Saturday, April 30, 2016
Georgia continuing to lead and innovate state sentencing reform with new focus on mass probation
The most astute observers of criminal justice systems realize that tackling mass incarceration will always be an uphill battle if we do not also look closely at the realities of (even more massive) modern probation and other laws and rules that place many persons under significant criminal justice supervision. Consequently, I am encourage to see that the folks in Georgia, who have already been at the forefront of state-level sentencing reforms, are now turning to this issue. This local article, headlined "Nathan Deal aims to cut ‘extraordinarily high’ number of Georgia offenders on probation," tells the basic story:
Fresh off another round of changes to Georgia’s criminal justice system, Gov. Nathan Deal said he’ll urge lawmakers next year to tackle the stubborn problem of the “extraordinarily high” number of offenders on probation in Georgia. He wants to target the rise of “split sentencing” in Georgia – a practice in which a defendant serves part of the sentence behind bars, and then often a greater time outside prison. He called it an “unusual phenomenon, and we don’t know why it’s happening.”
“We have a significantly high number of people who are under probation supervision – an extraordinarily high number compared with most other states,” he said. “You’re going to see the general area of probation being a focus point.” Georgia led the nation in placing its citizens on probation in 2015 and topped the charts for its probation rate, which critics said reflected an overuse of the system.
The state moved to reform the misdemeanor probation system after an AJC investigation showed courts contract with private probation companies to “supervise” and collect payments from people who can’t afford to pay off expensive traffic tickets and other misdemeanor fines on the day they go to court. Deal’s Council on Criminal Justice Reform has recommended that lawmakers consider taking another step in 2017 by decriminalizing most traffic violations and rethinking the length of probation terms.
Thursday, April 28, 2016
Oklahoma joins long list of "red states" enacting significant sentencing reforms
As reported in this local article, headlined "Criminal justice reform bills signed into law by Oklahoma governor," another state known for its conservative politics should now also be known as another state that has enacted significant reforms intended to soften its sentencing system and reduce its prison population. Here are the details:
Four criminal justice reform measures were signed into law by Gov. Mary Fallin on Wednesday. The action comes at a time when the state’s prison system is operating at 122 percent of capacity.
“We want to be tough on crime, but we want to be smart on crime,” Fallin said.
The criminal justice reform bills she signed Wednesday are:
- House Bill 2472, which gives prosecutors discretion to file charges for crimes that are not subject to the 85 percent rule as misdemeanors instead of felonies. The 85 percent rule requires that those convicted of certain crimes, including rape and murder, serve at least 85 percent of their sentences before they can be considered for release.
- HB 2479, which reduces the mandatory minimum sentence for drug offenders charged only with possession.
- HB 2751, which raises the threshold for property crimes classified as felonies to $1,000 from $500.
- HB 2753, which would broaden defendants’ eligibility for drug courts and community sentencing. The measures are designed to curb the growing prison population.
“These measures are just the beginning,” said Rep. Pam Peterson, R-Tulsa, the House author of the bills. Fallin said it costs just under $20,000 a year to incarcerate an offender and about $5,000 a year for one defendant in drug court.
House Speaker Jeff Hickman, R-Fairview, said the state still has a crisis in corrections and incarceration. “This is not the end of the mission,” he said, adding that other criminal justice reform bills are working their way through the legislative process.
Former Tulsa County District Attorney Tim Harris attended the bill signing in the Blue Room at the Capitol. The measures give the state more options to prevent Oklahomans from becoming convicted felons and help them get the treatment they need, Harris said. “It is not soft on crime,” he said. “It holds criminals accountable without breaking the bank. It is cost neutral to the taxpayer right now.”
Oklahoma County District Attorney David Prater said the state needs to take steps to move mental health and substance abuse treatment to the front end. “With measures like this, I do believe that ultimately we will see a decrease in the prison population while not increasing violent crime, and actually this will have a positive impact, I believe ultimately, on public safety,” Prater said.
Tuesday, April 05, 2016
Disconcerting data on racial skew in application of mandatory minimums in Iowa
This lengthy local article, headlined "Blacks hit hard by Iowa's mandatory sentences," reports on the disparity in the application of certain state sentences in the heartland. Here is how the article starts:
More than 1,190 inmates are serving time in Iowa prisons for violent crimes that, by law, require a specific number of years behind bars and at least 70 percent of the sentences be served before they're considered for parole. And at least 35 percent of those inmates are black — in a state where 3.4 percent of the population is African-American.
If you want to know why Iowa imprisons a larger share of its black residents than almost any other state, mandatory minimum sentencing laws are one place to start, critics say. Iowa's lopsided statistics have prompted the state’s Public Safety Advisory Board for three consecutive years to recommend that the Legislature ease sentencing mandates on two crimes — first- and second-degree robbery — that have been especially tough on African-Americans, said Thomas Walton, the board’s chairman and a Des Moines attorney. During a four-decade period, 42 percent of Iowa inmates serving prison time for robbery were black, state data show.
A Des Moines Register review of robbery sentencing guidelines for 11 Midwestern states shows that Iowa’s are the most restrictive. They allow the least amount of judicial discretion in determining how much time an offender will spend behind bars. “The theory behind mandatory minimum sentences was, ‘Let’s lock them up for a longer period of time … and then we’ve avoided those re-offenses for the period of time that they’ve been incarcerated,’” Walton said. “Some of those assumptions, based on studies done by our board staff, were not necessarily correct.”
Iowa finds itself embroiled in the same debate raging nationally over the impact of mandatory minimum sentences, which were put in place during the get-tough-on-crime decades of the 1980s and '90s and have ballooned prison populations....
This year, the Iowa House, acting on part of the advisory board’s recommendation, approved a bill that includes loosening the mandatory minimum sentence for second-degree robbery. Judges would have the discretion to say how much time an offender would serve — from three to seven years — before becoming eligible for parole on the 10-year sentence. Now, offenders must serve at least seven years.
But Sen. Kevin Kinney, D-Oxford, filed an amendment stripping the proposal from House File 2064, which has not been voted on by the Senate. “When there is a weapon brandished during a robbery, I have a hard time reducing the sentence,” said Kinney, a retired Johnson County sheriff’s officer. “I just don’t want to reduce penalties for violent crimes.”
Tuesday, March 22, 2016
"Looking Forward: A Comprehensive Plan for Criminal Justice Reform in Ohio"
The title of this post is the title of this notable new report produced by the ACLU of Ohio and the Ohio Justice and Policy Center. Here is the report's introduction:
Ohio has a mass incarceration crisis. There are currently 50,600 Ohioans in prisons designed to hold 38,600; that’s at least 12,000 too many of our neighbors and fellow citizens in cages. And beyond these inhumane numbers, there is a fundamental misuse of criminal-justice tools to attack social and health problems. We have responded to poverty, drug and alcohol addiction, mental illness, or an overall lack of opportunities with punishment.
Instead of treating people with mental illness, we criminalize them and block access to the care they so desperately need. We allow low-income people to be victimized by steep fines and costs, with many languishing in local jails because they cannot afford to pay a court fine or make bond. People who have a small amount of drugs are not given treatment for their addiction, but instead offered prison sentences and a felony conviction. Those who try to re-enter society have the door slammed shut by mounting collateral sanctions that prevent them from getting a job, housing, education, reliable transportation, and more.
The result is a system that is costing our state in every sense of the word. Ohio has the sixth largest prison population in the nation. In the last decade, the prison population has increased 12 percent despite the fact that the violent crime rate has reached a 30-year low. In 2014, taxpayers spent over $1.7 billion to operate the state prison system alone. Every dollar spent on prisons is a dollar not spent on crime-survivor services, schools, addiction treatment, mental healthcare and other services that enrich our communities and that keep people out of the criminal justice system in the first place. Nowhere are the negative effects of mass incarceration felt more than in communities of color. African Americans account for nearly half the state’s prison population but only a little more than a tenth of the total state population. Mass incarceration has decimated neighborhoods, leaving many communities of color with countless people unable to find employment and cycling in and out of the justice system.
State leaders have begun to recognize that mass incarceration is simply not working and must be dismantled. In 2011, a bi-partisan group of legislators, along with advocates and activists, passed House Bill 86 (HB 86). This legislation was part of the federal Justice Reinvestment Initiative that sought to reform state criminal justice systems and provide resources for strategies that depopulate prisons and jails. While HB 86 promised modest reforms, it was never fully implemented or funded, and despite a short plateau, Ohio’s prison population is growing.
The time for modest, incremental steps is over. We must challenge ourselves to imagine a fundamentally different justice system that is truly just, and not merely focused on punishment. We must usher in an era of being smart on crime, not just tough on crime, where accountability does not mean punishment for punishment’s sake. We can create forms of accountability that restore the law-breaker to being a productive member of society while also offering more robust healing and restoration to crime victims.
Currently, the Ohio General Assembly has created a Criminal Justice Recodification Committee that is tasked with rewriting our criminal laws. Once again, state leaders have invited members of that committee to use this opportunity to change our justice system. However, the problem does not begin or end simply with the contents of Ohio’s criminal code, nor does the solution reside solely with the Committee. Their work represents a meaningful opportunity to bring about substantive reform — that opportunity must not be squandered on narrow, technical edits to statutory language. Now is the chance for the legislature to precisely identify and fundamentally change the policies that drive excessive incarceration. It is with this approach that we can perhaps finally begin looking forward to a new justice system that makes our communities stronger and lifts up the people of Ohio, rather than keeping them down.
Tuesday, March 15, 2016
Interesting account of effort to take sentencing reform directly to voters in Oklahoma
This article from The Frontier provides an interesting account of sentencing reform efforts in Oklahoma and why supporters of reform are turning to direct democracy to move forward. The piece is headlined "After several stalled attempts, Oklahoma group taking prison reforms to vote of the people," and here are excerpts:
Kris Steele stepped up to the microphone in a packed room at Tulsa’s Women in Recovery office and declared this time, in 2016, Oklahoma was going to break through the “political gridlock” by taking criminal justice reform to a vote of the people....
For more than five years, Steele, a former speaker of the state House of Representatives, has been talking about the importance of criminal justice reform for Oklahoma’s fiscal bottom line, its citizens and children. Now, facing a $1.3 billion budget crisis and prisons packed above 120 percent of capacity, it appears Oklahoma is finally ready to listen.
Steele, along with a bipartisan coalition of state power players, is hoping Oklahoma voters will accomplish what elected officials did not in several prior attempts: reducing the state’s staggering prison population. They hope to redirect some of the savings toward addressing root causes of crime, shifting the state toward a corrections system that focuses on rehabilitation, not solely punishment.
As chairman of Oklahomans for Criminal Justice Reform, Steele is leading efforts to collect more than 65,000 petition signatures that would allow two state questions to be added to November’s ballot. State question 780 would reclassify certain low-level offenses as misdemeanors instead of felonies, such as drug possession and smaller property crimes. The idea is that reclassification would reduce Oklahoma’s prison population and trigger cost savings, badly needed in a state facing a budget crisis where leaders are considering trimming school days to make ends meet.
State question 781 would then invest those prison cost savings in programs designed to address the root causes of crime — including addiction, mental health issues and poverty — and programs that provide job training and education to offenders as they leave prison....
Other states, including Texas and North Carolina, have used their own Justice Reinvestment Initiatives to realize significant savings on corrections spending. North Carolina’s reforms, passed in 2011, have helped the state close nine prisons and officials expect to save $560 million in averted costs and cumulative savings by 2017, according to the Council on State Governments. Those savings have also made it possible for North Carolina to re-invest nearly $4 million into community-based treatment programs, the council reported.
After Texas officials implemented sentencing reforms in 2007, including probation, drug treatment, pre-trial diversion programs and intermediate sanction facilities, cost savings from the measures allowed Texas to close three existing prisons and scrap plans to build three new ones.
As Oklahoma has watched other states — including Texas — implement those reforms, the political climate surrounding criminal justice reform here has changed, Steele told The Frontier in an interview. Steele, who left office due to term limits, became the executive director of The Education and Employment Ministry in Oklahoma City.
“When we first started having this conversation in 2009 to 2011, our prisons were at 99 percent capacity. Now, they’re over 122 percent capacity,” he said. “The fact that the problem has not gone away — in fact, it’s gotten worse — causes us to be more willing to have this conversation.”...
“I think the public is ready to have that conversation. I think the public is way ahead of the legislature on this issue. There’s actually a pretty significant disconnect between the voters and elected officials on this issue.” Hence taking the issue to the voters through the two state questions....
Now several bills in the legislature aim to achieve similar goals of the two state questions backed by Oklahomans for Criminal Justice reform. But Steele’s group wants to put the decision directly in the hands of voters. And he’s got the backing of organizations like Right on Crime and the ACLU of Oklahoma.
“It’s a little more work, but in the end we think it’s going to be well worth it,” he said. “The people of Oklahoma ought to be able to have a direct say so in this issue.” It is the citizens who pay the $500 million each year to fund Oklahoma’s prison system, after all.
The Rev. Ray Owens, pastor of Tulsa’s Metropolitan Baptist Church, was one who offered an “amen” after Steele and Neal spoke to the crowd at Women in Recovery last week. “Instead of investing more money in prisons, I believe it’s time for us to invest more in our people,” Owens said.
"Is Proposition 47 to Blame for California's 2015 Increase in Urban Crime?"
The question in the title of this post is a question a lot of persons who are following the broader national debate over sentencing reform are asking (as highlighted via this post by Bill Otis over at Crime & Consequences). It is also the title of this new research report authored by a researcher at the Center on Juvenile and Criminal Justice. Here is the full textual of the introduction to the eight-page CJCJ report:
In November 2014, nearly 60 percent of California’s electorate voted to pass Proposition 47. This proposition made substantial sentencing reforms by reducing certain nonviolent, non-serious offenses, such as minor drug possession and shoplifting, from felonies to misdemeanors (CJCJ, 2014). Because the changes made by the new law applied retroactively, incarcerated people serving felony sentences for offenses affected by Proposition 47 were eligible to apply for resentencing to shorten their sentences or to be released outright. Those who already completed felony sentences for Proposition 47 offenses could also apply to change their criminal records to reflect the reforms.
Critics of Proposition 47 contended it would increase crime by releasing those convicted of dangerous or violent felonies early (see “Arguments Against Proposition 47,” 2014). Opponents also suggested that reducing the severity of sentences for certain felonies would fail to deter people from committing crimes or completing court-ordered probation requirements.
In the initial months following the passage of Proposition 47, California’s jail population dropped by about 9,000 between November 2014 and March 2015 (the most recent date for which county jail figures are available at this time) (BSCC, 2016). State prisons reported over 4,500 releases attributed to Proposition 47 (CDCR, 2016), for a total incarcerated population decline of more than 6 percent — a substantial decrease. Similar to the initial year after Public Safety Realignment took effect, January-June 2015 saw general increases in both violent and property crime in California’s cities with populations of 100,000 or more (Table 1). During this period, homicide and burglary showed slight declines, while other Part I violent and property offenses experienced increases.
Is Proposition 47 to blame for the increases in reported urban crimes? This report tests this question by comparing changes in crime rates, from January–June 2014 and January–June 2015, in California’s 68 largest cities to changes in: (a) county jail populations and (b) Proposition 47-related discharges and releases from prison to resentencing counties.
March 15, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, National and State Crime Data, Reentry and community supervision, State Sentencing Guidelines | Permalink | Comments (4)
Thursday, February 25, 2016
"Does Smarter Sentencing Equal Lower Prison Numbers?"
The title of this post is the headline of this lengthy new piece by Adam Wisnieski at The Crime Report, which is largely a report on what various experts are saying about the impact of modern sentencing reforms on prison populations. I recommend the piece in full, and here are some excerpts (with a few of the original's links preserved):
Most analysts agree that states have been much further ahead than the feds on these issues. For the past year, members of Congress have been debating a variety of bills that would make changes to federal sentencing guidelines similar to some of the revisions already underway at the state level. The proposed Sentencing Reform and Corrections Act has received widespread bipartisan support — but is now stalled by the resurgence of concerns that relaxing punishment standards would lead to an increase in crime.
There’s no shortage of voices about what type of impact that bill would have. But few seem to look to states for lessons, regardless of the well-worn phrase about them being “laboratories of democracy.” Have states been successful? Experts contacted by The Crime Report had different views.
Adam Gelb, director of The Pew Charitable Trusts’ Public Safety Performance Project said that the national conversation on criminal justice is undergoing a transformation. “We are really starting to see a culture shift in which policymakers are becoming eager to base decisions on data and evidence rather than emotion or ideology,” Gelb said in an interview. “There’s been a tremendous amount of progress but there’s still a long way to go.”
Other researchers disagree, saying there is more smoke than fire in state efforts. Minor tweaks to sentencing policies, which they say is largely what states have done, have not worked to significantly impact the nation’s mass incarceration problem. “Most states have not made any progress,” says James Austin, who runs the Washington, D.C.- and California-based JFA Institute, a criminal-justice consulting firm. “Those that are making some progress, it’s been pretty miniscule.”
Michael Tonry, director of the Institute on Crime and Public Policy of the University of Minnesota argues the same thing. In his new book, Sentencing Fragments: Penal Reform in America, 1975-2025, Tonry describes states’ approach to reducing prison population through minor changes to sentencing and release policies as “nibbling” around the edges of the problem. “What’s being done is these little tiny tweaking around the edges, and then making big projections,” he said in an interview with The Crime Report. “That’s not how the world is going to change.”...
About 13 percent of our country’s prisoners are serving time in federal prisons. The other 87 percent, more than 1.3 million people according to the Bureau of Justice Statistics, are in state prisons.
That number of state prisoners hasn’t changed dramatically in the last decade; it’s leveled off. The number of people in state prisons is about the same as it was ten years ago. From 2004 to 2014, the state prison population went up from roughly 1.32 million to 1.35 million, according to the Bureau of Justice Statistics.
That most recent number (1.35 million state prisoners in 2014) is down from its high water mark, 1.41 million in 2008. Critics suspect the leveling off could be attributed to harsh sentences imposed in the 1980s and 1990s finally coming to an end. But defenders point to the nation’s decreased incarceration rate as real progress. The nation’s adult incarceration rate, which includes offenders in not only state prisons, but federal prisons and local jails, dropped 10 percent from 2007 to 2014, from 1 in 100 to 1 in 111. “The incarceration rate has declined steadily each year since 2008,” notes the most recent report on the correctional populations in the U.S. by the Bureau of Justice Statistics.
Last week, The Sentencing Project released an analysis on how well states have handled the problem of growing prison populations. “Relatively modest,” the report concluded. “While 39 states have experienced a decline since reaching their peak prison populations within the past 15 years, in most states this reduction has been relatively modest,” reads the report. “The overall pace of change, though, is quite modest given the scale of incarceration.”
Tonry says one reason why reforms in certain states haven’t achieved projected gains is that stakeholders like prosecutors, judges and parole boards are not invested in changing the system. “The problem with tweaking things is they have to be implemented by somebody,” he said....
One state that has gotten a lot of press recently for figuring out how to successfully reform harsh sentencing laws is Georgia. In 2011, Georgia Gov. Nathan Deal signed a bill that modified mandatory minimum sentences on drug charges, gave judges more discretion in drug sentencing, raised the felony threshold for certain theft crimes. Since the bill was signed, Georgia’s prison population has gone down every year, from 55,944 in 2011 to 52,949 in 2014, a slight decrease but a decrease nonetheless.
If that bill, along with another bill on juvenile justice in 2012, had not been passed, the state says its prison population would have gone up by 8 percent and cost $264 million more to expand capacity. The policy change has saved the state millions, but according to a report last year by the state’s Council on Criminal Justice Reform, Georgia’s prison population is projected to go up every year over the next five years.
So at least for Georgia, success seems to be measured on figuring out how to slow the increase, but not to reverse the trend. There is reason for optimism, though. Despite those projections, the prion population has actually continued its downward trend — and policymakers haven’t given up. After initial reforms were passed in 2011, Georgia has passed reforms every year since 2011, something states like Kentucky haven’t done. “Georgia is back year after year,” said Gelb. “That kind of reform-minded environment can have an impact well beyond specific changes to law and policy.”
Wednesday, February 10, 2016
"The State of Sentencing 2015: Developments in Policy and Practice"
The title of this post is the title of this great new publication from The Sentencing Project. Here is a summary of its contents drawn from an email I received earlier today:
[This] new report from The Sentencing Project, The State of Sentencing 2015: Developments in Policy and Practice, [was] authored by Nicole D. Porter, Director of Advocacy. The report highlights reforms in 30 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety. It provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice. Highlights include:
Sentencing: At least 12 states authorized new sentencing laws or modified policy practices including: abolishing the death penalty; reducing criminal penalties; and sentence reduction policies for mandatory sentences.
Probation/Parole: Lawmakers in at least six states modified policies relating to community supervision including statutory guidance designed to reduce returns to prison for technical probation and parole violators.
Collateral Consequences: Officials in at least 14 states authorized changes in policy and practice to the collateral impacts of a conviction including: expanding voting rights; eliminating public benefits bans for felony drug convictions; and addressing employment barriers.
Juvenile Justice: Lawmakers in ten states adopted juvenile justice reforms including: banning mandatory life-without-parole sentences for justice involved youth and limiting prosecutorial discretion in automatic transfer policies for juvenile defendants.
February 10, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)
Tuesday, January 26, 2016
What lessons are to be learned from California's recent experiences with sentencing reform?
The question in the title of this post is prompted by this notable new post authored by Michael Rushford at Crime & Consequences (and supplemented by Bill Otis) titled "Congressional Supporters of Sentencing Reform Need to Look at California." As regular readers know, I have long pointed to California as a state to watch closely in the sentencing reform arena, and thus I am pleased to see this post urging federal legislators to look at California's modern reform experiences. But while the C&C folks seem to think the California experience should lead Congress to back away from proposed statutory sentencing reforms, I see many of the problems emphasized by the C&C folks to be a result of the abject failure of California's legislature to respond wisely with statutory reforms when there was an obvious need to improve its sentencing structures.
I have previously highlighted some of these California realities in this extended 2014 post titled "Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?". In that post, I stressed that while the tough-on-crime crowd over at C&C is eager to blame recent California developments on recent sentncing reform required by a federal court order in Plata and resulting from voter initiatives, 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 systematically with the state's enduring sentencing problems before they became so acute that federal court intervention was required.
The critical part of the California reform story left out from the C&C discussion is that the California legislature from 2005 to 2010 completely failed to respond in any sound way to sensible calls by sentencing reformers to deal with the state's unconstitutional prison overcrowding and the statutory sentencing problems aggravating these problems. The court orders requiring prisoner release in Plata and the voter-approved sentencing reforms passed in subsequent elections were the direct result of federal courts and Californian voters no longer being able to trust the state's elected representatives to move responsibly forward with needed state statutory sentencing reform.
In some ways, this potentially problematic, reactive-reform dynamic is already playing out in the federal sentencing system. For example, the US Supreme Court has been saying in various ways for many years that Congress needed to fix various problems with the Armed Career Criminal Act. Congress long failed to respond, and we ultimately get the Justices in Johnson striking down the ACCA statute as partially unconstitutional (which will now require the release of many offenders previously sentenced as armed career criminals). Similarly, the US Sentencing Commission and the US Department of Justice have been saying in various ways for many reasons that Congress needs to address record-high federal prison populations. I suspect the USSC concluded, after Congress failed to heed its repeated calls for broad statutory reforms, that it had to do something big itself (with DOJ's support) and thus voted unanimously to reduce guideline sentences for all drug offenses across the board and to make these reforms retroactive.
Now, after years of failing to heed calls by sentencing reformers (and the bipartisan US Sentencing Commission) to get ahead of statutory sentencing problems, much of Congress (now led by the GOP) has seemingly come to realize that failing to deal proactively and systematically with sentencing and corrections reform could produce even more long-term problems and challenges. But, yet again, the tough-on-crime crowd at C&C and elsewhere is vehemently opposed to a legislature moving forward proactively and systematically with enduring statutory sentencing problems before we get to a crisis point and other actors feel compelled to get involved due to legislative inaction.
Monday, January 25, 2016
Helpful accounting by Pew Charitable Trusts of huge state-level reforms resulting from Justice Reinvestment Initiative
The good folks at Pew recently released these two helpful mini-reports that provide a summary accounting of lots of the criminal justice reform work that has been done by states in recent years through the so-called Justice Reinvestment Initiative:
- States Modify Sentencing Laws Through Justice Reinvestment
The first of these linked documents has a pdf version with huge chart with lots of interesting specifics under the heading "Sentencing and Corrections Reforms in Justice Reinvestment States." Anyone eager to get a feel for just some of the massive criminal justice reforms that have taken place in the states over the last decade ought to check out this document. And the document has this overview discussion at the outset:
Since 2007, 31 states have reformed their sentencing and corrections policies through the Justice Reinvestment Initiative, a public-private partnership that includes the U.S. Justice Department’s Bureau of Justice Assistance, The Pew Charitable Trusts, the Council of State Governments Justice Center, the Crime and Justice Institute, the Vera Institute of Justice, and other organizations. Although reforms vary from state to state, all aim to improve public safety and control taxpayer costs by prioritizing prison space for serious and repeat offenders and investing some of the savings in alternatives to incarceration for low-level offenders that are effective at reducing recidivism.
Justice reinvestment policies generally fall into four categories: sentencing laws that instruct courts about how to sanction convicted defendants; release laws that determine the conditions for offenders’ departure from prison; supervision laws that guide how those on probation or parole are monitored; and oversight laws that track the progress of these changes.
In the years since the wave of reforms began, the total state imprisonment rate has ticked downward while crime rates have continued their long-term decline. At the same time, states that have enacted justice reinvestment laws expect to save billions of dollars as a result of their reforms.
The second document linked above drills down a little deeper into sentencing-specific reforms, and a quick review of the state-by-state changes suggests that even more "red" states have been involved in making sentencing reforms through the Justice Reinvestment Initiative than "blue" states.
Sunday, November 15, 2015
"Who's Really Sentenced to Life Without Parole?: Searching for 'Ugly Disproportionalities' in the American Criminal Justice System"
The title of this post is the title of this interesting and important new paper by Craig Lerner digging deeply into the realities of LWOP sentencing in eight states. Here is the abstract:
Critics argue that the American criminal justice system is rife with “ugly disproportionalities” and “brutal penalties on the undeserving.” One particularly brutal punishment is the sentence of life without the possibility of parole (LWOP). The punishment, conceived decades ago as a substitute for the death penalty, scarcely exists in the rest of the world. Today, while capital punishment wanes in the United States, steadily increasing numbers of defendants are sentenced to LWOP. Furthermore, according to a recent ACLU Report, over 3,000 of the 50,000 inmates serving LWOP were convicted of nonviolent offenses. There is no uglier disproportionality than a defendant, guilty of a minor crime, banished to prison for the remainder of his life.
This Article questions this narrative and therewith the contemporary wisdom as to the brutality of American criminal justice, at least in its imposition of LWOP sentences. The author conducted a detailed study of every inmate sentenced to LWOP in eight states. In a few states, it is impossible to find a single inmate sentenced to LWOP for any crime other than murder or the most serious violent crimes. Even in jurisdictions that impose LWOP for crimes labeled “nonviolent,” the inmates are few in number and often present aggravating factors, such as extensive criminal histories or previous violent crimes. Inevitably, criminals sentenced to LWOP will vary in culpability, and some will appear not to merit this punishment. Drawing attention to their plight can spur executive clemency in individual cases. But accusations that the American legal system is rife with “ugly disproportionalities,” at least insofar as this claim is applied to LWOP sentences in the states, appear to have little merit.
Thursday, November 05, 2015
"Proposition 47 Progress Report: Year One Implementation"
The title of this post is the title of this recently-released report from the Stanford Justice Advocacy Project, which "was involved in the drafting of Proposition 47 and currently assists its implementation, including litigation on behalf of individual prisoners seeking reduced sentences under the new law." Perhaps unsurprisingly, this report tells a much more positive story about the impact of Proposition 47 than has been reported by law enforcement officials and various others. Here are the short report's "Key Findings" (without the many footnotes):
Since the enactment of Proposition 47 on November 14, 2014, the number of people incarcerated in California’s prisons and jails has decreased by approximately 13,000 inmates, helping alleviate crowding conditions in those institutions. Proposition 47 has also reduced the number of jail inmates released from custody early due to overcrowding and should generate over $150 million in state savings this fiscal year. County governments stand to save even more money: over $200 million annually, in aggregate.
According to the Legislative Analyst’s Office, prior to Proposition 47 approximately 40,000 people per year received felony sentences for the drug and property crimes targeted by the initiative. Those offenses are now punished as misdemeanors, significantly reducing sentence lengths and costs for incarceration, litigation and law enforcement.
According to the Department of Corrections, 4,454 state prisoners have been released under Proposition 47 as of September 30, 2015. In addition, the state will incarcerate an estimated 3,300 fewer prisoners every year because these offenders will receive misdemeanor jail sentences under Proposition 47 rather than new prison terms. In February, the prison population dropped below the capacity level ordered by the U.S. Supreme Court in Plata v. Brown, one year ahead of schedule.
According to the Board of State Community Corrections, the total statewide jail population has dropped by almost 9,000 inmates since the enactment of Proposition 47.9 Early releases from county jails due to overcrowding are down approximately 35 percent statewide.
Financial savings to the state from reduced prison costs under Proposition 47 is estimated at over $156 million this fiscal year. Long term annual savings are estimated at $93.4 million. These savings will be directed to the Safe Neighborhoods and Schools Fund to support mental health and drug treatment, K-12 public schools, and services for crime victims. In May, the Governor cut over $70 million dollars from the state prison budget because of population reductions from Proposition 47.
Fewer than five percent of state prisoners released early under Proposition 47 have been convicted of a new crime and returned to prison. Although law enforcement officials in some jurisdictions have recently complained about increasing crime rates, there is no evidence that state prisoners released early under Proposition 47 are committing those crimes. Statewide data on crime rates is not currently available, making it impossible to measure any impact on crimes rates by Proposition 47.
Monday, October 26, 2015
Interesting takes on California developments since passage of Prop 47
I have long asserted that California has long been among the most interesting states to watch closely when it comes to crime and punishments. The latest round of developments involve the state's passage of an initiative, Proposition 47, reducing the severity of many offenses and subsequent reactions thereto. This new Los Angeles Times op-ed, authored by Robert Greene and headlined "California's Prop. 47 revolution: Were the voters duped?," provides a notable take on all this and a preview of more to commentary come. Here are exerpts:
Police and prosecutors have lately attempted to link increases in crime to last year's Proposition 47. Based on their overwrought statements, it would be understandable for Californians to start wondering whether they had been duped into completely decriminalizing drug possession and petty theft....
As is the case with all large bureaucracies, it is difficult for courts and for city and county agencies — police departments, sheriff's departments, district attorneys, probation officers, county supervisors — to understand and constructively respond to changed circumstances. And Proposition 47 no doubt brought change, by converting six felonies to misdemeanors and allowing many people serving sentences for those crimes, and those who served their time long ago, to be resentenced and have their rap sheets adjusted....
Crime in Los Angeles and some other communities throughout the state has increased this year after many years of decline. But is that because of Proposition 47? Other American cities, where Proposition 47 has no effect, have seen similar increases.
If the ballot measure is connected to rising crime, that's probably because public officials have been too slow to recognize the options that the measure gives them. And it's likely that their decisions — a deputy's decision not to arrest, for example, or the sheriff's not to make room in the jail for a recidivist offender pending trial, or county supervisors' not to use any of the hundreds of millions of dollars currently available for non-jail alternatives — are based on suppositions about how the other links in the public safety chain will react....
The gist of the reaction against Proposition 47 is that we as a society simply have no choice but to make possession of drugs and petty theft into felonies punishable by more than a year in prison if we want to control more serious crime. Similar warnings were issued about the consequences of modifying the three-strikes law, yet recidivism among strikers released from prison after voters adopted Proposition 36 is astonishingly low. And similar arguments were made against redirecting some felons from state prison and state parole to county jail and county probation, yet crime rates after realignment continued to fall.
In the coming week, The Times' Opinion section — the Opinion L.A. blog, the editorial board and the Op-Ed page — will explore the repercussions of Proposition 47, and compare this episode in criminal justice history with similar recent changes that also produced periods of adjustment. The goal is not to defend the voters' decision but rather to seek some honest talk, some accountability and some effective action on the part of public officials who are responsible for providing public safety, justice and wise and effective spending.
These follow-up opinion pieces provide, as their headlines suggest, pro and con views of the pros and cons of Prop 47:
Thursday, September 24, 2015
Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing
This local article, headlined "Court may review use of defendant-risk tool," reports on a Wisconsin appellate court ruling that has urged the state's top court to consider a challenge to the use of risk-asssesment at sentencing. Hetre are the details:
Wisconsin's highest court could decide whether judges are violating thousands of criminal defendants' rights by using specialized software to assess whether they are a risk to society.
Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS assessments, are routinely used by judges in all Wisconsin counties, said Department of Corrections spokeswoman Joy Staab. The tool is intended to help judges determine the risk a defendant presents to the community as well as the potential to commit another crime. Judges use the results to help decide whether a defendant should be sentenced to prison or instead offered alternative sentences such as probation.
Questions arose after a 2013 La Crosse County case, when Circuit Judge Scott Horne relied in part on a COMPAS assessment to decide that Eric Loomis was not eligible for probation. At sentencing, the judge said the assessment suggested Loomis presented a high risk to commit another crime, according to court records. Loomis, who was convicted of taking and driving a vehicle without the owner's consent and fleeing an officer, was sentenced to six years in prison.
Loomis appealed, questioning the scientific validity of the assessment. Attorneys for Loomis assert that COMPAS was not developed to assist sentencing decisions, but to determine program needs for offenders, according to court records. Proprietary rights held by the company that developed the tool prohibit defendants from challenging the assessment's methodology, leaving Loomis and other defendants with little recourse, according to court filings. The Loomis appeal also questions the use of gender-specific questions during the assessment to help determine potential risk. Federal civil rights laws prohibit courts from relying on gender when making sentencing decisions.
The appeals court opted not to rule in the case, instead asking the Wisconsin Supreme Court to weigh in on the matter. Although judges are given training on how to use COMPAS, the appeals court is asking the higher court to decide whether using the tool violates defendants' rights, either because defendants are not allowed to challenge the scientific basis of the assessments or because gender is taken into consideration. "There is a compelling argument that judges make better sentencing decisions with the benefit of evidence-based tools such as COMPAS,” the Court of Appeals wrote in a Sept. 17 filing. “Yet, if those tools lack scientific validity, or if defendants cannot test the validity of those tools, due process questions arise.”
The software-based assessment, created by Colorado-based Northpointe Inc., eliminates the need for judges and corrections officers to rely on manual assessment procedures, which are often more subjective and discretionary, to assess risk. Wisconsin began using the assessment more than four years ago, Staab said.
The referenced appellate court certification opinion is available at this link, and it begins this way:
We certify this appeal to the Wisconsin Supreme Court to decide whether the right to due process prohibits circuit courts from relying on COMPAS assessments when imposing sentence. More specifically, we certify whether this practice violates a defendant’s right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account. Given the widespread use of COMPAS assessments, we believe that prompt supreme court review of the matter is needed.
Thursday, September 10, 2015
Notable collective makes plans for "smart on crime" criminal code reform in Ohio
My local Columbus Dispatch has this new Ohio criminal justice reform story headlined, "Statehouse leaders push for shorter prison sentences, reducing prison population." Here are the (still a bit fuzzy) details concerning what is afoot in the Buckeye state:
Ohio officials are undertaking a sweeping reform of the state’s criminal justice code, potentially resulting in shorter prison sentences and fewer people going to prison for non-violent drug crimes.
An unusual bipartisan coalition, including top legislative leaders, tax reformer Grover Norquist, an American Civil Liberties Union official, and Piper Kerman, author of Orange is the New Black: My Year in a Women's Prison, announced plans today to overhaul Ohio’s lengthy and cumbersome criminal code top-to-bottom.
“No one is here to say today that criminals should not be punished. We are here to say that not all crimes or criminals are created equal,” Senate President Keith Faber, R-Celina, said at a Statehouse press conference. “This is not about being hard or soft on crime. It’s about being smart on crime.”
No specifics were announced. Exactly how the criminal code will be overhauled will be up to the 24-member Ohio Criminal Justice Recodification Committee appointed by the legislature. Faber said he told the committee to “swing for the fences” when it comes to big picture reform ideas. But he balked when asked about two specific areas: revising parole standards for current inmates and marijuana legalization.
The consensus of speakers was that the reform goals are reducing the prison population by incarcerating fewer non-violent drug offenders and people with mental health issues, eliminating mandatory, flat sentences, and removing barriers for ex-offenders to return to society....
Speaker after speaker criticized the burdensome incarceration rate in Ohio and the U.S., the highest in the world. “Locking people in cages is extreme and dehumanizing,” said Allison Holcomb, head of the ACLU’s national Smart Justice program. “This is the top priority for us.”
Norquist, president of the conservative Americans for Tax Reform, said he views reform from more of an economic standpoint. “We have too many people in prison and not the right people in prison,” he said. That is costing taxpayers far too much, he said.
Kerman, now living in Columbus, came to public attention as author of her real-life story that led to the Netflix series, Orange is the New Black. “I’m fairly confident I’m the only person up here with a felony,” Kerman said opening her remarks. Following her release from a Connecticut prison on a drug-related money laundering charge, she became an advocate for sentencing and parole reform. She is teaching writing to inmates at two Ohio prisons.
Faber said the recodification committee, which is chaired by Auglaize County Common Pleas Judge Fred Pepple, does not have a specific deadline for completing its work. The final recommendations must be passed by the General Assembly.
Tuesday, September 01, 2015
"Skin Color and the Criminal Justice System: Beyond Black‐White Disparities in Sentencing"
The title of this post is the title of this intriguing new article discussing empirical research on sentencing outcomes in Georgia authored by Traci Burch. Here is the abstract:
This article analyzes sentencing outcomes for black and white men in Georgia. The analysis uses sentencing data collected by the Georgia Department of Corrections (GDC). Among first‐time offenders, both the race‐only models and race and skin color models estimate that, on average, blacks receive sentences that are 4.25 percent higher than those of whites even after controlling for legally‐relevant factors such as the type of crime.
However, the skin color model also shows us that this figure hides important intraracial differences in sentence length: while medium‐ and dark‐skinned blacks receive sentences that are about 4.8 percent higher than those of whites, lighter‐skinned blacks receive sentences that are not statistically significantly different from those of whites. After controlling for socioeconomic status in the race‐only and race and skin color models the remaining difference between whites and dark‐ and medium‐skinned blacks increases slightly, to 5.5 percent. These findings are discussed with respect to the implications for public policy and for racial hierarchy in the United States.
September 1, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)
Wednesday, August 26, 2015
New research report examines impact of "Realignment" on crime in California in 2014
Via an email from the Center on Juvenile and Criminal Justice (CJCJ), I received news about this notable new research report titled "Realignment and Crime in 2014: California’s Violent Crime in Decline." Here is how the CJCJ report was summarized in the email I received:
A new report from the Center on Juvenile and Criminal Justice examines the impact of Public Safety Realignment on county crime given newly produced 2014 data. CJCJ finds no causal relationship between Realignment and changes in rates of reported Part I offenses.
• Since Realignment was implemented in 2011, statewide violent crime and property crime have generally decreased. This decline seems to be a continuation of the downward crime trend of the past two decades that has not demonstrably been affected by Realignment.
• Almost all counties experienced a decrease in their rates of state prison commitments for non-violent offenses in 2013 versus 2010. However, these declines showed no correlation with changes in crime rates in individual counties in 2014 versus 2010. For example, Orange County’s rate of non-violent prison admissions decreased by 53 percent along with substantial reductions in crime, while adjacent Riverside County saw a 30 percent decrease in non-violent prison admission rates along with less favorable crime trends.
• Trends in motor vehicle theft, which some researchers have connected to Realignment, were highly erratic among individual counties (for example, down 35 percent in Fresno County; up 102 percent in Shasta County). No correlations between Realignment and motor vehicle theft were apparent.
This report builds on CJCJ's previous county-level analyses finding that no definitive conclusions can be drawn about the impact, if any, of Realignment on crime at this time. Instead, this report highlights nine “model counties” that have shown uniquely large decreases in reliance on state prisons alongside uniquely large reductions in property, violent, and total crime. Policymakers should study the measures taken in these nine counties to better implement effective and safe statewide decarceration strategies.
August 26, 2015 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (2)
Tuesday, August 25, 2015
"Federalism in Action: How Conservative States Got Smart on Crime"
Conservative states have led the way on justice reform over the last decade. By changing the culture of corrections through sentencing reforms that limit mandatory minimum prison terms to the most serious offenders and rely on treatment as an alternative to incarceration, rehabilitative programs for those who do serve time, and continued assistance when offenders reenter society, lawmakers have reduced recidivism, made communities safer, and saved taxpayers money.
The results from conservative states — these laboratories of democracy — are key as members of Congress look for ways to deal with the federal corrections system, which has seen explosive population and cost growth of its own since 1980. This is federalism in action. Through sentencing reforms and a focus on treatment as an alternative to incarceration, the federal government can lessen the cost-burden on taxpayers by using the lessons from the states to get smart on crime.
Conservatives have embraced the justice reform movement, and they should continue to do so. While passed with the best of intentions, the policies of the past have proven unsustainable, both in terms of the fiscal cost and the negative impact on poor and minority communities. The model that conservative states have provided fundamentally changes the nature of the approach. Punishments are, of course, still meted out by courts, but the sentences given offer a means for offenders to alter the direction of their lives.
One such example is a woman named Sarah Gilleland, whose story was told by Gov. Nathan Deal in a joint session of the Georgia General Assembly in January 2012. “Sarah was a drug addict. The drug use that began as recreation resulted in a destructive cocaine and methamphetamine addiction. It took control of her life. At one point, she had no means of transportation, she lost custody of her little girl, she wound up homeless,” Deal explained. “But I mention Sarah tonight because she exemplifies many of the goals we hold for our corrections system.”
“Under the supervision of a drug court, piece-by-piece, she began rebuilding her life. With help, she beat addiction, she won back her daughter, she is now a sponsor helping other women who face the same trials, and because she provides a powerful example of hope and redemption, I have asked her to join us in this chamber tonight,” he said, pointing to Sarah in the gallery of the chamber.
“Sarah was given a shot a better life and she took it. Her story is not the exception, it is playing out all across Georgia as people reclaim their lives through the work of accountability courts.”
“That is why we must focus on transforming our corrections system into a last resort of opportunity—a place where low-level offenders are reclaimed and restored to society as functioning members of the community—working to support their own families and paying taxes,” he added.
Compelling stories such as this are not just told in Georgia, they are also told in other states that have adopted conservative justice reforms that focus on rehabilitation, rather than incarceration. And as more states and the federal government adopt the effort, more prison space will be reserved for the worst offenders in society, while those who have demonstrated a willingness to change their lives become productive citizens.
August 25, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)
Tuesday, August 11, 2015
Urban Institute creates intriguing on-line "Prison Population Forecaster"
I just learned about this notable new on-line resource from the Urban Institute, which it calls "The Prison Population Forecaster." Here is how the tool is described at the site:
Roughly 2.2 million people are locked up in prison or jail; 7 million are under correctional control, which includes parole and probation; and more than $80 billion is spent on corrections every year.
Research has shown that policy changes over the past four decades have put more people in prison and kept them there longer, leading to exponential growth in the prison population even while crime has dropped to historic lows.
But despite widespread agreement that mass incarceration is a serious problem, the national conversation is light on details about what it will take to achieve meaningful and sustainable reductions. What do states actually need to do roll back their prison populations by 10 percent? 20 percent? 50 percent?
To advance the policy conversation, decisionmakers and the public need to know the impact of potential policy changes. Our Prison Population Forecaster can estimate the effect, by state, of policies that aim to reduce prison admissions and length of stay for the most common types of offenses.
The tool currently uses data from 15 states, representing nearly 40 percent of the national prison population, to forecast population trends and project the impact of changes on rates of admission or lengths of stay in prison.
Using the tool, we can see that in some states, limiting prison admissions to only new crimes and diverting parole and probation revocations will substantially reduce the number of people behind bars. Other states can stem prison growth by tackling how they address drug and property offenses. Still others may discover that modest reductions in time served for violent offenses are necessary.
This forecasting tool paves the way for a more productive conversation about the need for tailored reforms that address the unique drivers of mass incarceration in each jurisdiction.
Tuesday, August 04, 2015
"Should prison sentences be based on crimes that haven’t been committed yet?"
The question in the title of this post is subheadline of this new Marshall Project feature story about modern risk assessment tool being used at sentencing. The lengthy piece, carrying the main headline "The New Science of Sentencing," merits a read in full, and here are excerpts:
Pennsylvania is on the verge of becoming one of the first states in the country to base criminal sentences not only on what crimes people have been convicted of, but also on whether they are deemed likely to commit additional crimes. As early as next year, judges there could receive statistically derived tools known as risk assessments to help them decide how much prison time — if any — to assign.
Risk assessments have existed in various forms for a century, but over the past two decades, they have spread through the American justice system, driven by advances in social science. The tools try to predict recidivism — repeat offending or breaking the rules of probation or parole — using statistical probabilities based on factors such as age, employment history and prior criminal record. They are now used at some stage of the criminal justice process in nearly every state. Many court systems use the tools to guide decisions about which prisoners to release on parole, for example, and risk assessments are becoming increasingly popular as a way to help set bail for inmates awaiting trial.
But Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself. A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely. Those deemed high risk could spend more time behind bars....
[T]he approach has bipartisan appeal: Among some conservatives, risk assessment appeals to the desire to spend tax dollars on locking up only those criminals who are truly dangerous to society. And some liberals hope a data-driven justice system will be less punitive overall and correct for the personal, often subconscious biases of police, judges and probation officers. In theory, using risk assessment tools could lead to both less incarceration and less crime.
There are more than 60 risk assessment tools in use across the U.S., and they vary widely. But in their simplest form, they are questionnaires — typically filled out by a jail staff member, probation officer or psychologist — that assign points to offenders based on anything from demographic factors to family background to criminal history. The resulting scores are based on statistical probabilities derived from previous offenders’ behavior. A low score designates an offender as “low risk” and could result in lower bail, less prison time or less restrictive probation or parole terms; a high score can lead to tougher sentences or tighter monitoring.
The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose?...
The core questions around risk assessment aren’t about data. They are about what the goals of criminal justice reforms should be. Some supporters see reducing incarceration as the primary goal; others want to focus on reducing recidivism; still others want to eliminate racial disparities. Risk assessments have drawn widespread support in part because, as long as they remain in the realm of the theoretical, they can accomplish all those goals. But once they enter the real world, there are usually trade-offs.
August 4, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)
Saturday, August 01, 2015
Notable recent state criminal justice reforms highlighted by Pew
The Pew Charitable Trusts has done a lot of important criminal justice reform work at the state level in recent years. These notable recent Pew discussions of state reforms provide an effective review of encouraging reform developments from a state-level perspective:
Wednesday, July 29, 2015
Based on Alleyne, Michigan Supreme Court declares its state guidelines unconstitutional and now advisory
As reported in this local press article, "the Michigan Supreme Court ruled Wednesday that the state’s sentencing guidelines that mandate prison terms are unconstitutional, and that judges should use them only in an advisory capacity." Here are excerpts from the state of the majority opinion in Michigan v. Lockridge, No. 149073 (Mich. July 29, 2015) (available here):
This case presents the question whether the Michigan sentencing guidelines violate a defendant’s Sixth Amendment fundamental right to a jury trial. We conclude that the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficient. That deficiency is the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the “mandatory minimum” sentence under Alleyne.
To remedy the constitutional violation, we sever MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory. We also strike down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure.
Consistently with the remedy imposed by the United States Supreme Court in United States v Booker, 543 US 220, 233; 125 S Ct 738; 160 L Ed 2d 621 (2005), we hold that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness. Booker, 543 US at 264. To preserve as much as possible the legislative intent in enacting the guidelines, however, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. Id.
Two of the seven Michigan Supreme Court Justices dissented from the majority opinion, and a lengthy dissent authored by Justice Markman ends this way:
I conclude that under the Sixth Amendment a criminal defendant is not entitled to a jury determination of facts necessary to establish his or her minimum parole eligibility date. Under Michigan’s sentencing system, the jury has the authority to render a defendant subject to the statutory maximum punishment, and the judge has no influence over this authority or any authority to usurp it. The judge’s exercise of judgment in establishing a parole eligibility date does not infringe the authority of the jury and does not violate the Sixth Amendment of the United States Constitution. Furthermore, Michigan’s indeterminate sentencing guidelines do not produce “mandatory minimum” criminal sentences, and because Alleyne only applies to facts that increase “mandatory minimum” sentences, Alleyne is inapplicable to our state’s guidelines. Therefore, I conclude that Michigan’s sentencing system does not offend the Sixth Amendment and would therefore affirm the judgment of the Court of Appeals.
Thursday, July 16, 2015
Highlighting significant disparities in DUI homicide sentences in Florida
The Miami Herald has this interesting new article highlighting big differences in sentences handed out in Florida when a drunk driver kills. The piece is headlined "A Florida DUI death conviction means prison — but for how long varies widely," and here are excerpts:
At 20, Kayla Mendoza tweeted “2 drunk 2 care” before killing two young women in a drunk-driving crash. She tearfully admitted guilt, but, faced with angry relatives of the dead, a Broward judge slammed her with a 24-year prison term.
Days later, a longtime alcoholic named Antonio Lawrence, 57, faced a Miami-Dade judge for plowing into a Liberty City restaurant while driving drunk, killing two church elders. Relatives offered earnest forgiveness. Lawrence got 10 years.
Downstairs on the very same day, in a courtroom with zero television news cameras, Edna Jean-Pierre, 27, took responsibility for killing one person in a DUI crash, then killing another in a hit-and-run crash — while out on bail in the first case. A Miami-Dade judge, Dennis Murphy, sentenced her to four years in prison....
There is a four-year mandatory minimum for a DUI manslaughter conviction in Florida, but as these recent cases show, prison terms vary widely from cases to case and, a Miami Herald data analysis shows, from county to county.
In over 400 fatality cases resolved in Florida since 2012, the statewide average sentence for DUI manslaughter is just under 10 years behind bars, according to a Herald analysis of prison records. Miami-Dade by far had the most cases in that time span, 66, and among the lightest average sentences with convicts serving an average of just over 6 years in prison. In Broward’s 27 cases, defendants in that time span are serving just under 10 years. “Broward has both a reputation and a reality of being harsher than Miami-Dade,” said Miami defense attorney David Weinstein....
Legal experts say the the reasons for the disparity in sentences are complex. Outcomes are swayed by a host of factors: the strength of evidence, the skill of defense attorneys, circumstances of a crash, a defendant’s criminal history, media glare and the desires of a victim’s loved ones. “Victims drive to a good degree what the sentence outcome will be,” said Miami attorney Rick Freedman. “Victims who are not active, not engaged with the state attorney’s office, are going to see a lower number in the sentencing.”...
The four-year minimum mandatory term is a recent addition to the law, added in 2007 over concerns about judges being too soft on drunk drivers who kill. Known as the “Adam Arnold Act,” the law was named after a Key West teen who died in a crash in 1996, a case in which the driver got only three years of probation.
Drivers convicted in fatal hit-and-run crashes — whether alcohol is detected or not — now also face a minimum of four years in prison. Lawmakers in 2014 passed the law, named after Miami cyclist Aaron Cohen, whose death spurred outrage after a Key Biscayne man got only two years behind bars for killing Cohen in the hit-and-run wreck.
Drunk drivers who kill rarely escape at least some prison time, and prosecutors can waive the minimum four years mandatory — like in a highly criticized 2009 case in Miami Beach involving a pro football player. Donte’ Stallworth, who played for five NFL teams, got 30 days in jail and a lengthy probation for killing a pedestrian crossing the MacArthur Causeway. For prosecutors, there was no guarantee of victory at trial — the victim, Mario Reyes, was not in a crosswalk that dark morning. The decision to support the lighter sentence hinged on Reyes’ relatives, who pushed for the deal and also received an undisclosed settlement from Stallworth.
Forgiveness from families can make a difference. In Lawrence’s case, he met with families of the two church elders killed in the crash, became heavily involved helping recovering alcoholics and even surrendered to jail early before pleading guilty. Miami-Dade Circuit Judge Diane Ward gave him 10 years, by no means a slap on the wrist, but much less than the 34 years he faced had he been convicted at trial.
“You’re dealing with people who are not criminals, not people who went to harm others,” said Assistant State Attorney David I. Gilbert, who oversees traffic homicide cases. “They are average citizens who have made a very serious mistake. Different judges deal with different cases in different ways.” The emotional reaction of relatives also can clash, with some urging leniency and others calling for heavy punishment, Gilbert said.
Tuesday, July 07, 2015
"Juvenile Sentencing in Illinois: Addressing The Supreme Court Trend Away from Harsh Punishments for Juvenile Offenders"
The title of this post is the title of this notable piece by Maureen Dowling now available via SSRN. Here is the abstract:
The United States Supreme Court has steadily been changing the way it approaches juvenile sentencing since 2005. This ideological shift has occurred as a response to the increase in biological and sociological studies, which point toward fundamental differences between juveniles and adults. This Note addresses how the new mandates by the Supreme Court have been implemented around the country, with a focus on statutory changes Illinois should make moving forward. Specifically, this Note argues that there are several adjustments Illinois will have to make in regards to the way it sentences juvenile homicide offenders, in order to be considered Constitutional based on the analysis set forth by the Supreme Court in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama.
First, lengthy, consecutive term-of-years sentences should be abolished because it does not give juvenile offenders the “meaningful opportunity for release” required by Graham. This Note suggests that courts need to look at the idea of a “meaningful opportunity for release” differently when sentencing juveniles as opposed to adult offenders, because studies have shown that adolescents who are imprisoned have a much lower life expectancy than average. Second, Illinois should amend its sentencing statutes to require judges to consider several factors, while on record at a sentencing hearing, before sentencing a juvenile homicide offender to life in prison. These factors, laid out within this Note, will put Illinois at the forefront of ethical juvenile sentencing, while also ensuring that it does not violate the authority of Miller. Admittedly, these theories have been criticized for being too ‘soft’ on punishment for juveniles who are convicted of felony murder. However, the suggestions in this Note are meant to allow for the protection of the adolescent’s Eighth Amendment right to be free of cruel and unusual punishment, while also considering the severity and nature of the offense.
Monday, June 22, 2015
Robina Institute now has great new "Sentencing Guidelines Resource Center"
Via e-mail, I just learned about a great new resource, The Sentencing Guidelines Resource Center, that has been created on-line by the Robina Institute of Criminal Law and Criminal Justice. Here is the text of the e-mail description of this resource center (which I already have added to my Resources sidebar):
The Robina Institute is pleased to present The Sentencing Guidelines Resource Center. The Sentencing Guidelines Resource Center is a new website that serves as a central source of information related to American sentencing guidelines systems. The Sentencing Guidelines Resource Center includes:
By bringing together, in one place, materials that span all of the current sentencing guidelines systems in the U.S., the Robina Institute’s Sentencing Guidelines Resource Center is able to facilitate the exchange and sharing of information, expertise, and experience; educate on issues related to sentencing policy, guidelines, and commissions; promote multi- jurisdictional comparative research and policy analysis; and promote the adoption and retention of best practices in sentencing guidelines systems.
- Detailed profiles of 6 sentencing guidelines jurisdictions: Alabama; Kansas; Minnesota; Oregon; Pennsylvania; and Utah. More jurisdictions will be added over the next several months.
- Current versions of the guidelines in each jurisdiction.
- A searchable repository of materials produced by sentencing guidelines commissions (training manuals, worksheets, reports, meeting summaries).
- Summaries of important interpretive case law.
- A comparison tool so visitors can examine sentencing guidelines systems, side by side.
- In-depth articles covering topics about guidelines and sentencing commissions.
Wednesday, May 27, 2015
"A new report could have a big impact on New York’s prison population — if anyone pays attention"
The title of this post is the astute subheadline of this effective Marshall Project piece by Beth Schwartzapfel talking about a sentencing reform report finally released in New York. Here are excerpts:
A new report by some of New York’s key criminal justice players recommends major changes to the state’s sentencing system. The report, which [is available here], would reduce the length of prison sentences and broaden eligibility for probation and other alternatives to incarceration for about one-third of the felony convictions New York hands down each year. The report would also end the state parole board’s traditional role as the arbiter of when, exactly, prisoners go home.
With more than 50,000 people imprisoned in New York State, even small sentencing changes can make a big difference. “If you increase the time served even by three months across 10,000 people, you’re going to generate a whole lot more imprisonment,” says Martin Horn, executive director of the New York State Sentencing Commission, which produced the report.
Jonathan Lippman, chief judge of the state’s highest court, established the commission in 2010 to craft a simpler, more transparent sentencing scheme. “He did not specifically charge us to reduce the prison population,” Horn says. “If that turns out to be a side benefit, that’s terrific.”
At this point, the commission’s recommendations are just that — recommendations. The suggested changes were compiled into a piece of draft legislation that the committee has submitted to the state legislature. But the bill so far has no sponsor, and the prospect of fewer prison beds — and, by extension, fewer prisons — has traditionally faced fierce opposition by the New York state correctional officers union and by legislators representing the upstate communities where most of the state’s prisons are located. As it is, upstate District Attorney Kathleen Hogan, who served on the Commission, says she would not support the legislation. “I would support the idea of migrating to determinate sentences, but I think that the numbers are too low,” she told The Marshall Project. Gov. Andrew Cuomo has not said whether he will support the proposals.
New York’s body of sentencing laws is a patchwork, with the history of the state’s changing politics woven into it and over it. As a result, the new report says, sentencing is “confusing and misleading” for prisoners and victims alike.
Historically, New York State’s sentences were all indeterminate: a judge could hand down a range of years that a prisoner might serve (such as 1-to-3 or 5-to-15). When during that window the person would actually go home was unpredictable: it was up to a parole board.
The changes began in 1995 under Gov. George Pataki. The nation had just kicked off a federally-funded prison-building boom, and a get-tough attitude prevailed. Pataki proposed eliminating parole for those convicted of violent felonies. Under the resulting law, judges handed down determinate sentences — a specific number of years, with very little wiggle room — and they were long.
In the 2000s, the public began calling for a change to the 1973 Rockefeller drug laws, which mandated draconian sentences like 15 years to life for even low-level drug crimes. The resulting reforms in 2004 and 2009 eliminated indeterminate sentences for most drug crimes, too.
So now, sentences for violent felonies and drug crimes are fixed, and sentences for everything else depend on the parole board. The crimes still subject to the parole board’s discretion are a hodgepodge, from filing a false tax return to second-degree stalking. The commission’s report is aimed at these crimes — class C, D, and E felonies — considered “non-violent” under the law but not always so in reality. About 5,500 out of the 14,000 people who enter the New York State prison system each year are convicted of these crimes.
The commission, composed of judges, victims’ representatives, professors, and attorneys, recommended bringing these sentences into line with those for other crimes by eliminating the parole board’s discretion. They suggested a new matrix of sentence lengths that judges can hand down, eliminating mandatory minimums for a wide range of crimes and expanding the number of crimes eligible for alternatives to incarceration like drug treatment and community service. They also recommended much shorter terms of supervision once people are out of prison; for most offenders, researchshows that longer periods on parole do not improve public safety but do increase the odds that someone will go back to prison for a technical violation....
Similar recommendations by the 2007 O’Donnell Commission, established by Gov. Eliot Spitzer, never gained any legislative traction, in part because the recommended sentence ranges in that report were too harsh, Horn says: “The Assembly rejected that. They felt those maximums were too high, were too broad.”
This time around the opposite might be true; with these recommendations shaving months off of thousands of sentences, district attorneys and other tough-on-crime advocates might push back. Lake George District Attorney Kate Hogan submitted a letter — included as an addendum to the report — expressing “grave concerns” about the shortened sentence ranges. She told the Marshall Project that reducing the maximum penalty available for certain crimes “discounts plea bargaining in its entirety. No one pleads the maximum. That’s how you incentivize someone to resolve a case by plea.”
Monday, May 18, 2015
NY Times editorial astutely praises "Justice Reform in the Deep South"
Throughout too much of America's history, the term "Southern Justice" would invoke shudders and fear. (Indeed, as discussed here, Norman Rockwell used this term as the title for his historic painting depicting the deaths of three civil rights workers killed for seeking to register African American voters.) But, as effectively highlighted by this new New York Times editorial, lawmakers in the deep south are lately doing a lot to remake the image of southern justice:
It has been getting easier by the day for politicians to talk about fixing the nation’s broken criminal justice system. But when states in the Deep South, which have long had some of the country’s harshest penal systems, make significant sentencing and prison reforms, you know something has changed.
Almost all of these deep-red states have made changes to their justice systems in the last few years, and in doing so they have run laps around Congress, which continues to dither on the passage of any meaningful reform. Lawmakers in Alabama, for example, voted nearly unanimously early this month to approve a criminal justice bill. Alabama prisons are stuffed to nearly double capacity, endangering the health and lives of the inmates, and the cost of mass imprisonment is crippling the state budget at no discernible benefit to public safety.
The bill would cut the state’s prison population of nearly 25,000 by about 4,500 people over the next five years. Sentences for certain nonviolent crimes would be shortened, and more parole supervisors would be hired to help ensure that people coming out of prison don’t return. Gov. Robert Bentley is expected to sign the measure as soon as Tuesday.
Before Alabama, South Carolina passed its own package of reforms in 2010. In February, it closed its second minimum-security prison in a year. Georgia got on board with significant reforms to its adult and juvenile prison systems in 2012 and 2013, including giving judges more leeway to sentence below mandatory minimums and increasing oversight of prisons. In 2014, Mississippi passed its own systemic fixes, like providing more alternatives to prison for lowlevel drug offenders.
Of course, all these states had abysmal conditions to start with. Mississippi imprisons more of its citizens per capita than China and Russia combined. That’s worse than any state except Louisiana, which has not yet managed reforms as broad as its neighbors. Alabama was facing the threat of federal intervention to alleviate its crushingly overcrowded prisons if it didn’t act. And many of these state reforms are far more modest than they should be....
Nonetheless, these initiatives show important progress. Less than a decade ago, it was difficult to find any governor anywhere, of either party, who would go near this issue. Now, a Republican governor like Nathan Deal of Georgia is pointing with pride to two major reform packages, as well as the state’s “ban the box” law, which prohibits the state from asking potential employees about their criminal history until later in the hiring process.
Still, justice reform is a fragile proposition, and can be easily thwarted by more powerful political forces. As the 2016 presidential election approaches, most of the major candidates agree that criminaljustice reform is a priority, but there remains a good deal of ambivalence on how to move forward. There needn’t be. The reforms in the southern states, though limited, are already paying off. The presidential candidates — not to mention Congress — should be paying close attention.
Saturday, March 14, 2015
Oklahoma House passes safety valve to give judges more sentencing discretion
In the course of this lengthy discussion in the comments at Crime & Consequences, Bill Otis labelled the the federal bill known as the Justice Safety Valve Act as "radically pro-criminal" because it would give federal judges some limited authority to sentence defendants below statutory mandatory minimums. Though I disputed this label, I suspect Bill might be inclined to call most members of the Oklahoma House "radically pro-criminal" based on this recent news, headlined "Oklahoma House passes bills to give judges more discretion in sentencing." Here are the details:
The Oklahoma House on Wednesday approved a key piece of justice reform legislation intended to help reduce the state’s growing population of prison inmates.
Rep. Pam Peterson’s House Bill 1518 would give judges the authority to hand down shorter sentences for some crimes that now require mandatory minimum prison time. The judge would be allowed to do this if the longer sentence would be unjust or if the offender does not present a risk to public safety. There are more than 100 crimes in Oklahoma that carry requirements for incarceration for specified minimum durations.
Called the Justice Safety Valve Act, the Tulsa Republican’s measure was passed 76-16 and was sent to the Senate. It is modeled after similar legislation that has been approved in 17 other states. The bill would not allow judges to consider lesser sentences for violent or sexual offenses....
Rep. Scott Biggs, R-Chickasha, argued against the measure, saying it would minimize the role of district attorneys in the sentencing process and isn’t tough enough on repeat offenders.
“I’ve said I’m for reform, just not when it comes to violent offenders. Here we have repeat offenders,” he said. “This is a bad bill.”
Peterson said it’s time to reform the state’s justice system, noting Oklahoma’s prisons are overflowing due to the highest incarceration rate in the nation for women and one of the highest for men. The state’s prison population has doubled since 1990, but the crime rate has not declined as fast as that of other states, she said. “The definition of insanity is to do the same thing over and over again and expect a different result,” she said.
Gov. Mary Fallin has urged the Legislature to embrace justice reform efforts this session, including finding ways to offer more prison diversion programs that would provide treatment rather than incarceration for nonviolent offenders with drug and mental health problems.
Tuesday, February 24, 2015
Two notable and timely new reform reports from The Sentencing Project
Via an e-mail from The Sentencing Project (reprinted in part below), I received this summary (with links) to two notable new reports from the group:
[Here are] two new reports from The Sentencing Project documenting changes in criminal justice policy in 2014 and successful advocacy campaign strategies in conservative state environments. The reforms highlighted in these reports represent approaches that lawmakers and advocates can consider to address sentencing policy and collateral consequences at the state level.
The State of Sentencing 2014 highlights policy changes in 30 states and the District of Columbia in both the adult and juvenile justice systems, including:
Scaling back sentences for low-level drug offenses
Reducing barriers to reentry, including employment restrictions and bans on public assistance
Eliminating juvenile life without parole
State Criminal Justice Advocacy in a Conservative Environment documents successful advocacy strategies employed in campaigns in Indiana, Missouri, and Texas. In these states, advocates achieved the following reforms:
- Reduced enhanced penalties in drug-free zones in Indiana by shrinking the limit of zones from 1,000 feet to 500 feet, and eliminating all zones except those around schools and parks
- Modified Missouri’s federal lifetime ban on food stamp benefits for persons with felony drug convictions
- Closed two Texas prison facilities: the Dawson State Jail and the Mineral Wells Pre-Parole Transfer Facility
February 24, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Wednesday, February 11, 2015
Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process
The Ohio Supreme Court this morning handed down an interesting constitutional ruling in Ohio v. Bevly, No. 2015-Ohio-475 (Feb. 11, 2015) (available here), striking down a distinctive mandatory sentencing provision for certain sex offenders. Here is how the majority opinion concludes:
We hold that because there is no rational basis for the provision in R.C. 2907.05(C)(2)(a) that requires a mandatory prison term for a defendant convicted of gross sexual imposition when the state has produced evidence corroborating the crime, the statute violates the due-process protections of the Fifth and Fourteenth Amendments to the United States Constitution. Furthermore, because a finding of the existence of corroborating evidence pursuant to R.C. 2907.05(C)(2)(a) is an element that must be found by a jury, we hold that the application of R.C. 2907.05(C)(2)(a) in this case violated Bevly’s right to trial by jury found in the Sixth and Fourteenth Amendments of the United States Constitution. We reverse the judgment of the court of appeals, and we remand the case to the trial court for imposition of its sentence in accordance with this opinion.
Justice French dissents in an opinion which explains why she thinks the there is rational basis for the sentencing provision struck down by the majority:
When its victims are younger than 13, the crime of gross sexual imposition (“GSI”) carries a mandatory prison term, as opposed to a presumption of prison, so long as “[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation.” R.C. 2907.05(C)(2)(a). I cannot agree with the majority’s conclusion that this corroboration provision simultaneously violates due process, equal protection, and the right to a jury trial. Therefore, I respectfully dissent....
The General Assembly rationally could have concluded that it is unwise or unfair to categorically mandate prison for every person guilty of GSI against a child victim and that more sentencing discretion is appropriate in cases when no evidence corroborated the child victim’s testimony. By reserving the mandatory term (and the associated costs and resources) for convictions with the most evidence of guilt, the General Assembly has made a policy determination that corroboration is relevant to the punishment for child GSI convictions. As the court of appeals recognized in unanimously upholding the statute, “It seems obvious that the General Assembly felt that it was better to start out with a sentence that was not required to be mandatory and to make the sentence mandatory only if there is corroborative proof beyond the alleged victim's testimony that the crime was actually committed.” 2013-Ohio-1352, ¶ 9.
Off the top of my head, I cannot think of another sentencing provision in Ohio or anywhere else that a court has found unconstitutional based on rational basis review. Notably, the Bevly opinion indicates in a footnote that it addresses only the defendants federal constitutional claims because "the state constitutional challenges were not raised at the trial or appellate levels." That means the state of Ohio might reasonably try to a press an appeal to the US Supreme Court. It will be interesting to see if it will.
Saturday, February 07, 2015
Split Washington Supreme Court decides accomplices must receive distinct sentencing treatment
As reported in this local article, headlined "Washington Supreme Court alters sentencing structure for accomplices," the top court in the Evergreen State earlier this week issued an interest opinion concerning how the state's sentencing structure should be applied to those found guilty as accomplices. Here is a summary from the press report:
In a 5-4 opinion released Thursday, the state’s high court ruled that convicted identity thief Larry Hayes should have received a standard-range sentence after being convicted of a host of felonies in 2009. Instead, he got a 15-year term under a provision that allows prosecutors to seek extra punishment for egregious offenders. The majority ordered the case back to Pierce County for re-sentencing.
At issue is how people charged as accomplices should be treated under the law at sentencing. For years, Washington law has prescribed that accomplices and principle actors in a crime be exposed to the same culpability, a concept Pierce County Prosecutor Mark Lindquist on Thursday called “in for a penny, in for a pound.”
In an opinion written by Justice Charles Johnson and signed by Justices Charles Wiggins, Susan Owens, Mary Fairhurst and Sheryl Gordon McCloud, the majority ruled that should not always be the case, especially where sentencing is concerned.
Until Thursday, when a prosecutor sought an exceptional sentence for a criminal defendant, he or she had to prove to a jury that certain aggravating factors made the crime worse than usual. The requirement applied to principle actors and accomplices alike. Thursday’s majority opinion said the blanket application to accomplices is improper.
Accomplices should be judged for their specific role in the crime and not just on the crime itself, the majority ruled. An accomplice, to qualify for an exceptional sentence, must have knowledge that the crime he or she is involved in is worse than usual, Johnson wrote, and prosecutors now must prove that knowledge to a jury. “...this finding of knowledge ensures that the defendant’s own conduct formed the basis of the sentence,” Johnson wrote....
Justice Debra Stephens authored the dissent, which was signed by Chief Justice Barbara Madsen and Justices Mary Yu and Steven Gonzalez. Stephens argued that the majority was turning decades of case law on its head for no good reason. “It makes no sense that a principal should be punished regardless of whether he or she knew the crime was a major economic offense but an accomplice, who committed the same crime, should not be,” she wrote.
She went on to say the ruling would have far-reaching impacts. “It is no exaggeration to say that the way co-participants have long been tried in this state will need to change in order to accommodate the knowledge finding the majority superimposes on the enhancement statute,” Stephens wrote.
Lindquist agreed with Stephens’ assessment and said he would consider asking state lawmakers to pass legislation clarifying what they want to happen to accomplices. “They could say, ‘We meant what we wrote: Principals and accomplices are equally culpable,’” Lindquist said.
Appellate attorney Nancy Collins, who worked on Hayes’ appeal, said she thinks the majority got it right and that the application of the ruling would not be onerous. “I don’t see it as a change in the law at all,” Collins said. “The majority said the jury needs to consider the defendant’s individual conduct.”
The full opinion in Washington v. Hayes, No. 89742-5 (Wash. Feb. 5, 2015), is available at this link.
Thursday, January 29, 2015
Intriguing review of early impact of California's Prop 47 reducing offense seriousness
Though marijuana reform is the national criminal justice reform story most significantly driven by voter initiatives, voters in California the last two major election cycles have been enacting significant sentencing reforms through the initiative process. In 2012, voters approved Proposition 36 to revise the state's tough Three Strikes Law; last year, voters passed Proposition 47 to reduced various crimes from felonies to misdemeanors. These developments provide yet another reason to view California as the most interesting and dynamic of all states in the history of modern sentencing reform.
The Los Angeles Times now has this lengthy new article detailing some early impacts of Prop 47. The piece is headlined "Prop. 47 brings a shift to longer time spent behind bars," and here are excerpts:
For decades, Los Angeles County jail inmates divided their sentences by five, 10 or 20 to calculate the time they would actually spend behind bars. Because of overcrowding, they left after completing as little as 5% of their sentences.
Now, as Proposition 47 begins to reshape the California criminal justice system, they are serving much more of their time. The new law, passed by voters Nov. 4, reduced drug possession and other minor crimes from felonies to misdemeanors. The county jail population plummeted and sheriff's officials began increasing the time served for the remaining inmates to 90% or more.
Most of the affected inmates will end up serving only half of that, due to automatic credits prescribed by state law, but the change is still profound. Because of Proposition 47, others who would have landed in jail are not being arrested as street cops take a pass because of the low stakes. At the Los Angeles County Sheriff's Department, bookings are down by 23% and narcotics-related arrests are down 30%.
Other California counties are also seeing significant decreases in their jail populations as a result of the new law. In Los Angeles County, the altered landscape has led to renewed questions about how big the new Men's Central Jail should be, as well as concerns about whether those now being issued misdemeanor citations are missing out on drug treatment that could turn their lives around.
Under the new law, the cost savings from smaller county jail populations, which the state legislative analyst estimated could be hundreds of millions of dollars, will be channeled into substance abuse and mental health programs, victim services and reducing school dropouts and truancy.
But some, including law enforcement officials, worry that people who need help will not enter the system. Already, fewer are opting for mandatory drug treatment programs because they face little to no jail time as an alternative. "What concerns me is that some of those offenders were getting treatment," said Gardena Police Chief Ed Medrano, the Los Angeles County representative for the California Police Chiefs Assn., which lobbied against Proposition 47. "If they're getting arrested less, that doesn't mean their drug addiction problems have gone away."
Early release has been a near-constant feature in Los Angeles since 1988, when a federal judge allowed sentenced inmates to be let out early as a temporary solution to overcrowding. Many inmates were freed after serving only 10% of their time. A 2006 Times investigation found that nearly 16,000 were rearrested for new offenses while they could have been finishing out their sentences. Sixteen were charged with murder....
Over the years, the county has tried solutions including electronic monitoring, work programs and firefighting camps. But nothing had a dramatic impact until Proposition 47 passed with nearly 60% of the vote.
More than 400 county jail inmates have been released in the last three months because their crimes — which include theft and writing bad checks as well as drug possession — have been downgraded to misdemeanors under Proposition 47. That, combined with the reduced number of arrests, helped bring the jail population down to a low of about 15,000 from 18,600. Since early release has been scaled back, the inmate count has rebounded to about 17,400.
Inmates with county sentences for burglary, theft, DUI and the like are now serving 90% of their terms, whereas men had been serving 20% and women serving 10%. Those convicted of more serious offenses such as child molestation or assault with a deadly weapon are now serving 100% of their terms, compared with 40% previously. About 3,000 inmates are serving the longer county sentences; most of those serving state sentences are not affected.
The smaller jail population has allowed sheriff's officials to complete overdue repairs and has freed up more space for educational programs, Cmdr. Jody Sharp said. Dist. Atty. Jackie Lacey praised the news that serious offenders in Los Angeles County are now serving most of their terms, calling it "a positive and welcome effect" that could help her office strike better plea deals. "Every defendant asks the following question: 'When can I get out?' " Lacey said. "If the 'when can I get out' is far in the future, it could impact if they plead guilty early or if they demand a trial."
Lacey emphasized that keeping a close eye on crime and recidivism rates will be key to understanding the full impact of the new law.
In Orange County, the inmate count has dropped nearly 22% since Proposition 47 took effect after the election, allowing sheriff's officials to close a section of the James A. Musick jail. Previously, there were no extra beds for new arrivals on the long weekends when court was not in session. "Now, we've got the luxury of not waiting on pins and needles — now we have some space," said Lt. Jeff Hallock, a department spokesman.
This report provides early evidence that Prop 47 has succeeded in redirecting California's state law enforcement and correction resources principally to the most serious offenders presenting the greatest risk to public safety. Of course, long-term developments and analyses will been needed to conclusively assess whether the Prop 47 reform is an unqualified success. But this early report sure is encouraging (and perhaps explains why the folks at Crime & Consequences, who had substantive posts assailing Prop 47 before the November vote, have not substantively discussed the law since its passage).
Some prior related posts on California's Prop 47:
- Initiative 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?
- 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
- California sentencing reform initiative Prop 47 wins big getting almost 60% support
- Impact of California's Prop 47 already being felt ... by defense attorneys and police
Tuesday, January 20, 2015
"End of an Era? The Impact of Drug Law Reform in New York City"
The title of this post is the title of this notable new report released today by the The Vera Institute of Justice. Here is a description of the report I received today via an e-mail from The Vera Institute of Justice:
Enacted in 1973, New York State’s Rockefeller Drug Laws mandated lengthy prison sentences for people convicted of a range of felony drug offenses. This heralded a wave of mandatory sentencing statutes that swept the nation, contributing to dramatic increases in state prison populations and fueling the racial disparities that have come to characterize the U.S. criminal justice system. In 2009, however, the Rockefeller Drug Laws were essentially dismantled by the latest in a series of reforms that eliminated mandatory minimum sentences for the possession, use, or small-scale sale of illegal drugs and increased eligibility for diversion treatment.
In End of an Era? The Impact of Drug Law Reform in New York City, researchers from the Vera Institute of Justice, John Jay College of Criminal Justice, and the School of Criminal Justice at Rutgers University examine the impact of reform soon after implementation and suggest mid-course corrections. The research team compared cases pre and post-reform to assess changes in the use of jail and prison, rates of diversion to treatment, recidivism, and cost. Researchers also interviewed 35 criminal justice stakeholders to assess their perceptions of the impact of drug law reform. The National Institute of Justice-funded study, which focused on New York City where the majority of the state’s prison population is from, found that drug law reform, as it functioned in the city soon after the laws were passed, led to a 35 percent rise in the rate of diversion among eligible defendants. Although the use of diversion varied significantly among the city’s five boroughs, it was associated with reduced recidivism rates, and cut racial disparities in half.
Thursday, November 20, 2014
Significant sentencing reform afoot in Michigan
As reported in this Detroit News article, headlined "Michigan prison sentence reforms gain momentum," the Great Lakes state is moving toward some significant sentencing changes. Here is how the article starts:
State lawmakers are poised to act on a legislative package that would reduce some prison sentences, making it potentially the biggest issue — besides a road tax increase — they may consider when they return from a two-week recess.
The package of bills calls for a state commission to adjust tough sentencing policies adopted in 1998 that crowded prisons and sharply increased corrections spending. The legislation is aimed at reducing crime while reining in the state's $2 billion prison budget through sentencing, parole and probation reforms. It has moved quickly toward a House vote in the lame-duck session.
The vision is for the number of prisoners to decline over time, and for all released prisoners to receive supervision. The number of inmates incarcerated by the state has dropped below 44,000 from a high of 51,554 in March 2007, and cost increases have moderated because of policy changes and the contracting out of some prison services to private companies.
But Republican Rep. Joe Haveman of Holland, point man for the proposed reforms, said he sees potential for even more downsizing of the sprawling prison system. Corrections Department Director Dan Heyns "has done a fantastic job of getting at the low-hanging fruit through policies and cost savings ... but you can't save your way to a low-cost prison system," Haveman. "The only way you can get more long-term savings is to close a prison."
Attorney General Bill Schuette said he has "grave concerns" with some key proposals in the bills that he feels could "open the door to parole for some violent offenders at the earliest possible date."
The legislation is getting a boost from House Speaker Jase Bolger, a Marshall Republican who over the weekend shared on his Facebook page a column by GOP former U.S. House Speaker Newt Gingrich that lauded Michigan's sentencing reform package and suggested it was "getting it right on crime."
Tuesday, November 04, 2014
"Profiles in Probation Revocation: Examining the Legal Framework in 21 States"
The title of this post is the title of this notable new research report just released by the Robina Institute of Criminal Law and Criminal Justice. Via the Robina Institute at this webpage, here are the basics of the report's coverage and contents:
The Robina Institute is pleased to present the publication of Profiles in Probation Revocation: Examining the Legal Framework in 21 States, a close look at probation revocation practices in twenty-one states and the Model Penal Code. The first publication of the Probation Revocation Project, Profiles on Probation Revocation, allows for a comparison across selected jurisdictions. This report reveals a wide variation in probation practices in the United States and we hope it will further the dialogue on community supervision and probation practices.
This publication is the first in a series that will be produced by the Probation Revocation Project. The focus of this publication is the legal framework of probation: that is, how have the legislature and courts defined the purpose and functions of probation in each state? The focus of one or more subsequent publications will be how probation actually works within that legal framework.
In addition, I received from one of the authors of the report this more extended summary of its coverage:
The report compiles — in a convenient format — the results of a yearlong research project conducted by the Robina Institute on the laws relating to probation revocation in 21 American states. By leafing through the volume’s four-page “legal profiles,” readers can easily see how much variation exists in statewide laws of probation and probation revocation, while zeroing in on issues of greatest interest. Whether a reader’s jurisdiction is included in the report’s 21 states or not, the legal profiles contain a wealth of information that will allow for comparison with one’s own system.
The focus of the report is probation revocations and what leads up to them. Each legal profile describes a particular state’s approach to issues collected under twelve headings concerning probation. These are: Definition and Purpose, Forms of Probation, Length of Term, Early Termination, Supervision, Conditions, Modification of Conditions, Extension of Probation Term, Revocation Procedures, Legal Standard for Revocation, Revocation and Lesser Sanctions, and Appeal. The selected topics embrace aspects of the use of probation that may contribute to (or, conversely, reduce) revocation rates or the numbers of probationers who enter revocation proceedings.
Each profile begins with the nature of the probation sanction itself, including lengths of term and the burdens placed on probationers through sentence conditions. These are the early precursors of revocation rates. The profiles also focus on what happens during the probation term, and how the law allows the terms of conditions of probation to lighten or grow more restrictive in individual cases. For example, legal arrangements during the probation period that encourage probationers to succeed — or at least do not impede their success — will have an impact on revocation numbers. Finally, the profiles give close attention to each state’s probation revocation process itself, including the legal grounds for revocation, the identity of the ultimate decisionmaker (judicial versus administrative), rules for hearings, procedural rights that accrue to the probationer, and the range of sanctions that may be imposed after a sentence violation is proven or admitted.
The report relies on official legal source materials such as statutes, court rules, caselaw, administrative rules and policies, and publicly-available documents. The report seeks to describe, more or less, the “law-on-the-books,” while realizing that the official sources do not necessarily reflect actual practices of probation supervision and revocation on the ground. Even so, the report provides new and valuable comparative information about statewide legal superstructures for probationary sentences. While not a full portrait of what happens in individual states, the report illuminates crucial legal boundaries within which local and case-specific discretion must be exercised.
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.