Sentencing Law and Policy

The latest news on California sentencing reform

The Sacremento Bee has this new piece, headlined "California lawmakers consider new sentencing laws," which provides an update on the seemingly endless debate in California over sentencing reforms.  Here are excerpts:

Lawmakers have revived a pair of bills to overhaul California's criminal sentencing laws, but majority Democrats are still wrangling over which approach to push. Both measures would create a panel appointed by the executive, legislative and judicial branches that would be empowered to stiffen or reduce prison terms on its own, subject to a majority vote by the Legislature.

Gov. Arnold Schwarzenegger last year proposed an advisory panel that the Democrats viewed as toothless. Schwarzenegger spokeswoman Lisa Page said that the governor is open to negotiating a commission proposal with legislative leaders but that they have shown "little interest" in a deal....

Assembly Speaker-elect Karen Bass said that reconsideration is going to have to wait until the budget gets fixed. "I certainly think we need to have sentencing reform, but frankly, my focus as soon as I take over is going to be the budget, the budget, the budget," said the Los Angeles Democrat, who takes over as speaker on May 13.

No Republican in either house voted for either sentencing commission bill when they came up last year. "I'm not interested in abdicating the Legislature's responsibility" to set prison terms, said Assemblyman Todd Spitzer, R-Orange, the GOP point man on prisons.

My simple message to Assembly Speaker-elect Karen Bass: getting serious about sentencing reform and prison overcrowding/expenditures is a critical part of fixing the budget, the budget, the budget.

Ohio litigation over state crack/powder sentencing disparity

The debate over crack/powder cocaine sentencing disparity is usually all about federal sentencing, but this local article spotlights a state-level litigation over these issues in Ohio.  Here is the start of an interesting article:

The debate over the penalties for possessing crack cocaine versus those for the powder version of the drug is being argued in Summit County. An Akron attorney has filed court papers on behalf of 10 area defendants contending the harsher state penalties for crack cocaine are unconstitutional and racially based.

Attorney Jana DeLoach said she also has filed similar motions on behalf of defendants in Cuyahoga, Lucas, Richland and Stark counties. In some cases, DeLoach said she has filed the motions at no fee to the defendants.

DeLoach contends that the differences in Ohio law between the two forms of cocaine have resulted in longer prison terms for blacks, who are more likely to possess crack cocaine, and lesser terms for whites, who might possess powder cocaine.

She cited statistics showing that 85 percent of crack cocaine convictions involve blacks. ''I believe the disparity in sentencing between crack and powder cocaine is based on race and it needs to stop.  There is no rational basis at this point to continue treating these offenses differently,'' she said.  Prosecutors say they intend to fight the motions.

This debate is going on elsewhere.  State senators last year passed a bill to bring the penalties in line.  Currently in Ohio, it takes 25 to 100 grams of powder cocaine to reach the third-degree felony penalty for possessing five to 10 grams of crack cocaine.

The Senate's solution was to raise the penalties for powder cocaine and put it in line with crack cocaine laws.  The bill has not been passed in the Ohio House. Opponents of the Senate proposal contend the changes will only bring more inmates to Ohio's already crowded prisons.

Brennan Lecture on a topic that the Justice surely would have cared about

As documented at this official site, Justice Michael Wolff focused on sentencing issues at NYU when giving the 14th Annual Justice Brennan Lecture on State Courts and Social Justice last month. Justice Wolff, who sits on the Missouri Supreme Court and is the Chairman of the state's Sentencing Advisory Commission, titled his lecture "Evidence-Based Judicial Discretion: Promoting Public Safety through State Sentencing Reform."  Here is how his lecture began:

Americans put more people behind bars per capita than any country in the western world. But this rate of incarceration is not necessarily helping to reduce crime. In fact, when we put the wrong people in prison, we make them — and the problem of crime — worse. As we come to realize this, hopefully a new way of thinking about sentencing will emerge that will focus on sentencing outcomes as a way to ensure that public safety is a top national priority.

Sentencing is a complex topic that needs to be approached with humility, an open mind and common sense. I believe we have the analytical tools available to help create a system that minimizes recidivism and maximizes public safety.

Potent state sentencing op-ed from Arizona

This morning's Arizona Daily Star has this notable op-ed headlined "Sentencing laws are senseless."  Here are snippets:

Gov. Janet Napolitano's 2008-2009 proposed budget includes almost $1 billion for the annual expense of maintaining our adult and juvenile prison system. The state is also receiving bids for the construction of facilities to create 3,000 additional prison beds to ease prison overcrowding. The standard construction cost is $110,000 and up per bed.

In the last 10 years the incarceration rate in the United States has far outpaced the rest of the world. We lock up people at five to eight times the rate of any other industrialized country. Arizona ranks with Mississippi, Louisiana and Texas as having one of the highest incarceration rates in the United States, including particularly high rates of incarceration for women and minorities....

If these mind-boggling amounts of money were buying us public safety, or even helping to support a more ordered society, they might be acceptable. The facts show otherwise:

• 49 percent of new prison admissions are for parole or probation violations.
• 55 percent of Arizona prisoners are serving time for non-violent offenses — DUI, drugs, theft, etc.
• Only 18 percent are in prison for offenses involving victim injuries. Many are serving time for automobile accidents criminalized by allegations of negligent or reckless behavior, frequently alcohol-related.

At the present time, Arizona has more than 2,000 inmates over 50 years old who will remain in custody well into their geriatric years, and many for life. These prisoners, well beyond their lawbreaking years, require special medical attention, expenses that must be borne by the taxpayers....

It's time the public and the politicians get the facts on how expensive and unfair our criminal-justice system is and submit all of it to the light of public examination.

The interesting softer turn in Mississippi parole practices

Proving yet again that the most interesting and dynamic sentencing stories emerge from states, this local article discussed a notable development in Mississippi:

The Mississippi House voted Monday to ease the state’s truth in sentencing law.

By a vote of 69-52, the House approved legislation that would exempt non-violent offenders from the law, which now requires all people convicted of a felony to serve at least 85 percent of their sentence before being eligible for parole. The legislation has passed the House in previous sessions, only to die later in the process. It now goes to the Senate.

The bill would allow nonviolent offenders, such as those convicted of burglary and embezzlement, to be eligible for parole after serving 25 percent of the sentence. People convicted of selling marijuana and prescription drugs also would be eligible for early parole; other drug dealers would not.

Corrections Committee Chairman Bennett Malone, D-Carthage, said too many young people are being ruined for life because of the sentences they are given. He cited a ase in which a person was sentenced to 15-20 years for a first-time marijuana offense. "You might as well shoot that person," Malone said. "He will be institutionalized. ... There are better ways and cheaper ways to solve this problem." He cited home monitoring devices and other work programs....

Malone and others pointed out that the budget for the Department of Corrections has skyrocketed since the truth in sentencing law was passed. He said 6,300 inmates would be eligible for early parole if the legislation becomes law, though it would take the Parole Board literally years to hear all those cases.

The bill was hotly debated for about 80 minutes with Republicans primarily opposing it and Democrats supporting it, though a surprising number of members from each side voted against the majority of their party.

As I like to say, everyone in state government these days is now coming to understand that, when it comes to sentencing realities and politics, it's the prison economy, stupid.

Economic woes in Michigan impacting corrections and sentencing

News from Michigan provides the latest setting for trotting out my new mantra, "It's the prison economy, stupid."  Here are specifics from this new AP article:

The budget proposal that state budget director Robert Emerson delivers Thursday is expected to trim spending on prisons, but one influential senator has asked Gov. Jennifer Granholm to not count on any savings until legislation changing sentencing requirements actually passes. Granholm said last week in her State of the State address that the state needed to look again at making changes in prison spending in the budget year that starts Oct. 1....

The governor said in December that she's still interested in rewriting sentencing guidelines so some convicts are sent to county jails with shorter sentences rather than to state prisons, or serve a shorter time in prison, saving the state money. She made that proposal last year but it never got taken up by lawmakers....

Sen. Alan Cropsey, a DeWitt Republican who heads the Senate Judiciary Committee and the appropriations subcommittee that oversees corrections spending, warned Wednesday that the Democratic governor may not be able to get the changes she wants to lower prison costs. "Last year, she based her budget on policies to be enacted, on policies she couldn't even get the Democrats to touch," Cropsey said Wednesday. "At this point, either on the Democratic or Republican side, we haven't been shown any changes that anyone feels comfortable with."

Last year, the Granholm administration proposed sentencing changes that would have changed some felonies into misdemeanors punishable by up to a year in jail. Other crimes would have had shorter maximum sentences.  Some drug offenders would face a maximum three-month jail term, not the potential for up to four years in prison.  Under that plan, the $2 billion prison system — which consumes more of the state's tax dollars than its 15 public universities — would have housed 3,300 fewer inmates over three years. Space in crowded county jails would have dropped by 2,000 beds in a year, according to the Michigan Department of Corrections.

But the measures went nowhere. County officials said they feared being saddled with more inmates and incarceration costs, and prosecutors and sheriffs warned the public could be at risk from more criminals on the streets.

The highlight above is my addition to the article because I find it especially important to spotlight that spending on prisons in Michigan exceeds spending on public universities.  Not only is this a telling reality, it also might be a dangerous one: studies show that persons with more educational achievement commit fewer crimes, and thus state investment in university education may well pay better public safety dividends than investments in a prison system.

What's just right in Kansas...

Proving yet again that the states are way ahead of the feds in figuring out how to do sentencing and corrections, this local article reports encouraging news from everyone's favorite bellwether state:

The percentage of Kansas inmates who commit new crimes while on supervised release has dropped significantly over five years.

The rate, which was a little more than 5 percent in 2002, fell to 2.2 percent last year, Corrections Secretary Roger Werholtz told lawmakers Monday.  He attributed the reduction to increased legislative funding for programs that supervise inmates after they leave prison, and more dollars for alcohol and drug treatment.

Werholtz said that with fewer offenders returning to prison, the number of inmates in Kansas prisons has decreased from 9,153 in 2004 to 8,854 in mid-2007. “There is sufficient (prison) capacity to meet our needs for the next 10 years,” Werholtz told the House Appropriations Committee. However, he said that prediction assumed that the Legislature would not pass new sentencing laws that would put more offenders in prison. “During the last week of January, the prison population fell below 8,700, which was the first time that had been done since July, 2002,” he said.

Werholtz praised the passage last year of SB 14, which enacted a grant program to encourage community corrections programs to reduce revocation rates at least 20 percent.  The law also reduced sentences by 60 days for offenders who complete job training and drug abuse programs in prison.  Rep. Pat Colloton, the Leawood Republican who sponsored the House legislation, said the goal was to save money and rehabilitate criminals by preventing return trips to prison.

New report on the state of sentencing in 2007

The Sentencing Project, as detailed here, has just released a new report titled "The State of Sentencing, 2007: Developments in Policy and Practice."  This 30-page report is available at this link, and here is how The Sentencing Project describes some of highlights here:

Today's report, The State of Sentencing, 2007: Developments in Policy and Practice, highlights a number of important state criminal justice policy developments that occurred during 2007.  These include:

• Nine states created oversight committees to examine sentencing laws, prison overcrowding, indigent defense, and/or reentry services;
• Seven states amended parole policies and enhanced reentry preparation; Four states eased policies that treat juveniles as adults;
• Three states relaxed sexual offense laws related to consensual acts conducted by teenagers; and
• Two states reformed mandatory sentencing enhancements.

Nevada and California implemented some of the most significant criminal justice reforms in 2007....

The advances highlighted in The State of Sentencing, 2007 reflect a pattern in state criminal justice policy that emphasizes effective public safety measures that control government expenditures.  These developments continue a promising trend of "smart on crime" initiatives.  Between 2004 and 2006, 22 states enacted sentencing reforms targeted at reducing the prison population.  Today's report concludes with several recommendations for enhanced reforms:

• Repeal mandatory minimum sentences;
• Implement policies to reduce parole revocations to prison;
• Invest in reentry and oversight of the criminal justice system; and
• Expand options to reduce the amount of time served in prison.

Reviewing California's prison problems

This AP story provides the latest update on California's continuing prison woes.  Here are excerpts:

When California adopted its criminal sentencing code 30 years ago, a state appeals court marveled that it was virtually incomprehensible, comparing it to income tax forms and insurance policies. The appellate judges wondered if the Legislature had used "some long departed Byzantine scholar to create its seemingly endless and convoluted complexities." 

Since then, California has added more than 1,000 felony sentencing laws and more than 100 other changes that can lengthen prison terms.  As a result, the state's prisons are so dangerously jammed that there is a possibility federal courts could cap the population, potentially forcing the early release of some inmates.   The number of inmates in California prisons has soared, from nearly 25,000 in 1980 to more than 170,000 this year. The state has an incarceration rate of 475 per 100,000 residents, well above the national average of 445 per 100,000.  So far, political efforts to simplify the convoluted process have failed....

Proposals by Gov. Arnold Schwarzenegger and Democratic lawmakers to create a commission to review sentencing collapsed this year amid partisan infighting. Some feared that a commission could open prison doors too wide.  "We are jammed up with this situation right now because we have fallen in love with one of the most undocumented beliefs: That somehow you get safer if you put more people in jail," Senate President Pro Tem Don Perata said this spring....

A brewing brouhaha over sentencing reform in New York

As detailed in prior posts here and here, New York Governor Eliot Spitzer earlier this year established through an executive order the New York State Commission on Sentencing Reform (NYSCSR).  And, as detailed in this AP story and this official press release, last week the NYSCSR released a preliminary report (available here) which "outlined several major preliminary recommendations to improve the state’s current sentencing structure, calling for a more simplified and streamlined system focused on public safety, consistency and fairness." 

This preliminary report, entitled "The Future of Sentencing in New York State: A Preliminary Proposal for Reform," is a very impressive 100-page document that makes a lot of very sound points and recommendations.  However, as detailed in this strong article in City Limits, there is some dissension in the NYSCSR ranks:

The future of a pair of provocative criminal justice issues — parole for felons, and New York state's strict drug laws — remains in the air, as a commission proposing sweeping prison sentencing changes announced it was split on two fundamental issues....

The Commission recommended effectively ending parole for most crimes, but three of the 11 commissioners did not support that view.  And because commission members were unable to reach consensus on whether mandatory minimum prison sentences are appropriate for drug offenders, the panel largely put off discussion over whether to amend the Rockefeller drug laws.

The NYSCSR's decision to duck the Rockefeller drug laws has met with pointed criticism, as evidenced by this press release from the Drug Policy Alliance.  It notes: "Advocates and family members of those impacted by the Rockefeller Drug Laws responded to NYSCSR report by their voicing disappointment over the Commission's lack of findings."

As detailed here, the NYSCSR has scheduled a series of public hearing around New York next month.  it will be interesting to see how much attention these hearing receive and how the NYSCSR deals with its divisions and outside criticisms.

Massachusetts event on sentencing reform

As discussed in this Boston Globe editorial, the Massachusetts Bar Association this morning is conducting a State House symposium focused on sentencing reform.  Details about the event and the many scheduled speakers is available from this MBA webpage.  The Globe editorial includes these effective insights about the event and the issues it is seeking to spotlight:

The symposium offers a welcome opportunity to reconsider the effects of such blunt [mandatory minimum sentencing] laws.  But it still feels like the state is revisiting an old controversy that ought to have been resolved by now.  In the mid-1990s, a commission of judges, prosecutors, and defense attorneys spent two years of research and debate creating a balanced set of sentencing guidelines.  In what appeared to be a sensible compromise, the Massachusetts Sentencing Commission stiffened sentences for violent crimes but gave judges leeway to depart from mandatory minimum sentences in nonviolent drug cases.  Alternative sanctions, such as electronic bracelet monitoring, could replace prison time for minor offenses.  But the Legislature never gave the sentencing reform bill serious consideration.

Today's symposium could suffer from the fact that no district attorney will be on the panel. A vigorous debate on sentencing reform is impossible without the DAs, who are among the state's fiercest protectors of mandatory minimum drug sentences.  Still, there are signs of flexibility even among hard-line prosecutors.  Cape and Islands District Attorney Michael O'Keefe, for example, says he can't imagine fellow DAs agreeing to the elimination of mandatory drug sentences.  But O'Keefe could envision changes to the controversial law on school zones. This would be a good place to start.  About one third of the roughly 1,000 people who received mandatory drug sentences in 2006 fell under the sloppy school zone policy that provides little or no actual protection to students.

The state's district attorneys association and bar association worked well together recently to update the state's drunk driving laws.  They should do the same to bring Massachusetts drug laws into the modern era.

The consequences of Cunningham in Hawaii and Tennessee

With so much going on, I have failed to report previously that in the last few weeks the highest courts in both Hawaii and Tennessee have (finally) recognized that they have to live in Apprendi-land.  Specifically, recognizing the impact and import of the Supreme Court's ruling in Cunningham (which applied Blakely to California's structured sentencing system), the Supreme Courts of Hawaii and Tennessee have both recently held that their states' mandatory sentencing schemes create Sixth Amendment problems.

These recent rulings came in State v. Maugaotega (available here) and State v. Gomez (available here).  A local press report provide the basics in this article from Hawaii.  And BNA subscribers can read about both rulings at this link.

Overcrowding problems in the Nutmeg State

As detailed in this New York Times article, Connecticut is yet another state on a ever-growing list that is struggling with its ever-growing prison population.  Here are a few specifics from the piece:

Cubicles built for four are crammed with eight inmates, and enclosed areas known as dollhouses where inmates once played cards and wrote letters now hold 14 bunk beds.  The corridors are lined with more beds. 

Each large room at the Willard-Cybulski Correctional Institution once had 50 beds and now has 118. The dual prison, one part in Enfield and the other in Somers, is part of a system so overcrowded that it tests the state's resolve to get tough on criminals. Correction officers who work at this dormitory-style, minimum security prison say the cramped conditions give them little room to maneuver and little hope of keeping small problems from turning into big ones....

The arrest in July of two parolees in the grisly murders of a mother and her two daughters in Cheshire, followed closely by a carjacking involving a parolee, touched off a wave of official responses that were intended to address flaws in the criminal justice system, but that also made crowded prisons even more crowded. Gov. M. Jodi Rell ordered the Department of Correction to temporarily stop granting parole to violent offenders, a class that now includes home burglars. "Security comes first," the governor said in a Sept. 21 statement.

In addition, prosecutors are holding out for stiffer plea bargains, and judges are imposing longer sentences.  Ms. Rell has promised a top-to-bottom review of the state’s criminal justice system, but in recent weeks, as policy makers have been discussing the issue, pressure has been building. The union that represents two-thirds of the 7,000 employees at the Department of Correction said Monday that its members counted 821 temporary beds — they resemble plastic toboggans with mattresses — in use in 11 of the state’s 18 prisons one night last week.  "My members believe we're already at a crisis population," said Jon Pepe, president of a correction officers union.  "We're only managing them because the population is letting us manage them."

UPDATE:  Anyone interested in more background and discussion of the problems of overcrowding Connecticut should be keeping up with the blogging done by Gideon at "a public defender," who has been following these overcrowding problems very effectively.

If you build it (guidelines) well, they (judges) will come

As this local article from Alabama highlights, sentencing judges are eager to comply with sensible sentencing regulations.  In addition, as the story documents, when sentencing guidelines are truly sensible, prosecutors often complain about them more than defense attorneys.  Here's are excerpts from the article:

Trial judges in the state surprised the Alabama Sentencing Commission by overwhelmingly making use of voluntary sentencing guidelines that went into effect a year ago.... The commission reported earlier this month that judges considered the guidelines in 86 percent of cases.

The guidelines were created to reduce prison overcrowding and give judges more options. They tighten the range of prison time for certain offenses and reduce the sentences for property crimes. To use the sentencing guidelines, judges and attorneys fill out a worksheet devised by the sentencing commission with information such as age and the number and severity of previous crimes. The worksheet helps determine the length of sentence and whether an alternate sentence, such as drug court, is appropriate. The compliance figures took into account only how many times judges used the worksheets, not how often they followed the recommendation....

Not everyone is a fan of the guidelines, including Chris Hargett, the senior assistant district attorney in Tuscaloosa. “I’ve never been sold on the idea of guidelines,” he said....  Hargett said that prisoners usually receive shorter sentences when judges use the guidelines....

One goal of the guidelines is to create equality in sentencing so people who commit the same crimes in different areas of the state spend about the same time in prison. Hargett believes that the standards, in this first year, have had the opposite effect, since not all judges are using them. “There is a greater disparity in sentencing than there was before,” he said. “This leaves me with the feeling that my victims are being shortchanged.”

But retired Judge Joseph Colquitt, a University of Alabama law professor and chairman of the Alabama Sentencing Commission, doesn’t agree. “By using the standards even more frequently than we had anticipated, the judges are helping to reduce disparity in sentencing beyond our initial expectations,” he said. “The elimination of unwarranted disparity in sentencing is a worthy goal, and one that the Alabama Sentencing Commission has identified as a principal objective.”

New NJ report on state sentencing

This afternoon I received an e-mail reporting the release of a new report from New Jersey (which can be downloaded below).  Here are the basics from the e-mail:

The New Jersey Commission to Review Criminal Sentencing today issued the first comprehensive and independent examination of legislative changes relevant to sentencing of adult criminal offenders since the enactment of the Code of Criminal Justice in 1979.

Specifically, the report explains the sentencing system established by Legislature in 1979 as part of the then-newly enacted Code.  In addition, the report discusses how subsequent and numerous statutory changes to the Code during the intervening 28 years have fundamentally altered that scheme in terms of both the amount of punishment authorized and the process by which sentences are imposed.

Download nj_statutory_changes_to_sentencing_2.pdf

Editorial spotlights the modern politics of sentencing

This morning's Detroit Free Press has this effective editorial, entitled "The politics of fear vs. sentencing reform."  Here are snippets:

After Lansing police arrested state prison parolee Matthew Macon last week as a suspect in the murders of five women, state Sen. Alan Cropsey, R-DeWitt, promptly pronounced overdue sentencing reforms dead.  Like most Republicans, however, Cropsey had already opposed sentencing reforms that would save the state a much needed $100 million by diverting some minor offenders from prison to community corrections programs. So Cropsey's remarks were as predictable as they were off point. He joins a long line of politicians who have used fear instead of reason to exploit a handful of high-profile cases to justify Michigan's unreasonably high incarceration rates.

The result has been enormous increases in prison populations and costs, with little or no effect on public safety. In Michigan today, one in three state civil service employees works for the Department of Corrections; in 1980, one in 20 did.  Michigan spends nearly $2 billion a year on Corrections -- more than it spends on higher education. It incarcerates at a rate of 40% higher than other Great Lake states, which have lower crime rates....

To be sure, reforms in Michigan's sentencing polices ought to be subject to tough questions, but exploiting a tragedy to silence a very necessary debate will bankrupt the state while doing nothing to further public safety.

Connecticut Governor appoints sentencing and parole task force

As detailed in this New Haven Register article, Connecticut Governor M. Jodi Rell has created a Sentencing and Parole Review Task Force "to review state charging, sentencing and parole procedures in the wake of the July triple-homicide in Cheshire." 

I am impressed to see this sort of sound and sensible reaction to a terrible crime (instead of, say, knee-jerk legislation to increase sentence lengths).  But I am disappointed to see that, as detailed here, the new 20-member task force does not appear to include any professors with expertise in sentencing law and policy.

Nebraska high court rejects effort to pass sentencing buck

As detailed in this AP story and this effective news analysis, on Nebraska Supreme Court yesterday declared that the state legislature had violated the state constitution "when they enacted a plan this year intended to have the high court adopt sentencing guidelines aimed mostly at drug offenders."  The ruling came in In Re Petition of Nebraska Community Corrections Council, 274 Neb. 225 (Aug. 31, 2007) (available here).  Here is how the opinion begins:

The Legislature has mandated by statute that we promulgate by court rule sentencing guidelines for certain offenses. Under the guidelines, courts must consider community correctional programs and facilities in sentencing offenders.  In February 2007, the legislatively created Community Corrections Council petitioned this court to adopt its proposed guidelines.  We invited the public to comment on the proposed guidelines.  Several members of the judiciary raised concerns related to separation of powers.

We conducted a hearing in April.  We agree that the Legislature’s mandate violates the Nebraska Constitution’s separation of powers clause. We deny the Community Corrections Council’s petition, because we conclude that the Legislature cannot delegate to the judicial branch its constitutional power to enact the laws of this state.

Economic realities of state sentencing reform

This commentary from Michigan, entitled "Budget pitting prisons against our universities," spotlights some of the state economic realities that often are the catalyst for new sentencing reforms. Here is how it begins:

Michigan is at a crossroads and facing a critical choice about its future direction, perhaps nothing defines the choice as clearly and fundamentally as the coming budget struggle between prisons and universities.  Yes, there are many funding priorities and many worthy programs and services facing stress because of the state's projected deficit for the 2008 fiscal year, which could run as high as $1.8 billion, according to the Senate Fiscal Office.

But shaping choices between Corrections (the backbone of public safety) and universities (the gateway to the knowledge economy) is symbolic of the struggle that faces Michiganians.  It is not just a struggle for today or even for 2008, because the actions taken now will set the tone for what type of state Michigan wants to be and what future those who live here can expect.

A quick NASC wrap

Mike Connelly is so pooped from the terrific NASC conference he helped organize that we will have to wait a bit for his wrap-up.  In the meantime, this article from The Oklahoman provides some highlights.

Some recent related posts (with strong comments):

• A thought-provoking, NASC-inspired question
• Off to the NASC conference with fitting reading

Controversy over proposed Michigan sentencing reforms

This local article provides an effective review of the controversies brewing over Michigan Governor Jennifer Granholm's suggested changes to the state's sentencing laws.  Here are excerpts:

Public safety is not state government leaders' priority. That is the reaction Livingston County Sheriff Bob Bezotte had upon learning about Gov. Jennifer Granholm's proposed reforms to the state's sentencing laws. "The state is trying to fix its problem by dumping (them) on the county," Bezotte said. "As far as I'm concerned, the state government is shirking its responsibility. Public safety is not one of their priorities."

The Granholm administration is pushing to change the state's sentencing laws so fewer criminals are locked in state prisons and county jails. However, Bezotte said the proposal will only land more people in the county jail, which continually sees overcrowding.

According to the proposed sentencing law reforms report, about 140 felonies — such as fourth-degree fleeing and eluding, felonious driving, negligent homicide and writing bad checks — would become one-year misdemeanors, which mean a potential jail sentence — not prison. The plan also calls for putting lower-level offenders behind bars for less time....

Attorney General Mike Cox as well as other law enforcement officials on Monday blasted the proposal, calling it "seriously flawed." 

The state report disagrees with Bezotte's analysis of the likely impact, indicating that statewide county jail intake will be reduced by a net of 11,939 admissions each year....  "We need these sentencing reforms," Corrections spokesman Russ Marlan said. "If we want to see significant costs savings, we need to decrease the prison population." That's all well and good, local officials say, but the problems the state hopes to eliminate are simply being passed to the county governments.

This AP article and this addition local piece provides additional information about the attacks on Gov.  Granholm's proposals. 

The Sentencing Project's new report on prison disparities

As first previewed in this post and as detailed here, the Sentencing Project has a new report providing "a regional examination of the racial and ethnic dynamics of incarceration," which "finds broad variations in racial disparity among the 50 states."  The report is entitled "Uneven Justice: State Rates of Incarceration by Race and Ethnicity" and is available at this link. 

Among other interesting findings, these highlights from the report may surprise a few folks:

• African Americans are incarcerated at nearly six (5.6) times the rate of whites

• Hispanics are incarcerated at nearly double (1.8) the rate of whites

• States exhibit substantial variation in the ratio of black-to-white incarceration, ranging from a high of 13.6-to-1 in Iowa to a low of 1.9-to-1 in Hawaii

• States with the highest black-to-white ratio are disproportionately located in the Northeast and Midwest, including the leading states of Iowa, Vermont, New Jersey, Connecticut, and Wisconsin. This geographic concentration is true as well for the Hispanic-to-white ratio, with the most disproportionate states being Massachusetts, Pennsylvania, New York, New Hampshire, and New Jersey.

Latest FSR issue on state reforms now on-line

Now available on-line (with a subscription) at this link is the Federal Sentencing Reporter's latest issue, which is focused on state sentencing reforms and information-driven analyses of sentencing developments. In the issue's editors' introduction, Steve Chanenson and I ask the question "Can and Will Information Spur Post-Modern Sentencing Reforms?"

Other recent FSR issues:

• FSR Issue 19.3: Claiborne & Rita: Reasonableness Review in the Supreme Court
• FSR Issue 19.2: Victims and Sentencing II: Beyond the CVRA
• FSR Issue 19.1: Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna 
• FSR Issue 18.5: Toward Real Reform: The Constitution Project Recommendations; Model Federal Sentencing Guidelines 
• FSR Issue 18.4: Sentencing at the Supreme Court
• FSR Issue 18.3: Taking Stock a Year after Booker
• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 18.1: State of Blakely in the States

Costs cause states to pursue prison alternatives

This new article from Stateline.org, entitled " States seek alternatives to more prisons," highlights how prison overcrowding problems across the country are creating the necessity to invent new types of responses to crime.  Here are excerpts from the article (which includes a cool graphic reflecting this detailed analysis of state-by-state increases in corrections costs):

With swelling prison populations cutting into state budgets, lawmakers are exploring ways to ease overcrowding beyond building expensive new correctional facilities. Though the construction of prisons continues as states struggle to provide enough beds for those behind bars, legislators increasingly are looking at other ways to free up space and save money, including expanded programs to help prevent offenders from being incarcerated again, earlier release dates for low-risk inmates and sentencing revisions.

Criminal justice analysts point to Kansas and Texas as recent innovators. Both states are putting off building new prisons, focusing instead on rehabilitation and recidivism. At the same time, a new $7.7 billion prison spending plan in California — where overcrowding last year forced Gov. Arnold Schwarzenegger (R) to declare a state of emergency — has met with skepticism.  Critics call the plan "prison expansion, not prison reform" and say the initiative relies on impractical fixes such as shipping inmates out of state.

State spending on prisons surged 10 percent nationally last fiscal year (see graphic) and growing inmate populations played a lead role in those costs, according to an analysis by the National Conference of State Legislatures. Corrections trails only education and health care in swallowing state dollars, and experts say lawmakers are responding to the budgetary pressures by trying more cost-effective approaches.

Some related posts:

• Potent prison projections from Pew
• Important new Vera report on "Reconsidering Incarceration"
• Resisting the call for more prison spending
• "Justice Reinvestment" in Texas

California sentencing commission closer to reality

As detailed in articles from the San Jose Mercury News and the Sacramento Bee, both houses of the California legislature passed (slightly different) bills to create a sentencing commission in California.  the Mercury News article nicely details differences in the bill and the partisan political rhetoric surrounding their consideration and passage.

Some related posts:

• Might California finally create a sentencing commission?
• A push for a sentencing commission in California
• Advocating a sentencing commission for California

Ninth Circuit rejects Eighth Amendment challenge to 15 years for child porn distribution

The Ninth Circuit issued an unsurprising ruling today in US v. Meiners, No. 06-30389 (9th Cir. May 21, 2007) (available here), which rejects a defendant's claim that his 15-year federal sentence for advertising and distributing child porn was unconstitutional.  What makes the case blog-worthy is that the Meiners ruling emphasizes the particular harms that flow from advertising and distributing child pornography.  Meiners thus perhaps indirectly suggests that a very long sentence for simply receiving child porn — such as the 200-year Arizona state sentence given to a Phoenix high school teacher for simply possessing child pornography (basics here, commentary here) — might produce a different  Eighth Amendment assessment.

Some related posts on the Berger case:

• Arizona Supreme Court upholds 200-year sentence for possessing child porn
• What ever happened to state constitutional law, textualism, and libertarianism?
• Liberty versus security in the war on ... sex offenders
• More on the cert denied in Berger

Mass talking about crime fighting through the elimination of mandatory minimums

A helpful reader pointed me to this Boston Globe article focused on Massachusetts' Governor Deval Patrick new statewide anticrime plan.  The concluding section of the article spotlights that getting rid of mandatory minimums is on lawmakers' crime-fighting agenda:

Salvatore F. DiMasi, House speaker, said lawmakers should consider eliminating mandatory minimum sentences as part of any comprehensive plan to reduce crime. "Mandatory minimum sentences aren't working, and we're paying for the mistakes we made in the past," said DiMasi. "We need to do more. Young people need to have a chance in life to turn away from the streets, not turn to the streets."

Critics, including Patrick and Senate President Therese Murray, argue that mandatory sentences make it less likely that prisoners will be able to rejoin society successfully once they are freed because they are barred from participating in work release, rehabilitation, or furlough programs.  Also, once prisoners serving mandatory sentences are released, they are sent back to society unsupervised.

Patrick said yesterday that he hopes the anticrime council, which met for the first time yesterday, will look at ways to change the state's mandatory sentencing laws -- which were passed in the 1990s as a response to the perceived leniency on some drug- and gun-related crimes.

Great observation on NY's new sentencing reform initiative

Though locked up by a subscription, I saw a great piece in yesterday's New York Law Journal entitled "New York's New Commission on Sentencing Reform" by Alan Vinegrad and Douglas Bloom.  The article thoughtfully discusses Governor Eliot Spitzer's establishment of the New York State Commission on Sentencing Reform (previously discussed here).  Here are some passages from the informative and insightful article:

The [federal] Sentencing Reform Act of 1984 directed the USSC to create and maintain a determinate sentencing system with the now-familiar Sentencing Guidelines as its centerpiece.  The [New York] Commission on Sentencing Reform, on the other hand, does not appear to have been developed with any particular system in mind.  Rather, it has been given the open-ended charge of recommending legislative fixes that include alternatives to incarceration and take into account the fiscal impact of the prison system.  It appears that, beyond simple uniformity, the commission's aim is to reduce prison populations while still maintaining public safety and the traditional goals of criminal punishment....

Combined with a separate proposed program to consolidate and close state prisons, cost may have been a motivating factor behind the creation of the new commission.  With the political freedom to experiment that comes with lower crime rates, Governor Spitzer appears to be seizing the opportunity to explore ways to reduce crime and improve the state budget at the same time.  Although not abandoning the goal of limiting sentencing disparity, he has effectively charged his new committee with the difficult task of finding ways to reduce crime and dampen recidivism while still protecting the community at reduced costs. 

By focusing on alternatives to incarceration, the commission has an opportunity to achieve this goal. In a sense, Governor Spitzer's answer to Mayor Koch is that the state may not need to choose between education and incarceration.  Through re-entry programs, education programs and alternatives to sentencing — such as the Drug and Community Court systems — the state may be able to reduce crime while simultaneously reducing incarceration.

Geography and sentencing differences in Ohio

Thanks to ODPI, I saw this interesting article in the Defiance Crescent-News, entitled "Felony sentencing philosophy reflects community values," which details how local geography impacts sentencing outcomes in different ways in capital and non-capital cases.  Her is how it starts:

Do judges in Ohio's rural counties send certain offenders to prison at a higher rate than judges in larger counties?  The answer -- according to three area common pleas court judges -- is yes.  And they make no apologies for it.

"It's definitely true that convicted offenders in rural areas are sent to prison more than in the metropolitan areas, particularly in drug cases," said Joseph Schmenk of Defiance County. "I think most judges have a sentencing philosophy which reflects their county's values and mores," he added. "I don't think there's anything wrong with that."

The on-going MPC sentencing project

A month from today at the American Law Institute's Annual Meeting, Tentative Draft No. 1 of the "Model Penal Code: Sentencing" project is up for approval.   As detailed here, work on this project began back in 1999 because of the need to update the MPC's approach to sentencing "in light of the many changes in sentencing philosophy and practice that have taken place in the more than 40 years since the Code was first developed."

The project's progress has been disrupted somewhat by the Blakely revolution, and the project's direction has been questioned by ALI member Michael Marcus, circuit-court judge for Multnomah County, Oregon.  As detailed in this statement, Judge Marcus proposes to make a number of motions critical of the draft in its present form.  The project's Reporter, Professor Kevin Reitz has this response.

The debate over the substance of the new MPC sentencing provisions is very interesting, but it is not clear that it is very important.  These days, there are no shortage of ideas for sounder sentencing reform; the real challenge, as California continues to demonstrate, is to be able to manage or alter the skewing influence of politics so that sounder sentencing reforms can be effectively exacted and implemented.

Notable (but limited) SCOTUS action

SCOTUSblog has all the news on today's Supreme Court action, which includes a notable (but perhaps troublesome) order requesting supplemental briefing in Panetti v. Quarterman.  The big news is two big decisions in environmental cases

Still no word on the ACCA case James that was argued five months ago.  Apparently it was easier for the Justices to figure out global warming than to figure out criminal history doctrines.

A new New York under Spitzer?

The Gotham Gazette has this interesting and detailed article entitled "Criminal Justice Under Eliot Spitzer."  This piece provides lots of information about how New York's new Governor might recast criminal justice law and policy in the Empire State.

California's continued struggles

California continues to struggle with its response to Cunningham and its on-going prison over-crowding problems.  Here are two news accounts with new developments:

• As a response to Cunningham, "Assembly Approves Changes to California Sentencing Law"

• As a response to over-crowding, "Hold placed on bills that might swell prisons"