harmful effects of over-20 incarceration that every cadre of social and political scientists (as well as an ever-growing cohort of elected and appointed officials, state and federal, as well as respected members of the federal judiciary) has recognized as unjust and inhumane, as well as expensive and ineffectual, this insight can and should inform our analysis.  I deeply regret the panel’s failure to take advantage of the opportunity to do so here....

Here, in a tiny corner of the chaotic morass that is federal sentencing law, Mr. Valdovinos has offered us a measured approach, to a novel issue of federal sentencing law, that adheres to Supreme Court and our relevant circuit precedents and is consistent with our values. If accepted by this panel, his argument, which is surely more than merely “clever”, see ante, at 8, would affect a tiny number of federal cases drawing legal relevance from North Carolina’s historical (and now superseded) sentencing regime. And Mr. Valdovinos’s sentence in this case likely would be reduced to a bottom guideline of 15 months, instead of the bottom guideline sentence he received, 27 months.  He’d soon be on his way home to Mexico, if not already arrived.

That the majority declines the opportunity to decide this case on the foundations discussed herein is regrettable, a choice that not only ignores the growing wisdom informed by widespread acknowledgement of our unjust federal sentencing jurisprudence, but actually hinders its progress.  Would that my friends could see that it’s a new century, complete with a host of profound and valuable insights at our avail.  I discern no compelling reason why, in the performance of our adjudicative responsibilities, which every member of the panel has unfailingly carried out to the best of our ability in this case and in full accordance with our solemn oath to “administer justice,” 28 U.S.C. § 453, we ought not to draw on these insights.

One of them is that sometimes, in our shared quest for justice under law, it requires so little of us to achieve so much.  Respectfully, I dissent.

July 28, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Thursday, July 24, 2014

Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms

Paul-ryanAs reported in this official press release, House Budget Committee Chair Paul Ryan today "released a new discussion draft, 'Expanding Opportunity in America,' [which] proposes a new pilot project to strengthen the safety net and discusses a number of reforms to the EITC, education, criminal justice, and regressive regulation."  Notably, an extended section of this impressive document (Chapter 4, which runs nearly 10 of the draft's 70+ pages) is focused on criminal justice reforms.  Here are segments from this portion of the draft:

About 2.2 million people are currently behind bars — a more than 340 percent increase since 1980.  As a result, we spend about $80 billion on corrections at all levels of government — an inflation-adjusted increase of over 350 percent in that same period.  This growing cost burden on society is a cause for concern.  But perhaps what’s most troubling is the effect on individuals and families....

[Federal sentencing reform] seeks to tap this overlooked potential and ameliorate the collateral impact on children and families.  Although most offenders are in state prisons or local jails, successful reforms at the federal level could encourage states and local governments to follow their example.  This discussion draft explores a number of reforms on multiple fronts — how we sentence individuals to prison, how offenders are treated inside prison, and how society helps them to reintegrate afterwards.

Public safety is priority No. 1, so these reforms would apply to only non-violent and low-risk offenders.  The punishment should fit the crime, but in many cases the punishment of incarceration extends beyond prison time.  Once people have paid their debt to society, they should be able to move on. In that spirit, this proposal suggests three possible reforms:

• Grant judges more flexibility within mandatory-minimum guidelines when sentencing non-violent drug offenders.

• Implement a risk- and needs-assessment system in federal prisons while expanding enrollment in rehabilitative programming to reduce recidivism. Allow non-violent and low-risk inmates to use enrollment to earn time off their prison stay towards prerelease custody.

• Partner with reforms at the state and local level....

Unlike state inmates, only 6 percent of federal inmates are violent offenders, while another 15 percent are guilty of weapons offenses.  In fact, most federal prisoners—nearly 51 percent — are serving time for a drug-related offense, and data from the U.S. Sentencing Commission shows that most of these federal drug offenders are in the lowest criminal-history category.   But under current law, a single gram of crack cocaine could be all that separates a convict from a less-than-five-year sentence and a 40-year sentence. Rigid and excessive mandatory sentences for low-level drug offenders, like these, may add to an already over-crowded prison system without appreciably enhancing public safety.

There are also economic and social consequences to unreasonably long sentences. Not only do they put undue burdens on families, but they may actually make people more likely to return to crime.  As Justice Fellowship notes, “Rather than encouraging criminals to become peaceful, productive citizens, prison culture often has the opposite effect, operating as a graduate school for crime.”  The federal government should follow the lead of several states and consider how sentencing guidelines, including alternative forms of detention, can both prevent crime and steer non-violent, low-risk drug offenders away from the addictions and networks that make them more likely to reoffend....

Although crime rates have fallen since the 1980s, the unintended consequence of these mandatory minimums is that some low-risk, non-violent offenders serve unreasonably long sentences....

A major challenge of criminal-justice reform is lowering the high rates of recidivism. High rates of recidivism are not only costly to the taxpayer and dangerous for society; they present a missed opportunity to bring more individuals into society as productive and contributing members....

[Proposed] reforms seek to put a greater focus upon rehabilitation and reintegration. Although the federal government’s reach is limited, these reforms would give judges the discretion they need to prevent nonviolent offenders from serving unreasonably long sentences; they would align inmates’ incentives to help reduce recidivism; and they would partner with states and community groups to expand their life-affirming work.

July 24, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

"There’s little evidence that fewer prisoners means more crime"

The title of this post is the headline of this notable new posting by Emily Badger now up at the Washington Post Wonkblog. Here are excerpts:

Of all of the notions that have motivated the decades-long rise of incarceration in the United States, this is probably the most basic: When we put people behind bars, they can't commit crime. The implied corollary: If we let them out, they will.

By this thinking, our streets are safer the more people we lock up and the longer we keep them there. This logic suggests that there would be serious public-safety costs to reducing prison populations, a policy in the news again after the U.S. Sentencing Commission unanimously voted last Friday to retroactively extend new, lighter drug sentencing guidelines to about 46,000 offenders currently serving for federal drug crimes. As the National Association of Assistant U.S. Attorneys warned, opposing the move, "tough sentencing laws . . . led to safer communities, which are now threatened."

Crime trends in a few states that have significantly reduced their prison populations, though, contradict this fear. [A] recent decline in state prison populations in New York and New Jersey, [as noted by] a new report by the Sentencing Project, [has not resulted in a crime surge]....

It's important to note that crime has been falling all over the country over this same time, for reasons that are not entirely understood (and, no, not entirely explained by the rise of incarceration). But the Sentencing Project points out that declining violent crime rates in New York and New Jersey have actually outpaced the national trend, even as these states have reduced their prison populations through changing law enforcement and sentencing policies.

We certainly can't take these three charts and conclude that reducing prison populations reduces crime. But these trends do make it harder to argue the opposite — particularly in the most heavily incarcerated country in the world.

I am not sure which of the many data-driven publications by The Sentencing Project served as the basis for this latest Workblog posting. But I am sure, as evidenced by these posts from the last few weeks, that sentencing fans ought to make a habit of checking out Wonkblog regularly:

UPDATE:  I now realize that the recent Sentencing Project publication reference in this post is the basis for the Wonkblog discussion.

July 24, 2014 in Data on sentencing, Drug Offense Sentencing, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

Wednesday, July 23, 2014

"Fewer Prisoners, Less Crime: A Tale of Three States"

The title of this post is the title of this notable new 11-page report coming from the folks at The Sentencing Project.  Here is how the report begins and concludes:

Although the pace of criminal justice reform has accelerated at both the federal and state levels in the past decade, current initiatives have had only a modest effect on the size of the prison population.  But over this period, three states — New York, New Jersey, and California — have achieved prison population reductions in the range of 25%. They have also seen their crime rates generally decline at a faster pace than the national average.

Key findings:

• New York and New Jersey led the nation by reducing their prison populations by 26% between 1999 and 2012, while the nationwide state prison population increased by 10%.

• California downsized its prison population by 23% between 2006 and 2012. During this period, the nationwide state prison population decreased by just 1%.

• During their periods of decarceration, violent crime rates fell at a greater rate in these three states than they did nationwide. Between 1999-2012, New York and New Jersey’s violent crime rate fell by 31% and 30%, respectively, while the national rate decreased by 26%.  Between 2006-2012, California’s violent crime rate drop of 21% exceeded the national decline of 19%.

• Property crime rates also decreased in New York and New Jersey more than they did nationwide, while California’s reduction was slightly lower than the national average. Between 1999-2012, New York’s property crime rate fell by 29% and New Jersey’s by 31%, compared to the national decline of 24%. Between 2006-2012, California’s property crime drop of 13% was slightly lower than the national reduction of 15%.

These prison population reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay.  The experiences of these states reinforce that criminal justice policies, and not crime rates, are the prime drivers of changes in prison populations.  They also demonstrate that it is possible to substantially reduce prison populations without harming public safety....

At least in three states we now know that the prison population can be reduced by about 25% with little or no adverse effect on public safety.  Individual circumstances vary by state, but policymakers should explore the reforms in New York, New Jersey, and California as a guide for other states.

There is also no reason why a reduction of 25% should be considered the maximum that might be achieved. Even if every state and the federal government were able to produce such reductions, that would still leave the United States with an incarceration rate of more than 500 per 100,000 population — a level 3-6 times that of most industrialized nations.

In recent years a broader range of proposals has emerged for how to reduce the prison population and by various scales of decarceration.  In a recent right/ left commentary Newt Gingrich and Van Jones describe how they will “be working together to explore ways to reduce the prison population substantially in the next decade.”  The experiences of New York, New Jersey, and California demonstrate that it is possible to achieve substantial reductions in mass incarceration without compromising public safety.

July 23, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Tuesday, July 22, 2014

"Strictly Taboo: Cultural Anthropology's Insights into Mass Incarceration and Victimless Crime"

The title of this post is the title of this notable new paper by Brennan Hughes available via SSRN.  Here is the abstract:

I argue that cultural anthropology can explain two persistent riddles of American criminal justice: (1) Why do we have mass incarceration when mass incarceration is ineffective and socially destructive? (2) Why do we have victimless crimes when criminal law is ostensibly based on the utilitarian harm principle?

One answer is found in the anthropological “survivals” known as “uncleanness” and “taboos.” These visceral, often subconscious, feelings function to preserve order, the status quo, and class distinctions. Despite the gains made in civil rights, nonwhites and the underclass remain “the other,” and they threaten to “contaminate” the majority population. Crime itself, as a threat to social stability, has become charged with a powerful ability to attract and repel. Crime and criminals are described using terms for dirt and feces. The majority culture’s response to crime (which is linked with its unconscious response to the lower class and minorities) is to expel such pollution into sealed containers called prisons. The ritualism of civic religion completes the purification process.

Deeply felt taboos also persist concerning sex and drugs. While marijuana possession and use harms no one but the user, marijuana is historically taboo on account of its association with minorities and radicals. Incest is criminalized and sex with minors is hyper-punished because they violate deeply felt sexual taboos.

I argue that one promising solution is to help people develop a stronger taboo (through education) that can cancel out the dehumanizing taboos toward criminals (just as the taboo against homophobia has supplanted the taboo against homosexuality). We will continue to overpunish until hyper-punishment itself becomes repulsive.

July 22, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Monday, July 21, 2014

John Oliver covers the realities of incarceration nation

A whole lots of folks have sent me notes to make sure I saw the remarkable 15+ minute piece on John Oliver's HBO show about modern prison realities in the United States.  To make sure everyone gets to see this effective (and humorous) piece of journalism, here is the video:

July 21, 2014 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

"Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons"

The title of this post is the title of this important and timely new paper authored by two terrific criminologists, Professors Joan Petersilia and Francis T. Cullen, and now available via SSRN. Here is the abstract:

A confluence of factors — a perfect storm — interfered with the intractable rise of imprisonment and contributed to the emergence of a new sensibility defining continued mass imprisonment as non-sustainable. In this context, reducing America’s prisons has materialized as a viable possibility.  For progressives who have long called for restraint in the use of incarceration, the challenge is whether the promise of downsizing can be met.

The failure of past reforms aimed at decarceration stand as a sobering reminder that good intentions do not easily translate into good results.  Further, a number of other reasons exist for why meaningful downsizing might well fail (e.g., the enormous scale of imprisonment that must be confronted, limited mechanisms available to release inmates, lack of quality alternative programs).  Still, reasons also exist for optimism, the most important of which is the waning legitimacy of the paradigm of mass incarceration, which has produced efforts to lower inmate populations and close institutions in various states.

The issue of downsizing will also remain at the forefront of correctional discourse because of the court-ordered reduction in imprisonment in California. This experiment is ongoing, but is revealing the difficulty of downsizing; the initiative appears to be producing mixed results (e.g., reductions in the state’s prison population but increased in local jail populations). In the end, successful downsizing must be “liberal but not stupid.”  Thus, reform efforts must be guided not only by progressive values but also by a clear reliance on scientific knowledge about corrections and on a willingness to address the pragmatic issues that can thwart good intentions.  Ultimately, a “criminology of downsizing” must be developed to foster effective policy interventions.

July 21, 2014 in Data on sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Saturday, July 19, 2014

US Attorney for NJ: "Ex-offenders get time, now they need opportunity"

Especially in the wake of this US Sentencing Commission's big decision yesterday to vote for retroactive application of its new reduced drug guidelines (basics here and here), a recent opinion piece by the U.S. Attorney for the District of New Jersey, Paul Fishman, struck me as especially timely. This piece is headlined "Ex-offenders get time, now they need opportunity," and here are excerpts: 

Every year, my office prosecutes several hundred defendants who have violated criminal laws passed by Congress. For most of those defendants, a term in federal prison is warranted. Whether they are public officials who betray their oaths, predators who threaten the safety of our neighborhoods and our children, or thieves who cheat the health care system, investors or the government — incarceration is the appropriate punishment.

