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

Wednesday, May 30, 2012

NJ prosecutors now say that Ravi should have received five years in webcam spying case

The New York Times has this fascination new report on some "post-game" (but in-court) comments by various players involved in the sentencing of Dharun Ravi, the former Rutgers student convicted of multiple crimes in the high-profile New Jersey webcam spying case.  The article is headlined "Judge Defends Sentence Imposed on Ex-Rutgers Student," and here are excerpts:

A judge on Wednesday offered a spirited defense of the sentence he imposed on Dharun Ravi, the former Rutgers University student convicted of using a webcam to spy on his roommate having sex with another man.  Mr. Ravi was convicted in March of all 15 charges against him, and sentenced last week to 30 days in jail, 300 hours of community service, three years’ probation and $10,000 to be paid to a fund that helps victims of bias crimes....

No matter how “unconscionable” Mr. Ravi’s conduct, Judge Glenn Berman said in a court hearing Wednesday, “I can’t find it in me to remand him to state prison that houses people convicted of offenses such as murder, armed robbery and rape. I don’t believe that that fits this case. I believe that he has to be punished, and he will be.”...

Prosecutors had been visibly angry when Judge Berman declared the sentence last week, and almost immediately appealed it, arguing that the convictions demanded more time behind bars.  But their memo before sentencing had not indicated how much time they wanted Mr. Ravi to serve, only that they did not believe he had to serve the maximum sentence of 10 years that was attached to the most serious charges, of bias intimidation.

On Wednesday, the lead prosecutor elaborated on that, telling Judge Berman that she thought a five-year sentence would have been appropriate.  The statutes governing bias crimes recommend 5 to 10 years in prison, but the presumption is of a seven-year sentence, and the law allows judges to depart from those guidelines if there are mitigating factors or if they believe a heavier sentence would be an injustice.

Mr. Ravi appeared in court to tell the judge that he would report to begin serving his sentence Thursday. That sentence has been on hold pending the appeal from the prosecution, and one from the defense, which has argued that it was denied evidence, including a suicide note, that could have helped Mr. Ravi at his trial.

While Mr. Ravi was not charged with causing Mr. Clementi’s suicide, many defenders argued that he was essentially — and unfairly — convicted of it.  Judge Berman received more than 100 letters and e-mails before sentencing, most of them arguing against a harsh punishment for Mr. Ravi. On Wednesday, he said that his in-box continued to fill up with complaints about the sentence he imposed.

He defended the sentence as the product of great consideration.  “It was anything but spontaneous,” he said.  Judge Berman noted that the punishment was harsher in some ways than what was recommended in a report by the corrections official who did the presentencing interview with Mr. Ravi.  That report recommended against any incarceration or fine.  It also recommended more extensive community service, and that Mr. Ravi tour schools to discuss his experience, and bias crimes.

But the judge, who last week lambasted Mr. Ravi for not once apologizing for what he had done, said he would not be an “appropriate” spokesman against bias, given that he had barely acknowledged any wrongdoing.  Mr. Ravi, 20, issued a statement late Tuesday to offer his first clear apology for his crimes, saying, “I accept responsibility for and regret my thoughtless, insensitive, immature, stupid and childish choices.”

While last week the judge reserved his harshest words for Mr. Ravi, on Wednesday he engaged in a tense exchange with Julia McClure, the first assistant prosecutor for Middlesex County, saying he would not comment on her appeal, but accusing her of “smirking” as he explained his reasoning for the sentencing.  Ms. McClure argued there were no mitigating factors against a harsher sentence for Mr. Ravi; the judge said if that were the case, then she should be recommending the standard seven years, not five.

In reaching his sentence, the judge said he started with the agreement the prosecution had made with Molly Wei, who had viewed the webcam with Mr. Ravi the first night he spied on Mr. Clementi and his boyfriend.  Ms. Wei was spared prosecution in an agreement to testify against Mr. Ravi, agreeing to three years’ probation and 300 hours of community service.

Believing that “consistency breeds fairness,” the judge said he gave Mr. Ravi community service and probation. “It wasn’t my deal; it was the state’s,” he said.  But because Mr. Ravi’s “involvement was more extensive,” he said, he had added to the sentence, ordering Mr. Ravi to undergo counseling in “alternate lifestyles.”  That phrase had angered gay rights advocates who believe it is derogatory; the judge said he took the language from the plea bargains the prosecution offered Mr. Ravi before he went to trial.

In addition, the judge said, because Mr. Ravi had been convicted of tampering with a witness (trying to get Ms. Wei to lie to the police) and with evidence (trying to cover up his Twitter and text messages) he sentenced him to 30 days in jail....

Over all, Judge Berman said the sentence “was fair, it was appropriate, and most of all, it was consistent.”  He argued that the legislature intended prison terms to be attached to bias crimes that were “assaultive or violent in nature,” not invasion of privacy.  “I also know his age,” Judge Berman added, calling it a mitigating factor.  “I believe justice compels me to deviate from the guidelines,” he said.  However, Judge Berman also said, “I admit that people can disagree with me.”

Recent related posts on Ravi case:

May 30, 2012 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, May 26, 2012

Effective op-ed on "Plantations, Prisons and Profits" in Louisiana

26blow-ch-articleInlineThe title of this post is drawn from the headline of this new op-ed in the New York Times by Charles Blow, which gives justified praise to the recent local newspaper series about Louisiana's criminal justice system (which I have spotlighted in prior posts here and here).  Here are excerpts:

“Louisiana is the world’s prison capital.  The state imprisons more of its people, per head, than any of its U.S. counterparts.  First among Americans means first in the world. Louisiana’s incarceration rate is nearly triple Iran’s, seven times China’s and 10 times Germany’s.”

That paragraph opens a devastating eight-part series published this month by The Times-Picayune of New Orleans about how the state’s largely private prison system profits from high incarceration rates and tough sentencing, and how many with the power to curtail the system actually have a financial incentive to perpetuate it.

The picture that emerges is one of convicts as chattel and a legal system essentially based on human commodification.... [S]ome facts from the series:

  • One in 86 Louisiana adults is in the prison system, which is nearly double the national average.

  • More than 50 percent of Louisiana’s inmates are in local prisons, which is more than any other state.  The next highest state is Kentucky at 33 percent.  The national average is 5 percent.

  • Louisiana leads the nation in the percentage of its prisoners serving life without parole.

  • Louisiana spends less on local inmates than any other state.

  • Nearly two-thirds of Louisiana’s prisoners are nonviolent offenders.  The national average is less than half.

In the early 1990s, the state was under a federal court order to reduce overcrowding, but instead of releasing prisoners or loosening sentencing guidelines, the state incentivized the building of private prisons. But, in what the newspaper called “a uniquely Louisiana twist,” most of the prison entrepreneurs were actually rural sheriffs. They saw a way to make a profit and did. It also was a chance to employ local people, especially failed farmers forced into bankruptcy court by a severe drop in the crop prices.

But in order for the local prisons to remain profitable, the beds, which one prison operator in the series distastefully refers to as “honey holes,” must remain full.  That means that on almost a daily basis, local prison officials are on the phones bartering for prisoners with overcrowded jails in the big cities.

It also means that criminal sentences must remain stiff, which the sheriff’s association has supported. This has meant that Louisiana has some of the stiffest sentencing guidelines in the country.  Writing bad checks in Louisiana can earn you up to 10 years in prison.  In California, by comparison, jail time would be no more than a year.

There is another problem with this unsavory system: prisoners who wind up in these local for-profit jails, where many of the inmates are short-timers, get fewer rehabilitative services than those in state institutions, where many of the prisoners are lifers.  That is because the per-diem per prisoner in local prisons is half that of state prisons. In short, the system is completely backward....

Louisiana is the starkest, most glaring example of how our prison policies have failed.  It showcases how private prisons do not serve the public interest and how the mass incarceration as a form of job creation is an abomination of justice and civility and creates a long-term crisis by trying to create a short-term solution.   As the paper put it: “A prison system that leased its convicts as plantation labor in the 1800s has come full circle and is again a nexus for profit.”

Related recent posts:

May 26, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (21) | TrackBack

Monday, May 21, 2012

Dharun Ravi sentenced to only 30 days in jail in NJ webcam case

As reported in this ABC News piece, "former Rutgers student Dharun Ravi was sentenced to 30 days in jail by a New Jersey judge today for spying on his roommate's gay tryst."  Here are more about the basics:

"I do not believe he hated Tyler Clementi," Judge Glenn Berman told the court.  "He had no reason to, but I do believe he acted out of colossal insensitivity."... "I heard this jury say, 'guilty' 288 times--24 questions, 12 jurors.  That's the multiplication," Berman said. "I haven't heard you apologize once."

The prosecution, which sought a significant prison term, indicated it will appeal the judge's sentence.

Before the judge's sentencing, Ravi's mother delivered an emotional plea for leniency during which she and her son both broke into tears. At the end of her plea, Ravi's mother threw herself on her son, sobbing and hugging him.

In March, Ravi was found guilty of a bias crime for using a webcam to spy on his gay roommate Tyler Clementi.  The family of Tyler Clementi, the Rutgers freshman who committed suicide after his roommate broadcast a gay sexual tryst, bitterly asked the judge today to sentence Ravi to prison time.

Clementi's father, Joseph Clementi, told the judge, "One of Tyler's last actions was to check Ravi's Twitter page" and noted that his son checked his roommate's Twitter page 37 times before leaving the Rutgers campus and driving to the George Washington Bridge where he jumped to his death....

Ravi was convicted of invasion of privacy, bias intimidation, witness tampering and hindering arrest, stemming from his role in activating the webcam to peek at Clementi's date with a man in the dorm room on Sept. 19, 2010.

I think this sentence is a bit light, all things considered, but the many direct and indirect consequences of the prosecution and convictions that Ravi has endured and will continue to face (including potential deportation) arguably is greater punishment than any jail term.  These varied criminal justice consequences ought also help in some small way deter others from similar acts of "colossal insensitivity," though nobody should really expect this case (or any punishment for Ravi) to really impact the tendency of young people to be insensitive sometimes.

I have no idea if NJ state prosecutors have much chance of getting a longer sentence through an appeal; perhaps some local NJ lawyers might report if they do.  Especially in these lean budget times, I do not quite see why an appeal here would be a wise use of limited resources unless prosecutors can identify some legal error in the sentencing process for Ravi.

May 21, 2012 in Celebrity sentencings, Collateral consequences, Offense Characteristics, State Sentencing Guidelines | Permalink | Comments (12) | TrackBack

Sunday, May 20, 2012

Extreme sentence in warning shot case drawing more criticisms of mandatory minimums

I am pleased to see that the extreme mandatory minimum sentence given to Marissa Alexander in Florida is continuing to generate controversy and criticism in the MSM.  This AP article, headlined "Critics hit mandatory-minimum law after woman gets 20 years in prison for firing warning shot," highlights some of the buzz:

Marissa Alexander had never been arrested before she fired a bullet at a wall one day in 2010 to scare off her husband when she felt he was threatening her.  Nobody got hurt, but this month a northeast Florida judge was bound by state law to sentence her to 20 years in prison.... Because she fired a gun while committing a felony, Florida’s mandatory-minimum gun law dictated the 20-year sentence.

Her case in Jacksonville has drawn a fresh round of criticism aimed at mandatory-minimum sentencing laws.  The local NAACP chapter and the district’s African-American congresswoman say blacks more often are incarcerated for long periods because of overzealous prosecutors and judges bound by the wrong-headed statute.  Alexander is black.

It also has added fuel to the controversy over Florida’s “stand your ground” law, which the judge would not allow Alexander to invoke.  State Attorney Angela Corey, who also is overseeing the prosecution of shooter George Zimmerman in the Trayvon Martin case, stands by the handling of Alexander’s case.  Corey says she believes Alexander aimed the gun at the man and his two sons, and the bullet she fired could have ricocheted and hit any of them.

At the May 11 sentencing, Alexander’s relatives begged Circuit Judge James Daniel for leniency but he said the decision was “out of my hands.” “The Legislature has not given me the discretion to do what the family and many others have asked me to do,” he said.

The state’s “10-20-life” law was implemented in 1999 and credited with helping to lower the violent crime rate.  Anyone who shows a gun in the commission of certain felonies gets an automatic 10 years in prison.  Fire the gun, and it’s an automatic 20 years.  Shoot and wound someone, and it’s 25 years to life.

