Thursday, November 06, 2014
"After the Cheering Stopped: Decriminalization and Legalism's Limits"
The title of this post is the title of this notable and timely paper by Wayne Logan which I just saw on SSRN. Here is the abstract:
To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon.
Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for marijuana possession have skyrocketed in number in recent years, including within decriminalization jurisdictions. This essay examines the chief reasons behind this disconnect, centering on powerful institutional incentives among police to continue to make arrests, enabled by judicial doctrine that predates the recent shift toward decriminalization. The essay also identifies ways to help ensure that laws decriminalizing simple marijuana possession, as well as other low-level offenses, better achieve decriminalization’s goal of limiting the arrest authority of police and the many negative personal consequences of arrest.
Tuesday, November 04, 2014
Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates
In this post this morning, I noted that the Supreme Court is finally due to get back around to working on important criminal justice issues with oral arguments scheduled in Yates v. United States, No. 13-7451 and in Johnson v. United States, No. 13-7120. I now see that the always great SCOTUSblog now has up these two new posts providing detailed argument previews:
On Johnson from Rory Little, "Are there (finally) five votes to declare the residual clause of the ACCA unconstitutionally vague?"
On Yates from Lyle Denniston, "Can plain language be vague?"
In addition, as religious blog readers may remember, another view of the ACCA issues in Johnson was covered in this space a few weeks ago via this SCOTUS preview guest-post by Professor Stephen Rushin titled "Measuring the Dangerousness of Felonies for Sentencing Purposes."
US District Judge Kopf reports on retroactive implementation of new reduced federal drug guidelines in Nebraska
As noted in this post from last week, the start of November2014 marked the official start for the new reduced federal guidelines for drug offenses put in place by guideline Amendment 782. At his great blog, US District Judge Richard Kopf has this lengthy new post on the practicalities of implementing the Amendment's retroactivity in his district. I recommend the whole post, from which these excerpts are drawn:
I will take a moment to describe the implementation of Amendment 782 in the District of Nebraska. We are a small district with a large criminal case load, especially including drug cases. As of June 30, 2014, on a per-judge basis, we ranked seventh in the nation and first in the Eighth Circuit for criminal cases. Indeed, Amendment 782 may impact over 700 offenders previously sentenced in our court. Behind the scenes, the implementation of Amendment 782 has had a huge impact on us as we try to fully and fairly implement this important retroactive change to the Guidelines.
With 700 offenders potentially eligible for a sentencing reduction, our district decided that every potentially eligible offender would have his or her case individually scrutinized whether or not a motion had been filed and that every such offender would have a lawyer. After conferring with the United States Attorney, the Federal Public Defender and our probation office, we issued general (standing) orders....
Four people are responsible for superintending the implementation of Amendment 782: two very senior United States Probation officers who are experts in the Guidelines; the head of the drug prosecution unit of the US Attorney’s office; and the Federal Public Defender. They have cooperated nicely, and have established internal operating protocols between them. After the Clerk’s office tracked down the whereabouts of each of the 700 or so offenders through the Bureau of Prisons (a huge task), the group of four sensibly decided upon a “triage” plan. Offenders who are eligible for release on the earliest possible date (November 1, 2015), get attention first. Offenders who are eligible later receive attention later.
Ultimately, the Federal Public Defender, or one of his assistants or a Criminal Justice Act panel lawyer, will file a motion for relief when the group of four decide that the time is right. A probation officer will submit and file as a restricted document a worksheet that includes a calculation under Amendment 782 and the Guidelines. That worksheet will also include a report on the offender’s institutional adjustment and the probation officer’s recommendation about whether relief should be granted....
After the motion is filed, and the worksheet is submitted, the prosecutor and defense lawyer will confer and in most cases a stipulation will be reached. Assuming a stipulation is reached, it will be filed. After that, and without a hearing, relief will normally be granted. If no stipulation can be reached, then in my cases a hearing will be held.
It is possible that a judge might tentatively conclude not to follow a stipulation. While I cannot speak for the other judges, in my cases, I will hold a hearing to give the parties an opportunity to be heard. Whether or not the defendant will be present at such a hearing has yet to be determined by me. In the past, if a dispute of fact arose and the offender could be expected to have unique knowledge of the facts, I have not hesitated to give the offender an opportunity to appear and testify. It is probable that I will follow the same approach for Amendment 782 factual disputes where the testimony of the offender is critical to the fair resolution of the matter. However, in the huge majority of cases, this will not be necessary.
In summary, the equitable and effective implementation of Amendment 782 requires a lot of “behind the scenes” work. We are fortunate to have the cooperative, but always zealous, assistance of prosecutors and defense lawyers, aided by a probation office that is second to none.
SCOTUS hears argument in two notable federal criminal justice cases this week
Though today, Election Day 2014, is a big day for citizens to consider who gets to be in charge of making federal laws in Congress, tomorrow is a big day for SCOTUS Justices to consider the reach of some of those laws. Via SCOTUSblog, here are the basics of the two federal criminal justice cases being hear in the Supreme Court on Wednesday:
Issue: Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.
Issue: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.
Monday, November 03, 2014
Arguing for releasing all drug prisoners and reparations to "right the drug war’s wrongs"
Lucy Steigerwald has this provocative new Washington Post blog/commentary piece headlined "Sentencing reform and how to right the drug war’s wrongs." Here are excerpts:
On November 1, the U.S. Sentencing Commission’s plan to reform sentencing for certain drug crimes went into effect. The details were hammered out back in April and July, and they could have been challenged by Congress. Thankfully, Congress declined to do so, and now the commission has a chance at helping nearly half of the 100,000 inmates in federal prison come home earlier than they otherwise would have.
For decades, the war on drugs rolled onward, leaving a pulpy mass of casualties in its wake. But since at least 2012, when Colorado and Washington state legalized recreational use of marijuana, there has been some serious strides against this dangerous domestic policy. Generally, however, any progress made on drugs has been confined to changing the legality of substances....
Even the tentative, good-but-not-good-enough Fair Sentencing Act, which reduced the sentencing disparity between crack and cocaine in 2010, was initially not retroactive until the USSC voted to make it so.... The USSC is doing something more substantial still with their new guidelines, which allow for retroactive petitioning for reduced time in prison starting in November 2015. Prisoners may begin petitioning for these reductions now, however. Unfortunately, those sentences cannot fall below the mandatory minimums, which can only be changed by Congress. Ideally, the Justice Safety Valve Act, introduced by Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.), which would give judges more flexibility to depart from mandatory minimums, will be eventually signed into law, allowing for some of the damages wrought by these mandatory sentences to be mitigated.
In addition, even though the sentencing reforms help the federal prison population, we are very far from instituting anything as optimistic on a statewide level. Most of the some-400,000 state prisoners in jail on drug-related crimes are out of luck unless they get individual commuting of their sentences.
As the war on drugs loses popularity, the question of what to do about the lives ruined and interrupted is going to come up again and again. One of the more fascinating, though politically unrealistic suggestions for what to do about this mess is one offered by a Green Party candidate for governor of New York: Howie Hawkins suggests releasing all drug prisoners, and putting together a “panel on reconciliation” between them and their communities and governments. They want voting rights restored, school grants restored, help for children of the former cons, and prevention of would-be employers asking about criminal histories. They even suggest full-on reparations for “the communities affected.”
This won’t pass muster, probably not even in the most liberal states. The slow reforms being offered by the USSC, and criminal justice advocates like Sen. Paul might be all we get. But the reparations idea does present a question of what society should do after the madness of a moral panic dims, and the end result turns out to be 2.3 million people in prison or jail. Most people wouldn’t object to a payment to any of the 147 people freed from death row, especially those who turned out to be unequivocally innocent. What happens when we realize that neither possessing nor selling drugs is a real criminal act? Doesn’t that suggest that we have a lot of innocent people in prison who will need a lot of help in restarting their lives?
Sunday, November 02, 2014
Interesting review of the (too cautious?) work of California's Attorney General
The Los Angeles Times has this notable review of the tenure and work of Califronia's Attorney General. Here are excerpts:
Kamala D. Harris, California's top law enforcement officer, had little to say in July when an Orange County federal judge declared the state's death penalty system unconstitutional. Several weeks later, Harris announced that she would challenge the decision, but her reasoning was curious: The ruling, she said, "undermines important protections that our courts provide to defendants."
That she delayed making her views known — and then used a liberal justification to explain a response sought by conservatives — has fueled a perception that Harris is reluctant to stake out positions on controversial issues....
On the conservative side, Kent Scheidegger of the Criminal Justice Legal Foundation said Harris "hasn't done anything really bad but also hasn't been the vigorous leader California needs.… [Former Republican Atty. Gen.] Dan Lungren would have been out the next day denouncing the opinion and vowing to take it to the Supreme Court."
Harris, 49, bristles at the suggestion that she is afraid to take stands. "On the issue of same-sex marriage, my position was very clear," Harris said in a recent interview. She was referring to her refusal to defend Proposition 8, the 2008 ballot measure limiting matrimony to one man and woman, which was struck down in court....
During her time as attorney general, Harris has used the office to draw attention to transnational crime, recidivism and truancy. She also has created units to focus on cyber-crime and cyber-privacy. In deciding to appeal the ruling against the death penalty, which excoriated the system for decades-long delays, Harris said she was moved by concern that appeals might be streamlined "at the expense of due process" — meaning the protection of inmates' rights. In his decision, however, U.S. District Judge Cormac J. Carney had not suggested that defendants' protections should be curtailed. He pointed to a study that blamed logjams in the system on various factors.
Although Harris personally opposes the death penalty, her aides have emphasized that she would vigorously defend the law. If the U.S. 9th Circuit Court of Appeals agrees with Carney, Harris then would have to decide whether to appeal to the Supreme Court. If she decided against an appeal, the death penalty in California would probably end. "We will have to see what the court rules," Harris said, without elaborating on her thinking.
She delighted death penalty supporters Wednesday by appointing Gerald Engler, a longtime assistant attorney general and former county prosecutor, to head the office's criminal division. Scheidegger, a strong proponent of executions, called the choice "an out-of-the park home run."
When she first ran for attorney general four years ago, Harris barely defeated former Los Angeles Dist. Atty. Steve Cooley, who had heavy backing from law enforcement. Today, police groups back Harris. "She has not let her personal views undermine the constitutional role of the office," said John Lovell, a lobbyist for the California Police Chiefs Assn., which has endorsed her. "She has been very accessible and she has a real problem-solving, analytical style."...
[Her Republican opponent Ron] Gold has blasted her for failing to take a stand on the legalization of marijuana. He favors legalization, while Harris has not made up her mind. "She does not take chances," Gold said. "AG for her doesn't mean 'attorney general.' It means 'almost governor.'"
Harris attributes her reticence to a desire for more information. She said she wants to review Washington's and Colorado's experiences with legalization before deciding whether it would be good for California. "It would be irresponsible for me as the chief law enforcement officer to take a position based on its popularity without thinking it would actually work," Harris said.
She backed the legalization of marijuana for medical needs, but has done little to clarify the law or push for regulation, activists complain. "She has been largely absent" from efforts in Sacramento to establish regulations, said Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego and author of a textbook on drug law. "It's less about trying to be middle of the road and more about not rocking the boat."
Following-up in Maryland after court rules some sex offenders not subject to new registration requirements
This lengthy new Baltimore Sun article, headlined "Court ruling upends Maryland's sex offender registry," provides an interesting follow-up a few months after a state court ruling disrupted the state's sex offender registry. Here are excerpts:
The memory of the break-in still stirs terror three decades later: The Rockville woman was ordered out of bed at knifepoint by a teenage burglar, who commanded her to stare out a window as he started to take off her robe. Before anything else could happen, the woman's husband, who had been tied up in the bathroom, broke his bonds and violently tackled the teen, leaving both of them with stab wounds. That ended Robin Lippold's 1981 summer crime spree, which included other burglaries and a rape.
But it did not eliminate the woman's fear, which lingered long after the pre-dawn attack. That dark emotion surfaced again last week, when she learned that Lippold had been removed from Maryland's sex offender registry, a searchable public database that lists each person's residence and place of employment.
The 50-year-old Lippold is among 1,155 sex offenders who have been removed from the registry since February, according to data obtained by The Baltimore Sun through a public records request. Almost 400 of them are rapists, including a man who raped a blind teenage girl in a mall parking lot and a man who raped a 67-year-old woman who was walking her dog.
Most have been stripped out because of a decision by Maryland's highest court. That ruling handed a victory to advocates who said the registries were unfairly punitive, but has troubled legislators and upset victims.... The Court of Appeals ruling — that laws governing the registry subjected some offenders to a form of retroactive punishment — has radically altered Maryland's system of tracking people convicted of sex crimes.
Experts say there's little evidence that the registries help keep the public safe, and can unfairly punish offenders. Some judges around the United States have agreed that the registries amount to unconstitutional punishment in some cases. In Maryland, a prominent defense lawyer is continuing to fight in the courts, seeking to get more names removed from a list that she says stigmatizes too many people.
But the lists are popular among legislators, who see them as an option to keep the public safe and give people a reassuring way of looking up who among their neighbors or colleagues has been convicted of sex offenses. Sen. James Brochin, a Baltimore County Democrat, said of the Maryland appeals court judges, "What they've done is sickening … it's mind-boggling. The court's shown a total disregard for the community."...
While the registries have many supporters, researchers have found little evidence that they reduce the rates at which sex offenders commit new crimes. "Those policies were based on myths: Once an offender, always an offender," said Elizabeth J. Letourneau, a sex crime researcher at the Johns Hopkins University. "They are unlikely to be harming community safety by removing people like that from a registry."
Lisae C. Jordan, an advocate for victims of sex crimes, said accurately measuring recidivism rates can be difficult because many offenses go unreported. But she also noted that registries have never been a way to stop all offenses because most would-be rapists have never been convicted.
What the studies do show, experts say, is that having to register makes it harder for ex-convicts to successfully find work and have productive lives. In postings on an Internet forum critical of the Maryland registry, offenders have described their struggle getting work..... In other cases, communities have turned to vigilante justice. Last week, a Baltimore woman was sent to prison for six years for her part in the beating death of a sex offender.
Now Maryland's registry is being trimmed because the Court of Appeals ruled in 2013 that people who committed crimes before it was created had been subjected to fresh punishment in violation of the Maryland Declaration of Rights.... The Court of Appeals was fragmented but in a patchwork of opinions, ultimately sided with Haines. Applying the laws retroactively violated the "fundamental fairness and the right to fair warning" about the consequences of a crime guaranteed by the state constitution, Judge Clayton Greene Jr. wrote.
Courts across the country have split on whether states should be allowed to stock their registries with people who committed crimes long ago....
Nancy S. Forster, a Baltimore attorney representing a number of people challenging Maryland's registry laws, said she has other cases in the works that could lead to more offenders being taken off the list. The attorney general's office is examining the cases and will fight in court when it sees the opportunity.
And some lawmakers said they plan to craft legislation that might soften the impact of the Court of Appeals ruling. Possible options include creating a registry that's only available to law enforcement or using a risk assessment system to flag the most dangerous offenders....
Now that the judges have had their say, Sen. Nancy Jacobs said, the debate now should focus on the victims of sex crimes. Jacobs, a Cecil and Harford County Republican, pushed hard to toughen sex crime laws in 2009 and 2010, but is leaving the Senate. "We need to care more about the victims than about the people who sexually assaulted these children," she said. "They need help."
Saturday, November 01, 2014
Notable account of all the advocacy and interests surrounding California's Prop. 47
Today's Los Angeles Times has this lengthy discussion of the advocacy interests surrounding the big criminal justice initiative on the California ballot this election season. The piece is headlined "Prop. 47 puts state at center of a national push for sentencing reform," and here are excerpts:
The statewide initiative on Tuesday's ballot to reduce penalties for illicit drug use and petty theft is part of a multimillion-dollar campaign to revise sentencing laws in California and across the nation.
Five major foundations, headlined by a philanthropic group run by New York billionaire George Soros, have poured millions of dollars to push for changes in California's policies on crime and imprisonment. The campaign is aimed at shaping public opinion, media coverage, research and grass-roots activism on the issue.
Proposition 47 would reclassify possession of heroin, methamphetamine and other illegal drugs, and theft of $950 or less, as misdemeanors in California. If the measure passes, California will become the first state to "de-felonize" all drug use, opening the door for similar efforts in other states.
"We hope we're setting a precedent for the nation," said Lynne Lyman, state director of the National Drug Policy Alliance, an active supporter of Proposition 47. "We are hoping it will signal that we don't need to be so tough on crime all the time." Proponents of the ballot measure have raised $9 million — at least $2 million of which came from two of the foundations — for their campaign thus far. Opponents have raised just $526,000, state election records show....
Since 2011, the foundations have awarded at least $14 million in grants to almost three dozen California-based groups that are earmarked for "criminal justice reform" or to influence public opinion. Soros' Open Society Foundations in 2012 also gave a $50-million grant to the National Drug Policy Alliance to "advance drug policy reform" in states across the nation.
The coordination by a few wealthy foundations to change public policy represents a legitimate but worrying form of political influence, said Robert McGuire, who tracks such activity for the Center for Responsive Politics. The foundation grants are not disclosed publicly in the same way campaign contributions are reported. Foundation nonprofit tax filings often do not become public until two years after money is spent. "Nonprofits are allowed to do this, but voters have a right to know what interest is trying to get them to vote a certain way," McGuire said.
The California effort was initiated by Tim Silard, who ran alternative sentencing programs for California Atty. Gen. Kamala Harris when she was San Francisco district attorney, and Dan Zingale, who was chief of staff to then-first lady Maria Shriver.... Silard and Zingale said they sought a strategy that could break the grip of "tough on crime" politics in California....
Coalition members say they are driven by a belief that California — and the rest of the nation — locks up too many people for too long and that public safety would be better served by putting resources toward job training, mental health and drug addiction treatment. An opening to change that trend surfaced in the U.S. Supreme Court's 2011 ruling that conditions in California's overcrowded prisons were unconstitutionally dangerous, upholding a lower-court order to reduce the prison population....
In 2013, Soros provided money to create a new organization called Vote Safe to launch Proposition 47. Soros, a hedge fund manager widely known for bankrolling progressive campaigns and a decade-long battle against the war on drugs, has a representative on Vote Safe's three-member advisory board. The campaign manager for both Citizens for Safety and Justice and Vote Safe is Lenore Anderson, another former aide to Kamala Harris who once ran the public safety offices in San Francisco and Oakland. Anderson said the ballot initiative was encouraged by polls that showed a softening in public attitudes toward criminal punishment. "The whole country right now is going through transformation in attitudes on criminal justice," she said. "We felt it was a big moment."
Violent crime in California had dropped precipitously, hitting a 45-year low in 2011. In the fall of 2012, California voters passed another Soros-backed initiative to lift three-strikes penalties for nonviolent felons....
Supporters of Proposition 47 also emphasize that drug laws have a disparate impact on Latino and African American communities. Lyman of the Drug Policy Alliance hammered on that point during a Proposition 47 rally at a Los Angeles church a week ago. "The war on drugs and mass incarceration is just an extension of slavery," she said.
Prior related posts on California's Prop 47:
- Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
- Reviewing California's debate over lowering sentences through Prop 47
- Notable pitch for California Prop 47 based in mental health concerns
- New York Times editorial makes the case for California's Prop 47
Friday, October 31, 2014
New reduced federal drug sentencing guidelines about to become official
Hard core federal sentencing nerds know that November 1 is a special day because it is the official date on which any proposed changes to the sentencing guidelines proposed by the US Sentencing Commission become official in the absence of congressional rejection thereof. Tomorrow, November 1, 2014, is especially notable because it will make official the most significant and consequential reduction in guideline sentencing ranges in history. This USSC press release, which includes a statement from the chair of the USSC, provides background context for why this is such a big deal:
[Background:] The United States Sentencing Commission, an independent agency in the judicial branch charged with setting federal sentencing guidelines, voted unanimously in April to reduce sentencing guidelines levels for most drug trafficking offenses and voted unanimously again in July to make that change retroactive. Because Congress has not acted to disapprove the Commission’s actions, the amendment becomes effective tomorrow. Offenders sentenced after tomorrow will be sentenced under the new, reduced guidelines, and current prisoners may begin petitioning courts for sentence reductions based on retroactive application of the reduced guidelines. Prisoners can have their sentences reduced if courts determine that they are eligible and a reduction is appropriate, and they may not be released pursuant to such reductions before November 1, 2015.
[Comment by USSC Chair Patti Saris:] “The reduction in drug guidelines that becomes effective tomorrow represents a significant step toward the goal the Commission has prioritized of reducing federal prison costs and overcrowding without endangering public safety. Commissioners worked together to develop an approach that advances the causes of fairness, justice, fiscal responsibility, and public safety, and I am very pleased that we were able to agree unanimously on this reasonable solution. I am also gratified that Congress permitted this important reform to go forward.
This amendment is an important start toward addressing the problem of over-incarceration at the federal level. Commission researchers estimate that applying the amendment going forward may reduce the prison population by 6,500 in five years and far more over time, while more than 46,000 current prisoners could be eligible to have their sentences reduced by retroactive application of the amendment. Still, only Congress can act to fully solve the crisis in federal prison budgets and populations and address the many systemic problems the Commission has found resulting from mandatory minimum penalties. I hope that Congress will act promptly to pass comprehensive sentencing reform legislation.”
"Shrinking Prisons: Good Crime-Fighting and Good Government"
the title of this post is the headline of this thoughtful new piece from The Atlantic. Here are excerpts:
Liberals have long advocated prison reforms like reduced sentence lengths and alternatives to incarceration. Recently, however, conservatives have put these ideas on the congressional agenda — and their inspiration comes from that bastion of tough-on-crime conservatism, Texas.
Surprising? Perhaps. But seeing this coming didn’t require any sort of crystal ball. One had only to notice the forces driving every trend today: less money, higher expectations, and lower “weight.” Around the world and especially in the United States, both the public and private sectors have been under pressure since the Great Recession to cut costs and make the most of constrained resources. At the same time, consumers have become accustomed to expect better and better performance for their dollars. Many people have dismissed as “immature” or unrealistic the electorate’s expectation that governments provide both lower taxes and more services, but it’s not unreasonable given what the private sector has been able to deliver over the last generation.....
It’s overdue, then, for the public sector to revisit the costliest, least productive, and least “weightless” business lines in its portfolios—human services generally, and the corrections system in particular. What smacks more of outdated big government than large, costly, coercive institutions?
Incarceration as we know it today was originally a “progressive” idea. Compared to the days when every offense was punishable by execution — or at least corporal punishment — and prisons were simply a slow form of death, the modern penitentiary was conceived as a humane instrument of rehabilitation, not just punishment: The idea was that sitting alone in a cell and contemplating one’s transgressions — like a penitent — would lead to self-improvement. A close cousin, historically and conceptually, of the poorhouse and insane asylum, the penitentiary proved as much a misnomer, however, as today’s “corrections.” Nonetheless, along with the notion of redemption through hard work, the concept appealed to Jacksonian reformers and launched the first great era of prison construction in America. The second wave peaked, similarly, with the advent of the Progressive Era, which refined the concept with such additions as parole, probation, and indeterminate sentencing.
The third and latest wave of prison enthusiasm, however, was a reaction—against both liberal modifications to incarceration regimes and the social tumult of the ’60s. The War on Drugs increased the numbers of prisoners and lengthened the duration of sentences. The surge in incarceration also has been directly related to race: African-American males are jailed at about six times the rate of whites and three times the rate of Hispanics.
As a result, the United States today has the highest documented incarceration rate in the world: 743 adults per 100,000 population, or nearly 2.3 million adults, nearly one-quarter of the world’s total prison population. More than twice that number are on probation or parole, with more than 70,000 juveniles in detention, as well — roughly one in every 30 Americans is under supervision of some sort, a seven-fold increase since 1980....
Institutionalized correction, while more expensive, is less effective in reducing most crime than virtually any alternative. A 2001 report by New Jersey’s State Commission on Criminal Resentencing found that alternative sanctions and prisons have very similar effects on recidivism, while alternative sanctions free up prison bed space for more violent offenders. Similarly, a 2002 Justice Policy Institute report on Community Corrections programs in Ohio found shorter stays and lower recidivism or re-incarceration rates for clients from community-based correctional programs than for prison inmates.
As a result, many states — mostly Southern — are changing their approach, and saving money. Oklahoma, which was recently in the spotlight for its hard line on executions, has reduced its prison population by nearly 1,800 prisoners, projected to save the state approximately $120 million over the next 10 years. Georgia has become a leader in the use of “drug courts,” which divert offenders into alternatives to prison.
The Urban Institute reports that eight states — Arkansas, Hawaii, Louisiana, Kentucky, New Hampshire, North Carolina, Ohio, and South Carolina — have reliable enough data to provide preliminary findings on the effects of system reforms. These show early successes in slowing and even reducing prison-population-growth rates.
But the poster child is Texas. In 2007, conservative legislators in Austin were staggered by projections for how much it would cost to run the Department of Criminal Justice if the system went unchanged. The state faced the prospect of building approximately 17,000 new prison beds within five years at a cost of nearly $1.15 billion. Instead, the legislature budgeted approximately $250 million for community-treatment programs and increased the number of inmates served by in-prison treatment and rehabilitation programs. In 2009, the state added reentry-program coordinators to help reduce the number of released inmates who return to prison. Texas’s effort now forms the basis for the bipartisan prison-reform legislation moving through Congress.
This has implications beyond prison reform. Governments today face increasing pressure to cut costs, but their citizens still want and need government services. Elected officials everywhere must figure out how to square this circle—to deliver better service at lower cost. A major part of the answer will lie in moving from costly, outdated “solutions” based on large one-size-fits-all institutions to individualized, dispersed, home- and community-based solutions that use new technologies and evidence-based strategies....
The corrections field shows most starkly that the conservative critique of liberal programs — large, outdated, costly, and one-sized-fits-all — is valid, but also that the solutions liberals have been advocating for the past several decades, with the benefits of years of experimentation and evidence, provide a path forward.
Thursday, October 30, 2014
New York Times editorial makes the case for California's Prop 47
Today's New York Times has this editorial headlined "California Leads on Justice Reform: Prop 47 Could Take the State a Step Further in Reducing Overcrowding." Here are excerpts:
For a long time, the conventional political wisdom was that no one ever lost an election for being too tough on crime. That wisdom has been turned on its head in recent years, as both politicians and the public are realizing how much damage the lock-’em-up mind-set has caused....
A familiar retort is that crime is down precisely because the prisons are full, but that’s simply not true. Multiple studies show that crime has gone down faster in states that have reduced their prison populations.
An encouraging example comes from California, the site of some the worst excesses of the mass incarceration era, but also some of the more innovative responses to it. For five years, the state has been under federal court order to reduce extreme overcrowding in its prisons. In response, voters in 2012 overwhelmingly approved a ballot measure to scale back the state’s notorious “three-strikes” law, leading to the release, so far, of more than 1,900 prisoners who had been serving life in prison — in some cases, for petty theft.
Dire warnings that crime would go up as a result were unfounded. Over two years, the recidivism rate of former three-strikes inmates is 3.4 percent, or less than one-tenth of the state’s average. That’s, in large part, because of a strong network of re-entry services.
The 2012 measure has provided the model for an even bigger proposed release of prisoners that California voters will consider on the ballot next week. Under Proposition 47, many low-level drug and property offenses — like shoplifting, writing bad checks or simple drug possession — would be converted from felonies to misdemeanors.
That would cut an average of about a year off the sentences of up to 10,000 inmates, potentially saving the state hundreds of millions of dollars annually. To keep people from returning to prison, or from going in the first place, the savings would be invested in anti-truancy efforts and other programs like mental health and drug-abuse treatment. Some would go to victims’ services, a perennially underfinanced part of the justice system.
Law-enforcement officials, not surprisingly, oppose the measure, warning that crime will go up. But they’ve already been proved wrong on three-strikes reform. Californians — who support the proposition by a healthy margin, according to polls — have now seen for themselves that they don’t have to choose between reducing prison populations and protecting public safety.
It is very rare for lawmakers anywhere to approve legislation to shorten sentences for people already in prison; it is virtually unheard-of to do it by ballot measure. California’s continuing experiment on sentencing can be a valuable lesson to states around the country looking for smart and safe ways to unravel America’s four-decade incarceration binge.
Prior related posts on California's Prop 47:
- Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
- Reviewing California's debate over lowering sentences through Prop 47
- Notable pitch for California Prop 47 based in mental health concerns
October 30, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, October 27, 2014
Two condemned New Mexico murderers left behind after death penalty repeal seek relief from NM Supreme Court
As reported in this local article, headlined "Convicted murderers ask to be taken off death row," in New Mexico the "last two inmates on death row are asking the state’s highest court to get them off the list." Here is more:
New Mexico’s only inmates facing possible execution want the state supreme court to declare their death sentences unconstitutional because capital punishment was abolished after their convictions.
Attorneys for the two convicted killers say their sentences are unconstitutional, while the state is still backing their death penalty. The hearing lasted around an hour and half Monday morning, but no official decision will be made for at least a few months.
Attorneys for Timothy Allen and Robert Fry argued this morning that carrying out their death sentence would be cruel and unusual punishment and would violate “equal protection” rights for the two as New Mexico residents.
New Mexico repelled the death penalty in 2009 and the two are arguing that because of that, their sentences should be changed, even though they were both convicted when the death penalty was still law. Allen killed 17-year old Sandra Phillips in 1994 after kidnapping her and trying to rape her. Robert Fry was convicted of killing a mother of five in 2000. He also murdered three other people in the ’90s.
Attorneys for the two men argued that the death penalty is cruel and unusual based on a report from the state’s Death Penalty Task Force which cited cost and liabilities with a death sentence. They also argued that it violates equal protection to effectively set a date when people can and can’t face the death penalty.
Meanwhile, the state argued that justices would be “overstepping” their reach if justices chose to allow Allen and Fry to live. The state says that would be like the justices re-interpreting what the legislature wished to do....
New Mexico has only executed one person in the last 54 years. It was Terry Clark who was a convicted child rapist and killer.
Prosecutors in South Africa indicate they plan to appeal Pistorius outcome
As reported in this article, headlined "South Africa prosecutors to appeal against Pistorius sentence," it appears that the Blade Runner is not done running from serious legal difficulties. Here are the bascis:
South Africa’s state prosecutor plans to appeal against Oscar Pistorius’s culpable homicide conviction and five-year prison sentence for shooting his girlfriend Reeva Steenkamp, it said on Monday.
Nathi Mncube, spokesman for the National Prosecuting Authority, said the NPA expected to file papers in the next few days. Until the papers were filed, it would not announce the grounds for appeal, it said.
But Pistorius’s conviction for culpable homicide has drawn criticism from some legal commentators. After the athlete, a double-amputee who starred at the 2012 London Olympics and Paralympics, was sentenced last week, there was more controversy when lawyers said he could serve as little as 10 months, or a sixth of the five-year term.
In South Africa, an appeal can only be made on a matter of law, “where we think . . . the judge made an error in interpretation and in the manner in which she applied the law to the facts”, Mr Mncube said.
Pistorius had been charged with premeditated murder after shooting Steenkamp, a 29-year-old model and law graduate, four times through the locked toilet door in a bathroom at his home in the early hours of Valentine’s Day last year. But Judge Thokozile Masipa ruled that the prosecution failed to show Pistorius had intent to kill, while saying there was “no basis on which this court could make inferences of why the accused would want to kill the deceased”. Instead, she appeared to believe Pistorius’s version of events, despite describing the 27-year-old as a “poor” and “evasive” witness.
Saturday, October 25, 2014
"Jury Says Castrated Sex Offender Should Be Freed"
The title of this post is the headline of this notable AP story out of California. Here are the intriguing details:
A Southern California jury on Friday found that a castrated sex offender who preyed on young girls should no longer be considered a sexually violent predator and is eligible for release. Jurors in Orange County determined that Kevin Reilly, 53, does not need to remain locked up at a state mental hospital. He could be released as early as Friday, his lawyer said, but online jail records show he remained in custody as of mid-afternoon.
"There was simply no evidence he was likely to reoffend," said Holly Galloway, deputy public defender. "What the jury did was amazing because they followed the law and that's a hard thing to do with someone with his history, but it's the right thing to do."
Reilly served time in prison for sex offenses committed in the 1980s and 1990s and has been locked up in a state mental hospital since 2000 under a California law that enables authorities to forcibly commit sex offenders they believe will reoffend. He paid to be surgically castrated in 2003 to help control his pedophilia and completed a treatment program for sex offenders in 2010. State-appointed evaluators found he was not likely to reoffend, Galloway said, adding that Reilly also completed a bachelor's degree and master's degree.
Prosecutors argued that Reilly is still dangerous and that the effects of his castration, which aimed eliminate his sex drive, can be mitigated through testosterone injections. Michael Carroll, deputy district attorney, said Reilly did not confess to molesting one of his victims until three years ago and there were conflicting reports about what he told his evaluators and the court.
"I don't think he was honest during his treatment," Carroll said. "I think he continued to lie and attempted to manipulate because his ultimate purpose, I think, is to get out of the hospital, not necessarily to prevent creating any future victims." Reilly served time for committing lewd acts on four young girls over more than a decade, and later conceded he had abused at least three others, Carroll said. Most of the girls were between 4 and 8 years old.
He is required to register as a sex offender once he is released, and is planning to move to Utah, where he will participate in an outpatient treatment program for sex offenders and look for an accounting job, Carroll said.
Stories like this one provide support for my general view that juries, serving often as the conscience of a community, can and should be more often trusted to make difficult sentencing-type determinations and should not be relegated only to serving as a limited (and infrequently used) fact-finder in the operation of modern criminal justice systems.
October 25, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack
Due to Alleyne, Kansas Supreme Court requires resentencing of murderer of abortion provider
As reported in this local article, headlined "Kansas Supreme Court vacates Roeder's 'Hard 50' sentence," the top court in the Sunflower State reversed a state mandatory minimum sentence in a high-profile murder case. Here are the details:
The Kansas Supreme Court on Friday upheld the premeditated first-degree murder conviction of Scott Roeder, convicted in the 2009 church killing of Wichita abortion provider Dr. George Tiller, but vacated his “Hard 50” life sentence.
In ordering Roeder’s sentence remanded to the Sedgwick County District Court, the Kansas high court noted the 2013 U.S. Supreme Court decision that deemed a sentence of 50 years without the possibility of parole must be levied by a jury as opposed to the trial judge.
The Kansas court has vacated and remanded at least five other Hard 50 sentences in light of the U.S. Supreme Court decision in Alleyene vs. United States....
The court rejected all of Roeder’s other arguments in his bid for a new trial. Among those arguments was that Sedgwick County District Court Judge Warren Wilbert declined to allow Roeder to present a voluntary manslaughter defense based on the “imperfect defense of others” concept. Roeder never denied at trial that he intended to shoot and kill Tiller in the vestibule of the doctor’s Wichita church before services on Sunday, May 31, 2009, but said he did so to prevent the abortion provider from taking the lives of unborn children.
Roeder, who testified that his anti-abortion activities began after his 1992 conversion to Christianity, said his frustration grew after Tiller was acquitted in 2009 of 19 charges brought by former Kansas Attorney General Phill Kline alleging that Tiller broke state law in performing late-term abortions. Roeder testified that upon learning of Tiller's acquittal, he believed that “nothing was being done” and the legal process had been exhausted....
But the district court ruled that Roeder wasn’t entitled to use a necessity defense, based in part on a previous Kansas Supreme Court ruling — also involving an anti-abortion case — that a person isn’t entitled to a such a defense if the activity they were trying to stop was a legal activity....
“Even for Roeder's professed purpose of stopping all abortions, not just illegal abortions, the Draconian measure of murder was not the only alternative,” Justice Lee Johnson wrote in the unanimous decision. The district court also ruled, and the Supreme Court agreed, that Roeder wasn’t entitled to a voluntary manslaughter defense because no imminent threat existed on that Sunday morning to justify the use of lethal force....
The Kansas Legislature, responding to the U.S. Supreme Court decision in Alleyene, rewrote the Kansas law on Hard 50 sentencing during a special session in 2013. The new law says a jury must determine whether special circumstances exist to impose the increased minimum sentence. But how such new sentencing will be conducted has yet to be determined, as none has yet been conducted in the cases where a Hard 50 sentence has been vacated. Sedgwick County District Attorney Mark Bennett said Friday after the Roeder decision that he intended to conduct such a hearing.
The full 50+ page opinion of the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kansas Oct. 24, 2014), is available at this link.
Friday, October 24, 2014
ACLU flies suit against Florida county's latest sex offender residency restrictions
As reported in this local article, headlined "ACLU sues over rule on where sex offenders can live in Miami-Dade," a notable new lawsuit has been brought against a community that has a long sad history of difficulties with sex offender residency realities. Here are the details:
For five years, Miami-Dade County’s sex offender law has sparked national headlines, as homeless parolees have been forced to move from street corners to parking lots because of a law that prohibits them from squatting near public spaces where children gather. Now, the dozens of homeless sex offenders — shuffled from under the Julia Tuttle Causeway to a Shorecrest street corner and finally to a parking lot near train tracks and warehouses just outside Hialeah — have a voice arguing on their behalf.
On Thursday, the national chapter of the American Civil Liberties Union filed a lawsuit in federal court reasoning that Miami-Dade County and the state Department of Corrections have violated the offenders’ basic rights to personal safety, and to maintain a home. The suit doesn’t name the ACLU’s clients, referring to them as John Doe 1, 2 and 3.
“It undermines public safety. It’s harder to find a job and maintain treatment. Housing stability is just as critical to these folks as to anyone else,” said Brandon Buskey, staff attorney for the Criminal Law Reform Project at the ACLU in New York City.
But the man behind the controversial county ordinance said no one has the right to demand where they live. Ron Book, the powerhouse state lobbyist and chair of the Miami-Dade Homeless Trust, said the courts have upheld the residency restrictions, and the ACLU is simply regurgitating an issue that’s been dealt with. “The U.S. Supreme Court has said they’re entitled to live places that don’t endanger the health, safety and welfare of law-abiding citizens of the U.S. But they’re entitled to take their $350 to the courthouse,” Book said of the ACLU. “I don’t support those with sexual deviant behavior living in close proximity to where kids are.”
The 22-page lawsuit, filed in the U.S. Court’s Southern District, calls the county ordinance vague, says it doesn’t allow sex offenders their due process, and adds that it leaves them in a vulnerable position and unsafe. “These individuals, who frequently subsist on meager incomes after being released from prison, are unable to locate stable, affordable housing in Miami-Dade County. This transience is primarily because the ordinance arbitrarily renders off-limits broad swaths of housing,” according to the complaint....
At the center of the battle between the ACLU and Miami-Dade is a law approved in 2010 called the Lauren Book Safety Ordinance. Lauren Book, Ron Book’s daughter, was sexually molested by a trusted nanny for six years, starting when she was 11. Lauren Book-Lim, now married and 29, is an advocate for the sexually abused. The 2010 ordinance was created after nearly 100 offenders were sent scrambling from squalid living conditions under the Julia Tuttle Causeway. The new law doesn’t allow offenders on parole within 2,500 feet of schools, parks, bus stops, or any other place children might congregate. Before the law, Miami-Dade followed a less restrictive state-created 1,000-foot law.
But the county ordinance had unintended consequences: It left sex offenders with few living options and almost immediately became a hot-button issue around the nation, even the world. There’s even a Wikipedia page about it.
Miami-Dade’s sexual offender homelessness issue first came to light in late 2009, when images of 92 homeless sex offenders living in plywood and cardboard sleeping quarters tucked under the Julia Tuttle Causeway at the height of the recession were splashed across TV. At the time, the county was still following the 1,000-foot state law.
Though the homeless offenders had been living there for about three years, embarrassed officials put up “No Trespassing” signs under one of the main causeways linking Miami and Miami Beach, and tore down the rickety structures. A promise to spend $1 million to find housing for the offenders didn’t solve the problem. The new, tougher, 2,500-foot ordinance was created mainly because of the Julia Tuttle fiasco....
Howard Simon, executive director of the Florida chapter of the ACLU said no entity should be allowed to strip anyone of their basic rights and force them into “dangerous and squalid conditions.”
“This is the second chapter of the same sad story,” he said. “The county provoked international outrage when it forced people to live under the Julia Tuttle bridge. Now it’s forcing people to live alongside railroad tracks.”
More details about the lawsuit and links to the filings are available at this ACLU page.
October 24, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack
Split Minnesota Supreme Court rules lenient sentence in rape case was abuse of discretion
As reported in this local article, headlined "Minnesota Supreme Court criticizes probation sentence in rape case," the top appellate court in Minnesota recently took the unusual step of overruled a trial judge's sentencing decision as an abuse of discretion. Here are the details:
In a rare and harshly worded ruling, the Minnesota Supreme Court said Wednesday that a lower court judge erred in sentencing a particularly violent rapist to probation rather than the recommended 12 years in prison.
Justice David Lillehaug opened his 21-page opinion by saying that district courts have a great deal of discretion in sentencing. And the state high court rarely holds that it has been abused, he said. “But rarely is not never,” he continued. “This is such a rare case.”
The state Supreme Court vacated the sentence of 30 years’ supervised probation given to Jose Arriaga Soto Jr. Polk County District Judge Jeffrey Remick now must conduct additional fact-finding on whether the recommended 12-year sentence should be imposed or if a departure from the guidelines is justified.
Soto was 37 when he beat and raped a woman for two hours after drinking all night in an East Grand Forks apartment in 2012. Soto pleaded guilty to first-degree criminal sexual conduct. A co-defendant who was involved in the rape to a lesser degree than Soto received 12 years in prison, the opinion noted in its many criticisms of the ruling.
A presentencing report said Soto had minimized his actions without taking responsibility and blamed the victim. At his sentencing, he apologized to her. The opinion notes, in a tempered outrage, the horrors of the assault for the victim: “Soto committed a forcible and violent assault against an intoxicated and thus particularly vulnerable person. The assault lasted approximately 2 hours and the victim was repeatedly subjected to multiple penetrations by two men. Soto slapped the victim’s face, choked her, and caused several injuries.”
The opinion noted the Legislature and the Sentencing Guidelines Commission have determined a sentence of 12 years in prison is “presumed to be appropriate” for someone with Soto’s criminal history who commits such a rape. The victim’s vulnerability, the multiple forms of penetration and other particular cruelty that may be involved suggests that an upward departure on the case could have been appropriate, the opinion says. The opinion also noted that Soto’s co-defendant, Ismael Hernandez, was “arguably less culpable than Soto — he left the room shortly after the sexual assault began,” but he went to prison for the presumptive sentence of 12 years....
Three of the seven justices dissented from Lillehaug’s opinion. Alan Page wrote that the district court relied on factors generally recognized by the higher court as potentially relevant considerations in determining whether probation was appropriate for Soto. “While another [district] court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the ‘rare case’ warranting our intervention,” wrote Page, who was joined in his dissent by Chief Justice Lorie Gildea and G. Barry Anderson....
Even though probation wasn’t recommended in Soto’s pre-sentence report by a probation officer or an evaluator from a sex offender treatment program, Remick placed him on supervised probation for 30 years. The judge emphasized Soto’s age, lack of serious criminal record and family support. He also said the crime was primarily caused by alcohol and that Soto’s attitude in court was largely respectful and that “this particular type of event seems largely out of character.”
Lillehaug’s opinion challenged all the factors Remick listed for Soto’s amenability to probation, finding that he drew false or inappropriate conclusions in considering them. He said the judge should have argued that Soto was “particularly” amendable, the legal standard used to justify the departure of staying a presumptive sentence.
The full majority and dissenting opinion in Minnesota v. Soto, No. A13-0997 (Minn. Oct. 22, 2014), can be accessed at this link.
October 24, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
Wednesday, October 22, 2014
Seventh Circuit affirms stat-max 90-year sentence for child molester despite ugly childhood
An interesting Seventh Circuit sentencing opinion yesterday in US v. Horton, No. 14-1559 (7th Cir. 2014) (available here), highlights that a horrible criminal offense can (and often likely) will lead to an extremely long prison sentence even when a defendant can presenting evidence of an unusual (and seemingly mitigating) personal history. Here are the basics of the defendant's crime and his personal history as discussed in the Horton opinion:
During a 9-month period while Horton was employed at Three Tigers Karate in Belleville, Illinois, Horton created 37 videos depicting himself engaging in sexually explicit conduct with three of his male students (ages 6,7,and 10),and another video showing himself trying to convince another student (age 7) to display his genitals. Horton created the videos in various places: his home, the karate studio, a public park, and the San Antonio home of one the victims....
During his formative years, Horton recounted to [psychologist] Dr. Cueno, his mother worked as a stripper and escort and would leave pornographic magazines, sex toys, and drug paraphernalia strewn around the house. His father was as an alcoholic and drug abuser. Horton watched a XX-rated movie when he was seven and acted out what he saw in the movie by having oral sex with other children. In first grade he was forced to perform oral sex on a classmate, and he began having consensual intercourse when he was 12. According to Dr. Cueno, the “roots for [Horton’s] difficulties can be traced back to a childhood where he was sexualized at an early age, had little stability, and was raised by a drug abusing, stripper/escort mother who provided him with little, if any stability.”
And here is how the Horton court explains its conclusion that a statutory maximum sentence of 90 years in prison was not substantively unreasonable in light of these facts and factors:
Horton has not demonstrated that his de facto life sentence is unreasonable. Although a sentence that is effectively for life “is not to be ordered lightly,” we have upheld such sentences where the sentencing judge recognized “the likelihood of a defendant’s death in prison, but concluded that other factors warranted the particular sentence.” United States v. Vallar, 635 F.3d271,280 (7th Cir. 2011).... Here,the district court appropriately weighed Horton’s age and difficult upbringing,see 18 U.S.C. § 3553(a)(1), against the “extremely serious nature of this crime” and the vulnerability of the victims, see id. § 3553(a)(1), (a)(2)(A); New York v. Ferber, 458 U.S. 747, 758–60 & n.9–10 (1982), the need to protect the public from a dangerous child molester, see 18 U.S.C. § 3553(a)(2)(A),(C), and the availability of sex-offender treatment in prison, see id. § 3553(a)(2)(D). And though Horton would have preferred the district court to have given more weight to his dysfunctional childhood, the court had the discretion to assign it less weight than the other § 3553(a) factors.
Monday, October 20, 2014
New top Justice in Massachusetts urges repeal of mandatory minimums for low-level drug offenders
I just came across this notable Boston Globe article discussing this notable speech delivered late last week by the new Chief Justice of Massachusetts Supreme Judicial Court. Here is how the Globe article starts:
The head of the state’s highest court called for an end to mandatory minimum sentences for low-level drug offenders on Thursday, saying they interfere with judges’ discretion, disproportionately affect minorities, and fail to rehabilitate offenders.
Citing the opioid-addiction crisis, Supreme Judicial Court Chief Justice Ralph D. Gants said the state needs to find better ways to treat addicts than sending them to jail. In 2013, 674 people died of opioid overdoses, compared with 338 in 2000. “To those who favor the status quo in the so-called war on drugs, I ask: How well is the status quo working?” Gants said.
Gants, selected as chief justice by Governor Deval Patrick, called on the Legislature to pass laws to abolish mandatory sentencing. His remarks, in his first State of the Judiciary speech, were part of a call for broader changes in the court system. “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism,” he said.
Sworn in just 80 days ago, Gants said he will convene a group of judges, probation offices, prosecutors, and defense attorneys to study best practices to ensure what he called “individualized, evidence-based sentences.” That means considering mental health or substance abuse treatment as well as time in prison. Mandatory minimum sentences are automatic prison terms for those convicted of certain crimes, limiting judges’ discretion.
Gants’s proposal drew quick praise from members of the Massachusetts Bar Association, his audience at the association’s annual Bench-Bar Symposium in the John Adams Courthouse. Marsha V. Kazarosian, president of the bar association, called Gants’s call to action “a gutsy move.” She said there are “no cookie-cutter remedies” for drug defendants, and that an offender’s background should taken into consideration, and “that’s exactly what a judge is supposed to do.”
Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, the state’s public defender agency agreed. “So many people involved in the criminal justice system have substance abuse and mental health issues,” Benedetti said. “That’s the root of the problem, and this gets back to individual, evidence-based sentencing.”
The proposal was criticized by Essex District Attorney Jonathan Blodgett, head of the Massachusetts District Attorneys Association, who argued that the laws are designed to target drug traffickers, not merely drug users. “The midst of an opiate overdose epidemic is not the time to make it easier for drug traffickers to avoid accountability and incarceration,” Blodgett said. “An experienced trial judge should know that the drug defendants sentenced to incarceration are the ones who carry and use firearms, who flood communities with poison, and who commit the same distribution offenses over and over again.”
Supreme Judicial Court Chief Justice Gants' full speech is worth reading, and here is a notable excerpt from the text:
Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities. In fiscal year 2013, 450 defendants were given mandatory minimum sentences on governing drug offenses. In that year, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses. I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.
The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences. Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence. For all practical purposes, when a defendant is charged with a drug offense with a mandatory minimum sentence, it is usually the prosecutor, not the judge, who sets the sentence.
I have great respect for the prosecutors in this Commonwealth, and for the exercise of prosecutorial discretion that comes with the job; I was a prosecutor myself for eight years. But where there is a mandatory minimum sentence, a prosecutor's discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime. And where drug sentences are effectively being set by prosecutors through mandatory minimum sentences, we cannot be confident that those sentences will be individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses -- the problem of addiction.
"Why Did the Supreme Court Sidestep Sentencing Dispute?"
The title of this post is not merely the question I had for a few Justices after the denial of cert last week in Jones v. US (lamented here and here), it is also the headline of this new National Law Journal article about this decision authored by Tony Mauro. Here are excerpts:
The U.S. Supreme Court's refusal to add a Washington drug case to its docket would not ordinarily get much notice. But when the court did just that on Oct. 14, it drew wide criticism for missing an opportunity to resolve a long-running dispute over judicial discretion in sentencing.
The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted. In the Jones case, the trial judge significantly increased the sentences of three defendants by factoring in drug conspiracy charges that the jury had rejected.
"It is really hard to understand why the court ruled as it did," said University of Illinois College of Law professor Margareth Etienne, a sentencing expert. "It goes against everything the Supreme Court has said for the last 15 years."
Cato Institute senior fellow Ilya Shapiro said, "It's not just high-profile culture-war issues like same-sex marriage and the right to bear arms that the Supreme Court is avoiding like the plague." Shapiro said the court's action was "another opportunity lost by the Court, another responsibility shirked. "The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if the right case came along. As recently as Oct. 1, the U.S. Court of Appeals for the First Circuit mentioned the Jones case in a ruling that criticized the "questionable practice" of basing sentences on uncharged or unproven offenses.
An unusual lineup of three justices — Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — took the rare step of dissenting from the denial of review. "This has gone on long enough," Scalia wrote. "The present petition presents the non-hypothetical case the court claimed to have been waiting for."
In the case the court denied, a District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he "saw clear evidence of a drug conspiracy," and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court....
Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represented the defendants in the petition denied last week, said he was disappointed that the petition fell "one vote short" of being granted certiorari. The fact that conservatives Scalia and Thomas dissented — along with liberal Ginsburg — "ought to be a fire bell in the night" signaling that the issue should be resolved, Leckar said....
The University of Illinois' Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved. "It is going to take a while" for the court to revisit the issue, Etienne added. "Until it does, the old adage that one is 'innocent until proven guilty' will continue to have little meaning."
Previous related posts on the Jones case:
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
- Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
- Rooting for acquitted conduct petition grant from SCOTUS long conference
- Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
- Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
- Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation