Friday, October 24, 2014
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
Sunday, October 19, 2014
Reviewing Alabama's (somewhat successful) use of sentencing guidelines to reduce prison growth
As highlighted in this lengthy local article, headlined "Sentencing reform has slowed, not stopped, inmate growth," sentencing and sentencing reform in Alabama has been a dynamic process that includes sentencing guidelines intended to steer more offenders away from prison. Here are some details:
The state's sentencing structure has a huge impact on the prison population, which is at about 190 percent the capacity it was designed for. A 24-member panel — the Prison Reform Task Force — is working with the Council of State Governments Justice Center to analyze the system and find ways to reduce overcrowding, reduce recidivism and improve public safety.
Andy Barbee, research manager of the CSG's justice center, said Alabama's switch in October 2013 to presumptive guidelines — which judges are required to use unless there's a mitigating or aggravating factor to be considered — has accelerated a downward trend in the number of sentences to prison and the lengths of those sentences. Those guidelines, however, only apply to drug and theft cases.
That trend started in 2006, when voluntary guidelines were made available for judges to use. Judges still had the option to choose existing sentencing laws, but had to acknowledge for the record that voluntary guidelines were considered, Barbee said. The state took those guidelines a step forward when they approved legislation in 2012 that established the presumptive guidelines....
The new guidelines use a point system that weighs factors such as past criminal history and facts of the crime to impose a sentence, said Bennet Wright, executive director of the Alabama Sentencing Commission. The commission is the research arm of the criminal justice system. It's responsible for implementing changes when laws change and making annual recommendations for improvements to the governor, Legislature, chief justice and attorney general.
Wright said the purpose of creating the presumptive guidelines was to provide uniform sentencing practices across Alabama counties, and to make sure the system is fair, effective and encourages community supervision for nonviolent offenders.
But because there are scarce drug rehabilitation and mental health resources and those vary county by county, more structured and uniform assessments of those in the criminal justice system need to be in place to make sure services are effective. "At some point, the state will have to make a bigger investment in community services and supervision programming," Wright said. "Matching offenders with the right services lowers the likelihood that they'll commit more crimes."
The presumptive guidelines are binding unless a judge decides to downgrade the sentence based on facts, or unless an aggravating factor that might warrant a harsher sentence is proved, Wright said. Barbee said the switch to presumptive guidelines was a bold move in the right direction that took political courage, but the next step is to make sure the structure in place continues to evolve. He said similar changes need to happen with parole.
Although the number of arrests, sentences to prison and lengths of sentence are decreasing, the prison population is still on the rise. However, the presumptive guidelines are projected to slow the tremendous growth that the prison population would have seen otherwise, Wright said. "The presumptive guidelines are not going to drastically lower the prison population," Wright said. "It would be a modest reduction at best, but more than likely, it would result in a stabilization. The point is, if you didn't have them, the prison population would just grow, grow, grow."
Much of the current prison population was punished under a set of laws that provided more serious punishments to a larger class of offenses, Barbee said. "Simply waiting on the guidelines to have an effect won't get the system where it wants to be until many years out," Barbee said. "Therefore it's critical, if the state wants to have a near-term impact on the crisis level of overcrowding, it looks beyond sentencing."
Barbee said there are some caveats with the state's sentencing guidelines. Burglary is considered a violent crime, regardless of whether anyone else was involved during the burglary.... He also said Alabama has one of the lowest felony theft thresholds in the country at $500. The threshold was recently raised from $250, he said, and most states are at about $1,000 or $2,000.
The fact that the state's laws don't consider weight or amount when it comes to drug crimes also makes it more likely that punishment might not match the crime. He said any amount of drug possession other than marijuana — whether it's one pill or a pound of cocaine — is a felony.
Wednesday, September 24, 2014
Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
The question in the title of this post is prompted by this lengthy new FoxNews piece headlined "California voters weigh 'radical' changes to justice system as prisons fill up." Here are excerpts:
Voters this fall, however, could approve big -- and some say "dangerous" -- changes to the state’s sentencing system, aimed in part at easing the overcrowding. On the state ballot is a proposal that would dramatically change how the state treats certain “nonserious, nonviolent” drug and property crimes, by downgrading them from felonies to misdemeanors.
The measure, known as Prop 47, also would allow those currently serving time for such offenses to apply for a reduced sentence, as long as they have no prior convictions for more serious crimes like murder, attempted murder or sexual offenses.
Businessman B. Wayne Hughes Jr., who has donated hundreds of thousands of dollars to push the ballot measure, told FoxNews.com the changes would affect Californians who are “over-incarcerated and over-unpunished.”
“I saw Prop 47 as common-sense reform,” Hughes said. “I don’t see it as a radical reform.”
However, the measure is being slammed as dangerous by members of California’s law enforcement, including San Diego Police Chief Shelley Zimmerman. Zimmerman told FoxNews.com “virtually the entire law enforcement community opposes Prop 47.”
“It will require the release of thousands of dangerous inmates,” she said.
The proposition would reduce penalties for an array of crimes that can be prosecuted as either felonies or misdemeanors in California. This includes everything from drug possession to check fraud to petty theft to forgery. Prop 47 would, generally, treat all these as misdemeanors, in turn reducing average jail sentences. According to a state estimate, there are approximately 40,000 people convicted each year in California who would be affected by the measure.
“[Prop 47] allows the criminal justice system to focus in on more serious crimes,” Hughes said.
According to an analysis by the California Budget Project, state and local governments would save hundreds of millions of dollars every year. The measure dictates the savings be split among three different areas, with 65 percent going to mental health and drug treatment programs, 25 percent going to K-12 school programs and 10 percent going to victim services. The measure’s supporters say it also would help reduce California’s prison-overcrowding problem, an issue that has dogged the state for years.
The analysis by the California Budget Project found that the California prison population would “likely" decline if Prop 47 were implemented. “If Proposition 47 reduced the prison population by just 2,300 individuals – through re-sentencing and/or reduced new admissions – the state could meet the court-ordered population threshold via the measure alone,” the analysis said.
However, Zimmerman argued that the proposition would only shift the burden from the state prisons to local law enforcement and communities. “[Prop 47 is] not a sustainable or responsible way to reduce California’s prison population,” she said.
The California Police Chiefs Association also has come out hard against the proposition. “Proposition 47 is a dangerous and radical package of ill-conceived policies wrapped in a poorly drafted initiative which will endanger Californians,” the association said....
Former Republican congressional candidate Weston Wamp agreed, saying Prop 47 "might not be perfect, but it’s a breath of fresh air to talk about an issue where there can be some agreement." Wamp said if passed, he believes Prop 47 could have a positive effect on the nationwide prison reform movement. "I think it’s realistic if you give people who are not violent criminals, if you give them an opportunity not to just stay behind bars but to make their lives better, you may see over a longer period of time is lower rates in recidivism and a better chance at taking care of the problems and paying the bills," he said.
For now, it seems like the proposition’s supporters are connecting with voters. An August poll by the Field Research Corporation found that 57 percent of Californians were in favor of the measure, 24 percent were opposed and 19 percent were undecided.
Prior related post:
- Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
Wednesday, September 03, 2014
You be the sentencing judge: decades or just years for mistaken home shooting in Detroit? UPDATE: Judge decides decades
This new Detroit Free Press article, headlined "Attorney: Wafer wants to apologize at sentencing today for porch shooting," sets out the basic sentencing arguments being presented to a Michigan judge in a high-profile homicide case. Here are the details:
Theodore Wafer wants to apologize to the parents of the 19-year-old woman he fatally shot 10 months ago and plans to make a statement during his sentencing this morning. That is what Wafer’s attorney said in a court document asking Wayne County Circuit Judge Dana Hathaway to depart downward from the sentencing guidelines of second-degree murder when she sentences the Dearborn Heights man for killing Renisha McBride.
“He wants to tell the McBride family that he is so sorry for taking their loved one’s life,” defense attorney Cheryl Carpenter said in the document. “He wishes he could have taken it all back and not opened that door. He beats himself up for opening the door.”
Wafer, 55, fatally shot McBride on the porch of his home about 4:30 a.m. Nov. 2. A jury convicted him last month of second-degree murder, manslaughter and using a firearm in a felony.
Prosecutors said they believe Wafer should receive a sentence of 15-25 years in addition to two years for the firearm count and will make their argument in court, said Maria Miller, a spokeswoman for the office. “There are no compelling, objective and verifiable reasons not accounted for in the sentencing guidelines that would justify a downward departure from the guideline range,” prosecutors said in a court document filed last week.
The defense disagrees. Carpenter said in the court document that she anticipates asking for a minimum sentence of four to seven years plus two years for the weapons conviction. Carpenter called the facts and circumstances of the case “more akin to manslaughter than murder.” Carpenter cited several reasons for the departure, including Wafer’s age, his cooperation with police after the shooting and remorse for McBride’s death....
Gerald Thurswell, the attorney for McBride’s family in a wrongful-death lawsuit against Wafer, said one of McBride’s sisters will give a victim-impact statement during sentencing, and McBride’s father, Walter Simmons, will read a statement from another sister. McBride’s family feels Wafer should spend the rest of his life behind bars, Thurswell said....
The court document filed by the defense said Wafer is “riddled with guilt for his actions” and has been diagnosed with post-traumatic stress disorder. During the trial, prosecutors argued that Wafer was angry, wanted a confrontation, went to the door to scare away neighborhood kids with his gun, shot through a locked screen door and killed McBride, whom they described as an “unarmed, injured, disoriented 19-year-old.”
Wafer, who said he couldn’t find his cell phone and had no land line, testified that he heard banging on his doors, grabbed a baseball bat then his shotgun, opened the front door because he thought someone was going to come inside and fired in self-defense.
The jury didn’t believe self-defense, a juror told the Free Press. Carpenter said she plans to appeal the conviction.
UPDATE: This CNN report, headlined "Man gets 15-30 years for shooting Michigan teen on his porch," provides the details of the sentencing decision made by the real sentencing judge here. Here is how the report starts:
Theodore Wafer said he was sorry from the bottom of his heart Wednesday for gunning down an unarmed young woman on the front porch of his Michigan home, but a judge said "mistake" was the wrong word to describe a murder and sentenced him to 15 to 30 years in prison.
Wafer, 55, looked down, his lawyer patting him on the back, as Wayne County Circuit Judge Dana Hathaway sentenced him for second-degree murder in the November shooting death of Renisha McBride, 19 -- a racially charged case because the victim was black and Wafer is white.
Wafer had testified that he feared for his life when loud banging startled him awake in the early morning hours of November 2, 2013. He opened his front door and fired a fatal shotgun blast into the face of McBride, who prosecutors say was seeking help after a car accident.
"To the parents family and friends of Renisha McBride, I apologize from the bottom of my heart and I am truly sorry for your loss," Wafer said. "I can only hope and pray that some how you can forgive me. ... From my fear, I caused the lost of a life that was too young to leave this world and for that I carry that guilt and sorrow forever."
Hathaway said it was one of the "saddest cases" she had ever presided over. "I do not believe that you are a cold-blood murderer or that this case had anything to do with race or that you are some sort of monster," the judge said. "I do believe you acted out of some fear but mainly anger and panic and unjustified fear is never an excuse to take someone's life."
Hathaway said she was confident Wafer was remorseful and would likely never commit another crime in his life, but that McBride came to his doorstep seeking help and lost her life. "You made the choices that brought us here," the judge said. "I don't know that you could ever use the word 'mistake' to describe a murder, and a person was murdered."
The defense had argued for a sentence of four to seven years, saying a longer sentence guaranteed that he would never get out of prison alive. But Hathaway said the sentencing guidelines were reasonable for the crime, giving him 15 to 30 years for second-degree murder and two additional years for possessing a firearm while committing the felony.
Tuesday, September 02, 2014
"Rethink sentencing and parole to solve aging, costly prison population"
The title of this post is the headline of this new editorial from a local South Carolina paper. Yet, even though focused on some Palmetto State particulars, many of the points and themes in the editorial have broad applicability in many US jurisdictions. Here are excerpts:
The term "life in prison" is easy enough to understand when it is handed down as a sentence in a courtroom. But after the courtroom drama subsides, Corrections Department officials must face the realities of feeding, housing and caring for criminals who will spend decades in prison.
For many, the sentences are a just and fair punishment. Often, they are also necessary to keep the public safe. But some who will spend their lives behind bars must do so because of overly severe mandatory sentencing laws.
Regardless, any prisoner costs the state and its taxpayers a lot of money. Prisons should serve to deter would-be criminals and separate society from its most dangerous members. Problems — and extra costs — arise when they must also serve as mental health facilities and nursing homes.
According to a recent report by The State newspaper, the number of South Carolina inmates over the age of 55 has more than doubled over the last 10 years. And that number is expected to increase without reforms to the way the state handles its sentencing and parole laws.
Many aging prisoners were sentenced long before a 2010 legislative reform reduced sentences for some non-violent crimes while strengthening punishments for violent offenders. That bill was so effective that it has reduced the prison population in the state by more than 10 percent overall and slashed the number of incarcerated non-violent offenders in the years since its passage.
South Carolina has also implemented programs, including a "smart probation" system, that have helped cut the rate of recidivism dramatically, as The Post and Courier reported on Sunday. Even so, the state's cost per inmate continues to rise, and part of that increase is due to the expense of caring for aging prisoners with additional medical needs and accompanying logistical concerns....
The South Carolina Sentencing Reform Commission prepares an annual review of the state corrections system with a particular focus on the impact of the 2010 legislation. That data show that sentencing reform has, by and large, been a success story. But more work remains. South Carolina should continue its reform of sentencing laws while focusing on rehabilitation for offenders who pose a minimal threat if given probation rather than prison.
The Legislature should also consider expanding parole options for aging inmates who have served substantial portions of their sentences, have serious chronic medical conditions or are unlikely to pose a threat should they be released under supervision. Every prisoner who can safely be released on parole represents thousands of dollars of savings for taxpayers....
Any decision must consider both what is cost effective and acceptable for public safety. If some older prisoners who have effectively paid their debt to society can be allowed to re-enter society safely and at a savings to taxpayers, then there is little reason to keep them locked away.
September 2, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack
Saturday, August 02, 2014
"Swift, Certain, and Fair Punishment — 24/7 Sobriety and Hope: Creative Approaches to Alcohol- and Illicit Drug-Using Offenders"
The title of this post is the title of this notable new article by Paul Larkin of The Heritage Foundation available via SSRN. Here is the abstract:
Local and state government officials in South Dakota and Hawaii have implemented a creative way to address some of the problems stemming from alcohol and drug use. The South Dakota 24/7 Sobriety program and Hawaii’s Opportunity Probation with Enforcement (HOPE) project seek to deal with those problems by combining an old criminological theory with modern technological devices. Criminologists, both old and contemporary, have believed that the certainty and celerity of punishment are more effective components of deterrence than is the severity of a penalty. In fact, anyone who has been a parent will tell you that the swift and certain use of a mild or moderate punishment is far more likely to deter unwanted conduct than the threat of an infrequently used severe punishment imposed at some point down the road.
South Dakota and Hawaii have developed innovative programs to deal with substance use and noncompliance with the conditions of supervision. Both programs address this problem. Starting from the proposition that certainty and celerity are more important than severity when measuring the effectiveness of punishment and using a rigorous alcohol-testing regimen, South Dakota has made strides toward the reduction of problem drinking and the attendant harms that it can produce. Hawaii has independently developed and followed a similar approach to the use of drugs and crime, subjecting certain offenders to rigorous, random drug urinalysis punished by the certain imposition of a modest stint in jail for those who fail the required tests. Those creative approaches are worth serious consideration as an effective and humane means of addressing the grim problems that alcohol- and drug-abusers pose for victims and society.
August 2, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack
Tuesday, July 29, 2014
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.
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.
Tuesday, July 15, 2014
Careful examination of California's "mixed" record with realignment
Every 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.
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:
- Might California finally create a sentencing commission? (Nov 2006)
- A push for a sentencing commission in California (Jan 2007)
- Advocating a sentencing commission for California (June 2007)
- California sentencing commission complications (Sept 2007)
- Possibility of California sentencing commission continues to generate controversy (Aug 2009)
- Latest legislative twist suggests California won't have a sentencing commission anytime soon (Aug 2009)
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.
Saturday, June 14, 2014
Notable indication that "smart on crime" sentencing reform in West Virginia is paying dividends
As 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
Saturday, June 07, 2014
Highlighting challenges when alternatives to incarceration become state priorities
The front-page of my own Columbus Dispatch has this interesting article about the Ohio's sentencing reform efforts and the challenges posed by a troublesome offender for a sentencing system that now seeks to emphasize alternatives to incarceration. The article is headlined "Church theft case tests rule on sentencing," and here are excerpts:
Cash Yoakem admitted that he broke into 29 churches and stole pretty much anything he could find — even communion trays — to fuel his drug habit. He has pleaded guilty to 44 counts of breaking and entering, all fifth-degree felonies, and the 26-year-old Chillicothe man will stand before a judge on Thursday and ask for leniency. Ross County Prosecutor Matt Schmidt will seek four years in prison for him instead.
Schmidt says that if any thief deserves to go to prison, it is Yoakem, who robbed from some of the churches more than once: “He broke into, damaged and stole from places of worship that many in this community consider sacred, thereby damaging their sense of sanctity.”
But under Ohio’s revamped criminal-sentencing laws, Yoakem doesn’t qualify for prison. Probation, yes, or a community-based therapeutic program, but he doesn’t meet the state’s latest criteria for prison for low-level, nonviolent, first-time offenders. Schmidt and Yoakem’s attorney each say this case sets the stage for what could be the first real test of the constitutionality of Ohio’s sweeping criminal-sentencing reforms that took shape in 2011.
At issue is a provision of the law that says that if a court cannot find a suitable sanction for a defendant who does not qualify for prison under the new guidelines, the judge can ask the Ohio Department of Rehabilitation and Correction to make a suggestion as to what local programs are available. The department then can either make a recommendation — which the judge is bound by law to follow — or say it doesn’t have a suggestion, in which case the judge then can send that person to prison if he chooses.
State records show that since the reforms took place, judges in 11 counties have sought a state recommendation a total of 27 times; 12 defendants went to prison as a result and 15 got probation. In Yoakem’s case, the Ross County Common Pleas Court asked for such a recommendation and the state gave none. As a result, it is expected that Judge Scott Nusbaum will sentence Yoakem to prison when he’s due in court on Thursday.
Some judges and prosecutors have long complained about this provision of the sentencing reform. Because one goal of the legislature when it enacted the changes was to see fewer people go to prison, defense attorneys have hailed the changes as positive. In this case, however, it is the defense attorney challenging the constitutionality of the law.
James Szorady, an assistant state public defender and Yoakem’s attorney, said the state prisons department’s involvement is a clear violation of the constitutional requirement for a separation of powers by the legislative, executive and judicial branches of government. “My argument is that the department is now holding sway over the court,” Szorady said. In his sentencing memo to the judge, he writes: “This is clear co-mingling of government branches ... and it is unconstitutional beyond a reasonable doubt.”
State Sen. Bill Seitz, a Cincinnati Republican who was instrumental in writing the changes, said there’s nothing unconstitutional about it because the Department of Rehabilitation and Correction is taking only an advisory role....
The Ohio Judicial Conference, a judges’ association created by state law, opposed this part of the sentencing reform since its inception and has asked the legislature several times to remove it because it’s a clear conflict, said Mark R. Schweikert, executive director of conference. “Frankly, I’m surprised a case hasn’t yet made it to the Ohio Supreme Court,” he said.
Schmidt said he thinks this is exactly where this one will end up. He said the reforms have hampered prosecutors and judges in their ability to punish certain offenders properly, simply to save the state money on housing prisoners, and this case is the best illustration of that so far.
“I’ve been beyond frustrated,” Schmidt said. “The sentencing reforms are not solving crimes and not rehabilitating people. They’re just making it harder to punish people, which is part of what a criminal sentence is about.”
Monday, May 12, 2014
Documenting the enduring challenge of reducing prison populations in Ohio
One 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.”
Monday, April 07, 2014
"Billion Dollar Divide: Virginia's Sentencing, Corrections and Criminal Justice Challenge"
The title of this post is the title of a new report by the Justice Policy Institute, which was released last week, is available here, and is summarized via this press release. Here are excerpts from the press release:
As Virginia lawmakers consider a budget that would see corrections spending surpass a billion dollars in general funds, a new report points to racial disparities, skewed fiscal priorities, and missed opportunities for improvements through proposed legislation, and calls for reforms to the commonwealth’s sentencing, corrections and criminal justice system.
According to Billion Dollar Divide Virginia’s Sentencing, Corrections and Criminal Justice Challenge, ... while other states are successfully reforming their sentencing laws, parole policies and drug laws, Virginia is lagging behind and spending significant funds that could be used more effectively to benefit public safety in the commonwealth....
According to the report, approximately 80 percent of the corrections budget is being spent on incarcerating people in secure facilities, while only about 10 percent of the budget is spent on supervising people in the community. Put another way, in 2010 for every dollar the Commonwealth of Virginia spent on community supervision, it spent approximately $13 on costs for those incarcerated. Other states have a better balance between prison spending, and supporting individuals in the community.
"Taxpayers' wallets – and more important, people's lives – are in jeopardy," said Marc Schindler, executive director of JPI. "Instead of planning to spend more than $1 billion on an ineffective corrections system, Virginia should be looking to policies that are being implemented successfully in other states to make wiser use of precious resources and get better public safety outcomes.”...
The report describes challenges facing Virginia’s sentencing, corrections and criminal justice system, including:
- Worrisome racial and ethnic disparities in how the state deals with drugs and drug crimes: African Americans make up approximately 20 percent of the Virginia population, but comprise 60 percent of the prison population, and 72 percent of all people incarcerated for a drug arrest. JPI has compiled information for the largest Virginia cities and counties that show the disparities in drug enforcement, and the latest data show Virginia’s drug arrest rates on the rise;
- More people serving longer sentences and rising length-of-stay: The changes to Truth-in-Sentencing enacted in the 1990s eliminated parole, and reduced access to earned-time and good-time credits. The commonwealth has added more mandatory minimums that have lengthened prison terms, and about one quarter of all of Virginia’s mandatory minimum sentences involve drug offenses. Between 1992 and 2007, there has been a 72 percent increase in individuals serving time for drug offenses. There has also been a substantial and very expensive increase in the number of elderly individuals incarcerated in Virginia, despite strong evidence that these individuals pose little threat to public safety....
Tuesday, April 01, 2014
"Alleyne on the Ground: Factfinding that Limits Eligibility for Probation or Parole Release"
The title of this post is the title of this notable new article by Nancy King and Brynn Applebaum now available via SSRN. The piece contends that the Supreme Court's Sixth Amendment ruling in Alleyne v. United States last Term renders a number of state sentencing systems constitutionally suspect, and here is the abstract:
This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, in both determinate and indeterminate sentencing jurisdictions, under statutes that limit the option of imposing either probation or a suspended sentence upon judicial fact finding.
In this Article, we argue that Alleyne invalidates such statutes. We provide analyses that litigants and judges might find useful as these Alleyne challenges make their way through the courts, and offer a menu of options for state lawmakers who would prefer to amend their sentencing law proactively in order to minimize disruption of their criminal justice systems.
Wednesday, March 12, 2014
Alabama judges complain about new guidelines that limit their discretion to impose prison terms
Federal practitioners are used to hearing complains from sentencing judges about mandatory sentencing laws (and formerly mandatory guidelines) that require judges to impose lengthy prison sentences in certain cases. But now in Alabama, as highlighted by this interesting new local article, state sententencing judges are complaining about new sentencing law that prevents them from imposing prison terms in certain cases. The article is headlined "Judges criticize sentencing guidelines," and here are excerpts:
All three members of Walker County’s Circuit Court were critical of Alabama’s new sentencing guidelines for nonviolent offenders while visiting with the Rotary Club of Jasper Tuesday.
Presiding Circuit Judge Jerry Selman described the current political climate as “frustrating” for judges because of the guidelines, which took effect in October 2013. “We can no longer put people in jail who steal from us or who sell drugs to our children,” Selman said.
Proponents of the guidelines say that they are needed to address overcrowding in the state’s prisons, which are hovering at 195 percent of capacity. In 2009, federal judges ordered officials in California to reduce the prison population after it had reached 200 percent of capacity.
Selman told Rotarians that he prefers stiff sentences because he believes that the fear of incarceration is a deterrent to crime. As an example of the correlation, Selman shared the impact of a 60 year prison sentence he handed down to a female drug dealer.
He said he felt the sentence was justified because the woman had ruined the lives of multiple children in the black community by offering them marijuana and gradually moving them on to other narcotics. “I had several police officers come to me and say that for at least the first six weeks after that sentence, you couldn’t find a single drug in the black section of Jasper,” Selman said.
Selman added that he expected to see an increase in crime once individuals charged with drug and theft crimes realize the implications of the sentencing guidelines. Word recently reached him that a self-described career thief did not intend to hire a lawyer the next time he made an appearance before Selman because he could no longer receive jail time.
Selman said his opinion is that legislators are “misguided” and are using the guidelines to avoid building more prisons. “They are looking for ways to save money that are not apparent to everyday people. If they quit patching the holes in the highway, it becomes obvious,” Selman said.
Circuit Judge Hoyt Elliott agreed that building prisons would be a more logical solution to the state’s overcrowding problem than limiting the sentencing options available to judges. “The Legislature controls the purse strings. It wouldn’t be an easy thing for them to do, but it could be done. Tax structures could be changed. They are just not going to do it because it’s not politically popular. So they put the burden on us to relieve the overcrowding, and that is not our job to do,” Elliott said.
Circuit Judge Doug Farris said the guidelines will also undercut the incentive to participate in the county’s Drug Court program, which has had over 200 graduates since 2008 and has a success rate of more than 50 percent. “Whatever the Legislature says, I’m going to do, but I think the best way is to give the discretion back to the judges. Sometimes we need to be lenient, and sometimes we need to be strict. Every case is different,” Farris said.
Saturday, March 08, 2014
"The New Normal? Prosecutorial Charging in California after Public Safety Realignment"
The title of this post is the title of this massive new article reflecting massively important research by W. David Ball and Robert Weisberg about the ways in which new sentencing/corrections reform in California may be impacting prosecutorial practices. Here is the article's massive abstract:
California’s Public Safety Realignment Act (“Realignment” or “AB 109”) shifts the responsibility of supervising, tracking and imprisoning specified non-serious, non-violent, non-sexual (“triple-nons” or “N3 felonies” or “non-non-nons”) offenders previously bound for state prison to county jails and probation. The implementation of Realignment in California is the largest correctional experiment of its kind. The advent of Realignment has, of course, affected the decisionmaking of all the official actors in the criminal justice system. But the prosecutor’s role is unique in one clear sense: Prosecutors have, in formal legal terms, virtually unreviewable autonomy in the choice to charge or not charge (so long as any charge matches provable facts with statutory elements).
How does this power operate in the wake of AB 109? Our hypothesis was that many aspects of AB 109 were likely to affect prosecutors’ charging and sentence recommendation choices. The most salient aspects were the change in site and de facto length of incarceration, as well as the secondary effects of new county responsibilities for post-release supervision of many prison parolees. In particular, in exercising discretion, prosecutors might be influenced by their views on the differences in the severity of experience of incarceration in jail as opposed to prison, or by their concerns about jail crowding or the extra costs that county jails and other county agencies might have to absorb under AB 109.
We explored this hypothesis through three study components. First, we established a rough charging baseline through an empirical study. With obtained data from the Attorney General’s office, we examined arrest-to-charging ratios by year and by crime category before and after Realignment. We found very few and small differences, including insignificant differences across counties, and very few differences across crimes.
Second, we exhaustively analyzed the statutory elements of certain very common crimes that fall within AB 109, especially drug and property crimes, and we consulted in great depth with two distinguished California prosecutors, both involved in AB 109 training. Our aim was to find parts of the penal code that applied to similar fact patterns that, nevertheless, would result in significantly different sentencing outcomes. These parts of the code isolate various fault lines in AB 109, which both served as a foundation for the third part of our study and served as a significant roadmap to AB 109 itself.
Third, we surveyed District Attorneys themselves, using a factorial approach that isolates various statutory and extralegal factors. Our questions focused on whether the new sentencing structure might alter prosecutorial decisionmaking in terms of tilting borderline charges towards prison-eligible crimes or recommending especially long jail sentences. We again found no significant differences, although, for reasons we explain in the paper, these conclusions must be read as tentative.
In sum, most charging or recommendation preferences remain consistent with traditional severity factors and do not manifest major alterations in light of AB 109. However, there remains a great deal of uncertainty and variation in the responses we received. This phenomenon manifested itself particularly when prosecutors had to choose from the menu of straight, split, and probation sentences. Recommended terms for split sentences — those involving a combination of jail terms and community supervision — were all over the map, ranging from short terms of both jail and supervision, to short jail and a long tail, to long jail and a short tail. At the same time, jail sentences, obviously available before Realignment but now extended to formerly prison-eligible sentences, were also wildly divergent on the same facts, ranging from a year or less to 20 years or more. Our conjecture is that the new regime of Realignment, introduced alongside the existing sentencing regime, might invite wide variation in sentencing recommendations (with possible attendant unjustified disparities).
Sunday, March 02, 2014
Alabama struggling with enduring challenges as tough-on-crime history creates "box of dynamite"
The New York Times today has this notable and lengthy article about the criminal justice reform challenges facing Alabama headlined "Troubles at Women’s Prison Test Alabama." Here are excerpts:
For a female inmate, there are few places worse than the Julia Tutwiler Prison for Women. Corrections officers have raped, beaten and harassed women inside the aging prison here for at least 18 years, according to an unfolding Justice Department investigation. More than a third of the employees have had sex with prisoners, which is sometimes the only currency for basics like toilet paper and tampons.
But Tutwiler, whose conditions are so bad that the federal government says they are most likely unconstitutional, is only one in a series of troubled prisons in a state system that has the second-highest number of inmates per capita in the nation. Now, as Alabama faces federal intervention and as the Legislature is weighing its spending choices for the coming year, it remains an open question whether the recent reports on Tutwiler are enough to prompt reform.
“Yes, we need to rectify the crimes that happened at Tutwiler, but going forward it’s a bigger problem than just Tutwiler,” said State Senator Cam Ward, a Republican from Alabaster who is chairman of the Senate Judiciary Committee. “We’re dealing with a box of dynamite.”
The solution, Mr. Ward and others say, is not to build more prisons but to change the sentencing guidelines that have filled the prisons well beyond capacity. Just over half the state’s prisoners are locked up for drug and property crimes, a rate for nonviolent offenses that is among the highest in the nation. “No one wants to be soft on crime, but the way we’re doing this is just stupid,” Mr. Ward said.
Still, in many corners of Alabama, a state where political prominence is often tied to how much a candidate disparages criminals, the appetite for change remains minimal. The Legislature is in the middle of its budget session, working over a document from Gov. Robert Bentley that includes $389 million for the state’s prisons. That is about $7 million less than last year’s budget.
The Department of Corrections argues that it needs $42 million more than it had last year. Alabama prisons are running at almost double capacity, and staffing is dangerously low, said Kim T. Thomas, the department’s commissioner. He said he would use about $21 million of his request to give corrections officers a 10 percent raise and hire about 100 officers....
There is no ignoring the prison crisis. Even Stacy George, a former corrections officer who is challenging Mr. Bentley in the June Republican primary by promising to be “the gun-toting governor,” this past week issued a plan for prison reform. It calls for changing sentencing rules, rescinding the “three-strikes” law for repeat offenders, releasing the sick and elderly, and sending low-level drug offenders into treatment programs instead....
“It is just a culture of deprivation and abuse, not just at Tutwiler but in institutions across Alabama,” said Charlotte Morrison, a senior lawyer with the Equal Justice Initiative, a legal organization that represents indigent defendants and prisoners. In 2012, the organization asked the federal government to step in after its own investigation into Tutwiler showed rampant sexual abuse....
“It’s a primitive, very backward prison system,” said Larry F. Wood, a clinical psychologist who was hired at Tutwiler in 2012. He quit after two months, appalled at the conditions and what he said was the administration’s lack of support for mental health services. “I’ve worked in prisons for most of 30 years, and I’ve never seen anything like this,” he said. “We need to back up and look at it with fresh eyes. The people who are running it don’t have the perspective to see what can change.”
Saturday, February 01, 2014
Two notable new Sentencing Project reports on sentencing reform and prison closings
This past week, The Sentencing Project released two notable short reports on state sentencing reforms and prison closings. Both reports are linked from this webpage, where the reports are noted and summarized in this way:
The Sentencing Project released two reports that highlight states downsizing prison systems and adopting sentencing policy reforms. Our research documents a three-year trend of prison closings that produced a reduction of 35,000 beds, including six states reducing capacity by 11,000 beds in 2013.
On the Chopping Block 2013 documents state prison closures and attributes the trend to several factors:
- A declining prison population in many states
- State fiscal constraints
- Sentencing and parole reforms in the areas of drug policy, diversion programs, and reductions in parole revocations to prison
The State of Sentencing 2013 documents reforms in 31 states in both the adult and juvenile justice systems, including:
- Expanding alternatives to incarceration for drug offenses
- Policies to reduce returns to prison for supervision violators
- Comprehensive juvenile justice measures that emphasize prevention and diversion
Saturday, January 11, 2014
A few notable headlines concerning notable state prison realities
My review of sentencing law and policy stories this morning revealed this array of noteworthy reports and commentary pieces concerning a number of state prison systems across the US. I have reprinted the headlines and subheading, which serve as a kind of summary of the issues covered:
From Arizona here, "Private prisons really are cheaper for taxpayers; Lawmaker: Column, editorial are just plain wrong"
From California here, "California prison population expected to grow over next 5 years: Ten thousand more inmates are expected, complicating Gov. Brown's effort to abide by a court order to reduce the prison population."
From Ohio here, "Ohio's prison population nears record high, raising the prospect of inmates being released early"
From Oklahoma here, "Oklahoma Board of Corrections looks at expanding use of private prison beds: The Oklahoma Board of Corrections is looking at three options to deal with overcrowding at the state's prison facilities: expanding public prisons, contracting for more private-prison beds, and buying or leasing one of the state's two empty private prisons."
From South Carolina here, "When Good People Do Nothing: The Appalling Story of South Carolina's Prisons: A judge's order in an inmate abuse case highlights the role played, or not played, by the state's political and legal infrastructure."