Critics say Alexander’s case underscores the unfair sentences that can result when laws strip judges of discretion.  About two-thirds of the states have mandatory-minimum sentencing laws, mostly for drug crimes, according to a website for the Families Against Mandatory Minimums advocacy group. “We’re not saying she’s not guilty of a crime, we’re not saying that she doesn’t deserve some sort of sanction by the court,” said Greg Newburn, Florida director for the group.  Rather, he said, the judge should have the authority to decide an appropriate sanction after hearing all the unique circumstances of the case....

Victor Crist was a Republican state legislator who crafted the “10-20-life” bill enacted in 1999 in Gov. Jeb Bush’s first term.  He said Alexander’s sentence — if she truly did fire a warning shot and wasn’t trying to kill her husband — is not what lawmakers wanted.  “We were trying to get at the thug who was robbing a liquor store who had a gun in his possession or pulled out the gun and threatened someone or shot someone during the commission of the crime,” said Crist, who served in the state House and Senate for 18 years before being elected Hillsborough County commissioner....

“The irony of the 10-20-life law is the people who actually think they’re innocent of the crime, they roll the dice and take their chances, and they get the really harsh prison sentences,” Newburn said. “Whereas the people who think they are actually guilty of the crime take the plea deal and get out (of prison) well before.  So it certainly isn’t working the way it is intended.”...

Newburn says Alexander’s case is not an isolated incident, and that people ensnared by mandatory-minimum laws cross racial barriers.  In central Florida, a white man named Orville Lee Wollard is nearly two years into a 20-year sentence for firing his gun inside his house to scare his daughter’s boyfriend.  Prosecutors contended that Wollard was shooting at the young man and missed.

He rejected a plea deal that offered probation but no prison time.  Like Alexander, he took his chances at trial and was convicted of aggravated assault with a firearm.  Circuit Judge Donald Jacobsen said he was “duty bound” by the 10-20-life law to impose the harsh sentence. “I would say that, if it wasn’t for the minimum mandatory aspect of this, I would use my discretion and impose some separate sentence, having taken into consideration the circumstances of this event,” Jacobsen said.

Recent related posts:

May 20, 2012 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (9) | TrackBack

Wednesday, May 16, 2012

Continued great reporting on the toughest state in incarceration nation

As noted in this post from this past weekend, the New Orleans Times-Picayune is published a huge eight-part series on the severity of punishment and prison overcrowding in the Bayou state. This series is titled "Louisiana Incarceration: How We Built the World's Prison Capital," and every piece in the series merits a full read. Today's installment is headlined "Prison sentence reform efforts face tough opposition in the Legislature," and here are a few excerpts from the outset:

Even as prison populations have strained the state budget and prompted fiscal conservatives to join liberals in calling for changes, the political calculus in Louisiana has evolved slowly since a series of tough sentencing laws in the 1970s, '80s and '90s bloated the state's inmate counts.

If anything, the balance has remained tilted toward law enforcement. After a prison-building boom in the 1990s, Louisiana sheriffs now house more than half of inmates serving state time -- by far the nation's highest percentage in local prisons. Their financial stake in the prison system means they will lose money if sentences are shortened. They typically house the same drug pushers, burglars and other nonviolent offenders who will be the likely targets of any serious efforts to change the system.

"The three easiest votes for a legislator are against taxes, against gambling and to put someone in jail for the rest of their lives," said state Sen. Danny Martiny, R-Kenner, a veteran policymaker who has led the judiciary committees in both the House and Senate.

This lengthy piece goes on to detail how challenging it can be to forge a needed political consensus for any ameliorative sentencing reforms.

May 16, 2012 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, May 12, 2012

Another obvious mandatory sentencing injustice in Florida "warning shot" case

As reported in this CNN story, headlined "Florida woman sentenced to 20 years in controversial warning shot case," another high-profile shooting case in Florida has produced a different kind of criminal justice controversy.  Here are the details:

Saying he had no discretion under state law, a judge sentenced a Jacksonville, Florida, woman to 20 years in prison Friday for firing a warning shot in an effort to scare off her abusive husband.

Marissa Alexander unsuccessfully tried to use Florida's controversial "stand your ground" law to derail the prosecution, but a jury in March convicted her of aggravated assault after just 12 minutes of deliberation.

The case, which was prosecuted by the same state attorney who is handling the Trayvon Martin case, has gained the attention of civil rights leaders who say the African-American woman was persecuted because of her race.

After the sentencing, Rep. Corrine Brown confronted State Attorney Angela Corey in the hallway, accusing her of being overzealous, according to video from CNN affiliate WJXT. "There is no justification for 20 years," Brown told Corey during an exchange frequently interrupted by onlookers.  "All the community was asking for was mercy and justice," she said.

Corey said she had offered Alexander a plea bargain that would have resulted in a three-year prison sentence, but Alexander chose to take the case to a jury trial, where a conviction would carry a mandatory sentence under a Florida law known as "10-20-life." The law mandates increased penalties for some felonies, including aggravated assault, in which a gun is carried or used.

Corey said the case deserved to be prosecuted because Alexander fired in the direction of a room where two children were standing. Alexander said she was attempting to flee her husband, Rico Gray, on August 1, 2010, when she picked up a handgun and fired a shot into a wall.  She said her husband had read cell phone text messages that she had written to her ex-husband, got angry and tried to strangle her.

She said she escaped and ran to the garage, intending to drive away.  But, she said, she forgot her keys, so she picked up her gun and went back into the house. She said her husband threatened to kill her, so she fired one shot. "I believe when he threatened to kill me, that's what he was absolutely going to do," she said.  "That's what he intended to do. Had I not discharged my weapon at that point, I would not be here."...

A jury convicted Alexander in March and Judge James Daniel denied her request for a new trial in April.  Daniel handed down the sentence Friday after an emotional sentencing hearing during which Alexander's parents, 11-year-old daughter and pastor spoke on her behalf.

Several people had to be escorted from the courtroom after breaking out singing and chanting about a perceived lack of justice in the case, but Daniel made a point to say that he had no choice under state law. "Under the state's 10-20-life law, a conviction for aggravated assault where a firearm has been discharged carries a minimum and maximum sentence of 20 years without regarding to any extenuating or mitigating circumstances that may be present, such as those in this case," Daniel said.

Brown, the Jacksonville congresswoman, told reporters after the sentencing that the case was a product of "institutional racism."

"She was overcharged by the prosecutor.  Period," Brown said.  "She never should have been charged."  Brown has been more complimentary about Corey's work in the Trayvon Martin case, where her office filed second degree murder charges against neighborhood watch volunteer George Zimmerman in the February 26 death of the unarmed African-American teen-ager.

It is sad, very disappointing and ultimately quite harmful that Rep. Corrine Brown is apparently so eager to assert that the injustice in this case reflects "institutional racism" and misuse of prosecutorial discretion.  It seems far more appropriate to complain that the injustice in this case reflects structural flaws in Florida's sentencing laws and mistakes by the state legislature to fail to provide a safety-valve from the application of broad mandatory sentencing provisions.

As the CNN story reveals, the prosecutor apparently had the ability and authority to prevent application of Florida's "10-20-life" sentencing law if Marissa Alexander had been wiling to forgo her constitutional right to trial to have the judicial system consider her self-defense claims.  But after Alexander decided to exercise her trial rights, then her conviction apparently deprived a judge or any other authority the ability and authority to sentence her to anything less than 20 years in prison.  Without knowing more about the case, I am not sure if the three-year term offered in the plea or even a lesser sentence would have been appropriate, but it seem obvious to me that a 20-year term is grossly excessive for Alexander's offense conduct.

Bemoaning this case as a reflection of "institutional racism" brings far more heat than light to this dark (but not uncommon) example of mandatory sentencing injustice.  A focus instead on the problems with letting only prosecutors and not judges decide if a case merits an exception to strict sentencing rules could help this case engender needed structural reforms rather than more racial polarization.  Helpfully, the folks at FAMM are effectively using this case to bring attention to these critical sentencing matters, but I fear that the eagerness of Rep. Corrine Brown to play the race card will eclipse FAMM's efforts to use this kind of case to foster sober and needed sentencing reforms.

Though I am not certain of the sentencing commutation authority of Florida's Governor, this case seems to cry out for executive clemency.  Though involving a very offense environments, I am reminded of the high-profile "border agent" case from a few years ago in which two federal border agents got saddled with a sentences of more than a decade after failed self-defenses claims due mandatory federal gun sentencing provisions.  On his last day in office, as detailed here, President George W. Bush justifably commuted the sentences of these border agents.  I hope Florida's Governor has both the power and the wisdom to use the same means to undue an obvious sentencing injustice in this case.

May 12, 2012 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (34) | TrackBack

Saturday, May 05, 2012

Call for papers/panelists for Valparaiso University Law School drug sentencing conference

I am pleased to be able to fulfill a request to post a "Call for Papers" in conjunction with a timely conference at scheduled for Valparaiso University Law School on November 9, 2012, entitled "Exploding Prison Populations and Drug Offenders: Rethinking State Drug Sentencing." Here is the call:

Frequently, state sentencing approaches to drug offenses fail to distinguish between serious traffickers and low-level violators. For example, in Indiana, a person selling $40 worth of crack cocaine faces the same sentence (i.e., 20 to 50 years in prison) as a major drug dealer. Indiana’s framework presents an extreme example of this phenomenon, but Indiana is not alone in its approach; many other states are experiencing unintended consequences of similar policies.  Long-term sentences for low-level drug offenders have contributed to the exponential growth in many states’ prison populations. Frequently, commentators question whether the expenses of this non-differentiating methodology are warranted in human and other costs.  Among other topics, the conference will examine (1) whether the current system can be justified; (2) the deterrent effect on drug usage of long-term incarceration and widespread imprisonment; and, (3) whether the likelihood of apprehension and conviction affects the market for drugs.  Submissions relating to drug sentencing are welcomed, especially submissions on the following subjects:

  • The costs and benefits to taxpayers of incarcerating low-level drug offenders
  • The impact of drug sentencing laws on minority groups and other affected communities
  • Whether the science of addiction can inform decisions regarding optimal responses to drug use and sales
  • Legislative approaches to the challenges of incarceration for drug offenses

Selected conference papers will be published in a special issue of the Valparaiso University Law Review.  To submit a paper for presentation at the conference, please provide an abstract of you work by email submission no later than Monday, August 27, 2012.  It should be addressed to Melissa Mundt, Associate Director of Academic Services, Valparaiso University Law at Melissa.Mundt AT valpo.edu.

May 5, 2012 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, May 03, 2012

Significant sentencing reform passes (nearly unanimously) in yet another red state

As reported in this local article, headlined "Missouri Legislature passes sentencing, parole guidelines," yet another so-called red state has now enacted a significant piece of sentencing reform legislation. Here are the basics:

During three decades as a St. Louis police officer and FBI agent, Gary Fuhr worked to lock up lawbreakers. As he puts it: "I spent my entire career trying to make sure all our correctional facilities operated at maximum capacity."

But after becoming a member of the state House last year, Fuhr participated in an eye-opening study of who is in state prisons and why. Now, the south St. Louis County Republican is the chief sponsor of a bill designed to keep some nonviolent offenders out of prison by beefing up community supervision alternatives. "It keeps our beds available for the folks who truly need to be locked up," Fuhr said.

The Legislature passed the bill on Wednesday and sent it to Gov. Jay Nixon, who is expected to sign it. The bill is projected to save the state an estimated $168,657 next year and potentially more in future years. The House passed the bill on a vote of 151-0. The Senate approved it 24-3.

While the bill is not as far-reaching as prison-closing measures passed in some states, its overwhelming, bipartisan approval stands out in a legislative session marked by gridlock and election-year politics. It garnered support from prosecutors as well as public defenders, staunch law-and-order legislators as well as social welfare advocates, domestic violence workers as well as civil libertarians....

At the heart of the plan is more intensive community supervision. For example, probation officers could mete out immediate, 48-hour jail stays when an offender violates a rule of supervision, such as failing a drug test. Backers say swift punishment would get the message across better than the current system, in which minor violations pile up, get mired in court backlogs and then result in an offender being shipped to the penitentiary.

The bill had its beginnings in a "State of the Judiciary" speech given in 2010 by Missouri Supreme Court Judge William Ray Price. He told legislators that incarcerating nonviolent offenders — without treating their underlying drug and alcohol problems — was costing billions and wasn't making a dent in crime.

Missouri spends more than $660 million a year to keep 31,130 people behind bars and 73,280 offenders on probation and parole. More than 11,000 employees, or one out of every five people on the state government payroll, work for the Department of Corrections.

Last year, Nixon, a Democrat, and the Legislature's top Republican leaders teamed with court officials to set up a working group to analyze prison data and make recommendations. Crunching the data was the Pew Center on the States and staff from its Public Safety Performance Project, which has done similar work in about 20 states. "The idea is, we can get more public safety at less cost," said Brian Elderbroom, a project manager at the Pew Center.

The most striking finding in Missouri's study: 71 percent of prison admissions resulted from probation or parole violations. And about 43 percent of the incoming prisoners had committed "technical" violations, such as failing to report a move or missing an appointment with a probation officer.

The bill aims to keep those offenders on track while they're on probation so they don't wind up in prison. The state would award points for following the rules, shortening an offender's supervision period by 30 days for every 30 days of compliance. "It motivates them to do the right thing," Fuhr said....

The new system would apply only to people convicted of certain drug offenses and lower-level C and D felonies, such as stealing, bad checks and forgeries. Prosecutors insisted that felonies such as aggravated stalking and sexual assault be excluded. "We're very happy with the bill as it is now," said McCulloch, president of the Missouri Association of Prosecuting Attorneys.

Some states, such as Kentucky, went too far, McCulloch said, by requiring that the state's prison population be reduced by several thousand people. "The easiest thing is to empty prisons," the prosecutor said. "You just start paroling people. But that hurts public safety. We wanted to make sure we stayed away from that."

May 3, 2012 in Criminal Sentences Alternatives, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, May 02, 2012

Georgia joins ever-growing red states enacting sweeping sentencing reforms

As reported in this Atlanta Journal-Constitution article, headlined "Governor to sign sweeping justice reform bill," the "way Georgia punishes thousands of nonviolent offenders will forever change when Gov. Nathan Deal signs landmark legislation Wednesday."  Here is more:

Deal told The Atlanta Journal-Constitution he will also sign an executive order continuing the work of a special council that studied the state's prison system and recommended sweeping changes to control unimpeded growth in prison spending. The reforms in House Bill 1176, to be signed at a ceremony at the Capitol, are projected to save taxpayers $264 million over the next five years....

Years ago, Georgia was among the states leading the nation in tough-on-crime sentencing laws.  But Georgia now joins a host of other states -- including Texas, Mississippi, North Carolina and South Carolina -- that have enacted legislation to address soaring prison spending that was doing little to reform offenders.  The legislation enjoyed extraordinary bipartisan support, with the final version being approved unanimously by both the House and Senate.

The sentencing reform package, which takes effect July 1, is part of a broader criminal justice initiative pushed by Deal.  The Legislature also approved the governor's recommendation to quintuple funding to $10 million for "accountability courts" that require defendants to work, seek treatment and stay sober.

"As we reserve more of our expensive [prison] bed space for truly dangerous criminals [we] free up revenue to deal with those who are not necessarily dangerous but are in many ways in trouble because of various addictions," Deal said.  "Our system is feeding on itself with our recidivism rate being as high as it is.  We have the opportunity now to make a difference in the lives of future generations of Georgians."

Deal said he will ask the Special Council on Criminal Justice Reform for Georgians, comprised of lawmakers, lawyers, judges and other officials, to continue its work and focus on getting inmates ready to be contributing members of society before they leave prison....  The special council is also expected to be called on to address two initiatives the Legislature did not take up this year -- decriminalizing many of the state's traffic offenses and allowing "safety valves" for some mandatory minimum sentences.

Georgia criminalizes minor traffic offenses -- more than 2 million a year -- while most other states treat them as violations with a fine as the penalty, the council said in a November report.... The special council also suggested judges should be allowed to depart from minimum mandatory prison sentences, such as those for drug trafficking.  A number of states, including Connecticut, Florida and Maine, have "safety valves" for various drug and habitual violator offenses.

"In Georgia, it's an issue that's not going to go away," said State Bar of Georgia President Ken Shigley, a member of the special council. "To have a one-size-fits-all sentence for crimes that can be so different in terms of the offense and the offender doesn't always serve the best interests of justice."

Kelly McCutchen, president of the Georgia Public Policy Foundation, the think tank that strongly supported H.B. 1176, predicted the process will take years.  Safety valves, he said, could help inmates with their transitions back into society.  "As a private citizen, I would feel a whole lot better if maybe we cut a few months off their sentence, put them in a half-way house, provide them some supervision, some training and if they're not ready yet, pull them back into prison."

State Rep. Rich Golick, R-Smyrna, who sponsored the sentencing reform bill, said the law reflects a new "smart on crime" approach in Georgia.  "More non-violent offenders will be directed toward drug courts and rehabilitation where that is possible, and that will reserve more prison beds for violent offenders who need to be kept away," he said.  "Public safety is enhanced and taxpayer money is saved."

House Bill 1176, to be signed into law today, would:

  • Create new categories of punishment for drug possession crimes, with less severe penalties for those found with small amounts.
  • Increase the felony threshold for shoplifting from $300 to $500 and for most other theft crimes to $1,500.
  • Create three categories for burglaries, with more severe punishment for break-ins of dwellings by burglars who are armed and cause physical harm to a resident, with the least severe penalties for those who break into unoccupied structures or buildings.
  • Create degrees of forgery offenses, with graduated punishment for the type of offense and amount of money involved.

May 2, 2012 in Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, May 01, 2012

Indiana legislators (over?)reacting to pair of sex offenders earning early prison release

This new AP story, headlined "Early prison release for sex offenders irks lawmakers," provides a telling and notable how sex offenders can get into trouble and prompt a harsh legislative response for, in essence, just being good prisoners.  Here are the details:

Indiana lawmakers are planning changes to the state’s early release law in response to this week’s slated release of two convicted sex offenders who significantly shortened their prison terms by earning college degrees.

Republican Sen. Jim Merritt of Indianapolis said Tuesday the law’s shortcoming is illustrated by the case of Christopher Wheat, a former high school swim coach convicted of having a sexual relationship with a 14-year-old female swim student.

Wheat, 38, is scheduled for release Thursday from the New Castle Correctional Facility after serving less than two years of his eight-year sentence.  Merritt said Wheat “manipulated the system” to cut his sentence to about 20 months by earning two computer science degrees behind bars. “I think he gamed the system.  And we need to make sure nobody does that anymore,” Merritt said.  “We all believe education in prison should be for the rehabilitation of one’s character and preparing them for their life as an ex-offender.”...

Wheat was sentenced to eight years in September 2010 following his conviction on two counts of sexual misconduct with a minor and one count of child solicitation.  His victim was a then-14-year-old student he coached at Lawrence North High School in Indianapolis.

Doug Garrison, a spokesman for the Indiana Department of Correction, said Wheat was sentenced to 15 years in prison, with five years suspended and another two years in community corrections, leaving him with an eight-year sentence.  It was cut to four years for good behavior and another two years and three months were removed when he earned an associate degree and a bachelor’s degree. Garrison said Wheat must wear a GPS-monitored ankle bracelet following his release from prison.

Merritt said he’s working with Sen. Randy Head, R-Logansport, to draft legislation for the next General Assembly that would likely include making convicted sex offenders unable to shave time off their sentences by earning degrees in prison.  It might also seek to prevent inmates from using previously accumulated college credits toward their degrees, as Wheat had done....

Merritt said the slated release of another convicted sex offender -- also Thursday from the New Castle prison -- demonstrates that changes are needed to the state’s early release law. Daniel J. Moore, a 53-year-old former New Whiteland Baptist Church pastor, pleaded guilty in March 2010 to child solicitation and sexual misconduct with a minor for a sexual relationship with a 15-year-old girl who was a church member.  His 10-year sentence was cut to five for good behavior, and he earned associate and bachelor’s degrees in human services, further paring his sentence to about two and a half years.

State Sen. Pat Miller, R-Indianapolis, said she also will push for changes to the early release law “to fix this terrible situation.” “Sexual predators are a menace to our society. The pain they inflict upon their victims lasts a lifetime, and it makes no sense that these violent offenders are being released early from prison,” Miller said in a statement.

May 1, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

"Illinois panel of lawmakers: Don't close prisons, mental facilities"

The title of this post is the headline of this new AP article which highlights some of the challenges, even in lean budget times, of making dramatic cuts to the big government prison-industrial complex supported by taxpayer dollars.  Here are excerpts:

A panel of Illinois lawmakers recommended against closing two prisons and a developmental center Tuesday, a vivid illustration of how difficult it will be for officials to slash state spending this year.

Closing the facilities would save the state tens of millions of dollars at a time when the governor and legislative leaders want to cut billions. But the closures also would eliminate hundreds of jobs, deliver painful blows to downstate communities... Legislators were unwilling to endorse that trade-off.

The Commission on Government Forecasting and Accountability voted 7-3 against closing the Tamms "supermax" prison and a women's prison in Dwight, as Gov. Pat Quinn has proposed.... The commission also gave a thumbs-down to closing two Department of Corrections halfway houses and a juvenile prison.

The votes were only advisory. The Democratic governor is still free to close the institutions if he wants.

Rep. Patricia Bellock, a top budget negotiator for House Republicans, rejected all the proposed closures. The amount of money involved may be small, she said, but the impact would be huge. "I don't feel it's minor when you're dealing with people's lives," said Bellock, co-chair of the commission.

Some Democrats on the commission supported closing the major facilities. Republicans generally opposed them.

The Tamms prison is a relatively new facility that houses the state's most dangerous and disruptive prisoners. Human rights advocates criticize it for holding prisoners in solitary confinement, keeping them in their cells 23 hours a day. Quinn says moving those inmates to other prisons and shutting Tamms would save about $26 million a year.

Closing the Dwight prison and moving inmates to a penitentiary in Lincoln would save about $37 million. Shutting the halfway houses and youth camps that the commission rejected Tuesday would cut spending by roughly $27 billion.

May 1, 2012 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, April 08, 2012

Ohio sentencing judges complain about lack of discretion to send offenders to prison

In the federal system, sentencing judges often complain about mandatory minimum sentencing provisions that limit their discretion to impose alternatives to incarceration on certain offenders.  In this interesting local article from Ohio, which is headlined "Judges chafe under new sentencing requirements," we hear of sentencing judges complaining about mandatory maximum sentencing provisions that limit their discretion to give prison terms to certain offenders. Here is how the article begins:

John Elder pleaded guilty to six counts of theft, three counts of insurance fraud and three counts of forgery in February. He stole from his church, and defrauded the insurance company he worked for. The prosecutor wanted to send him to prison. Fairfield County Common Pleas Judge Richard Berens agreed. But first, the judge had to jump through another hoop.

Last year the Ohio General Assembly passed a sweeping sentencing reform designed to reduce the prison population and promote community corrections. House Bill 86 requires judges to first consult with the Department of Rehabilitation and Correction if they want to imprison a first-time, non-violent, low-level felony offender like Elder.

It's not often prison time is sought for these offenders, Berens said. But as in Elder's case, it does happen, and many judges feel that the Legislature has impeded on their authority. Elder's sentence is still pending. "The law has only been in effect for six months, so (the offenders) are starting to filter through the system," Berens said. "I've had offenders who brazenly will come into the courtroom and say, 'You, judge, cannot send me to prison.' "

Some officials say the battle about how to treat low-level offenders may itself wind up in court. It will take some time, though, for the affected cases to trickle up to the appellate courts and possibly to the Ohio Supreme Court, said David Diroll, executive director of the Ohio Criminal Sentencing Commission.

Hancock County Common Pleas Judge Reginald Routson said since the courts have to consult the Department of Rehabilitation and Correction - an arm of the executive branch - H.B. 86 violates the separation of powers and is unconstitutional.

Berens has circulated a four-page letter to the media, legal circles, and even on the court's website criticizing the new law. He said there are cases when a person commits a number of low-level felonies at once, or has a long misdemeanor record, that do warrant prison time. "For example, an offender on any given day could have sexual intercourse with a 14-year-old girl, break into his neighbor's garage and steal tools worth $20,000, buy and sell up to 49 doses of heroin or LSD, and, upon being pursued by law enforcement in his vehicle, commit the offense commonly known as fleeing and eluding," Berens wrote. "... As a result of H.B. 86, at sentencing, a judge could not sentence the offender ... to prison."

April 8, 2012 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, March 29, 2012

Vermont exploring racial disparties in its prison population

Few people likely think first of Vermont when concerned about racial disparties in the operation of criminal justice systems, but this local article from the Green Mountain State highlights that Vermont's legislators are (justifiably) concerned on this front.  The piece is headlined "Vermont bill calls for study of prison population by race," and here are excerpts:

It’s been a vexing puzzle for years, and Vermont lawmakers have decided to take a step at trying to solve it: Why do African-Americans make up 10.3 percent of Vermont’s prison population when they are just 1 percent of residents in the nation’s second-whitest state?

Traffic stops and roadside searches have been studied for years as a possible source of race-based bias among Vermont law enforcement. A new study, contained in a bill given preliminary approval by the House on Tuesday, will look at whether bias enters the picture when defendants are sentenced in court.

“There’s a dramatic disparity between those who are incarcerated and what our census data show,” said Rep. William Lippert. The Hinesburg Democrat chairs the House Judiciary Committee and described the bill to his House colleagues Tuesday. It won preliminary approval on an overwhelming voice vote and was up for final House action Wednesday before moving to the Senate.

The figures are striking: African-Americans make up just 1 percent of the population of a state that is 95.3 percent white, yet they make up 10.3 percent of Vermont inmates. Put another way, a Vermont inmate is more than 10 times as likely as a resident at large to be African-American.

According to the legislative findings at the beginning of the bill, a statistical technique called regression analysis indicated that black men were 1.5 times more likely, and women 2.6 times more likely, to be arrested in Vermont than their white counterparts....

The bill requires that a key part of the study look at prior criminal records of defendants, including prior convictions from out of state. Appel said there is widespread belief — but not enough data to back it up — that African-Americans frequently get into trouble in Vermont when they bring illegal drugs from elsewhere to sell in the state.

“Is it racial profiling, or black men preying on our kids by selling drugs in our communities? It’s long overdue for us to get a handle on what’s driving these disparities,” Appel said. “That’s what this study is designed to answer.”

March 29, 2012 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, March 16, 2012

"Ravi found guilty on 24 of 35 charges in webcam case"

The title of this post is the headline of this local report on the high-profile state criminal trial of a Rutgers student that has been taking place in New Jersey.  Here are the basics:

Dharun Ravi has been found guilty of 24 of 35 separate charges by a Superior Court jury here. Following three days of deliberation, the jurors found Ravi guilty of invasion of privacy, bias intimidation, attempted invasion of privacy, tampering with physical evidence, hindering apprehension or prosecution, witness tampering and tampering with physical evidence.

Three of the counts carry a possibility of jail time; they are the bias intimidation charges as well as the hindering apprenhension count.  Sentencing has been scheduled for May 21.

In all, the former Rutgers student was charged with 15 counts for using a webcam to spy on his gay roommate’s encounter with another man in their college dorm room in September of 2010.

Media attention at the Middlesex County Courthouse is intense, with more than 100 news gatherers covering the trial. The 12 jurors with three alternates worked their way through a verdict sheet that asked them to decide Ravi’s guilt on 35 different separate questions regarding the 15 counts.  The charges included invasion of privacy, attempted invasion of privacy, bias intimidation, tampering with physical evidence, hindering apprehension or prosecution, witness tampering and tampering with physical evidence....

On Sept. 19, 2010 Ravi was alleged to have briefly spied on Clementi and a man known only as M.B. for a few seconds with Molly Wei, a dorm mate who was a resident across the hall from Ravi.  Ravi was charged with making a second attempt to spy on them two days later. Clementi jumped off the George Washington Bridge on Sept. 22, 2010.  The trial has drawn national media attention because of discussions it has raised regarding cyber-bullying, misuse of social media and anti-gay bias.

Because New Jersey sentencing law is complicated (thanks in part to Apprendi, which notably came out of New Jersey and involved judicial fact-finding about racial bias to increase a sentence), I have no idea what kinds of sentence(s) Dharun Ravi might be facing.  Because I have seen reports that Ravi might now also need to fear deportation, constitutional gururs can already begin spotting Padilla-related issues along with Apprendi issues in this high-profile case.

Free from even knowing yet what applicable state sentencing law provides, I am very eager to hear from readers about what kind of sentence they think should (or will) be imposed upon Dharun Ravi following these convictions.  I have not followed the case closely enough to have a sense of all the relevant sentencing consideration, but I do sense that the forthcoming sentencing could end up raising a lot of interesting legal and policy issues.  Thus, I suspect this may be just the first post in a series as this case turns toward sentencing.

March 16, 2012 in Collateral consequences, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (37) | TrackBack

Tuesday, March 06, 2012

"Reallocating Justice Resources: a Review of 2011 State Sentencing Trends"

The title of this post is the title of this new report from the Vera Institute of Justice, which seeks to review the lessons from 14 states that have responded to the budget crunch by passing research-driven sentencing and corrections reform in 2011. Here is the start of the report's executive summary:

Most states are facing budget crises, and criminal justice agencies are not exempt. With fewer dollars available, they are challenged to increase public safety while coping with smaller budgets. This report distills lessons from 14 states that passed research-driven sentencing and corrections reform in 2011 and is based on interviews with stakeholders and experts, and the experience of technical assistance staff at the Vera Institute of Justice. It is intended to serve as a guide to policy makers and others interested in pursuing evidence-based justice reform in their jurisdiction.

Legislatures throughout the United States enacted sentencing and corrections policy changes in 2011 that were based on data analysis of their prison populations and the growing body of research on practices that can reduce recidivism. Although this emphasis on using evidence to inform practice is not new in criminal justice, legislators are increasingly relying on this science to guide the use of taxpayer dollars more effectively to improve public safety outcomes.

In highlighting important legislative changes enacted in the past year, this report documents a new approach to reform in which bipartisan, multidisciplinary policy groups are using analysis of state population and sentencing data, harnessing the political will emerging from the budget crisis, relying on decades of criminal justice research, and reaching out to key constituencies. The result is legislation that aims to make more targeted use of incarceration and to reinvest the cost savings into community programs geared toward reducing recidivism and victimization.

March 6, 2012 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, March 02, 2012

Alaska Chief Justice assails state's sentencing guidelines rules

As reported in this local article, sentencing and corrections reform is a topic of discussion in debate outside the lower 48.  The article is headlined, "Chief Justice rips state's sentencing guidelines: Juneau-based justice tell Legislature new 'smart justice' strategies are needed."  Here are excerpts:

The chief justice of the Alaska Supreme Court told the Alaska Legislature the state’s judges would like to be able to help them reduce prison costs and protect the public, but the Legislature won’t let them.  “Under our state’s presumptive sentencing guidelines, in place since 1978, the judge’s role in sentencing is really quite limited, the range of most sentences is prescribed by law,” Walter “Bud” Carpeneti said.

He addressed a joint session of the House of Representatives and Senate on Wednesday, and told the legislators new studies are showing how recidivism can be reduced and keep people out of prison.  Tough early action when those on probation miss appointments or fail drug tests is just one example, he said....

Most sentences are not decided by judges, he said, but are plea bargains between prosecutors and defense attorneys.  “Judges today are rarely called on to participate in the sentencing process,” Carpeneti said.  “In the vast majority of cases they simply approve or disapprove a sentence,” he said.

While judges technically have the authority to reject a plea agreement that is rarely done. Only about 5 percent of all cases wind up without a plea bargain, he said.  “Open sentencing, where the prosecution and the defense have not agreed on the ultimate sentence in advance is quite rare,” he said.

Even in those cases, the presumptive sentences mandated by the Legislature narrow the judges’ role in the process, he said.  “Sometimes it resembles following an elaborate cookbook more than anything else,” he said.

That’s resulted in too many people in prisons when there might be better options, he said. The state’s prison population is heavily young, male and of color, and results in many people spending their formative years in prison when it would be better to have many of them in their communities.  “Too many of Alaska’s young men, particularly our young men of color, are spending their early adulthoods in our prison system,” he said....

“Today we have scientific corrections research that shows us what intervention strategies work best,” he said.  Because of presumptive sentencing rules, judges can’t use that knowledge to prevent future crimes and reduce prison costs, he said.  What the state needs, he said, is “smart justice.”

March 2, 2012 in Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, February 27, 2012

Georgia latest "red" state moving forward with "progressive" sentencing reforms

A helpful reader alerted me to this new article appearing in the Atlanta Journal-Constitution, which provides another notable example of a notable state responding to budget concerns with sentencing reforms long urged by critics of "tough-on-crime" sentencing policies. The piece is headlined "Sweeping criminal justice changes proposed," and here are excerpts:

State legislative leaders on Monday proposed sweeping changes to criminal justice in Georgia, including a plan to reduce prison terms for some offenders and divert others into treatment rather than locking them up.

House Bill 1176 asserts that prison is by far the most expensive way to punish nonviolent offenders and that other methods are both cheaper and more effective. The reform effort would save tens of millions of dollars by reserving prison beds for violent criminals, backers say.  “This initiative represents a significant first step in bringing conservative common sense to our criminal justice system,” said Rep. Rich Golick, R-Smyrna, the lead sponsor of the bill.

But the bill did not immediately win the support of Gov. Nathan Deal, who has pledged to lead the state’s effort to reform its criminal justice system.  Deal said the bill failed to include all of the recommendations of a special council appointed to study the state’s approach to criminal sentencing.

Georgia spends more than $1 billion a year on prisons. Maintaining current sentencing laws would require Georgians to spend another $264 million over the next five years for more prison beds, the special council found.

“The governor will need to see changes in the current bill that will bring it back toward the recommendations of the Criminal Justice Reform Council,” said Brian Robinson, Deal’s spokesman. “The process is intended to reduce costs to taxpayers, and it’s his opinion that this bill might actually increase costs.”...

The bill would allow the Department of Corrections to start a pilot program that would identify the lowest-risk nonviolent drug and property offenders headed to prison and allow judges to divert them to community-based supervision programs....

The bill will be considered by a special joint committee of the state House and Senate, instead of following the usual process of being reviewed separately by committees of the two chambers.

We sure know that the state sentencing times have changed when a bill to reduce prison terms for some offenders and divert others into treatment rather than locking them up is praised by a Republican legislator in Georgia as "conservative common sense" while the state's Republican Governor worries that the bill does not go far enough to reduce prison terms and associated costs.

February 27, 2012 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, February 02, 2012

New report from The Sentencing Project on latest state-level sentencing reforms

I received news of this notable new report on state-level sentencing reforms coming from The Sentencing Project.  The report is titled “The State of Sentencing 2011: Developments in Policy and Practice,” is authored by Nicole Porter, and is summarized this way via the e-mail I got yesterday:

The report highlights 55 reforms in 29 states and documents a growing 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:

Sentence modifications - Four states -- Connecticut, Ohio, Nebraska, and North Dakota -- established sentence modification mechanisms that allow correctional officials to reduce the prison sentences of eligible prisoners;

Drug offense reforms - Four states -- Arkansas, Delaware, Kentucky, and Ohio -- revised penalties for certain drug offenses and authorized alternatives to prison as a sentencing option in specified circumstances.  In addition, Idaho and Florida expanded the eligibility criteria for drug courts in order to expand their impact.

Death penalty - Illinois abolished the death penalty, becoming the sixteenth state to eliminate the sentencing option;

Probation revocation reforms - North Carolina restricted the use of prison as a sentencing option for certain persons who violate the conditions of probation; and

Juvenile offender sentencing reforms - Georgia authorized sentence modifications for certain juvenile defendants with felony offenses by allowing judges to depart from the statutory range when considering the youth’s background.

February 2, 2012 in Recommended reading, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, February 01, 2012

Notable recent state child porn sentencing developments in South Dakota

Thanks to this brief new AP article, which is headlined "South Dakota child pornography convict gets 100-year prison sentence cut about in half," I learned about a fascinating ruling from last year by the South Dakota Supreme Court in South Dakota v. Bruce, 2011 S.D. 14 (SD April 6, 2011) (available here).

Working backwards, here is the latest sentencing news in this notable case:

A 100-year prison sentence handed down to a Pierre man convicted of possessing child pornography has been cut about in half.  The South Dakota Supreme Court last year ruled that the initial sentence for 48-year-old Troy Bruce was excessive and ordered a new sentencing.

KCCR radio reports that Judge Mark Barnett on Tuesday sentenced Bruce to a total of 55 years in prison.  Bruce will be eligible for parole after serving one-fourth of the sentence. He also was given credit for about two years he already has served behind bars.

This report prompted me to wonder if the South Dakota Supreme Court had actually deemed a child porn sentence to be unconstitutional, and the Bruce ruling nearly does.  Here are notable snippets from the majority opinion in Bruce:

Bruce was convicted of possessing one DVD containing fifty-five videos of child pornography.  He received the ten-year maximum sentence on all fifty-five counts.  Forty-five of the sentences were suspended, but the sentences on the remaining ten counts were to be served consecutively resulting in a total sentence of 100 years.  Bruce contends that this sentence was cruel and unusual punishment under the Eighth Amendment....

When such statutory ranges are established, the legislative intent is that "the more serious commissions of [the] crime . . . deserve sentences at the harsher end of the spectrum.... Imposing the maximum possible term where the circumstances of the crime only justify a sentence at a lower range violates legislative intent to reserve the most severe sanctions for the most serious combinations of the offense and the background of the offender.” Bonner, 1998 S.D. 30, ¶ 25.   Further, we now adopt Justice Konenkamp’s recommendation “that courts look at two additional determinants when assessing the seriousness of a child pornography offense: (1) the specific nature of the material and (2) the extent to which the offender is involved with that material.” Blair, 2006 S.D. 75, ¶ 83....

With respect to the seriousness of this offense, the pornography involved much more than lewd images but less than the worst possible material covered by the statute....

With respect to Bruce’s involvement, he was convicted of possessing the one DVD containing fifty-five images. Although thirty other discs containing child pornography images were found, the court “consider[ed] Counts 1 through 10 as one act” for the purpose of determining parole eligibility. Additionally, there was no evidence that Bruce manufactured or distributed child pornography. Finally, there was no evidence suggesting that Bruce had ever sexually abused a child, had sexual contact with a child, or solicited a child for sexual images. This was a case of simple possession of images.

Bruce’s character and history reflect that he was a divorced forty-eight year old with three children, one who was still a minor. Other than a careless driving offense, Bruce had no prior criminal history. He was a former member of the National Guard and a veteran who had served in Saudi Arabia and Iraq during Operation Desert Storm....

Bruce’s maximum sentences were not reserved for the most serious combination of criminal conduct and background of the offender. We therefore conclude that this is the exceedingly rare case in which Bruce’s sentence was grossly disproportionate to the “particulars of the offense and the offender.” See Bonner, 1998 S.D. 30, ¶ 25. Because Bruce did not present comparative information with which to conduct an intra- and interjurisdictional analysis, we reverse and remand to the circuit court to consider that evidence on resentencing.

A concurring opinion in Bruce adds these notable observations:

In South Dakota, gross disparity in the sentence length for possession of child pornography exists.  For example, in State v. Martin, 2003 S.D. 153, 674 N.W.2d 291, the defendant’s sentence for possession of child pornography was a term of two years in the penitentiary with all but forty-five days in jail suspended subject to additional conditions. In the present case, the aggregate sentence is a term of 100 years in the penitentiary. Yet the facts of the two cases are similar: both involve the possession but not the manufacture or distribution of multiple computer-based images of child pornography. The difference in the length of the sentences for these similar crimes is shocking.

I think it is safe to assert that, not just in South Dakota, but all across this great nation, "gross disparity in the sentence length for possession of child pornography exists."  I have seen and heard of many state (and few federal cases) in which a child porn possession conviction results in only months in prison, and yet a few months ago in Florida (as reported here) Daniel Enrique Guevara Vilca received a sentence of life without the possibility of parole for mere child porn possession!  What a sad and disturbing mess.

February 1, 2012 in Examples of "over-punishment", Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (29) | TrackBack

Thursday, January 19, 2012

"Mo. Supreme Court chief calls for sentencing fixes"

The title of this post is the headline of this AP article, which begins this way:

Missouri's chief justice urged lawmakers Wednesday to make changes to the state's probation and parole systems to potentially save the state millions of dollars.

Chief Justice Richard Teitelman urged lawmakers in his annual State of the Judiciary address to pass measures to reduce the number of people in prison for probation and parole violations.

"I support your efforts to help make sentencing practices more cost-effective, helping Missouri to become ... both tough and smart on crime," Teitelman said, addressing a joint session of the state House and Senate.

January 19, 2012 in Criminal Sentences Alternatives, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, January 03, 2012

Discussion of the high costs of the prison boom from coast to coast

The media is ringing in the new year with a number of notable pieces in a number of state newspapers discussing the need for sentencing and correction reforms in light of the high costs of large state prison populations:

The ending paragraphs of the piece from Georgia highlights how the political environment surrounding these discussions have changed in modern times:

Stepping away from a lock-em-up philosophy might have been the equivalent of political suicide in the 1990s, but that’s hardly the case today. Many leading conservatives -- including Newt Gingrich and former Florida Gov. Jeb Bush and many others -- support an approach that de-emphasizes prison for non-violent offenders.

Texas was among the first states to change course. In 2007, facing the need to spend $540 million to build new prisons expected to cost another $1.5 billion to run, the state decided to spend a fraction of the anticipated prison costs on alternative programs for non-violent offenders. Since the change, both the crime rate and the incarceration rate have declined.

In 2010, South Carolina adopted a reform package after lawmakers found that prisons were packed with repeat and non-violent offenders. The changes, projected to save up to $175 million in prison construction costs and $66 million in operating costs over five years, are designed to improve public safety. North Carolina also adopted sweeping legislation last year that will reduce spending on corrections with the goal of increasing public safety through programs that should cut repeat offenses.

[Georgia Gov. Nathan] Deal said changes enacted in other states will give Georgia models to consider. And so far, he said, he is hearing positive responses from lawmakers of all stripes. “As members of the General Assembly continue to see demands placed on them to appropriate more money for incarceration and see the numbers of inmates continue to rise substantially every year,” Deal said, “I think they’re certainly willing to embrace these changes.”

January 3, 2012 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, January 02, 2012

"Getting Prison Numbers Down — For Good"

The title of this post is the title of this effective, lengthy piece by Malcolm Young appearing at The Crime Report.  The piece reviews in detail some state sentencing and corrections reforms, and here are excerpts making some important broader points:

Some commentators are celebrating the decrease in prison population numbers reported for 2010 by the U.S. Bureau of Justice Statistics (BJS) — and they should.

Any attention to mass incarceration is welcome in a nation where prison reformers, community groups, advocates from across the political spectrum, major foundations, and many policymakers favor reducing prison incarceration — currently at levels that have no peacetime historical or international precedent.

Yet despite evidence that the U.S. as a whole may at last have turned away from the annual increases in state prison incarceration that began in the early 1970s, it remains to be seen whether progress toward meaningful reductions will proceed at a pace necessary to have a significant impact on the phenomenon.  The basis for broad-based and deep change in sentencing and corrections practices has not yet emerged....

Certainly, the recession has forced policymakers to look to corrections to reduce costs, prompting efforts to reduce incarceration in conservative as well as liberal states: Connecticut, Indiana, Texas, Michigan, New York, Louisiana, South Carolina and Mississippi to name a few.

But the economy as one factor is hardly the same as the economy as an underlying, broad-based engine driving reform.  And against “tough on crime” political assaults, fiscal responsibility stands up like a candle in a hurricane....

Even if we apply these lessons from states that have succeeded in reducing prison incarceration, something is still missing.  Except among highly committed corrections staff, advocates and a handful of political leaders, it is difficult to discern evidence of a genuine consensus favoring reductions in prison populations.

So far, neither the dollar nor human costs of a massive system of incarceration and its racial and class impacts, have ignited a widespread, energized political or social movement opposite of that which resulted in mass incarceration. This has to be a concern if there is any chance of reversing four decades of prison expansion.

January 2, 2012 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, December 30, 2011

Oregon Commission on Public Safety calling for significant sentencing reforms

As reported in this local article, a "state commission examining Oregon's justice system Thursday recommended an overhaul of the state's sentencing laws, increased spending to drive down recidivism, and improved programs to care for crime victims."  Here are more of the details:

The state Commission on Public Safety will deliver its recommendations Friday to Gov. John Kitzhaber, who appointed the commission earlier this year. The commission met by teleconference Thursday to approve its report.

"Many opportunities exist to improve how Oregon protects its residents from crime while limiting or reducing costs to government, to the public and to victims of crime," said state Chief Justice Paul DeMuniz in a cover letter to the report. DeMuniz chaired the commission....

The commission took pains not to recommend specific changes in state sentencing laws, but rather urged the governor to continue the group's work. The group proposed that it prepare a reform package for the 2013 Legislature. The group recommended state judges get more discretion at sentencing, and that more should be done to cut recidivism.

"Oregon can increase public safety at less cost by investing in the most cost effective programs targeted at offenders for the purpose of reducing recidivism, preventing future crime and victimization," the report said. The commission also recommended that some savings from less reliance on prison should be dedicated to helping crime victims.

Commission members besides DeMuniz included former Gov. Ted Kulongoski, state Sen. Jackie Winters (R-Salem), state Sen. Floyd Prozanski (D-Eugene), state Rep. Andy Olson (R-Albany), state Rep. Chris Garrett (D-Lake Oswego), and Dick Withnell, a Salem business executive.

Much of the work and lots of documents related to the work of the Oregon Commission on Public Safety can be found via this effective state website.  I expect the commission's report will be posted on that site before too long.

December 30, 2011 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, December 20, 2011

"Sentencing Proportionality in the States"

The title of this post is the title of this notable student note now available via SSRN by Gregory Schneider. Here is the abstract:

It seems axiomatic in a “society of laws and not of men” that a sentence ought to be generally proportioned in degree to the underlying criminal offense.  Extreme sentences, when they appear disproportionate to the underlying offense, undermine public confidence in the justice system, are ineffectual as deterrents to an angry public who perceive them as unjust, and are not useful in reforming the criminal who can see no fairness in such an extreme sentence.  This Note explores the principles and analytical tools several states’ judiciaries have expounded to analyze the proportionality of sentences, and concludes that these states have formulated a coherent and workable system of review that other jurisdictions can take advantage of by either legislative or judicial action.

December 20, 2011 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, December 13, 2011

NBA's Ben Wallace gets Michigan drunk driving break not afforded to ESPN's Jalen Rose

Regular readers may recall a bit of controversy this past summer when  ESPN analyst and former NBA player Jalen Rose was given 20 days jail sentence for drunk driving in Michigan.  As reported in this blog post, one of Rose's lawyers called it a crime that Rose got such a "harsh" sentence and both the local press and national media ran stories about how persons sentenced in different areas of Michigan and the nation often will get stakly different sentences for drunk driving offenses.

Now, this new local sentencing story out of Michigan state court concerning another professional basketball player provides another interesting data point in the disparity story.  The piece is headlined "Detroit Pistons' Ben Wallace gets probation on drunken driving, gun charges," and here are the basics:

Ben Wallace was sentenced to a year's probation this morning and ordered to spend 30 hours coaching kids basketball following his plea earlier this year for drunk driving and having an unlicensed hand gun....

His attorney, Steven Fishman, noted that Wallace had been very cooperative with police when he was pulled over in the early morning hours of Sept. 24, driving erratically on Telegraph, near Long Lake in Bloomfield Township.  Police also found a handgun in the car, and live ammunition.

Wallace was initially charged with carrying a concealed weapon, a five year felony, but under a plea deal with prosecutors, he was allowed to plead to carrying a weapon while driving intoxicated, a 93 day misdemeanor, and also one count of driving while intoxicated.  The judge also ordered he pay a $600 fine, plus court costs.

Wallace is expected to hold a basketball clinic for the Boys And Girls Club of Royal Oak. The details have not be set, including dates.

On the surface, it would appear that Wallace committed a (much?) worse offense but ultimately got a (much?) lighter sentence than Rose.  Of course, maybe there are some specific differences in the cases not obvious on the surface that justify this seeming disparity.  And, perhaps more importantly, the mere fact that can be (and often is) a lot of "low-level" sentencing disparity in this arena does not, in an of itself, necessarily establish that the applicable sentencing law is either unjust or ineffective.

A few related posts on sentencing drunk drivers in Michigan and elsewhere:

December 13, 2011 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (6) | TrackBack

Sunday, November 27, 2011

Noting the impact of three strikes on plea practices in California

This local article from California, headlined "The hidden impact of three strikes: State law is widely used to coerce plea bargains," does a very effective job spotlighting the relationship between a consequential state mandatory minimum sentencing provision and plea practices.  Here are excerpts:

Across California, hundreds of criminals convicted of non-serious, non-violent, non-sexual crimes last month were no longer sent to prison under the state's massive inmate realignment — but this group of "low level" offenders does not include more than 2,200 inmates currently imprisoned for the exact same crimes.  They are serving life sentences under California's three-strikes law.

It is this incongruity that again has inspired a reform effort aimed at requiring that an offender's third strike be a serious, violent offense.  "Most people don't realize a petty theft with priors is a third strike and can get you life in prison," said Salinas-based defense attorney Brian Worthington.

Men in Monterey County have been sentenced to 25 years to life for crimes ranging from petty theft to drug possession to second-degree burglary, the same offenses that now qualify others for county jail, probation and rehab programs.  A third strike doesn't have to be serious, violent or sexual. It can even be what criminal attorneys call a "wobbler" — a crime that's allowed to be prosecuted as either a misdemeanor or a felony.

In Monterey County, where the overall numbers are small, such relatively minor crimes have put more than 10 percent of the county's third-strikers in state prison for life.  Of the county's 41 third-strikers in state prison as of June, five are serving life terms for offenses that fall squarely under realignment's definition of non-serious, non-violent and non-sexual....

Worthington and other defense attorneys acknowledge that Monterey County prosecutors tend to reserve a third strike for serious, sexual or violent crimes.  But what third-strike conviction numbers don't reflect is how often the mere threat of applying the law — and therefore, a life sentence — is used to coerce plea agreements and prison time in low-level cases that otherwise could have ended with a few years' probation.

That, says Worthington, is the hidden impact of three strikes.  "I think people would also be surprised to know that you can get multiple strikes in one offense.  They think it's for someone who has a long, illustrious career (in crime).  But it could be one event with no prior record and it doesn't have to be their third or fourth time in front of a judge."...

Monterey County public defender Jim Egar calls three strikes "an overwhelming coercive tool.  It discourages innocent people from going to trial.  The risk of conviction and punishment causes people to plead guilty....  You have a situation that is ripe for unfair results.  Mistakes happen because people are afraid of the risk."

"I don't discount that they may feel leverage," said Monterey County District Attorney Dean Flippo, who has been "heavily involved in the political wars" over three strikes through the years.  Flippo said he and other district attorneys initially remained neutral when three strikes became law, but became supportive after they noted its popularity and saw that higher courts upheld it.  "We were concerned about the third strike being non-serious and non-violent. But it picked up steam, and we embraced it."...

Flippo acknowledges that in the early years there were some abuses, "the kind that would shock the conscience."  But within two years, judges were given the ability to dismiss a strike, in an act known as the Romero decision.  "The first reform was the Romero decision," Flippo said. "Three strikes gave us discretion to say 'You've had as many breaks as the community can give you.' If the judge disagrees with the prosecutor, he has the power to strike the strikes."

Unlike some district attorneys in California, Flippo has had a written three-strikes policy for years.  While it encourages prosecutors to file strikes whenever possible, the policy also allows them to dismiss strikes if there are "compelling" considerations, such as multiple strikes stemming from the same incident, if many years have passed since the strikes occurred, or if the defendant has had a crime-free record for 10 years.  Attorneys also can decline to file a strike if the new offense is possessing a small amount of drugs.

Still, Flippo doesn't hesitate to credit the law with lowered crime rates around the state. "Crime rates have been going down, down, down. I attribute it to harsher sentencing... along with mobilization of communities" toward prevention and intervention efforts.

Generally, there has been no agreement among criminologists about why crime rates continue to decline, and Worthington cited research that concludes just the opposite.  "You will not find any link between the harshness of the sentence and declining crime rates," he said.

November 27, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (14) | TrackBack

Saturday, November 19, 2011

Special Georgia panel urges sentencing and court reforms to cut prison spending

This new piece in the Atlanta Journal-Constitution, headlined "Panel recommends reforms to stem prison spending," reviews the work of a special group assembled in Georgia to recommend criminal justice reforms. Here are the basics:

Shortening sentences for some nonviolent offenses and creating a statewide network of accountability courts could help prevent Georgia taxpayers from spending more than $250 million to accommodate an expanding prison population, a state panel said Friday.

The Special Council on Criminal Justice Reform said changes are needed to control the unimpeded growth in state prison spending, which has doubled over the past two decades to $1.05 billion a year. The panel noted the growth is being fueled by drug and property offenders who account for about 60 percent of all prison admissions.

The council noted more than 3,200 offenders enter prison on a drug possession conviction each year and two-thirds of these inmates have been found to be low risks to offend again. For that reason, the panel recommended the creation of a statewide system of drug, mental health and veterans' courts that offer alternatives to incarceration and a more robust supervision of offenders released from custody to reduce recidivism. Some of the cost savings from the reforms can be used to help fund these programs, the report said....

The council -- comprised of judges, lawmakers and other officials -- also recommended changing some sentencing laws that have been on the books for decades, but have not been changed to adjust for inflation. For example, it is a felony to shoplift more than $300 in merchandise. The council recommended that threshold be increased to $750, meaning anyone caught shoplifting less than that amount would face a misdemeanor, not a felony, charge. For some theft crimes, the panel recommended increasing the felony threshold from $500 to $1,500.

If nothing is done, the report said, the state's prison population will increase by another 8 percent to nearly 60,000 inmates by 2016, requiring an additional $264 million to expand prison capacity.

Gov. Nathan Deal, who called for the creation of the council earlier this year, said the report's recommendations are "a starting point." He said he will sign an executive order that allows the council to continue studying the issue. "We have an amazing opportunity to save lives as well as tax dollars," Deal said in a statement. "While we’ll never shrink from our duty to protect the public from dangerous criminals, we know that alternative sentencing for nonviolent offenders suffering from addiction or mental illness produces much better results. Let’s get to work on promoting recovery and rehabilitation rather than a system that simply hardens criminals."

House Speaker David Ralston, R-Blue Ridge, said he will make the report's recommendations a priority in the upcoming legislative session....

Efforts to overhaul tough sentencing laws and provide alternatives to incarceration for nonviolent offenders have picked up bipartisan support nationwide. This year, Arkansas, Kentucky and Ohio enacted comprehensive legislation that is projected to save taxpayers hundreds of millions of dollars in new prison construction and operating expenses, said the Pew Center on the States, which assisted the Georgia reform council in its study.

Georgia has some of the toughest sentencing laws in the nation for violent offenders and sexual predators, and the panel did not recommend changing them. The panel did, however, said the Legislature should consider a "safety valve" for some judges. This would allow a judge, after making certain findings, to depart from some mandatory minimum sentences, such as those for drug trafficking.

The panel also said safety valves could be considered for other, unspecified mandatory minimum sentences, just not those for the "seven deadly sin" crimes, such as murder, rape, kidnapping and armed robbery.

The full 25-page report with additional recommendations by the "Special Council on Criminal Justice Reform for Georgians" can be accessed at this link.

November 19, 2011 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, November 17, 2011

California jails getting more prisoners than expected in realignment plans

As reported in this interesting Los Angeles Times article, the "number of state prisoners arriving in county jails under California's controversial prison diversion program is significantly higher than officials had estimated, adding new pressure on sheriff's departments to figure out what to do with thousands of extra inmates." Here is more:

Prisoners convicted of some nonviolent crimes began serving their time in county jails last month as California complied with a U.S. Supreme Court decision requiring the state to lower its prison population by 30,000.

But the number of state prisoners being transferred has been much higher than officials had predicted, prompting counties to speed up efforts to reopen shuttered jail wings and find other arrangements for some inmates.

Los Angeles County was projected to add about 600 state prisoners by now but has booked more than 900.  The tally in Orange County is running more than double what the state had estimated....  Some counties, such as Los Angeles, are under court order preventing jail overcrowding. So officials said it's almost a foregone conclusion that some inmates will be released to make way for the state prisoners.

Orange County Sheriff Sandra Hutchens said none of the alternatives are ideal.  For example, she said, she's not sure how many inmates can be trusted to serve time wearing GPS-monitored bracelets....

State corrections officials said they hadn't expected the plan known as realignment to be a smooth transition because it is such an unprecedented shift.  They acknowledged that their estimates have been off but believe the surge will be short-lived....  State officials and some sheriffs believe the higher-than-projected number of state prisoners being sent to jails has occurred in part because defense attorneys waited until realignment took effect to settle their clients' cases.  By doing that, the attorneys were assured that their clients would receive jail time instead of prison time.

"We believe it has occurred because of publicity the realignment received. Defense attorneys delayed a lot of adjudications until after Oct. 1," when the law took effect, said Merced County Sheriff Mark Pazin, president of the California State Sheriffs' Assn.  "Those persons who pleaded guilty ended up in the local facilities when under the old course of events they would have gone to prison."

Many county officials say it's just a matter time before some inmates have to be released. Riverside County Sheriff's Chief Deputy Jerry Gutierrez said his jail is now at 93% capacity and will be full by January.  In San Bernardino County, officials are planning to significantly expands their work-release and electronic monitoring programs, certain that the influx of state prisoners will force some releases.

"We just started the biggest system change in the history of California justice," said Nick Warner, legislative director for the State Sheriffs' Assn.  "Anyone who predicts with certainty failure or success is premature in that judgment."

November 17, 2011 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, November 11, 2011

New SLR Online gets started with great piece on "California's De Facto Sentencing Commissions"

Hoover-tower-squareI am pleased and honored to have been asked to help spread the word about today's launch of the Stanford Law Review Online, which aspires to "offer a flexible outlet for our publication of short, original pieces of scholarship and commentary on timely topics."  I am also pleased and excited that the first piece in the first issue of the SLR Online is by one of my very favorite sentencing scholars, Robert Weisberg, in the form of this thoughtful commentary titled "California's De Facto Sentencing Commissions." Here are a few excerpts from the piece which should help highlight why the full article is a must-read:

The concept of a sentencing commission as a mechanism for governance of a jurisdiction’s criminal justice system has achieved great prominence in recent years and been the subject of much important commentary.  In light of California’s recent passage of A.B. 109, legislation that drastically overhauls the state’s sentencing and correctional systems, now is an ideal time to evaluate California’s adoption and implementation of the commission model.

Readers who are familiar with California criminal justice will pause quizzically at that last sentence, observing that the California Legislature has steadfastly refused to create a sentencing commission.  But my argument here is that there is now, in effect, a California sentencing commission even if not by explicit law.  Indeed, I will argue that collectively the branches of our state government have, whether intentionally or not, created a number of sentencing commissions....

[W]hile the commission idea failed de jure, it “succeeded” de facto.  This is because the legislature in effect did cede power to the “sentencing commission” constituted in the United States District Courts for the Northern and Eastern Districts of California.  These courts have taken over much of the administration of the prison system.  They have ordered the state’s Department of Corrections and Rehabilitation to exhaustively study and, where necessary, change sentencing and corrections practices without legislative participation, and they have directly drawn on the state treasurer’s bank account to pay for it....

[T]he much-publicized A.B. 109, the Criminal Justice Realignment Act of 2011, ... is the most significant change in the California Penal Code since the DSL was passed.  But it operates more indirectly than any straightforward rewriting of the Penal Code.  The gist of the new law is to shift control over thousands of prisoners from the state to the counties....

So who is in charge of all these operations?  A.B. 109 requires each county to create a Community Corrections Partnership (CCP) to develop and recommend to the county Board of Supervisors a comprehensive plan for carrying out all the demands of the new realignment mandate.  Each CCP is to consist of the chief probation officer, the sheriff, local police chiefs, the district attorney, the public defender (or head of the relevant defense organization), the presiding judge of the superior court, and representatives from such agencies as social services, mental health, and alcohol and substance abuse programs....

I submit that by virtue of its membership and functions, the CCP is a sentencing commission.  The CCPs are now scrambling to figure out how to survive this massive transfer of authority with what might prove to be insufficient funds and without clear data to predict the size and nature of its new inmate, probationer, and parolee populations...

So now California has fifty-eight sentencing commissions (or fifty-nine if you count the federal judiciary).  California could have had just one, and it could have made that commission a responsible and well-coordinated branch of state government.  Perhaps recklessly, it chose this other path.  The lesson: a criminal justice system in sufficient crisis will have a sentencing commission — one way or another.

November 11, 2011 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, November 10, 2011

Effective new report on effective state-level sentencing and corrections reforms

Thanks to this post at Right on Crime, I discovered that the "National Governor’s Association (NGA) recently released an analysis of state-level sentencing and corrections reforms."  This analysis is a 26-page Issue Brief titled "State Efforts in Sentencing and Corrections Reform," and here is the report's executive summary:

States continue to struggle during what is the most difficult fiscal environment since the Great Depression.  Projections are that the economic recovery will be slow, forcing states to think longterm about how to do more with less.  Full economic recovery may not happen until the end of the decade.  With corrections among states’ largest expenditures, many are rethinking their approaches to sentencing and corrections practices as they seek to constrain spending.

Between 2009 and 2010, at least 40 states made cuts to general fund expenditures for corrections.  They are reducing staff salaries, benefits, or overtime, eliminating prison programs, and making food-service changes.  Furthermore, states have been increasingly focused on finding ways to decrease overall prison populations. Given that the average prison bed now costs $29,000 a year, they are looking for ways to reduce the number of nonviolent and low-risk individuals going to prison, to move offenders who can be safely managed in the community out of prison sooner, and to keep ex-offenders out of prison through improved prisoner reentry practices.

Ultimately, states aim to reduce prison populations enough to allow them to close prisons. States are accomplishing reductions through sentencing reform, efforts to reduce offender recidivism, and parole and probation reform. For example:

  • South Carolina approved a sentencing reform package in 2010 that the state estimates will reduce the need to build and operate new prison beds by 1,786, saving up to $241 million by reducing incarceration of nonviolent offenders and more closely supervising released inmates to reduce recidivism; 
  • Nevada saved $38 million in operating expenditures by FY 2009 and avoided $1.2 billion in new prison construction by making key sentencing reforms, including expanding the number of credits inmates could earn for “good time” and the number of credits those on community supervision could earn for complying with conditions; and
  • Kentucky passed legislation expected to save the state $422 million over the next decade by diverting certain drug offenders into treatment rather than prison and reserving prison space for violent and career criminals.

The challenge to states is to make cuts in corrections spending while maintaining public safety.  Fortunately, there now exists a significant body of research about which sentencing and corrections practices work and which do not.  Research shows that implementation of evidence-based practices leads to an average decrease in crime of between 10 percent and 20 percent.  Programs that are not evidence-based, on the other hand, tend to see no decrease or even a slight increase in crime.

States can use that knowledge to make more informed decisions about which policies and programs to support as they seek to reduce spending on corrections. This Issue Brief provides an overview of the cost drivers behind corrections expenditures and identifies critical decision-points for states to consider as they take action to reduce costs. It also examines challenges to enacting reforms and makes recommendations for states looking to improve public safety with fewer resources. Those recommendations include:

  • Pursue an approach to reform that involves coordination and collaboration among state executive, legislative, and judicial branches;
  • Adopt evidence-based practices proven to reduce recidivism and eliminate programs shown to be ineffective or harmful;
  • Target high-risk offenders and tailor sentencing, treatment, and release decisions to individual risk factors;
  • Support mandatory supervision and treatment in the community; and
  • Use real-time data and information for decision-making.

November 10, 2011 in Procedure and Proof at Sentencing, Recommended reading, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, November 08, 2011

"Child-Abuse Reporting Law Is Challenge to Prosecutors"

The title of this post is the headline of this Wall Street Journal report, which ends with a notable sentencing spin on the stunning sex abuse scandal emerging from the Penn State football program.  Here are excerpts:

Ambiguity in a state law on reporting child abuse could complicate the prosecution of Pennsylvania State University administrators in the Jerry Sandusky case.

Tim Curley, Penn State's athletic director, and Gary Schultz, vice president for business and finance, were charged on Monday with failing to report to the authorities allegations that Mr. Sandusky, formerly Penn State's defensive coordinator, had sexually assaulted a minor on campus.  Pennsylvania Attorney General Linda Kelly said the university sat on information that could have prevented further abuse.  The two men have also been accused of lying to a grand jury about what they knew of the allegations.  They have denied the charges. Mr. Sandusky has denied any wrongdoing.

It is unclear if the officials were obligated to report the allegations in the first place, legal experts said.  Messrs. Curly and Schultz could argue they aren't covered by the reporting law, which requires professionals "who, in the course of their employment, occupation or practice of their profession, come into contact with children" to report any suspected abuse....

Whether or not the "failing to report" charges survive, the two are each charged with one count of perjury, which carries a punishment of up to seven years in jail.  Under sentencing guidelines, they would likely face one to 12 months....  The "failing to report" charge carries a maximum of 90 days in jail and a $200 fine.  Some observers wonder why lying to a grand jury about knowledge of child-abuse allegations carries a stiffer punishment than failing to report them in the first place.

"Frankly, we need to take a look at whether the penalties need to be increased for failing to report," said Pennsylvania state representative Todd Stephens (R.), a former assistant district attorney who used to prosecute sex crimes.

November 8, 2011 in Offense Characteristics, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (25) | TrackBack

Wednesday, November 02, 2011

State mandatory minimum requires Oregon faith-healing parents to serve long term for manslaughter

Though I am still working my way through the important new US Sentencing Commission report on mandatory minimum sentences, this local article from Oregon is a reminder that many states have notable mandatory minimum sentencing rules that apply in many notable settings.  Here are the details of this sad, yet interesting, state mandatory minimum sentencing tale:

A Clackamas County judge stunned a courtroom packed with supporters of Dale and Shannon Hickman Monday when he sentenced the couple, members of an Oregon City faith-healing church, to prison for six years and three months.

The Hickmans received the mandatory minimum prison term under Measure 11 sentencing guidelines, even though defense attorneys argued that their clients qualified for little or no prison time. Once released, they will be on post-prison supervision for three years.

"This is a sentence you have justly earned," said Presiding Judge Robert D. Herndon. He called incarceration "a modest penalty for causing the death of a vulnerable person. ... This was so preventable."

After Herndon left the courtroom, about 100 church members remained, sullen and many sobbing, as deputies handcuffed the Hickmans and led them away.

The Hickmans were convicted of second-degree manslaughter in September for failing to seek medical care for their son David, who was born two months prematurely and lived less than nine hours. An autopsy found he had staph pneumonia and underdeveloped lungs. Pediatric experts testified that the baby almost certainly would have survived if he had been taken to a hospital. The Hickmans sought no medical intervention even as the baby turned gray and struggled to breathe.

Under Oregon law in effect when the baby died in 2009, defense attorneys maintained that the Hickmans were eligible for a lesser sentence available to those who rely on spiritual treatment. The Legislature eliminated the exemption this year -- motivated by the long history of child deaths among the Followers – and the Hickmans will be the last Oregonians to attempt to benefit from the old law. Under the law in effect at the time of the crime, Herndon needed "substantial and compelling reasons" to depart from the sentencing guidelines, and he did not see any.

Had the Hickmans conceded at trial that David was sick -- but not gravely ill -- and that they relied on faith-healing rituals to cure him, they might have fared differently at sentencing. But instead of invoking a religious defense, the Hickmans said they saw no reason to call 9-1-1 or seek medical assistance because there was nothing wrong with their son, even as he grew weaker and died. "As the evidence unfolded and the witnesses testified, it became evident to me and certainly to the jury that this death just simply did not need to occur," said Herndon, noting that the jury reached a unanimous verdict in a "stunningly" short time.

Defense attorneys Mark Cogan and John Neidig urged Herndon to give the couple probation, assuring Herndon that the parents would take their children to the doctor and get training to help them determine when a child needs a doctor's care.

Shannon Hickman tearfully appealed for Herndon to not separate her from her two children, a 7-year-old daughter and an infant son. Dale Hickman, emotional but composed, asked the judge to "find in your heart mercy for my wife and above all else, our children."...

Prosecutor Mike Regan said the sentence sends a message to the church. The Followers are not fundamentally different from a black-robed pagan group that sacrifices a sick child in the dead of night, Regan told the court. In the Followers, "we have a religious group sacrificing children's lives, year after year, decade after decade," he said. "We have to do something."

November 2, 2011 in Mandatory minimum sentencing statutes, Offense Characteristics, State Sentencing Guidelines | Permalink | Comments (26) | TrackBack

Monday, October 17, 2011

Taking stock of New York's historic prison population drop

This lengthy AP article discusses the what and the how of New York's remarkable reduction in its state prison population in recent years.  Here are highlights:

Nearly 40 years after tough new drug laws led to an explosion in prison rolls, New York state has dramatically reversed course, chalking up a 62 percent drop in people serving time for drug crimes today compared with 2000, according to a Poughkeepsie Journal analysis.

The steep decline — driven, experts said, by shifting attitudes toward drug offenders and lower crime — means that nearly 17,000 fewer minorities serve state time today than in 2000, groups that were hardest hit by the so-called war on drugs.  Overall, the prison population declined 22 percent.

Hispanics and blacks are still vastly overrepresented in prisons but incarceration experts said the overall figures were impressive.  "The drop itself is really quite extraordinary," said Michael Jacobson, director of the Manhattan-based Vera Institute of Justice, a nonprofit center for justice policy research....

Nationally, New York charted the biggest drop in its prison rolls from 2000 to 2010, a decade when 37 state prison systems had double-digit population hikes.  Ironically, it was the state's 1973 drug laws, championed by then-Gov. Nelson A. Rockefeller, that helped kick off a massive national prison buildup — and the highest incarceration rate in the industrialized world.

Now — with state prison spending at $3.7 billion in fiscal 2010, or $55,000 per inmate — New York may be leading the way back.  Nearly 7,700 fewer blacks are incarcerated in state prison in 2011 compared with 2000, the Journal study found.  In addition, 35 percent fewer female inmates serve time — and 77 percent fewer women serve drug sentences as their top crime.  Inmates were also older — by three years on average, according to the analysis, which used databases of the inmate population on one day each in February 2000 and March 2011.

The trend is an outgrowth, experts said, of factors including the diversion of more drug offenders to treatment, changes in drug laws and lower crime rates — especially in New York City, which currently ranks among the safest big cities in America.  There, aggressive "stop-and-frisk," zero-tolerance and computer-driven anti-crime programs have been employed, some say, with remarkable results....

The decline in drug-convicted inmates means more of the type of inmate for which penitentiaries were constructed: violent offenders.  Today, the No. 1 top crime of sentenced inmates is second-degree murder, with just over 8,000 convicts — about the same as in 2000.  In 2000, the most common top crime for which inmates were incarcerated was third-degree criminal sale of a controlled substance — with almost 10,000 people sentenced.  That's now down to about 3,000.  

"I would argue that the right people are being sentenced to prison," said Brian Fischer, New York state's prison commissioner.  "Was prison the best alternative for drug abusers? Clearly it was not."...

Before adoption of its drug laws in 1973, New York had built just 18 prisons in 140 years. Driven by mandatory drug sentences and other tough-on-crime statutes, the state opened 52 prisons from 1973 to 2000, raising the population from 13,400 to a historic peak, on Dec. 12, 1999, of 71,538 inmates.  It was 55,599 last week....

Janet DiFiore, a former judge and current Westchester County district attorney ... ties the prison downturn both to drug law reforms — in 2004, 2005 and 2009 — and a recognition in law enforcement that alternatives like drug treatment were needed.  Almost 200 drug courts have been opened statewide, most since 2000, that divert many otherwise prison-bound offenders to treatment.

The downsizing doesn't impress some reform advocates, who still see the system as hugely bloated, especially with blacks and Hispanics, now 77 percent of inmates and down from 84 percent in 2000. "The disparities have diminished somewhat and that's good news, but that does not put us as a state in a place that we can be proud of," said Donna Lieberman, executive director of the New York Civil Liberties Union, which has opposed city frisking policies as invasive and discriminatory. "We were starting at a pretty horrific place from which to decline."...

What's clear is that the downturn is continuing — equal to one or two large prisons in each of the last three years. And it may accelerate with most experts agreeing that the latest drug law reforms have yet to fully kick in.  In 2009, amendments to the Drug Law Reform Act gave judges far broader discretion to divert offenders to drug treatment or sentence them to lesser, non-mandatory, terms. In 2004 and 2005, the act reduced the harshest sentences — 15 years to life for selling as little as two ounces of cocaine or possessing four ounces — but those reforms only marginally reduced the population, experts said.

The reforms are an outgrowth of something much larger than a drug-war backlash, according to close prison observers, among these ballooning prison budgets, the economic downturn and a realization that punishment isn't always the answer.  "Prosecutors were recognizing that our job was not just about handcuffs and prison," said DiFiore. "It was a mindset change."

"In a time of economic recession it causes a rethinking," said Alan Rosenthal, director of justice strategies for the Center for Community Alternatives, a Manhattan-based sentencing reform group. "We had a shift from tough on crime to smart on crime," an acknowledgement, he added, that high prison rolls did not equate with lower crime.

Rates of major crime in New York state have dropped 63 percent since 1990 — a consistent decline even as the prison population rose an average 4 percent a year in the 1990s and declined an average 2 percent a year in the 2000s.

This important article not only highlights the links between the drug war and large prison populations, but also documents that state decisions to fight the drug war using smarter (and less costly) alternatives to imprisonment can facilitate a dramatic reductions in prison populations without obvious adverse public safety consequences.  

I find it especially notable that New York managed to reduce is prison population over 20% during the same period in which California was fighting in court over court orders to fix its overcrowded prisons.  I genuinely believe if the folks in California had embraced the creation of a sentencing commission that could have studied and implemented effective changes taking place in other states, the Plata litigation would have played out much differently and the massive prisoner release order that worries so many would never have come to pass.

October 17, 2011 in Data on sentencing, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, October 16, 2011

Penn Law Review presents “Sentencing Law: Rhetoric & Reality”

2011 Law Review Symposium Poster FinalI have the great honor of having been invited to participate in this great sentencing conference taking place later this month at the University of Pennsylvania Law School. And I now have the great pleasure of providing a bit of promotion for this event by reprinting this e-mail text from the Articles Editor of the University of Pennsylvania Law Review

The University of Pennsylvania Law Review is hosting its 2011 symposium, “Sentencing Law: Rhetoric & Reality” at the Law School on October 28 and 29.  The event will cover the current dynamic issues of this area of law with distinguished judges, legislators, scholars, practitioners, and nonprofit leaders.

The featured panel co-sponsored by the National Association of Criminal Defense Lawyers (NACDL) and Right on Crime will include Congressman Bobby Scott, former DEA Administrator Asa Hutchinson, the fourth director of the FBI William S. Sessions, and Pennsylvania State Senator Stewart Greenleaf, all of whom are in a position to effect real change.

The Hon. Denny Chin of the U.S. Court of Appeals for the Second Circuit, who as a district court judge presided over the guilty plea and sentencing of Bernie Madoff, will serve as our featured lunch speaker.   The New York Times called the sentence he imposed–150 years imprisonment -- “the most stunning and widely discussed sentencing in the history of American white-collar crime.”

For more information about the schedule, speaker biographies, and registration, please visit http://www.pennumbra.com/symposia.  Registration fees for the event are: $75 for professionals in private practice; $35 for government and nonprofit employees, and non-University of Pennsylvania academics; $10 for non-University of Pennsylvania students; and free for University of Pennsylvania faculty and students.   Symposium attendees may receive up to 12 hours of Continuing Legal Education credit at $10 a credit.

October 16, 2011 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, October 04, 2011

Examining California's new prison placement law (and its possible impact on the King of Pop's doc)

I have not been closely following the on-going trial of Conrad Murray, the doctor charged with being criminally responsible for causing Michael Jackson's premature demise.  I am intrigued and pleased to discover, however, that this new AP story finds a way to link that trial and Murray's potential sentencing to the new laws in California enacted in part to help the state comply with the Plata SCOTUS ruling concerning the state's overcrowded prisons.  Here is how the lengthy new AP piece starts:

Gov. Jerry Brown and others who supported the dramatic shift in California's sentencing law that took effect this week have said it will send only those convicted of nonviolent or non-serious crimes to county jails instead of state prison, a change designed to save the state money and reduce inmate crowding.

Yet a review by The Associated Press of crimes that qualify for local sentences shows at least two dozen offenses shifting to local control that can be considered serious or violent. Among them: Involuntary manslaughter, vehicular manslaughter while intoxicated, killing or injuring a police officer while resisting arrest, participating in a lynching, possession of weapons of mass destruction, possessing explosives, threatening a witness or juror, and using arson or explosives to terrorize a health facility or church.  Assault, battery, statutory rape and sexual exploitation by doctors or psychotherapists are also covered by the prison realignment law and carry sentences that will be served in a county jail instead of state prison.

"These crimes include a variety of offenses that would strike many civilians as far from trivial," Public Policy Institute of California researcher Dean Misczynski wrote in a recent analysis of the new law [available at this link].  A list of 500 criminal code sections to be covered by the law was compiled by the California District Attorneys Association and posted late last month to its website [at this link].  In response to a request by the AP, the state attorney general's office confirmed the association's review was accurate but said defendants with a previous felony conviction or those charged with enhancements would still be sent to state prison.

Among those who could be affected by the new law if convicted is Dr. Conrad Murray, who is on trial for involuntary manslaughter in the death of Michael Jackson.  Legal experts said he would serve his maximum four-year sentence in a Los Angeles County jail instead of state prison.

The length of sentences won't necessarily change, but the realignment law does offer significant differences for inmates.  Parole will disappear for offenders who serve their terms in county jails, including Murray, if he is convicted.  Offenders who serve their full sentences behind bars will not be supervised once they are released.  Parole officers will not be tracking their movements or making sure they comply with conditions such as substance abuse treatment.

Judges also have the discretion to impose "hybrid" or "split sentences" in which offenders serve part of their sentence in county jail and the rest on what is being called "mandatory supervision," overseen by probation officers.

Offenders convicted of more significant crimes still are likely to get lengthier sentences, even if they are served in jail instead of prison, said Scott Thorpe, chief executive officer of the state district attorneys association.  But sentencing more serious offenders to jail rather than state prison will likely force counties that already have crowded jails to release less serious offenders who are serving time for crimes such as auto theft, burglary, grand theft, forgery, counterfeiting and drug crimes.

Los Angeles County District Attorney Steve Cooley is among those complaining that counties will be forced to release lower-level offenders by the thousands before they have served their full terms.

October 4, 2011 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, September 23, 2011

Notable state fraud ruling affirming 54-year sentence for white-collar offender

A helpful reader alerted me to an interesting opinion from the Indiana Court of Appeals in Reeves v. Indiana, No.  77A01-1012-CR-646 (Ind. Ct. App. Sep. 19, 2011) (available here), which rejects a state white-collar defendant's various complaints about his convictions and his sentence of 54 years of imprisonment for running what turned into a kind of faith-based Ponzi scheme.  This discussion of the sentencing issues provide background on the nature of the crime and why the long punishment was upheld in Reeves:

Although Reeves's crimes were property crimes, they were not ordinary property crimes, resulting in staggering losses to thousands of victims: $13,149,000 lost by 2904 victims, at least some of whom had their retirement savings wiped out.   Among the victims was Steven Duncan, who lost $600,000, money that was intended to fund his retirement. Duncan testified that the loss ruined his marriage and his life and that his current blindness might have been avoided had he been able to afford medical insurance. Reverend Roger Wright, who had invested his entire retirement savings in Alanar, lost it all, a total of $179,152.   Rev. Wright, like many ministers, had not paid into the Social Security system and so was completely dependent on his retirement income, which is now gone. Indeed, a large percentage of Reeves's victims were elderly, a group he targeted.

Moreover, the trial court found, and the record indicates, that Reeves exploited the religion and faith of his victims.   After the terms of a bond issue were finalized, Alanar would organize a “kickoff” night at the church in order to start selling bonds.  Alanar's sales presentations at the kickoffs included reminding potential bondholders of their “Christian responsibility” to support the church by buying bonds....  Many of Reeves's victims trusted him because they believed him to be a Christian and considered the fact that they were investing with a Christian company when deciding whether to invest.  In light of the very large number of victims, the vast amount of their losses, and the elements of cynical exploitation to Reeves's scheme, we consider his crimes to be very egregious.

While Reeves's lack of a prior criminal history and expressions of remorse do him some credit, it certainly should be noted that evidence presented at trial does not.   Reeves testified that he felt there was nothing wrong with what he was doing at Alanar. Two Alanar employees, however, testified that they faced retribution when they began to understand the true workings of Alanar....  Reeves's reckless disregard for bondholders' money was also expressed by his decision to purchase Porsche Boxsters for his three sons as a bonus.  While there are some redeeming aspects of Reeves's character, the very egregious nature of his crimes and the negative aspects of his character fully justify his enhanced and consecutive sentences.   Reeves has failed to establish that his fifty-four-year aggregate sentence in inappropriate.

September 23, 2011 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Saturday, September 17, 2011

"Fort Worth man gets life sentence in shoplifting case that ended in death"

The presidential candidacy of Texas Governor Rick Perry has brought extra attention to his state's record with capital punishment.  But this local Texas article reporting on the imposition of a life(!) sentence on a Walmart shoplifter has me hoping the media might find some time to ask Governor Perry some questions about some other aspects of Texas justice.  (Hat tip: Scott Henson from Grits for Breakfast.)

The title of this post comes from the the headline this Fort Worth Star-Telegram article, and here are the remarkable offense and sentencing details:

A 38-year-old man has been sentenced to life in prison in a shoplifting case that ended in the death of a Walmart employee.  Although William Alan Kennedy was never charged with causing the death of Bruce Florence, a Tarrant County jury found the Fort Worth man guilty of aggravated robbery for knocking Florence, 56, down while trying to run out of the Westworth Village Walmart with a stolen TV worth $348 on June 11, 2010.

Florence, who hit his head on the floor, was hospitalized and died June 20. The Tarrant County medical examiner's office, however, ruled that end-stage liver cirrhosis -- not the head injury -- caused Florence's death.

"After conscientious deliberations, the jury agreed that Kennedy's actions were a serious threat to Bruce Florence," Nelda Cacciotti, who prosecuted the case with Mark Thielman, said in a news release issued by the Tarrant County district attorney's office Thursday. "We hope that all shoplifters get the message that store thefts may have long-term consequences for the victim and the defendant."

The jury deliberated almost three hours before finding Kennedy guilty of aggravated robbery.  State District Judge Mike Thomas then sentenced Kennedy to life in prison. Kennedy has appealed the case....

Besides aggravated robbery, court records show that Kennedy was also convicted Wednesday on five state-jail-felony charges of theft of property in similar shoplifting cases in Fort Worth, four of which involved Walmarts.

The applicable Texas robbery law makes a robbery "aggravated"  if the defendant "causes serious bodily injury to another," but the potential Texas statutory punishment range for such a first-degree felony appears to be 5 years to life.  Given the fact that the defendant here, though apparently a serial shoplifter, did not obviously intend to seriously hurt the store employee who tragically died, I do not see the justification for maxing out this defendant's punishment to life in prison!?!  (I believe this particualr form of a life term includes the possibility of parole in Texas, though I also believe lifers in Texas are not even statutorily eligible for parole for 35 years!)  

September 17, 2011 in Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (8) | TrackBack

Thursday, September 15, 2011

Mandatory life (with parole) sentence for "lewdness with child under 14" before Nevada Supreme Court

The folks at Families Against Mandatory Minimums have this new press release spotlighting that a very interesting state mandatory minimum sentencing case is to be heard by the Nevada Supreme Court this afternoon.  Here are the basics:

[Michelle Lyn] Taylor, 34, was convicted under Nevada’s “life-for-lewdness” law in November 2009 for drunkenly forcing a 13-year-old boy to touch her breast and demanding (unsuccessfully) that the boy engage in sex.   Neither the judge, nor one of the original legislative sponsors of the lewdness law, felt the punishment fit the crime.  Still, the existence of the mandatory minimum law forced the court to sentence Taylor to life in prison with possibility for parole in 10 years....

FAMM noted in its [amicus] brief [available here] that Nevada is the only jurisdiction in the country that requires a mandatory life sentence for lewd conduct.  The majority of states provide punishment of between several months to five years in prison.  The minority of states that permit more severe penalties do so without utilizing mandatory minimum sentences anywhere near the life sentence required under Nevada law.  Indeed, only two states even allow, in the broad exercise of a sentencing court’s discretion, that a life sentence might be imposed for such conduct in the most egregious cases.

In addition to the remarkable facts involved in this Nevada case, I find the legal issues here quite fascinating in part because there is a claim here pressed based on the Nevada Constitution's prohibition of "cruel or unusual" punishment as well as one based on the Eighth Amendment prohibition on "cruel and unusual" punishments. In addition, for modern Eighth Amendment jurisprudence in the wake of the Supreme Court's recent ruling in Graham, it is unclear just how much constitutional significance there is to the fact (1) that this life term was a result of a mandatory sentencing provision, and (2) that the defendant is eligible for (and probably would receive) parole before the end of this decade.

Related posts:

UPDATE: A helpful reader wisely suggested I tweak the title of this post to clarify that the offense of conviction in this notable case concened "lewdness with child" under the age of 14.  In addition, I thought it useful to link to the applicable Nevada statute and reprint its basic provisions:

Nevada Revised Section 201.230: Lewdness with child under 14 years; penalties.

1.  A person who willfully and lewdly commits any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child, is guilty of lewdness with a child.

2.  Except as otherwise provided in subsection 3 [providing for mandatory LWOP for repeat offender], a person who commits lewdness with a child is guilty of a category A felony and shall be punished by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, and may be further punished by a fine of not more than $10,000.

September 15, 2011 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, September 08, 2011

"Cost as a Sentencing Factor: A Theoretical Inquiry"

The title of this post is the title of this great-sounding new paper from Professor Chad Flanders available via SSRN.  Here is the abstract:

In sentencing offenders, should judges take into account the different costs of possible punishments?  In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year).  Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy.

This essay represents the first sustained look at Missouri’s new sentencing reform, and argues against the wisdom of allowing judges to consider costs when sentencing.  Although it is too much to say that judges should be categorically prohibited from considering the costs of possible sentences, there are good arguments why cost should be a strongly disfavored category when it comes to criminal sentences.  Desert should always be the primary consideration in sentencing for judges, and while other factors may make a difference at the margins, when judges base sentences on extrinsic, rather than intrinsic features of offenses and offenders, they risk creating unjust variations in sentences.

September 8, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack