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 (6) | TrackBack

Thursday, October 03, 2013

Guess which state has the highest rate of incarceration of black men in the entire US?

Click through to see the somewhat surprising answer...

This NPR story answers the question in the title of this post.  The piece is headlined "Wisconsin Prisons Incarcerate Most Black Men In U.S.," and it starts this way:

The United States prison population is still the world's highest, with more than 1.5 million people behind bars. Black men are more likely to be sent to prison than white men, and often on drug offenses. A study from the University of Milwaukee-Wisconsin looked at that state's incarceration rates and found they were the highest in the country for black men.

The University of Wisconsin researchers say their analysis was truly eye-opening. They found that Wisconsin's incarceration rate for black men — 13 percent — was nearly double the country's rate.

"We were so far above everybody else. That just sort of stunned us when we saw that," says Professor John Pawasarat, who studied two decades of Wisconsin's prison and employment data.

Pawasarat found that nearly 1 in 8 black men of working age in Milwaukee County had served some time in the state's correctional facilities. At 13 percent, the rate was about 3 percentage points above Oklahoma's — the state with the second highest rate of incarceration for black males. (Gene Demby wrote about this same topic and noted that Wisconsin also has the highest rate of Native American men who are behind bars. One in 13 Indian men are incarcerated.)

October 3, 2013 in Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

"Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning"

The title of this post is the title of this new paper available via SSRN and authored by John Monahan and Jennifer Skeem. Here is the abstract:

After almost four decades of “just deserts,” the past several years have seen a remarkable resurgence of risk assessment as an essential component of criminal sanctioning.  In this article, we review current practice in the incorporation of risk assessment into the sanctioning systems of several illustrative states, and describe the major dimensions on which state practices differ.  We then elaborate the various meanings ascribed to the foundational concept of “risk” in criminal sanctioning, and contrast “risk” with what are now often called “criminogenic needs,” the fulfillment of which ostensibly reduce an offender’s level of “risk.”  Finally, we address the choice of an approach to risk assessment in sentencing, particularly in the resource-starved state of current correctional practice.

October 3, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Wednesday, October 02, 2013

Alabama rolls out new presumptive sentencing guidelines (which prosecutors mostly oppose)

ALSealWhile October 1, 2013 was an eventful day around the nation with the roll-out of the new federal health care law and the partial federal government shut down.  But in Alabama, the start of October 2013 was also a big deal because it was the effective date for the application of new sentencing reforms.  And, in sharp contrast to the federal sentencing system where applicable guidelines are distinctly harsh and draw the ire mostly of defense attorneys, under Alabama's new more lenient guidelines, it is the prosecutors who are complaining about judges having to follow presumptive sentencing rules.

This local article, headlined "More Alabama nonviolent offenders may avoid prison under law now in effect, DAs not happy," explains the new Alabama sentencing world and the concerns being expressed by prosecutors about having judges having to follow sentencing laws they disfavor:

Thieves, small-time drug dealers, repeat drug-users and other nonviolent offenders will find the world has changed beginning today, as Alabama tries to cope with its bursting-at-the-seams prison system by being more “selective” about who gets locked up.

Starting today new sentencing guidelines cover many nonviolent theft and drug charges. Burglary and drug trafficking charges are not on the list, but Alabama’s habitual offender laws that led to long sentences after two or more prior felonies will no longer automatically result in decades-long prison sentences for nonviolent offenders.

There are numerous changes, but the key differences are that judges in most cases are expected to use a worksheet to guide the decisions about “in or out of prison” and “how long a sentence.”

There have been complaints by prosecutors and some judges that the guidelines take the court’s discretion out of the system. The guidelines were developed beginning in 2000 and went into effect in 2006 as “voluntary.” But guideline use varied widely around the state, said Bennet Wright, executive director of the Alabama Sentencing Commission. In 2012, the Alabama Legislature agreed to make the guidelines “presumptive” meaning they would be applied unless compelling reasons were found to deviate from the guidelines.

Madison County District Attorney Rob Broussard said in a purely theoretical world, his office would oppose the new sentencing system. “But in the practical, budget-driven world, we understand why we have them,” Broussard said. “In this state, as in a lot of jurisdictions, we can about talk justice and what something is worth until we’re blue in the face, unfortunately it’s a money game. Do you have space to house criminals or not?”

Wright said prison costs and issues of fairness have driven the new process. “Alabama has the most overcrowded prison system in the country,” he said. “There is a very serious funding issue, coupled with an overcrowding issue and something has to be done. The state has to be increasingly more selective about which nonviolent offenders are sentenced to prison.”

Defendants facing similar charges across the state were not getting the same sentences, an issue that the Sentencing Commission has long been concerned about, Wright said. “The commission’s goal was to eliminate as much unwanted disparity as possible and create as much uniformity statewide as possible,” he said. “There has not been a lot of uniformity statewide amongst similar cases. You could have neighboring counties -- whether urban or rural, some in the same courthouse -- with judges using different practices. It was varied across the state, and a lot of people’s reactions have been, ‘That’s why it’s presumptive now.’ It’s an issue of fundamental fairness.”....

The Alabama District Attorneys Association has also been critical of the changes, arguing the rules will limit prosecutors’ ability to punish repeat offenders. St. Clair County District Attorney Richard Minor, president of the Alabama District Attorneys Association, said the association is working on proposed legislation for changes to the law.

Minor said the DA’s would like to see multiple charges in a drug distribution case be counted individually in the guidelines, rather than as one sentencing event which could lessen the likelihood of prison. Minor said he’s also concerned by what the worksheet requirements leave out.

“I think it’s hard to determine someone’s criminal behavior and their ability for rehabilitation, based on numbers on a sheet of paper,” Minor said. “I think a DA’s office and judge in the community have more information than can be put down on paper.”

I find it so very telling that when states create sentencing guidelines which generally push judges away from long prison terms (unlike the federal guidelines which general push judges toward long prison terms) we hear state prosecutors complaining that use of guidelines at sentencing does not capture all the unique facets of offenses and offenders. This provide for me still more proof that the severity of applicable rules is what really shapes the litigants perspectives as to whether sentencing guidelines should be presumptive or merely advisory.

For lots of reasons, and perhaps especially because Alabama's sentencing laws are evolving in kind of the reverse concerning how federal sentencing laws evolved over the last 25 years, I think sentencing reformers ought to be studying Alabama sentencing reforms past, present and future very closely. Helpfully, as the state starts a new sentencing reform chapter, the local papers have all this notable new coverage of developments:

October 2, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (13) | TrackBack

Monday, September 16, 2013

Two new commentaries on California's enduring need for enduring sentencing and corrections reform

Commentators in California soundly and sensibly recognize that last week's "deal" to deal with the state's overcrowded prisons (basics here) is not a long-term solution to the range of issues that helped lead to the state's problems in the first place.  For example, this new Los Angeles Times op-ed by Lois Davis, a policy researcher at the Rand Corporation, stresses the need for better prison programming to reduce recidivism. Here are excerpts:

If California is serious about reducing its prison population, one crucial component will have to be reducing recidivism. Currently, a lot of the state's inmates are men and women who've been in prison more than once.  They get out, they have little training or education, they can't get jobs and, in many cases, they return to lives of crime and find themselves back behind bars.

But a major new study of correctional education in U.S. state prisons suggests there are things California could do to slow that revolving door.  Our research demonstrates that ex-offenders' futures may depend on what, if anything, they learn while behind bars....

My Rand Corp. colleagues and I recently completed a national study examining all the evidence on the effect of correctional education on recidivism and employment.  We found that inmates who participated in correctional education programs — remedial education to develop reading and math skills, GED preparation, postsecondary education or vocational training — were 43% less likely to return to prison within three years of release in comparison to those who did not participate. That's a 13-percentage-point reduction in the risk of reoffending.

Inmates who receive correctional education behind bars are not just significantly less likely to return to prison; they are also more likely to find jobs after being released.  Prisoners who participated in academic or vocational education programs had a 13% better chance of finding employment than those who did not. And prisoners who participated specifically in vocational training programs were 28% more likely to be employed after release from prison than those who were left out.

With times being tough and budgets tight, state policymakers, corrections officials and correctional education administrators will rightly ask whether the cost of providing such programs are worth the gains in lower recidivism. Our research shows that it is....

Failing to invest properly in education and training programs carries real risks, thrusting more uneducated and ill-equipped ex-cons onto the streets. And in California, that investment needs to be made not just in state prisons but in county jails too, since realignment has meant that many offenders who would have served their terms in prison are incarcerated in jails instead. The benefits of inmate education can extend far beyond prison walls. When former inmates are able to land jobs and stay out of prison, their families and communities gain too.

Similarly, though with a distinct reform focus, this local editorial stresses the need for broader sentencing changes in California.  Here is an excerpt:

California has spent the past two decades learning a harsh, expensive lesson: The state does not have the financial resources to keep pace with the consequences of the hard-line sentencing laws imposed in the 1990s....

Politicians have long known that comprehensive sentencing reform is the solution, but have largely balked for fear of being labeled soft on crime. Until now. The compromise between Gov. Jerry Brown and Republican and Democratic legislative leaders on prison overcrowding creates a rare opportunity for California to seriously address the issue....

The challenge will be crafting new sentencing laws that deter crime, provide a fair punishment for criminal transgressions and reduce the state's 65 percent recidivism rate -- the highest in the nation. The national average is about 45 percent....

Comprehensive sentencing reform is the logical next step for California to create a sustainable, efficient and just state prison system. Maybe we can leave politics out of it.

September 16, 2013 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, August 11, 2013

"California’s Continuing Prison Crisis"

The title of this post is the headline of this new New York Times editorial.  Here are excerpts:

California has long been held up as the land of innovation and fresh starts, but on criminal justice and incarceration, the Golden State remains stubbornly behind the curve.

Over the past quarter-century, multiple lawsuits have challenged California’s state prisons as dangerously overcrowded.  In 2011, the United States Supreme Court found that the overcrowding had gotten so bad — close to double the prisons’ designed capacity — that inmates’ health and safety were unconstitutionally compromised.  The court ordered the state to reduce its prison population by tens of thousands of inmates, to 110,000, or to 137.5 percent of capacity.

In January, the number of inmates was down to about 120,000, and Gov. Jerry Brown declared that “the prison emergency is over in California.”  He implored the Supreme Court to delay a federal court order to release nearly 10,000 more inmates.  On Aug. 2, the court said no.  Over the furious dissent of Justice Antonin Scalia, who reiterated his warning two years ago of “the terrible things sure to happen as a consequence of this outrageous order,” six members of the court stood by its earlier ruling.  California has to meet its goal by the end of 2013.

The state claims that releasing any more inmates would be a threat to public safety, as if the problem were too little prison space.  In fact, California’s problem is not excessive crime, but excessive punishment.

This was obvious years before the Supreme Court weighed in.  Since the mid-1970s, California’s prison population has grown by 750 percent, driven by sentencing laws based largely on fear, ignorance and vengeance.  The state’s notorious three-strikes law, passed in 1994, is only the most well-known example.  Because of it, 9,000 offenders are serving life in prison, including many whose “third strike” was a nonserious, nonviolent offense — in one case, attempting to steal a pair of work gloves from a Home Depot.

Californians have made clear that they no longer accept traditional justifications for extreme sentencing.  Last November, voters overwhelmingly passed Proposition 36, which restricted the use of the three-strikes law for nonviolent offenses, even for current prisoners. It wasn’t just about saving money; exit polls showed that nearly three-quarters of those who supported the proposition said they felt the law was too harsh....

If California wants to avoid another legal battle over its overcrowded prisons, there are two things it can do right away.

First, it should establish a sentencing commission to bring consistency, proportionality and data-based assessments to its laws.  Twenty-one states, the District of Columbia and the federal government already have such commissions, and they make a difference. In Virginia and North Carolina, both of which had prison overcrowding, sentencing commissions helped focus scarce resources on housing the most violent offenders, limiting prison growth without jeopardizing public safety.  Criminal justice reform advocates have unsuccessfully pushed for such a commission in California. If the state is to get away from its irrational and complicated sentencing, it needs a commission, and it needs to insulate it as much as possible from the political actors who have contributed so much to the state’s current crisis.

Second, the state must do more to help released prisoners get the re-entry and rehabilitation services that already exist across California.  Inmates are often released with no warning to friends or family, with no money, no means of transportation and no clothes other than the jumpsuits on their backs. It is no wonder a 2012 report showed that 47 percent of California prisoners returned to prison within a year of their release, a significantly higher rate than the national average....

California’s prison population is consistently among the largest in the country. While it presents an extreme case, its problems are representative of what is happening in prisons and jails in other states. If California would redirect its energy from battling the federal courts to making the needed long-term reforms, it could once again call itself a leader.

August 11, 2013 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, August 01, 2013

Cleveland kidnapper Castro gets LWOP sentence plus 1000 years as plea deal provided

I had the honor this morning of watching the first part of the state sentencing proceeding for Cleveland kidnapper Ariel Castro in a remote studio waiting to be a boxed pundit on CNN.  Consequestly, I will link here and quote below part of CNN's extensive coverage of the sentencing chapter of this high-profile case:

Kidnapping victim Michelle Knight told her captor, Ariel Castro, during his sentencing hearing, "You took 11 years of my life away. ... I spent 11 years in hell. Now, your hell is just beginning."

"I can forgive you, but I will never forget," she said in her statement to Castro, calling him a hypocrite. "Nobody should go through what I went through," she said tearfully. She called another victim, Gina DeJesus, her "teammate" saying the woman saved her when she was "dying from his abuse." Knight said she "will overcome what happened" but Castro "will face hell for eternity."

During Ariel Castro's sentencing hearing, prosecutor Anna Faraglia said that Castro "tormented (his victims) by allowing them to watch their vigils ... and even had the audacity to attend them."  She further said that Castro would talk to his victims' parents as if he were distraught by their disappearances when "they were right underneath his roof."

Tim McGinty, Cuyahoga County prosecutor, stressed there's no backing to the claim that Ariel Castro suffered from mental illness. "He is responsible," he said, likening him to murderers John Wayne Gacy and Ted Bundy. "He has no excuse."  When asked what Castro would do if he could go back and do things differently, the kidnapper responded that he'd do it all over again, McGinty said. "He doesn't believe he did anything wrong," McGinty said. "There is no remorse."

Defense attorney Craig Weintraub then told the judge that he felt some of the testimony presented was inappropriate because "these were really private matters," the sentence had been agreed upon prior to the hearing and Castro waived his right to challenge the facts of the case. Judge Michael Russo responded that he felt the testimony and evidence was necessary to help him guide his decision on whether to accept the sentence.

Cleveland kidnapper Ariel Castro, speaking at his sentencing hearing, said, "I'm not a violent person.  I simply kept them there so they couldn't leave."  He was referring to the three women he held captive for about a decade.   Castro said he knew what he did was wrong, but he argued that the "accusations that I would come home and beat them" are "totally wrong."

"I'm not a monster. I'm just sick. I have an addiction. Just like an alcoholic has an addiction."...

Describing himself as a "very emotional person," Ariel Castro said during his sentencing hearing that "these people are trying to paint me as a monster and I'm not a monster. I'm sick."

"I believe I am addicted to porn to the point that it makes me impulsive and I lost it," he said, adding he's "not trying to make excuses."

Ariel Castro took issue with the aggravated murder charge related to the allegation that his abuse terminated the pregnancy of one of his victims, saying there was no evidence the incident occurred. Judge Michael Russo reminded him that he pleaded guilty, and Castro said he did so only to save his victims further psychological trauma....

Judge Michael Russo has already sentenced kidnapper Ariel Castro to hundreds of years in prison, mostly in eight- to 10-year consecutive blocks.  Russo said Castro "will never be released from incarceration during the period of his remaining natural life for any reason."

"A person can only die in prison once," Judge Michael Russo told Ariel Castro Thursday in handing down a sentence of life in prison plus 1,000 years.  The judge called the sentence "commensurate with the harm you've done." Russo, noting that Castro treated his victims as "slaves," said consecutive sentences rendered in his case must be "imposed" to protect the public and "to punish you."...

"There is no place in this city, there is no place in this country, there is no place in this world for those who enslave others," Judge Michael Russo told kidnapper Ariel Castro. The court in Cuyahoga County is seizing the property of Ariel Castro and imposing a fine of $100,000 on him, in addition to his massive sentence.

Related prior posts:

August 1, 2013 in Offense Characteristics, State Sentencing Guidelines, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, July 26, 2013

Kansas Gov calling special legislative session to deal with Allenye problems

A helpful reader alerted me to this local Kansas article reporting on the latest ripple from the Supreme Court's work last month in Alleyne.  The piece is headlined, "Brownback calls for special legislative session to address questions on ‘Hard 50’ law," and here are the details:

Kansas Gov. Sam Brownback has called for a special legislative session starting Sept. 3 to address legal questions about the state's so-called "Hard 50" sentencing law.  State Attorney General Derek Schmidt had asked for a special session because of a recent U.S. Supreme Court ruling that struck down a similar federal sentencing law.

“The ‘Hard 50’ sentence is a vital public safety tool that has been in place for more than 10 years,” Brownback said in a statement released today. “The sudden absence of the ‘Hard 50’ sentence poses a real and present danger to the public safety of all Kansans.”

Republican leaders of the Kansas Senate quickly issued a statement supporting the call for a special session. “I appreciate the assessment of the situation by the Governor and the Attorney General, and support their decision,” Senate President Susan Wagle, a Wichita Republican said in the statement. “After learning about the circumstances of the pending cases, and recognizing the critical time element involved with the appeals process, it’s clear we must act. The Senate will respond quickly and efficiently to protect public safety.”

Under the Kansas statute, people convicted of premeditated murder can be sentenced to life without the possibility of parole for 50 years if the trial judge finds certain aggravating factors. Otherwise, those defendants are typically given a sentence of 25 years to life.

The U.S. Supreme Court, however, issued a ruling in June saying that when statutes like the Hard 50 law call for enhanced penalties, the facts that justify the more severe sentence must be decided by the jury, not a judge. Days after the Supreme Court issued that ruling, it remanded a Kansas case back to the state supreme court to be reconsidered....

“While returning to Topeka for a special session is often a last resort, crafting legislation to keep our constituents safe from violent offenders is the proper response to the Alleyne Decision," Senate Majority Leader Terry Bruce, a Hutchinson Republican, said, referring to the U.S. Supreme Court's ruling in Alleyne v. United States. "Legislative action should be taken in a reasonable period of time and in a bipartisan manner.”

During a news conference Thursday, Schmidt said there were potentially dozens of other cases in Kansas that could be affected by the ruling. One of those involved a murder-for-hire scheme in which the victim was shot execution-style in the back of the head in front of her child. It was a case of mistaken identity, Schmidt said, and the victim was not the intended target.

July 26, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, July 13, 2013

Echoes of Alleyne showing something's the matter in Kansas "hard 50" Sentencing

This new local article, headlined "Supreme Court ruling threatens to invalidate Kansas hard 50 sentences," reports on one of the potential state echoes of the Supreme Court's Sixth Amendment ruling in Allenye last month.  Here are the essential details:

A U.S. Supreme Court decision that prompted the Kansas Attorney General’s Office to drop plans to seek a hard 50 sentence against convicted wife-killer Brett Seacat could invalidate the hard 50 sentence given to Scott Roeder, who was convicted of murdering abortion doctor George Tiller.

The ruling also may force prosecutors to abandon plans to seek hard 50 sentences in some other cases, including the case of a Wichita man who was convicted last week of stomping his girlfriend to death with steel-toed boots. It could prevent the state from seeking a hard 50 for a man convicted last month of strangling a Wichita woman in 2011 while on parole for murdering a woman in Lawrence more than two decades earlier.

District Attorney Marc Bennett said the ruling, known as the Alleyne decision, could have an impact on any hard 50 case in Kansas that is on appeal, and could change the way prosecutors deal with first-degree murder cases in the future. “Clearly it will be an issue that we will have to address,” he said.

Defense lawyer Richard Ney was more blunt in his assessment of the ruling. “The hard 50 is dead as far as it exists in Kansas right now,” he said. “For cases that are not final, and Roeder would be one of them, I think they’re certainly in question.”

If the state wants to keep its hard 50 sentencing law, Ney said, the Kansas Legislature will probably have to adopt a sentencing system that includes a separate penalty phase in any first-degree murder trial where prosecutors seek a 50-year minimum sentence.

When the state enacted a hard 40 sentencing law in 1990 – the precursor to today’s hard 50 law – it used such a system where the jury that found a defendant guilty of first-degree murder would sit at a separate penalty phase and determine whether to impose a hard 40 sentence. The state later turned the decision of whether to impose hard 50 sentences over to judges....

In releasing the Alleyne decision, the Supreme Court sent a similar case – Astorga v. Kansas – back to Leavenworth County District Court for resentencing. Kansas Attorney General Derek Schmidt cited both cases in his decision to abandon efforts to seek a hard 50 sentence in the Seacat case.

“Upon thorough review of the U.S. Supreme Court’s decision in Alleyne, the state does not believe the procedural and factual posture of this case allow for the application of (the hard 50 law) in its current form. Therefore, the state is no longer seeking the imposition of a mandatory term of imprisonment of 50 years,” he wrote in a court filing.

As it now stands, Kansas’ hard 50 law says a judge must weigh aggravating and mitigating factors before deciding whether to grant a prosecutor’s request to impose a hard 50 sentence. The law lists several aggravating factors that include a prior conviction for a crime that caused death or great bodily harm, the commission of an act that creates a great risk of death to more than one person, and the commission of a crime in an especially heinous, atrocious or cruel manner.

The law also lists mitigating factors that may include a defendant’s age, a defendant’s lack of criminal history and the fact that a defendant was a minor participant in the crime for which he or she was convicted.

If a judge rules that one or more aggravating factors exist, and decides that the existence of such factors is not outweighed by any mitigating circumstances, the law says the defendant shall be sentenced to life without parole for a minimum of 50 years.

The folks behind the Kansas Defenders blog have been all over the impact of Alleyne in the Sunflower State via a number of notable new posts here and here and here.

Prior related post on Alleyne ruling:

July 13, 2013 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, May 23, 2013

NACDL rolls out state-by-state "excessive sentencing" proportionality litigation resource

ImagesCA6ZGXG7I am extraordinarily proud and excited to report that, as detailed via a new NACDL news release, that the National Association of Criminal Defense Lawyers is now offering, "as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."

This resource has been given the name Excessive Sentencing: NACDL’s Proportionality Litigation Project its main page can be accessed via this link.  Here is a bit more from the NACDL press release about the resource (and also my role therein):

Development of this new resource was inspired in part by the Supreme Court’s recent landmark constitutional decisions in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Miller v. Alabama, 132 S. Ct. 245 (June 25, 2012), which pronounced new Eighth Amendment limits on when and how states can impose life without parole prison terms on juvenile offenders.  The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012.  They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.

The primary academic supervisor of this resource is Professor Douglas A. Berman of The Ohio State University Moritz College of Law.... Professor Berman intends to update these materials regularly as developments in the law warrant and new information becomes available.

On the project’s landing page –- which can be accessed here -- there is a free, nearly 90-minute sentencing skills webinar featuring Professor Berman and Stephen Hardwick, an assistant public defender in Columbus, Ohio....

In addition, the project landing page has this additional account of what this resource now provides and hopes to help achieve:

The state profiles and related materials, which were prepared by recent law school graduates under the supervision of Professor Douglas A. Berman, provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. Unsurprisingly in the wake of Graham and Miller, there has been a significant increase in state-level litigation concerning lengthy prison terms, especially for juvenile offenders. The expectation is to have Professor Berman, in conjunction with the pro bono efforts other lawyers and aided especially by NACDL members and others who utilize this resource, revise and update these profiles regularly.

The profiles and charts are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.  The Supreme Court has repeatedly stressed that the Eighth Amendment’s “scope is not static [but] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958); state-level doctrinal and jurisprudential developments have thus always had heightened federal constitutional significance in this area of law.  Moreover, state policy-makers and state jurists have long understood that the Eighth Amendment sets only a minimum constitutional floor limiting only the most extreme punishment policies and practices: state lawmakers and judges can and should feel not merely free, but institutionally obliged, to consider developing their own distinct legal limits on unduly harsh sentencing terms based on distinct state-level requirements and needs.  The profiles posted here demonstrate that, even though there is some notable convergence in state-level proportionality doctrines, there are also some important variations and innovations concerning how states seek to protect its citizens from extreme or excessive criminal punishments.

I plan to discuss this web resource and the broader NACDL projectin a series of posts over the next few weeks and months.  For now, I just hope everyone will take a look at what we have posted (and perhaps begin commenting on what other materials might be usefully assembled and linked in this space).

May 23, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, May 07, 2013

Corrupt state supreme court judge and sister facing state sentencing in PA

As reported in this local article, headlined "Former Pennsylvania Justice Orie Melvin, sister face sentencing today," a high-profile corruption case in the Keystone State has finally reached the sentencing stage. Here are the basics:

Former Pennsylvania Supreme Court Justice Joan Orie Melvin and her sister and former court aide Janine Orie will be sentenced today by Allegheny County Common Pleas Judge Lester Nauhaus.

Prosecutors, in briefs filed before the court last month, are seeking incarceration for Ms. Orie Melvin and for her sister, who were convicted in February of misusing state-paid employees in Ms. Orie Melvin's campaign for a seat on the high court in 2003 and 2009. The sisters were found guilty of theft of services, conspiracy and misapplication of government funds. Janine Orie was also convicted of tampering with evidence and solicitation.

In their briefs, Ms. Orie Melvin's defense attorneys asked for probation, citing her dedication to public service, charitable work and her devotion to her family and the hardship incarceration would bring upon her family, including her six children and elderly father.

The sisters were charged with misapplication of government funds, theft of services and conspiracy for using the justice's former Superior Court staff and the legislative staff of a third sister, former state Sen. Jane Orie, to run campaigns for the Supreme Court in 2003 and 2009. Among the allegations were that staffers wrote speeches, drove Ms. Orie Melvin to campaign events and worked the polls....

At the time of the verdict, Matt Mabon, the jury foreman, explained that the jury couldn't reach a decision on the official oppression count, which was connected to the employment of Lisa Sasinoski, chief law clerk for the justice who was a witness. Because there were competing versions of whether she was fired or resigned, jurors couldn't reach a decision, he said.

Ms. Orie Melvin voluntarily stopped hearing cases before the high court when she was indicted a year ago, just hours before the court issued an order suspending her to "preserve the integrity" of the system. That same day, the Pennsylvania Judicial Conduct Board issued a recommendation that she be suspended with pay pending resolution of the criminal case, but in August, the Court of Judicial Discipline ruled that Justice Orie Melvin should not be paid during her suspension. Her salary at the time was $195,309.

Justice Orie Melvin fought unsuccessfully to have the charges against her dismissed, claiming that the Supreme Court itself should have jurisdiction over the allegations and not the criminal courts. A month after the verdict, on March 25, Ms. Orie Melvin announced, in a letter to Gov. Tom Corbett, that she would resign May 1 "with deep regret and a broken heart."...

Jane Orie is serving a 21/2- to 10-year prison term for using her staff for her own and Ms. Orie Melvin's campaigns and for forging documents to cover it up. She was found guilty in March 2012 of 14 of 24 counts against her, including ethics violations, theft of services, tampering with evidence and forgery.

Assistant district attorney Lawrence Claus is seeking consecutive sentences of incarceration in the aggravated range for Ms. Orie Melvin. The standard range is probation to 30 months, versus 48 months in the aggravated range. For Janine Orie, the standard range is probation to 27 months and up to 45 months in the aggravated range.

Related post:

UPDATE:  I am very pleased to see from this local article, headlined "Orie Melvin must write apology letters to Pennsylvania judges on photos of herself," that the sentence for the former judge includes a serious shaming sanction.  Here are the awesome basics, about which I will blog more in a future post:

Disgraced former Pennsylvania Supreme Court justice Joan Orie Melvin was sentenced today to house arrest followed by probation and ordered to send handwritten apologies on photographs of herself to every judge in the Commonwealth.

Allegheny County Court of Common Pleas Judge Lester Nauhaus sentenced Orie Melvin to three years' house arrest with two years' probation to follow.

A jury found Orie Melvin and her sister Janine Orie guilty on Feb. 21 of using judicial staff, as well as the staffers of another sister, former state Sen. Jane Orie, to work on the campaigns in 2003 and 2009 for the Pennsylvania high court.

Orie Melvin, 56, was found guilty on six of seven counts against her, including conspiracy, theft of services and misapplication of government funds. She resigned from the Supreme Court in March.

She must serve in a soup kitchen three times a week and can otherwise only leave her house for church.

Judge Nauhaus also ordered that an official county photographer take a photograph of Orie Melvin, on copies of which she must apologize to each of Pennsylvania's judges. She must pay for the cost. He ordered a deputy to handcuff her and the photo was taken of her in handcuffs.

Her sentence also includes $55,000 in fines, a prohibition on using the title "justice" during her term and handwriting apologies to former members of her campaign staff and that of her sister, former state Sen. Jane Orie, whom she made engage in illegal work.

May 7, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, April 26, 2013

Current NRA president vocally supporting (liberal? conservative?) mandatory minimum sentencing reform in Oregon

David Keene, a former chairman of the American Conservative Union who is now serving as president of the National Rifle Association, has this notable new commentary piece in the Salem Statesman Journal promoting sentencing reform in the Beaver State. Here are excerpts:

If you are an Oregon conservative, I hope you’re asking the same question the state’s bipartisan Commission on Public Safety asked: “Are taxpayers getting the most from the money we spend on public safety?”  Oregon has been a leader in effective corrections policy and boasts one of the lowest recidivism rates in the nation.

But the state is trending in the wrong direction when it comes to corrections spending, and much of the growth is due to mandatory minimum sentences that violate conservative principles.

Oregon criminal justice agencies predict that the state’s prison population will grow significantly over the next 10 years, and that the growth will be composed mostly of nonviolent offenders. The expected inmate surge is projected to cost Oregon taxpayers $600 million, on top of the biennial corrections budget of $1.3 billion.

The time is ripe for comprehensive criminal justice reform — not only supported by Oregon conservatives, but led by Oregon conservatives.

We believe all government spending programs need to be put to the cost-benefit test, and criminal justice is no exception.  Oregon has done a good job with this in the past but is slipping, by locking up more offenders who could be held accountable with shorter sentences followed by more effective, less expensive local supervision programs....

As conservatives, we also believe that a key to protecting our freedom is maintaining the separation of powers between the branches of government.  Such protection is lost when so-called “mandatory minimum” sentences force the judicial branch to impose broad-brush responses to nuanced problems.  Mandatory minimums were adopted in response to the abuses of a few judges decades ago, but have proven a blunt, costly and constitutionally problematic one-size-fits-all solution begging for reform.

The commission’s recommendations make modest prospective changes to mandatory minimums under Measures 11 and 57.  These measures have given prosecutors unchecked power to determine sentences by way of charging decisions, regardless of the facts of the case, or the individual’s history and likelihood of re-offending.

The reform package now before the Legislature would restore the constitutional role of the courts for three of the 22 offenses covered by Measure 11. Judges could still impose the stiffest penalties where necessary, but would regain discretion in sentencing appropriate offenders to shorter prison terms or less expensive, more intensive community supervision.

These sensible reforms will restore some checks and balances between prosecutors and the courts, allow prison resources to be focused on serious violent offenders and let taxpayers know that their public safety dollars are being spent more wisely.

April 26, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, April 22, 2013

Law and Contemporary Problems devotes March 2013 issue to sentencing reform around the world

Lcp1I am so very pleased to see that available on line here is the full March 2013 issue of the journal Law and Contemporary Problems, which is devoted to providing a "Global Perspective on Sentencing Reforms." The issue has a dozen articles, some of which are focused on state sentencing reforms, some of which are focused on federal sentencing reforms, and some of which are focused on sentencing reforms in the UK and Germany and elsewhere.  And all of the article look like must reads for sentencing geeks like me.  The Foreward to the Issue is authored by by Professor Oren Gazal-Ayal of the University of Haifa, and here are excerpts from the start and end of this introduction:

The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world.  While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics.

The effects of sentencing guidelines are highly contested and debated among scholars. As a result, there are a number of outstanding questions regarding the actual effects of such guidelines.  For instance, do sentencing guidelines transfer sentencing powers from the judiciary to prosecutors?  Should the guidelines bear some of the responsibility for the surge in prison population in the United States?  Has the lack of guidelines helped Germany constrain its prison population?  Do sentencing guidelines help mitigate the effects of punitive surge, or, on the other hand, do they facilitate the punitive effect of moral panics? Do guidelines effect racial and ethnic disparity in sentencing?  And how should guidelines be structured?...

The articles in this issue are the out come of a conference on sentencing reform that was held at the University of Haifa, Faculty of Law in February 2011.  The conference and this issue address the effects of sentencing reforms from a global perspective, relying mainly on empirical research.  The result is, as in most such attempts, incomplete. But we did come closer to answering some of the pressing questions — though only to find out that many new questions hide behind the answers to the old ones.  It seems that sentencing, a topic that has been the focus of academic debate for centuries, will continue to attract this much needed attention for centuries to come.

April 22, 2013 in Federal Sentencing Guidelines, Recommended reading, Sentencing around the world, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Thursday, April 18, 2013

"Justice Reinvestment in Action: The Delaware Model"

The title of this post is the title of this recently released policy brief from the Vera Institute of Justice.  This posting by Alison Shames of Vera provides a preview of the context and content of this report, and here are excerpts:

To date, more than a dozen states have participated in the Justice Reinvestment Initiative and worked with the Vera Institute of Justice, the Council of State Governments, or The Pew Charitable Trusts to analyze their state-specific data, identify the drivers of their corrections populations, and develop policies that aim to reduce spending and generate savings.  Once the policies are passed into law, these jurisdictions continue to receive technical assistance to help with implementation and ensure that the changes and investments achieve their projected outcomes.

What this means in practice is described in Vera’s new report, Justice Reinvestment in Action: The Delaware Model.  In 2012, after a year of analysis and consensus-building, Delaware Governor Jack Markell signed SB 226, introducing a sea change to the way the state justice agencies conduct business.  At every step in the process — pretrial, sentencing, prison, and supervision — SB 226 requires enhanced decision making based not only on professional judgment but also data analysis and empirically based risk and needs assessment instruments.  If implemented correctly, up to $27.3 million could be available for reinvestment over the next five years.

Continued and increased support for the Justice Reinvestment Initiative — in the form of technical assistance and seed funding — is critical to making these methods available to additional jurisdictions and ensuring that the states realize their projected savings and enhance public safety.  The future of the Justice Reinvestment Initiative looks bright, with President Obama including $85 million for this effort in his proposed 2014 budget, an increase of $79 million over last year's appropriation.

Implementing evidence-based practices and enabling justice agencies to integrate data analysis into their operations in an ongoing and sustainable way is hard work that takes time, patience, up-front investment, and strong leadership.  The Justice Reinvestment Initiative builds and develops the leadership and contributes to the initial investment. Delaware is just one of a dozen success stories.  The hard work continues.

Some older and more recent related posts:

April 18, 2013 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, March 28, 2013

Sixth Circuit panel grants habeas relief to Tennessee defendant sentenced in violation of Blakely

Sadly, I no longer get ample opportunities to blog about Blakely Sixth Amendment sentencing issue these days -- though I suppose this could change if (and when?) the Supreme Court give these issues a new boost via a big ruling in Alleyne in the near future.  Joyfully, this morning brings a little Blakely-era nostalgia via the Sixth Circuit's habeas grant in Lovins v. Parker, No. 11-5545 (6th Cir. Mar. 28, 2013) (available here).   This extended decision gets started this way:

After a Tennessee state court jury convicted petitioner Derry Lovins of second-degree murder, the state trial court judge made additional factual findings and enhanced Lovins’s sentence from twenty to twenty-three years based on those findings.  In this petition for a writ of habeas corpus under 28 U.S.C. § 2254, Lovins raises various claims of trial error and argues that the threeyear sentence enhancement was unconstitutional under the rule of Blakely v. Washington, 542 U.S. 296 (2004), because the sentence was enhanced based on facts that were not found by a jury.  The history of Lovins’s requests for relief in state court is byzantine, but the legal principles are not.  Lovins’s direct appeal was not final until almost three years after the Blakely decision, and therefore Blakely applies to his case under the clearly-established retroactivity rules of Griffith v. Kentucky, 479 U.S. 314 (1987), and Teague v. Lane, 489 U.S. 288 (1989).  For this reason, and because the procedural default doctrine does not bar our review of the merits of Lovins’s Blakely claim, we REVERSE the district court’s denial of relief, and we conditionally GRANT a writ of habeas corpus on the Blakely sentencing claim only.  We AFFIRM the district court’s denial of relief on all of Lovins’s other claims.

March 28, 2013 in Blakely in Appellate Courts, Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 26, 2013

New York Times editorial urges "Shrinking Prisons, Saving Billions"

While on the road, I missed this notable New York Times editorial from this past weekend.  Here are excerpts:

The mandatory sentencing craze that gripped the country four decades ago drove up the state prison population sevenfold — from under 200,000 in the early 1970s to about 1.4 million today — and pushed costs beyond $50 billion a year.  Until recently, it seemed that the numbers would keep growing. But thanks to reforms in more than half the states, the prison census has edged down slightly — by just under 2 percent — since 2009.  A new analysis by the Pew Charitable Trusts shows that the decline would have been considerably larger had the other states not been pulling in the opposite direction.

Over the last five years, 29 states have managed to cut their imprisonment rates, 10 of them by double-digit percentages.  California, which has been ordered by the Supreme Court to ease extreme prison crowding, led the way with a 17 percent drop, mainly by reducing parole and probation revocations and shifting custody of low-level offenders to counties.  Other states reduced prison terms for low-level offenses; diverted some offenders to community supervision; and strengthened parole programs, so that fewer offenders landed back in jail for technical violations like missed appointments or failed drug tests.

Even law-and-order states like Texas, which cut its imprisonment rate by 7 percent, have discovered that they can shrink the prison population without threatening public safety. Investing heavily in drug treatment and community supervision, Texas has avoided nearly $2 billion in spending on new prisons, while the crime rate has dropped to levels unseen since the 1960s.  But even as the national prison population has declined, 20 other states — including Arizona, Arkansas, Pennsylvania and West Virginia — keep sending more people to prison than need to be there....

States that lag in reducing their prison populations should swiftly embrace these kinds of reforms.

March 26, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Monday, March 25, 2013

New report assails Massachusetts sentencing and corrections policies and practices

CostofPrisonJPGThumb.ashxThis lengthy article from the Boston Globe discusses a big new forthcoming report highlighing failings in the sentencing and punishment systems in Massachusetts.  The article is headlined "Report slams state for lack of corrections reform: Crime down, prison costs up as study urges shorter sentences, focus on parole," and it gets started this way:

Despite steeply declining violent crime rates, the percentage of Massachusetts residents behind bars has tripled since the early 1980s, as the Commonwealth has clung to tough-on-crime laws that many other states have abandoned as ineffective, according to a study being released this week.

The 40-page report — endorsed by a coalition of prominent former prosecutors, defense attorneys, and justice officials — slams the state for focusing too much on prolonged incarceration, through measures such as mandatory minimum sentences, and for paying too little attention to successfully integrating prisoners back into society.

This is not just a social justice issue, the coalition argues, but a serious budgetary problem. The report estimated that policies that have led to more Draconian sentences and fewer paroles have extended prison stays by a third since 1990, costing the state an extra $150 million a year.

“It’s an odd set of numbers: crime going down while prison populations are still going up,” said Greg Torres, president of MassINC, the nonpartisan research group that commissioned the study. “What the report shows is that it’s a problem with the corrections systems front and back doors — sentencing and release.”

The study says Massachusetts, with its rising prison population, is heading in the opposite direction of several more traditionally law-and-order states — many of which have changed sentencing requirements, closed prisons, and cut costs. While other states have seen drops in incarceration in conjunction with falling crime rates, Massachusetts has seen the opposite.

In addition to the longer prison stays, Torres said, a reduction in post-release supervision has left Massachusetts with a recidivism rate higher than many other states, which in turn has sent more offenders back to prison. New data in the report show that six of every 10 inmates released from state and county prisons commit new crimes within six years. If the recidivism rate was cut by 5 percent, the report says, Massachusetts could cut $150 million from its more than $1 billion corrections budget.

Released in partnership with the newly formed grouping of law-enforcement officials, which is called Criminal Justice Reform Coalition, and Community Resources for Justice, a social justice nonprofit group, the report issues include a moratorium on the expansion of state prisons, reexamining sentencing guidelines, and expanding prerelease programs. “In the last 10 years we’ve learned a lot about what doesn’t work,” said John Larivee, chief executive of Community Resources for Justice and coauthor of the report.

One key to changing the state’s corrections system, the report’s authors stress, is building bipartisan consensus so neither side can later be accused of being soft on crime. “There’s more bipartisan common ground than you might expect,” said Wayne Budd, a Republican who is one of the reform coalition’s three co-chairmen.

In addition to Budd, the coalition is led by Kevin M. Burke, former state secretary of public safety, and Max D. Stern, president of the Massachusetts Association of Criminal Defense Lawyers.

UPDATE:  The full 40-page report, which is titled "Crime, Cost, and Consequences: Is it Time to Get Smart on Crime?," is now available via this link.

March 25, 2013 in Data on sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, March 12, 2013

Notable debate in Wisconsin over new state child porn sentencing law

Regular readers are quite familiar with (and perhaps even tired of) the long-running debates over federal child pornography sentencing laws. But, as detailed in this local article from Wisconsin, headlined "New law limits judges' power in child pornography cases," similar issues and debates arise in states sentencing systems, too.  Here are excerpts from the article, which strikes all the usual themes concerning the impact of mandatory minimum sentencing provisions:

A new law intended to toughen punishment for those convicted of viewing child pornography is drawing criticism from court officials. 

In April 2012, state lawmakers passed into law a mandatory, minimum three-year prison sentence for the felony offense.  Under a clause in the old law, judges had the discretion to order lesser penalties depending on the circumstances of the case.

Rep. Mark Honadel, R-South Milwaukee, who sponsored the mandatory penalty, testified that judges were letting too many offenders stay out of prison. “Sentences of less than 3 years were meant to be issued sparingly but became the standard,” Honadel said.

State Rep. Jeremy Thiesfeldt, R-Fond du Lac, said the law was conceived as a way to provide consistent sentences for all offenders who commit the same crime.  “Prior to this, sentences were all over the map. In a judicial sense, this probably wasn’t the best way to operate,” Thiesfeldt said. “Anytime you can establish standards of fairness, that’s a good thing.”...

Fond du Lac County Circuit Court Judge Peter Grimm, who has worn the hat of a public defender and district attorney before his election to the bench 22 years ago, says judges need discretion in sentencing to ensure the punishment fits the circumstances of the crime and the criminal.  “These mandatory minimum sentences fly in the face of current judicial training in which judges are trained to use evidence-based sentences designed to let judges make the best decision based on the facts of the case,” said Grimm. “Judges should not be locked into a minimum sentence because the legislature wants to be tough on crime.”

Dodge County District Attorney Kurt Klomberg has mixed feelings concerning the new law. “The law does take discretion away from the judges.  The judge is no longer able to go below the minimum (sentence) even in the face of strong mitigating evidence,” Klomberg said.  “The prosecutor now has greater power in the sentencing process as the decision on the charge will be a decision on the minimum allowable sentence after conviction.”

Klomberg also recognizes that the new law could impact settlement in cases involving child pornography.   “The defendants in these cases are often willing to plead to the charges in hopes of convincing the judge to go below the minimum,” Klomberg said.  “Under the new law, there is no possibility, and it may result in more trials.”

Defense attorney and former Fond du Lac County District Attorney Michael O’Rourke disagrees with a one-size-fits-all approach.   “Each case and each defendant are different and judges should have the ability to fashion a sentence that is good for both the community and aids defendants in rehabilitation,” O’Rourke said

The former prosecutor says judges need discretion in sentencing to ensure the penalty doesn’t outweigh the crime.   “The retired 63-year-old with no previous record who went to an adult porn site and was browsing and clicked onto a site that includes child pornography and then looks at a couple of pictures is different than the person who may already have a record, or who is actively seeking child porn,” O’Rourke said.  “Some peer-to-peer sites will download thousands of images in seconds onto a computer and the individual has seen none of them.  A judge should have the discretion to consider that.”

Wisconsin’s new child pornography law offers one exception to the minimum sentence, Thiesfeldt said.  Several cases involving teens trading inappropriate pictures by cell phone prompted lawmakers to include a clause in which a judge can issue lesser penalties if the offender is no more than four years older than the child depicted.

March 12, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Monday, March 04, 2013

A notable first echo from Ohio's notable new early release law

This local AP article, headlined "Five should be freed, state prisons chief says," reaffirms my belief that Ohio is now a dynamic and important "state to watch" concerning modern sentencing law and practices. Here are the interesting details from this latest story in the important Buckeye chapter of modern sentencing reform:

Ohio’s prison chief has recommended the release of five inmates who have served 80 percent of their time. The recommendations, if approved, would mark the first use of a 2011 law meant to help reduce the state’s inmate population and save the state money.

Director Gary Mohr of the Department of Rehabilitation and Correction cited several reasons, including good behavior, for his recommendations in letters to judges, who have the final say. He also considered information from prison employees who are go-betweens with the prisons, the courts and the inmates.

The five inmates — two women and three men — are serving time mostly for low-level felonies, although one was convicted of aggravated vehicular homicide.

Prisons spokeswoman JoEllen Smith said the 80 percent release option encourages inmates to act responsibly in prison “and is significant in our effort to better communicate with courts and assist the eligible, suitable offenders in having a successful transition back into our communities.”

The 2011 law aims to save the state millions of dollars by shrinking the number of inmates and reducing the number of offenders who might return to prison as repeat offenders. By several measures, the law and other efforts are working.

Ohio’s prison population remains under 50,000 inmates, a level not seen since 2007. Also, the state reported on Feb. 22 that the number of inmates returning to Ohio prisons upon release has hit a new low, a trend officials attribute to a focus on keeping inmates in the community and the involvement of groups that work with inmates before their release.

Other factors Mohr considered in making his recommendations included little or no rule-breaking during incarceration; a history of participating in prison programs; and development of a plan for dealing with the release.

Inmate Mary Clinkscales of Summit County, sentenced to a seven-year prison term in 2007 for possession of drugs, is a prime candidate for release because of her activities in prison, according to a Feb. 15 letter from a go-between, called a justice reinvestment officer.

Clinkscales had just one rule infraction while imprisoned — wearing shorts that were not part of her state-issued clothing — said Suzanne Brooks, the agency’s Cleveland-area justice reinvestment officer.

Clinkscales has attended literacy, anger-management and family-values skills classes, worked on community service projects making hats and scarves and is not a gang member, Brooks said. All these factors, plus no previous prison sentence, make her a suitable candidate for release, Brooks said.

I am tempted at this point to jokingly suggest that it would make sense to expect that someone named "Clickscales" would at some point get sent to prison for a drug offense. But this new story about prison officials actually actively advocating for the early release of a few prisoners is too serious and important to make the basis of jokes about surnames. And speaking of serious and important, the five prisoners likely to get released first via this Ohio early release program ought to seriously understand how very important it will be for other prisoners and so many others throughout Ohio for them to fulfil the faith that Ohio's prison chief has in them.

There are lots of potential reactions and commentary justified by this story and the operationalization of the 2011 Ohio law meant to help reduce the state's inmate population and save the state money. For now, I want to focus on an important political reality in this Ohio "smart on crime" development: both houses of the Ohio General Assembly and the executive branch of Ohio were all in firm Republican control when Ohio enacted the broad-based sentencing reform that is now enabling at least five offenders to likely obtain early release from their prison sentences. For this reason (and others), I think prison reform is right now much better understood, at least at the state level, as a matter of avoiding the (budget) red rather than a matter of political debate among the blue and red sides of the aisle.

March 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (15) | TrackBack

Thursday, February 28, 2013

You be the prosecutor: what state sentence should be sought for Joan Orie Melvin and her sister?

OriesRegular readers know that, often on the eve of a high-profile or unique sentencing proceeding, I urge folks to imagine being the judge and to propose a just and effective sentence for the defendant.  (See, e.g., prior "you be the judge" posts involving a rouge federal judge, a Ponzi schemer, the "Spam King", and an NBA star.)   Earlier this month, however, I generated a notable sentencing debate by changing the script via this post in which I encouraged folks to imagine being a federal prosecutor tasked with recommending a federal sentence for Jesse Jackson Jr. and his wife after it was clear that they intend to plead guilty to political corruption charges stemming from their misuse of campaign finance monies.  (See "You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?".)

As the title of this post reveals, I think it valuable to encourage readers again to think as a prosecutor about sentencing recommendations for political corruption.  But, as explained via this local story, "Judge sets May 7 sentencing for Joan Orie Melvin," the high-profile upcoming sentencing I have in mind is in state court and concerns a prominent state jurist and her sister after a trial conviction on multiple charges:

Allegheny County Judge Lester Nauhaus has scheduled suspended Supreme Court Justice Joan Orie Melvin's sentencing for May 7, the judge's staff said Wednesday.

A jury on Feb. 21 found Melvin, 56, of Marshall guilty on six criminal charges dealing with her misuse of state-paid employees to campaign for a seat on the high court in 2003 and 2009. The jury deadlocked on a seventh charge of official oppression.

The jury also convicted her sister and former staffer, Janine Orie, 58, of McCandless on six related charges.  Information on her sentencing date wasn't available.  A third sister, former state Sen. Jane Orie, 51, of McCandless is serving 2 1⁄2 years to 10 years in state prison on similar charges.

Obviously, the exact specifics of the crimes and the political positions of Jesse Jackson Jr. and Joan Orie Melvin are quite different.  Nevertheless, the underlying criminal behavior is arguably similar, as is the basic background of the offenders in relevant respects (e.g., both convicted defendants came from prominent political families, had a record of electorial success, and have considerable parental responsibilities).  Of course, Jackson Jr. and his wife are due to be sentenced in the federal no-parole system in which judges must impose exact sentences subject only to a 15% reduction for good prison behavior, whereas Melvin and her sister are to be sentenced in the Pennsylvania with-parole system in which judges general impose sentences in term of broad ranges.  Further, the Jacksons pleaded guilty and have expressed remorse, whereas Melvin and his sister both execised their trial rights and were found guilty on nearly all charges by a jury.

Differencea aside, I am eager to hear what readers think state prosecutors ought to be recommending as a sentence for Joan Orie Melvin and her sister.  Do you think they merit a longer or shorter sentence that what the Jacksons are facing?  Do you think the fact that state sentencing in Pennsylvania involves possibility of parole should lead to state prosecutor to urge for a much longer sentence in the Melvin case than federal prosecutors are urging in the Jackson case?  Do you disagree with my general notion that these crimes are in some ways comparable given that they were prosecuted in different jurisdictions (even though, I think, the feds could have prosecuted both cases)?

I raise these points not only because I see high-profile, white-collar sentences as provide a great setting for debating sentencing issues, but also because I think efforts to compare the sentencing treatment of seemingly similar defendants can often distract from the task of seeking to impose the most just and effective sentence for a singular defendant.  Ergo my interest in reader views on both the upcoming sentencing in this high-profile state political corruption case and how it should be compared to the upcoming sentencing of the Jacksons in federal court.

Recent related posts:

February 28, 2013 in Celebrity sentencings, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Saturday, February 16, 2013

Missouri dealing with pipeline sentencing issues after state changes to crack law

Federal sentencing practioners are well aware of the multi-year legal debate over the application of the new crack sentencing rules in the Fair Sentencing Act to pending cases.  That legal debate culminated in the Supreme Court's Dorsey ruling last tear, and lower federal courts are still sorting through the consequences.  Now I see from this local article, headlined "Crack cocaine sentencing law at crossroads in St. Louis case," that the Missouri now has the same kind of issue percolating as a matter of state sentencing law. Here is how this lengthy piece get started:

Two grams of crack cocaine could cost Jackie Murphy a lot more time in prison than many other defendants with identical drug cases awaiting trial.  That’s because Murphy, of St. Louis, was charged before the Missouri legislature acted last summer to bring the penalties for possessing crack cocaine more in line with those for possessing powder cocaine.

St. Louis Circuit Attorney Jennifer Joyce’s office has taken the stance that the new legislation was not intended to apply to cases that were pending at the time — only to charges going forward.  That means that Murphy, if convicted, could face five to 15 years in prison for his alleged possession in January 2009 of two to eight grams of crack cocaine, under the Class B felony of trafficking.  Someone accused of the same conduct after August 2012 would face far less: one day to seven years for the lesser charge of possession, a Class C felony.

It’s a dichotomy that Murphy’s public defender, Richard Kroeger, is calling “utterly wrong” in a motion arguing for a dismissal of the charges.  He’s asking St. Louis Circuit Judge John Riley to follow the reasoning of the U.S. Supreme Court, which in June settled the same debate on the federal level.  It was about two Illinois men whose cases were charged but not yet adjudicated when the Fair Sentencing Act of 2010 was enacted.  The high court said the new law did apply to federal cases in the “pipeline.”

Joyce’s office opposes the motion, arguing that state law is clear and that the federal cases are a different matter.  The office declined to make anyone available this week to answer questions about it.  Riley is expected to issue a ruling as early as next week. 

Those who advocated for the legislation here are watching carefully, saying this could be the test case for how the new law is applied across the state. It was unclear how many pending cases might be affected, but lawyers said “a number” were on hold pending the outcome.

Under the old Missouri law, trafficking more than 150 grams but less than 450 grams of powder cocaine was treated the same as trafficking at least two grams but less than eight grams of crack.

According to a 2011 report from the Sentencing Project, a nonprofit advocate on criminal justice policies, Missouri’s 75-to-1 ratio for weight-based penalties on crack versus powder cocaine was the highest disparity in the nation.  It was adopted in 1989, according to the report, after a significant increase in cocaine-related deaths and at the tail end of a nationwide crack epidemic.  The old federal law had a 100-to-1 disparity.  Illinois, with no difference, was not mentioned in the report.

The Washington-based organization, and other advocates for equalizing crack and powder cocaine sentencing, argue that the old laws in Missouri and elsewhere are discriminatory because the heaviest penalties fell on minority and poor offenders, who have tended to choose crack.  And in the last decade or so, lawmakers have begun to agree. Missouri is one of five states, among 13 with disparities, that have since moved either to close the gap or eliminate it, according to the organization.

Nicole Porter, director of advocacy for the Sentencing Project, said she was not aware of any legislation that included provisions to be applied retroactively, or specified whether it would apply to pending cases.  Silence on the issue in the 2010 federal revision produced two years of uncertainty, until the U.S. Supreme Court issued its ruling in the consolidated cases of Dorsey v. United States and Hill v. United States.  Porter added that Murphy’s case was the first she’d heard of on the state level that asks the courts how the pipeline cases should be handled. “That litigation that is going on in Missouri is really new territory,” she said.

February 16, 2013 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, January 29, 2013

New Sentencing Project report on 2012 state statutory sentencing developments

I just received an e-mail promoting a notable new report just released by The Sentencing Project.  Here is the full text of the e-mail, signed by Marc Mauer, which includes a link to the report:

I am pleased to share with you a new report from The Sentencing Project, The State of Sentencing 2012: Developments in Policy and Practice, by Nicole D. Porter.  The report highlights reforms in 24 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety.  The report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice.  Highlights include:

  • Mandatory minimums:  Seven states — Alabama, California, Missouri, Massachusetts, Kanas, Louisiana, and Pennsylvania — revised mandatory penalties for certain offenses,  including crack cocaine offenses and drug offense enhancements.
  • Death penalty: Connecticut abolished the death penalty, becoming the 17th state to do so.
  • Parole and probation reforms:  Seven states — Colorado, Delaware, Georgia, Hawaii, Louisiana, Missouri, and Pennsylvania — expanded the use of earned time for eligible prisoners and limited the use of incarceration for probation and parole violations.
  • Juvenile life without parole:  Three states — California, Louisiana, and Pennsylvania — authorized sentencing relief for certain individuals sentenced to juvenile life without parole.
I hope you find this publication useful in your work.  The full report, which includes a comprehensive chart on criminal justice reform legislation, details on sentencing, probation and parole, collateral consequences of conviction, juvenile justice and policy recommendations, can be found online here.  I’d encourage you to be in touch with Nicole D. Porter, Director of Advocacy, at nporter@sentencingproject.org to discuss how we can support your efforts in the area of state policy reform.

January 29, 2013 in Data on sentencing, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, January 23, 2013

More notable talk of more notable sentencing reforms (and a sentencing commission) in Texas

For many years and for many reasons, Texas has been among the most interesting and dynamic modern sentencing reform states.  And this new article from the Austin American-Statesman, headlined "Prison reform outlook improves with business group’s involvement," details why the past, present and future of sentencing in the Lone Star State merits close attention from all sentencing fans. Here are snippets from this new article:

Now, with an influential business lobby group and a leading conservative organization leading the charge, some legislative leaders are wondering whether this year’s 140 days of lawmaking could rival the 2007 session.  That year, lawmakers approved a historic $240 million initiative to provide addiction treatment and rehabilitation programs for convicts rather than building new prisons, a gamble that has since paid off — and become a national model.

This year, just two weeks into the legislative session, there are active discussions about expanding a variety of community-based corrections programs with state funds, changing state laws to rehabilitate low-level drug offenders in programs rather than in expensive state prisons, and even to ease laws that limit ex-convicts’ employment.

“The Legislature this year has an opportunity to take the next step,” said Marc Levin, director of the Center for Effective Justice at the conservative Texas Public Policy Foundation.  Levin helped bring in the support of the Texas Association of Business to push the smarter-on-crime agenda.   “The current system is a drag on our vitality as a state. The more people we can get into less costly treatment and rehabilitation programs that are successful, the better off we’ll be,” he said.

Bill Hammond, a former legislator who is president of the Texas Association of Business, agrees: “The current system costs too much. We’re looking at this from a business standpoint, that some changes are good public policy.”  Even state Sen. John Whitmire, a Houston Democrat who is an architect of many of the previous reforms, says he is hopeful that meaningful reforms could be in the offing, thanks to an unexpected new ally....

Proposals sparking the most discussion so far include:

• Allowing more low-level offenders caught with small amounts of certain drugs to be sentenced to local rehabilitation and treatment programs instead of prison, and letting shoplifters and other petty criminals serve their sentences under community-based supervision. ...

• Making prostitution a misdemeanor offense, rather than a low-level felony. The change could eventually remove several hundred women from state lockups and place them in local rehab programs that have been highly successful elsewhere. The difference in cost: $15,500 a year for a state cell vs. $4,300 for a bunk in a community program.

• Creating a new commission of judges, prosecutors and other officials to review sentencing practices across the state.  The panel was recommended by a recent government-efficiency report by the Legislature Budget Board.  If adopted, it would be the first time the state’s criminal laws have been reviewed for streamlining since 1993....

• Allowing dozens of terminally ill and bedridden offenders to be more easily paroled, a move that could save the state millions of dollars in prison medical costs.  At $700 million a year, the medical tab is one of the fastest-growing items in the state budget. The 10 sickest convicts in 2011 cost taxpayers nearly $2 million....

Crime victims and police groups that have campaigned to increase criminal penalties say they will be watching for any changes that might be too soft on crime.  But some acknowledge that discussion of successful, less costly alternatives to prison is timely. “As long as public safety remains the most important priority, I’m sure there’s room for improvement,” said Kat Peterson, a Dallas resident who been a frequent fixture at legislative hearings over the past decade — both as a onetime victim of violent crime and an advocate for her cousin who is serving a long sentence in a state prison.  “Even a good system can be reformed to make it better.”

I often look to Grits for Breakfast when I want to know more about the latest comingsand goings on Texas criminal justice issues, and Grits had had these recent notable posts on this front:

January 23, 2013 in Criminal Sentences Alternatives, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Talk in Vermont of requiring judges to consider directly costs of sentence

This local article, headlined "Sentencing in Vt: Factor in cost?," reports on an interesting sentencing debate now taking place in the Green Mountain State.  Here are highlights:

As part of an effort to curb rising corrections budgets, the Senate is contemplating legislation that would require Vermont judges to consider the cost of a sentence before handing down jail time.  Sen. Dick Sears, chairman of the Senate Judiciary Committee, said it would be up to individual judges to decide whether to allow the information to influence their sentencing decisions.  But with the annual cost of incarcerating an inmate in Vermont at $45,000, Sears said judges at least ought to be aware of the financial consequences of their decisions.

“I’m not suggesting we shouldn’t lock somebody up for 20 years,” Sears said Tuesday. “But if we do, it’s going to cost us $650,000, in today’s dollars, and we need people in the system to be asking themselves: Is that a good investment?”

Requiring judges to consider the cost of their sentences is the most controversial provision in a bill that seeks broader reforms to the sentencing process. The bill would provide judges information about the average sentences for certain crimes — a measure aimed at remedying the disparity in sentencing across county lines. The bill also would institute a risk assessment for offenders, before sentencing, as a means of helping judges evaluate the merits of various options.

Bram Kranichfeld, the new executive director of the Department of State’s Attorneys and Sheriffs, said cost should have no bearing on sentencing.  “You can end up with unfair results, you can end up with arbitrary results, if a judge is required in every case to take cost into account,” Kranichfeld said.

He said state’s attorneys support efforts to track the costs of various sentencing options, and to come up with metrics that might help determine how “successful” various sentences are.  But he said issues of cost should be used to shape policy, not to influence the length of a sentence in a specific case.

“If a judge was otherwise going to give someone life in prison for a horrible crime, would it be appropriate to give them less than that solely because of the cost?” Kranichfeld said. “On lower-level cases, it’s the same sort of issue. Would it be appropriate for a judge to give someone 20 days in jail if he or she thought 30 days in jail was appropriate and equitable, simply because the 10 extra days is going to cost more?”

Sears said the issue of price shouldn’t play a role in sentencing for violent crimes.
“But it maybe should have some impact on some crimes that are nonviolent in nature, which is an area we’ve been working over the past eight years trying to lower recidivism,” Sears said.  “OK, I can put this baggy-pant kid in jail for awhile and it’s going to cost me $75,000, or I can put him in drug treatment and it’ll cost me $10,000. If he’s been breaking into cars and stealing stuff, you need a punishment. But with such limited resources now, maybe cost ought to be a factor in what you want to do with him.”...

Defender General Matt Valerio, who oversees a public defense system that represents the vast majority of defendants in criminal cases, said lawyers in his office have in the past sought to use cost as a factor in sentencing.  In every case, Valerio said, they have “roundly been … shot down.”

Valerio said cost should be a factor in sentencing, especially in instances when courts are weighing retribution versus rehabilitation.  “If you feel like you want to take out society’s anger with a situation on a person, rather than getting them a rehabilitative sentence, then we ought to know what that’s going to cost so you know how much you’re going to spend for society to impose its punishment,” he said.

January 23, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, October 28, 2012

Post-modern sentencing reforms: restricting judicial discretion to be harsh

The story of "modern" sentencing reforms in the 1980s and 1990s was mostly about legislatures enacting sentencing statutes and guidelines that greatly limited judicial discretion to be lenient in response to relatively serious offenses.  But, as this local story from California highlights, what I will call "post-modern" sentencing reforms now involve legislatures enacting sentencing statutes and guidelines that greatly limit judicial discretion at sentencing to be harsh in response to relatively less serious offenses.  The story from California is headlined "State's prison overhaul changes sentencing structures but leaves judges with little discretion," and it starts this way:

Since the overhaul of California's state prisons in October 2011, nearly 90 people convicted of felony crimes were sent to Santa Cruz County Jail instead of prison under the new sentencing guidelines established by AB 109.

With prison realignment, state officials have carved out a number of types of felony crimes that no longer carry the option of a prison sentence. Instead, offenders convicted of these crimes serve their time locally, be it in county jails or through alternative programs such as drug treatment programs and electronic monitoring.  It's also meant more people are getting placed on probation.

The new structure gives judges limited discretion when it comes to sentencing, said Judge John Salazar, presiding judge of Santa Cruz County Superior Court.  When it comes to sentencing for crimes designated as jail-eligible, judges have the discretion to impose two types of sentences to County Jail.  Previously, felony offenders were more likely sent to prison.

Judges may commit the offender to County Jail, or they can impose what's called a split sentence, with a portion served in jail and the rest on mandatory supervision.  Eighty-eight people who would have been sentenced to prison before realignment now have been given County Jail sentences, said Jim Hart, the county's chief deputy of corrections.

Crimes that now carry potential jail, not prison sentences, are typically those considered "triple nons" -- nonviolent, nonserious and nonregisterable sex offenses.  These include many drug offenses and property crimes.  Before AB 109, these offenders would have been sent to prison.

How the actual jail portion of a sentence is served is left up to the jail staff to decide. Although judges can recommend or authorize certain types of alternative incarceration programs, Salazar said.  Once a person is handed a jail sentence, it is the jail staff that determines if and whether that individual can serve it in a way other than being locked up in jail 24 hours a day.

As noted in prior posts here and here, the latest sentencing reforms in Ohio have also restricted judicial discretion to send certain offenders to prison (and, not surprisingly, it is now prosecutors rather than defense attorneys complaining about these new restrictions on judicial sentencing discretion).  Similarly, a number of other states also dealing with overcrowded and costly prisons have likewise created new sentencing structures to urge or require sentencing judges to look at alternatives to prison.

This new story from California highlights one especially notable (and not always recognized) aspect of these post-modern reforms: in addition to restricting judicial discretion, these reforms have often shifted on-the-ground discretion from both judges and prosecutors now to corrections officials and thsoe who create and operate prison alternatives.  Whether this kind of shift will be good for justice and public safety in the long run will be important to watch in the years and decades to come.

October 28, 2012 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, October 12, 2012

NPR piece spotlights Ohio success with sentencing reforms and reducing recidivism

I am very pleased to see that my state is getting well-deserved national attention for its recent success with sentencing and corrections reforms.  Specifically, NPR's Talk of the Nation had this lengthy segment earlier this week on Ohio's reforms under the heading "Programs Keep Inmates From Returning To Prison." Here is how the NPR site sets up the discussion:

States pay tens of thousands of dollars a year to house each inmate. Some states are rethinking the way they spend that money. In Ohio, sentencing reform, increased support for former inmates, and rehabilitation and education programs for current prisoners have helped keep prisoners from returning.

October 12, 2012 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, October 11, 2012

You be the sentencing judge: what is a fitting sentence for abusive "Super Glue" mom?

This AP article, headlined "Mom Who Glued Toddler's Hands Faces Sentencing," reports an on-going sentencing proceeding in Texas state court. The story prompts the challenge in the title of this post and my broader interest in readers' sentencing instincts in response to a high-profile case of child abuse:

A mother who admitted to beating her 2-year-old daughter and gluing the child's hands faces anything from probation to a life in prison for her crimes.

Elizabeth Escalona's sentencing hearing will continue Thursday, a day after she pleaded for leniency, saying she was no longer the "monster" who committed the attack.  "I will never forgive myself for what I did to my own daughter," said Elizabeth Escalona, who pleaded guilty in July to felony injury to a child.

Police say Escalona lost her temper last year with Jocelyn Cedillo over potty training problems.  Escalona beat and kicked Jocelyn before sticking her hands to an apartment wall using an adhesive commonly known as Super Glue.  The child was hospitalized for days.

Judge Larry Mitchell has a wide range in choosing Escalona's sentence: Anything from probation to life in prison is possible.  Prosecutors are asking for a 45-year sentence.

Defense attorney Angie N'Duka asked Escalona what she thought of photos that prosecutors presented earlier this week showing her daughter's injuries.  "Only a monster does that," Escalona responded. N'Duka then asked Escalona whether she thought she was a monster. "When that happened, I was," Escalona replied.

Escalona asked Mitchell for an opportunity to show she had changed, adding that she would accept any sentence as fair. "I want everybody to know I'm not a monster," Escalona said. "I love my kids." Escalona admitted to hitting and kicking her daughter but said she didn't recall why she did it.

Prosecutors have portrayed Escalona as an unfit mother with a history of violence.  They have played recordings in which Escalona as a teenager threatened to kill her mother.  They said she was a former gang member who started smoking marijuana at age 11.

Jocelyn suffered bleeding in her brain, a fractured rib, multiple bruises and bite marks, and was in a coma for a couple of days. Some skin had been torn off her hands, where doctors also found glue residue and white paint chips from the apartment wall, witnesses testified.

Escalona's family has acknowledged their dismay and anger following the attack, but both her mother and sister asked the judge for leniency.  "I wanted an explanation," said Margaret Escalona, her sister. "I wanted to know what happened.  I wanted to beat my sister up."

Ofelia Escalona, Elizabeth's mother, said her daughter hit her as a child, but she also said Elizabeth was abused growing up.  Both Ofelia and Margaret Escalona argued that Elizabeth needed more help and not prison.  "Her being taken away won't help any," Margaret Escalona said.

Counselor Melanie Davis testified Wednesday that she believes from the conversations she has had with Elizabeth Escalona that the mother loves her five children, one of whom was born after the attack.  Davis said she has been counseling Escalona since June, nine months after her arrest.

I find this story interesting for many reasons: (1) despite modern structured sentencing reforms, here a sentencing judge still has unfettered discretion to impose a sentence anywhere from probation to life in prison; (2) though not asking for life, prosecutors' request for a 45-year prison term suggests they state think defendant should not be locked up until she is very old (and no longer able to have more kids); (3) the only man mentioned in this story is the sentencing judge (though I am inclined to assume at least one of the prosecutors is a man); (4) Texas has a procedure for jury sentencing, and it is interesting to speculate whether we think a fitting sentence would be more likely to emerge from a multi-member jury deliberating about these matters rather than from a single sentencing judge.

October 11, 2012 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, October 03, 2012

New alliance of Florida business and tax groups talking up incarceration alternatives

Sja_logo_newAs reported in this local article, headlined "Smart Justice: Reducing Recidivism Reduces Taxpayer Costs" a notable group of Florida groups are coming together as "The Florida Smart Justice Alliance" to work on sentencing reform issues in the Sunshine State. Here are the details:

A coalition of tax watchdogs and business lobbying outfits is working toward legislation aimed at reducing criminal recidivism and thus saving taxpayer dollars.

The Florida Smart Justice Alliance, which includes Associated Industries of Florida and Florida TaxWatch, says it is seeking alternatives to incarceration that would be more effective and eventually cut some of the $2.1 billion a year price tag on the incarceration of around 100,000 inmates.

The group has already started meeting with judges, sheriffs and others in the criminal justice pipeline as it prepares for a Dec. 12-14 summit in Orlando.  The goal of the summit will be to reach consensus on providing assistance in an institutional rehab program -- a program that could be offered to the state Legislature.

“Maybe in the short-run penny wise, but in the long-term it is pound foolish not to give people the treatment and rehab that is available,” AIF President Tom Feeney said Tuesday during a media conference at the Florida Press Center in Tallahassee.  “One of the things I like that the Alliance is doing -- I’m not an expert in any of these matters -- is that they are studying what works and what doesn’t work in 49 other states and in fact around the free world.”

Mark Flynn, president and chief executive officer of Florida Smart Justice Association, said one proposal to establish a trio of assistance institutions across the state for nonviolent drug offenders could save Florida $20 million through reducing the cost of incarceration and the risk of those individuals returning to prison.  “Our goal is to identify productive alternatives to incarceration on the front end and better transitioning efforts for those prisoners who are being released back into their communities,” Flynn said.

A big hurdle may be the governor’s office. Last April, Gov. Rick Scott vetoed a carefully crafted bill by Sen. Ellyn Bogdanoff that was intended to help people in prison deal with their drug addiction.

The bill (HB 177), backed 40-0 by the Senate and 112-4 in the House, would have offered modest reform by moving a small group of drug-addicted inmates into a treatment program once they serve half their time. They would still have been in custody but not behind bars. Scott said the effort would have broken the state law that requires a prisoner to serve 85 percent of his or her sentence.

“Justice to victims of crime is not served when a criminal is permitted to be released early from a sentence imposed by the courts,” Scott wrote in his veto message. “This bill would permit criminals to be released after serving 50 percent of their sentences, thus creating an unwarranted exception to the rule that inmates serve 85 percent of their imposed sentences.”

There are many notable aspects of the development of this new alliance in Florida, which is yet another manifestation of the ways in which new political coalitions are forming due to the huge the costs of mass incarceration in an era of tight budgets. And I cannot help but find remarkable and telling that the first person quoted in this local story is Tom Feeney, whom I assume is the same person with that name who, when serving in Congress, sponsored the so-called Feeney Amendment to the 2003 PROTECT ACT which sought to limit drastically judicial departure authority under the guidelines (way back in the pre-Booker days).

October 3, 2012 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, September 30, 2012

Ohio reducing prison population, but judges still unhappy with sentencing reforms

This new AP article, headlined "Fewer Ohio inmates, but judges want law fixed," highlights that sentencing judges dislike limits on their discretion even when these limits require lower sentences. Here are excerpts:

A law that has helped Ohio reduce its inmate population is being criticized as too restrictive by judges seeking more leeway in sentencing.

Enacted a year ago this Sunday, the law aims to save the state millions of dollars by shrinking the number of inmates and also by reducing the number of offenders who might to return to prison as repeat offenders. One result of the change is that Ohio’s inmate population has remained under 50,000 since January, levels not seen since 2007.

Ohio is also one of several states making significant progress reducing the number of repeat offenders, according to a national report released last week. Kansas, Michigan, Mississippi, Ohio, Oregon, Texas and Vermont all saw the number of repeat offenders drop between 2005 and 2007, according to the study by Washington-based Council of State Governments’ Justice Center.

One way Ohio has lowered its inmate population over the past year is by prohibiting judges from sentencing first-time offenders to prison if the cases fall into a series of categories, such as convictions involving low-level felonies or if the crime was not a violent offense.

But judges aren’t always happy about that. In some cases, they can’t find local treatment facilities or aren’t aware of them, or they say the offender has a history of skipping out of halfway houses or similar settings. In other cases, judges make it clear they think prison is warranted, despite the law....

Thanks to the law, the number of offenders convicted of property, drug possession and drug trafficking crimes decreased from 37 percent of total admissions to 29 percent of admissions, according to prison records. In addition, the number of offenders admitted each month for failing to pay child support has dropped from 39 per month in 2011 to 31 per month from January through August, records show.

Prisons director Gary Mohr called the first-year results promising but said much remains to be done. “If I believed that we were going to stop at these numbers, I’d be pretty darn disappointed,” Mohr said in an interview last week. “This gives us a sense of hope that we can continue to get a whole lot better.”

Ohio has about 49,500 inmates in 28 prisons built to hold about 39,000 prisoners. A year ago, the state estimated the inmate population would rise to 54,000 in four years without action. The goal is to shrink Ohio’s prison population to about 47,000 inmates by 2015.

This similar local article, headlined "Sentencing reform: Fewer convicts going to prison," provides this additional evidence that folks have varied perspectives on Ohio's recent sentencing reform efforts:

With promises of big taxpayer savings and fears of more strain on local governments, state lawmakers and the governor overhauled Ohio’s sentencing laws last year. The goal was to send fewer nonviolent, low-level felons to prison, and shorten the length of time other prisoners would spend behind bars, and save tens of millions of dollars in the process.

The law took effect a year ago today. As predicted, fewer felons are going to prison and more are being put on probation, both around the state and in Stark County. What those changes mean depends on who you ask:

— “We’re pleased with the results of House Bill 86 thus far and we see those results even increasing as we move forward the next couple of fiscal years,” said Linda Janes, Ohio Department of Rehabilitation and Correction chief of staff.

— “We have not seen what I would call earth-shattering changes,” said Stark County Common Pleas Judge Lee Sinclair.

— “I think it’s awful,” said Stark County Common Pleas Judge Frank Forchione, repeating an opinion he has voiced from the bench.

September 30, 2012 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Wednesday, September 19, 2012

Should sentencing juries receive a state's sentencing guidelines?

The question in the title of this post is prompted by this interesting story from Virginia, which is headlined "Hampton juror asks judge to lower 128-year prison sentence." Here are excerpts which discuss jury sentencing practices in Old Dominion:

A jury in March recommended that Robert Via Jr. spend the rest of his life in prison. Their decision seemed definitive: 128 years and a day, for an armed home invasion.

But one juror is now saying that because they were forced under the law to render the sentence without guidelines, a judge should shorten the majority of Via's time behind bars. "I believe the jury may have arrived at a different set of verdicts had we more information on Virginia's sentencing requirements and processes," the juror wrote in an Aug. 12 letter to Hampton Circuit Judge Christopher Hutton.

Those concerns highlight a larger issue in the state: Jurors do not get state sentencing guidelines, and judges rarely question jurors' recommendations.

The guidelines, implemented in 1995, were an attempt to level the sentencing field when the state ended parole.... But unlike judges, jurors don't have access to the guidelines and usually sentence above them, research shows....

Virginia is one of six states that allows jurors to recommend sentences after finding someone guilty. In most states, the jury decides guilt or innocence but the sentence is determined by the judge.

In a 2004 study published in the Vanderbilt Law Review, Nancy J. King and Rosevelt L. Noble examined jury sentences in Virginia, Kentucky and Arkansas. The authors found that juror sentences in Virginia were not consistent with those given by judges. "Average sentences after jury trial were more severe than average sentences after bench trial or guilty plea, with many offenses showing significant differences," the authors write.

Jury sentences for defendants convicted of drug offenses averaged from 4.5 years to 14 years longer than sentences by judges, the study found. "In Virginia, the jury lacks both information and power, and is routinely bypassed by defendants who prefer the guideline sentences that they can obtain by exercising their state constitutional right to plead guilty," the authors wrote.

Defense attorneys often warn their clients about the stakes of taking a jury trial because of the sentence disparity. "Any time a defendant requests a trial by jury, you have to factor in the risk of a jury sentencing your client," defense attorney Tim Clancy said. "It's a huge factor in making the decision of whether to have a judge or a jury hear a client's case. It's a huge consideration."...

Criminal cases being tried by juries are rare across the state. Most cases are settled through guilty pleas or bench trials, according to the Virginia Criminal Sentencing Commission's 2011 annual report. Only 1.5 percent of criminal cases were resolved by jury trials in 2011. Eighty-nine percent of criminal cases were adjudicated by guilty pleas and 10 percent by bench trials....

When a jury decides on a sentence, it is only a recommendation to the judge. In most cases, however, judges will impose what the jury recommends. Defense attorney Ron Smith says that judges rarely go against what the jury wants in a criminal trial....

In 2011, judges modified 19 percent of jury sentences, according to the commission's report. Judges can lower a jury's recommended sentence, but not raise it. Under the law a judge must impose the minimum, but can suspend all or part of the time. They can also decide to give the defendant probation.

September 19, 2012 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (12) | TrackBack

Monday, September 17, 2012

Jerry Sandusky's sentencing scheduled for October 9, 2012

This Reuters article reports on the latest scheduling information for what seems likely to be a closely watched, but somewhat unsuspenseful, forthcoming state sentencing in Pennsylvania.  here are the basics:

Convicted child molester Jerry Sandusky will face sentencing immediately after an October 9 hearing to determine if the former Penn State assistant football coach is a sexually violent predator, a judge said on Monday.

The hearing will be held at the Centre County Courthouse in Bellefonte, Pennsylvania, Judge John Cleland said in an order published online. A sentencing conference will be held October 8.

Sandusky, 68, was convicted in June of 45 counts of child molestation as part of a scandal that shook college football and focused national attention on child sex abuse. He faces up to 373 years in prison for sexually abusing 10 boys over a period of 15 years, including while he was the highly regarded defensive coordinator at powerhouse Pennsylvania State University.

Designating Sandusky a sexually violent predator would put him under stringent reporting requirements if he is put on probation after release from prison. The court will consider the recommendation of the state Sexual Offenders Assessment Board. Normally a determination hearing takes place the same day as sentencing, but the scale of Sandusky's case could mean sentencing would take place later.

Dan Filler, a law professor at Philadelphia's Drexel University, said Cleland had options in sentencing, but the outcome would be the same for Sandusky. Cleland could have the 45 sentences run one after the other or at the same time. He also could impose the maximum or minimum under sentencing guidelines, and take Sandusky's lack of prior convictions into consideration, Filler said.

"In the end, however, judges are very politically sensitive in cases like this. Whatever the guidelines call for, I believe the judge will impose a sentence that is functionally life without hope of parole," he wrote in an email before the hearing date was set.

I will be truly shocked if Sandusky does not get a sentence that ensures he will die in prison. The only real suspense will be how the state judge in this case chooses to structure the sentence and whether, like the federal sentencing judge in the Bernie Madoff case, considers maxing out the sentence in order to try to "send a message" to both the victims and society concerning this kind of offense.

September 17, 2012 in Celebrity sentencings, Scope of Imprisonment, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (9) | TrackBack

Sunday, September 02, 2012

New York claims success with prison shock camps

As detailed in this AP article, New York is citing to evidence of success at reducing its offender recidivism rate through the use of shock incarceration programs.  Here are the details:

New York corrections officials say they have graduated 45,000 inmates from military-style boot camp over the past 25 years and data shows that most don't commit new crimes. Established around the country in the 1980s as an alternative to regular prison, the so-called "shock camps" got mixed reviews and several states dropped them.  New York kept three camps going with a model they say is effective and cutting down the rate of repeat offenses and saving money.

Only prisoners convicted of nonviolent crimes who volunteer and sign contracts go to the camps.  Many drop out or are kicked out before completing the six months of mandatory physical training, manual labor, education and drug counseling, scrutinized by drill instructors.  The prize for completing the course is a shortened sentence....

Some observers say the lower recidivism is predictable because it's a self-selected and motivated group of inmates who prove capable of finishing the program.  They also note that the lower recidivism, far lower in the first year, starts rising after that.  "Our view is that it's somewhat mixed, but there are definitely some positive elements to it," said Jack Beck, who directs the visiting project for the Correctional Association of New York.  "The regimentation is so different from what these individuals will experience on the outside, it's very hard to translate those experiences into something when they return home."

New York has 1,087 inmates at the shock camps, Moriah in the Adirondacks, Lakeview in western New York's Chautauqua County, and Monterey in the Finger Lakes region.  All are minimum-security without fences and set in rural areas.  Before the state shut the Summit camp southwest of Albany in 2011 to save money, there were 1,284 offenders in the shock program.  The system has some 56,000 inmates in 60 correctional facilities, down from a peak 71,600 in 1999.

Revisions in drug sentencing laws and diverting more inmates to treatment programs have reduced the available pool for shock programs.  Initially intended for prisoners up to age 23, they have been opened to inmates up to age 50 with less than three years left on their sentences.

Corrections spokeswoman Linda Foglia said they estimate having saved $1.34 billion because of the shortened incarceration for 45,135 shock graduates, including 3,355 females, over the past 25 years.  Meanwhile, New York data show 7 percent of those who completed the program from 2007 to 2009 returned to prison within one year, compared to 19.9 percent of all inmates released from state prison.  Recidivism data after three years show a 26.4 percent return rate for those who completed shock in 2007, compared with 42 percent for all releases that year....

A 2003 National Institute of Justice research review said boot camps proliferated nationally starting in the late 1980s, with 75 adult programs by 1995.  Five years later, one-third had closed and there was a 30 percent population drop in remaining state programs. While "almost universally successful improving inmates' attitudes and behavior during the course of the program," the review said those changes did not translate to reduced recidivism, with limited exceptions.  Boot camps that lasted longer, like New York's six months, and offered more intensive treatment and post-release supervision, did better.

As this article highlights, slowly but surely we are learning more about what kinds of correctional programs are more likely to reduce recidivism among various offender populations.

September 2, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Friday, August 31, 2012

Drawing process lessons from high-profile sentencing after college killing in Virginia

The high-profile homicide case emerging from the University of Virginia, in which George Huguely was convicted of second-degree murder in the beating death of his former girlfriend Yeardley Love, culminated in a Virginia state sentencing proceeding yesterday.  This extended ABC News report provides considerable sentencing details:

A Virginia judge today sentenced convicted University of Virginia murderer George Huguely V to 23 years in prison for the beating death of his ex-girlfriend Yeardley Love.  He will serve 23 years, plus one concurrent year for the grand larceny conviction, ruled Judge Edward Hogshire of Charlottesville Circuit Court.  He also ordered three years of probation after the 23....

Huguely's attorneys told reporters outside the court that they plan on appealing both the conviction and the sentence. "Our client, Mr. Huguely, remains optimistic," the attorneys said.

In a statment, the Huguely family wrote, "Today is a sad day for our family.  The past twenty-eight months have been the most difficult in our lives.  We love George and will always support him."  They maintained that Love's death was "an accident with a tragic outcome," and said that, "Yeardley will always be in our hearts."

Love's mother and sister, Sharon and Lexie Love, also released a statement in which they thanked prosecutor David Chapman and everyone who helped them through the past two years.  "We find no joy in others' sorrow.  We plan to work diligently through the One Love Foundation to try and prevent this from happening to another family," they wrote....

Huguely's attorneys asked a Virginia judge today to consider reducing the former University of Virginia athlete's sentence to 14 years in prison, from the 26 years recommended by a jury.  The judge cut the recommended sentence by three years.

The prosecution and defense both called multiple witnesses to the stand for the sentencing, including former classmates, Huguely's aunt and a priest.

Rev. Joseph Scordo said he has visited Huguely in jail every Monday for a half-an-hour for the past two years. Scordo described Huguely as "spiritual" and said the two spoke freely about "faith, prayer, life, religion, family, UVA, sports." Scordo said he has never asked Huguely about the night of Love's death, but that Huguely frequently says, "I want the truth. I want the truth to come out. I have a lot of hope in Him, in God."

The prosecution's witnesses painted Huguely as a violent young man who struggled with his temper and alcohol. Huguely's former lacrosse teammate Gavin Gill told the court that he vividly remembered waking up to Huguely on top of him in bed, beating him up after he had left a party the previous night with Love.

The jury recommended 25 years in prison for the second-degree murder conviction and one year for a grand larceny conviction resulting from an allegation that Huguely stole Love's laptop computer.

Huguely's defense attorneys wrote that sentencing guidelines for convictions of second-degree murder and grand larceny "considering Mr. Huguely's negligible criminal record" recommend a sentence of 14 to 23 years.  "Beyond the obviously tragic outcome, there are no facts in this case sufficiently aggravating to warrant a sentence above the low end of the guidelines or a sentence inconsistent with those imposed across the Commonwealth for like offenses," the defense wrote.  Court documents filed on Wednesday by Huguely's defense team include numerous personal accounts from family and friends praising Huguely and asking for leniency

Huguely killed Love, 22, in a drunken rage in May 2010 just weeks before she was to graduate from the University of Virginia.  Both Huguely and Love were star lacrosse players on the university's elite teams.  Huguely faced six charges, including first-degree murder, in Love's death.

Over 10 days in court, jurors listened to testimony from nearly 60 witnesses and saw a video of Huguely's police statement, graphic photos of Love's battered body, and read text and email correspondence between the two.  Though charged with first-degree murder, the judge gave jurors a menu of lesser charges they could from: second-degree murder, voluntary manslaughter and involuntary manslaughter.

Neither the prosecution nor the defense denied that Huguely was in Love's room the night of her death and was involved in an altercation with her.  They differed on the severity of the encounter and whether Huguely was directly and intentionally responsible for Love's death.

Though I am not well-versed in Virginia sentencing procedures, it is my understanding that the sentencing judge here could not have increase Huguely's sentence above what was recommended by the jury, but rather only had authority to reduce the sentence. And it appears that advisory sentencing guidelines (including, I believe, an evidence-based risk assessment instrument) provided recommendations to the judge (along with arguments from the parties, of course) as to whether and how much he might reduce the sentence below the jury's recommendation.

Without making any judgments on the Huguely sentencing outcome, I have to express great respect and confidence in the Virginia state sentencing process because of all the perspectives that get brought to bear.  The jurors and judge who heard all the trial evidence along with additional sentencing information both have a significant and independent role in the process, and the final sentence is informed not only by arguments from the litigants but also by advisory guidelines reflecting systemic and evidence-based judgments by the Virginia's elected officials and its expert sentencing commission.  At least on paper and as a fair and transparent process, this seems like a pretty darn good sentencing decision-making system all around.

August 31, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (11) | TrackBack

Wednesday, July 25, 2012

Massachusetts Gov asked to sign mixed sentencing reform bill

As reported in this local article, headlined "While called ‘balanced,’ sentencing bill lacks provisions sought by Gov. Patrick," the governor of Massachusetts now has on his desk a dynamic state sentencing reform bill.   Here are the details:

Advocates on all sides of the crime and sentencing debate continue to speak out about the habitual offender and sentencing reform bill on Gov. Deval Patrick’s desk, urging him to sign it, veto it or send it back to the Legislature with amendments.

In a WBZ-AM radio interview Monday night, Les Gosule, an activist who has pressed for a habitual offender law for about a decade following the rape and murder of his daughter Melissa, said parties disgruntled over issues left unaddressed by the legislation can pursue those initiatives anew in the next session beginning in January.  “I want the pen,” Gosule said, urging Patrick to put his signature on the bill.

Patrick has until Sunday to act on the legislation and proponents and opponents of the bill are mindful that formal legislative sessions end for the year at midnight next Tuesday. Patrick can sign the bill, veto it, or send it back with amendments.  An eleventh hour amendment from Patrick would force lawmakers to either deal immediately with the amendment or risk seeing their work on the bill go for naught....

While the bill last week cleared the House 139-14 and the Senate 31-7, its supporters and opponents since then have raised concerns about it, with some arguing it lacks crime-fighting tools sought by law enforcement and others arguing that it takes discretionary power in sentencing away from judges and would lead to prison overcrowding.

Among other provisions, the bill reduces mandatory minimum sentences for non-violent drug offenders and eliminates parole eligibility for certain violent offenders upon their third conviction.

While supporters say the bill represents the “balanced” approach Patrick called for, the legislation appears to lack key policies Patrick highlighted in his State of the State speech in January, giving extra weight to the idea that the bill might be returned with amendments....

The lack of judicial discretion in the bill’s habitual offender initiative drew criticism outside the capital Tuesday. “Who has discretionary power? The prosecutor,” said Rev. George Walters-Sleyon, who was joined by other Boston clergy and Boston City Councilor Charles Yancey in front of the Shaw Memorial on Boston Common Tuesday morning.  He said black people and Latinos comprise less than 17 percent of the state’s population but more than 55 percent of those serving time behind bars....

Criticism has also been levied from state prosecutors.  Six of the state’s 11 district attorneys signed onto a letter Friday criticizing the bill for leaving out provisions that would strengthen gun laws, and for including “no supervision” of drug traffickers released into the community.

July 25, 2012 in Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, June 17, 2012

Kansas prisoners still serving long terms based on now-reformed "old" sentencing laws

This interesting new article from the Wichita Eagle reports on how and why hundreds of offender sentenced before Kansas sentencing reform two decades ago are still serving prison terms that would have been much shorter under the reformed law.  This piece is headlined "Hundreds of ‘old law’ Kansas inmates serving longer sentences," and it begins this way:

Rick Redford will go before the Kansas Prisoner Review Board this month after serving more than 27 years in prison. Had he been sentenced under today’s laws, he probably would have been released years ago.   “Here I am doing 27 years just to see the parole board,” Redford said in a telephone interview from the Norton Correctional Facility.  “Had I been convicted in 1993, I would have been out in 2005 without even seeing a parole board.”

Redford, whose most serious conviction was for aggravated kidnapping, is one of hundreds of Kansas prison inmates serving sentences for crimes committed before July 1, 1993, the day the Kansas Sentencing Guidelines took effect.  Many of these “old law” inmates are serving sentences that would have been much shorter under today’s law.

“I’m on my 26th year right now,” said Sherman Wright, who figures he would have been released after 15 years had he been sentenced under the guidelines as they became law in 1993.  Instead he’s serving a 69-year-to-life sentence on burglary and aggravated robbery convictions that will keep him in prison at least until 2024.

Wright’s sister, Cynthia Crawford, said her brother’s crimes were relatively minor compared with those committed by some of his fellow inmates.  “He never used any kind of a weapon; he never hurt anybody,” she said.  “I don’t understand how they can let him sit in there and rot like that when people keep going in for killing or raping kids and getting right back out.  I know that hurts him to see people come and go, come and go, for crimes that were way past his.”

The 1992 Sentencing Guidelines Act, which was designed to eliminate racial and geographical disparities in sentencing, established a sentencing system based on the type of crime committed and the defendant’s previous criminal history.  The guidelines generally called for shorter sentences for property crimes and longer ones for crimes of violence.

The Kansas Legislature decided to apply the guidelines retroactively to more than 2,000 inmates who were serving time for relatively minor offenses.  But more than 4,000 inmates convicted of more serious crimes were left to serve out their original sentences. Many of those inmates had more than one conviction and were serving multiple sentences consecutively.  Some who had prior convictions saw their sentences doubled or even tripled under what was known as the Habitual Criminal Act.

The sentencing guidelines law in effect created two classes of prison inmates, but the Kansas Supreme Court ruled in 1994 that it did not violate any inmate’s right to equal protection of the law, guaranteed by the 14th Amendment.  Today, about 400 of those “old law” inmates remain behind bars.

June 17, 2012 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Friday, June 15, 2012

"Sensible Sentences for Nonviolent Offenders"

The title of this post is the headline of this New York Times editorial.  Here are excerpts:

The enormous strain prison costs put on state budgets has led some conservatives and liberals to do something sensible together.  Democrats and Republicans in several states are pushing to reform criminal justice policies based on strong evidence that imprisoning nonviolent offenders for ever longer terms adds huge costs with little benefit to public safety.

Texas closed a prison last year, for the first time in its history, after reducing its prison population by steering nonviolent drug offenders to treatment and adopting other policies. South Carolina and Mississippi eased eligibility standards for parole.  South Carolina, Alabama, Arkansas and other states have raised the dollar amount that triggers felony property crimes....

Offenders released in 2009 from state prisons served, on average, almost three years behind bars, nine months longer than those released in 1990.  A new study by the Pew Center on the States reports that additional time in prison costs states more than $10 billion. More than half the extra cost was for nonviolent offenders.

The study also found that earlier release for nonviolent offenders would not have jeopardized public safety based on an analysis of arrest and incarceration data from Florida, Maryland and Michigan.  Risk could be further reduced with better prerelease planning and strong community supervision.  After decades of lengthening sentences, state leaders are realizing that it is possible to cut sentences and prison spending without harming the public.

June 15, 2012 in Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (19) | TrackBack

Thursday, June 14, 2012

"Scores in N.C. are legally 'innocent,' yet still imprisoned" due to federal gun laws

Med-topperThe folks at USA Today have this fascinating and fantastic front-page feature story concerning the many persons currently serving federal prison time for gun possession crimes that are no longer crimes in the wake of an important recent Fourth Circuit ruling.  The headline of this post is drawn from the headline of the USA Today piece, which is today's must-read and includes these excerpts:

A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.  Many of them don't even know they're innocent.

The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun.  The problem is that none of them had criminal records serious enough to make them felons under federal law.

Still, the Justice Department has not attempted to identify the men, has made no effort to notify them, and, in a few cases in which the men have come forward on their own, has argued in court that they should not be released.

Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime.  And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.

"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."

These cases are largely unknown outside the courthouses here, but they have raised difficult questions about what, if anything, the government owes to innocent people locked in prisons.   "It's been tough," said Ripley Rand, the U.S. attorney in Greensboro, N.C. "We've spent a lot of time talking about issues of fundamental fairness, and what is justice."

It's also unusual.  Wrongful conviction cases are seldom open-and-shut — usually they depend on DNA or other new evidence that undermines the government's case, but does not always prove someone is innocent.  Yet in the North Carolina gun cases, it turns out, there simply were no federal crimes.

Using state and federal court records, USA TODAY identified 23 other men who had been sent to federal prison for having a firearm despite criminal records too minor to make that a federal crime.  Nine of them remain in prison, serving sentences of up to 10 years; others are still serving federal probation.  The newspaper's review was limited to only a small fraction of cases from one of the three federal court districts in North Carolina.

Federal public defenders have so far identified at least 39 others in additional court districts, and are certain to find more. And prosecutors have already agreed to drop dozens of cases in which prisoners' convictions were not yet final.

Some of the prisoners USA TODAY contacted — and their lawyers — were stunned to find out that they were imprisoned for something that turned out not to be a federal crime. And their lawyers said they were troubled by the idea that innocence alone might not get them out. "If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't," said Debra Graves, an assistant federal public defender in Raleigh. "I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."...

Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.

To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.

Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.

For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.

Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.

The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.

No one yet knows precisely how many people were incorrectly convicted for having a gun, but the number could be significant. Rand, the U.S. attorney in Greensboro, estimated that more than a third of the gun cases his office prosecuted might be in question, either because the defendants didn't commit a federal crime at all by possessing a gun or because their sentences were calculated incorrectly.  "We're going to be addressing this for a while," he said.

The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.

But the next question has proved far harder to answer: What should the government do with the prisoners whose legal cases were already over?

Whether [these legally innocent defendants] can go home depends on federal laws that put strict limits on when and how people who have already been convicted of a crime can come back to court to plead their innocence.

Those laws let prisoners challenge their convictions if they uncover new evidence, or if the U.S. Supreme Court limits the sweep of a criminal law.  But none of the exceptions is a clear fit, meaning that, innocent or not, they may not be able to get into court at all. Federal courts have so far split on whether they can even hear the prisoners' cases.

Habeas corpus — the main legal tool for challenging unlawful detention — is currently ill-suited to such cases, said Nancy King, a Vanderbilt Law School professor who has studied the issue.  Habeas mainly safeguards people's constitutional right to a fair process, she said, and the problem is that "saying, 'I'm innocent' isn't, on its face, that type of constitutional claim." Still, she said, "innocent people should be able to get out of prison."

Prosecutors don't disagree, though most said they are not convinced the law allows it. Rand, the U.S. attorney in Greensboro, said he is "not aware of any procedural mechanism by which they can be afforded relief," though he said lawyers in his office "have not been pounding on the table" to keep the men in jail.

"No one wants anyone to spend time in jail who should not be there," said Thomas Walker, the U.S. attorney in Raleigh.  That's why he said prosecutors were quick to dismiss charges that were pending when the 4th Circuit ruled.  But cases in which convictions are already final "are in a totally different posture and require us to follow the existing statutory habeas law," he said.

But there's also an even more basic question: How would the prisoners even know?... [C]ourts have asked public defenders to seek them out. Those lawyers said the Justice Department should do more to help, because it has better information and more resources, an assertion prosecutors dispute.

"We're doing it with our hands tied," said Eric Placke, a federal public defender in Greensboro.  "I appreciate the compelling considerations they have to deal with.  But I do think in cases of actual innocence that it would be nice, to say the least, if they would be a little more proactive."  Placke and other public defenders said the reviews have been difficult because they often have limited access to records from the men's prior convictions, which has left them to hunt through files in courthouses across the state.

This story is sad, telling and remarkable for so many reasons, and it also seems to present a situation in which I might argue that some kind of habeas relief (or even federal clemency) is constitutionally required under the Fifth and/or Eighth Amendment. 

As a matter of substantive due process and/or cruel and unusual punishment, I do not think the federal government should be constitutionally permitted to keep someone imprisoned for an act that all now seem to agree was not a federal crime.  Though the statutory habeas rules might preclude relief, I think the continuing constitutional violation of on-going imprisonment of an innocent person demands some kind of immediate remedy.  Clemency is often mentioned by the Supreme Court and commentators as the fail-safe in these kinds of cases, and I hope that this important USA Today piece will at the very least make the folks in the executive branch take this constitutional problem even more seriously.

June 14, 2012 in Clemency and Pardons, Gun policy and sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (52) | TrackBack