But prison is usually not meant to last forever. More than 95 percent of federal prisoners will be released after serving their sentences. Altogether, 700,000 federal and state prisoners are released every year, along with millions more who stream through local jails.

Most return to their communities, trying to put their lives back together and avoid the pitfalls that got them in trouble. Bearing the stain of their convictions, they compete for jobs, look for housing and seek educational opportunities.

A staggering number don't succeed. Nationally, two-thirds of people released from state prisons are arrested again; half of those will end up back inside. Forty percent of federal prisoners return to jail in the first three years.

This level of recidivism is unacceptable. Offenders, their families and their communities are devastated by it. Public safety suffers for it. And with more than $74 billion spent annually on federal, state and local corrections, we can’t afford it.

Prison alone isn't enough. Any smart law enforcement model prevents crime by supporting ex-offenders. That is why my U.S. Attorney's Office — along with federal judges, the federal public defender, and the U.S. Probation Office — began the "ReNew" program, a federal re-entry court in Newark. Those leaving federal prison at serious risk of reoffending are invited to participate.

They are closely supervised, meeting biweekly with federal Magistrate Judge Madeline Cox Arleo, our office, and the federal defenders, and more regularly with probation officers. And they are supported in obtaining housing, jobs, education, counseling and legal assistance. My office provides services to the team and participants and supervises research into the program's efficacy.

This week, the judge will preside over the first graduation ceremony for those who have successfully completed 52 weeks in the program. It is a hugely inspiring milestone for everyone involved, but especially for the graduates reimagining their lives despite great adversity....

Recently, my office launched the New Jersey Re-entry Council, a partnership with acting New Jersey Attorney General John Hoffman, other federal and state agencies, and NGO community members to share resources and ideas.

But there is one more partner we need: you. Finding a job after release is the most important key to success. In a recovering economy, securing a job after prison can be especially difficult. If you have a company that can train or hire our participants, or if you have access to housing, we need to hear from you....

One of every 100 adults in the United States is behind bars. Most will come home. They will have paid their debt and need a chance to support themselves, their families and their communities. We can look at ex-offenders returning to our communities as a risk, or we can help give them that chance. The potential rewards for their lives, for the economy and for our safety are incalculable.

July 19, 2014 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Friday, July 18, 2014

Split Iowa Supreme Court declares all mandatory juve sentencing terms violate state constitution

Thanks to a helpful reader, I learned this afternoon that the Iowa Supreme Court today declared unconstitutional pursuant to the Iowa Constitution the imposition of any and all mandatory terms of imprisonment on juvenile offenders.  The majority ruling in Iowa v. Lyle, No. 11–1339 (Iowa July 18, 2014)  

In this appeal, a prison inmate who committed the crime of robbery in the second degree as a juvenile and was prosecuted as an adult challenges the constitutionality of a sentencing statute that required the imposition of a mandatory seven-year minimum sentence of imprisonment.  The inmate was in high school at the time of the crime, which involved a brief altercation outside the high school with another student that ended when the inmate took a small plastic bag containing marijuana from the student.  He claims the sentencing statute constitutes cruel and unusual punishment in violation of the State and Federal Constitutions when applied to all juveniles prosecuted as adults because the mandatory sentence failed to permit the court to consider any circumstances based on his attributes of youth or the circumstances of his conduct in mitigation of punishment.  For the reasons expressed below, we hold a statute mandating a sentence of incarceration in a prison for juvenile offenders with no opportunity for parole until a minimum period of time has been served is unconstitutional under article I, section 17 of the Iowa Constitution. Accordingly, we vacate the sentence and remand the case to the district court for resentencing. Importantly, we do not hold that juvenile offenders cannot be sentenced to imprisonment for their criminal acts.  We do not hold juvenile offenders cannot be sentenced to a minimum term of imprisonment.  We only hold juvenile offenders cannot be mandatorily sentenced under a mandatory minimum sentencing scheme.

The majority opinion supporting this ruling runs nearly 50 pages and, unsurprisingly, has a lot to say about the US Supreme Court's recent Eighth Amendment work in Graham and Miller. In addition, two forceful dissents follow the majority's opinion in Lyle, and here is the heart of one of the dissenting opinions:

By holding Lyle’s seven-year mandatory minimum sentence for his violent felony is cruel and unusual punishment and unconstitutional under article I, section 17 of the Iowa Constitution, rather than under the Eighth Amendment, the majority evades review by the United States Supreme Court.  As Justice Zager observes, no other appellate court in the country has gone this far. Our court stands alone in taking away the power of our elected legislators to require even a seven-year mandatory sentence for a violent felony committed by a seventeen-year-old.  Will the majority stop here?  Under the majority’s reasoning, if the teen brain is still evolving, what about nineteen-year olds?  If the brain is still maturing into the mid-20s, why not prohibit mandatory minimum sentences for any offender under age 26?  As judges, we do not have a monopoly on wisdom.  Our legislators raise teenagers too.  Courts traditionally give broad deference to legislative sentencing policy judgments. See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“We give the legislature deference because ‘[l]egislative judgments are generally regarded as the most reliable objective indicators of community standards for purposes of determining whether a punishment is cruel and unusual.’ ” (quoting Bruegger, 773 N.W.2d at 873)). Why not defer today?

July 18, 2014 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, July 17, 2014

Newt Gingrich saying again that "backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause"

I have long stressed my belief that many federal sentencing reform efforts can and should be viewed as a cause that ought to attract politicians and people with true conservative principles.  This recent Wall Street Journal opinion piece, headlined "An Opening for Bipartisanship on Prison Reform," authored by Newt Gingrich and Pat Nolan echoes this point. Here are excerpts:

Several states have passed meaningful reforms, including expanding drug courts to order mandatory drug treatment programs, increasing funding for drug and mental-health treatment, and limiting costly prison beds to violent and serious repeat offenders. These state reforms passed in part thanks to conservative support.

Right on Crime, a national organization founded in 2010 that we both belong to, is helping spread the word that backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause.

On a panel at the annual Conservative Political Action Conference in March in National Harbor, Md., Texas Gov. Rick Perry explained how reform worked in his state. In 2007, Texas scrapped plans to build more prisons, putting much of the savings into drug courts and treatment. The results have been impressive: Crime in Texas is at the lowest rate since 1968. The number of inmates has fallen by 3%, enabling the state to close three prisons, saving $3 billion so far. What inspired the reform, Gov. Perry said, was this: "Being able to give people a second chance is really important. That should be our goal. The idea that we lock people up, throw them away, never give them a chance at redemption is not what America is about."

In 2010, South Carolina followed Texas' example, toughening penalties for violent criminals while creating alternatives to incarceration for nonviolent offenders. These included providing community drug treatment and mental health services for lower-level lawbreakers—mostly drug and property offenders—who made up half of the state's prison population. South Carolina also increased funding for more agents to supervise offenders in the community. Three years later, the prison population has decreased by 8%, and violent offenders now account for 63% of the inmate population. South Carolina's recidivism rates also are much improved and the state has closed one prison.

Other states—Ohio, Georgia, Oklahoma, Kentucky, Missouri, Pennsylvania and Mississippi—have adopted similar reforms. As is so often the case, the states are showing the way. Congress should apply these common-sense reforms to the federal prison system.

The reforms have developed in the states, as conservatives tend to prefer. But now that there is proof that prison reform can work, the debate has gone from an ideological discussion to evidence-based changes that can be applied to the federal system.

Republican Sens. John Cornyn and Ted Cruz, who have seen the benefits firsthand in Texas, have been joined by Republican Senate colleagues such as Rob Portman, Marco Rubio, Mike Lee, Jeff Flake and Ron Johnson in backing one or more prison-reform bills. Two bills, the Recidivism Reduction and Public Safety Act (S. 1675) and the Smarter Sentencing Act (S. 1410) have already passed the Senate Judiciary Committee and await action by the full Senate.

In the House, Republican Reps. Jason Chaffetz, Raúl Labrador, Trey Gowdy and others are backing similar legislation. This push for reforming the federal prison system has support on the other side of the aisle as well. Such liberal stalwarts as Sens. Dick Durbin, Patrick Leahy and Sheldon Whitehouse, and Reps. John Conyers, Bobby Scott and Jerrold Nadler have signaled their backing.

July 17, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, July 16, 2014

"Recalibrating Justice: A Review of 2013 State Sentencing and Corrections Trends"

The title of this post is the title of a notable new report from the Vera Institute of Justice. The report, available via this link, checks in at less than 50 pages and provides a terrific accounting of state-level reforms nationwide. This one-page summary provides these highlights:

In 2013, 35 states passed at least 85 bills that largely eschew the tough-on-crime policies of the past.  Lawmakers exhibited a willingness to pursue change consistent with the growing body of research that demonstrates carefully implemented and well-targeted community-based programs and practices can produce better outcomes at less cost than incarceration.  In particular, states enacted legislation to:

> Reduce prison populations and costs.  States repealed or narrowed mandatory sentencing schemes, reclassified offenses, or altered sentencing presumptions. States also sought to expand access to early release mechanisms — such as good time credits —designed to accelerate sentence completion.

> Expand or strengthen community-based sanctions.  States introduced or strengthened community corrections programs proven to reduce recidivism.  Some states expanded eligibility for diversion programs — a sentencing alternative through which charges will be dismissed or expunged if a defendant completes a community-based program or stays out of trouble for a specified period.  States also expanded community-based sentencing options, including the use of problem-solving courts.

> Implement risk and needs assessments. Several states focused on the use of validated risk and needs assessments as the basis for implementing individualized offender case plans.  These states passed laws requiring assessments of an offender’s risk of recidivism as well as his or her criminogenic needs — characteristics, such as drug addiction and mental illness — that when addressed can reduce that risk.  States incorporated these assessments at different points in the criminal justice process — at the pre-trial stage, at the pre-sentencing stage, or to inform supervision and programming, whether in prison or in the community.

> Support the reentry of offenders into the community.  States passed laws to mitigate the “collateral consequences” of criminal convictions — such as restrictions on housing and social benefits and exclusion from employment.  In some states, legislators sought to clarify, expand, or create ways to seal or expunge criminal records from the public record. Others focused on helping offenders transition from prison or jail back into the community by increasing in-prison and post-release support.

> Make better informed criminal justice policy.  A number of states sought a deliberate discussion about the purpose and impact of proposed sentencing and corrections legislation and looked to external groups to debate proposals, collect and analyze data, and formulate policy recommendations. Some states even passed legislation requiring fiscal or social impact statements in order to help legislators consider the ramifications of proposed criminal justice reforms.

July 16, 2014 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, July 15, 2014

Careful examination of California's "mixed" record with realignment

14069-prisons_petersiliaEvery serious criminal law and criminology researcher knows and respects (or should know and respect) the work of Joan Petersilia.  Consequently, what she has to say about California's prison realignment realities necessarily garners my attention, and it is set forth in this Sanford Report headlined "California's prison realignment plan needs adjustments, Stanford law professor says."  Here are excerpts:

When California embarked on a sweeping prison realignment plan in 2011, The Economist described it as one of the "great experiments in American incarceration policy." The challenge was to shift inmates from overcrowded state prisons to jails in California's 58 counties.

At this point, the results are mixed and the "devil will be in the details" as tweaks to the original legislation are urged, according to new research by a Stanford law professor.

"Only time will tell whether California's realignment experiment will fundamentally serve as a springboard to change the nation's overreliance on prisons," wrote Stanford Law School Professor Joan Petersilia, a leading expert on prison realignment, in her article in the Harvard Law and Policy Review. "It is an experiment the whole nation is watching."...

"If it works, California … will have shown that it can downsize prisons safely by transferring lower-level offenders from state prisons to county systems. … If it does not work, counties will have simply been overwhelmed with inmates, unable to fund and/or operate the programs those felons needed, resulting in rising crime, continued criminality and jail overcrowding," wrote Petersilia, co-director of the Stanford Criminal Justice Center.

In an interview, she noted that the 2008 economic crisis prompted state and local governments to cut costs and find efficiencies in their prison and jail systems. Plus, people are now thinking differently about punishment. "The public no longer believes that prisons are the answer for lower-level offenses [drug crimes, minor thefts], and also is more aware of the hugely damaging effects [inability to get a job] of imposing prison terms on those who really aren't dangerous," said Petersilia, who also has forthcoming research on prison policy.

Petersilia's research for the Harvard Law and Policy Review article consisted of interviews with 125 people in law enforcement, courts, probation departments, victim service agencies and offenders themselves. These sessions were conducted in the second year of the realignment. Subjects were asked how realignment was working and what fixes were needed. "The findings illustrate that realignment gets mixed results so far," wrote Petersilia, who described counties as struggling heroically to carry out an initiative seemingly imposed on them overnight.

Probation officials were the most optimistic about realignment, the interviews revealed. They believed that mental health agencies and the courts could reduce recidivism, but that it will take time to coordinate and implement rehabilitation programs that do not compromise public safety.

Though most participants agreed that realignment is spurring greater collaboration and innovation on how to efficiently incarcerate criminals, problems exist, according to the research. For example, counties are now dealing with more sophisticated criminals, lack of space and concern that the state's problem of overcrowding could become local problems as well. Finally, some prosecutors were disappointed in the "deep jail discounts" — reduced time behind bars — given to arrestees due to the crowded jails, she said....

Petersilia urges legislative revisions to California's realignment plan (some are now under discussion in the legislature). Suggestions include:

  • Requiring that all felony sentences served in county jail be split between time behind bars and time under supervised release (probation), unless a judge deems otherwise
  • Allowing an offender's entire criminal background to be reviewed when deciding whether the county or state should supervise them
  • Capping county jail sentences at a maximum of three years
  • Allowing for certain violations, such as those involving domestic restraining orders or sex offenses, to be punished with state prison sentences
  • Creating a statewide tracking system for all offenders
  • Collecting data at the county and local level on what is and is not working in realignment

    "These recommendations should reduce the burden realignment has placed on counties," wrote Petersilia. She said several counties are taking advantage of split sentencing with promising results. Still, only 5 percent of felons in Los Angeles County have their sentences split. She called this type of flexibility "extraordinarily important" to realignment, as it would lessen space and cost burdens for counties. "Most county officials believe realignment can work – if the state will work with them to tweak the flaws in the original legislation," she wrote.

The full Harvard Law and Policy Review article, which is titled "California Prison Downsizing and Its Impact on Local Criminal Justice Systems," is available via this link.

July 15, 2014 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, July 14, 2014

Fourth Circuit to reconsider en banc its Whiteside ruling concerning reconsideration of guideline errors in 2255

As noted in this prior post, titled "Fourth Circuit deepens (via dramatic split opinion) circuit split over fixing sentencing problems via 2255 motions," a split panel of the Fourth Circuit back in April allowed a federal inmate to 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 revealed the enhancement was inapplicable to him.  The ruling in Whiteside v. US, No. 13-7152 (4th Cir. Apr. 8, 2014) (available here), included both a spirited marority and dissenting opinion.   

Now, thanks to a helpful reader and this unpublished order, I have learned that the full Fourth Circuit has decided to rehear this matter en banc.  I am not to surprised by this news, though I am perhaps a bit disappointed that it does not seem as though the Fourth Circuit has invited amicus invovement at this stage.  As regular readers know, I think sentencing finality concerns raise distinct issues and I have written at length on this subject recently.  Perhaps I should be grateful that the Fourth Circuit has not solicited amicus briefs in Whiteside, as it is much easier and much more efficient for me to share some of my perspective at this stage just to linking to my series of recent prior posts about sentence finality here:

July 14, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Are federal drug sentences for mules now too short?

Drugs and dogsThe question in the title of this post is prompted by this notable and fascinating new article in the New York Times headlined "Second Thoughts on Lighter Sentences for Drug Smugglers." Here are excerpts:

For years, a steady parade of drug smugglers have tried all sorts of ways to ferry contraband into the United States through Kennedy International Airport in Queens, posing a challenge not only to Customs and Border Protection officers, but also to federal prosecutors.

To avoid clogging up the court, the United States attorney’s office in Brooklyn has embraced a strategic approach that allows couriers to plead guilty and offer information in return for lighter sentences.  The policy reflected a view among many prosecutors that the mandatory minimum sentences for drug-related offenses — which require prison terms of five years and higher in these smuggling cases — were too harsh on defendants who were typically nonviolent and disadvantaged.

But in recent months, changes in drug sentencing have served to further lower punishments for these couriers.  A year ago, drug couriers regularly faced three years in prison; now they might face guidelines starting at only a few months, or no prison time at all.

The changes are raising questions of whether the pendulum has swung too far.  Some prosecutors say that couriers have little to no incentive to cooperate anymore.  Border patrol officials grumble that they are working to catch smugglers, only to have them face little punishment.  And judges who once denounced the harsh sentencing guidelines are now having second thoughts....

The debate over what constitutes a fair sentence for drug crimes has persisted for decades.  Critics — many of them judges in this court — have said that sentencing guidelines and mandatory minimum punishments had become hugely problematic. Nonviolent drug offenders, like couriers or people selling marijuana on the street, could face longer guideline sentences than an underground gun dealer.  And until recently, possession of five grams of crack warranted a minimum five-year sentence.  To get the same sentence for powdered cocaine possession, 500 grams would be required.

Various reforms have been instituted to address the inequities in sentencing.  In 1994, a “safety valve” provision allowed nonviolent first offenders on drugs — which describes most couriers — to avoid mandatory minimums if they admitted to all prior criminal conduct.  And in 2010, Congress passed legislation toward balancing the crack versus cocaine disparity....

In August, the United States attorney general, Eric H. Holder Jr., ordered prosecutors nationwide to charge couriers and other low-level drug offenders who met certain criteria in a way that did not result in mandatory-minimum sentences.  (Guideline sentences must still be considered, but they are not mandatory.)

Then, in April, the United States Sentencing Commission voted to reduce sentencing guidelines for drug crimes by two points, or several months.  The reduced guidelines go into effect in November, pending congressional approval, but prosecutors in many districts have agreed to apply them now.

The changes made things more difficult in Brooklyn, where prosecutors still wanted to give low-level couriers an incentive to avoid trials and to assist in prosecutions against larger drug distributors. Believing they had to further sweeten the deal, prosecutors agreed to give an additional four points off those reduced sentences for couriers who agreed to cooperate.

As a result, drug-courier defendants can now face sentencing guidelines that suggest no prison time.

My first reaction to this piece is to suggest that it's a nice change of pace for federal judges to now view at least some federal sentencing guidelines to be too lenient and that any problems this creates can and should be addressed through judicial discretion to sentence above the guidelines, case-by-case, as needed and appropriate.  But I imagine this viewpoint is not very satisfying for federal prosecutors and investigators who depend on the threat of severe sentences to get mules to cooperate to their satisfaction.

For additional intriguing and diverse reactions to these intriguing new drug sentencing realities, check out these posts from other informed bloggers:

July 14, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Thursday, July 03, 2014

Hawaii legislatively eliminates all juve LWOP sentences for all crimes

As reported in this AP piece, headlined "Hawaii ends juvenile life sentences without parole," a new piece of legislation means and and all "life sentences without parole for minors are now abolished in Hawaii." Here are the basics:

Gov. Neil Abercrombie signed a bill Wednesday recognizing that children convicted of first-degree murder should be treated differently than murderous adults.

Advocates say children are impressionable and sometimes can't get out of horrific, crime-ridden environments. Honolulu prosecutors argued the measure isn't fair to people who are born weeks apart from slightly younger perpetrators of the same crime.

July 3, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, July 02, 2014

An (overly?) optimistic account of how GPS technology could "solve" mass incarceration

This recent article from Vox, headlined "Prisons are terrible, and there’s finally a way to get rid of them," praises and promotes efforts to use GPS tracking to reduce US reliance on incarceration. The article strikes me as a bit too optimistic, but it does assembled some research that may justify such optimism.  Here is a snippet from the start of the article that highlights its themes:

So why do prisons exist? In theory, because we need them. They keep bad guys off the street. They give people a reason to not commit crimes. They provide a place where violent or otherwise threatening people can be rehabilitated.

But prisons aren't the only way to accomplish those goals. Technological advancements are, some observers say, making it possible to replace the current system of large-scale imprisonment, in large part, with alternatives that are not as expensive, inhumane, or socially destructive, and which at the same time do a better job of controlling crime. The most promising of these alternatives fits on an ankle.

While the idea of house arrest has been around for millennia, it has always suffered from one key defect as a crime control tool: you can escape. Sure, you could place guards on the homes where prisoners are staying, but it's much easier to secure a prison with a large guard staff than it is a thousand different houses with a guard or two apiece.

Today, we have something better than guards: satellites. The advent of GPS location tracking means it's now possible for authorities to be alerted the second a confinee leaves their home. That not just enables swift response in the event of escape; it deters escape by making clear to detainees that they won't get away with it.

July 2, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Technocorrections | Permalink | Comments (7) | TrackBack

"Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions"

The title of this post is the title of this notable piece authored by Samuel Weiss now available via SSRN. Here is the abstract:

The Eighth Amendment forbids cruel and unusual punishments.  The Supreme Court has found in the Amendment a guarantee that punishment be proportionate to the crime. Although the requirement technically applies equally to all punishment, in practice the Court has used the guarantee strictly to regulate capital punishment — a practice it recently extended to life without parole sentences for juveniles — but has abdicated almost entirely on noncapital sentences.

States have authority to regulate excessive punishment under their state constitutions, but most have chosen to interpret their state proportionality clauses in lockstep with the Eighth Amendment.  Even the states that have found greater protection in their constitutions have done so cautiously, striking down only the rare sentence so absurd that the legislature could not possibly have intended the result.

This Note suggests that states should aggressively police the proportionality of noncapital sentences under their state constitutions.  Part I discusses extant noncapital proportionality, both the United States Supreme Court’s Eighth Amendment doctrine and states’ responses to either heighten standards of review or to march in lockstep with the Court.  Part II discusses the primary basis for state courts’ failure to regulate proportionality — that regulating sentences would be intervening into legislative judgment of retributive fit — and its deep flaws.  State courts ignore that criminal codes bear little relation to actual crime and punishment — criminal liability is so broad and sentences so punitive that legislatures have essentially delegated decisions on criminality and sentence length to prosecutors.  Prosecutors, in turn, routinely deliver disproportionate sentences because prosecutors are local political actors who push the actual costs of incarceration onto state governments; because the public pushes for ever-harsher sentences; and because prosecutors deliver trial penalties to defendants who refuse to plead guilty.  Much of the Supreme Court’s cautiousness comes from its broader fear about intervention in state criminal justice systems; this fear is legitimate but should carry no weight with state courts, which are part of state criminal justice systems.  Part III addresses the remaining arguments against aggressive state proportionality review — that states should interpret their parallel provisions in the same manner as the federal provision and that judges are institutionally incompetent to make decisions about comparative blameworthiness.  The Note concludes that states should use their constitutions to pursue aggressive noncapital proportionality review.

July 2, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, June 29, 2014

Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?

The question in the title of this post is part of my take-away from an engaging and spirited debate with Bill Otis and others that I participated in here over at Crime & Consequences.  The debate began when Bill highlighted this disconcerning recent Los Angeles Times article highlighting that prison reforms in California under Gov. Jerry Brown's realignment plans have not been working out as well as Gov. Brown promised and everyone else might have hoped.  Here is an extended passage from the LA Times article: 

Nearly 15 months after launching what he called the "boldest move in criminal justice in decades," Gov. Jerry Brown declared victory over a prison crisis that had appalled federal judges and stumped governors for two decades.  Diverting thousands of criminals from state prisons into county jails and probation departments not only had eased crowding, he said, but also reduced costs, increased safety and improved rehabilitation....

The numbers tell a different story. Today, California is spending nearly $2 billion a year more on incarceration than when Brown introduced his strategy in 2011. The prisons are still overcrowded, and the state has been forced to release inmates early to satisfy federal judges overseeing the system....

Counties, given custody of more than 142,000 felons so far, complain that the state isn't paying full freight for their supervision.  Many jails are now overcrowded, and tens of thousands of criminals have been freed to make room for more.  "The charts are sobering," Senate Public Safety Committee Chairwoman Loni Hancock (D-Berkeley) said at a hearing this year on crime, prison costs and inmate numbers....

In theory, the state would reduce its prison population and save money [through realignment].  Local authorities would take a more active role in rehabilitation and parole — an approach Brown saw as more efficient and effective. "You have to take care of your own," said Diane Cummins, Brown's special advisor on realignment.

The reality, however, is that realignment fell short of Brown's promised achievements. The prison population fell sharply at first, dropping from 162,400 to 133,000, but it is rising again. There now are 135,400 inmates in state custody, a number expected to grow to 147,000 in 2019.

The state Finance Department originally projected that realignment would reduce prison spending by $1.4 billion this fiscal year and that about two-thirds of that savings would be passed on to counties to cover the costs of their new charges. Instead, the state's increased costs for private prison space and the compensation it pays out for county jails, prosecutors and probation departments adds up to about $2 billion a year more for corrections than when Brown regained office.

Without stemming the flow of prisoners into the system, the problems created by crowding continue.  The Little Hoover Commission, an independent state agency that investigates government operations, said in a May report that realignment simply "changed the place where the sentence is served."

One of the biggest effects of realignment is that state and local authorities are releasing inmates early. From October 2011 to June 2013, California jail releases increased by 45,000, according to state data. The biggest rise has been a doubling in the number of inmates freed before doing half their time....  Although there is no hard proof, politicians, researchers and law enforcement officials are debating whether realignment is behind a recent 8% rise in property crime, reversing years of decline.

Brown's advisors counter that freeing jail inmates is safer than releasing state prisoners. But that too is happening. Under federal orders, the state in April and May freed a total of more than 800 prisoners.

Not surprisingly, the tough-on-crime crowd over at C&C is eager to blame these less-than-positive developments on Gov. Brown and/or the democrats in the California legislature and/or the judges and Justices who declared California's overstuffed prisons to be unconstitutional.  But, notably, it was this same tough-on-crime crowd that vehemently opposed and effectively blocked efforts to create a California sentencing commission to deal proactively and smartly with these enduring problems before they became so acute that federal court intervention was required.  Here is a listing from this blog of some posts noting the debate over creating a sentencing commission in California stretching back to 2006:

Among other realities, a review of this history shows former California Gov. Arnold Schwarzenegger, pushed by police chiefs and district attorneys, initially opposed the creation of a sentencing commission in 2007.  But, by 2009, as the state's ensuring prison problems became even more acute and as consequential federal court orders became even more likely, Gov. Schwarzenegger came to recognize the desparate need for California to have an institution that could bring a data-driven "smart" approach to CJ reform in the state.  Nevertheless, continued advocacy against any commission by the tough-and-tougher crowd in California ultimately precluded (and seemingly still precludes) the creation of such an entity in California.

I do not mean to assert that all would be sunshine and roses in the challenging regulatory state of California if a sentencing commission had been created in 2007 or 2009.  But I do mean to assert that those eager to attack Gov. Brown and/or legislators who have struggled to deal with post-Plata reforms should, at the very least, acknowledge that proponents of a California sentencing commission asserted that the such a commission would have dealt better with prison challenges (and maybe even would have prevented Plata from happening).  In other words, those assailing current developments should at least explain why those who advocated commission-driving smarter policy rather than tougher politics back in 2007 or 2009 would be misguided to assert that the tough-and-tougher crowd in California is arguably most responsible for the current California mess.  

June 29, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (11) | TrackBack

Friday, June 27, 2014

"Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population"

The title of this post is the title of this timely and valuable new article available via SSRN authored by Paul J. Larkin Jr. of The Heritage Foundation. Here is the abstract:

The criminal justice system directs actors to make predictions about an offender’s likely recidivism. Today, many criminal justice systems use some form of a risk-needs assessment as a classification tool at various stages of the criminal process, especially when deciding where a particular offender will be housed or whether he should be granted credit toward an early release.

Research has shown that risk-needs assessments have valuable predictive power and therefore can be worthwhile tools for making the myriad predictions needed in the federal criminal justice system. Yet, risk-needs assessments also are controversial. Some commentators have criticized them on the ground that they offend equal protection principles.

The Public Safety Enhancement Act (PSEA) and the Recidivism Reduction and Public Safety Act (RRPSA) attempt to navigate the path toward criminal justice reform by directing the Attorney General to study the value and legality of risk-needs assessments. Legislators who choose to pursue correctional reform by revising the back end of the process would find that the PSEA and the RRPSA are valuable efforts to improve the system.

I have been hopeful (but not confident) that the distinct efforts at federal sentencing and corrections reform found in the PSEA and the RRPSA would not get lost in the discussion and debate over the Smarter Sentencing Act. But I keep fearing that controversy over the type of front-end reform involved in the SSA has tended to eclipse the (arguably more pressing and consequential) back-end reforms developed in the PSEA and the RRPSA. I hope this piece help folks continue to appreciate the need and value of both types of reform in the federal system.

June 27, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, June 22, 2014

New York Times editorial laments stalled federal sentencing reform

Today's New York Times has this lengthy editorial, headlined "Sentencing Reform Runs Aground," expressing justified concerning that bipartisan support for federal sentencing reform has not yet been enough to secure legislative action. Here are excerpts:

Criminal justice reform is one of the rare issues on which there has been bipartisan support in Congress and significant progress toward a legislative solution. Until recently, anyway.

Two bills, each with Republican and Democratic sponsors, were expected to come up for a vote by this summer — one that would reduce lengthy sentences for many low-level drug offenders and another that would give low-risk inmates credit toward early release if they participate in job-training and drug treatment programs. But progress on both bills has stalled, and congressional leaders who were once confident about their chances this year are now looking toward 2015, at the earliest.

Meanwhile, tens of thousands of federal inmates — many of whom have already served years of unjustly long drug sentences — continue to sit in overstuffed prisons, wasting both their lives and taxpayer dollars at no demonstrable benefit to public safety....

So why the delay? One major factor has been resistance from members of the old guard, who refuse to let go of their tough-on-crime mind-set. In May, three senior Republican senators — Charles Grassley of Iowa, John Cornyn of Texas and Jeff Sessions of Alabama — came out against the sentencing reductions, arguing that mandatory minimums are only used for the highest-level drug traffickers. This assertion is contradicted by data from the United States Sentencing Commission, which found that 40 percent of federal drug defendants were couriers or low-level dealers.

Another factor was the Obama administration’s April announcement that it would consider clemency for hundreds, if not thousands, of inmates currently serving time under older, harsher drug laws. Republicans complained that this — along with other executive actions on criminal justice by Mr. Obama and Attorney General Eric Holder Jr. — took the wind out of reform’s sails.

But with the exception of some old-line prosecutors and resistant lawmakers, everyone still agrees on the need for extensive reform. The other branches of the federal government have begun to do their part: Federal judges across the country have spoken out against the mindlessness of mandatory minimums. The sentencing commission voted in April to reduce many drug sentencing guidelines. And the Justice Department under Mr. Holder has taken multiple steps to combat the harsh and often racially discriminatory effects of those laws.

The public is on board too. According to a recent Pew survey, 67 percent say the government should focus more on treating drug users than on prosecuting them.

Some members of Congress get it. On the right, the charge for reform has been led by Rand Paul of Kentucky, Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona. Yet the prospect of reform has become more precarious, even as the need for it has become more urgent.

Judicial pronouncements and executive orders only go so far. It is long past time for Congress to do its job and change these outdated, ineffective and unjust laws.

June 22, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, June 21, 2014

Two more prominent conservative prosecutors call for less incarceration

Ken Cuccinelli, a former Virginia AG, and Deborah Daniels, a former DOJ official in the Bush Administration, have this notable new opinion piece in the Washington Post headlined "Less incarceration could lead to less crime." In part because this piece reflects a lot of my own views on the modern need for modern reforms, I will quote it at length:

When crime rates began rising in the 1960s and too many Americans felt unsafe walking in their neighborhoods, the idea of putting more people in prison — and keeping them there longer — made sense.

For the next three decades, our nation did just that, as public unease propelled lawmakers to promote longer sentences, curbs on parole and other measures making our correctional system ever tougher.

Now more than 2 million American adults are behind bars and nearly one of every 33 is under some form of correctional control — either incarcerated or supervised in the community. During Ronald Reagan’s presidency, the rate was one in 77.

As conservatives with backgrounds in law enforcement, we embraced the orthodoxy that more incarceration invariably meant less crime, no matter the offense or the danger posed by its perpetrator. But crime rates have been falling since the early 1990s, and a growing body of research combined with the compelling results of reforms in many states prove it is time to adjust our approach.

In short, we must reserve our harshest and most expensive sanction — prison — for violent and career criminals while strengthening cost-effective alternatives for lower-level, nonviolent offenders. The latter lawbreakers must be held accountable for their crimes, but they pose less risk and hold greater potential for redemption.

With today’s sophisticated assessment tools, we can better sort offenders and match them with the levels of treatment and community supervision that offer the best chance for them to stay crime free. Specialty courts that use swift and certain sanctions to promote compliance with drug tests and other conditions of probation are another key plank in this approach.

Let us be clear: Society’s treatment of dangerous, violent felons should remain as punitive as ever. Communities need protection from such predatory criminals, and incapacitation — for a long time, no matter the cost — remains the proper response. Widespread incarceration has played a role in making our streets safer. Estimates vary, but many social scientists believe that expanding imprisonment can be credited for up to a third of the crime reduction of recent years, with demographics, advances in policing and a hotly debated mix of other dynamics accounting for the rest.

However, when it comes to the public safety benefits of incarceration, at least for some offenders, it is clear that we are well past the point of diminishing returns. And given that recidivism levels remained disappointingly high as incarceration rates rose, we would be foolish to ignore the need for a course correction.

The Pew Charitable Trusts recently reported that states that have cut their imprisonment rates (coupled with other reforms) have experienced a greater crime drop than those that increased incarceration. Between 2007 and 2012, the 10 states with the largest decreases in imprisonment rates had a 12 percent average reduction in crime, while the 10 states with the largest imprisonment rate increases saw crime fall 10 percent....

When you see, as we have, what reduces criminal behavior, it’s easier to accept the notion that for many offenders, prison is not the best answer. That conclusion is part of what led us to join Right on Crime, a national movement of conservatives who support a criminal justice system reflecting fiscal discipline, a belief in redemption, the empowerment of victims and reliance on solid evidence to determine the most cost-effective use of taxpayer funds to reduce recidivism and improve public safety.

Much of the talk about such reforms highlights their fiscal payoff, and we’re all for saving taxpayer dollars. But as conservatives, we also applaud such efforts because they reflect an evidence-driven approach that values results, not imprisonment for imprisonment’s sake.

Let’s resist our old incarceration reflex and support a rational system anchored in the knowledge, experience and values of today. Let’s preserve families, restore victims, help willing offenders turn their lives around and keep the public safe.

Some older and recent posts on the "new politics" of sentencing reform:

June 21, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Wednesday, June 18, 2014

Fascinating accounting of state incarceration rates in a global perspective

I just came across this interesting chart and discussion headlined "States of Incarceration: The Global Context," which reviews world incarceration rates if every U.S. state were a country. The chart and related discussion is both enlightening and depressing, and here is an excerpt:

Around the globe, governments respond to illegal activity and social unrest in many ways. Here in the United States, policymakers in the 1970s made the decision to start incarcerating Americans at globally unprecedented rates.... While there are certainly important differences between how U.S. states handle incarceration, placing each state in a global context reveals that incarceration policy in every region of this country is out of step with the rest of the world....

If we compare the incarceration rates of individual U.S. states and territories with that of other nations, for example, we see that 36 states and the District of Columbia have incarceration rates higher than that of Cuba, which is the nation with the second highest incarceration rate in the world.  New Jersey and New York follow just after Cuba.  Although New York has been actively working on reducing its prison population, it’s still tied with Rwanda, which has the third highest national incarceration rate. Rwanda incarcerates so many people (492 per 100,000) because thousands are sentenced or awaiting trial in connection with the 1994 genocide that killed an estimated 800,000 people.

Next comes the state of Washington, which claims the same incarceration rate as the Russian Federation. (In the wake of collapse of the Soviet Union, Russia used to rival the United States for the highest incarceration rate in the world.  An epidemic of tuberculosis in the overcrowded prisons, however, encouraged the Russian government to launch a major amnesty in 1999 that significantly lowered that country’s incarceration rate.)

Utah, Nebraska and Iowa all lock up a greater portion of their populations than El Salvador, a country with a recent civil war and one of the highest homicide rates in the world.8 Five of the U.S. states with the lowest incarceration rates — Minnesota, Massachusetts, North Dakota, New Hampshire, and Rhode Island — have higher incarceration rates than countries that have experienced major 20th century social traumas, including several former Soviet republics and South Africa.

The two U.S. states that incarcerate the least are Maine and Vermont, but even those two states incarcerate far more than the United State’s closest allies. The other NATO nations, for example, are concentrated in the lower half of this list.  These nations incarcerate their own citizens at a rate five to ten times lower than the United States does.

June 18, 2014 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, June 15, 2014

"Lawmakers should be parsimonious — not sanctimonious — on drug sentencing"

The title of this post is the headline of this new commentary at The Hill authored by Jamie Fellner.  Here are excerpts:

Hopes are high that the U.S. Congress will do the right thing this year and reform notoriously harsh federal drug sentencing laws that have crammed U.S. prisons with small-time offenders.

The bipartisan Smarter Sentencing Act, approved by the Senate judiciary committee and now awaiting debate in the full Senate, would reduce federal mandatory minimum sentences for certain drug offenders, increase the number who can avoid them altogether, and permit prisoners serving time under outdated crack-cocaine sentencing laws to seek lower sentences. Passage would begin to reverse a decades-long trend that's seen "too many Americans go to too many prisons for far too long and for no good law enforcement reason," as Attorney General Eric Holder put it earlier this year.

Although legislators may not realize it, reduction of unduly severe sentences for drug offenders will help bring federal sentencing back in line with the long-overlooked principle of "parsimony." In the criminal justice context, parsimony dictates that sentences should be no greater than necessary to serve the legitimate goals of punishment, namely, retribution for past crimes, deterrence of future ones, and rehabilitation of the offender.

Congress once recognized the importance of parsimony. In the Sentencing Reform Act of 1984, it instructed federal judges to impose sentences that were “sufficient, but not greater than necessary” to advance the purposes of punishment. But starting in 1986, against a backdrop of social and economic turmoil, racial tension, and the advent of crack cocaine, Congress enacted mandatory minimum drug sentencing laws with stunning disregard for whether they would yield needlessly harsh sentences -- which they invariably did for the low-level offenders who made up the bulk of those receiving them....

Opponents of the Smarter Sentencing Act, including some current and retired federal prosecutors, insist — without evidence – that the mandatory drug sentences are necessary to protect public safety. They also claim — and here the evidence is on their side — that the threat of high mandatory sentences helps convince defendants to plead guilty and cooperate with the government in exchange for lesser punishments. Because judges have no choice but to impose the mandatory minimums triggered by the charges prosecutors file, prosecutors can make good on the threat of higher sentences for those defendants who insist on going to trial: their sentences are on average three times longer than for those who plead. Not surprisingly, ninety-seven percent of drug defendants choose to plead guilty. Opponents of drug law reform seem to forget — or don't care — that the purposes of punishment do not include bludgeoning defendants into pleading.

Each year, hopes for federal drug sentencing reform are dashed by legislative inertia and a few powerful legislators who cling to outdated “tough on crime” notions. Perhaps this year will be different. A growing number of lawmakers, Republicans and Democrats, realize that lengthy mandatory minimum drug sentences are ineffective, wasteful, and expensive. And though few may use the term parsimony, many have come to understand that unnecessarily harsh sentences make a mockery of justice.

June 15, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Saturday, June 14, 2014

Notable indication that "smart on crime" sentencing reform in West Virginia is paying dividends

StsealAs highlighted by this local article, headlined "Governor: Justice Reinvestment Act drops W.Va. jail population by 5%," it appears that another state is having significant success with data-driven "smart-on-crime" sentencing and corrections reforms. Here are the encouraging details:

Although in effect for slightly more than a year, legislation to reduce prison overcrowding by reducing recidivism and substance abuse is having a positive impact, Gov. Earl Ray Tomblin said during an event Thursday in Washington, D.C.

“Since I signed West Virginia’s Justice Reinvestment Act, we have had a 5 percent reduction in our prison population,” Tomblin said. “In April 2013, we had nearly 7,100 prisoners in our state. Last Thursday, that figure was down to 6,743. We have reduced overcrowding at our regional jail facilities by nearly 50 percent.”

The legislation was enacted in May 2013, after a yearlong study coordinated by the Council of State Governments’ Justice Center, which recommended reducing prison overcrowding with accelerated probation and parole for nonviolent offenders, and better community-based resources for parolees, including substance-abuse treatment programs.

Tomblin told the Washington CSG event that, in April 2013, West Virginia’s corrections system was 1,746 inmates over capacity, a figure that has now dropped to 885. “Today, we have more than 1,000 fewer people in our prisons than what was projected just a few years ago,” Tomblin said. “Without these changes, we expected to have more than 7,800 inmates in West Virginia prisons, compared to today’s total of 6,743.”

Since the passage of the legislation, Tomblin said, the state has continued efforts to reduce re-offense rates with new workforce training programs, assistance in helping parolees find appropriate housing and efforts to ensure access to community-based substance-abuse treatment for those released from prison, funded through Medicaid expansion....

The West Virginia Democrat was joined at the event by Republican Pennsylvania Gov. Tom Corbett, who has overseen similar successes with prison-reform programs in the Keystone State. Corbett noted that, in the 1990s, Pennsylvania was building a new prison nearly every year, as mandatory sentencing laws were causing the state’s inmate population to soar.

Michael Thompson, director of the CSG Justice Center, noted that the national dialogue has changed from a partisan debate over which party could be tougher on crime to a bipartisan effort to be smart on crime, a theme echoed by Tomblin. “I hope other states will consider the justice reinvestment model to take a “smart on crime” approach to prison overcrowding and public safety,” he said.

June 14, 2014 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, June 12, 2014

Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines

As reported here on Tuesday, the Justice Department this week advocated to the US Sentencing Commission that it make its new reduced drug guidelines retroactive only for the lowest-level offenders now serving prison sentences under the old drug guidelines. No doubt because many are eager to see the new drug guidelines made fully retroactive and because I suggested the DOJ half-a-loaf approach was politically and practically astute, I have received two lengthy and thoughtful e-mails from informed advocates which are critical of the DOJ retroactivity position and my reaction to it. With permission, I am posting the comments here.

Federal public defender Sarah Gannett had this to say:

I was the Federal Defender witness at yesterday's USSC hearing on drugs-minus-two retroactivity, and I read your post about the DOJ proposal.  Although I can see how the DOJ proposal might have some facial appeal, I urge you to take a closer look at it.

There is little evidence that the exclusions the Department is proposing are tied in any meaningful way to public safety.  At best, they are overbroad, and will result in deserving inmates being excluded from relief (for example, drug addicts who are in high CHCs because of multiple minor prior convictions related to their addictions).  Indeed, the Commission has acknowledged that criminal history is an imperfect proxy for seriousness of criminal history and risk of recidivism, which is why the Guidelines include a departure provision for over-representation.  Unfortunately, because of the way 1B1.10 is currently written, those who received over-representation departures will be ineligible for relief if the Commission adopts the DOJ proposal.  Similar arguments can be made about the enhancements the DOJ proposes as limiting.

Both David Debold, on behalf of PAG, and Mary Price, for FAMM, focused on the DOJ's proposal in their testimony yesterday.  You may wish to speak to either or both of them. I also encourage you to read the Defender testimony, which is available on the Commission's website.  Although we did not know what the Department's proposal would be until it was announced yesterday, we anticipated and addressed many of the points the DOJ proposal raises (see especially pp. 5-6).

Full retroactivity is the just result, which the Criminal Law Committee of the Judicial Conference recognized.  In fact, in her oral testimony, Judge Keeley indicated that the CLC considered a proposal like the DOJ's, but rejected it out of fairness concerns.  The CLC recommended a different compromise -- which delays implementation just until the institutional players can adequately prepare to address the volume of cases.  This approach is more principled than the limitations suggested by the Department.  It is discussed in the CLC's statement, which also was posted.  (Defenders took the position that, based on experience gained in the crack retroactivity process and other factors, the players could find a way to manage the caseload.  See our statement at pp. 9-13, 14-15.)

Those who are concerned about community safety should remember that the retroactivity statute and policy statement require the sentencing judge to review and consider the appropriateness of early release in every individual case, an obligation that courts took seriously following the 2007 and 2011 retroactive crack amendments.

Former US Pardon Attorney Margaret Colgate Love had this to say:

I am genuinely puzzled by the Department's proposed "compromise" on the retroactivity issue, and surprised and disappointed by your response to it.  I suggest that you compare the Department's proposal for guidelines retroactivity with the President's eight commutations last December.

Only one or possibly two of the eight individuals whose sentences were commuted -- all presumably pursuant to a favorable Department recommendation -- would qualify for relief under the DOJ proposed "compromise".  Clarence Aaron was enhanced for obstruction, Gray and Wintersmith had guns, and Gilbert, Wheeler and Patterson and probably George were either career offenders or CHC III or above.  Of the eight, only Jason Hernandez (a gang member charged with massive amounts of drug, with juvie gun priors) would appear to be a candidate for relief under the DOJ proposed compromise, a curious result to say the least.

It certainly raises a question why the Department thinks it is appropriate to ask the President to make these tough case-by-case calls but does not trust district judges to make them.  Somehow that does not seem "politically and practically astute" (your words), or respectful of institutional roles and competencies.  Moreover, if DOJ really wanted to lighten the burden imposed on its own staff by its unprecedented and possibly ill-advised invitation to all federal prisoners to apply for clemency, and to the private bar to represent them, one would think it should be asking the courts to do more of this work, not less.

Perhaps this means that DOJ will interpret and apply its six new clemency criteria narrowly, and recommend only those prisoners who fit in this minor-record-no-gun-no-obstruction category -- those few who would not benefit from the guidelines reduction because of a mandatory minimum.  It is not at all clear to me that such a crabbed interpretation of the clemency initiative would be responsive to the President's clear signal in the December 8 grants about what he wants from his Justice Department.

If the only ones recommended for clemency are those who satisfy the criteria commended to the Commission by the Department, this will be a cruel hoax on federal prisoners, who are expecting a lot more.  It will also be deeply unfair to the hundreds of private lawyers who have agreed to donate their time to learn a new skill in preparation for telling a prisoner's story, in what may turn out to be a false hope that one of their clients will win the clemency lottery.

I commend Judge Irene Keeley for saying that full retroactivity is a "moral issue" and the courts’ “burden to bear.”  Good for the POs too, whose professionalism is encouraging. I agree with Judge Keeley that it would be fundamentally unfair to categorically deny full retroactivity to prisoners, just as it would be fundamentally unfair to categorically exclude certain prisoners from clemency consideration.

I hope the Department -- and the President -- will come to see that the apparatus already exists to achieve sentencing fairness, and it is in the courts not the executive.  I hope also that this President does not turn out to be the third in a row to be embarrassed by his Justice Department's clemency program.

Some recent related posts:

June 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, June 11, 2014

Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform

Long-time readers know that we used to be able to get Bill Otis's tough-on-crime perspective on sentencing reform via the comments to posts here, but now we all need to head over to Crime & Consequences to see his take on current sentencing events.  Not surprisingly, the discussion by US Sentencing Commission about whether to make its new lower drug guidelines retroactive has Bill going strong, and here are a sampling of him recent post from C&C:

The titles of all these posts provide a flavor of their contents, but I urge all folks following closely the debates over recent federal sentencing reform to click through and read all Bill has to say on these topics.  Notably, the first post listed above highlights how perspectives on broader reform debates will necessarily inform views on particular positions taken on smaller issues.  Bill assails DOJ for advocating for "large scale retroactivity" when it decided to yesterday to "support limited retroactivity of the pending drug guideline amendment."  In notable contrast, I have received a number of e-mails from advocates of federal sentencing reform today (some of which I hope to soon reprint in this space) that assail DOJ for not advocating for complete retroactivity.

June 11, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack

Tuesday, June 10, 2014

DOJ advocates for "limited retroactivity of the pending drug guideline amendment"

As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board.  And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.  

As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines.  Here are the basics of the compromise advocated by DOJ via its submitted testimony:

After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....

Assessing whether the amendment should be applied retroactively requires balancing several factors.  The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders.  While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public’s confidence in the criminal justice system and our prison resources....

Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....

Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the “circumstances” under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.

With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission’s own research, and identifying them will not require new hearings.

Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.

Some recent related posts:

June 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

New ACLU report assails private prison industry involved in federal immigration detention

As detailed in this press release, this week "the American Civil Liberties Union and the ACLU of Texas released the report Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private Prison Industry, [which examines] the secretive 'Criminal Alien Requirement' or 'CAR' prisons for immigrants."  Here is more about the report from the ACLU press release:

 In a four-year investigation of five CAR prisons in Texas, our researchers found pervasive and disturbing patterns of neglect and abuse of the prisoners–all non-citizens, most of whom have been convicted only of immigration offenses (such as unlawfully reentering the country).

"At the CAR prisons we investigated, the prisoners lived day to day not knowing if their basic human needs would be met, whether they would get medical attention if they were hurt or ill," said Carl Takei, Staff Attorney at the ACLU’s National Prison Project.  "The Bureau of Prisons creates perverse incentives for the for-profit prison companies to endanger human health and lives."

In total, the 13 CAR prisons across the country hold more than 25,000 immigrants....  The report details the relationship between each of the three companies that run them–CCA, GEO Group, and MTC–and the federal Bureau of Prisons, including the ways that the Bureau and the companies work together to cover up the prisons’ conditions....

In Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private Prison Industry, the ACLU and the ACLU of Texas tell the stories of prisoners who have been torn from their families by the extreme distances (often 1,000 miles or more) between a CAR prison and a prisoner’s hometown and by the high phone rates the private prison companies charge for phone calls.

Among its recommendations to the federal government, the report calls on the Bureau of Prisons to strengthen oversight of CAR prisons, end the use of contractually binding occupancy quotas for CAR prisons, and stop spending taxpayer money to shield basic information about private prisons from public disclosure.  It also urges the Departments of Homeland Security and Justice to return immigration enforcement to civil immigration authorities.

The full report is available at this link.

June 10, 2014 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Monday, June 09, 2014

Two years after Miller, Iowa still muddling through juve sentencing

As highlighted by this local article, headlined "Iowa juvenile sentencing rules in legal limbo," the Hawkeye state is still struggling with how to revamp its juvenile sentencing rules to comply with modern Eighth Amendment restrictions. Here are the details:

Iowa prosecutors want clarification on the state’s sentencing laws for juveniles convicted of murder. The U.S. Supreme Court in 2012 struck down the use of mandatory life terms in prison for defendants who committed murder when they were under 18. The court ruled that judges have to take a person's age and the severity of crime into consideration.

Iowa legislators have been working since then to determine whether to change state sentencing rules. Rep. Chip Baltimore, R-Boone, chairman of the House Judiciary Committee, said lawmakers are struggling to decide the best approach given the “hodgepodge of judicial rulings” that have left in question what is the minimum number of years a juvenile who commits first-degree murder should be required to serve in prison before being eligible for parole.

“It’s a situation that we’re trying to deal with the amorphous concept of cruel and unusual punishment not only as it’s interpreted through the federal constitution but the Iowa Supreme Court has decided that the cruel and unusual punishment provision in the Iowa Constitution means something different that what it means at the federal level,” he said.

Iowa Assistant Attorney General Kevin Cmelik said prosecutors want clear guidelines. “There is no clear answer as to what is required by the law right now because we don’t have a statute that’s applicable anymore," he said.

Prosecutors like Black Hawk County Attorney Tom Ferguson tried to get lawmakers to set a mandatory minimum of at least 35 years for juveniles convicted of first-degree murder, but it failed to gain traction last legislative session....

Prosecutors say judges should have discretion to re-impose a life sentence with or without parole but they worry that lesser penalties potentially could create a situation where someone sentenced for second-degree murder could be facing more prison time that an offender found guilty of a Class A crime.

Forty-eight youth in Iowa who have been sentenced to life in prison without the possibility of parole since 1964, state data shows.

June 9, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, June 07, 2014

Detailing how many more women have come to discover "Orange is the New Black"

WomenstateTo really appreciate the popular NetFlix show "Orange is the New Black," everyone should read and reflect on the data on modern female incarceration usefully assembled in this recent Fusion piece headlined "The Real Life Stats Behind Women in Prison and ‘Orange is the New Black’." Here are the data (with sources, emphasis and links included):

The series "Orange is the New Black" is based on a true experience that follows women in prison, which is one of the fastest growing prison populations.  So, it’s only appropriate [with] the premiere of the second season of "Orange is the New Black" we look at some of the numbers of women in prison.

The number of women in prison increased by 646 percent between 1980 and 2010, rising from 15,118 to 112,797. If we include local jails, more than 205,000 women are now incarcerated. The female prison population is increasing at nearly double the rate for men. (The Sentencing Project-PDF)

Two thirds of women in prison are there for non-violent offenses, many for drug related crimes. (Women’s Prison Association - PDF)

Oklahoma is the greatest incarcerator of women. Oklahoma incarcerates more women per capita than any other state with 130 out of every 100,000 women in prison. Massachusetts has the lowest rate of female imprisonment at 13 per 100,000 women. (Women’s Prison Association - PDF)

1 in 25 women in state prisons and 1 in 33 in federal prisons are pregnant when admitted to prison. Women can be shackled during labor in at least 32 states. The majority of children born to incarcerated mothers are immediately separated from their mothers. (The Sentencing Project-PDF)

Women in prison are more likely than are men to be victims of staff sexual misconduct. More than three-quarters of all reported staff sexual misconduct involves women who were victimized by male correctional staff.(The Sentencing Project-PDF)

Black women represent 30 percent of all incarcerated women in the U.S, although they represent 13 percent of the female population generally.

Latinas represent 16 percent of incarcerated women, although they make up only 11 percent of all women in the U.S. (ACLU)

Transgender inmates are almost always housed according to their birth gender. The two most common responses are housing transgender prisoners on the basis of their birth gender or placing them in isolation. (American Academy of Psychiatry and the Law)

June 7, 2014 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Friday, June 06, 2014

More critical analysis of NRC mass incarceration analysis from John Pfaff

As I highlighted in this post late last week, through a series of astute posts at PrawfBlawg, Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the National Research Council's analysis of mass incarceration.  John's first five posts in that series are linked here, and now below I have linked his latest in this important series:

June 6, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, June 05, 2014

"Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause"

The title of this post is the title of this notable new paper by Paul Larkin now available via SSRN.  Here is the abstract:

The Supreme Court long ago rejected due process challenges to the government’s use of strict liability offenses, but the Court has never considered the issue of whether imprisonment for such crimes violates the Cruel and Unusual Punishments Clause.  Being unable to persuade the Court to forbid strict liability crimes altogether, defendants incarcerated for those crimes are likely to argue that their punishment is cruel and unusual.  It therefore may not be long before the courts, including the Supreme Court, must finally address the issue.  When that day arrives, the Court should limit the penalties that can be imposed for strict liability crimes by forbidding any period of incarceration altogether or, at least, by outlawing imprisonment.  The Constitution should not allow a person to be imprisoned for committing a strict liability offense.

June 5, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Wednesday, June 04, 2014

Constitutional challenge to California's solitary confinement practices to proceed as class action

As reported in this Los Angeles Times article, headlined "Judge grants class action status to inmates' solitary confinement case," a notable procedural ruling in a notable prisoner suit was handed down earlier this week. here are the basics:

A federal judge in Oakland has granted inmates in solitary confinement at Pelican Bay State Prison class action status in their claims of unconstitutional treatment. The inmates allege physical and psychological abuse when California puts inmates in Pelican Bay's windowless isolation cells. The prisoners are confined 22 hours a day and, in some cases, have been in solitary for years and decades at a time....

The Pelican Bay inmates, in their federal lawsuit, also challenged the administrative process California uses to determine who to send to the super-maximum security cells for an indefinite stay....

In courtroom proceedings, lawyers for the state have argued that isolation is necessary to keep the peace within prisons, and to hinder gang activity inside and outside prison walls. They said that by creating a so-called "step-down" program last year that allows some prisoners to eventually earn their way out of isolation, the state had made sufficient improvements.

In her ruling Monday, U.S. District Judge Claudia Wilken narrowed the class action case to just those Pelican Bay inmates who have not been accepted into the state's step-down program. Civil rights lawyers litigating the case say they hope a victory will set a national precedent on the use of extended isolation in prisons across the United States....

The class action motion was filed by 10 Pelican Bay inmates in solitary confinement, but California has since moved five of them to other quarters. Wilken's order allows the remaining five prisoners to represent the larger class of some 500 Pelican Bay prisoners who have spent more than a decade in isolation, and some 1,100 put into solitary because of alleged gang associations....

Wilken refused to allow the state prison guard union to intervene in the lawsuit. The California Correctional Peace Officers Assn. had argued that it had an interest in protecting the safety of its members by preventing prisoners from leaving solitary confinement.

June 4, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, June 03, 2014

Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"

This notable new commentary in The Huffington Post by Megan Quattlebaum makes the case for the US Sentencing Commission to make fully retroactive its new guidelines amendment reducing most federal drug sentencing recommendations. Here are excerpts:

In a landmark decision, the United States Sentencing Commission voted last month to lower the recommended penalty for federal drug crimes by about 17 percent.  As of now, the change will apply only to defendants who are sentenced after November 1, 2014.  But the Commission is also exploring whether the reduction should be made retroactive, and it issued two reports two reports two reports (available here and here) analyzing that question last week.

Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences.  That a large number of people will be affected is not surprising -- almost half of all federal prisoners (48 percent) are incarcerated for drug crimes.  But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels.  We incarcerated approximately 25,000 people in federal prisons in 1980.  By 2013, that number had risen to over 219,000.  As a result, the federal prison system is operating at 36 percent over capacity, costing taxpayers $6.4 billion per year and climbing....

Second, a significant percentage (about 25 percent) of the 51,141 potentially eligible for earlier release are non-citizens who may be subject to deportation.  Many rightly question the wisdom of incarcerating large numbers of ultimately deportable non-citizens at taxpayer expense....

Third, the average age of an inmate who will be eligible for a sentence reduction is 38 years.  In the universe of criminal justice, 38 is old.  Researchers have consistently found that involvement in street crimes, like drug offenses, generally begins in the early teenage years, peaks in young adulthood, and dissipates before the individual turns 30. Explanations for this phenomenon are varied, but "[a] large body of research shows that desistance from crime... is... tied to the acquisition of meaningful bonds to conventional adult individuals and institutions, such as work, marriage and family..."  These older offenders should have a low risk of recidivism generally.  And the more that we can do to foster their re-engagement with their families and communities, the lower that risk will be.

Fourth, 20 percent of the individuals who may be eligible for earlier release come from one state: Texas.  True, Texas is big and populous, but it's also punitive.  The more heavily populated state of California only accounts for five percent of potential sentence reductions, while New York accounts for about four percent.  Reading the charts that accompany the Sentencing Commission report is a statistical window into the American drug war, in which hang 'em high southern states feature prominently, if not proudly.

The Sentencing Commission is accepting public comments until July 7, 2014 on whether to make these changes to drug sentences retroactive. Some will no doubt argue against retroactivity, either out of fear that releasing individuals earlier will permit them re-offend sooner or out of concern for the serious workload that federal courts will have to take onin order to process so many applications for sentence reduction.  But if we have revised our view of what constitutes a just sentence for a drug offense, then we cannot and should not justify continuing to incarcerate 51,141 people under an old, rejected understanding. We should never be afraid of too much justice.

I am grateful to see this thoughtful effort to dig into the US Sentencing Commission data concerning who could benefit from the new drug guidelines being made retroactive. And I think this commentary rightly highlights that the nationality status and the age profile of federal drug prisoners provide some important extra reasons for being comfortable with the new guidelines being made retroactive.

That said, the commentary about Texas justice and the state-by-state analysis strikes me a potentially a bit misguided. I suspect and fear that federal prosecution of drug crimes in Texas is higher than in other states not only because of the likely international dimensions to many drug crimes around the Mexican border but also because state drug laws in other states may be uniquely harsh. This commentary compares data from California and New York, but these two states have had a history of some notorious tough state sentencing laws (i.e., the Three Strikes Law in California, the Rockefeller Laws in NY). There may be so many federal drug prisoners from Texas not because state sentencing policies and practices are so tough, but because federal policies and practices relative to state norms are so much tougher and because local drug crimes are not really local along the border.

My point here is to highlight that state-by-state examination of federal drug sentencing patterns may reflect lots of distinct and dynamic factors.  Notably, the Commission data indicate that about the same number of federal drug prisoners from Iowa will be impacted by retroactivity of the new drug guidelines as from Arkansas and Mississippi combined.  These data alone hardly reveal the corn belt is the real "hang-em-high" center for the national drug war.  Ultimaely, ever-changing local, state and national drug use and trafficking patterns along with dynamic prosecutorial policies and priorities likely better explain state-by-state federal prisoner data than any social or political conventional wisdom.

Some various somewhat recent related posts:

June 3, 2014 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Friday, May 30, 2014

The Good, the Bad and the Ugly of mass incarceration analysis: John Pfaff tears apart NRC report

DownloadAstute readers who also follow closely a lot of broader media and political discussions of mass incarceration might have noticed that I have given relatively little attention on this blog to the massive report released late last month by the National Research Council (NRC) titled "The Growth of Incarceration in the United States: Exploring Causes and Consequences."   To date, I only noted the report and some early reactions to it in this post.

One reason for my limited blog coverage is a result of the NRC report running more than 450 pages (accessible at this link); I am always disinclined to do in-depth analysis or commentary on a significant report unless and until I have had adequate time to read most of it.  But the primary reasons I have not blogged much about the NRC report is because, as I found time to start reading key parts of the NRC effort, I found myself underwhelmed by the originality and sophistication of the report.  I had hoped, for example, that the NRC report would take a close look at the relationship between lead exposure and crime rates and/or would systematically look at critical state and regional differences in US crime and imprisonment rates.  Instead, rather than break any new ground, much of the NRC report reads like an effective and lengthy summary of a lot of conventional wisdom. 

Fortunately, a leading legal academic and empiricist with a critical eye has started to bring a (very) critical perspective to the NRC report. Through a series of astute posts at PrawfBlawg (all so far linked below), Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the NRC analysis.  John's first post, titled "The Problematic National Research Council's Report on Incarceration: Some Initial Thoughts," previews his series this way:

The National Research Council, the well-respected research arm of the National Academy of Sciences, recently released a putatively authoritative report on the causes and implications of US incarceration growth.  Sadly, it appears to be a deeply, profoundly flawed report.  It is, in short, a rehashing of the Standard Story that I have argued time and again lacks real empirical support.

Dangerously, this report gives the Standard Story the NRC’s seal of approval, which will only increase its hold on policy-makers’ perceptions.  The New York Times has already written an editorial pushing the NRC’s Standard-Story arguments, and no doubt it will be cited widely in the months to come.

So in the posts ahead, I want to dig into the report more deeply.  I will certainly acknowledge what it gets right, but my sense so far is that it is one rife with errors.

From the start, here are John's posts to date highlighting some of the NRC errors he sees:

May 30, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

US House hearing on "Penalties" as part of Over-Criminalizaiton Task Force

Taking place as I write this post is a notable hearing (which I am watching live via this link) of the Over-Criminalizaiton Task Force of the Judiciary Committee on the topic of "Penalties." Here is the witness list, with links to their written statements: 

A quick scan of the submitted testimony linked above reveals that regular readers of this blog will not find all that much which is new from the witness. But the submitted statements still provide a very effective review of all the essential elements of the modern debate over federal mandatory minimum sentencing provisions.

UPDATE:  TheHouse hearing adjourned just before 11am, after most of the usual suspects had the opportunity to stake out their usual positions.  I doubt this hearing moved the needle in any significant way, though I still found notable and telling that the US House Representatives arguing against the modern drug war and sentencing status quo generally seemed much more passionate and animated than those eager to support the status quo.

May 30, 2014 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, May 25, 2014

Detailing the high costs of an aging prison population

AgingThis lengthy story in the Omaha World-Herald, headlined "Prisons: pricey nursing homes for Nebraska's aging inmates," highlights the expensive realities of an aging prison population. Here are excerpts:

At age 84, Larry Ortiz is like many senior citizens, dealing with the aches and pains of old age. He uses a cane to steady his slow, shuffling gait. He battles arthritis in his bony fingers, bronchitis and dry eyes. He takes four medications and has trouble remembering names. He has had prostate surgery, been fitted for dentures and had cataracts removed. He has two artificial knees.

But Ortiz is different. He’s spending his twilight years behind bars, serving a life sentence for beating a 29-year-old woman to death in 1970, then cutting off her hands to mask her identity before dumping her body. And the cost of his old-age maladies is being picked up by taxpayers.

Ortiz is part of an ever-rising number of aging inmates who occupy prison cells in Nebraska and other states — nationwide, they are the fastest-growing segment of the prison population. In Nebraska, the graying of prisons has contributed to chronic overcrowding and has been a major factor in rapidly rising health-care costs.

Dealing with older inmates is not cheap. Nationally, they are twice as expensive to house on average as younger prisoners because of their increased medical needs — such as Ortiz’s titanium knees, which together cost upward of $90,000.

Prisons have become de facto nursing homes for more and more inmates. Unit 1 at the Nebraska State Penitentiary in Lincoln, where Ortiz lives, houses many senior citizen inmates. It’s designed to accommodate wheelchairs and has wider doors and handrails. The state corrections system also has 31 skilled nursing beds, like those found in a nursing home. The state is looking at building a 240-bed prison to consolidate housing for inmates who are older, as well as those with mental illnesses.

Prison administrators say that by law they must provide the “community standard of medical care” or risk federal intervention. In California, for example, the U.S. Supreme Court cited substandard medical care and overcrowding in ordering the release of thousands of inmates. “It may frustrate taxpayers,” Nebraska prison Director Mike Kenney said of the medical care, “but constitutionally, ethically and morally, we cannot cut corners with inmates.”

The ACLU and other groups recommend increased use of “medical” or “geriatric” parole for medically incapacitated inmates and “conditional releases” for inmates over age 50, if they have served a certain number of years and no longer are threats to society. “Geriatric” or “medical” parole can save states money, said Marc Levin, a corrections authority with the Texas Public Policy Foundation, which has studied Nebraska’s prison system. At least 36 states, including South Dakota, have such laws, Levin said. California granted medical parole to 47 inmates from 2010 to October 2012 and reduced its health care expenses more than $20 million.....

The increase in older inmates was a key driver in a request to the Nebraska Legislature

last fall for $9 million to cover additional medical expenses this year and next....Generally, criminal offenders show signs of aging earlier than the typical person, in part because of their riskier lifestyles, which can lead to higher rates of hypertension, arthritis, sexually transmitted diseases, hepatitis and diabetes. About 1 in 3 inmates in Nebraska’s state prisons — about 1,600 — receives “chronic care,” which involves regular medication and follow-up checks for conditions such as hypertension and asthma.

A report by the ACLU projects that by 2030, 1 in 3 prisoners in the nation will be 55 or older. As of October of last year, nearly 18 percent of the inmates in Nebraska prisons were 50 or older. In Iowa, about 12 percent of the state’s 8,215 prison inmates are over 50. Nationally, get-tough-on-crime policies and the general aging of the U.S. population have been blamed for the explosion of silver hairs behind bars.

In Nebraska, there is an additional factor: Fewer inmates serving life sentences are being given a chance at release. Three decades ago the State Board of Pardons was more likely to commute a life sentence for murder to a specific number of years once an inmate had served 20 or 30 years. That provided a chance to gain a release on parole. But such commutations have occurred only four times in the past 23 years, so more lifers are spending the rest of their days in prison, racking up medical and prescription expenses.

The National Institute of Corrections estimates that it costs $60,000 to $70,000 a year to house an elderly inmate, compared with $27,000 to $34,000 for the average prisoner....

During the 2012-13 fiscal year, 16 inmates died in state prisons; 12 were over age 50. Releasing elderly, infirm inmates would present some problems. Win Barber, a penitentiary spokesman, said many would have to go to nursing homes — which may not want to house someone like a convicted murderer.

Gov. Dave Heineman, who sits on the State Pardons Board, said he would be cautious about releasing elderly inmates, though it’s probably something worth studying as part of the overall study of the state prison system’s spending and policies. “They’re in prison for a reason,” he said.

May 25, 2014 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Friday, May 23, 2014

"Treating Prisoners With Dignity Can Reduce Crime"

The title of this post is the headline of this notable new National Journal commentary authored by Nicholas Turner and John Wetzel. The piece's subheadline is "In Europe, prisoners work for real wages and even cook for themselves. And when they leave prison, they don't come back." And here are excerpts:

It sounds like the first line of a joke: "Three state corrections teams and some experts who are old hands at visiting prisons go to meet their warden counterparts in Germany and the Netherlands in mid-January to see what they could learn."

But it's a true story — and what high-level delegations from Colorado, Georgia, and Pennsylvania learned through the Vera Institute of Justice's European-American Prison Project is no laughing matter. What we learned, in fact, has serious and timely boots-on-the-ground implications....

For those of us who visited Germany and The Netherlands, the approach to sentencing and the prison philosophy we saw astonished and inspired us.  Not only are far fewer people imprisoned, but even those who have committed serious violent crimes serve far shorter sentences.

In these European countries, prisons are organized around the belief that, since virtually all prisoners will return to their communities, it is better to approach their incarceration with conditions as close to "normal" as possible — with the addition of treatment, behavioral interventions, skills training, and needed education — and to remove them from communities for the shortest possible time so that institutional life does not become their norm.

Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. Inmates have privacy — correctional officers knock before entering — they wear their own clothes, and can decorate their space as they wish.  They cook their own meals, are paid for work that they do, and have opportunities to visit family, learn skills, and gain education.  Inmates are required to save money to ensure that they are not penniless upon release.  There are different expectations for their corrections officers — who are drawn primarily from the ranks of lawyers, social workers, and mental health professionals — to be part of a "therapeutic culture" between staff and offenders, and consequently receive more training and higher pay.  There is little to no violence — including in communal kitchens where there are knives and other "dangerous" implements.  And their maximum time in any kind of punitive solitary is eight hours.

Prison policies grounded in the belief that prisoners should be treated with dignity were startlingly effective — and have eminently pragmatic implications here at home.  The adverse social and economic outcomes for former prisoners in the U.S. are severe — and they are concentrated in communities that are already struggling mightily.  With 95 percent of our nation's incarcerated individuals eventually returning home from prison — and 40 percent going right back to prison within three years — we would do well to heed the strategies used in these nations to teach prisoners how to be good and productive citizens that can rebuild their communities....

Are there challenges to wholesale reform?  Of course.  Money.  Infrastructure. Strains of racial division borne of our history and heterogeneity.  And, cultural differences especially as relates to violence may mean that some European practices may not translate smoothly to the U.S.  Yet we are at a moment of potential for significant shifts.  It will require legislation and policy change, including rethinking sentencing for lower offenses and reducing the time for those who must be in prison.  But the notion that we should strive to create an environment within our prisons conducive to our goal — to return good citizens to our communities — is a challenge we can and must meet.

May 23, 2014 in Criminal Sentences Alternatives, Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (3) | TrackBack

Thursday, May 22, 2014

Newt Gingrich and Van Jones say "Prison system is failing America"

Not only has CNN brought together a 2012 Republican presidential candidate and a former advisory to President Barack Obama as co-hosts of "Crossfire," but it now has published this interesting joint commentary under the headline "Prison system is failing America."  Here are excerpts from an interesting opinion piece that goes a bit beyond just the usual standard points about the various problems with modern mass incarceration:

Thirty-eight U.S. states are home to fewer people than live under the corrections system in this country. There are about as many people behind bars as live in Chicago. That's one in every 108 Americans. One in 35 are under some form of correctional supervision.

Among African Americans, the numbers are even more horrifying. According to the NAACP, one in three black males born in the United States today is likely to spend time in prison at some point in his life. That's compared with one in six Hispanic males or one in 25 white males.

It would be hard to overstate the scale of this tragedy. For a nation that loves freedom and cherishes our rights to life, liberty and the pursuit of happiness, the situation should be intolerable. It is destroying lives and communities.

Our corrections system is not correcting. Within three years of being released from prison, nearly half of prisoners are convicted of another crime with one out of every four ending up back in prison.

When a typical bureaucracy does its job this badly, it wastes money, time and paper. The corrections bureaucracy, in failing to correct the large majority of inmates in its charge, not only wastes money but also wastes lives, families and entire cities.

The current system is broken beyond repair. It's a human, social and financial disaster. We need a radical strategy of replacement of these huge bureaucracies that lack any meaningful oversight.... We need to rethink prisons, parole and probation for the 21st century.

At a time when high-quality education is increasingly digital and in many cases free, shouldn't we provide opportunities for prisoners to learn skills that will enable them to support themselves as upstanding citizens when they are released?

We know that inmates who earn a GED while incarcerated are substantially less likely to return to prison. There are readily available online tools that our prisons could use extensively for a minimal cost to increase the number of inmates receiving valuable education and skills training.

Khan Academy has replicated virtually the entire K-12 curriculum online for free. Udacity and other online education sites offer introductions to software programming for free. Our prisons should be using tools such as these extensively. They offer the opportunity to interrupt the cycle of poverty, a failing education system, crime and incarceration....

Technology should revolutionize more than just the prisons' rehabilitation programs. It should completely transform the corrections and criminal justice systems.... [T]echnology should enable much more effective probation and community supervision, especially new options that could allow nonviolent offenders to remain with their families living productive lives under an appropriate level of restriction.

Almost any activity to which we might sentence low-level offenders --apprenticeship programs, school, literacy or computer science boot camps, community service -- would be a better use of taxpayer dollars than sticking them idle in prison with hardened criminals. Unfortunately, the current corrections bureaucracy has embraced none of this innovation -- in part because it is captive to the prison guards' unions or the private prison lobby, and in part because it lacks any incentives or sufficient competition based on the right metrics....

Years ago, Van proposed that states give wardens a financial incentive to cut the rates of recidivism for inmates leaving their prisons. More than 65% of inmates in California return to prison within three years of their release, where they will again cost taxpayers an average of $47,000 each year.

Surely it is worth giving wardens a substantial portion of the savings for every inmate that leaves their prison and does not re-offend. Such incentives would spark dramatically more innovation and investment in rehabilitation, job training and job placement programs for prisoners. That would be a revolutionary change from prison administrators' current incentives, which are often to keep as many people in custody as possible.

Finally, we need real market competition that rewards success at every step of the process -- in probation and parole offices as well as prisons. That doesn't just mean privatizing prisons or rewarding probation services with the same failed metrics. We need competition of methods and ideas based on the right criteria: When we send prisoners home, do they have the skills to reintegrate in their communities as working, law-abiding citizens? Or do they end up coming back?...

We should start by opening our prisons and probation offices to innovation to save money, achieve better outcomes for individuals and ensure better safety for us all.

May 22, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack

"Remodeling American Sentencing: A Blueprint for Moving Past Mass Incarceration"

The title of this post is the title of this notable new piece by Michael Tonry now available via SSRN. Here is the abstract:

When and if the will to roll back mass incarceration and create just, fair, and effective sentencing systems becomes manifest, the way forward is clear:

-First, three-strikes, mandatory minimum sentence, and comparable laws should be repealed.

-Second, any three-strikes, mandatory minimum sentence, or similar laws that are not repealed should be radically narrowed in scope and severity.

-Third, any three-strikes, mandatory minimum sentence, and similar laws that are not repealed should be changed to include provisions authorizing judges to impose some other sentence “in the interest of justice.”

-Fourth, LWOP laws should be repealed, or radically narrowed.

-Fifth, truth-in-sentencing laws should be repealed.

-Sixth, criminal codes should be amended to set substantially lower maximum sentences scaled to the seriousness of crimes.

-Seventh, every state should establish a sentencing commission and promulgate a presumptive sentencing guidelines system.

-Eighth, any state that does not establish an effective set of presumptive sentencing guidelines should establish a system of parole guidelines.

-Ninth, every state and the federal government should reduce its combined rate of jail and prison confinement to half its 2014 level by 2020.

-Tenth, every state should enact legislation making all prisoners serving fixed terms longer than five years, or indeterminate terms, eligible for consideration for release at the expiration of five years, and all prisoners aged 35 or over eligible for consideration for release after serving three years.

These proposals are evidence-based, and mostly technocratic.  Those calling for prison population targets and reducing the lengths of sentences being served may appear bold to some.  Relative to the problems they address they are modest and partial.  Reducing rates of imprisonment by half in the United States, a country with comparatively low crime rates, to a level that will remain 3 to 3.5 times those of other developed Western countries, can hardly be seen as overly ambitious.

May 22, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Wednesday, May 21, 2014

Fascinating exploration of modern data on modern mass incarceration

7 Trends in State Incarceration RatesIf you like data and like thinking hard about what to think about data about modern mass incarceration (and who doesn't), then you will be sure to like this interesting new posting authored by Andrew Cohen and Oliver Roeder at the Brennan Center for Justice headlined "Way Too Early to Declare Victory in War against Mass Incarceration." Here are excerpts (with some links retained) from an interesting and important bit of number crunching:  

At The Week Monday, Ryan Cooper summarized some dramatic statistical work about mass incarceration undertaken by Keith Humphreys, the Stanford University professor and former Obama administration senior advisor for drug policy. The headline of the piece, “The plummeting U.S. prison admission rate, in one stunning chart,” was accompanied by Cooper’s pronouncement that “whatever the reason” for the drop it “is certainly great news.” Some of the same optimism was expressed over the weekend, in The New York Times Book Review section, by David Cole, the esteemed Georgetown law professor who has written so eloquently recently about many of the greatest injustices in American law. Reviewing Columbia University professor Robert Ferguson’s excellent book, “Inferno,” Cole proclaimed that “we may be on our way out of the inferno” and that “it is just possible that we have reached a tipping point” in the fight against mass incarceration.

Would that it were so. It is far too early, as a matter of law, of policy, and of fact, to be talking about a “plummeting” prison rate in the United States or to be declaring that the end is in sight in the war to change the nation’s disastrous incarceration policies.  There is still far too much to do, far too many onerous laws and policies to change, too many hearts and minds to reform, too many families that would have to be reunited, before anyone could say that any sort of “tipping point” has been spotted, let alone reached.  So, to respond to Humphreys’ work, we asked Oliver Roeder, a resident economist at the Brennan Center for Justice, to crunch the numbers with a little bit more context and perspective. What follows below ought to shatter the myth that America has turned a corner on mass incarceration. The truth is that many states continue to experience more incarceration than before, the drop in national incarceration rates is far more modest than Humphreys suggests, and the trend toward reform could easily stop or turn back around on itself....

[T]he incarceration rate is decreasing, but no, not by much. It’s down 5.5 percent since its 2007 peak. Since 2001, it’s up 1.6 percent. An unscientific word for this trend would be “flat.”

As for individual states’ incarceration rates, experiences over the past decade have varied greatly.... California, New Jersey, and New York have dipped over 20 percent from their 2001 levels, while West Virginia, Minnesota, and Kentucky have seen over 30 percent increases.

Incarceration is a state-specific issue in other senses as well. Clearly the trends can vary dramatically, but so can the rates themselves. In 2012, Louisiana’s incarceration rate was 873, while Maine’s was 159....

So what’s the story? Well one thing it isn’t is crime. There is a body of evidence that indicates that crime doesn’t really affect incarceration. Incarceration, rather, is a policy choice, largely independent of the actual level of crime in the world. (The incarceration rate is not a result of one single policy choice, of course, but rather is a function of many policy choices which compose essentially our willingness or propensity to incarcerate.) Admissions and thus incarceration were increasing because of increased willingness to incarcerate, or reliance on incarceration. I don’t have a good sense as to why admissions and incarceration have been dipping lately, but it does seem to be driven by a minority of (typically large) states.

May 21, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Two new juve justice papers from The Sentencing Project

Via e-mail, I just learned about two new briefing papers on juvenile justice policy issues coming from the folks at The Sentencing Project.  Here are links to the papers with the descriptions I received via the organization's e-mail blast:

May 21, 2014 in Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, May 20, 2014

Texas teen facing 5-to-life for selling pot brownies(!) highlights prosecutorial sentencing powers

A drug war and severe sentencing story making the media rounds today emerged via this recent local report headlined "Texas man facing possible life sentence for pot brownies." Here are the basics (which have already been sensationalized a bit in some media accounts I have seen):

A Texas man accused of making and selling marijuana brownies is facing up to life in prison if convicted.  That’s because officials in Round Rock have charged him with a first-degree felony.

It’s a move that the man’s family and attorney outraged. “It’s outrageous. It’s crazy. I don’t understand it,” Joe Lavoro, the man’s father said. Like many familiar with the case, Joe does not understand why his son is in so much legal trouble....

The 19-year-old is accused of making and selling pot brownies.  He’s charged with a first degree felony.  “Five years to life? I’m sorry.  I’m a law abiding citizen.  I’m a conservative. I love my country.  I’m a Vietnam veteran, but I’ll be ****ed.  This is wrong. This is ***n wrong!” the father said.

Lavoro’s lawyer agrees. “I was outraged. I’ve been doing this 22 years as a lawyer and I’ve got 10 years as a police officer and I’ve never seen anything like this before,” Jack Holmes, Lavoro’s attorney said.

The former high school football player has a clean record.  The charge is so severe because the recipe includes hash oil.  That allows the state to use the sugar, cocoa, butter and other ingredients to determine the weight of the drugs.  “They’ve weighed baked goods in this case. It ought to be a misdemeanor,” Holmes said.

KEYE reached out to the district attorney to ask how they’re going to prosecute the case.  Our call has not yet been returned....

Jacob’s father wants what’s right. “If he did something wrong, he should be punished but to the extent that makes sense. This is illogical. I’m really upset, and I’m frightened, I’m frightened for my son,” Joe said.

Jacob Lavoro's father is right to be frightened, in large part because it would seem that his son's fate is now almost entirely in the hands of local prosecutors. Though I do not know all the ins and outs of Texas drug laws, I assume that the local prosecutors can (and probably will) ultimately allow Lavoro to plead to some less charge rather than go to trial on a first-degree felony charge carrying a 5 to life sentence. But the fact that such a severe charge with a big-time sentence is even on the table all but ensures that the local prosecutor can extract a plea on whatever terms strikes his fancy.

May 20, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

"Save money, reduce crime: Alternative sentencing works, so Ohio needs to do more of it"

The title of this post is the headline of this notable lead editorial appearing in today's Columbus Dispatch. The Dispatch has a reputation as a pretty conservative paper (e.g., it has endorsed only GOP Prez candidates for nearly a century), so I see this editorial as further significant proof that more and more traditional conservative voices are seeing the value of (and now actively making the case for) sentencing and prison reforms.  Here are excerpts from this editorial:

Ohio has made progress in easing prison crowding by offering alternatives for nonviolent offenders. But a look at the numbers shows that more can be done. The good news is, Ohio already knows what works: putting nonviolent felons in programs that make them better prepared to lead crime-free lives rather than in expensive prisons with hardened criminals.  The challenge is to find the resources for the up-front investment.

Alternative-sentencing programs, such as the 18 community-based correction facilities and other programs based on drug-and-alcohol treatment and life-skills training, have a record of reducing recidivism.  But the state hasn’t invested in them equally across the state, according to Ohio Division of Rehabilitation and Correction Director Gary C. Mohr....

A proposal contained in one of the mid-biennium budget-review bills would provide about $13 million to add 400 to 500 community-facility beds across the state.  Because stays in such programs typically are three months, each of those beds could allow three people per year to get help and treatment rather than a prison stay.  That saves taxpayers money and increases the chance that the offender will go on to a productive life — a double win.

As Ohio’s prisons grow more crowded and potentially more dangerous, the need for more alternatives becomes clearer. One in every 175 Ohio adults is in a state prison, and with nearly 51,000 inmates, the system has 30 percent more than it was designed for. Considering that each of those inmates costs taxpayers nearly $23,000 a year and that a large number are low-level, nonviolent offenders, it’s an expensive way to deal with societal problems.

A change to state sentencing law in 2011 aimed to ease the burden by steering more nonviolent offenders to community-based correction programs. The largest counties responded, and two years ago the prison population seemed to be on the decline. But Ohio’s wave of heroin and other opiate addictions, combined with too few alternative-treatment options, have swelled the prison population again.... But Mohr now finds himself with a new peak population and no reduction in sight unless the state invests more in alternatives.

Legislators should take note of the successful track record of alternative correction and steer available funds in that direction. Ohio won’t benefit from more prisons; putting low-level criminals in prison is a lousy business model with a poor return on investment. Spending less to provide the type of supportive correction that can turn around lives is a much smarter proposition. And it saves prison beds for those who pose the greatest threat to society.

Recent related post:

May 20, 2014 in Criminal Sentences Alternatives, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, May 16, 2014

Record-long sentence?: 81-year-old child molester gets 935- to 1,870-year prison sentence

As reported in this local article, in order to "serve as a warning to other child predators," Pennsylvania Judge Albert Cepparulo "has imposed a 935- to 1,870-year prison sentence to an 81-year-old man who sexually abused a girl for four years and videotaped nearly every assault."  Here is what led the judge to require an elderly offender to remain imprisoned until at least the year 2949:

Thomas Holliday was convicted in January of 234 crimes, including hundreds of counts related to creating and possessing child pornography.  Prosecutors said Holliday began abusing the girl in 2009, when she was 14.

Holliday was a family friend who offered to help the girl's mother financially and the girl was sent to live with him. He denied the charges, telling the judge that he and the teen were in love. 

May 16, 2014 in Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Thursday, May 15, 2014

AG Holder assails solitary for juves with mental illness

As highlighted by this DOJ press release, "Attorney General Eric Holder on Wednesday called for an end to the excessive use of solitary confinement for youth that suffer from mental illness." Here is more about AG Holder's latest use of his criminal justice bully pulpit:

“Across the country, far too many juvenile detention centers see isolation and solitary confinement as an appropriate way to handle challenging youth, in particular youth with disabilities. But solitary confinement can be dangerous, and a serious impediment to the ability of juveniles to succeed once released.

“In a study released last year by the Office of Juvenile Justice and Delinquency Prevention, 47 percent of juvenile detention centers reported locking youth in some type of isolation for more than four hours at a time. We have received reports of young people who have been held in solitary confinement for up to 23 hours a day, often with no human interaction at all. In some cases, children were held in small rooms with windows that were barely the width of their own hands.

“This is, to say the least, excessive. And these episodes are all too common.

“This practice is particularly detrimental to young people with disabilities – who are at increased risk under these circumstances of negative effects including self-harm and even suicide. In fact, one national study found that half of the victims of suicides in juvenile facilities were in isolation at the time they took their own lives, and 62 percent of victims had a history of solitary confinement....

“We must ensure in all circumstances – and particularly when it comes to our young people – that incarceration is used to rehabilitate, and not merely to warehouse and forget. Our nationwide effort to end the unnecessary or excessive seclusion of youth with disabilities will not be completed solely with one settlement or court filing. But as a department, we are dedicated – and as Attorney General, I am committed – to doing everything possible to ensure the effectiveness and integrity of our criminal and juvenile justice system. In the days ahead, we will continue to make good on our commitment to the best practices of law enforcement and the highest ideals of our nation.” 

May 15, 2014 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, May 12, 2014

Significant collection of significant former federal prosecutors write to Senators to oppose SSA

Thanks to this new post by Bill Otis at Crime & Consequences, titled "Former Top DOJ Leaders Oppose the SSA," I have learned that a significant number of significant former federal prosecutors — including former US Attorneys General William Barr and Michael Mukasey — have signed on to a public letter to Senators Harry Reid and Mitch McConnell to express publicly their opposition to any reform of federal drug mandatory minimums. The full text of the letter is available at C&C, and here are excerpts:

Because the Senate is now considering revisiting the subject of mandatory minimum penalties for federal drug trafficking offenses, we take this opportunity to express our personal concerns over pending legislative proposals.  We are concerned specifically by proposals that would slash current mandatory minimum penalties over federal drug trafficking offenses — by as much as fifty percent.  We are deeply concerned about the impact of sentencing reductions ofthis magnitude on public safety.  We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines and PCP.  We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. In addition, we fear that lowering the minimums will make it harder for prosecutors to build cases against the leaders of narcotics organizations and gangs — leaders who often direct violent and socially destructive organizations that harm people throughout the United States.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking — not drug possession offenses — and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a mandatory minimum sentence.  Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved.  Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player,and cooperates with federal authorities.  This "safety valve," as it's known, has been in the law for almost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down drug conspiracies, large criminal organizations and violent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety.  We have made great gains in reducing crime.  Our current sentencing framework has kept us safe and should be preserved.

In addition to thinking this letter is a pretty big deal, I am now wondering if it represents the final nail in the Smarter Sentencing Act's coffin or instead reveals that the SSA might still have some legs. Based on the lack of action on the SSA over the last few months, I have been assuming this effort at federal sentencing reform was dying a slow death, and this letter from a lot of prominent former prosecutors provides yet another reason and basis for member of Congress to express additional concerns about the sentencing reforms in the SSA. And yet, if the SSA was already in its death throes, I doubt there would have been so much obvious energy devoted to getting all these prominent former prosecutors speaking out against the reforms in the SSA.

All that said, I continue to find the discussion and debate over the SSA an intriguing (and valuable?) distraction from all the other arguably much-more-consequential federal sentencing developments that are afoot. The fact that prominent Tea-party leaders in the GOP like Rand Paul, Mike Lee and Ted Cruz all support significant federal sentencing reform, the fact that state marijuana reforms seem to be continuing apace, the fact that the US Sentencing Commission has voted to lower most of the drug guidelines, the fact that most federal sentences are now outside the guidelines, and the fact that DOJ and Prez Obama are working hard on clemency reform all will be likely impacting federal sentencing realities more than whether or not the SSA is passed by Congress. (This is not to say that the SSA is not important or potentially consequential, but it is to say that a whole host of much broader forces are changing the dynamics of modern federal sentencing policies and practices.)

Some prior posts about the SSA federal prosecutorial perspectives on sentencing reform:

May 12, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Documenting the enduring challenge of reducing prison populations in Ohio

Prison-boom-art0-gfjsdd1f-10511gfx-prison-boom-population-epsOne of many challenges facing this nation as it works toward trying to ameliorate the worst excesses of mass incarceration is the modern and now-all-too-common social and cultural instinct that significant prison terms must be the "right" way to respond to any and all crimes of concern.  One expression and example of this perspective concerns this recent story of the feds appealing, and calling "substantively unreasonable," a probation sentence for a high-profile tax evader who has already paid in penalties more than 10 times the amount of taxes he tried to evade.  

Another expression of this reality is in this lengthy story from my own Columbus Dispatch headlined "Ohio struggles with rising prison population: One in 175 adults in the state is incarcerated, at taxpayer cost of $22,836 each annually." Here are excerpts:   

When Gary Mohr began his career at the Marion Correctional Institution in 1974, there were 8,516 inmates in state prisons. Forty years later, he manages a system nearly six times as large, packed with 50,639 offenders. One of every 175 adult Ohioans is housed, fed and receives medical care at taxpayer expense in a state prison. The latest two-year budget allocated $3.14 billion for the prison system.

Ohio officials have been unable to consistently tamp down the prison population despite attempts to do so. Major sentencing reforms were enacted, “good time” was reintroduced, community programs were enhanced, and early-release provisions were added.

And still the numbers go up. The latest projections suggest the inmate population in 27 prisons (including two private facilities) will hit 52,000 in two years, and 53,484 in five. Prisons already are bulging with 30 percent more prisoners than they were designed to hold.

“I’m getting a lot of people saying, ‘When are you going to build another prison?’  ” Mohr said in an interview. “I’m a believer in people instead of bricks and mortar. I’m not going to build another prison.” The major reason is the enormous cost, Mohr said. “That’s a commitment of $1 billion for two decades. It would cost $120 million to $150 million to build and $40 million annually to operate.”...

The series of reforms that began with House Bill 86 in 2011 got traction in Ohio’s six largest counties, including Franklin, which reduced the number of offenders being sent to state prisons in the past year. That helped reduce the prison population by about 675. However, the number of inmates being sent to prison from the remaining 82 counties increased, helping push up the population by 11.1 percent from 2003 to 2013. Here’s the math behind the numbers: Each prisoner costs Ohio taxpayers $22,836 per year, so adding 100 prisoners, for example, costs nearly $2.3 million.

A report by the Correctional Institution Inspection Committee, a legislative corrections watchdog, last August listed five contributing reasons why the prison population has gone up: a very small increase in violent crime, longer sentences for higher-level felonies, dramatically fewer prison releases (a 24.3 percent drop in five years), legislation increasing penalties for specific crimes, and adverse court decisions. Another factor may trump all the others: a flood of heroin cases. Men coming into prison still outnumber women more than 4 to 1, but that gap is shrinking as more women are incarcerated for nonviolent drug crimes.

State Sen. Bill Seitz, R-Cincinnati, who has been instrumental in recent prison-reform legislation, says the changes included in House Bill 86 are indeed working, “just not as fast as we had hoped. They’ve certainly ameliorated the situation as opposed to doing nothing. “We didn’t expect a dramatic overnight reduction,” Seitz said. “It takes awhile for the full import of these comprehensive reforms to float down the system.”

Seitz said many judges opposed the reforms because they limited judicial discretion in sentencing. As a result, “some judges are finding creative ways of sidestepping the provision that requires them not to send to prison first-time Felony 4 and Felony 5 non-violent drug and property offenders.”...

The prison-crowding issue is an everyday dilemma for corrections officers represented by the Ohio Civil Service Employees Association. “We were told sentencing reform would flatten out staffing levels, but we keep keeping more people (hired) on the administrative staff and those who work 9 to 5,” said the union’s president, Christopher Mabe. “We know there’s going to be more inmates coming into the system, and that means we need more staff.”

May 12, 2014 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack