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.

November 15, 2015 in Detailed sentencing data, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (6)

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.

November 5, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Monday, October 26, 2015

Interesting takes on California developments since passage of Prop 47

Download (1)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:

California's Prop. 47 revolution: Voters were sold a bill of goods

California's Prop. 47 revolution: Give reform a chance to work

October 26, 2015 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

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.

September 24, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Technocorrections | Permalink | Comments (3)

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.

September 10, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

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"

Freedomworks-logo_0The title of this post is the title of this notable new paper authored by Jason Pye from the conservative group FreedomWorks.  Here is how the relatively short white-paper concludes:

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 (1)

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.

August 11, 2015 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

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:

August 1, 2015 in Collateral consequences, Data on sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

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.

July 29, 2015 in Blakely in the States, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (2)

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.

July 16, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (7)

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.

July 7, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

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:

  • 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.
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.

June 22, 2015 in Federal Sentencing Guidelines, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

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.”

May 27, 2015 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

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.

May 18, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

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.

March 14, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

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.

February 11, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

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.

February 7, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Thursday, January 29, 2015

Intriguing review of early impact of California's Prop 47 reducing offense seriousness

La-me-g-early-release-20150127Though 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:

January 29, 2015 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

January 20, 2015 in Criminal justice in the Obama Administration, Drug Offense Sentencing, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

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."

November 20, 2014 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Tuesday, November 04, 2014

"Profiles in Probation Revocation: Examining the Legal Framework in 21 States"

ProfilesProbationCover1The 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.

November 4, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

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

ImagesAs 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.

October 19, 2014 in Advisory Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

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 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 “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:

September 24, 2014 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

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.

September 3, 2014 in Offense Characteristics, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

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

Wednesday, July 16, 2014

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

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

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

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

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

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

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

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

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

Tuesday, July 15, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, June 29, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, June 14, 2014

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

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

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

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

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

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

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

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

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

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

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.”

June 7, 2014 in Criminal Sentences Alternatives, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 12, 2014

Documenting the enduring challenge of reducing prison populations in Ohio

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

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

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

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

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

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

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

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

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

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

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

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

Monday, April 07, 2014

"Billion Dollar Divide: Virginia's Sentencing, Corrections and Criminal Justice Challenge"

JPI reportThe 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....

April 7, 2014 in Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

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.

April 1, 2014 in Blakely Commentary and News, Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Wednesday, March 12, 2014

Alabama judges complain about new guidelines that limit their discretion to impose prison terms

Federal practitioners are used to hearing complains from sentencing judges about mandatory sentencing laws (and formerly mandatory guidelines) that require judges to impose lengthy prison sentences in certain cases.  But now in Alabama, as highlighted by this interesting new local article, state sententencing judges are complaining about new sentencing law that prevents them from imposing prison terms in certain cases.  The article is headlined "Judges criticize sentencing guidelines," and here are excerpts:

All three members of Walker County’s Circuit Court were critical of Alabama’s new sentencing guidelines for nonviolent offenders while visiting with the Rotary Club of Jasper Tuesday.

Presiding Circuit Judge Jerry Selman described the current political climate as “frustrating” for judges because of the guidelines, which took effect in October 2013. “We can no longer put people in jail who steal from us or who sell drugs to our children,” Selman said.

Proponents of the guidelines say that they are needed to address overcrowding in the state’s prisons, which are hovering at 195 percent of capacity. In 2009, federal judges ordered officials in California to reduce the prison population after it had reached 200 percent of capacity.

Selman told Rotarians that he prefers stiff sentences because he believes that the fear of incarceration is a deterrent to crime. As an example of the correlation, Selman shared the impact of a 60 year prison sentence he handed down to a female drug dealer.

He said he felt the sentence was justified because the woman had ruined the lives of multiple children in the black community by offering them marijuana and gradually moving them on to other narcotics. “I had several police officers come to me and say that for at least the first six weeks after that sentence, you couldn’t find a single drug in the black section of Jasper,” Selman said.

Selman added that he expected to see an increase in crime once individuals charged with drug and theft crimes realize the implications of the sentencing guidelines. Word recently reached him that a self-described career thief did not intend to hire a lawyer the next time he made an appearance before Selman because he could no longer receive jail time.

Selman said his opinion is that legislators are “misguided” and are using the guidelines to avoid building more prisons. “They are looking for ways to save money that are not apparent to everyday people. If they quit patching the holes in the highway, it becomes obvious,” Selman said.

Circuit Judge Hoyt Elliott agreed that building prisons would be a more logical solution to the state’s overcrowding problem than limiting the sentencing options available to judges. “The Legislature controls the purse strings. It wouldn’t be an easy thing for them to do, but it could be done. Tax structures could be changed. They are just not going to do it because it’s not politically popular. So they put the burden on us to relieve the overcrowding, and that is not our job to do,” Elliott said.

Circuit Judge Doug Farris said the guidelines will also undercut the incentive to participate in the county’s Drug Court program, which has had over 200 graduates since 2008 and has a success rate of more than 50 percent. “Whatever the Legislature says, I’m going to do, but I think the best way is to give the discretion back to the judges. Sometimes we need to be lenient, and sometimes we need to be strict. Every case is different,” Farris said.

March 12, 2014 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, March 08, 2014

"The New Normal? Prosecutorial Charging in California after Public Safety Realignment"

The title of this post is the title of this massive new article reflecting massively important research by W. David Ball and Robert Weisberg about the ways in which new sentencing/corrections reform in California may be impacting prosecutorial practices.  Here is the article's massive abstract:

California’s Public Safety Realignment Act (“Realignment” or “AB 109”) shifts the responsibility of supervising, tracking and imprisoning specified non-serious, non-violent, non-sexual (“triple-nons” or “N3 felonies” or “non-non-nons”) offenders previously bound for state prison to county jails and probation.  The implementation of Realignment in California is the largest correctional experiment of its kind.  The advent of Realignment has, of course, affected the decisionmaking of all the official actors in the criminal justice system. But the prosecutor’s role is unique in one clear sense: Prosecutors have, in formal legal terms, virtually unreviewable autonomy in the choice to charge or not charge (so long as any charge matches provable facts with statutory elements).

How does this power operate in the wake of AB 109? Our hypothesis was that many aspects of AB 109 were likely to affect prosecutors’ charging and sentence recommendation choices.  The most salient aspects were the change in site and de facto length of incarceration, as well as the secondary effects of new county responsibilities for post-release supervision of many prison parolees.  In particular, in exercising discretion, prosecutors might be influenced by their views on the differences in the severity of experience of incarceration in jail as opposed to prison, or by their concerns about jail crowding or the extra costs that county jails and other county agencies might have to absorb under AB 109.

We explored this hypothesis through three study components. First, we established a rough charging baseline through an empirical study.  With obtained data from the Attorney General’s office, we examined arrest-to-charging ratios by year and by crime category before and after Realignment.  We found very few and small differences, including insignificant differences across counties, and very few differences across crimes.

Second, we exhaustively analyzed the statutory elements of certain very common crimes that fall within AB 109, especially drug and property crimes, and we consulted in great depth with two distinguished California prosecutors, both involved in AB 109 training. Our aim was to find parts of the penal code that applied to similar fact patterns that, nevertheless, would result in significantly different sentencing outcomes.  These parts of the code isolate various fault lines in AB 109, which both served as a foundation for the third part of our study and served as a significant roadmap to AB 109 itself.

Third, we surveyed District Attorneys themselves, using a factorial approach that isolates various statutory and extralegal factors.  Our questions focused on whether the new sentencing structure might alter prosecutorial decisionmaking in terms of tilting borderline charges towards prison-eligible crimes or recommending especially long jail sentences.  We again found no significant differences, although, for reasons we explain in the paper, these conclusions must be read as tentative.

In sum, most charging or recommendation preferences remain consistent with traditional severity factors and do not manifest major alterations in light of AB 109.  However, there remains a great deal of uncertainty and variation in the responses we received.  This phenomenon manifested itself particularly when prosecutors had to choose from the menu of straight, split, and probation sentences.  Recommended terms for split sentences — those involving a combination of jail terms and community supervision — were all over the map, ranging from short terms of both jail and supervision, to short jail and a long tail, to long jail and a short tail.  At the same time, jail sentences, obviously available before Realignment but now extended to formerly prison-eligible sentences, were also wildly divergent on the same facts, ranging from a year or less to 20 years or more.  Our conjecture is that the new regime of Realignment, introduced alongside the existing sentencing regime, might invite wide variation in sentencing recommendations (with possible attendant unjustified disparities).

March 8, 2014 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 02, 2014

Alabama struggling with enduring challenges as tough-on-crime history creates "box of dynamite"

The New York Times today has this notable and lengthy article about the criminal justice reform challenges facing Alabama headlined "Troubles at Women’s Prison Test Alabama." Here are excerpts:

For a female inmate, there are few places worse than the Julia Tutwiler Prison for Women. Corrections officers have raped, beaten and harassed women inside the aging prison here for at least 18 years, according to an unfolding Justice Department investigation.  More than a third of the employees have had sex with prisoners, which is sometimes the only currency for basics like toilet paper and tampons.

But Tutwiler, whose conditions are so bad that the federal government says they are most likely unconstitutional, is only one in a series of troubled prisons in a state system that has the second-highest number of inmates per capita in the nation.  Now, as Alabama faces federal intervention and as the Legislature is weighing its spending choices for the coming year, it remains an open question whether the recent reports on Tutwiler are enough to prompt reform.

“Yes, we need to rectify the crimes that happened at Tutwiler, but going forward it’s a bigger problem than just Tutwiler,” said State Senator Cam Ward, a Republican from Alabaster who is chairman of the Senate Judiciary Committee.  “We’re dealing with a box of dynamite.”

The solution, Mr. Ward and others say, is not to build more prisons but to change the sentencing guidelines that have filled the prisons well beyond capacity. Just over half the state’s prisoners are locked up for drug and property crimes, a rate for nonviolent offenses that is among the highest in the nation.  “No one wants to be soft on crime, but the way we’re doing this is just stupid,” Mr. Ward said.

Still, in many corners of Alabama, a state where political prominence is often tied to how much a candidate disparages criminals, the appetite for change remains minimal.  The Legislature is in the middle of its budget session, working over a document from Gov. Robert Bentley that includes $389 million for the state’s prisons. That is about $7 million less than last year’s budget.

The Department of Corrections argues that it needs $42 million more than it had last year. Alabama prisons are running at almost double capacity, and staffing is dangerously low, said Kim T. Thomas, the department’s commissioner.  He said he would use about $21 million of his request to give corrections officers a 10 percent raise and hire about 100 officers....

There is no ignoring the prison crisis.  Even Stacy George, a former corrections officer who is challenging Mr. Bentley in the June Republican primary by promising to be “the gun-toting governor,” this past week issued a plan for prison reform.  It calls for changing sentencing rules, rescinding the “three-strikes” law for repeat offenders, releasing the sick and elderly, and sending low-level drug offenders into treatment programs instead....

“It is just a culture of deprivation and abuse, not just at Tutwiler but in institutions across Alabama,” said Charlotte Morrison, a senior lawyer with the Equal Justice Initiative, a legal organization that represents indigent defendants and prisoners.  In 2012, the organization asked the federal government to step in after its own investigation into Tutwiler showed rampant sexual abuse....

“It’s a primitive, very backward prison system,” said Larry F. Wood, a clinical psychologist who was hired at Tutwiler in 2012. He quit after two months, appalled at the conditions and what he said was the administration’s lack of support for mental health services. “I’ve worked in prisons for most of 30 years, and I’ve never seen anything like this,” he said. “We need to back up and look at it with fresh eyes. The people who are running it don’t have the perspective to see what can change.”

March 2, 2014 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Saturday, February 01, 2014

Two notable new Sentencing Project reports on sentencing reform and prison closings

This past week, The Sentencing Project released two notable short reports on state sentencing reforms and prison closings.  Both reports are linked from this webpage, where the reports are noted and summarized in this way: 

The Sentencing Project released two reports that highlight states downsizing prison systems and adopting sentencing policy reforms. Our research documents a three-year trend of prison closings that produced a reduction of 35,000 beds, including six states reducing capacity by 11,000 beds in 2013.

On the Chopping Block 2013 documents state prison closures and attributes the trend to several factors:

  • A declining prison population in many states
  • State fiscal constraints
  • Sentencing and parole reforms in the areas of drug policy, diversion programs, and reductions in parole revocations to prison

The State of Sentencing 2013 documents reforms in 31 states in both the adult and juvenile justice systems, including:

  • Expanding alternatives to incarceration for drug offenses
  • Policies to reduce returns to prison for supervision violators
  • Comprehensive juvenile justice measures that emphasize prevention and diversion

February 1, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, January 11, 2014

A few notable headlines concerning notable state prison realities

My review of sentencing law and policy stories this morning revealed this array of noteworthy reports and commentary pieces concerning a number of state prison systems across the US.  I have reprinted the headlines and subheading, which serve as a kind of summary of the issues covered:

January 11, 2014 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Monday, December 23, 2013

Isn't it crazy (and one reason for much dysfunction) that California does not have some kind of sentencing commission?

Cal prisonI have written a law review article emphasizing that the mere existence of a sentencing commission within a jurisdiction does not magically solve or even necessarily improve the development of sentencing and corrections laws and policies in that jurisdiction.  Indeed, some might reasonably claim that in jurisdictions that have other agencies collecting system-wide data, a sentencing commission can become a costly luxury that may at times do more harm than good.

That all said, and as the question in the title of this post highlights, it strikes me as truly nuts that California has never created some kind of sentencing commission to assemble at least basic state-wide sentencing information.  Indeed, given the huge mess that has long been California's massive sentencing and corrections system, and given the crisis-mode reforms and regulations imposed by judges and governors for decades now, I have to think any kind of sentencing commission in California would be able to improve matters in some way at least by being the go-to location for information about what the heck is even going on in the state on a range of sentencing and corrections issues.

These matters come to mind in reaction to this notable new article in the Sacramento Bee headlined "Sentencing commission, suggested in Sacramento, faces long odds." Here are excerpts:

Key California lawmakers this summer suggested that a commission to review and overhaul criminal sentences not only could bring coherence to a disjointed system but also perhaps ease chronic prison overcrowding in the long term. But the idea now appears stalled, despite the incentive of federal litigation that could force Gov. Jerry Brown to release as many as 10,000 inmates next spring.

Lawmakers chastened by a history of unsuccessful sentencing commission bills hold out little hope that this time could be different. “These issues are hard,” Sen. President Pro Tem Darrell Steinberg, D-Sacramento, said in an interview last week. “They’re hard to bite off politically.”

The notion of a panel to overhaul California’s penal code has percolated for decades but eluded proponents time and again. Supporters argue that a steady accumulation of different regulations, layered on top of one another over time, has led to a labyrinth of sentencing guidelines. “There is a lot of disproportionate punishment in our penal code, and that’s because not uncommonly a horrible crime may be committed in someone’s district and so the response is legislatively to get tougher,” said Sen. Mark Leno, D-San Francisco. “These are emotional issues,” he added, “and to have politics infused in all of our decision-making does not create the most sound public policy.”

State sentencing commissions are typically independent bodies, appointed by officials, that study a state’s galaxy of sentencing laws and condense them into a comprehensive framework. They issue guidelines that would increase or decrease sentences for various categories of crimes. That troubles some law enforcement leaders who see the potential for weakened sentences. And it rattles lawmakers wary about constituents – or future electoral opponents – who could hold them responsible for changes that emanated from an unelected body.

“No legislative body wants to give up power,” said Rep. Karen Bass, D-Los Angeles, a former Assembly speaker who pursued a sentencing commission during her time in the Legislature.

Historically, the state’s law enforcement community has been hostile to allowing appointed entities to dictate consequences for crimes.  District attorneys, sheriffs and police chiefs have opposed past efforts, raising concerns about who would sit on panels with expansive authority to reshape criminal justice.  “In California, the only times sentencing commissions come up, it has been code for sentence reductions,” said Sacramento County District Attorney Jan Scully.

But the idea resurfaced this summer when Gov. Jerry Brown, seeking to satisfy a federal order to reduce California’s prison population without resorting to more early releases, proposed spending an additional $315 million to provide more cells.  Steinberg broke with the governor, rallying Senate Democrats behind an alternate plan that questioned expanded capacity.

Among other provisions, Steinberg’s blueprint included a detailed plan for immediately creating an 18-member sentencing commission that could provide recommendations by the end of 2014. A letter to Brown argued that “short-term fixes provide no sustainable remedy.” Steinberg’s letter said the panel would make recommendations aimed at “long-term prison capacity, staying within the (prison capacity) cap, including changes in criminal sentencing and evidence-based programming for criminal offenders.” He included private poll results that showed nearly three-fourths of Californians supported a panel “to streamline California’s criminal statutes with the goal of safely reducing prison costs and maximizing public safety.”

But by summer’s end, the governor got his cash infusion. The final bill also created a special corrections policy committee tasked with broadly examining criminal justice in California. Last week, Steinberg called sentencing reform “a key piece” of rethinking the state’s criminal justice system. But he expressed doubt that substantial changes would materialize in the coming legislative session....

This session, Leno carried his second consecutive bill easing penalties for simple drug possession. Brown vetoed it. Part of Leno’s argument emphasized the state’s uneven sentencing statutes, which make possession of cocaine a felony but allow possession of Ecstasy or methamphetamine to be charged as misdemeanors. Leno cited such inconsistencies in arguing that the sentencing commission is “an idea whose time has come,” adding that the state’s struggles to reduce its prison population “only underscores the need for it.”...

Past sentencing commission efforts have self-destructed because the panel’s recommendations, though subject to legislative approval, would have carried the force of law, argued Sen. Loni Hancock, D-Berkeley. By contrast, Steinberg proposed a purely advisory body.

After seeing previous resentencing campaigns stymied, Hancock said an advisory commission may be the only tenable approach. Even if a commission’s recommendations remain just that, Hancock said she would push to see them implemented. “It’s just so important to cast some rational light on what goes on with our sentencing that I would be happy to see one that makes discretionary recommendations,” Hancock said.

I am pleased to hear there is talk of making a sentencing commission advisory in California because that should be one key to making such an entity a viable reality. But, were I a lawmaker in California, my proposal for a CA sentencing commission would be for the entire voting body of any such commission to be staffed only with district attorneys, sheriffs and police chiefs and for these folks on the CA commission to always have a majority of voting members. In that way, it should and could be clear that having a CA sentencing commission would not be code for sentence reductions but rather just a means for seeking greater sentencing rationality and information as defined by those very state actors elected and most responsible to the voters for seeking to ensure public safety and sensible use of tax resources to that end.

December 23, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, December 18, 2013

Task force recommends broad changes to sentencing and corrections in Mississippi

As reported in this local article, headlined "Sweeping prison reforms suggested in Mississippi: More judicial discretion among proposals," there is now big talk about big reforms in The Magnolia State. Here are the details:

A criminal justice task force on Tuesday recommended sweeping reforms to reduce Mississippi’s soaring prison population and costs, standardize sentences and reduce recidivism. “This is the first time in my career — 32 years — that we have taken a comprehensive look at corrections in this state,” said Mississippi Department of Corrections Commissioner Chris Epps. “… We all know the cost of doing nothing.”

The recommendations include providing more discretion for judges to impose alternatives to prison and creating “true minimums” on when violent and nonviolent offenders are eligible for release.  They also call for defining what constitutes violent crime — something officials said isn’t clear in state law.  Proposals also include increasing the threshold from $500 to $1,000 for felony theft and lowering drug sentences for possession of small amounts while cracking down on large drug dealers.

Epps headed the bipartisan, 21-member task force of lawmakers, judges, prosecutors, law enforcement and defense attorneys.  The group, after working for seven months with assistance from the Pew Charitable Trust’s Public Safety Performance Project, developed recommendations for the 2014 Legislature.

Gov. Phil Bryant, Lt. Gov. Tate Reeves, House Speaker pro tem Greg Snowden and others voiced their support for the proposal after the task force adopted it. The task force was created by a bill Snowden authored this year.  Bryant said the reforms “put victims first,” protect public safety and provide “clarity of sentencing.”  Reeves praised the recommendations as “evidence-based, data-driven, fiscally sound criminal justice reforms.”

While the nationwide trend has been lower prison population, Mississippi’s has skyrocketed since it passed some of the toughest “truth in sentencing” laws in the 1990s. The state now has more than 22,600 prisoners and the second-highest incarceration rate in the nation.  Prison costs have risen from $276 million in 2003 to $361 million, with unchecked growth expected to result in 2,000 more inmates and cost taxpayers another $266 million over the next 10 years.

The state has attempted unsuccessfully to reduce prison costs with a patchwork of release policies that created confusion in sentencing and a disconnect between the judges/prosecutors and corrections.  Uncertainty about how long convicts would serve helped push sentence lengths by 28 percent the last decade....

State Sen. Willie Simmons, D-Cleveland, said the proposed reforms are “historical,” and “create a better system as opposed to a build it (prisons) and they will come approach.”

December 18, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Saturday, November 23, 2013

Corrupt Massachusetts lab analyst gets (significant? inadequate?) state prison term for misdeeds

As reported in this Boston Globe article, "Annie Dookhan, the drug analyst who tampered with evidence and jeopardized tens of thousands of criminal convictions, was sentenced Friday to three to five years in state prison, closing a sorrowful chapter for the woman at the center of a scandal that continues to plague the state’s criminal justice system." Here is more:

The 36-year-old mother of a disabled child, whose marriage fell apart in the months after the scandal, softly pleaded guilty to 27 counts of misleading investigators, filing false reports, and tampering with evidence. She must also serve two years of probation and undergo mental health counseling, if needed....

Attorney General Martha Coakley, whose office prosecuted the case, said in an interview later that the conviction of Dookhan was only one part of an ongoing investigation into the quality of drug testing at the Hinton drug lab, but she said it was needed to bring some accountability for her crimes. “Certainly one of the victims in this case, and the actions of Annie Dookhan, is the public trust,” Coakley said.

Dookhan’s lawyer, Nicolas A. Gordon, would not comment after Friday’s hearing. He had asked Suffolk Superior Court Judge Carol S. Ball to sentence Dookhan to no more than a year in prison.

Dookhan admitted to filing false test results and mixing drug samples, and to later lying under oath about her job qualifications, but she said it was only to boost her work performance.

Prosecutors had asked that Dookhan serve 5 to 7 years in prison, but Ball kept to her earlier decision that she would sentence the chemist to 3 to 5 years, finding that, while Dookhan was a “broken person who has been undone by her own ambition,” the consequences of her crimes were still “nothing short of catastrophic.”

State Representative Bradley H. Jones Jr., the House Republican leader, expressed disappointment with the sentence. “You walk away feeling this is really inadequate to what has happened, and the ramifications that it has had, and is going to have, on the criminal justice system,” Jones said. “Three to five years is not adequate.”...

By all accounts, the scandal at the Hinton laboratory in Jamaica Plain is the worst to hit the state’s criminal justice system in recent memory, and is still deepening. Officials have determined that Dookhan was involved in more than 40,000 cases at the lab from 2003-2012, possibly tainting the integrity of the evidence in those cases.

Defendants have asked that their convictions be tossed, or that they be released from prison as they seek new trials. Public safety officials feared their release would create a crime wave. So far, the state has spent $8.5 million reviewing the drug cases and holding special hearings for defendants, and officials have budgeted an additional $8.6 million, expecting the costs to increase.

As of Nov. 5, according to the state Trial Court, 950 people have been given special Superior Court hearings in eight counties, from Worcester east. Overall, through Nov. 5, the courts have held 2,922 hearings — in addition to their regular caseload — for defendants asking that their cases be dismissed or that they be released from jail.

By August, a year after the extent of Dookhan’s crimes were first discovered, a Globe review of court records showed that more than 600 defendants had convictions against them erased or temporarily set aside, or they have been released on bail pending new trials. Of those, at least 83 defendants — about 13 percent of the total — had been arrested and charged with other crimes. In one case, a Brockton man released from prison last fall because Dookhan was involved in his case was arrested for allegedly killing a man in a drug dispute in May.

Cape & Islands District Attorney Michael O’Keefe said that the lab scandal has burdened district attorneys and the courts. At times, the courts have had to release prisoners or grant them new trials “in the interests of fair justice,” he said. “It’s something that we’re going to be trying to correct for quite a period of time,” O’Keefe said.

But he and defense lawyers also agreed that the woes will not end with Dookhan’s sentence. Defense lawyers have called on the state Trial Court to set up an independent special court system to review evidence that was handled not only by Dookhan, but by anyone from the Hinton laboratory. The lab, which was closed by State Police in 2012, handled more than 190,000 cases since the early 1990s.

November 23, 2013 in Offense Characteristics, State Sentencing Guidelines | Permalink | Comments (18) | TrackBack

Thursday, October 31, 2013

New report (from small government groups) urges Louisiana to reform its toughest sentencing laws

PippAs reported in this AP article, headlined "New study calls on La. to change sentencing laws," a notable group of libertarian-leaning organizations has produced a big report urging the state with the highest rate of incarceration to significantly scale back its most extreme sentencing laws.  Here are the basics:

Louisiana should shrink its prison population and costs by repealing minimum mandatory sentences for nonviolent crimes, said a study released Tuesday by several right-leaning policy organizations.  The groups suggest that Louisiana could maintain public safety while also reducing a per capita incarceration rate that is the highest in the nation, by making changes to the habitual offender law and locking up fewer people for nonviolent offenses.

The Reason Foundation, a libertarian organization based in California, made the suggestions along with the Pelican Institute for Public Policy, a Louisiana-based conservative organization, and the Texas Public Policy Foundation.  "Harsh, unfair sentences are putting too many Louisianans in jail for far too long, and at a terrible cost to taxpayers and society," Julian Morris, vice president of Reason Foundation and co-author of the study, said in a statement.

Nonviolent offenders account for the majority of the state's inmates, the report says. By shrinking its prison population, the study says Louisiana could invest more money in rehabilitation programs for those who remain in jail.

Gov. Bobby Jindal's administration said it has asked the state's sentencing commission to review the report's recommendations.  Any changes would need approval from state lawmakers.

The full 36-page report, titled "Smart on Sentencing, Smart on Crime: An Argument for Reforming Louisiana’s Determinate Sentencing Laws," is available at this link. The reports executive summary can be accessed here, and it gets started this way:

Over the past several decades, Louisiana legislators have passed a number of determinate sentencing laws aimed at reducing crime and incapacitating certain types of offenders. Because these laws have been disproportionately applied to nonviolent crimes, nonviolent offenders now account for the majority of inmates and admissions to prison in the state. This has produced a number of unfortunate consequences, such as an increase in the state’s prison population from 21,007 in 1992 to 39,709 in 2011 and a $315 million increase in correction expenditures during the same time period, from $442.3 million (in 2011 dollars) in 1992 to $757.4 million in 2011.  Meanwhile, there is little evidence that the laws have done anything to reduce Louisiana’s violent crime rate, which remains considerably above both the national average and the rates in its neighboring states. Today, Louisiana has the highest incarceration rate in the country, with 868 of every 100,000 of its citizens in prison.

Louisiana’s citizens could benefit considerably from changes to the way in which convicted criminals are sentenced.  As things stand, nonviolent offenders who pose little or no threat to society are routinely sentenced to long terms in prison with no opportunity for parole, probation or suspension of sentence.  In most cases, this is a direct result of the state’s determinate sentencing laws.  These prisoners consume disproportionate amounts of Louisiana’s scarce correctional resources, which could be better utilized to ensure that violent criminals are more effectively kept behind bars.

October 31, 2013 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Tuesday, October 08, 2013

What is the "right" sentencing range for aggravated vehicular homicide as a result of drunk driving?

The question in the title of this post is prompted by this recent lengthy article from my local Columbus Dispatch, and it is a question perhaps likely be be broadly in the run-up to the scheduled sentencing next week here in Ohio in a a high-profile drunk driving homicide case.  The article is headlined "Vehicular homicide sentences not harsh enough, say victims’ families: Others say defendant’s history, remorse should count," and here are excerpts:

When she learned that the drunken driver who killed her 15-year-old son could get no more than two to eight years in prison for aggravated vehicular homicide, Ellenna Houser was shocked....

Cathy Humphries, who struck Austin Houser with her pickup truck a year ago as he walked on a rural route in Logan County and left him there to die, was sentenced in May to eight years in prison — six years for aggravated vehicular homicide and two years for leaving the scene. “Drug dealers get more time than that,” Houser said.

Columbus defense attorney Brad Koffel gets a different reaction to the potential sentence when he speaks to the family members of a client charged with killing someone while driving drunk. “They find it harsh,” he said. “They’ll say, ‘He has no prior record. This wasn’t intentional.’  ”

But Koffel understands that the families of the victims, and those prosecuting such cases, have a different attitude. “If I were the prosecutor, representing the state of Ohio, I would find eight years to be wholly insufficient,” he said. Finding a balance between those positions at sentencing is one of the toughest jobs a judge will ever face, Koffel said.

Franklin County Common Pleas Judge David W. Fais will be in that spot on Oct. 16 when he announces a sentence in an aggravated vehicular homicide case that is drawing national attention.

Matthew Cordle, 22, of Powell, pleaded guilty last month to the charge after posting an online confession that went viral. He admitted that he was driving drunk at 2:40 a.m. on June 22 when he killed 61-year-old Vincent Canzani in a wrong-way crash on I-670 near 3rd Street. In the video, which has garnered more than 2.2 million hits on YouTube, Cordle promises to “take full responsibility” for his actions and begs others not to drink and drive.

Prosecutor Ron O’Brien said taking responsibility in this case means serving the maximum penalty, which his office will request at the sentencing hearing. He is among those who think Ohio’s penalties for causing a death through drunken driving are too lenient.

O’Brien said he has received emails from across the country as a result of the Cordle case. “They’re asking, ‘What’s up with Ohio? How can somebody be totally drunk, driving the wrong way on the freeway, kill someone and the penalty is only eight years?’ And it can be as low as two years,” he said. “I don’t think that’s a fair or appropriate penalty.”

W. Martin Midian, one of Cordle’s attorneys, said a fair sentence for his client, who has no felony record and no previous DUI convictions, is something less than the maximum. “I think if Matt were to receive the maximum sentence, it would send the wrong message about people accepting responsibility for their actions,” he said.

Koffel went further, saying that if Cordle receives the maximum as a first-time offender, “I think he has a very good argument on appeal. Max sentences are to be reserved for the worst of the worst.”...

Those found to be driving recklessly when they cause a fatal crash, for such things as texting behind the wheel or running a red light, are charged with a lower-level felony that has a sentencing range of one to five years in prison.

Ohio’s neighboring states are stricter about drunken drivers who cause a death, according to information compiled by Mothers Against Drunk Driving. A first offense brings a prison term of two to 10 years in West Virginia and five to 10 years in Kentucky. The maximum penalty is 10 years in Pennsylvania and 15 years in Michigan. In Indiana, punishment for a first offense is two to eight years for those with a blood-alcohol content of 0.08 percent to 0.14 percent. Those who test higher can get up to 20 years.

“Ohio is weaker than a lot of states, but we’re not the weakest,” said Doug Scoles, state executive director of MADD. In about half of the states, prison isn’t mandatory, according to MADD’s literature.

The last time Ohio altered penalties for the offense was in 2007. That’s when the legislature passed a law that toughened the sentence for those convicted of aggravated vehicular homicide while drunk who have three or more DUI convictions in the preceding six years. For them, the penalty is 10 to 15 years.

October 8, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack